Crawford-Graham v. Shinseki

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is GRANTED. See 28 U.S.C. § 1915(a)(1). IT IS FURTHER ORDERED that plaintiff's motion to amend her complaint with a request for relief and damage calculations [Doc. # 5 ] is GRANTED. IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Memorandum and Order, plaintiff shall show cause why this action should not be dismissed as a result of plain tiff's failure to properly exhaust her administrative remedies. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this action will be dismissed without prejudice. (Show Cause Response due by 3/27/2013.) Signed by District Judge Catherine D. Perry on February 25, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RITA CRAWFORD-GRAHAM,
Plaintiff,
v.
ERIC SHINSEKI, Secretary
Department of Veterans Affairs,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:12CV1381 FRB

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Rita Crawford-Graham
for leave to commence this action without payment of the required filing fee. See 28
U.S.C. § 1915(a). Upon consideration of the financial information provided with the
application, the Court finds that plaintiff is financially unable to pay any portion of
the filing fee. Therefore, plaintiff will be granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a). After reviewing the complaint for frivolousness,
maliciousness and for failure to state a claim under § 1915, the Court will order
plaintiff to show cause why this action should not be dismissed for her failure to
properly exhaust her administrative remedies.

The Complaint and Background Facts
Plaintiff asserts that she is bringing this action pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e. She alleges racial discrimination and
retaliation by her former employer, the Department of Veterans Affairs (“VA”).
Specifically, plaintiff states that she was wrongfully terminated from her employment
in September of 2000, and that she was subjected to racial discrimination and
retaliation in the terms and conditions of her employment prior to her termination.
Although plaintiff states that she is bringing suit under Title VII, it is apparent, after
a full reading of her complaint, that she is really attempting to bring an appeal of an
administrative findings of the Merit Systems Protection Board (“MSPB”) relating to
her claims of unlawful termination from the VA.1
1

To the extent that plaintiff is, indeed, attempting to bring a Title VII claim
against the VA for wrongful termination, she would have had to file suit within
ninety (90) days of the final decision of the VA, unless she appealed her
termination to the Equal Employment Opportunity Commission (“EEOC”), in
which case it would have had to have been brought within ninety (90) days
following receipt of the EEOC’s decision. 42 U.S.C. § 2000e-16(c). This Court
takes judicial notice of plaintiff’s prior proceedings in which she testified that she
did not appeal her termination to the EEOC. Plaintiff states in her complaint that
she received the decision of the MSPB on February 7, 2011. As plaintiff filed her
complaint in this Court on August 1, 2012, any claim she would be attempting to
bring under Title VII would be time-barred, or filed past the ninety (90) day time
period. As such, from both the tenor of her pleading and the fact that any Title VII
claims would be time-barred, the Court will interpret her complaint as an appeal
from the administrative findings of the MSPB. To the extent plaintiff disagrees
with this analysis, she should address her concerns in her response to this
-2-

In her complaint, plaintiff asserts that she has engaged in a series of
administrative and judicial actions against her former employer from 1997 through
the present action. Indeed, it appears that plaintiff has filed no less than six prior
lawsuits in this Court relating to the same or similar allegations set forth in the instant
case. See, e.g., Graham v. Veteran’s Administration, 4:96CV2320 CEJ (E.D. Mo.);
Graham v. Hershel Gober, Acting Secretary of Veteran’s Affairs, 4:97CV2065 CEJ
(E.D. Mo.); Crawford-Graham v. Principi, 4:01CV556 CDP (E.D. Mo.); CrawfordGraham v. USA, 4:02CV701 CDP (E.D. Mo); Crawford-Graham v. USA, 4:02CV702
CDP (E.D. Mo.); and Crawford-Graham v. USA, 4:02CV991 CDP (E.D. Mo.).
In Crawford-Graham v. Principi, 4:01CV556 CDP (E.D. Mo), plaintiff filed
suit against the VA alleging racial discrimination and retaliation under Title VII. In
her complaint, plaintiff alleged that she was wrongfully: (1) terminated from
employment on October 6, 2000; (2) denied employment to a mediator coordinator
position on June 18, 1998; (3) given a letter of counseling on December 1, 1999;
(4) reprimanded on February 8, 2000; and (5) given a letter of counseling on March
7, 2000.

Memorandum and Order.
-3-

I presided over plaintiff’s 2001 case against the VA, and in that case I granted
defendant’s motion for partial dismissal on plaintiff’s unlawful termination claim.2
After reviewing the record, I found that as to plaintiff’s termination claims, she had
opted for the negotiated grievance procedure (under the Collective Bargaining
Agreement (“CBA”)) rather than file under the statutory procedure for filing Equal
Employment Opportunity (“EEO”) complaints. Accordingly, I found that plaintiff
had failed to appeal the arbitration decision to the MSPB as required by 5 U.S.C. §§
7121 and 7121(d), before invoking District Court jurisdiction over her discriminatory
termination claim under § 7702. Plaintiff’s termination claims were therefore

2

In my August 2, 2002 Memorandum and Order, I reviewed the VA’s
motion to dismiss plaintiff’s unlawful termination claim. I found that plaintiff had
worked as a receptionist at the VA’s Medical Center in St. Louis, Missouri. On
September 22, 2000, plaintiff received a Notice of Removal and was subsequently
terminated on October 6, 2000. Plaintiff did not consult with an EEO counselor or
file an EEO complaint regarding her removal. Instead, the Union filed a grievance
on plaintiff’s behalf, as it was authorized to do under the CBA. The grievance
proceeded through three levels, at which time the Union asked the VA to agree to
binding arbitration. The VA agreed, and on June 21, 2001, the arbitrator found
that plaintiff’s termination was warranted. On July 24, 2001, the Union filed
exceptions to the arbitrator’s decision with the Federal Labor Relations Authority.
On August 31, 2001, the Authority dismissed the exceptions because it lacked
jurisdiction to adjudicate the claims relating to the removal of employees and the
Union did not respond to a show cause order. Plaintiff also failed to appeal the
arbitrator’s decision directly to the MSPB. Although the Union allegedly
requested a waiver to file a late appeal, at the time I wrote the August 2002
opinion, there was no record of plaintiff’s appeal to the MSPB on file.
-4-

dismissed due to her failure to exhaust her administrative remedies with respect to
those claims.3
The remaining matter was then tried before me, wherein I found that plaintiff
failed to make a showing that she had been subjected to racial discrimination or
retaliation for engaging in protected activity. I entered judgment in favor of the VA
and ordered plaintiff to bear the costs of the litigation, despite her pro se, in forma
pauperis status.
In the complaint currently before the Court, plaintiff asserts, in paragraph 4 of
her complaint:
Due to Defendant’s continued wrongs against Plaintiff since the above
suit she was forced to file 2 employment discrimination actions against
the same employer in this forum; 3 Small Claim Cases in The St. Louis
County Circuit Court (3 separate defendants); a State of Missouri
Division of Employment Security and Labor and Industrial Relations
Commission Petition; a Federal Labor Relations Authority Petition; a
U.S. Merit Systems Protection Board Petition and an Equal Employment
Opportunity Commission Petition. Throughout the Plaintiff’s litigation
the process was a travesty of justice. Without proper basis, contrary to
the U.S. laws and the U.S. Constitution the Plaintiff’s right to a jury trial
was denied. Without a hearing and by unpublished per curiam decision
the MSPB and EEOC affirmed the dishonest ruling of the District Court.

3

Under 5 U.S.C. § 7703, an employee with a discrimination claim may
proceed to court after receiving notice of a “judicially reviewable action” under §
7702. 5 U.S.C. § 7703(b)(2). Accordingly, an employee who chooses the
negotiated grievance procedure must take the arbitrator’s decision to the MSPB
before seeking judicial review.
-5-

In paragraphs 7-9 of plaintiff’s complaint, plaintiff additionally asserts:
Further, Plaintiff requests that this honorable body review the unsigned
Opinion and Order dated August 17, 2005 and April 2005. . .Whereby,
this charge filed after the allowed filing period was considered timely
because the charge party prevented the charging party from discovering
the unlawful conduct within the allowed period by concealment or by
failing to perform a duty owed to the charging party. The records shows
a MSPB decision allegedly rendered August 17, 2005 and a duplicate of
this decision dated in April of 2005. . .This decision was pending from
June 2004 until Plaintiff received a copy of said order on February 7,
2011, over 6 years later. . .Plaintiff also affirms that since the Wrongful
Termination she has been placed on a No-Hire List for all prospective
Employers interacting in business with the Federal Government.
Express Scripts, selected Plaintiff for employment in 2004. After
discovering that Plaintiff was in civil litigation with the VA, the Hiring
Manager called Plaintiff and cancelled the offer of employment due to
Plaintiff’s civil case with the VA.
Plaintiff commenced the present action on August 1, 2012. In her request for
relief, she seeks reversal of all prior administrative and judicial decisions made in this
matter and all other matters she has brought against the VA. Plaintiff further seeks
this Court to “empower a joint Congressional and Public Commission to investigate
the operation of the Federal Courts for abuse of citizen’s rights, and report its findings
and recommendations to the people.” She asks for a reference “for impeachment and
criminal prosecution all those the Commission Determines to be responsible for abuse
of Constitutional rights of citizens in the Federal Courts.” She requests an
introduction of a “bill in the U.S. Congress that provides for (1) creation of federal

-6-

District and circuit commissions with the mandate to evaluate the constitutionality of
the past, present and future treatment of the federal litigants by the Federal Courts;
(2) compensation of all victims of the denial of Constitutional rights by the Federal
Judiciary; (3) refiling or rehearing of all cases and appeals in which the litigants were
denied due process by the Federal Judiciary.” Last, plaintiff requests that Congress
eliminate “unconstitutional absolute Judicial immunity of the Federal Judiciary in
favor of a reasonable qualified immunity.”
Plaintiff additionally seeks monetary compensation from September of 1988
to the present, as well as specific injunctive relief, including reinstatement to her
employment.
Discussion
Federal courts are courts of limited jurisdiction. Peoples Nat'l Bank v. Office
of the Comptroller of the Currency of the United States, 362 F.3d 333, 336 (5th
Cir.2004). Without jurisdiction conferred by statute, federal courts lack the power to
adjudicate claims. Id.
As I held in plaintiff’s prior case before me, plaintiff's case before the MSPB
was a “mixed case” appeal.4 “A mixed case appeal is an appeal filed with the MSPB
4

As noted in my August 2, 2002 Memorandum and Order, plaintiff did not
properly exhaust her claim relating to her termination, thus, issues relating to the
termination were not properly before me in her prior case. See Crawford-Graham
-7-

that alleges that an appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race, color, religion, sex, national origin,
handicap or age.” 29 C.F.R. § 1614.302(a)(2); see also Butler v. West, 164 F.3d 634,
638 (D.C.Cir.1999). Title 5, United States Code, § 7702 and the relevant sections of
the Code of Federal Regulations contain the statutory provisions directly addressing
the procedural path of a mixed case. See Butler, 164 F.3d at 638. An employee who
intends to pursue a mixed case can choose between filing a “mixed case complaint”
with the Equal Employment Opportunity office and filing a “mixed case appeal”
directly with the MSPB. See Butler, 164 F.3d at 638; 29 C.F.R. § 1614.302(b); 5
C.F.R. § 1201.151. When a complainant appeals to the MSPB, the matter is assigned
to an ALJ who takes evidence and eventually makes findings of fact and conclusions
of law. Butler, 164 F.3d at 638 (citing 5 C.F.R. §§ 1201.41(b), 1201.111). If either
party is dissatisfied with the ALJ's decision, the party can petition the full board to
review the initial decision. Id.; see also 5 C.F.R. § 1201.113(a). The ALJ's initial
decision becomes final if neither party, nor the MSPB on its own motion, seeks

v. Principi, 4:01CV556 CDP (E.D. Mo.). Accordingly, I granted the VA’s motion
to dismiss plaintiff’s claims relating to her termination for failure to exhaust her
administrative remedies. It appears, based on plaintiff’s statements during the
2001 litigation, as well as her statements in the instant complaint, that plaintiff
pursued her appeal of the arbitrator’s decision upholding her termination directly
to the MSPB.
-8-

further review within 35 days. Id. at 638-39 (citing 5 C.F.R. 1201.113(c)). The
complainant may then seek judicial review of the final decision or appeal the
discrimination claim to the EEOC; but, any case for judicial review “must be filed
within 30 days after the date the individual filing the case received notice of the
judicially reviewable action under such section 7702.” 5 U.S.C. § 7703(b)(2); see 29
C.F.R. § 1614.310(b). Once the ALJ's decision becomes final, all administrative
remedies are exhausted. 5 C.F.R. § 1201.113(e).
Although plaintiff has failed to attach a copy of the MSPB decision to her
complaint, in the instant case, plaintiff states that she received the decision from the
MSPB on February 7, 2011.5 More than thirty (30) days passed between the time
plaintiff received the decision from the MSPB and the time she filed an appeal of the
decision in this Court. Pursuant to § 7703(b)(2), plaintiff’s inaction foreclosed any
judicial review of the MSPB’s decision.
In light of the aforementioned, plaintiff will be required to show cause, within
thirty (30) days of the date of this Memorandum and Order, why this action should
not be dismissed for plaintiff’s failure to properly exhaust her administrative

5

In her complaint, plaintiff states that the decision was issued on “April and
August of 2005” but that she received it on “February 7, 2011.”
-9-

remedies. Plaintiff’s failure to do so will result in a dismissal of this action, without
prejudice.
Last, the Court will deny plaintiff’s motion for appointment of counsel at this
time. There is no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors,
including (1) whether the plaintiff has presented non-frivolous allegations supporting
his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present
the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
After considering these factors and the factual allegations in the case at hand,
the Court finds that the facts and legal issues involved are not so complicated that the
appointment of counsel is warranted at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED. See 28 U.S.C. § 1915(a)(1).

-10-

IT IS FURTHER ORDERED that plaintiff’s motion to amend her complaint
with a request for relief and damage calculations [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of this
Memorandum and Order, plaintiff shall show cause why this action should not be
dismissed as a result of plaintiff’s failure to properly exhaust her administrative
remedies.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order,
this action will be dismissed without prejudice.
Dated this 25th day of February, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

-11-