United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
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,
moves for dismissal or summary judgment, in part.
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.
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
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.
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.
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.
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”).
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.
SUMMARY OF FACTS
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.
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.
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.
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.
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