Opinion
No. 99 C 7422.
March 12, 2001.
MEMORANDUM OPINION AND ORDER
This case is before the Court on the Fed.R.Civ.P. 56 Motion for Partial Summary Judgment brought by defendant, the Department of Veterans Affairs. For the following reasons, defendant's motion is granted.
BACKGROUND
In response to the motion for a more definite statement filed by the Department of Veterans Affairs ("VA"), Westmoreland submitted a "Compliance with the Judge's Order for a More Definite Statement." We will view this document as an Amended Complaint.
In his Amended Complaint, Westmoreland alleges that he is entitled to relief because the VA failed to reasonably accommodate his medical condition under the "Disability Act of 1990." He alleges that he was required to work in a decontamination area where the temperature would rise above 120 degrees Fahrenheit. Plaintiff alleges that he could have lost his life because of hypoglycemia. He also alleges that the working conditions directly led to him taking sick leave. Finally, plaintiff alleges that the VA retaliated against him when he brought allegations to the media about wasteful expenditures by the VA.
Westmoreland requests that we reverse a charge of him being away without leave, enter judgment against the VA, require the VA to pay retirement benefits of $29,000 plus compounded interest, determine that the VA retaliated against a whistle blower, order a payment of $300,000, and restrain the VA from taking any other retaliatory action.
Our Local Rule 56 guides litigants in making submissions to the court on a motion for summary judgment. The rule directs a party opposing a Rule 56 motion to file (1) a response to each numbered paragraph of the moving party's statement of material facts, and (2) a statement of any additional facts that require the denial of summary judgment. Plaintiff has neither responded to the VA's statement of material facts nor submitted a statement himself. Although he is pro se, he still must comply with our Local Rules. Saunders v. Washington, No. 95 C 50157, 1997 U.S. Dist. Lexis 16783 at *2 (N.D.Ill. Oct 24, 1997). In the instant case, the VA provided Westmoreland with detailed instructions explaining how to comply with our Local Rule and provided him with a copy of Local Rule 56. Therefore, for the purpose of the instant motion, we take the VA's Statement of Material Facts as true.
Jerry Westmoreland is a current employee of the VA. On March 28, 1997, the VA notified him of its proposal to remove him from federal employment. The basis of the removal was Westmoreland's alleged failure to follow proper leave requesting procedure, his absences from work without leave on three occasions and his unauthorized use of government property. Westmoreland submitted a written response to the proposed removal. In the response brief he claimed that the VA was proposing to remove him for making statements about VA mismanagement to the public. Westmoreland also contested the removal orally.
Westmoreland states that he is a diabetic and occasionally suffers from severe bouts with the disease. He alleged that two of the three absences were caused by his lapse into a "semi comatose" state.
On June 4, 1997, the VA issued its final agency decision and discharged Westmoreland. He filed a timely appeal with the Merit Systems Protection Board ("MSPB"). An Administrative Judge dismissed the appeal for lack of jurisdiction. Westmoreland moved for review of that decision. The MSPB denied the petition, but vacated the initial decision and remanded the appeal for further proceedings.
On remand, the Administrative Judge held a hearing. At the hearing, Westmoreland testified that he failed to report to work or notify his superior of his absence on March 7 and March 27 because his high level of glucose made him drowsy. The Administrative Judge affirmed the VA's decision to fire Westmoreland.
Westmoreland filed a petition for review and alleged that the Administrative Judge erred in two ways. First, he alleged that the Administrative Judge erred in holding that the VA did not have to grant leave to him while he was allegedly incapacitated by illness. Second, he alleged that the Administrative Judge erred in holding that the agency did not retaliate against him. Westmoreland did not raise any issues regarding the alleged unhealthy working environment, the Rehabilitation Act, or compensatory damages.
On September 30, 1999, the MSPB issued its final decision denying Westmoreland's petition for failure to comply with the review requirements of 5 C.F.R. § 1201.115. However, the MSPB considered whether the disciplinary penalty of dismissal should have been mitigated. It ruled that, in light of Westmoreland's offense, dismissal was not a reasonable penalty and substituted a thirty-day suspension. The MSPB ordered the VA to pay back pay, interest and other benefits to Westmoreland.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ P. 56(c). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The nonmoving party must then set forth specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In making this determination, the Court must draw every reasonable inference from the record in the light most favorable to the nonmoving party and should not make credibility determinations or weigh evidence. Association Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 268, 270 (7th Cir. 1994). The nonmoving party must support its contentions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case and on which that party will bear the burden of proof at trial. The production of only a scintilla of evidence will not suffice to oppose a motion for summary judgment. Anderson, 477 U.S. at 252.
The Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 950454, 92 Stat. 1111, contains a comprehensive framework for handling the complaints of civil service employees faced with adverse personnel decisions. United States v. Fausto, 484 U.S. 439 (1988), Ayrault v. Pena, 60 F.3d 346, 347 (7th Cir. 1995). The CSRA preempted existing remedies for all federal employees. LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir. 1995). Congress has clearly delegated the task of interpreting the CSRA to the Merit Systems Protection Board and the Federal Circuit. Ayrault, 60 F.3d at 348. An employee who wishes to complain of an adverse personal decision must first appeal to the MSPB. 5 U.S.C. § 7513(d), 7701(a). Complaints about the MSPB must be brought before the Federal Circuit. 5 U.S.C. § 7703. However, an exception exists if the plaintiff properly alleges a discrimination claim. 5 U.S.C. § 7703(b)(2), Randle v. Bentsen, 19 F.3d 371, 374 (7th Cir. 1993).
An employee who intends to pursue a mixed case, a case involving both an adverse employment action and a related discrimination claim, has two options. The employee must choose between filing a "mixed complaint" with his agency's Equal Employment Opportunity office and filing a "mixed case appeal" directly with the MSPB. 29 C.F.R. § 1614.302(b), Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). Either the EEO office or the MSPB can and must address both the discrimination claim and the appealable personnel action. 5 U.S.C. § 7702. In this case, Westmoreland could have included his employment discrimination claim in his case before the MSPB. He would have been allowed to appeal that decision either to the Court of Appeals for the Federal Circuit or this Court, assuming he stated a claim for employment discrimination. Alternatively, he could have filed a complaint with the VA's EEO office. If he had filed an EEO complaint, then he could have brought the entire matter before this court.
Westmoreland initiated an action before the MSPB, but he did not appeal it to the Federal Circuit. Instead, he filed a Complaint before this Court. The VA argues that Westmoreland has not exhausted administrative remedies because he did not bring his claims under the Americans with Disabilities Act, Rehabilitation Act, or his claims for compensatory damages before the MSPB. Westmoreland argues that this is a "mixed case" and that he is entitled to bring an action before this Court because the MSPB took more than 120 days to issue a final decision.
The instant case involves a unique factual situation. Westmoreland never exhausted his administrative remedy by bringing his claim before the Equal Opportunity office. Therefore, we examined the record of the administrative proceedings to determine whether he brought his discrimination case before the MSPB. After an exhaustive review of the record and the parties' opposing briefs it is clear that Westmoreland never raised the discrimination issue before the MSPB. Westmoreland argues that he did bring the issue of disability discrimination before the MSPB. As proof, he cites the fact that the VA requested his medical records and the fact that medical testimony was provided during the hearing. It is clear from the record that the VA requested and reviewed those records and submitted the medical testimony to counter Westmoreland's claim that he failed to report into work or call in sick because he was in a semi-comatose state as a result of his diabetic condition.
Westmoreland failed to make any reference to the record that could buttress his claim of having raised the issue of discrimination before the MSPB. In fact, the VA references testimony that Westmoreland gave to the Administrative Judge in which he admits that his absences were not due to his working condition and that his "glucose is unstable and sometimes it just, it goes up. And when that happens, you know, you have a problem." The Administrative Judge specifically asked Westmoreland whether he was arguing that his problems could have been solved by a "reasonable accommodation" and he answered that the lack of a reasonable accommodation did not cause his absences. Therefore, the VA never had the opportunity to address Westmoreland's discrimination claims before the Administrative Judge, the MSPB or the EEO office. Westmoreland has failed to exhaust either track of administrative remedies.
Exhaustion of administrative remedies is a requirement under the ADA. 42 U.S.C. § 2000e-f(e)(1), applied to the ADA in 42 U.S.C. § 12117(a); 29 C.F.R. § 1601.12(b). Exhaustion is also required under the Rehabilitation Act. Smith v. United States Postal Serv., 742 F.2d 257, 258-62 (6th Cir. 1984). When analyzing the disposition of mixed cases, Courts have found that the statutory provisions of the CSRA and its legislative history "indicate a clear Congressional preference for combining various aspects of a single agency determination under one review proceeding, both in the administrative and judicial channels." Christo v. Merit Sys. Protection Bd., 667 F.2d 882, 883 (10th Cir. 1981).
Exhaustion of administrative remedies against a public employer is not a jurisdictional requirement, but is a precondition, like a statute of limitations. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-6 (1990); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000). Therefore, the requirement is subject to equitable estoppel. Gibson, 201 F.3d at 994. However, equitable estoppel against the government is disfavored. Id. In order to show that he qualifies for equitable estoppel against the VA, Westmoreland must show that the government has engaged in affirmative misconduct. Id. Westmoreland has not claimed affirmative misconduct. His argument is that he could not ask the MSPB for damages. He is wrong. The MSPB has the authority to grant compensatory damages in mixed review cases which involve allegations of discrimination. Crosby v. United States Postal Serv., 78 M.S.P.R. 263, 264 (1998). Even if the MSPB does not have the power to grant compensatory damages, Westmoreland still had to bring his claim before one of the two administrative review bodies. We find that Westmoreland has not satisfied the precondition of exhausting remedies and, therefore, he cannot bring his discrimination claim before this Court.
Westmoreland argues that he could bring his case before this Court because the MSPB took more than 120 days to come to a final decision. He cited Butler v. West for his argument. Butler, 164 F.3d at 643. However, Butler only stands for the proposition that the plaintiff is statutorily empowered to bring a parallel action in the District Court if the MSPB takes more than 120 days to reach a final decision. Id.
The VA requests that, if we find that Westmoreland has failed to exhaust administrative remedies on his discrimination claim, we transfer this case to the Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1631. The Federal Circuit has jurisdiction over Westmoreland's nondiscrimination issues. Since we are granting the VA's motion for summary judgment, we will transfer this matter to the Court of Appeals for the Federal Circuit.
CONCLUSION
The VA's motion for summary judgment is granted. Plaintiff has failed to satisfy a precondition to bringing his discrimination claims before this court because he failed to bring them either before the Equal Employment Opportunity office or before the MSPB. Therefore, he failed to exhaust his administrative remedies. Pursuant to 28 U.S.C. § 1631 we order the remaining portions of this case transferred to the Court of Appeals for the Federal Circuit. Those portions include Westmoreland's claim of retaliatory discharge and his challenge to the characterization of his absences as away without leave.