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Thorne v. Shanahan

United States District Court, District of Columbia

August 23, 2019

OTIS THORNE, Plaintiff,
v.
PATRICK M. SHANAHAN, [1] Defendant.

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

         Otis Thorne, appearing pro se, sues the Department of Defense (DOD) for employment discrimination based on race and color. He also alleges retaliation for engaging in protected activity. Before the Court is the defendant's Motion to Dismiss the Amended Complaint or, in the Alternative, for Summary Judgment. See Dkt. 15. The defendant contends that Thorne failed to exhaust his administrative remedies prior to filing suit. For the reasons that follow, the Court will grant the defendant's motion.

         I. BACKGROUND

         A. Factual Allegations

         Thorne “is an African American male with dark color skin” who worked as a nursing assistant for the DOD's Defense Health Agency (DHA) from October 12, 2004, to November 14, 2016. Am. Compl. ¶¶ 1, 6, 13, Dkt. 7. On March 30, 2015, Thorne filed an equal employment opportunity (EEO) charge with the DOD, “claiming discrimination on the basis of his race and color because the defendant's employees were harassing him on his job and because the defendant was taking disciplinary action against him.” Id. ¶ 7. “Soon after” the DHA received notice of the charge, it “began taking additional adverse actions against” Thorne, “including accusing him of using controlled substances that required him to take a drug test, and . . . of engaging in other inappropriate behavior.” Id. ¶ 8.

         On September 13, 2015, Thorne was told that he was being investigated and was placed on administrative leave without pay. Id. ¶ 9. While on leave, Thorne filed a claim with the Merit Systems Protection Board (MSPB) “that included affirmative defenses of race and color discrimination and retaliation.” Id. ¶ 11. The DHA “continued [Thorne's] leave without pay even though [he] attempted to report to work” after filing the claim with the MSPB. Id. ¶ 12.

         Despite knowing the “plaintiff's whereabouts” and the reasons for his absence from work, ” the DOD “removed the plaintiff from federal service on or about November 14, 2016, allegedly because he was absent without leave.” Id. ¶ 13. Thorne claims that he was not treated like “other nursing assistants who were white Caucasians subject to the same supervisory rules as the plaintiff who did not suffer the adverse actions as did the plaintiff.” Id. ¶ 15.

         B. Procedural History

         1. EEO Activity

         On March 30, 2015, Thorne filed a complaint with the DOD's Equal Opportunity and Diversity Management (EODM) office, alleging that DHA had discriminated against him based on his race and color and had subjected him to harassment in assigning duties and through discipline. Decl. of Martin Dietz ¶ 3, Dkt. 15-3 (Dietz Decl.). The office treated Thorne's contact as an “EEO pre-complaint” and assigned an EEO counselor. Id. In the section of the pre-complaint form captioned “Basis of Complaint, ” Thorne checked the boxes for race and color but not reprisal. Id., Ex. 1. After the EEO counselor's “numerous attempts” to contact Thorne by telephone and email failed, DHA, by letter of April 23, 2015, issued a Notice of Right to File a Formal Complaint of Discrimination. Id., Exs. 2, 3. The agency has no record that Thorne “filed a formal EEO complaint in response” to that Notice. Dietz Decl. ¶ 6.

         In an email dated September 16, 2015, Thorne requested that his “EEO case . . . file[d] in [M]arch 2015” be reopened. Id., Ex. 4. On October 20, 2015, “the EEO counselor reached Mr. Thorne by telephone, at which point Mr. Thorne informed the counselor that he wished to halt all conversation until he had an opportunity to consult with an attorney, ” which he expected to do “within approximately three days.” Id. ¶ 8 (citing Exs. 4-5). After the counselor's “several” attempts to reach Thorne failed, DHA, by letter of November 2, 2015, issued a second Notice of Right to File a Formal Complaint of Discrimination. Id., Ex. 5. The agency has no record that Thorne “filed a formal EEO complaint in response” to that Notice. Id. ¶ 11. Nor does the agency have any record “that Mr. Thorne contacted EODM at any point after October 20, 2015.” Id. ¶ 12.

         2. MSPB Activity

         Meanwhile, on February 9, 2015, Thorne filed an appeal with the MSPB, alleging harassment and discrimination. In an Initial Decision dated March 18, 2015, the Administrative Judge dismissed for lack of jurisdiction, concluding that Thorne “had not shown the agency's action amounted to a removal; a suspension exceeding 14 days; a reduction in grade; a reduction in pay; or a furlough of 30 days or less.” Def.'s Ex. A at 2, Dkt. 15-4. Without “adverse actions appealable to the Board, . . . the Board lack[ed] jurisdiction over [the] discrimination claims.” Id.

         On October 28, 2015, and November 13, 2017, respectively, Thorne filed with the MSPB an Individual Right of Action (IRA) appeal. The first appeal alleged “retaliation for whistleblowing activity and constructive suspension.” Def.'s Ex. B, Dkt. 15-5. The Administrative Judge found that Thorne “failed to satisfy the exhaustion requirement in 5 U.S.C. § 1214(a)(3)” and alternatively “failed to make non-frivolous allegations that he made a protected disclosure under 5 U.S.C. § 2302(b)(8).” Id. at 5. The Administrative ...


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