Harter v. Brennan
Filing
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ORDER GRANTING IN PART AND DENYING IN PART 20 DEFENDANT'S MOTION TO DISMISS. Signed by Judge Salvador Mendoza, Jr. (CV, Case Administrator)
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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Nov 08, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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SEAN F. MCAVOY, CLERK
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JUSTIN HARTER,
No. 2:16-CV-0438-SMJ
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Plaintiff,
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v.
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MEGAN J. BRENNAN, Postmaster
General,
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ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION TO
DISMISS
Defendant.
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I.
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INRODUCTION
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Plaintiff Justin Harter was employed by the Postal Service during the holiday
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season in 2014 as a Postal Support Employee (PSE). He applied to be rehired as a
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PSE twice the following year, but was not rehired. His employment files with the
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Postal Service contain conflicting documents concerning his performance in
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2014—the first, in his file at the district office, indicates his performance was
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satisfactory; a second, in his local file, indicates that he was terminated for cause
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and given a do-not-rehire recommendation by his supervisor. Harter alleges he was
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never informed that he was terminated for cause, and that the poor performance
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ORDER - 1
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evaluation was false and fabricated as pretext for not rehiring him. He further
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alleges he was not rehired because of his race and gender.
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In this action, Harter alleges race and sex discrimination, breach of contract,
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and Civil Service Reform Act (CSRA) prohibited practices claims against
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Postmaster General Megan J. Brennan (Defendant). Defendant moves to dismiss
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Harter’s breach of contract and prohibited practice claims. Because the applicable
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provisions of the CBA do not apply to PSEs, Defendant’s motion to dismiss
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Harter’s breach of contract claim, is granted. However, because the Supreme Court
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has made clear that the appropriate forum for review of cases presenting both CSRA
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and federal antidiscrimination claims is the district court, Defendant’s motion to
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dismiss Harter’s prohibited practices claim is denied.
II.
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BACKGROUND
Plaintiff Justin Harter worked as a Postal Support Employee over the
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holiday term from November 28, 2014, to December 26, 2014. ECF No. 19 at
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3. He alleges that he was not absent or late, he had no write ups for discipline,
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and his work was satisfactory during that time. ECF No. 19 at 3. He alleges his
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employment was governed by a Collective Bargaining Agreement (CBA). ECF
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No. 19 at 3.
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At the end of this period, Harter’s supervisor Dorian Chastain included a
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“Form 50” and evaluation in Harter’s local employment records indicating that
ORDER - 2
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Harter was terminated from his seasonal employment and recommending that
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Harter not be rehired. ECF No. 19 at 3–4. The reasons for this
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recommendation included that Harter was “late often,” his “attitude was poor,”
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and he “did not follow instructions.” ECF No. 19 at 3–4. This form is not in
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Harter’s official Postal Service employment record. ECF No. 19 at 4. The
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official Form 50, kept at the Postal Service District Office, does not reflect any
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basis for termination, indicates that Harter’s work was satisfactory, and does
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not include a do-not-rehire recommendation. ECF No. 19 at 4–5. Chastain later
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acknowledged that he did not directly supervise Harter, that two of Harter’s
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three on-the-job instructors rated Harter as average, and that he never informed
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Harter that he was terminated for cause. ECF No. 19.
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Harter alleges he did not know he was terminated for cause, and so did
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not initially bring a claim before the EEO or MSPB based on the termination.
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ECF No. 19 at 4.
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Harter applied for rehiring on September 28, 2015. ECF No. 19 at 5. He
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received a passing score on the hiring exam for the position. ECF No. 19 at 5.
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On November 3, he was notified that he was not selected for rehiring because
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he failed to respond to a contact from Postal officials on October 19, 2015.
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ECF No. 19 at 5. Harter denies being contacted by any Postal employee on
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October 19, and, instead, alleges that he called about the status of his
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application that day and left a message for an HR specialist who never
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returned his call. ECF No. 19 at 5–6. He alleges that he called twice more
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before November 3 and left messages. ECF No. 19 at 6.
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HR specialist Grace Coldsnow called Harter on November 3, 2015, and
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told him that he was not selected because he failed to respond to her calls and
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told him that he had no recourse except to reapply to the next job posting. ECF
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No. 19 at 6. Coldsnow did not inform Harter that local records showed he was
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terminated for cause in December 2014 and was a non-rehire. ECF No. 19 at 6.
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Harter again applied for rehiring on November 5, 2015. ECF No. 19 at 7.
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He was interviewed on November 19 and informed on November 23 that he
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was not selected for the position. ECF No. 19 at 7. Postal Service documents
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indicate only that Harter was “not recommended.” ECF No. 19 at 7. His hiring
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exam score was higher than that of applicants who were hired. ECF No. 19 at
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7.
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Harter alleges that he was discriminated against based on his Native
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American race and his gender. ECF No. 19 at 7. He alleges his supervisors and
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instructors were aware that he was Native American because of his disclosure
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on his application that he attended Haskell Indian Nations University,
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conversations regarding his minority status, and past employment with tribal
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agencies. ECF No. 29 at 3.
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Harter filed an Equal Employment Opportunity (EEO) claim alleging
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race and sex discrimination. ECF No. 19 at 7. The agency rejected Harter’s
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claims relating to his termination as untimely. ECF No. 19 at 8; ECF No. 19-1.
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The agency rejected his claims concerning rehiring because, despite
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concluding that he made a prima facie case of sex discrimination, it found that
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the management demonstrated non-discriminatory reasons for not hiring
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Harter: (a) he did not respond to a request for an interview time for the first
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position and (b) the unfavorable employment evaluation by Chastain. ECF No.
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19 at 8; ECF No. 19-1 at 15. Harter alleges that Chastain’s evaluation was
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fabricated, and that, had he known he was terminated for cause in December
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2014, he would have pursued legal remedies at that time. ECF No. 19 at 9.
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Harter also filed an appeal with the Merit Systems Protection Board
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(MSPB), which was dismissed for lack of jurisdiction. ECF No. 26-4 at 2–4.
Harter filed this action in December 2016, alleging that the Postal
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Service’s failure to rehire him constituted discrimination in federal
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employment in violation of Title VII of the Civil Rights Act and breach of
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contract. ECF No. 1 at 10. On August 29, 2017, Harter filed an amended
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complaint adding a prohibited practice claim under 5 U.S.C. § 2302(b)(2) and
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(b)(4). ECF No. 19 at 11. Defendant moves to dismiss Harter’s breach of
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contract and prohibited practices claims. ECF No. 20.
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III.
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MOTION TO DISMISS STANDARD
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A claim may be dismissed pursuant to Rule 12(b)(6) either for lack of a
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cognizable legal theory or failure to allege sufficient facts to support a cognizable
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legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). “Threadbare recitals
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of the elements of a cause of action, supported by mere conclusory statements, do
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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to
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dismiss under Rule 12(b)(6), a complaint must allege “enough facts to state a claim
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to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007). A claim is plausible on its face when “the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for
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the misconduct alleged.” Iqbal, 556 U.S. at 678.
IV.
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B.
DISCUSSION
Harter fails to state a breach of contract claim.
“To recover for a breach of contract, a party must allege and establish: (1) a
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valid contract between the parties, (2) an obligation or duty arising under the
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contract, (3) a breach of that duty, and (4) damages caused by the breach.” San
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Carlos Irr. And Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir.
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1989). Harter alleges that his employment was governed by a CBA, 1 however, the
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The Court finds that the CBA between the Postal Service and the American Postal
Workers Union is incorporated in the First Amended Complaint by reference, and
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provisions of the CBA he relies on to support his breach of contract claim did not
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apply to him as a PSE. The CBA provides that only Articles 1, 2, 3, 5, and 7 apply
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to PSEs. ECF No. 28-2 at 14–15. Harter’s breach of contract claim relies on
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provisions of Articles 15 and 16 of the CBA. ECF No. 25 at 6–7. Accordingly,
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Harter has failed to allege a duty arising under the CBA that was breached, and his
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contract claim fails.
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B.
Harter has stated a CRSA Prohibited Practices claim
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Defendant argues that Harter’s prohibited practices claim fails because (1)
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the CSRA does not apply to PSEs and (2) the CSRA’s remedies for prohibited
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practice violations are exclusive and do not provide for review by a district court.
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ECF No. 20 at 5–7. Because PSEs are covered by the CSRA for certain purposes,
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including for the claims made in this case, and this Court is the proper forum for
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judicial review, Harter’s prohibited practices claims survive.
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1.
The CSRA covers Harter’s claims.
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In arguing that the CSRA does not apply here, Defendant cites to the
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subchapter of the CSRA addressing termination and suspension, which applies only
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to “employees,” who are defined as “an individual in the competitive service who
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is not serving a probationary or trial period under an initial appointment; or, except
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its contents may therefore be considered on this motion. See United States v.
Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003).
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as provided in section 1599e of title 10, who has completed 1 year of current
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continuous employment in the same or similar positions under other than a
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temporary appointment limited to 1 year or less.” 5 U.S.C. § 7501(2);
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7511(a)(1)(A)(ii). But Harter’s claims are made pursuant to 5 U.S.C. § 2302(b)(2)
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and (b)(4), which plainly apply to persons seeking or being considered for
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employment, not only employees. Accordingly, Harter is not barred from
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bringing an action under the CSRA on the basis that he was not an employee.
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2.
This court is the proper forum for review of Harter’s prohibited
practice claims.
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Defendant argues that the CSRA provides the exclusive remedy for all
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prohibited personnel actions, and that Harter’s only avenue for judicial review
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under the CRSA was to file a lawsuit in the Federal Circuit within 60 days of the
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MSPB’s order. ECF No. 20 at 7; 28 at 7–8. Harter argues that judicial review in
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the district court is available when the MSPB dismisses a claim for lack of
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jurisdiction. ECF No. 25 at 12.
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The Supreme Court’s recent decision in Perry v. Merit Sys. Prot. Bd., 137 S.
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Ct. 1975 (2017), clearly resolves this question in Harter’s favor. As the Court
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explained:
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If an employee asserts rights under the CSRA only, MSPB decisions,
all agree, are subject to judicial review exclusively in the Federal
Circuit. § 7703(b)(1). If the employee asserts no civil-service rights,
invoking only federal antidiscrimination law, the proper forum for
judicial review, again all agree, is a federal district court, see Kloeckner
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v. Solis, 568 U.S. 41, 46 (2012); the Federal Circuit, while empowered
to review MSPB decisions on civil-service claims, § 7703(b)(1)(A),
lacks authority over claims arising under antidiscrimination laws, see
§ 7703(c).
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137 S. Ct. at 1979. Additionally, prior to Perry the Court had clarified that a mixed
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case—presenting both CRSA and civil-rights claims—is properly heard in the
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federal district courts, not the Federal Circuit. Id. at 1984 (citing Kloeckner, 568
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U.S. at 50). Perry presented one additional issue for clarification: whether the rule
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in Kloeckner extends to cases dismissed by the MSPB on jurisdictional grounds.
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Perry, 137 S. Ct. at 1981–82. The Court stated the question as: “Where does an
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employee seek judicial review when the MSPB dismisses her civil-service case
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alleging discrimination neither on the merits nor on a procedural ground, but for
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lack of jurisdiction?” Id. at 1982. The Court’s answer was unambiguous: All mixed
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cases are properly heard in the district courts, even where the MSPB dismissed for
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lack of jurisdiction. Id. at 1987–88.
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Because this is a mixed case involving both federal antidiscrimination claims
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and CSRA prohibited practice claims, this court is the proper forum for judicial
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review.
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V.
CONCLUSION
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For the reasons discussed, IT IS HEREBY ORDERED:
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Defendant’s Motion to Dismiss for Failure to State a Claim on Counts
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2 and 3, ECF No. 20, is GRANTED IN PART AND DENIED IN
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PART as follows:
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A.
DISMISSED.
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B.
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Defendant’s motion to dismiss Plaintiff’s CSRA claim ECF NO.
19 at 11, ¶ 4.3, is DENIED.
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Plaintiff’s breach of contract claim, ECF No. 19 at 11, ¶ 4.2, is
IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
provide copies to all counsel.
DATED this 8th day of November 2017.
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__________________________
SALVADOR MENDOZA, JR.
United States District Judge
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