Johnson v. Department of Veterans Affairs et al
ORDER granting in part and denying in part 23 Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) & Fed. R. Civ. P. 12(b)(6). Defendant Shinseki shall file an Answer to the remaining claim on or before October 5, 2012. A Preliminary Scheduling Conference is set for Thursday, November 8, 2012 at 10:00 AM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. By Magistrate Judge Craig B. Shaffer on 09/14/2012. (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 11-cv-02881-CBS
DEPARTMENT OF VETERANS AFFAIRS,
DENVER VA MEDICAL CENTER, and its employees, Agents and Officers including but not
ERIC. K. SHINSEKI, Secretary Department of Veterans Affairs, and
LYNETTE ROFF, Hospital Administrator Denver VA Medical Center,
MEMORANDUM OPINION AND ORDER
This civil action comes before the court on “Defendants’ Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(1) & Fed. R. Civ. P. 12(b)(6).” On March 26, 2012, the above-captioned
case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters
including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ.
P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 33). The court has reviewed the Motion,
Mr. Johnson’s Amended Response (filed March 23, 2012) (Doc. # 32), Defendants’ Reply
(filed April 9, 2012) (Doc. # 39), the pleadings, the exhibits, the arguments presented at the
hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the
In addressing Defendants’ Motion under Rule 12(b)(1), the court need not presume all
of the allegations contained in the AC to be true, “but has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. . .
.” United States v. Rodriguez Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001) (citation
Statement of the Case
Mr. Johnson began his employment for the United States Department of Veterans
Affairs (“VA”) as a Respiratory Therapist in March 1991. (See Amended Complaint (“AC”)
(Doc. # 5) at 12 of 27). Mr. Johnson “was a bargaining unit employee covered by” the
“Master Agreement between the Department of Veterans Affairs and the American
Federation of Government Employees” (“Union”). (See id.). Mr. Johnson was terminated
from his employment on January 3, 2009. (See id. at 13 of 27). Mr. Johnson alleges three
claims against Defendants for race, color, and gender discrimination in breach of the Master
Agreement and in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., for: (1) making employment decisions based on “ill founded gossip and rumors,” (2)
failure “to issue the required yearly written employment evaluation to the plaintiff for the years
2006, 2007 and 2008,” and (3) unspecified acts of discrimination, harassment, and retaliation
for filing an EEO charge of discrimination in December 2007. (See Doc. # 5 at 2-15 of 27).
Mr. Johnson seeks extensive monetary and injunctive relief. (See Doc. # 5 at 17-19 of 27).
Standard of Review
Defendants move to dismiss the AC pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of
jurisdiction over the subject matter.” Dismissal under Rule 12(b)(1) is not a judgment on the
merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate
the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal
courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically
authorized to do so). Defendants’ argument that Mr. Johnson did not exhaust his
administrative remedies prior to bringing his Title VII claims constitutes a challenge to subject
matter jurisdiction. See Bertsch v. Overstock.com, 684 F. 3d 1023, 1030 (10th Cir. 2012)
(This court has held the exhaustion requirement is a jurisdictional prerequisite to suit under
Title VII.”) (citation omitted). Mr. Johnson has “[t]he burden of establishing subject matter
jurisdiction” because he is “the party asserting jurisdiction.” Port City Props. v. Union Pac.
R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Fed. R. Civ. P. Rule 12(b)(6) states that a court may dismiss a complaint for "failure to
state a claim upon which relief can be granted." To withstand a motion to dismiss, a
complaint must contain enough allegations of fact “to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the
plaintiff to frame “a complaint with enough factual matter (taken as true) to suggest” that he or
she is entitled to relief. Twombly, 550 U.S. at 556. “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id.
Because Mr. Johnson appears pro se, the court reviews his “pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se
complaint “to less stringent standards than formal pleadings drafted by lawyers”). However,
a court may not assume that a plaintiff can prove facts that have not been alleged, or that a
defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is not to act as pro se litigant’s
advocate); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court
may not “supply additional factual allegations to round out a plaintiff’s complaint”); Drake v.
City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct
arguments or theories for the plaintiff in the absence of any discussion of those issues").
Defendants Denver VA Medical Center and Lynette Roff
The only proper defendant for Mr. Johnson’s Title VII federal employment
discrimination claims is the head of the agency where he was employed. See 42 U.S.C. §
2000e-16(c) (“head of the department, agency, or unit, as appropriate, shall be the
defendant”). Mr. Johnson has named Defendant Shinseki, as Secretary of the Department of
Veterans Affairs. Defendants Department of Veterans Affairs, Denver VA Medical Center,
and its employees, Agents and Officers, and Lynette Roff, Hospital Administrator Denver VA
Medical Center are improper parties. The court may dismiss improper parties. Fed. R. Civ.
P. 21. All Defendants except Defendant Shinseki are appropriately dismissed. See Drayton
v. Veterans Administration, 654 F. Supp. 558, 562 (S.D.N.Y. 1987) (“The United States has
waived its sovereign immunity regarding employment discrimination claims only to the extent
that such claims are made against ‘the head of the department, agency, or unit, as
appropriate. . . .’”) (citing 42 U.S.C. § 2000e16(c)); Bell v. Veteran’s Admin. Hosp., 654 F.
Supp. 69, 70 (W.D. La. 1987) (“Plaintiff should properly have sued . . . Administrator of
Veterans Affairs.”) (citations omitted).
Exhaustion of Administrative Remedies
Defendants argue that this court lacks subject matter jurisdiction over Mr. Johnson’s
claims because he has not exhausted his administrative remedies.
As an employee of the VA, Mr. Johnson was a member of a union covered under the
Federal Labor-Management Relations Act (FLMRA), 5 U.S.C. §§ 7101-35.2 “The FLMRA
The FLMRA is contained in Title VII of the Civil Service Reform Act (“CSRA”) of 1978,
Pub.L. No. 95–454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.).
requires collective bargaining agreements between a union and federal agency employer to
provide procedures for the settlement of employee grievances.” Douglas v. Norton, No. 031407, 167 F. App’x 698, 707 (10th Cir. Jan. 19, 2006) (citing 5 U.S.C. § 7121(a)(1)). “It
further mandates that these procedures, with limited exceptions, ‘be the exclusive
administrative procedures for resolving grievances which fall within its coverage.’ ” Id.
(citation omitted). An exception to this general rule is contained in § 7121(d), which states:
An aggrieved employee affected by a prohibited personnel practice under [5
U.S.C. § 2302(b)(1)-prohibited discrimination] which also falls under the
coverage of the negotiated grievance procedure may raise the matter under a
statutory procedure or the negotiated procedure, but not both.3
The U.S. Equal Employment Opportunity Commission (“EEOC”) implementing regulations
When a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is
covered by a collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure, a person
wishing to file a complaint or a grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614 or the
negotiated grievance procedure but not both.
29 C.F.R. § 1614.301(a) (2003). “Therefore, an employee who alleges he is the victim of
race discrimination may elect to proceed under either the negotiated grievance procedure or
the statutory procedure, but not both.” Douglas v. Norton, 167 F. App’x at 707. See also Gill
v. Summers, No. 00–CV–5181, 2001 WL 283150, at *7 (E.D. Pa. Mar. 20, 2001) (“An
employee raising discrimination claims therefore must choose in which fora, either the
The CSRA “comprehensively overhauled the civil service system” and “created a new
framework for evaluating adverse personnel actions against [federal employees].” Lindahl v.
Office of Personnel Mgmt., 470 U.S. 768, 773–74 (1985).
Section 2302(b)(1) of Title 5 “prohibits discrimination based on race, color, religion, sex
or national origin in certain personnel actions, including appointments, promotions, decisions
concerning pay or benefits and ‘any other significant change[s] in duties, responsibilities, or
working conditions.’” Douglas v. Norton, 167 F. App’x at 707 (citing 5 U.S.C. §
2302(a)(2)(A)(I), (ii), (ix), (xi), (b)(1)).
negotiated grievance procedure or the statutory forum, he wishes to pursue his administrative
remedy.”) (citation omitted). An employee is deemed to have exercised his option to choose
the statutory route when he timely initiates an action under the statutory procedure. 5
U.S.C.A. § 7121(d). The EEOC regulations provide that the employee is considered to have
initiated a statutory action when he files a written complaint. 29 C.F.R. § 1614.301(a). The
employee is deemed, alternatively, to have elected to pursue union grievance procedures
when he timely files a grievance in writing in accordance with the negotiated grievance
procedure. 5 U.S.C.A. § 7121(d); see also 29 C.F.R. § 1614.301(a). “Once an employee
elects a certain procedure, it is irrevocable and the employee must exhaust the remedies
provided by that procedure.” Douglas v. Norton, 167 F. App’x at 707 (citations omitted). See
also Wilson v. U.S. Dept. of Transp., 759 F. Supp. 2d 55, 63 (D.D.C. 2001) (whichever route
an employee chooses, he must then exhaust that administrative remedy before pursuing a
claim in court).
Mr. Johnson’s March 7, 2006 EEO Complaint
Mr. Johnson pursued his remedies via the statutory procedure, by seeking EEO
counseling on January 27, 2006 and filing a formal complaint with the EEOC, Agency File No.
2003-0554-2006101176, on March 7, 2006.4 Mr. Johnson alleged that “Agency
management officials, United States Department of Veteran Affairs, Denver Medical Center
harassed and discriminated against him on the basis of race (African American), sex (male)
and reprisal (prior EEO activity) when he was placed on administrative leave, issued a
reprimand, assigned to various details, and denied sick leave.” (See “Administrative Judge’s
Mr. Johnson has filed at least 13 EEO complaints since 1991. (See Doc. # 23-3 at 9
of 18, ¶ II. A. 3.).
Decision without a Hearing in the Employment Discrimination Complaint of Fred Johnson v.
R. James Nicholson, Secretary, U.S. Department of Veterans Affairs, Agency” (Doc. # 23-3)
at 8 of 18). Mr. Johnson made a written request for a hearing on or about April 26, 2007.
(See id. at 11 of 18). On May 2, 2007, the parties to Mr. Johnson’s complaint entered into a
settlement of some of the issues. (See Settlement Agreement (Doc. # 23-4) (wherein a
three-day suspension was substituted for Mr. Johnson’s ten-day suspension)). The
remaining issues specifically addressed and determined by the EEOC Administrative Judge
On May 11, 2006, Complainant was placed on Administrative Leave
(paid status for allegedly being verbally abusive toward his supervisor);
On May 25, 2006, while on Administrative Leave, Complainant was
issued a reprimand;
On June 6, 2006, Complainant was detailed to the Business
Office/Patient Records File room;
On June 15, 2006, Complainant was detailed to the Administrative Office
of Medical Service;
On July 24, 2006, Complainant was informed by his supervisor’s
Administrative Officer that he could not use sick leave for time off work that was
recommended by his doctor;
On January 25, 2007, Complainant was informed that effective the same
date (January 25, 2007), he would be permanently detailed to the Home
Oxygen Program, Pulmonary Care.
(See Doc. # 23-3 at 12 of 18). On February 28, 2008, the Administrative Judge determined
that Mr. Johnson failed to establish his claims. (See Doc. # 23-3 at 13-16 of 18). The EEOC
issued its Final Order on March 19, 2008. (See Doc. # 23-3 at 3 of 18). Mr. Johnson’s
appeal of the Final Order was denied on August 26, 2008. (See Doc. # 23-4). Mr. Johnson
was explicitly advised that he had the right to file a civil action in the United States Court for
the District of Colorado within 90 days. (See id. at 3 of 3). Mr. Johnson filed this civil action
in federal court on November 4, 2011.
Defendants argue that Mr. Johnson’s claims relating to his treatment following an
altercation with his supervisor are barred as untimely filed in this court. As a federal
employee, Mr. Johnson was required to file his Title VII complaint within 90 days of receipt of
notice of final action by the EEOC. See 42 U.S.C. § 2000e–16(c). There is a rebuttable
presumption that this notice is received within five days of mailing. Witt v. Roadway Express,
136 F.3d 1424, 1429 (10th Cir. 1998). Mr. Johnson filed this civil action more than three
years after his appeal of the EEOC’s Final Order was denied. Compliance with Title VII's
90–day period for filing a civil lawsuit is not a jurisdictional prerequisite; rather, compliance is
a statutory condition precedent that functions like a statute of limitations and is subject to
waiver, estoppel, and equitable tolling. Biester v. Midwest Health Services, Inc., 77 F.3d
1264, 1267 (10th Cir. 1996) (citation omitted). See also Jarrett v. U.S. Sprint
Communications Co., 22 F.3d 256, 259–60 (10th Cir.1994) (“The ninety-day filing limit is not
jurisdictional, but is a requirement that, like a statute of limitation, is subject to waiver,
estoppel and equitable tolling”) (citation omitted). The equitable exceptions to this time
limitation are construed narrowly. Biester, 77 F.3d at 1267. The Tenth Circuit has “taken a
strict view of what necessitates equitable tolling.” Jarrett, 22 F.3d at 260. Mr. Johnson does
not raise any questions of waiver, estoppel, or equitable tolling.
Mr. Johnson did not file this civil suit until November 4, 2011, far beyond the 90-day
requirement. His claims raised in his EEO complaint, Agency File No. 2003-05542006101176, are thus time barred. To the extent Mr. Johnson alleges that he was harassed
and discriminated against on the basis of race, sex, and retaliation when he was placed on
administrative leave, issued a reprimand, assigned to undesired details, and denied sick
leave (see EEO complaint, Agency File No. 2003-0554-2006101176), such claims are
properly dismissed as time barred. In his First Claim for Relief, Mr. Johnson alleges that on
or about May 10, 2006, he filed an assault charge against his supervisor, Mr. Sholar. (See
Doc. # 5 at 7 of 27). He alleges that “Responsible Management Officials” communicated
“false allegations, engaged in ill founded gossip and rumors . . . that the plaintiff was a threat
to employees and would possibly bring weapons on station to attack employees.” (See id.).
Mr. Johnson alleges that the VA “then based employment decisions regarding the plaintiff on
these ill founded gossip and rumors.” (See Doc. # 5 at 7 of 27). He alleges that VA
employees signed a “secret and false document” that was based on these rumors and was
relied on to change his working conditions and to terminate his employment . (See id. at 7-10
of 27). Mr. Johnson’s First Claim for Relief relates to his treatment following an altercation
with his supervisor. (See Doc. # 5 at 10-11 of 27 (alleging he was subjected to adverse
employment actions, including reassignment to details and job assignments that “sprang forth
as a result of the assault charge” he “filed against his supervisor.”)). The First Claim for
Relief is barred as untimely filed in the federal court and is thus properly dismissed pursuant
to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
Mr. Johnson’s December 4, 2007 EEO Complaint
Mr. Johnson filed another complaint of discrimination with the EEOC, Agency File No.
2003-0554-2007103939, on December 4, 2007. He alleged that he was subjected to
On September 17 and November 19, 2007, the complainant was not
allowed equal access to the department which disadvantaged him when
competing for assignments and promotions
On October 26, 2007, the complainant was instructed by DB, Pulmonary
Care Manager, not to come to the Department to meet with LC, co-worker
As of October 26, 2007, the complainant has not received his
performance appraisal for FY07 or FY06
On August 30, 2007, the complainant was placed on a detail to stuff
On August 29, 2007, RH, doctor in Pulmonary section, wrote an email
accusing the complainant of dereliction of duty.
On August 24, 2007, the complainant received a notice from Human
Resources modifying his restricted access to sixth-floor Respiratory Therapy
On or around December 21, 2007, the Home Oxygen/Respiratory
Therapy held a Christmas party and the complainant was not invited.
On or around December 21, 2007, the complainant learned that
employees working in respiratory therapy received monetary incentive awards
and the complainant did not receive an award.
On December 21, 2007, the complainant was assigned to perform pulse
oximetry every Wednesday
On or about February 5, 2008, the complainant became aware coworkers JB and PM in the Home Oxygen/Respiratory Section receive more pay
for performing the same duties as the complainant.
On or around February 20, 2008, management assigned JB to work in a
cubicle next to the complainant.
On or around February 22, 2008, complainant alleged disparate
treatment when BJ, received better treatment regarding work place disputes
involving VS supervisor.
On or about April 25, 2008, the complainant was instructed by DB to
attend a home oxygen department meeting by phone.
(See Doc. # 5 at 26 of 27). On June 10, 2008, Mr. Johnson submitted two additional claims
as an amendment to the complaint:
On or around May 22, 2008, the complainant was instructed by DB,
Pulmonary Care Manager, to attend a Home Oxygen department meeting by
On May 25, 2008, the complainant requested to work the holiday
weekend and was denied the opportunity for overtime and holiday pay, although
his white female co-workers were allowed to work.
(See Doc. # 5 at 27 of 27). The EEOC issued its Final Order on August 8, 2011. (See Doc. #
5 at 23 of 27). Mr. Johnson timely filed this civil action in federal court on November 4, 2011,
within 90 days of notice of final action by the EEOC.
In his Third Claim for Relief, Mr. Johnson alleges that on or about December 2007, he
filed an EEO complaint of discrimination against the VA based on “discriminatory actions,
harassment and reprisals” against him in 2006, 2007, and 2008. (See Doc. # 5 at 14 of 27).
Mr. Johnson alleges that he was subjected to separate and unequal terms and conditions of
employment in violation of the employment contract. (See id. at 15). Mr. Johnson specifically
alleges violation of the Master Agreement’s provisions governing performance appraisals.
(See id. at 14 (“including . . . Violations of Articles # 10, 12, 13, 15, 16, 17, 26, 34, 36 . . . .")).
To the extent that Mr. Johnson’s Third Claim for Relief encompasses the issues raised in his
December 4, 2007 complaint of discrimination, Agency File No. 2003-0554-2007103939, this
claim is not properly dismissed at this time and shall proceed.
Mr. Johnson’s January 8, 2009 Union Grievance
Mr. Johnson also pursued his remedies via the negotiated grievance process. On
January 8, 2009, Mr. Johnson filed a grievance through the Union protesting his termination,
among other things. (See Award of the Arbitrator, Exhibit A to Motion (Doc. # 23-1) at 4, 19
of 28). The grievance alleged unsuitable work space and work duties, failure to deliver a
position description, failure to issue performance appraisals for a 2-year period, and
unwarranted reassignment and termination. (See id. at 19 of 28). The grievance specifically
incorporated the statements made in Mr. Johnson’s “written reply to the agency’s September
19, 2008, Proposed Removal.” (See Doc. # 23-1 at 19, 27 of 28). The grievance was denied
by the Agency, and the Union invoked its contractual right to submit the grievance to
arbitration. (See id. at 20-22 of 28). The arbitration hearing was held on June 25 and 26,
2009. (See Doc. # 23-1 at 1 of 28). On November 22, 2009, the Arbitrator concluded that
the “Agency had just and sufficient cause to remove [Mr. Johnson] on or about January 3,
2009. . . .” (See id. at 16 of 28). The Arbitrator also concluded that the evidence did not
support Plaintiff’s “claim of illegal discrimination and reprisal.” (See id.). Mr. Johnson did not
appeal this decision to the Merit System Protections Board (“MSPB”).
Defendants argue that Mr. Johnson’s failure to seek review of the denial of his Union
grievance by the MSPB divests the court of subject-matter jurisdiction over his claims. See
Am. Fed’n of Gov’t Employees v. Reno, 992 F2d 331, 335 (D.C. Cir. 1993) (“[A]n employee
who chooses the negotiated grievance procedure must take the arbitrator’s decision to the
MSPB before seeking judicial review.”) (citing Brown v. General Servs. Admin., 425 U.S. 820,
829-33 (1976) (claim for judicial review is not ripe until employee has exhausted
administrative remedies)); Coffman v. Glickman, 328 F.3d 619, 624 (10th Cir. 2003) (“If the
employee chooses to appeal to the MSPB . . . [he or she] will have a hearing at which he or
she must raise his or her claims of discrimination and present evidence in support of those
claims in order to exhaust the administrative remedy.” ). Because Mr. Johnson did not
pursue his administrative remedies in the MSPB forum, his Title VII claims based on the
claims raised in his union grievance must be dismissed for lack of subject matter jurisdiction.
See Castro v. United States, 775 F.2d 399 (1st Cir. 1985) (upholding district court's dismissal
of plaintiffs' Title VII and age discrimination suit because he failed to exhaust administrative
remedies when he “voluntarily abandoned the MSPB process” before the Board had the
opportunity to rule on the merits, precluding MSPB from rendering a final and reviewable
order), abrogated on other grounds by Stevens v. Dept. of Treasury, 500 U.S. 1 (1991);
Moore v. Pierce, Civ. A. No. 86-M-1846, 1992 WL 535398, at ** 6-7 (D. Colo. Dec. 7, 1992)
(court lacked jurisdiction for failure to exhaust administrative remedies, based on withdrawal
of MSPB appeal in accordance with settlement agreement before Board could rule on merits
of discrimination claim).
To the extent Mr. Johnson alleges unsuitable work space and work duties, failure to
deliver a position description, failure to issue performance appraisals for a 2-year period, and
unwarranted reassignment and termination, such claims are properly dismissed pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction based on failure to exhaust administrative
remedies. In his Second Claim for Relief, Mr. Johnson alleges that “after the plaintiff filed an
assault charge against his supervisor on [M]ay 10th 2006, the agency refused to abide by the
employment contract and refused to issue the required yearly written employment evaluation
to the plaintiff for the years 2006, 2007 and 2008” and “then terminated the plaintiff from
employment on January 3, 2009 . . . without the benefit of the required written yearly
employment evaluation as required by the employment contract . . . .” (See Doc. # 5 at 13 of
27). Mr. Johnson’s Second Claim for Relief consists of unexhausted claims and is properly
dismissed pursuant to Rule 12(b)(1).
Accordingly, IT IS ORDERED that:
“Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) & Fed. R.
Civ. P. 12(b)(6)” (filed February 21, 2012) (Doc. # 23) is GRANTED IN PART.
Defendants Department of Veterans Affairs, Denver VA Medical Center,
and its employees, Agents and Officers, and Lynette Roff, Hospital Administrator
Denver VA Medical Center are dismissed as improper partes.
The First Claim for Relief is dismissed pursuant to Rule 12(b)(6) as
untimely filed in the federal court.
The Second Claim for Relief is dismissed pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction based on failure to exhaust administrative remedies.
This civil action shall proceed only on the Third Claim for Relief against
Defendant Eric K. Shinseki, Secretary Department of Veterans Affairs, as limited by
the claims Mr. Johnson brought in his December 4, 2007 complaint of discrimination
with the EEOC, Agency File No. 2003-0554-2007103939.
Defendant Shinseki shall file an Answer to the remaining claim on or
before Friday, October 5, 2012.
A Preliminary Scheduling Conference will be held on Thursday
November 8, 2012 at 10:00 a.m., in Courtroom A402, Fourth Floor, of the Alfred A.
Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. The parties need not
comply with the requirements of Fed. R. Civ. P. 16 and D.C.COLO L.CIVR. 16.2 and
26.1. The purpose of the conference is to set a schedule for any discovery and the
filing of any motions as to the remaining claim.
DATED at Denver, Colorado, this 14th day of September, 2012.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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