BOWE-CONNOR v. MCDONALD

Filing 35

MEMORANDUM AND OPINION re 8 Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Summary Judgment. Signed by Magistrate Judge Deborah A. Robinson on 9/30/2016. (lcdar1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHELIA S. BOWE-CONNOR,
Plaintiff,
v.

Civil Action No. 15-231
DAR

ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Defendant.
MEMORANDUM OPINION
Pro 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) et seq., as well as
claims relating to wrongful termination. 1 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).

PROCEDURAL BACKGROUND
Plaintiff 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

1

In a related case before the undersigned, Plaintiff was advised of her obligations to comply with the Federal Rules
of Civil Procedure and the Local Rules of this Court. See Bowe-Connor v. McDonald, No. 13-cv-1993, Order of
12/09/2014 (ECF No. 58).

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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 Plaintiff’s disparate removal and procedural error
claims; however, the MSPB declined to consider Plaintiff’s 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.
CONTENTIONS OF THE PARTIES
Plaintiff 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.
Plaintiff disputes Defendant’s contention that she failed to exhaust her administrative
remedies, arguing that she did bring a “mixed case” before the MSPB. Plaintiff’s Opposition
Motion to Defendant’s Statement of Material Facts as to which there is No Genuine Dispute

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(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.
APPLICABLE STANDARDS
Motion to Dismiss
As 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 plaintiff’s
obligation to provide the grounds of [her] entitlement to relief requires more than labels and

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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 (2007).
While a 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 Plaintiff’s 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.
Motion for Summary Judgment
An 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.

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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).
Jurisdiction
Generally, decisions of the MSPB “are reviewed in the Federal Circuit.” Perry v. Merit
Systems Protection Board, 2016 WL 3947838, at *1 (D.C. Cir. July 22, 2016). One exception is
made for “mixed cases” brought before the MSPB that allege adverse employment action along
with allegations of discrimination. See id.; Rodgers v. Perez, 139 F. Supp. 3d 67, 71 n.1 (D.D.C.
2015) (citing 5 U.S.C. § 7703(b)(2)). A “mixed case” is defined by statute as one in which the
employee “(A) has been affected by an action which [she] may appeal to the Merits Systems
Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by”
certain federal laws. 5 U.S.C. § 7702(a)(1).
While certain holdings of the Supreme Court, and of this Circuit, have sought to clarify
the requirements for what constitutes an “appealable” action to the MSPB under part (A) of the
statute, see generally Powell v. Department of Defense, 158 F.3d 597 (D.C. Cir. 1998);
Kloeckner v. Solis, 133 S.Ct. 596 (2012); Perry v. Merit Systems Protection Board, 2016 WL
3947838 (D.C. Cir. July 22, 2016), significantly fewer cases have discussed what is required to
properly allege discrimination under part (B) of the statute, see Rodgers v. Perez, 139 F. Supp.
3d 67 (D.D.C. 2015). Generally, a plaintiff bringing a “mixed case” must “allege that the
personnel action was taken, in whole or in part, based on discrimination prohibited by another
federal statute, such as Title VII of the Civil Rights Act.” Rodgers, 139 F. Supp. 3d at 71. Such
cases are “mixed” because “they allege violations of both civil service law and civil rights law.”
Id. (citing 29 C.F.R. § 1614.302) (emphasis added).

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ANALYSIS
The central question in this matter is whether or not Plaintiff brought a “mixed case”
before the MSPB. If Plaintiff did, then this court has jurisdiction to hear Plaintiff’s claim; if she
failed to do so, then this court is without jurisdiction. Based on the Plaintiff’s complaint, the
Defendant’s Motion, the Plaintiff’s opposition thereto, and the supplemental documents filed by
both parties, this court finds that the Plaintiff failed to sufficiently raise a “mixed case” before
the MSPB and therefore will grant an order of summary judgment for the Defendant for the
reasons outlined below.
The applicable federal regulation provides, in pertinent part, that “[a]n appellant may
raise a claim or defense not included in the appeal at any time before the end of the conference(s)
held to define the issues in the case. An appellant may not raise a new claim or defense after that
time, except for good cause shown.” 5 C.F.R. § 1201.24(b). In order to have brought a “mixed
case” before the MSPB, the Plaintiff would have been required to raise a claim or defense
relating to discrimination in addition to her claim that her removal was improper because of
disparate penalty and harmful procedural error by the VA. See Initial Decision (ECF No. 8 Ex.
1) at 7–9. A review of the Plaintiff’s Prehearing Submissions lists the following legal issues, in
their entirety, as presented in the Plaintiff’s appeal to the MSPB:
1. The removal was unwarranted because the Agency committed harmful error by
failing to follow procedures required by the parties’ collective bargaining
agreement:
a. The agency committed harmful error by relying exclusively on supervisory
noted that were not shown to the Appellant prior to use in the proposed
removal notice as required by the MCBA;
b. The agency committed harmful error by failing to investigate each
allegation, as required by the MCBA, to include failure to interview the
Appellant and appropriate witnesses;
c. The agency committed harmful error because it failed to consider evidence
that refuted the charges as required by the MCBA;
d. The agency committed harmful error because it provided the Appellant with
an incorrect timeframe for filing a grievance appeal;

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e. The removal was untimely; and
f. The removal constituted disparate treatment.
Appellant’s Prehearing Submissions (ECF No. 20-3) at 6–7. Even while reviewing the record in
the light most favorable to Plaintiff as the non-moving party — as the court must do at the
summary judgment stage — the court does not find that by referring to “disparate treatment”
Plaintiff was in actuality referring to unlawful discrimination. The remainder of Plaintiff’s
submission simply does not support such an interpretation. In describing the allegation of
“disparate treatment,” Plaintiff notes that “only two other employees of the [VA] pharmacy
service have been disciplined,” but argues that “[u]nlike the previous employees who were
suspended, the Appellant was not involved in any verbal and/or physical altercation,” and yet
“the [VA] has imposed maximum discipline on the Appellant that is more severe than the
discipline imposed on other [VA] employees.” Id. at 4–5. There is no mention of discrimination
or retaliation in violation of a requisite federal statute. As such, the court finds that Plaintiff
failed to raise the issue of discrimination in her initial appeal before the MSPB.
The question remains, however, whether Plaintiff successfully brought a “mixed case”
appeal by supplementing her prehearing submissions at some time before the proceedings began
before the AJ. In a similar case recently decided by another court in this district, a motion to
dismiss was denied because the Plaintiff had informed the AJ that “she was bringing a ‘mixed
case’ and that she wished to bring her Title VII claims before the MSPB as well.” Rodgers v.
Perez, 139 F. Supp. 3d 67, 75 (D.D.C. 2015). While the Plaintiff had not formally amended her
appeal, the court found that she had raised her discrimination claims before the AJ during the
conference to define the issues, and therefore had successfully brought a “mixed case” appeal
before the MSPB. Id.

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Rodgers is inapposite in the context of the instance case, however, because the record
indicates that Plaintiff failed to notify the AJ that she was raising any discrimination claims. The
AJ’s Order and Summary of Prehearing Conference notes that the Plaintiff’s only issues were
that “she was subjected to a disparate penalty” and that “the agency committed harmful
procedural error in delaying the issuance of its notice and proposed removal in violation of the
collective bargaining agreement.” Order and Summary of Prehearing Conference (ECF No. 205) at 1. Unlike in Rodgers, the AJ was not put on notice of any allegations of discrimination and
did not order discovery on those issues. See Rodgers, 139 F. Supp. 3d at 75 (“[T]he ALJ granted
Ms. Rodgers discovery on both the civil service law and civil rights law issues, indicating that
Ms. Rodgers was ‘raising claims of discrimination and retaliation for engaging in EEO activity
in connection with the reduction in her pay.’”)
Plaintiff contends that she testified about her disability during the proceeding before the
AJ, noting that 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.” Pl.’s Opp’n to Def.’s Mem. of P&A
(ECF No. 11) at 5. Assuming that Plaintiff is correct that she testified regarding her disability
before the AJ, she still failed to comply with two requirements, namely, that a plaintiff “allege[]
that a basis for the action was discrimination,” 5 U.S.C. 7702(a)(1)(B), and raise such a claim
before the end of the conference held to define the issues, 5 C.F.R. § 1201.24(b). The AJ
reminded both parties to “file any objections or corrections to this summary” if either should feel
that “this summary inaccurately summarizes the prehearing conference.” 2 Order and Summary
of Prehearing Conference (ECF No. 20-5) at 2. Plaintiff failed to do so.

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The court notes that while Plaintiff is currently proceeding pro se, as she did during her petition for review by the
MSPB, Plaintiff was represented by a union steward, who is also an attorney, during the initial administrative
proceeding, including the hearing before the AJ. Appellant’s Prehearing Submissions (ECF No. 20-3) at 9
(submission submitted by Jennifer Schingle, Esq.); Initial Decision (ECF No. 20-7) (noting that Plaintiff was

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The record indicates that the first time Plaintiff raised an allegation of unlawful
discrimination was upon her request for review by the full MSPB. See Petition for Review of the
Initial Decision (ECF No. 20-7) at 2; see also Final Order (ECF No. 8-2) at 9 (“In two hearing
orders, the appellant was notified that, absent good cause, she would be limited to the facts and
issues (including affirmative defenses) identified in her prehearing submissions . . . . The
appellant, however, did not raise the affirmative defenses of disability discrimination or reprisal.
The Board will not consider an argument raised for the first time in a petition for review. . . .”).
Therefore, since Plaintiff failed to raise issues of discrimination in her initial appeal to the
MSPB, she has failed to bring a “mixed case” within the meaning of the statute.
Plaintiff, in her opposition to the motion for summary judgment, mainly re-argues the
merits of her MSPB case and fails to identify genuine disputes of material fact that would defeat
the motion. As mentioned above, Plaintiff does assert that she brought a “mixed case” before the
AJ “in the initial appeal process because Plaintiff testified on the affirmative defenses.” Pl.’s
Opp’n Mot. to Def.’s Statement of Material Facts as to Which There is No Genuine Dispute
(ECF No. 11) at 4. Even assuming that Plaintiff is correct, this fails to satisfy the requirement
that Plaintiff raise the issue of discrimination “before the end of the conference(s) held to define
the issues in the case.” 5 C.F.R. § 1201.24(b).
CONCLUSION
The court finds that Plaintiff failed to properly bring a “mixed case” before the MSPB.
Perry, 2016 WL 3947838, at *1. As this court does not have jurisdiction to hear Plaintiff’s

represented by Jennifer C. Schingle). Thus, any latitude which otherwise might be extended to a litigant who
drafted an administrative complaint without the benefit of counsel is unwarranted here.

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Bowe-Connor v. McDonald

appeal of a non-“mixed case” adverse MSPB decision, this court will grant the Defendant’s
motion for summary judgment. An appropriate Order accompanies this Opinion.

Date: September 30, 2016

/s/
DEBORAH A. ROBINSON
United States Magistrate Judge