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Grant v. Department of Treasury

United States District Court, District of Columbia

September 28, 2017

DEPARTMENT OF TREASURY, et al., Defendants.



         Aaron Darnell Grant worked as a Special Agent in the Internal Revenue Service's criminal investigation unit until his second termination on January 30, 2013. Mr. Grant is an African-American male who claims a disability due to his alcohol dependency. He complains that discrimination based on his race, sex, and alleged disability, as well as retaliation for protected activities, prompted his discharge. Mr. Grant sues under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2012), the Rehabilitation Act of 1973 (Rehab Act), 29 U.S.C. § 701, and the Administrative Procedure Act, 5 U.S.C. § 500 et seq. See 2d Am. Compl. [Dkt. 23]. Steven Mnuchin, sued in his official capacity as Secretary of the Treasury, [1] moves for dismissal or summary judgment, in part.

         Mr. Grant complains here of alleged discrimination in violation of his rights to equal employment opportunity under Title VII. Some actions of which he complains are not subject to litigation because he failed to file a timely lawsuit. His complaint over other actions is premature because he has not exhausted the administrative process. These flaws are not resolved by citing the APA. That statute does not provide a basis to review his case, inasmuch as the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., or equal employment opportunity laws such as Title VII or the Rehab Act address the issues. As explained below, the Court will dismiss Mr. Grant's allegations based on Title VII, the Rehab Act, and the APA.

         The only remaining allegations, some of which also allege discrimination, were addressed by the Merit Systems Protection Board (MSPB) in connection with Mr. Grant's 2013 discharge. The Government moves to transfer review of that MSPB decision to the United States Circuit Court for the Federal Circuit, which has sole statutory authority to review most MSPB final decisions, see 5 U.S.C. § 7703(b)(1)(A). However, when appeals from the MSPB involve claims alleging discrimination, federal district courts are instead vested with jurisdiction to hear the appeal. See Id. § 7703(b)(2); Ikossi v. U.S. Dep't of Navy, 516 F.3d 1037, 1042 (D.C. Cir. 2008). For this reason, the Court will deny the Government's motion to transfer the MSPB appeal to the Federal Circuit, and will retain jurisdiction to consider Mr. Grant's claims concerning it.


         A short introduction to applicable federal personnel law is needed to understand the basic facts. Title VII explicitly applies to the Executive Branch of the federal government and bans discrimination based on race, color, religion, sex, and national origin. 42 U.S.C. § 2000e-16. The Rehab Act bans discrimination based on disability in federal employment. 29 U.S.C. § 701.

         As relevant here, a federal employee who believes he was discriminated against because of, inter alia, his race, sex or disability, has a right to file an administrative complaint with his agency. The agency must then investigate the charge and decide its merits. It is illegal for an agency to retaliate against an employee for filing a discrimination charge or otherwise participating in the processing of an equal employment opportunity (EEO) complaint. 42 U.S.C. § 2000e-3(a); see Allen v, Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015). If the agency decides that there is no merit to the employee's EEO charge, the employee may seek a hearing before an Administrative Judge of the Equal Employment Opportunity Commission (EEOC). The EEOC also processes complaints under the Rehab Act.

         The Administrative Judge allows the parties necessary discovery and then will either rule on a motion for summary judgment or hold a hearing to take evidence on the employee's complaint. See 29 C.F.R. § 1614.109. In either event, the Administrative Judge will issue a decision ruling on the employee's charges of discrimination and/or retaliation. See id.

         When a federal employee complains of discrimination and violation of his rights under the CSRA, he can appeal the Administrative Judge's opinion to either the EEOC or the MSPB, but not both. Hooker-Robinson v. Rice, No. 05-cv-321, 2006 WL 508343, at *5 (D.D.C. Mar. 1, 2006) (quoting Sloan v. West, 140 F.2d 1255, 1259 (9th Cir. 1998)); see 29 C.F.R. § 1614.302(d). When a case involves alleged discrimination in violation of Title VII and also an adverse action subject to MSPB appellate jurisdiction either EEOC or MSPB will receive and rule upon the “mixed case complaint.” Hooker-Robinson, 2006 WL 508343, at *5 (“Thus, a mixed case may be pursued with the agency's EEO department or as an appeal to the MSPB, but not both.”); see 29 C.F.R. § 1614.302(d) (defining “mixed case complaints”).

         Separately, federal employees may directly appeal certain adverse actions subject to the CSRA, such as terminations, to MSPB, following a similar administrative path. See 5 U.S.C. § 7512 (Actions covered); § 7701 (Appellate procedures). MSPB can exercise related jurisdiction over discrimination claims in these circumstances as well. See 5. U.S.C. § 7702. When a federal employee appeals an adverse action to MSPB, it is first reviewed by an Administrative Judge, who issues an Initial Decision; the employee may then petition for further review by the Board itself. 5. U.S.C. § 7701. Final orders of MSPB are subject to appeal to the Federal Circuit, except those that include allegations of discrimination, which may be appealed to either the EEOC or to a federal district court. See Id. § 7703(b)(1)(A), b(2). In such circumstances, federal district courts review the entirety of the final MSPB decision; decisions of the MSPB on discrimination matters are reviewed de novo, while all other decisions are reviewed for abuse of discretion. See id § 7703(c); White v. Tapella, 876 F.Supp.2d 58, 65 (D.D.C. 2012).


         Before going into further detail, a brief summary of the relevant intertwined administrative proceedings may help in understanding this Memorandum Opinion. Mr. Grant was terminated twice by the IRS; first in 2010, and again in 2013. In both instances, Mr. Grant appealed the termination itself to the MSPB, and filed separate EEO complaints about incidents leading up to each respective termination. Both the MSPB and the EEOC have issued respective final decisions concerning Mr. Grant's 2010 termination and the conduct leading up to it. The MSPB has issued a final decision regarding Mr. Grant's 2013 termination, but Mr. Grant's EEO complaints concerning conduct leading up to it are still pending before the EEOC.

         The IRS fired Aaron Darnell Grant in December 2010 for misconduct while he was employed as a Special Agent by the IRS Washington D.C. Criminal Investigation Field Office. See Defs.' Mem. in Support of Defs.' Mot. to Dismiss (Defs.' Mem.) Ex. A, EEO Administrative Judge's Order and Decision (March 31, 2015) (EEO Administrative Judge's Decision) [Dkt. 25-3] at 16. The alleged misconduct involved drinking alcohol on duty, drinking alcohol while wearing his gun, driving his government-owned vehicle while intoxicated, failing to report an accident while driving his government-owned vehicle, and several other acts seen to be unbecoming of an agent. Id. at 4. These matters had been the subject of an investigation by the Treasury Inspector General for Tax Administration (TIGTA) between April and July 2010, stemming from allegations of harassment by a female agent. See id at 3.

         Mr. Grant elected to appeal his discharge to the MSPB. See Defs.' Mem. Ex. C, MSPB Initial Decision, Dec. 15, 2011 (MSPB 2011 Initial Decision) [Dkt. 25-4]. He also filed EEO complaints concerning activity leading up to that 2010 discharge, which were ultimately denied several years later, in 2015. See EEO Administrative Judge's Decision at 1.

         The Initial Decision of the MSPB Administrative Judge affirmed his discharge for misconduct. MSPB 2011 Initial Decision at 1. However, when Mr. Grant appealed for review by the MSPB Board, the Board, through its 2012 Final Order, reinstated him with full backpay because of inappropriate communications between the official who proposed his separation and the official who made the final decision. Defs.' Mem. Ex. C, MSPB Final Order, August 1, 2012 (MSPB 2012 Final Order) [Dkt. 25-5] at 2. Mr. Grant did not file any appeal to the EEOC concerning this MSPB's Final Decision. Id. at 3. The Board reinstated Mr. Grant effective nunc pro tunc to December 10, 2010, and Mr. Grant returned to duty on September 4, 2012. 2d Am. Compl. ¶ 26; Defs.' Statement of Material Facts (Def.'s SOF) [Dkt. 25-1] ¶ 18.

         Instead of reinstating Mr. Grant to his former position, the IRS placed him in Temporary Restricted Duty status. See Defs.' Mem. Ex. E, Formal EEO Complaint, Nov. 9, 2012 (2012 EEO Complaint) [Dkt. 25-6] at 2. Special Agent in Charge (SAIC) Rick Raven, who had no role in any of the prior events, met with Mr. Grant and his first-line supervisor, Supervisory Special Agent (SA) Troy Burrus, and informed Mr. Grant that SAIC Raven would review the entire matter and may ...

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