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McGary v. McHugh

United States District Court, District of Columbia

June 20, 2014

THEODORE McGARY Plaintiff,
v.
THE HONORABLE JOHN M. McHUGH, Secretary, Department of the Army, et al., Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Theodore McGary, plaintiff, brings this pro se action alleging Title VII employment discrimination against the United States Army, his former employer, in the United States District Court for the District of Columbia. After receiving what he characterizes as a negative recommendation, plaintiff initially filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), appealed that decision to the Office of Federal Operations ("OFO"), and subsequently filed in the district court system after receiving unfavorable outcomes each time. Defendants John McHugh, Secretary for the Department of the Army, and Carol Burton, plaintiff's former supervisor, have filed a 12(b)(6) motion to dismiss on the basis that plaintiff has failed to state a claim on which relief can be granted, and a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction over defendant Burton. Defendants further allege that plaintiff's complaint was not timely filed. Received 4 days after the strict deadline, plaintiff's complaint was indeed not timely, and as such the plaintiff's claim will be DISMISSED with prejudice.

I. BACKGROUND

Many of the facts of this case were thoroughly set out in the Office of Federal Operations ("OFO") decision.

[Plaintiff] worked as an Employee Relations Specialist at the Agency's Civilian Personnel Advisory Center (CPAC), U.S. Army Garrison in Kaiserlautern, Germany. [Plaintiff] began working for the Agency in September 2007, and left for another position in January 2009.
In a complaint dated April 13, 2009, [plaintiff] alleged that the Agency discriminated against him based on his race (Black), sex (male)[, ] and reprisal when:
1. [Plaintiff] received a level three for his decision to accept a position with the Navy in Yokosuka, Japan.
2. [Plaintiff] received one share for his annual pay increase, while two similarly situated White females received two shares.
3. [Plaintiff's] second level supervisor provided negative references to three potential employers.
In 2000, [plaintiff] filed a complaint against his then employer, the Peace Corps. [Plaintiff] shared this information with his immediate supervisor (S1) and [defendant Carol Burton, ] his second level supervisor (S2)[, ] and others. S1 provided a recommendation for [plaintiff]. She also provided a recommendation for [another employee, a white female]. S2 concurred with both recommendations. The recommendations were submitted as required to the pay pool panel. Both ratings were lowered by the pay pool panel. [Plaintiff] received one share for his reduced rating and [the white female] received two shares with her reduced rating.
[Plaintiff] also sought other employment. S2 told one prospective employer that [plaintiff] was a "job hopper."
After conducting an investigation, which included testimony provided at a fact-finding conference, [plaintiff] was sent a report of investigation (ROI) and the transcript. [Plaintiff] requested a hearing before an AJ [administrative judge]. Over the objection of [plaintiff], the AJ granted summary judgment.

Ex. 10 at 1-2, ECF No. 6-12 (footnote omitted). The final agency decision implementing the judge's ruling was entered on August 29, 2011. Id. at 1. Plaintiff then appealed his unfavorable decision to the OFO, which affirmed the administrative judge's grant of summary judgment to the defendants, and entered its decision on April 16, 2013. Id. at 3, 6. A provision included in the decision gave plaintiff "the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that [plaintiff] receive[d] [the] decision." Id. On the next page, the certificate of mailing reads: "[f]or timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it ...


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