Manning v. McDonald

Filing 45

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 2/13/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

REBECCA MANNING,
Plaintiff,
v.
ROBERT A. McDONALD, Secretary,
Department of Veterans Affairs,
Defendant.

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Case No. 3:16-cv-00706
Judge Aleta A. Trauger

MEMORANDUM OPINION
On November 9, 2016, the Magistrate Judge issued a Report and Recommendation
(“R&R”) (Doc. No. 125), recommending that the defendant’s Motion to Dismiss (Doc. No. 33)
be granted and that judgment be entered in the defendant’s favor. Now before the court is the
plaintiff’s Response to Judge Joe Brown’s Report and Recommendation (Doc. No. 38), which
the court construes as objections to the R&R. The defendant responded to the plaintiff’s
objections (Doc. No. 42), and the plaintiff filed a reply (Doc. No. 44). For the reasons discussed
herein, the court will overrule the objections, accept the R&R, grant the Motion to Dismiss, and
dismiss this action for lack of jurisdiction and failure to exhaust.
I.

Procedural Background
Plaintiff Rebecca Manning instituted this suit on March 17, 2016 by filing two Civil

Warrants in the General Sessions Court for Metropolitan Nashville and Davidson County,
asserting claims of retaliation against defendants Sharon Armer Hill and Dreama Walker. (Doc.
No. 1-2.) The United States removed the action to this court under 28 U.S.C. § 1442(a)(1), on the

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basis that the defendants are officers of the United States or an agency thereof acting under color
of such office. (Doc. No. 1, at 1.) Shortly thereafter, the court granted the motion filed by the
United States Attorney’s Office, on behalf of the Department of Veterans Affairs (“VA”), to
substitute VA Secretary Robert A. McDonald for the individual named defendants, under 42
U.S.C. § 2000e-16(c). (Doc. No. 8.)
The plaintiff filed an Amended Complaint (Doc. No. 18) in April 2016, naming
McDonald as the defendant and alleging that she is a 62-year-old woman employed by the VA
and that she has suffered (1) reprisal for whistleblowing in violation of 5 U.S.C. § 2302(b)(8)–
(9); (2) age discrimination in violation of 29 U.S.C. § 623(d), and (3) “harassment.” (Doc. No.
18, at 4, 40–42.) The defendant responded by filing a Motion to Dismiss (Doc. No. 33). The
plaintiff filed a Response in opposition (Doc. No. 36).
The magistrate judge filed his R&R on November 9, 2016. (Doc. No. 37.) The R&R
construes the Amended Complaint as asserting the three claims identified above: (1) reprisal for
whistleblowing in violation of 5 U.S.C. § 2302(b)(8)–(9); (2) age discrimination in violation of
29 U.S.C. § 623(d) (which he construed as brought under 29 U.S.C. § 633a, which authorizes
suit against the federal government by federal employees); and (3) “harassment.” (Doc. No. 37,
at 3.) The magistrate judge liberally construed the “harassment” claim as a claim of retaliation,
based on the plaintiff’s alleged whistleblower conduct and complaints of age discrimination, and
incorporated the discussion of this claim into his analysis of the first two claims.
Regarding those two claims, he recommends that the defendant’s Motion to Dismiss be
granted on the basis that (1) the court lacks subject matter jurisdiction over the whistleblower
claim; (2) the plaintiff failed either to exhaust administrative remedies or to provide the EEOC
advance notice of her intent to file suit before doing so, as required by 29 U.C.S. § 633a(d); and

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(3) even if the plaintiff’s claim is considered a “mixed case,” she failed to pursue the
administrative remedies that pertain to a mixed case. The R&R also recommends dismissal of the
plaintiff’s claim for punitive damages.
In her objections, the plaintiff insists that she contacted the Office of Special Counsel
(“OSC”) but did not receive any information about appeal rights and that the OSC did not make
a report to the Merit System Protection Board (“MSPB”). She states: “In my case no review took
place, there is no finding, and nothing will be sent to MSPB and there is nothing to appeal except
the law under 5 U.S.C. § 7121(g)(2).” (Doc. No. 38, at 1.) She also states that she spoke to
general counsel at MSPB, “who indicated there is no appeal through their office.” (Id. at 2.)
Thus, she insists, it would be futile at this point for her to appeal to the MSPB. She asks that, if
the court finds that dismissal is required, she be permitted “to come back and continue the case
after” she completes whatever additional actions are required. (Id.)
Regarding her failure to exhaust administrative remedies through the EEOC, she insists
that, if “Human Resources, managers and supervisors” had provided her with information about
the EEOC, she “would have gone back to the EEOC instead of spending such a substantial
amount of time going through the chain of command administratively.” (Id.) She also maintains
that it is unreasonable for the defendant to “come[] forward at this point to assert that [she] must
go through EEOC instead of telling [her] to go to EEOC two or three years ago.” (Id.) She asks
that, in the event her age discrimination claim is dismissed, such dismissal be without prejudice
to her ability to “come back and continue the case” after the EEOC has reviewed her claims. (Id.)
II.

Standard of Review
When a party files objections to a magistrate judge’s report and recommendation

regarding a dispositive motion, the district court must review de novo any portion of the report

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and recommendation to which objections are properly lodged. Fed. R. Civ. P. 72(b)(3); 28
U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court “may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
III.

Discussion
A.

Factual Allegations Regarding Exhaustion

The court adopts the facts as set forth in the R&R but reiterates here those facts
particularly relevant to exhaustion.
In her Amended Complaint, the plaintiff alleges that she
appealed to Loan Guaranty VA leadership at the lowest level . . . up to a higher
level of authority, Danny Pummill, Acting Under Secretary. She has met with
Jeffrey London, Deputy Director, Alberto Planas, Assistant Director, Oversight,
and her complaint has been reviewed by Julie Murphy, Director, Human
Resources with no resolution. She went directly to the highest authority in the
VA; Secretary Robert A. McDonald and he did not bring about a resolution. The
Plaintiff feels she has exhausted all avenues for a voluntary resolution to be
achieved and that this lawsuit is the next appropriate course of action.
(Am. Compl. at 2.) She makes it clear later in the Amended Complaint that her communications
with Secretary McDonald and Julie Murphy concerned her telework schedule and her attempts to
file a workers compensation claim. (Am. Compl. ¶¶ 74–76.)
The plaintiff also states that she filed a union grievance on October 30, 2013 based on her
removal from the telework program and that the grievance was denied initially and at the highest
level. (Am. Compl. ¶ 48.) The union leaders later revisited the decision, however, and agreed
that the plaintiff should not have been removed from the telework program. (Am. Compl. ¶ 54.)
In January 2014, a new Telework Agreement was signed, allowing the plaintiff to telework two
days a week from her home in Georgia, but not the three days she had requested and that had
previously been approved. (Am. Compl. ¶ 56.)

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She alleges that, on May 15, 2014, she “succumb[ed] to the pressures of the retaliation
and harassment” and “submitted a request to transfer to the Atlanta office taking a lower grade
and a lower pay.” (Am. Compl. ¶ 70.)
B.

Whistleblowing Claim under 5 U.S.C. § 2302

The plaintiff objects to the magistrate judge’s finding that the court lacks jurisdiction to
consider her claim under 5 U.S.C. § 2302, insisting that she contacted the OSC, was not
informed of her appeal rights, and has been informed that an appeal to the MSPB at this juncture
would be futile. The court has conducted a de novo review of the plaintiff’s objection, the R&R,
and the pertinent parts of the record and finds that the magistrate judge’s recommendation is
factually sound and legally correct.
“Federal courts are courts of limited jurisdiction, possessing only that power authorized
by Constitution and statute.” 1 Indeed, federal courts are “forbidden . . . from acting beyond our
authority” 2 and, therefore, have “an affirmative obligation to consider whether the constitutional
and statutory authority exist for us to hear each dispute.” 3 A federal court lacking subject matter
jurisdiction must dismiss the case. 4
As the magistrate judge explained, exhaustion of administrative remedies under the Civil
Service Reform Act (“CSRA”) of 1978 5 is a jurisdictional prerequisite to suit. 6 The passage of
the CSRA established a comprehensive—if confusing—framework for federal employees to
1

Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (citation and internal quotation marks

omitted).
2

NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008).

3

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (citation
and internal quotation marks omitted).
4

Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

5

Pub. L. 95–454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.).

6

Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996).

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have the “prohibited personnel practices” of agencies reviewed and remedied administratively. 7
The Whistleblower Protection Act of 1989 (“WPA”) subsequently “amend[ed] the list of
prohibited personnel practices under the framework of the CSRA” to include reprisals for
whistleblower activity. 8 Thus, for claims brought pursuant to the WPA, “exhaustion of
administrative remedies is a . . . prerequisite to suit.” 9
As the magistrate judge also explained, an employee seeking to bring a reprisal action
under the WPA may elect to pursue one, and only one, of three possible remedies. 10 First, under
some circumstances, a claimant may appeal an agency action directly to the MSPB. 11 Second,
the employee may seek assistance from the OSC, which investigates the complaint. 12 If the OSC
finds that there was a prohibited personnel action as defined by 5 U.S.C. § 2302, it reports its
findings to the MSPB, and it can petition the MSPB on the employee’s behalf. 13 If the OSC finds
no agency wrongdoing, then the employee herself may bring an action before the MSPB. 14

7

5 U.S.C. § 2302 (2012); see also United States v. Fausto, 484 U.S. 439, 445–49 (1988)
(explaining that the comprehensive nature of the CSRA precludes certain judicial review of
personnel actions other than as provided by the statute).
8

Hardy v. Hamburg, 69 F. Supp. 3d 1, 6 (D.D.C. 2014); see also 5 U.S.C. § 2302(b)(8).

9

Weaver, 87 F.3d at 1433; see also Heard v. U.S. Dep’t of State, No. CIV.A. 08-02123
RBW, 2010 WL 3700184, at *6 n.7 (D.D.C. Sept. 17, 2010) (“Because the WPA amends the list
of prohibited personnel practices under the framework of the CSRA, 5 U.S.C. § 2302, the
exhaustion discussion in Weaver also applies to the WPA.”).
10

5 U.S.C. § 7121(g)(2)–(3).

11

5 U.S.C. § 7121(g)(3)(A); 5 U.S.C. § 4303 (providing that an employee falling within
certain specific categories and who has suffered a reduction in grade or removal “is entitled to
appeal the action to the Merit Systems Protection Board under § 7701); 5 U.S.C. § 7513
(providing direct appeal to MSPB for employees subject to removal, suspension for more than
fourteen days, reduction in grade or pay, or furlough for thirty days or less).
12

5 U.S.C. §§ 7121(g)(3)(C) & (4)(C); 5 U.S.C. § 1214; Weber v. United States, 209
F.3d 756, 758 (D.C. Cir. 2000) (describing whistleblower protection procedures under Title 5).
13

Weber, 209 F.3d at 758.

14

5 U.S.C. §§ 1221, 1214(a)(3); Weber, 209 F.3d at 758.

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The third remedy available to a claimant is to pursue a negotiated grievance through the
procedures in her collective bargaining agreement. 15 The statute provides that collective
bargaining agreements serve as the exclusive administrative vehicle for resolving grievances that
fall within their coverage. 16
If the claimant takes the first or second option, either bringing her claim directly to the
MSPB or first to the OSC and then to the MSPB, the claimant may later seek judicial review of
the MSPB’s final decision. 17 Such judicial review, however, may only be obtained by filing a
petition for review in United States Court of Appeals for the Federal Circuit or “any court of
appeals of competent jurisdiction” 18—presumably the Sixth Circuit Court of Appeals for
challenges to employment actions taken within this district.
If the claimant pursues the third available remedy, judicial review of a final decision
obtained through a negotiated grievance procedure under the collective bargaining agreement
may be available “in the same manner and under the same conditions as if the matter had been
decided” by the MSPB. 19 In other words, judicial review may be obtained by filing a petition for
review in the United States Court of Appeals for the Federal Circuit or any court of appeals of

15

5 U.S.C. § 7121(g)(3)(B).

16

5 U.S.C. § 7121(a)(1).

17

See 5 U.S.C. § 7703(a)(1) (“Any employee . . . adversely affected or aggrieved by a
final or decision of the Merit Systems Protection Board may obtain judicial review of the order
or decision.”).
18

5 U.S.C. § 7703(b)(1)(B). WPA appeals filed during the five-year period beginning on
the effective date of the WPA may be filed in any federal circuit court of appeals of competent
jurisdiction. 5 U.S.C. § 7703(b)(1)(B). The statute was enacted November 27, 2012 and became
effective 30 days later. Whistleblower Protection Enhancement Act of 2012, Pub. L. 112-199, §
202, 126 Stat. 1469, 1476 (2012). The United States Court of Appeals for the Federal Circuit has
exclusive jurisdiction of any appeal filed outside this window. 5 U.S.C. § 7703(b)(1)(A); Weber,
209 F.3d at 758.
19

5 U.S.C. § 7121(f).

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competent jurisdiction. 20
“Under no circumstances does the WPA grant the District Court jurisdiction to entertain
a whistleblower cause of action brought directly before it in the first instance.” 21 Moreover, even
when the appropriate administrative steps are taken, only a federal court of appeals has the
ability to review a WPA decision, not this court.
Here, it appears that the plaintiff pursued a grievance through the negotiated procedure
provided by her union. 22 Because she claims that she was “forced” to take a lower grade and
lower pay, the matter is arguably covered by 5 U.S.C. § 4303 or § 7512, which meant that she
might have been able to pursue judicial review of the decision in the court of appeals. She did
not do so. This court, in any event, is not authorized to review her claim and therefore has no
choice but to dismiss it.
C.

Mixed Case Analysis

An entirely different set of procedures applies to “mixed cases,” defined as cases in
which the employee “has been affected by an action which the employee . . . may appeal to the
[MPSB], and alleges that a basis for the action was discrimination” prohibited by 29 U.S.C. §

20

While the federal courts of appeal have “broad jurisdiction over Board decisions,”
Schafer v. Dep’t of Interior, 88 F.3d 981, 985 (Fed. Cir. 1996) (citing 5 U.S.C. § 7121(f)), they
are authorized to review an arbitrator’s award (or other final decision in the grievance procedure)
only if the matter appealed is one “covered under” 5 U.S.C. § 4303 (reductions in grade and
removals due to unacceptable performance) or 5 U.S.C. § 7512 (adverse actions such as
removals or suspensions of more than fourteen days). If the matter is not sufficiently serious, no
judicial review of the decision in the negotiated grievance procedure is available. Accord
Schafer, 88 F.3d at 986 (dismissing case for lack of jurisdiction under § 7121(f) where the matter
did not fall under § 4303 or § 7512, noting that 5 U.S.C. § 7121(f) is the appellate court’s “sole
jurisdictional grant for review of an arbitrator’s award”).
21
22

Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002).

From the plaintiff’s allegations, it appears that, as a result of her having chosen to
pursue a negotiated grievance through the procedure available under her union’s collective
bargaining agreement, the OSC determined that it could not review her claims.

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633a, among other statutes. 23 As the Supreme Court has explained, “[t]he CSRA and regulations
of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special
procedures to govern [a mixed] case—different from those used when the employee either
challenges a serious personnel action under the CSRA alone or attacks a less serious action as
discriminatory.” 24
To be clear, a mixed case is only one in which the plaintiff’s WPA claim is sufficiently
serious that the employment decision may be immediately appealed to the MPSB. 25 “When an
employee challenges a serious personnel action under the CSRA alone, or attacks a less serious
personnel action as discriminatory, he has not brought a mixed case and different procedures
apply.” 26
A federal employee who seeks to file a mixed case has two options for beginning the
grievance process. First, she may file a discrimination complaint with the agency through the
agency’s Equal Employment Opportunity (“EEO”) Office. Alternatively, she may file an appeal
directly with the MSPB. 27 An employee cannot maintain the same action in both forums; she
must exhaust her administrative remedies in the forum where her complaint or appeal was first

23

5 U.S.C. § 7702(a)(1).

24

See Kloeckner v. Solis, 133 S. Ct. 596, 601 (2012) (citations omitted).

25

See Kloeckner, 133 S. Ct. at 601 (“When an employee complains of a personnel action
serious enough to appeal to the MSPB and alleges that the action was based on discrimination,
she is said (by pertinent regulation) to have brought a ‘mixed case.’” (citing 29 CFR § 1614.302
(2012))).
26

Lucy-Evans v. Dep’t of Veterans Affairs, No. 1:15-CV-432, 2015 WL 7002912, at *5
(N.D. Ohio Oct. 22, 2015), report and recommendation adopted, No. 1:15CV432, 2015 WL
6964575 (N.D. Ohio Nov. 10, 2015).
27

Rodgers v. Perez, 139 F. Supp. 3d 67, 71 (D.D.C. 2015) (citing 29 C.F.R. §
1614.302(a); 5 C.F.R. § 1201.154(a)); see also Kloeckner, 133 S. Ct. at 601 (citations omitted).

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filed. 28 Where the employee pursues a mixed case complaint within the agency, after the agency
renders a final decision, the employee may appeal an adverse agency decision to the MSPB or
sue directly in federal district court. 29 Where the employee pursues a mixed case appeal with the
MSPB, she may appeal an adverse decision by filing an EEOC charge or by filing suit in federal
district court. 30
Even assuming, for purposes of the Motion to Dismiss, that the plaintiff could have
brought a mixed case under the administrative procedures outlined in 5 U.S.C. § 7702(a)(1), the
plaintiff failed to follow the procedures prescribed for that situation either. She did not pursue a
discrimination claim through her agency or through the MSPB. Instead, she pursued a negotiated
grievance of her agency’s decision to remove her from the telework program, filed a workers
compensation claim, spoke with someone in Human Resources, and made contact with a number
of supervisors, including the VA Secretary. While the allegations in the Amended Complaint
make it clear that the plaintiff was not shy about voicing her opinions and attempting to pursue
her rights, there is no indication that the plaintiff ever complained about age discrimination until
she included an age discrimination claim in the Amended Complaint. 31
In sum, the court concludes that, even if the plaintiff could have brought her claim as a
mixed case, she did not do so. She therefore does not have the ability to seek judicial review
directly in the district court at this juncture.

28

Id. (citing 29 C.F.R. § 1614.302(b); Schlottman v. Perez, 739 F.3d 21, 22 (D.C. Cir.

29

5 C.F.R. § 1201.154(b); 29 C.F.R. § 1614.302(d)(1)(i).

2014)).
30
31

5 U.S.C. § 7703(b)(2).

The Civil Warrants filed in General Sessions Court complain only about retaliation in
the form of being removed from the telework program. (See Doc. No. 1-2.)

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D.

Age Discrimination Claim

The magistrate judge correctly and succinctly stated the law pertaining to exhaustion of
an age discrimination claim under 29 U.S.C. § 633a. The plaintiff did not pursue a charge of
discrimination with the EEOC, nor did she follow the alternative course of giving the EEOC
thirty days’ notice of her intent to sue “within one hundred and eighty days after the alleged
unlawful practice occurred,” as permitted by § 633a(d). The plaintiff objects to dismissal of her
age discrimination claim on the basis that “Human Resources, managers and supervisors” failed
to provide her with information about the EEOC. (Doc. No. 38, at 2.) She claims that, if they
had, she would have submitted a charge to the EEOC and that it is unfair for the defendant to
argue now that she must submit a claim to the EEOC instead of telling her to do so two or three
years ago. (Id.)
The exhaustion requirement for an age discrimination claim is designed “to trigger an
investigation, which gives notice to the alleged wrongdoer of its potential liability and enables
the EEOC to initiate conciliation procedures in an attempt to avoid litigation.” Dixon v. Ashcroft,
392 F.3d 212, 217 (6th Cir. 2004). An ADEA plaintiff’s failure to exhaust administrative
remedies renders the complaint subject to dismissal under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See McKnight v. Gates, 282 F. App’x 394, 399 (6th Cir. 2008) (affirming
dismissal of class age discrimination claim based on the plaintiff’s failure to exhaust or to inform
the EEOC of his intent to file a class complaint). Such failure is not, however, a jurisdictional
defect, but rather a condition precedent that is subject to equitable tolling or that may be waived
by the parties or the court. Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir.
1998).
The plaintiff here is essentially arguing that the defendant should be equitably estopped

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from arguing that her age discrimination claim is subject to dismissal for failure to exhaust. The
Sixth Circuit has explained that, to successfully invoke the doctrine of equitable estoppel, a
claimant must show:
(1) conduct or language amounting to a representation of material fact;
(2) awareness of true facts by the party to be estopped;
(3) an intention on the part of the party to be estopped that the representation be
acted on, or conduct toward the party asserting the estoppel such that the latter has
a right to believe that the former’s conduct is so intended;
(4) unawareness of the true facts by the party asserting the estoppel; and
(5) detrimental and justifiable reliance by the party asserting estoppel on the
representation.
Mutchler v. Dunlap Mem’l Hosp., 485 F.3d 854, 861 (6th Cir. 2007) (citations omitted).
“[E]quitable estoppel requires affirmative steps or action on the part of a defendant. . . .
[P]laintiffs invoking equitable estoppel must establish due diligence.” Egerer v. Woodland
Realty, Inc., 556 F.3d 415, 425 (6th Cir. 2009). The Sixth Circuit has given examples of the type
of affirmative action that a defendant must take before a plaintiff can invoke equitable estoppel:
Equitable estoppel, sometimes referred to as fraudulent concealment, is invoked
in cases where the defendant takes active steps to prevent the plaintiff from suing
in time, such as by hiding evidence or promising not to plead the statute of
limitations.
Id. at 428 (quoting Bridgeport Music, Inc., et al. v. Diamond Time, Ltd., 371 F.3d 883, 891 (6th
Cir. 2004)).
In this case, the plaintiff does not allege facts suggesting fraudulent concealment. In fact,
she does not allege that she ever presented any claim of age discrimination or facts suggesting
age discrimination to any of the numerous supervisors and managers she contacted. Instead, her
concerns focused primarily on her removal from a telework program in violation of a Telework

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Agreement and, secondarily, on the harassment and reprisal she suffered as a result of her
complaining about such removal and about other acts by her supervisors that she believed
“constituted an abuse of authority, violations of law and rules as well as mismanagement.”
(Compl. at 2; see id. at 4 (“The supervisors and managers did willfully, deliberately and
maliciously retaliate against her for reporting their actions.”).) Her complaint to VA Secretary
Robert McDonald, which was referred to HR Director Julie Murphy, was about “bad managers
and supervisors” and again concerned her initial removal from the telework program. (Compl. ¶¶
74, 75.)
Although the plaintiff faults her supervisors for not giving her information about filing an
EEOC charge, she does not argue even now that she ever put any of her supervisors on notice of
an age discrimination claim, and she does not allege an affirmative misrepresentation by any of
her supervisors. Under these circumstances, the court finds that there is no basis for equitable
estoppel. The plaintiff’s age discrimination claim will be dismissed for failure to exhaust or to
provide timely notice to the EEOC under § 633a(d).
IV.

Conclusion
The court will overrule the plaintiff’s objections and accept the magistrate judge’s

recommendation. Accordingly, the defendant’s Motion to Dismiss will be granted, and this
action will be dismissed.
An appropriate order is filed herewith.

ALETA A. TRAUGER
United States District Judge