Allen v. Potter et al

Filing 23

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re 16 MOTION to Dismiss for lack of jurisdiction filed by John E. Potter. Defendant's motion to dismiss for lack of subject matter jurisdiction [Doc. #16] should be granted. This case should be dismissed with prejudice. (Ordered by Magistrate Judge Jeff Kaplan on 1/6/2009) (mfw)

IN THE I.JNITED STATESDISTRICTCOURT N O R T H E R NDISTRICTOF TEXAS D A L L A S DIVISION JOHN W. ALLEN Plaintiff, VS. JOHN E. POTTER,Postmaster Generaof the United States l
Defendant.

$ $ $ $ $ $ $ $ $ $

NO.3-08-CV-r476-D

F I N D I N G S AND RECOMMENDATION

OF THE

D e f e n d a n thas filed a motion to dismissthispro se race,age,and disability discrimination case for lack of subject matter jurisdiction. For the reasonsstatedherein, the motion should be granted. I. P l a i n t i f f John W. Allen, an African-American,was employedby the United StatesPostal S e r v i c e ("USPS") as a mail handler. Effective May 4, 2007, plaintiff was terminatedfrom his employment due to an unsatisfactoryattendancerecord. Plaintiff appealedhis termination to the M e r i t System Protection Board ("MSPB") on May 9, 2007. Following a hearing before an administrativejudge, the agencyaction was upheld. Allenv. United StatesPostal Service,Dkt. No. D A - 0 7 5 2 - 0 7 - 0 3 6 5 - I - l (Aug. 15,2007). Plaintiff then soughtreview before the full Board. His petition for review was denied on December 5, 2AQ7. Dissatisfied with the outcome of this administrative proceeding,plaintiff appealedto the United StatesCourt of Appeals for the Federal Circuit. The court affirmed the agency decision. Allen v. United States Postal Service, 287

Fed.Appx.872,2008 WL 2718263(Fed.Cir. Jul. 14,2008),cert. denied,2008WL 5046494,77 U S L W 3325(U.S.Dec. 1,2008)(No. 08-6873). O n DecemberI 1, 2007,one week after the MSPB deniedhis petition for review, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor to complain that he had been d i s c r i m i n a t e dagainstby the USPS. In a formal EEO complaintfiled on February2,2008,plaintiff which resultedin his termination,were.due to physical and a l l e g e dthat his excessiveabsences, mental disabilities, and that younger employeesand employeesof other races were treated more f a v o r a b l y in similar situations. (SeeMag. J. Interrog.#2, Attch.). An EEO officer dismissedthe plaintiff previously challengedhis termination before the complaint on procedural groundsbecause MSPB. (Id,). Although plaintiff appealedthat decision to the Equal Employment Opportunity C o m m i s s i o n("EEOC"), the appealwas terminatedafterplaintiff filed this action againstthe USPS i n federaldistrict court on August 21,2008. Defendantnow movesto dismissthis casefor lack of subjectmatterjurisdiction. As grounds that plaintiff waived his discriminationclaimsby failing to raise contends f o r its motion, defendant argues that plaintiff failed t h e issueof discriminationin his MSPB appeal.Alternatively,defendant to exhausthis administrativeremediesby not contactingan EEO counselorwithin the time required to b y agencyregulations.Plaintiff hasfiled a written response the motion andthis matteris ripe for determination.r II. T h e MSPB is an administrative agency that has jurisdiction over specific "adverse Londonv.Potter,No. . includingterminations See e m p l o y m e n tactions"affectingfederalemployees,

Although defendanthas not yet filed a reply, it is clear from the motion and responsethat plaintiff is precluded from litigating his discrimination claims in federal court. The court therefore decidesthe motion without a reply.

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(E.D. Tex. Jun.7,2007),citing 5 U.S.C. 57512. When a federal 6-05-CV-l 61,2007WL 1655325 employeeallegesthat discrimination was a componentof an adversepersonnelaction, he may file EEO office or a "mixed caseappeal"to the MSPB, e i t h e ra "mixed casecomplaint"with the agency's but the employee cannot avail himself of both remedies. See Casimier v. United States Postal WL at*2(5thCir. Jul. 1,2005)."[I]f anemployee 2Q4,2005 1553997 S e r v i c e , l 4 2Fed.Appx.201, b e l i e v e s that discrimination is a component of an adverse personnel action, the issue of discrimination must be raisedfrom the outsetirrespectiveof whetherthe employeeelectsto file with EEO or the MSPB." ld.,2005 WL 1553997at*2. A federalemployeemay obtain a h i s agency's de novo review of an MSPB decision in a "mixed case appeal" by filing a civil action in federal d i s t r i c tcourt. SeeHarms v. lR.S.,321F.3d 1001,1005(lOth Cir.), cert.denied,l24 S.Ct. 159 ( 2 0 0 3 ) ,citing 29 C.F.R. $ 1614.310(b).However,if the employeeelectsto proceedbeforethe the M S P B and doesnot raisea discriminationclaim in that forum, he waivesthe right to challenge personnelaction basedon discrimination. Casimier,2005 WL 1553997at*2. adverse EEO office who electsto file a "mixed casecomplaint"with the agency's A federalemployee m u s t contactan EEO counselor"within 45 daysofthe dateofthe matterallegedto be discriminatory action,within 45 daysof the effectivedateof the action." See29 C.F.R. o r , in the caseof personnel to $ 1614.105(aX1). Strict adherence this requirement "is the best guaranteeof evenhanded a d m i n i s t r a t i o nof the law." Gentile v. Potter, 509 F.Supp.2d221,233 (E.D.N.Y. 2007), quoting Corp., 536 U.S. l0l, 108, 122 S.Ct.2061,2070,153 L.Ed.zd 106 (2002). N a t ' l R.R.Passenger A b s e n t waiver, estoppel,or equitabletolling, the failure to timely initiate contact with an EEO c o u n s e l o r w i l l b a r s u b s e q u e n t r e v i e w o f a d i s c r i m i n a t i o n c l a i m i n f e d e r a l c oSeePachecov.Rice, urt. 9 6 6 F .2d 904,905 (5th Cir. 1992).

plaintiff elected challenge terminationbeforethe MSPB, but failed to raise In this case, his to the issue of discrimination in that forum. Although plaintiff now contendsthat he testified about d i s c r i m i n a t i o nissuesat the initial administrativehearing,(seePlf. Resp.at l), the FederalCircuit r e j e c t e dthe sameargumentin affirming the MSPB decision.Allen,2008 WL 2718263at *2 ("We agreewith the agencythat Allen does not appearto have raised a discrimination claim before the AJ."). Even if plaintiff did not waive his discrimination claim by filing an MSBP appeal,he failed
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to initiate contact with an EEO counselorin a timely manner. The record shows that plaintiff was t e r m i n a t e deffective May 4,2007. Yet he did not contactan EEO counseloruntil DecemberI l, 2001--222 dayslater. Plaintiff fails to allege,much lessprove, any basisfor tolling the 45-day time this l i m i t for initiating contactwith an EEO counselor. Consequently, action must be dismissed. RECOMMENDATION motion to dismissfor lack of subjectmatterjurisdiction [Doc. #16] should be Defendant's granted. This caseshould be dismissedwith prejudice' A copy of this report and recommendationshall be servedon all parties in the manner within l0 daysafter p r o v i d e dby law. Any party may file written objectionsto the recommendation b e i n g servedwith a copy. See28 U.S.C. $ 636(bX1);Feo. R. Cry. P.72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistratejudge that areacceptedor adoptedby the district court, except upon AutomobileAss'n,79 F .3d 1415,l4l7 (5th g r o u n d sof plain enor. SeeDouglassv. UnitedServices

C i r . 1996).
6,2009. D A T E D : January

LAN S T A T E S }VIAGISTRATE JTJDGE