Roach v. Defense Finance and Accounting Services

Filing 95

ORDER adopting 90 Report and Recommendations. Signed by Honorable David C Norton on 5/30/12. (juwo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
DEBRA J. ROACH,

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Plaintiff,
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vs.
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DR. ROBERT M. GATES, SECRETARY )
OF DEFENSE,
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Defendant.
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)

No. 2:07-00136-DCN
No. 2:07-01574-DCN

ORDER

This matter is before the court on Magistrate Judge Bristow Marchant’s Report
and Recommendation (R&R) that this court grant defendant’s motion to dismiss and/or
motion for summary judgment on plaintiff’s only remaining claim of wrongful
termination in retaliation for protected union activities and in violation of the Collective
Bargaining Agreement. Plaintiff has filed specific written objections. For the reasons set
forth below, the court adopts the magistrate judge’s R&R and grants defendant’s motion.
I. BACKGROUND
Plaintiff Debra J. Roach is a former employee of the Defense Finance and
Accounting Service (DFAS), an agency of the Department of Defense. Roach originally
filed a pro se complaint in federal court against defendant on January 16, 2007, alleging
wrongful termination from her job as a civilian pay technician for DFAS, and a second
pro se complaint in federal court against defendant on June 6, 2007. These cases were
consolidated on September 25, 2007. On August 4, 2008, defendant filed a motion for
summary judgment, to which Roach, represented by counsel, filed a response in
opposition on September 19, 2008. On March 6, 2009, the court granted summary

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judgment in favor of defendant on Roach’s claims for retaliation under Title VII as well
as her labor claims assertable under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).1
The court denied summary judgment on any non-Weingarten union activity claims to
allow the parties to more fully brief the issues.
On March 25, 2009, defendant filed a motion to dismiss and/or for summary
judgment on Roach’s remaining claims, asserting that Roach failed to exhaust her
contractual remedies under the Collective Bargaining Agreement (CBA) and was barred
from raising her claims for the first time in federal court. Roach filed a response in
opposition on April 28, 2009. On March 23, 2010, the court granted defendant’s motion
and dismissed Roach’s remaining claims.
Roach appealed the district court’s two orders. The Fourth Circuit affirmed in
part and vacated and remanded in part. The Fourth Circuit first found that Roach
waived appellate review of the district court’s first order, which granted summary
judgment to defendant on most of Roach’s claims. The Fourth Circuit then found that in
the district court’s second order, it erred by limiting Roach to two specific claims: that
she was prevented from coming to the workplace to participate in union activities and
that she was not allowed to submit statements and witnesses on her behalf regarding
allegations brought against her as required by the CBA. The Fourth Circuit noted that
these claims were not properly exhausted and held that Roach had also asserted a claim
for termination in retaliation for her union activities and in violation of the CBA, which
the district court should have considered. The Fourth Circuit then affirmed “the district

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Under Weingarten, it is an unfair labor practice for an employer to deny an employee her right
to union representation at an investigatory interview in which the employer threatens disciplinary
action. A court may exercise subject matter jurisdiction over a Weingarten claim only where the
employee has first exhausted her administrative remedies.

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court’s orders with regard to all of Roach’s claims except her assertion that she was
improperly terminated in retaliation for her protected union activities and in violation of
the CBA.” Roach v. Gates, No. 10-1569, 2011 WL 915958, at *3 (4th Cir. Mar. 17,
2011). The court also specifically remanded “for a determination of whether this claim
was properly exhausted.” Id. at *2.
On June 22, 2011, Magistrate Judge Bristow Marchant issued an R&R
recommending that the court dismiss Roach’s final claim as being unexhausted and,
alternatively, without merit. Roach, appearing pro se, filed objections to the R&R on
July 11, 2011 and amended objections on July 27, 2011.
II. STANDARD OF REVIEW
A.

Pro Se Petitions

Petitioner is proceeding pro se in this case. Federal district courts are charged
with liberally construing a complaint or petition filed by a pro se litigant to allow the
development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10
(1980). Pro se complaints and petitions are therefore held to a less stringent standard
than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). Liberal construction, however, does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a cognizable claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B.

Review of Magistrate Judge’s Report and Recommendation

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). The court may adopt the portions of the R&R to which the plaintiff did not

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object, as a party’s failure to object is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). This court is not
required to review the factual findings and legal conclusions of the magistrate judge to
which the parties have not objected. See id. The recommendation of the magistrate
judge carries no presumptive weight and the responsibility to make a final determination
remains with this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court
may accept, reject, or modify the report of the magistrate judge, in whole or in part, or
may recommit the matter to her with instructions for further consideration. 28 U.S.C. §
636(b)(1).
III. DISCUSSION
Roach makes numerous arguments and objections to the R&R. At the outset, the
court notes that it will only consider Roach’s objections relating to her sole remaining
claim of wrongful termination in retaliation for participation in union activities and in
violation of the CBA, because all other claims have been dismissed. Defendant argues
that Roach’s remaining claim must be dismissed for lack of subject matter jurisdiction
because Roach failed to exhaust her administrative remedies. Alternatively, defendant
argues that even if Roach’s claim were properly exhausted, the Merit Systems Protection
Board’s (MSPB) decision was not arbitrary or otherwise unsupported by substantial
evidence.2 The magistrate judge agreed with defendant on both grounds for dismissal,
and Roach submitted objections. The court now takes these issues in turn.

2
After Roach was terminated from her position with DFAS for failing to comply with a direct
order, failing to follow instructions, and providing false information, Roach appealed her
termination to the MSPB. The MSPB affirmed the removal.

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I.

Exhaustion of Administrative Remedies

Employees must first exhaust the grievance procedures detailed in a union’s CBA
before asserting a grievance in federal court against the employer. See Vaca v. Sipes,
386 U.S. 171, 184 (1967). If a discharged employee resorts to the courts before a
grievance procedure has been fully exhausted, the employer may defend on the ground
that the exclusive remedies provided by the CBA have not been exhausted. Id. When the
procedures of a CBA are followed, the results reached are final and binding, with some
exceptions. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983).
Here, Article 39 of the CBA provides a “grievance procedure” whereby an
employee can file a grievance concerning any matter relating to her employment or for a
breach of the CBA. Def.’s Mot. Summ. J. Ex. 4, Art. 39, § 2(A). The process contained
in Article 39 is the “sole procedure” for the resolution of grievances of employees. Id.
Art. 39, § 2(B). Roach maintains that she fully exhausted the grievance procedure,
asserting that she filed grievances on December 30, 2005 and February 28, 2006. See
Pl.’s Am. Obj. 5-6. However, as the magistrate judge found, Roach has yet to produce
any evidence showing that she exhausted this process. Mag. R&R 6. Defendant
submitted the affidavit of Mark Eickhoff, a Supervisory Human Resource Specialist for
DFAS, in which Mr. Eickhoff avers that DFAS records dating back to 1996 do not
indicate that Roach filed any grievance under the CBA. See Def.’s Mot. Ex. 2 ¶ 5.
Although Roach objects to the magistrate judge’s R&R on the ground that she did
exhaust the grievance process, she has not produced any evidence to substantiate her
claim. Therefore, the court adopts the magistrate judge’s R&R on the issue of Roach’s
failure to exhaust the CBA grievance process and holds that her final claim for wrongful

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discharge in retaliation for her protected union activities and in violation of the CBA
must be dismissed.
Roach alternatively objects to the magistrate judge’s conclusion that her claim
was unexhausted because, according to Roach, she filed an appeal with the MSPB and
thus exhausted her administrative remedies. See Pl.’s Am. Obj. 8-11. In the February
13, 2006 “Notice of Decision” from DFAS, Roach was informed that she could
challenge her removal by filing an appeal with the MSPB, filing a grievance under the
CBA, or filing a complaint with the EEOC. See Pl.’s Resp. Ex. B; see also Def.’s Mot.
Summ. J. Ex. 4, Art. 39, § 4 (providing that an “employee alleging discrimination or
affected by a removal or reduction in grade based on unacceptable performance, or an
adverse action, may at his or her option raise the matter under the appropriate statutory
appellate procedure or under the provisions of this Article, but not both”). Roach has
submitted an Initial Decision and Final Order by the MSPB, in which Roach appealed
DFAS’s action of removal and the Board affirmed DFAS’s decision. See Pl.’s Resp. Ex.
C, E.
Assuming that Roach did not file a grievance but instead appealed to the MSPB,3
Roach did not raise her only remaining claim—the claim for improper termination in
retaliation for her protected union activities and in violation of the CBA—to the MSPB.
The MSPB only addressed DFAS’s reasons for removing Roach, i.e., for failure to follow
instructions, providing false information, and failure to comply with a direct order. The
MPSB also addressed Roach’s claim of disability discrimination. The MSPB decision
lacks any indication that Roach raised her retaliation claim before the Board or that the

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“An employee cannot exhaust his or her administrative remedies by filing an EEO claim or an
MSPB appeal after electing to file a grievance.” Macy v. Dalton, 853 F. Supp. 350, 355 (E.D.
Cal. 1994).

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Board considered, directly or indirectly, that claim.4 Therefore, this court has no
jurisdiction over Roach’s final claim and it must be dismissed. See Howland v. U.S.
Postal Serv., 209 F. Supp. 2d 586, 590 (W.D.N.C. 2002).
II.

Whether the MSPB’s Decision was Arbitrary or Otherwise
Unsupported by Substantial Evidence

Assuming, arguendo, that Roach properly exhausted her administrative remedies
by presenting the improper termination claim to the MSPB, she would still need to prove
that her termination was the result of retaliation. Roach argues that her claim should be
analyzed under a de novo standard, see Pl.’s Am. Obj. 9-10; however, when a plaintiff
presents a “mixed” case—i.e., one that includes both discrimination and nondiscrimination (e.g. retaliation) claims—only the discrimination claims are subject to de
novo review in district court.5 Rana v. United States, 812 F.2d 887, 888 n.1 (4th Cir.
1987) (“Proper charges of discrimination entitle a plaintiff to a de novo review in district
court on the discrimination issues; the nondiscrimination claims receive a record
review.”). Since Roach’s retaliation claim receives a record review, the court must affirm

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As the magistrate judge notes, had the MSPB actually considered the retaliation claim, it would
have referenced or analyzed the factors set forth in Makky v. Chertoff, 489 F. Supp. 2d 421, 439
(D.N.J. 2007). See Mag. R&R 8 n.10. Since the record provides no evidence that Roach raised
her retaliation claim before the MSPB, this court cannot conclude that Roach exhausted her
administrative remedies in regards to that claim. In fact, even when Roach petitioned the MSPB
to reconsider her appeal, she failed to mention retaliation in any capacity, particularly under the
sections asking whether the initial decision “fail[ed] to consider any important facts” or if there
are “other reasons why the initial or addendum decision was wrong.” See Pl.’s Resp. Ex. D.
Roach now contends that she should not be “stuck” with the claims she pursued at the MSPB
appeal, but rather be able to pursue the claims she raised through the grievance process, in which
she claims she alleged discrimination as well as unlawful discharge in retaliation for protected
activities. Pl.’s Am. Obj. 9-11. However, as previously mentioned, the record is bare of any
evidence that Roach properly filed a grievance under the CBA. Therefore, the court cannot
conclude that Roach exhausted her administrative remedies in regards to the specific claim at
issue in this decision either through the grievance process or through an MSPB appeal.
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Roach’s discrimination claims, which were subject to de novo review in this court, have been
dismissed.

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the MSPB’s decision unless it was: (1) “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”; (2) “obtained without procedures required by law,
rule, or regulation having been followed”; or (3) “unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see Makky v. Chertoff, 489 F. Supp. 2d 421, 428-29 (D.N.J. 2007).
Here, the magistrate judge found no evidence of arbitrariness in the record with
respect to the MSPB’s findings. Much of the evidence relied upon by Roach is irrelevant
to the issue of retaliation, her sole remaining claim. After reviewing the evidence
submitted by Roach and her objections, the court agrees with the magistrate judge that,
assuming Roach properly exhausted her claim, the MSPB’s decision was not arbitrary or
capricious or unsupported by substantial evidence. Moreover, even if this court were to
review Roach’s retaliation claim under a de novo standard, as Roach urges the court to
do, dismissal would still be proper because DFAS provided legitimate, nondiscriminatory reasons for Roach’s termination.6
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R and
GRANTS defendant’s motion to dismiss and/or motion for summary judgment.
AND IT IS SO ORDERED.

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To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) she engaged in a
protected activity, (2) the employer acted adversely against her, and (3) the employer acted with
anti-union animus and had a retaliatory motive. See Makky, 489 F. Supp. 2d at 439. Once a
plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to
articulate “legitimate non-retaliatory reasons for its actions.” Rhoads v. FDIC, 257 F.3d 373, 392
(4th Cir. 2001) (internal quotation marks omitted). Roach can satisfy the first two prongs of the
analysis, see Def.’s Mot. 10; Pl.’s Am. Obj. 30, but even assuming that Roach could meet the
third prong by showing retaliatory pretext, defendant could likely meet its burden by
demonstrating legitimate, non-discriminatory reasons for terminating Roach. The cited reasons
for Roach’s termination—failure to follow instructions, failure to follow a direct order, and
providing false information—are legitimate, non-discriminatory reasons for termination.

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_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
May 30, 2012
Charleston, South Carolina

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