Shipp v. Hargan

Filing 23

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 1/24/2019. (c/m 1/24/19 km4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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DAVID M. SHIPP,
*
Plaintiff,
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v.

Civil Action No. PX-17-3365
*

ERIC HARGAN,
ACTING SECRETARY OF
HEALTH AND HUMAN SERVICES

*
*

Defendant.
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MEMORANDUM OPINION
Pending before the Court is Defendant Eric Hargan, Acting Secretary of the Department
of Health and Human Service’s motion to dismiss the Complaint or, in the alternative, for
summary judgment. ECF No. 16. Plaintiff David Shipp (“Shipp”) opposes the motion. ECF
No. 19. Shipp has also requested leave to amend his Complaint. ECF No. 15. The Court now
rules because no hearing is necessary. See D. Md. Loc. R. 105.6. For the reasons discussed
below, Defendant’s motion is GRANTED as to the claims which were not administratively
exhausted. Shipp’s motion to amend is also GRANTED. Shipp is forewarned that any
Amended Complaint must state only those claims for which he has exhausted administrative
remedies and must conform to the Rules as discussed below or risk future dismissal with
prejudice.
I.

Background
A trained chemist, Shipp applied for the position of GS-09 Chemist with the Food and

Drug Administration (“FDA”) in the end of 2010. ECF No. 16-2 at 24. On January 20, 2011,
Shipp learned that he was not selected among the “best qualified” of candidates. Id. Shipp
timely filed a formal charge of discrimination with the Equal Employment Opportunity
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Commission (“EEOC”). Id. at 20. In it, Shipp details the grounds for which he believes he was
not selected for the position:
I applied to Job Announcement Number: HHS FDA-20110030 during the vacancy announcement period between 12/10/2010
and 12/17/2010. My non-selection took place on 1/20/2011; days
earlier, I was ruled ineligible for the position with the pretextual
basis that all of my required documents were not included with the
application package, even though my package was full and
complete; perhaps, because the discrepancy was corrected, my nonselection than [sic] took place. The basis for my claim that racial
discrimination was the true reason is: I am a member of a protected
class. I was similarly situated to others outside my protected class,
namely, the candidates placed on the certification list of best
qualified candidates for review by the selecting official(s), and one
or more candidates were treated more favorably than me, insofar as
the agency and OPM considered those candidates to be better
qualified than me for this chemist position, even though I met and
exceeded all of the basic eligibility requirements for the GS-09
Chemist position, having previously occupied the position of
chemist with the FDA at the GS-12/02 level, following previous
federal service of 4 years and 11 months where I received yearly
promotions, starting at the GS-07 level . . . .
Id. at 24.
The formal charge also references “retaliation” for prior protected EEO activity “and [a
Merit Systems Protection Board] appeal which was still active at the time of the non-selection in
the form of a pending Petition to Reopen and is currently active . . . .” Id. The formal charge
concludes, “I want [sic] challenge my non-selection to vacancy announcement 385227, 392978,
402757, 394191, and Job Announcement Number. HHS-FDA-01-2011-0021.” Id.
In July 2012, the EEOC Administrative Law Judge issued an Order of Dismissal and
instructed the Agency to issue a Final Agency Decision (“FAD”). Id. ECF No. 16-2 at 6.
Health and Human Services (“HHS”) issued a FAD in December 2014. Id. Shipp timely
appealed the FAD to the EEOC Office of Federal Operations (“OFO”). Id. On April 5, 2017,
the OFO upheld the FAD. Id. Plaintiff then timely sought reconsideration of the FAD. Id. On

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August 8, 2017, the OFO denied reconsideration and upheld its prior decision. Id. Shipp then
timely filed the Complaint in this Court. See ECF No. 1.
The Complaint is undoubtedly dense, rich with detail and not altogether easy to follow.
Much of the factual allegations appear unrelated to the FDA’s 2011 decision to not hire Shipp.
As Defendant rightfully points out, the Complaint spills much ink discussing earlier
discrimination claims that Shipp pursued in 2006 (hereafter “the 2006 case”), which not only
resulted in a settlement agreement executed in 2007 but in subsequent litigation which has been
fully adjudicated by other courts. Compare ECF No. 1 ¶¶ 40-51 and at 21-22, with Shipp v.
Leavitt, No. 2:08-CV-1460RAJ, 2009 WL 10695708 (W.D. Wash. Mar. 2, 2009), aff’d sub nom.
Shipp v. Sebelius, 369 F. App’x 861 (9th Cir. 2010); Shipp v. Dep’t of Health & Human Servs.,
498 F. App’x 975, 978 (Fed. Cir. 2012).
Shipp has also sought to amend the Complaint, adding greater confusion to this case.
ECF No. 8. The Court denied Shipp’s previous proposed amendment because it failed to
conform with the Federal Rules of Civil Procedure and this Court’s local rules, to include filing a
redlined version of the proposed Amended Complaint so that the Court may evaluate the
proposed amended materials. ECF No. 11. Shipp responded with a pleading, fifty-three pages in
length, asserting that “to the best of his ability as a non-lawyer,” Shipp has attempted again to
amend the Complaint. ECF No. 15 at 2. Yet again, the proposed “amendment” does not
conform with the rules and is even more inscrutable than the original Complaint. Specifically,
the proposed amendment includes greater detail about Shipp’s 2006 case and does not clearly set
forth the grounds for challenging the FDA’s 2011 failure to hire him. Id. For purposes of
Defendant’s motion, therefore, the original Complaint (ECF No. 1) remains the operative
Complaint.

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Defendant moves to dismiss for lack of jurisdiction, contending that Shipp only
challenges the 2006 matter, the substance of which Shipp did not administratively exhaust in his
formal charge to the EEOC. ECF No. 16. Defendant fails to address, however, the merits of the
formal charge which Shipp did exhaust – Shipp’s non-selection in 2011. Accordingly, as more
fully discussed below, unexhausted claims must be dismissed while also providing Shipp one
final opportunity to seek resolution of his exhausted claims on the merits.
II.

Standard of Review
Generally, “questions of subject matter jurisdiction must be decided ‘first, because they

concern the court’s very power to hear the case.’” Owens–Illinois, Inc. v. Meade, 186 F.3d 435,
442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.30[1]
(3d ed. 1998)). The plaintiff bears the burden of proving that subject matter jurisdiction properly
exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d
642, 647 (4th Cir. 1999). At the motion to dismiss stage, “the district court is to regard the
pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also
Evans, 166 F.3d at 647. The court may consider evidence beyond the four corners of the
Complaint to resolve matters of jurisdiction. Chang Lim v. Azar, 310 F. Supp. 3d 588, 598 (D.
Md. 2018), citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
III.

Analysis
A. Failure to Exhaust
Defendant singularly argues that the Complaint must be dismissed because Shipp never

included the 2006 matter in his formal charge to the EEOC. ECF No. 16. Defendant focuses on

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the Complaint’s “prayer for relief,” noting that Shipp seeks remedies aimed at relitigating the
2006 case. Because Shipp’s formal charge concerned the 2011 FDA non-selection, and not the
2006 case, dismissal of the Complaint allegations seeking renewed relief for the 2006 case is
warranted.
A necessary pre-requisite to bringing suit under Title VII is filing a formal charge of
discrimination before the EEOC. See 42 U.S.C. § 2000e-5(f)(1). Importantly, “[o]nly those
discrimination claims stated in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the original complaint may be
maintained in a subsequent Title VII lawsuit.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300
(4th Cir. 2009) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996).
The Court has carefully examined Shipp’s formal charge to the EEOC and finds that the
only preserved claim concerns the FDA’s failure to hire Shipp in January 2011. In the formal
charge, Shipp contends that the FDA’s decision not to hire him for the GS-09 Chemist position
was motivated by discriminatory animus. ECF No. 16-2 at 24. Although Shipp also avers that
he was not hired in retaliation for “prior EEO activity,” he offers little detail in the formal charge
regarding what precise activity forms the basis for such retaliation. More to the point, even if
Shipp’s claimed prior EEO activity is related to the 2006 case, this does not allow Shipp to
relitigate the 2006 case anew.1 The Complaint allegations related to the 2006 events are
dismissed for failure to exhaust administrative remedies.

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For example, in this case, Shipp cannot seek “reinstatement to the Pacific Regional Laboratory Northwest
as a GS-12/01 chemist, in light of the March 31, 2006 EEO settlement agreement,” or “back pay from the date of
judgment retroactive to November 24, 2006 at the rate of that of a GS-12/01 chemist,” none of which is preserved in
the 2011 formal charge. Compare ECF No. 1 at 21, with ECF No. 16-2 at 24.

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At this juncture, the Court will not dismiss the Complaint outright. Although Defendant
claims that the Complaint seeks relief related only to the 2006 case, the Complaint also appears
to challenge the EEOC’s adverse determination arising from Shipp’s non-selection in 2011. To
be sure, the Complaint is less than a model of clarity. However, it does discuss Shipp’s nonselection, and notes the basis for the civil suit is to challenge the EEOC’s final determination.
ECF No. 1 ¶¶ 8-15. Defendant does not challenge this Court’s jurisdiction arising from the 2011
claim. Accordingly, the Court will not dismiss a pro se complaint without first attempting
resolution on the merits. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (a pro se complaint is
to be “liberally construed”); United States v. Mraz, 274 F. Supp. 2d 750, 756 (D. Md. 2003)
(noting “the Fourth Circuit’s strong preference for resolving cases on their merits”). The Court
will allow Shipp one final opportunity to amend the Complaint, consistent with this Court’s
opinion, the Federal Rules of Civil Procedure and the Local Rules of this Court.
B. Amending the Complaint
In amending the Complaint, Shipp must follow Rule 8 of the Federal Rules of Civil
Procedure. The Amended Complaint “must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In this
respect, the Amended Complaint must focus on the only claim for which this Court retains
jurisdiction—the FDA’s refusal to hire Shipp for the GS-09 Chemist position in 2011.
Additionally, the Amended Complaint must include a demand for relief sought that is related to
the FDA’s failure to hire Shipp. Fed. R. Civ. P. 8(a)(3). The Court will not entertain any
demand for relief that attempts to relitigate the 2006 case and subsequent settlement agreement
in any way.

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Shipp may wish to consult “Complaint in a Civil Action,” found on the Court’s website.
It outlines the information essential to include in the proposed Amended Complaint. See SelfRepresented Forms, United States District Court for the District of Maryland,
http://www.mdd.uscourts.gov/forms/all-forms/self_rep (last visited Jan. 23, 2019). Shipp may
also wish to review Filing Without an Attorney at http://www.mdd.uscourts.gov/filing-withoutattorney (last visited Jan. 23, 2019). Shipp is granted 28 days to file a new proposed Amended
Complaint in both clean and redline format. See D. Md. Loc. R. 103.6 (b). The Defendant will
then be given 14 days to answer or otherwise respond to the Amended Complaint. If Defendant
moves once again for dismissal, the Court urges Defendant to address whether the Amended
Complaint sufficiently states a claim with regard to the 2011 FDA non-selection of Shipp for the
GS-09 Chemist position.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss the Complaint is GRANTED as

to the claims which were not administratively exhausted. Shipp’s Motion to amend the
Complaint is also granted, allowing Ship one final opportunity to amend the Complaint
consistent with this opinion and the applicable rules or risk dismissal with prejudice. A separate
Order follows.

1/24/2019
Date

________

/S/
Paula Xinis
United States District Judge

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