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Bowe-Connor v. McDonald

United States District Court, District of Columbia

September 30, 2016

ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant.


          Deborah A. Robinson United States Magistrate Judge

         Pro se litigant, Shelia S. Bowe-Connor, brings this employment discrimination case alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and sections 501 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. 791, 794(a) etseq., as well as claims relating to wrongful termination.[1] See Complaint (ECF No. 1) at 1. Defendant has moved to dismiss for lack of subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies, or, in the alternative, for summary judgment. Defendant's Motion to Dismiss or, In the Alternative, For Summary Judgment (ECF No. 8).


         Plaintiff was an employee of the Department of Veterans Affairs Medical Center from 1984 until her removal on May 17, 2013. Compl. ¶¶ 8-9. Plaintiff appealed her removal to the Merit Systems Protection Board ("MSPB") in June 2013 on the ground that the penalty of removal was disparate, and, in addition, alleged harmful procedural error. See generally Appellant's Prehearing Submissions (ECF No. 20-3). Plaintiff's case was heard before an Administrative Judge ("AJ"), who upheld her removal as proper in an initial decision dated September 11, 2014. See Initial Decision (ECF No. 8 Ex. 1). Plaintiff sought review of the AJ's initial decision by the MSPB, which subsequently affirmed the AJ's determination and issued a final order on January 20, 2015. See Final Order (ECF No. 8, Ex. 2) at 6-8. The MSPB's final order upheld the AJ's decision with regard to Plaintiffs disparate removal and procedural error claims; however, the MSPB declined to consider Plaintiffs allegations of disability discrimination and reprisal because, it found, she had raised them for the first time on her petition for review. Id. at 9. Plaintiff filed the present action on February 18, 2015.


         Plaintiff contends that she was improperly terminated from her position with the VA based on, inter alia, disparate treatment on account of her disability as well as reprisal for prior protected EEOC activity. See Compl. ¶¶ 41-87. Defendant argues that the Plaintiff has failed to properly exhaust her administrative remedies before the MSPB. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, In the Alternative, for Summary Judgment (ECF No. 8) at 5-10. Because Plaintiff did not raise her discrimination claims until after the AJ had already made its initial decision, Defendant argues, Plaintiff has failed to bring a "mixed case" - i.e. one involving adverse employment action and discrimination. See Id. at 7-8. As such, Defendant contends, this Court lacks subject matter jurisdiction and therefore must dismiss Plaintiff's complaint. Id. at 10.

         Plaintiff disputes Defendant's contention that she failed to exhaust her administrative remedies, arguing that she did bring a "mixed case" before the MSPB. Plaintiffs Opposition Motion to Defendant's Statement of Material Facts as to which there is No Genuine Dispute (ECF No. 11) at 2. Plaintiff argues that she asserted discrimination claims when she described the "precise disability ... to the AJ in the initial hearing when [the AJ] asked Plaintiff to define the terminology 'light duty.'" Plaintiff's Opposition to Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (ECF No. 11) at 2. According to Plaintiff's opposition, "The AJ judge tried to get Plaintiff to retire on disability retirement and the Plaintiff had to explain to the AJ what light duty meant. Plaintiff [sic] Discriminatory and non-discriminatory claims were presented at the initial appeal." Id. at 5. Plaintiff contends that because she discussed her disability with the AJ during the hearing, she successfully brought a "mixed case" before the MSPB and therefore this court has jurisdiction to hear her claim.


         Motion to Dismiss

         As stated above, Defendant has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on Plaintiff's failure to exhaust, and Rule 12(b)(6) for failure to state a claim. This court has held, however, that "motions to dismiss for exhaustion ... are more appropriately addressed as motions to dismiss for failure to state a claim under Rule 12(b)(6)" than for lack of jurisdiction under 12(b)(1). Marcelus v. Corrections Corp. of America/Correctional Treatment Facility, 540 F.Supp.2d 231, 234 (D.D.C. 2008) (citing Alfred v. Scribner Hall & Thompson, LLP, 473 F.Supp.2d 6, 8 (D.D.C. 2007); Potts v. Howard Univ., 240 F.R.D. 14, 18-19 (D.D.C. 2007), rev'd on other grounds, 2007 WL 4561147 (D.C. Cir. Dec. 7, 2007)). Under the 12(b)(6) analysis, "a plaintiffs obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         While a court must typically limit its 12(b)(6) inquiry to the pleadings, see Rodgers v. Perez, 139 F.Supp.3d 67, 74 (D.D.C. 2015) (quoting Fed.R.Civ.P. 12(d)), courts "may consider documents attached to or incorporated by the complaint in deciding a Rule 12(b)(6) motion without converting the motion into one for summary judgment." Marcelus, 540 F.Supp.2d 235 n.5; EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621 (D.C. Cir. 1997); Carter v. Washington Post, 2006 WL 1371677, at *3 n.4 (D.D.C. May 15, 2006). A review of Plaintiff's complaint reveals that while she did reference both the AJ's Initial Decision and the MSPB's Final Order, she did not include the Plaintiffs notice of appeal of her removal to the AJ, her prehearing submissions, the VA's prehearing submission, or the Order and Summary of Prehearing Conferences with the AJ. Compl. ¶¶ 6, 37-38; see also Carter, 2006 WL 1371677, at *1 n.2. Therefore, since the court must look to documents outside the pleadings to resolve the issue of whether Plaintiff successfully brought a "mixed case, " the 12(b)(6) standard is inappropriate. See Fed. R. Civ. P. 12(d). Accordingly, the court will deny the Defendant's motion to dismiss and turn instead to the alternative motion for summary judgment.

         Motion for Summary Judgment

         An order of summary judgment is appropriate when the moving party has shown that there are no genuine issues of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. liberty lobby, 477 U.S. 242, 248 (1986). Moreover, a material fact is one which is capable of affecting the outcome of the litigation. Id. When a court considers a motion for summary judgment, it "should review all of the evidence in the record . . . [and] draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         Ju ...

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