United States District Court, District of Columbia
SHELIA S. BOWE-CONNOR, Plaintiff,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant.
Deborah A. Robinson United States Magistrate Judge
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. 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).
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.
OF THE PARTIES
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.
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.
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
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.
for Summary Judgment
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).