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Holmes v. Esper

United States District Court, D. South Carolina, Columbia Division

July 23, 2019

Tysha S. Holmes, Plaintiff,
v.
Dr. Mark T. Esper, Secretary of the Army; Department of the Army, Defendants.

          REPORT AND RECOMMENDATION

          Kaymani D. West United States Magistrate Judge.

         Proceeding pro se, Plaintiff filed an employment action against her former employer, the Department of the Army.[1] 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.

         I. Background

         This 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.

         A. Administrative EEO process applicable to Plaintiff, a federal employee

         Title 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).

         Prior 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).

         Following 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. § 2000e-16(c).

         Here, 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.[2] 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.

         B. Plaintiff's administrative actions

         As more 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.

         Further, 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, [3] 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.

         1. Plaintiff's Merit System Protection Board (“MSPB”) Actions

         a) MSPB Removal-from-Employment Action

         While not a part of the EEO Complaint being considered by this court Plaintiff's MSPB actions, related to her January 2011[4] 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 Board.

         January 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.

         January 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.

         April 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.”

         January 2, 2013MSPB AJ Yovino issued Initial Decision reversing Army's removal of Plaintiff AJ Yovino Initial Decision.

• 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 8.
• 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.

         July 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.]

         July 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.

         October 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

         January 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.

         January 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 below.)

         January 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.

         September 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. ¶ 9.

         b) PFE Action Concerning Entitlement to Interim Relief

         July 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.

         August 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.

         December 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. ¶ 11.

         2. EEO Appeal

         In considering Plaintiffs EEO Complaint, the following timeline is instructive:

         November 8, 2014, Plaintiffs EEO Complaint, ECF No. 107-1:

         Dated 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 2010.

         EEO 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 narrative form.

         November 24, 2014, EEOO November 24, 2014 Letter Response to Plaintiff (dismissing certain claims for investigation), ECF No. 107-2:

         In a 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. ...

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