WELLS v. NAPOLITANO

Filing 42

ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS OR ALTERNATIVELY SUMMARY JUDGMENT - denying Defendant's 29 Motion to Dismiss for Failure to State a Claim. The Court finds that the election provision of 29 C.F.R. § 1614.302(b) does not ap ply to Mr. Wells' appeal brought before the Merit Systems Board, and thus does not preclude his EEO complaint and exhaustion of remedies for alleged discrimination through the DCR. Therefore, dismissal for failure to exhaust administrative remedies is not warranted, and the Secretary's Motion is DENIED. **SEE ENTRY** Signed by Judge Tanya Walton Pratt on 8/20/2014. (ADH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ADAM WELLS,
Plaintiff,
vs.
JANET NAPOLITANO Secretary, U.S.
Department of Homeland Security,
Defendant.

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No. 1:13-cv-00527-TWP-TAB

ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS OR
ALTERNATIVELY SUMMARY JUDGMENT
This matter is before the Court on Defendant Jeh Johnson,1 Secretary of the United States
Department of Homeland Security’s (the “Secretary”) Motion for Judgment on the Pleadings for
Failure to State a Claim on which Relief can be Granted or, Alternatively, for Summary Judgment.
(Filing No. 29). The Secretary alleges that Plaintiff Adam Wells (“Mr. Wells”) failed to exhaust
his administrative remedies and thus has failed to state a claim upon which relief can be granted.
For the reasons set forth below, the Secretary’s motion is DENIED.
I.

BACKGROUND

On August 1, 2011, Mr. Wells began his employment as a Human Resources Assistant
with the United States Customs and Border Protection (“CBP”), which is a sub-agency of the
United States Department of Homeland Security. Mr. Wells’ employment was subject to a one
year probationary period. However, he was terminated prior to the end of his probationary period,
effective July 27, 2012.

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On December 23, 2013, Jeh Johnson became the Secretary of the United States Department of Homeland Security.
Pursuant to Fed. R. Civ. P. 25(d), Jeh Johnson is automatically substituted as a party in this case.

On August 23, 2012, Mr. Wells filed a formal appeal with the United States Merit Systems
Protection Board (“Merit Systems Board”), challenging his termination from the CBP. In his Merit
Systems Board appeal, Mr. Wells alleged that his termination was for budgetary reasons. On
September 17, 2012, Mr. Wells submitted a letter to the Administrative Judge assigned to his Merit
Systems Board petition formally requesting to withdraw his appeal based upon his belief that the
Merit Systems Board lacked jurisdiction, which was granted on September 25, 2012, in an “Initial
Decision.” The Initial Decision also described the procedures and deadlines for Mr. Wells to
appeal the decision of the Administrative Judge to the full Merit Systems Board or to the United
States Court of Appeals for the Federal Circuit.
On November 20, 2012, Mr. Wells filed a formal Equal Employment Opportunity (“EEO”)
complaint with the CBP’s Office of Diversity and Civil Rights (“DCR”), alleging, for the first
time, that his employment termination was improperly motivated by race and sex discrimination.
On December 28, 2012, the DCR procedurally dismissed Mr. Wells’ formal EEO complaint. Mr.
Wells filed his Complaint with this Court on March 28, 2013, alleging that he was terminated for
discriminatory reasons, and that he satisfied his obligation to exhaust his administrative remedies
by timely filing a formal complaint of discrimination with the DCR. Additional facts will be added
below as necessary.
II.

LEGAL STANDARD

Because the parties have presented materials outside of the pleadings, the Court will treat
the Secretary’s motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d) (“If,
on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”)
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the
record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in
that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
However, “[a] party who bears the burden of proof on a particular issue may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a
genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted).
“In much the same way that a court is not required to scour the record in search of evidence to
defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal
quotations omitted). “[N]either the mere existence of some alleged factual dispute between the
parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient
to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391,
395 (7th Cir. 1997) (citations and internal quotations omitted).
III.

DISCUSSION

The Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. (“CSRA”) permits a federal
employee who is discharged to appeal his agency’s decision to the Merit Systems Board.
Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012) (citing 5 U.S.C. §§ 1204, 7512, 7701). “Such an
appeal may merely allege that the agency had insufficient cause for taking the action under the
CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by
another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

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. . .” Id. at 600-01 (citing 5 U.S.C. § 7702(a)(1)). When an employee complaint of a personnel
action that is appealable to the Merit Systems Board also alleges that the action was based on
unlawful discrimination, he is said to have brought a “mixed case.” Id. at 601 (citing 29 C.F.R. §
1614.302). The Merit Systems Board has the authority to hear and decide mixed case appeals. 29
C.F.R. § 1614.302(a).
An employee also has the option to file a mixed case with the agency itself by filing an
EEO complaint. Id. at 601 (citing 5 C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b)). If the agency
decides against the employee, he may then either take the matter to the Merit Systems Board or
bypass further administrative review by suing the agency in district court. Id. (citing 5 C.F.R. §
1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i)). The employee is required to make an election as to
whether to file a mixed case complaint with an agency through an EEO complaint or with the Merit
Systems Board through an appeal, but may not do both. 29 C.F.R. § 1614.302(b). The employee
must elect to pursue his claims under one method or the other. Id.
The Secretary alleges that Mr. Wells did not exhaust his administrative remedies because
he first filed an appeal with the Merit Systems Board, voluntarily dismissed such appeal, and then
filed an EEO complaint of discrimination with the DCR. See McGinty v. U.S. Dep’t of the Army,
900 F.2d 1114, 1117 (7th Cir. 1990) (“[A]dministrative remedies, once initiated, must be
exhausted before a suit may be filed.”). The Secretary proceeds under the assumption that Mr.
Wells was required to assert his discrimination claims with his Merit Systems Board appeal;
however, the Secretary cites to no statute, regulation, or other legal authority that would have
forced Mr. Wells to bring all of his claims arising out of his termination in a single appeal or
complaint. The cases cited by the Secretary are distinguishable from Mr. Wells’ case in that the
appeals to the Merit Systems Board were all mixed cases to which the election requirement of 29

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C.F.R. § 1614.302(b) applied. See Stoll v. Principi, 449 F.3d 263 (1st Cir. 2006) (allegations of
ADEA, Title VII, and Rehabilitation Act violations filed with Merit Systems Board); Economu v.
Cladera, 286 F.3d 144 (2d Cir. 2002) (same); McAdams v. Reno, 64 F.3d 1137 (8th Cir. 1995)
(claims of sex discrimination and retaliation filed in both EEO complaint and Merit Systems Board
appeal). Mr. Wells’ appeal to the Merit Systems Board was not such a case, as it did not fit the
definition of a “mixed case” appeal because it did not involve any alleged acts of discrimination.
The Court finds that the election provision of 29 C.F.R. § 1614.302(b) does not apply to Mr. Wells’
appeal brought before the Merit Systems Board, and thus does not preclude his EEO complaint
and exhaustion of remedies for alleged discrimination through the DCR. Therefore, dismissal for
failure to exhaust administrative remedies is not warranted, and the Secretary’s Motion is
DENIED.
IV.

CONCLUSION

For the reasons set forth above, the Secretary’s Motion for Judgment on the Pleadings, or
in the Alternative, Motion for Summary Judgment (Filing No. 29), is DENIED.
SO ORDERED.
Date: 8/20/2014

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DISTRIBUTION:
Joel S. Paul
RAMEY & HAILEY
[e-mail]
Wayne T. Ault
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNE’'S OFFICE
[e-mail]
Orest S. Szewciw
UNITED STATES ATTORNEY’S OFFICE-Northern District of Indiana
[e-mail]

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