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Manning v. McDonald

United States District Court, M.D. Tennessee, Nashville Division

February 14, 2017

ROBERT A. McDONALD, Secretary, Department of Veterans Affairs, Defendant.


          Aleta A. Trauger, Judge

         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 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 (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 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.)

         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 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]

         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 ...

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