United States District Court, D. South Carolina, Columbia Division
Tysha S. Holmes, Plaintiff,
Dr. Mark T. Esper, Secretary of the Army; Department of the Army, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
pro se, Plaintiff filed an employment action against her
former employer, the Department of the Army. Compl., ECF No.
1. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a
Report and Recommendation (R&R) on Defendants' Motion
for Summary Judgment, ECF No. 84, to which Plaintiff has
responded, ECF No. 95. The undersigned requested and received
supplemental briefing from both parties, ECF Nos. 107, 113,
and heard oral argument on June 26, 2019. Based on the
parties' submissions, argument, and applicable law, the
undersigned recommends that Defendants' Motion for
Summary Judgment, ECF No. 84, be granted in part and
denied in part.
matter is before the court for review of Plaintiff's
November 8, 2014 Formal Complaint of Discrimination to the
Department of the Army's Equal Employment Opportunity
Office (“EEOO”). “EEO Complaint, ”
ECF No. 107-1. Plaintiff's EEO Complaint includes claims
of alleged discrimination based on race, physical disability,
and reprisal for previous EEO activity. Id. at 1. To
consider issues as raised in Defendants' Motion for
Summary Judgment and Plaintiff's response thereto,
background regarding Plaintiff's prior administrative
actions is informative.
Administrative EEO process applicable to Plaintiff, a federal
VII creates a right of action for federal employees such as
Plaintiff alleging discrimination on the basis of race.
See 42 U.S.C. § 2000e-16 (concerning claims by
federal government employees); 29 U.S.C. § 794a
(indicating Rehabilitation Act, which concerns federal
employees' claims of job discrimination based on
disability, incorporates “remedies, procedures, and
rights set forth in” Title VII); Laber v.
Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc).
Prior to filing an action in this court, an employee such as
Plaintiff must contact an EEO counselor and seek
pre-complaint counseling within 45 days of the alleged
discriminatory action. 29 C.F.R. § 1614.105(a). If
counseling is unsuccessful, then the EEO must provide the
complainant with notice of his right to file a formal
complaint of discrimination. 29 C.F.R. § 1614.105(d).
The complainant must file any formal complaint within 15 days
receipt of the notice. 29 C.F.R. § 1614.106(b).
to a complainant's request for a hearing, a federal
agency “shall dismiss” all or part of a
discrimination charge on any number of several enumerated
grounds, including failure to state a claim. 29 C.F.R. §
1614.107(a)(1). A partial dismissal of an employee's
discrimination charge-the dismissal of “some but not
all” of the claims in a charge-“is reviewable by
an administrative judge if a hearing is requested on the
remainder of the complaint, but it is not appealable until
final action is taken on the remainder of the
complaint.” Id. § 1614.107(b).
investigation of the formal complaint, the complainant may
either request a hearing and decision from an administrative
judge or request a final decision from the agency with which
the complaint was filed. 29 C.F.R. § 1614.108(f). If the
complainant chooses the former course of action, then
“[w]hen [the] administrative judge . . . issue[s] [his
or her] decision . . ., the agency shall take final action on
the complaint by issuing a final order within 40 days of
receipt of the hearing file and . . . decision.” 29
C.F.R. § 1614.110(a). The agency's final order must
provide the complainant with notice of his right to appeal to
the EEOC and right to file a civil action in federal district
court, as well as notice of required deadlines for taking
such actions. Id. If the agency fails to issue a
final order within the required 40-day time period,
“then the decision of the administrative judge ...
become[s] the final action of the agency.” 29 C.F.R.
§ 1614.109(i). A complainant may appeal the agency's
final action to the EEOC's Office of Federal Operations
(“OFO”) within 30 days following receipt of the
final agency decision. 29 C.F.R. § 1614.402(a).
Alternatively, the complainant may “opt-out of the
administrative process . . . by filing a de novo civil
action.” Laber, 438 F.3d at 416 (citing 29
C.F.R. §§ 1614.401(a), 1614.407(a); and 42 U.S.C.
§ 2000e-16(c)). Such judicial action must be filed
“[w]ithin 90 days of receipt of notice of final action
taken by a department, agency, or unit, ”-here the
Department of the Army's EEO Decision. 42 U.S.C. §
Plaintiff chose to opt-out of the EEOC's OFO review of
the Army's Decision and filed this action for de novo
review, naming both the Department of the Army and the
Secretary of the Army as Defendants. ECF No. 1. Defendants
initially sought dismissal of Plaintiff's Complaint based
on its untimely filing. In an earlier R&R and Order
adopting same the court considered Plaintiff's Complaint
to have been timely filed and permitted this matter to
proceed. See Oct. 4, 2017 R&R, ECF No. 40; Nov.
15, 2017 Order, ECF No. 42.
Plaintiff's administrative actions
fully discussed in the court's order on Defendants'
Motion for Expenses and to Compel Plaintiff's Deposition,
see ECF No. 125, Plaintiff did not appear for her
deposition that had been noticed for several weeks before the
Motion for Summary Judgment was due and filed. Based on
Plaintiff's apparent misunderstanding of the discovery
procedure under the Federal Rules of Civil Procedure
Plaintiff neither appeared for her own deposition nor did she
take any witness depositions. This dearth of discovery-based
testimony makes decision in this matter challenging.
no party has provided a concise history of events leading up
to Plaintiff's filing the Complaint now under review.
Concision admittedly is difficult when, as here, there are
other administrative actions that touch on the issues raised
in Plaintiff's EEO action now under review. The Army has
proffered two declarations of Robert J. Barham, Esquire,
which include some factual background and attach selected
documents regarding Plaintiff's EEO action and other
administrative actions discussed herein. Plaintiff has also
provided various documents. The undersigned has reviewed all
submissions and provides the following distillation to put
potentially relevant events into context. This timeline is
intended to inform the court's analysis but does not
endeavor to be a full accounting of everything that has taken
place since Plaintiff's January 14, 2011 termination or
to catalog every document submitted. To the extent supported
by the record, these facts are construed in the light most
favorable to Plaintiff.
Plaintiff's Merit System Protection Board
MSPB Removal-from-Employment Action
not a part of the EEO Complaint being considered by this
court Plaintiff's MSPB actions, related to her January
separation from employment, a basic understanding of
Plaintiff's MSPB actions is helpful in considering the
EEO Complaint. The following is not intended to be a full
accounting of what has transpired in Plaintiff s MSPB
actions. Both MSPB actions remain on appeal to the full MSPB
13, 2011 Plaintiff began receiving compensation
under the Office of Workers' Compensation Programs
(“OWCP”). She received those payments through
December 14, 2013. See Declaration of Army Attorney
Robert J. Barham, Esq. (“Barham Decl.”) ¶ 7,
ECF No. 84-2.
14, 2011 Effective date of Plaintiffs removal from
employment with the Army as a civilian physician assistant.
See Barham Decl. ¶ 6, ECF No. 84-2; see
also FAD 5, ECF No. 31-3; Notification of Personnel
Action (SF 50) effective January 11, 2011 and approved
January 20, 2011, ECF No. 84-3 at 204.
30, 2012 Plaintiff refiled an appeal of her removal
to the MSPB. See Barham Decl. ¶ 8; Initial MSPB
Decision by Administrative Judge Lynn P. Yovino (AJ Yovino
Decision) 1, ECF No. 84-3. This action is sometimes referred
to as Plaintiff s “MSPB Removal Action” or
simply, her “Removal Action.”
2, 2013MSPB AJ Yovino issued Initial Decision
reversing Army's removal of Plaintiff AJ Yovino Initial
• AJ Yovino ordered that, if either party appealed her
decision, the Army was to “provide interim relief to
Plaintiff, effective the date of her decision and in effect
until the decision of the MSPB becomes final. Id. at
• The Army petitioned for review of the AJ Yovino
decision. The interim relief reinstated Plaintiffs employment
“with pay and benefits effective the date of the Yovino
decision, ” but the Army did not return Plaintiff to
the workplace. Barham Decl. ¶¶ 11, 12. As part of
its appeal of the MSPB Initial Decision the Army argued that
Plaintiff should not be receiving interim relief while she
was also receiving OWCP payments. Id. ¶ 12.
9, 2014 MSPB issued a Remand Order, granting the
Army's request for review, reversing AJ Yovino's
reinstatement decision, and remanding the matter for a
decision on the merits of Plaintiff s removal action. Remand
Order, ECF No. 84-3 at 15-24.
• In the Remand Order the MSPB found Plaintiff was not
entitled to interim relief because she was receiving OWCP
payments. Id. at 2 n.2, ECF No. 84-3 at 16 n.2. [As
discussed more fully below in connection with Plaintiff s
Petition for Enforcement filed in her MSPB action, contrary
to the Remand Order's statement, Plaintiff was no longer
receiving OWCP payments at the time of the Remand Order.
See Barham Decl. ¶ 14.]
24, 2014 Based on the Remand Order's reversal of
Plaintiffs reinstatement to employment the Army effected a
personnel action that ended Plaintiffs entitlement to the
interim-benefits pay awarded by AJ Yovino effective January
2, 2013-the date of the AJ Yovino Decision. See FAD
6, Barham Aff. ¶¶ 15, 16.
• The undersigned notes that how Plaintiffs status
and pay were changed at this time is part of her EEO
Complaint and is discussed within in detail.
18, 2014 Date of two letters from the federal
Defense Finance and Accounting Service (“DFAS”)
to Plaintiff seeking to collect a debt from her based on what
it termed the overpayment of her pay as “a result of a
Time and Attendance change(s).” DFAS Letter to
Plaintiff, ECF No. 84-3 at 129-32
15, 2016 Plaintiff filed a “Contested Motion
for Restoration of Interim Relief and Cancellation of Debt,
” ECF No. 84-3 at 123-88, arguing she was not required
to repay the interim relief she had received. Plaintiff
sought to have the debt cancelled. She also argued she
remained entitled to interim relief. Id.
20, 2016 MSPB AJ Richard W. Vitaris, to whom
Plaintiffs MSPB action had been reassigned upon the
retirement of AJ Yovino, ECF No. 84-3 at 254, issued an order
denying Plaintiff s request for continuation of interim
relief. AJ Vitaris January 20, 2014 Order, ECF No. 84-3 at
178-79 Indicating he believed the debt collection sought to
deprive Plaintiff of interim relief benefits that had been
ordered at the time, AJ Vitaris advised that he would docket
a separate Petition for Enforcement on this issue to be
considered separately. Id. AJ Vitaris issued an
“Acknowledgement Order” indicating he had
docketed a petition for enforcement of the interim relief
that had been ordered and setting briefing deadlines as to
the Petition for Enforcement (“PFE”).
Id. at 186-87. (Details of the PFE are discussed
27-29, 2016 MSPB AJ Vitaris conducted a hearing on
Plaintiff s Removal action. See April 22, 2016
Initial Decision of AJ Vitaris (“AJ Vitaris Removal
Decision”), ECF No. 84-3 at 25-33 April 22,
2016AJ Vitaris issued an Initial Decision on
Plaintiffs Removal action, affirming the Army's removal
of Plaintiff and finding no race discrimination. Id.
26, 2016 Plaintiff filed a petition for review of
the Vitaris Removal Decision. ECF No. 84 2 at 62-86.
• As of Barham's June 6, 2019 Supplemental
Declaration, ECF No. 107-5, Plaintiff s Petition for Review
of AJ Vitaris's decision to uphold her removal from
service remains pending before the MSPB. Barham Suppl. Decl.
PFE Action Concerning Entitlement to Interim Relief
21, 2016After receiving additional briefing as to
the PFE, see ECF No. 84-3 at 189-252, AJ Vitaris
issued an Initial Decision granting in part and denying in
part the relief sought by Plaintiff, AJ Vitaris PFE Decision,
Id. at 253-62 (“Vitaris PFE Decision”).
• AJ Vitaris found that Plaintiff was entitled to
interim relief for the period of time between AJ Yovino's
order of reinstatement and the July 2014 Remand Order, to
the extent she was not also receiving OWCP payments.
Accordingly, for the period from when Plaintiffs OWCP
payments ended until the date of the July 2014 Remand Order,
Plaintiff was entitled to interim relief (salary) payments.
Accordingly, DFAS was to cease any collection efforts for
that period of time, which AJ Vitaris termed “Period
Two.” Id. at 257. For “Period One,
” that is the time from the AJ Yovino's order of
reinstatement while Plaintiff was receiving OWCP payments, AJ
Vitaris determined Plaintiff was not entitled to receive
interim relief as well. Id. at 256. AJ Vitaris
ordered DFAS to cease collection efforts for Period Two,
“the period from December 14, 2013 through July 9,
2014.” Id. at 258.
17, 2016 The Army filed a petition for review of AJ
Vitaris's PFE Decision, seeking only to correct alleged
typographical errors in that decision that would impact the
period of time for which Plaintiff was to be paid.
ECF No. 84-3 at 266-73.
• The Army indicates the date of the AJ Yovino decision
was January 2, 2013, making that the date on which Plaintiff
had been reinstated and, hence, the beginning date of
“Period One.” Id. at 267-68.
• The Army also indicates the end of Period One should
be December 14, 2013, which was the last date Plaintiff
received OWCP benefits. Based on this change, “Period
Two” would begin on December 15, 2013 and run through
July 9, 2014.
2, 2016 Plaintiff filed a Petition and Cross
Petition for Review of AJ Yovino's PFE Decision. ECF No.
84-3 at 276-99. Essentially, Plaintiff argues the Army has
not complied with the PFE Decision and that Plaintiff should
not be required to repay any of the interim relief sought.
• In this filing Plaintiff references an issue with her
unpaid leave. Id. at 277, 279. Plaintiff indicates
she had raised the issue of her unpaid leave before AJ
Yovino, but he had not addressed it in the PFE Decision.
Id. at 279. As with the Army's Petition for
Review, Plaintiff's Cross Petition for Review
remains pending before the MSPB. Barham Suppl. Decl.
considering Plaintiffs EEO Complaint, the following timeline
8, 2014, Plaintiffs EEO Complaint, ECF No. 107-1:
November 8, 2014, and received by the Army's EEO Office
on November 10, 2014, on the EEO Complaint form Plaintiff
checked certain boxes (and included the underlined
information) claiming she was discriminated against based on:
Race Black, Physical, Neck/Shoulder, and
Reprisal (prior EEO activity) Filed previous November
Complaint 1. The EEO Complaint Form included a box in which
Plaintiff was permitted to explain her claims. She filled the
allotted space and includes an additional page (see
ECF No. 107-1 at 1, 4). On the Complaint Form, Plaintiff
numbered her claims 1 through 4; her claims listed on the
carry-over page are not numbered but are written in a more
24, 2014, EEOO November 24, 2014 Letter Response to
Plaintiff (dismissing certain claims for investigation), ECF
detailed letter dated November 24, 2014, EEO Officer Samuel
“Mike” Good, Jr. wrote Plaintiff in reference to
her November 8 Formal Complaint and identified six claims
that were included in Plaintiffs EEO Complaint.
1) On 11 August 2014, you were denied reinstatement as a
Physician Assistant by MAJ Wilson and MAJ Michael Barton
based on advice from Attorney L. Patricia Smith (Agency
Representative) and Ms. ...