Quadri v. Red River Army Depot

Filing 63

ORDER ADOPTING 50 REPORT AND RECOMMENDATIONS and GRANTING 37 Motion to Dismiss filed by John M McHugh, Red River Army Depot and FURTHER ORDERED that plaintiffs cause of action is DISMISSED WITH PREJUDICE and that Taofeek Quadri is PROHIBITED from proceeding form pauperis with any new civil action in this Court regarding these claims unless he first obtains from a district judge of this court leave to proceed forma pauperis. Signed by Judge Robert W. Schroeder, III on 1/11/2016. (sm, )

IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION

TAOFEEK QUADRI
V.
JOHN M. MCHUGH, Secretary,
U.S. Department of the Army, in his
official capacity

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No. 5:15CV30-RWS-CMC

MEMORANDUM ORDER ADOPTING
REPORT AND RECOMMENDATION
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate Judge which
contains her proposed findings of fact and recommendations for the disposition of such action has
been presented for consideration. Plaintiff filed objections to the Report and Recommendation. The
Court has conducted a de novo review of the Magistrate Judge’s findings and conclusions.
BACKGROUND
Plaintiff Taofeek Quadri (“Plaintiff”), proceeding pro se, filed this case against John M.
McHugh, Secretary of the U.S. Department of the Army, in his official capacity (“Defendant”) under
42 U.S.C. § 2000e, et seq., commonly referred to as Title VII of the Civil Rights Act of 1964 (“Title
VII”). In his original complaint, Plaintiff alleged he was discriminated against on the basis of race,
color, and national origin and that he faced reprisal for prior protected activity. After Defendant filed
a motion to dismiss, the Court granted Plaintiff leave to amend his complaint. In his amended
complaint, Plaintiff alleges the Government’s revocation of his security clearance served only as
mere pretext to his termination, and he was actually terminated for discriminatory reasons.
In its first amended motion to dismiss, Defendant asserts Plaintiff’s claims should be

dismissed because Plaintiff failed to exhaust the necessary administrative remedies to be able to
present those allegations in federal court.
REPORT AND RECOMMENDATION
On November 30, 2015, the Magistrate Judge issued a Report and Recommendation,
recommending Defendant’s amended motion to dismiss be granted and that Plaintiff’s case be
dismissed with prejudice. After outlining in great detail the factual background and relevant litigation
history, the Magistrate Judge noted this is Plaintiff’s third lawsuit against Defendant regarding his
termination on January 21, 2014.
According to the Magistrate Judge, Plaintiff chose to appeal his termination directly to the
Merit Systems Protection Board (“MSPB”), an administrative agency that has jurisdiction over
specific “adverse employment actions” affecting federal employees. The Magistrate Judge first
found Plaintiff’s claims should be dismissed because Plaintiff abandoned those claims before the
MSPB and thus failed to exhaust the necessary administrative remedies. The Magistrate Judge
further found that even if Plaintiff had exhausted his administrative remedies, Plaintiff fails to state
a viable claim. The Magistrate Judge found no discovery is necessary here because the record shows
discovery is not likely to produce facts needed to withstand a motion to dismiss. According to the
Magistrate Judge, not only is Plaintiff’s amended complaint self-defeating on its face, but it is also
devoid of factual allegations to support any sort of discrimination or retaliation claim.
For these reasons, the Magistrate Judge recommended Plaintiffs’ claims be dismissed with
prejudice. Considering Plaintiff’s litigation history, the Magistrate Judge further recommended the
Court require Plaintiff to seek permission before proceeding in forma pauperis with any new civil
litigation regarding these claims unless he first obtains from a district judge of this Court leave to

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proceed in forma pauperis.
OBJECTIONS
Plaintiffs filed objections to the Report and Recommendation, asserting the Magistrate Judge
erred in granting him leave to amend his complaint. According to Plaintiff, his original complaint
plead sufficient facts to establish jurisdiction. Plaintiff further asserts the Magistrate Judge did not
act in a neutral manner but was an “active advocate” for the Government, allowing Defendant “to
toll the time without notice of motion to plaintiff.” (Dkt. No. 53 at 6 & 17).1 Plaintiff further states
he was denied jurisdictional discovery. Even though the Magistrate Judge denied Defendant’s
motion to stay discovery pending resolution of Defendants’ amended motion to dismiss, Plaintiff
argues it was an abuse of discretion to issue the Report and Recommendation on Defendants’
amended motion to dismiss during discovery. Plaintiff states he seeks to supplement evidence by
conducting discovery, and “Egan does not strip the courts of jurisdiction” to determine whether the
Government’s security clearance decision was a pretext to discharge Plaintiff.2 Id. at 9 & 12.

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On July 6, 2015, the Magistrate Judge granted Defendant’s motion for an 8-day extension
of time to file a reply to Plaintiff’s response to Defendants’ original motion to dismiss, allowing
Defendant up to and including July 10, 2015 in which to file a reply. Had the Magistrate Judge
allowed the full seventeen-day response period to run, the Court would have effectively given
Defendant a much longer extension than that requested. And importantly, four days after Defendant
filed its reply, the Magistrate Judge granted Plaintiff leave to amend his complaint as requested in
his response to the original motion to dismiss.
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The Magistrate Judge’s recommendation was not based on whether Plaintiff’s claim based
on a revocation of a security clearance that was followed by removal from federal employment could
be reviewed pursuant to Department of Navy v. Egan, 484 U.S. 518, 526-31 (1988). Rather, the
Magistrate Judge considered whether Plaintiff has exhausted his claims before the MSPB.
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DE NOVO REVIEW
Plaintiff’s three lawsuits
On January 3, 2014, Plaintiff filed his first case against Defendant; Eric H. Holder, Jr.,
Attorney General of the United States; and Chuck Hagel, Secretary, U.S. Department of Defense
under Title VII, asserting “acts of reprisal, discrimination, abuse, harassment, hate, high hostile
environment via command group and management, gross mismanagement, nepotism, intimidation,
prohibited personnel practices, etcetera on RED RIVER ARMY DEPOT.” (Cause No. 5:14cv1, Dkt.
No.1 at 2). According to Plaintiff, the Agency discriminated and retaliated against him by revoking
or suspending his security clearance which interfered with his United States Army Reserve mission
and the mission of the United States Government. Id. at pgs. 9-10.
On March 14, 2014, Plaintiff and four additional RRAD employees, Reginald Webster,
Gerald Tave, Rory Hicks, and John Taylor, all apparently current or former RRAD employees, filed
an amended complaint. On January 23, 2015, the Magistrate Judge issued a Report and
Recommendation, recommending Defendants’ Motion to Dismiss be granted and that Plaintiffs’ case
be dismissed without prejudice. Considering the essence of Plaintiffs’ claims involved the revocation
or suspension of security clearance, the Magistrate Judge found the Court lacked subject matter
jurisdiction to review the plaintiffs’ Title VII discrimination and retaliation claims. However, even
if the Court had subject matter jurisdiction over Plaintiff’s Title VII claims, the Magistrate Judge
noted Defendants’ assertion that Plaintiff had not yet exhausted his administrative remedies.
According to Defendants, Plaintiff elected to exhaust his discrimination claims via a “mixed case
appeal” to the MSPB. That appeal was filed in February of 2014, and as of the date of Defendants’
motion, the MSPB had not yet made a final determination on his appeal.

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On February 26, 2015, District Judge Rodney Gilstrap adopted the January 23, 2015 Report
and Recommendation as the findings and conclusions of the Court. In overruling the plaintiff’s
objections, Judge Gilstrap noted Plaintiff had already been allowed one amendment, at which time
he added as plaintiffs Webster, Tave, Hicks, and Taylor. According to Judge Gilstrap, the plaintiffs
were seeking, through their objections, to amend again, “changing the substance of their complaint
discrimination, retaliation, and hostile work environment, similar to the claims already raised by
Quadri and addressed by the Court in Cause No. 5:14cv35.” (Cause No. 5:14cv1, Dkt. No. 28 at 5).
According to Judge Gilstrap, Plaintiff took every opportunity to amend in an attempt to avoid
dismissal, even to the point of changing the essence of his complaint. Even considering the plaintiffs’
proposed second amended complaint (attached to his objections), Judge Gilstrap found the plaintiffs’
case should be dismissed for failure to exhaust. To the extent the Court considered the allegations
raised in the plaintiffs’ proposed second amended complaint, the Court found it lacked jurisdiction
to entertain the plaintiffs’ claims. Judge Gilstrap granted Defendants’ motion to dismiss and
dismissed without prejudice the plaintiffs’ case.
On March 14, 2014, Plaintiff filed a second case against Defendant under Title VII. In his
form complaint, Plaintiff alleged he was discriminated against on the basis of race, color, and
national origin. (Cause No. 5:14cv1, Dkt. No. 1 at 3). In the space on the form where the type of
wrongful action is to be described, Plaintiff wrote “see attached.” Plaintiff originally attached only
the EEOC notice denying reconsideration of its decision denying relief to Plaintiff. In his response
to Defendant’s motion to dismiss, Plaintiff sought leave to amend his original complaint, and he
attached a proposed amended complaint. The Magistrate Judge granted Plaintiff leave to amend and
considered the allegations contained in his amended complaint.

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In his proposed first amended complaint, considered by the Magistrate Judge in
recommending Defendant’s motion to dismiss for failure to state a claim be granted, Plaintiff alleged
harassment and hostile work environment in violation of Title VII, the ADEA, and the Rehabilitation
Act, as well as racial discrimination for having been required to sign in and out on a sheet of paper
on the wall. In his proposed second amended complaint, attached to his objections to the Report and
Recommendation, Plaintiff more specifically alleged he was discriminated and retaliated against in
every possible way, including sabotaging his security clearance because of his race and for having
complained about such discrimination in 2011. (Cause No.5:14cv35, Dkt. No. 15 at 3).
On December 16, 2014, the Magistrate Judge recommended Defendant’s Motion to Dismiss
for Failure to State a Claim be granted and Plaintiff’s case be dismissed with prejudice. Regarding
Plaintiff’s race discrimination claim, the Magistrate Judge found Plaintiff failed to allege any adverse
employment action related to his claim; he also failed to allege facts that would support a disparate
treatment claim in general. The Magistrate Judge also found Plaintiff had failed to allege a hostile
work environment claim. Specifically, the Magistrate Judge stated no reasonable person could find
the requirement to sign in and out on a separate board, or an isolated comment by a supervisor about
him leaving and not belonging at the depot, to be harassing.
Plaintiff filed objections to the Report and Recommendation. Plaintiff also sought leave to
replead for a second time. He attached a proposed second amended complaint and other attachments
to his objections, wherein he more specifically alleged he was discriminated and retaliated against
in every possible way, including sabotaging his security clearance because of his race and for having
complained about such discrimination in 2011.
District Judge Schneider adopted the Report and Recommendation as the findings and

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conclusions of the Court, noting the objections failed to address the specific issues raised in the
Report and Recommendation. Judge Schneider also agreed with the Magistrate Judge that Plaintiff
failed to allege facts about an event or action that would constitute an adverse employment decision
and to allege facts that, even if true, would constitute a hostile work environment. Judge Schneider
concluded the proposed second amended complaint did not cure the deficiencies of the first amended
complaint. According to Judge Schneider, even considering Plaintiff’s proposed second amendment
which alleged the revocation of his security clearance (an issue also raised in Plaintiff’s first case,
Cause No. 5:14cv1), the Court lacked subject matter jurisdiction over that Title VII retaliation claim.
Judge Schneider granted Defendant’s Motion to Dismiss for Failure to State a Claim and
dismissed with prejudice Plaintiff’s case. After Plaintiff appealed the decision to the Fifth Circuit
Court of Appeals, the case was reassigned to District Judge Gilstrap for all further proceedings.
Plaintiff’s appeal is currently pending.
On March 30, 2015, Plaintiff filed the third, current case against Defendant, alleging he was
discriminated against when he was removed from federal employment on January 21, 2014. Plaintiff
amended his complaint on July 29, 2015 and is now attempting to assert discrimination claims the
Magistrate Judge found he abandoned during the MSPB administrative process.
Whether Plaintiff exhausted administrative remedies
Title VII gives the district court subject matter jurisdiction over federal employees’
employment discrimination claims when administrative remedies have been exhausted. See 42
U.S.C. § 2000e-16(c); Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976). Failure to
exhaust administrative remedies or to file a civil action complaint within the time allotted by Title
VII deprives the district court of jurisdiction over the case. See Randel v. U.S. Dep’t of Navy, 157

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F.3d 392, 395 (5th Cir. 1998) (“As a precondition to filing suit in federal court, Title VII specifically
requires a federal employee claiming discrimination to exhaust his administrative remedies . . [and]
file his complaint in a timely manner.”).
Although the MSPB does not have jurisdiction over discrimination claims that are not related
to appealable adverse actions, it can entertain appeals in “mixed cases,” where an employee alleges
a Title VII violation in relation to one of the specified adverse employment actions. See 5 U.S.C. §
7702(a)(1)(B)(i)-(iv). As noted by the Magistrate Judge, because Plaintiff was a federal employee
asserting he was terminated in violation of Title VII, he presented a “mixed case” to the
administrative law judge of the MSPBA.
A federal employee who elects to file an appeal with the MSPB is required to exhaust his
claims in that forum before filing a civil action in federal court. McAdams v. Reno, 64 F.3d 1137,
1142-43 (8th Cir. 1995). “In a mixed case, a final decision from the MSPB exhausts an employee’s
administrative remedies and allows him to seek judicial review.” Chappell v. Chao, 388 F.3d 1373,
1375 (11th Cir. 2004).When an employee files an appeal with the MSPB, he can only bring a civil
action in federal court with respect to those claims that were presented in the appeal. See Smith v.
O’Keefe, 2006 WL 2167716, *5 (unreported)(S.D. Tex. July 31, 2006)(citing McAdams, 64 F.3d at
1141-42).
According to the Magistrate Judge, Plaintiff initially presented claims of discrimination based
on race, color, national origin, and reprisal for prior protected EEO activity to the administrative law
judge, but he abandoned those claims when he appealed the judge’s decision to the MSPB appeals
board. See Dkt. No. 29-1, ¶ 4, n.4 (MSPB final decision explaining that Plaintiff did not include
those claims in his petition for review). When an employee abandons claims during the

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administrative appeals process, he has failed to exhaust his remedies with respect to the abandoned
claims. Harms v. Snow, 57 F.App’x 720, at *1 (8th Cir. 2003) (affirming dismissal of employee’s
Title VII and ADA claims for failing to exhaust administrative remedies and noting that although
the employee had initially pursued those claims with the MSPB, he subsequently abandoned those
claims and was therefore precluded from raising them in federal court).
Failure to properly exhaust administrative remedies bars an individual’s right to proceed in
federal district court. See Irwin v. Dep’t of Veterans Affairs, 498 U.S.89, 94 (1990); see also
Vinieratos v. U.S. Dep’t of Air Force, 939 F.2d 762, 770 (9th Cir.1991) (“[A]bandonment of the
administrative process may suffice to terminate an administrative proceeding before a final
disposition is reached, thus preventing exhaustion and precluding judicial review.”); Rivera v. U.S.
Postal Serv., 830 F.2d 1037, 1039 (9th Cir.1987) (“To withdraw is to abandon one’s claim, to fail
to exhaust one’s remedies.”); Taylor v. Dam, 244 F.Supp.2d 747, 757 (S.D.Tex.2003) (“[A]n
aggrieved federal employee must elect an exclusive administrative remedy and fully exhaust the
remedy chosen.” ). Here, Plaintiff did not appeal the discrimination-based allegations to the MSPB
appeals board.

Plaintiff abandoned those claims and thus failed to exhaust the necessary

administrative remedies.
The Magistrate Judge properly concluded discovery is not likely to produce facts needed to
withstand dismissal. Plaintiff’s complaint admits, on its face, that he failed to exhaust the required
remedies that are a prerequisite to filing suit. What is more, the Magistrate Judge did not preclude
Plaintiff from conducting discovery between the August 14, 2015 scheduling conference and entry
of the Report and Recommendation on November 30, 2015. As noted above, the Magistrate Judge
specifically denied Defendant’s motion to stay discovery pending resolution of its Amended Motion

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to Dismiss.3 Having failed to exhaust administrative remedies on his claims of discrimination and
retaliation for prior EEO activity, the Court lacks subject matter jurisdiction over those claims.
Even if Plaintiff had exhausted his administrative remedies, the Court would agree with the
Magistrate Judge that Plaintiff fails to state a viable claim. Rather than asserting specific facts to
support his allegations, Plaintiff references “etcetera” and “see attached” in his amended complaint.
The Magistrate Judge specifically noted the following example: Plaintiff alleges he “was removed
from his job and reinstated by the . . . [MSPB]. . . and removed again . . . for evidence showing that
defendant retained similarly situated employees who lacked security clearances, please see attached
EXHIBIT A.” (Report and Recommendation at 13)(citing Dkt. No. 40 at 1). Plaintiff fails to plead
any facts showing there was any causal link between his race, color, or national origin and the
alleged adverse employment action.
The Court, having reviewed the underlying briefing, the Report and Recommendation, and
Plaintiff’s objection, finds Plaintiff’s objections are without merit. The Court is of the opinion the
findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the
Report of the United States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is hereby
ORDERED that Defendant John McHugh’s First Amended Motion to Dismiss (Dkt. No.
37) is GRANTED. It is further

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The Court has not ruled on Defendant’s Motion to Quash Written Discovery Requests and
for Protective Order, filed November 20, 2015. According to the motion, Plaintiff’s First Set of
Interrogatories contains 110 numbered interrogatories (exceeding 200 when including discrete
subparts), and Plaintiff also delivered 41 separate Requests for Admissions, each addressed to a
separate employee/agent of the Army. According to Defendant, none of the discovery requested by
Plaintiff is tailored to challenging the evidence before the court that Plaintiff failed to exhaust the
mandatory administrative remedies necessary to proceed with this lawsuit.
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ORDERED that Plaintiff’s above-entitled and numbered cause of action is DISMISSED

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WITH PREJUDICE. It is further
ORDERED that Taofeek Quadri is prohibited from proceeding in forma pauperis with any
new civil action in this Court regarding these claims unless he first obtains from a district judge of
this Court leave to proceed in forma pauperis. If a civil action is removed or transferred to this
Court, the case should be subject to summary dismissal unless, within 30 days of the date of removal
or transfer, Quadri seeks, in writing, leave from a district judge of this Court to proceed in this Court.
SIGNED this 11th day of January, 2016.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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