REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Chief Magistrate Judge.

This cause is before the court upon a Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Summary Judgment, with incorporated memorandum of law (ECF No. 15), filed by Defendant Raymond E. Mabus, Secretary of the Navy ("Secretary Mabus" or "Mabus"). Secretary Mabus also filed a separate Statement of Facts and supporting evidentiary materials (ECF Nos. 16, 17). Plaintiff James R. Welcome ("Welcome"), a non-prisoner proceeding pro se, filed a response in opposition to the motion and submitted a "Statement of Facts Relied upon in Support of Plaintiff's Objections to Defendant's Motion to Summary Judgment" and supporting evidentiary materials (ECF Nos. 26, 27). The case was referred to the undersigned magistrate judge for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(E); 28 U.S.C. § 636(b)(1)(B), (C). Upon review of the parties' submissions, it is the opinion of the undersigned that the motion filed by Mabus should be granted.

I. GENERAL BACKGROUND

Welcome commenced this employment discrimination action on March 23, 2015. He paid the filing fee in full. He asserts single-motive claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as codified at 42 U.S.C. § 2000e et seq., based upon his gender (male), race (African American), and disability ("Diabetic") (see ECF No. 1 at 3-4, 6). He alleges that the discrimination and retaliation occurred in the form of harassment, a hostile work environment, and unequal treatment, among other forms (id.). As relief, he asks that Mabus "make [him] whole, as if discrimination not happen [sic]"; he also seeks back pay, front pay, and "compensatory and punitive damages for Agency's blatant disregard for the law, [Welcome's] lost of [sic] enjoyment of life, and causing a chilling effect to the complaint process" (id. at 8).

On October 1, 2015, Secretary Mabus filed the instant motion to dismiss or, in the alternative, for summary judgment. Mabus' motion and supporting exhibits are exceptionally voluminous, totaling well over 1000 pages. They generally reflect that Welcome pursued multiple administrative and civil actions during his employment with and subsequent separation/retirement from the Department of the Navy.1 More particularly, and in support of Mabus' argument that the instant action should be dismissed because this court lacks jurisdiction over Welcome's claims or on summary judgment, Mabus submitted materials showing that Welcome has filed at least ten claims against the Navy, including claims before this federal court,2 the Equal Employment Opportunity Commission ("EEOC" or "EEO"), the Merit Systems Protection Board ("MSPB"), and the Federal Circuit Court of Appeals.

Secretary Mabus seeks dismissal on three grounds. He contends: (1) that by appealing an adverse decision of the MSPB to the Federal Circuit, Welcome waived his right to bring his discrimination claims in this district court, and thus this court lacks jurisdiction over them; (2) that regardless of the waiver issue, some of the claims Welcome brings here have already been heard by the Federal Circuit as part of Welcome's appeal of the MSPB's decision; and (3) that to the extent the discrimination claims raised here were not part of the MSPB action, the claims were not properly exhausted through the EEOC and thus are barred. Alternatively, Mabus argues he is entitled to summary judgment on any claim over which this court has jurisdiction and which was administratively exhausted.

On October 2, 2015, this court issued an advisory order concerning summary judgment, which provided Welcome with information concerning Rule 56 review and afforded him an opportunity to respond to Secretary Mabus' motion for summary judgment and to dismiss (see ECF No. 18). As noted above, Welcome filed a response and a separate supporting statement of facts and supporting evidentiary material (ECF Nos. 26, 27).

The undersigned concludes that Welcome's claims are subject to dismissal because Welcome waived them. Alternatively, Secretary Mabus' motion for summary judgment is due to be granted.

II. LEGAL STANDARDS

A. Motion to Dismiss Standard

In determining whether dismissal is warranted under Fed. R. Civ. P. 12(b)(6), the allegations of the complaint are taken as true and are construed in the light most favorable to the non-moving party. See Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). To survive dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009) (quotation and citation omitted). A claim is plausible on its face where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). Plausibility means "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quotation and citation omitted).

The determination of whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). The pleader is not entitled to relief "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id. (citing Fed. R. Civ. P. 8(a)(2)). The court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 678 (quotation and citation omitted). And "bare assertions" that "amount to nothing more than a formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Id. at 681 (quotation and citation omitted). Stated succinctly:

Id. at 679.

B. Summary Judgment Standard

In order to prevail on a motion for summary judgment, the moving party must show that the nonmoving party has no evidence to support his case or present affirmative evidence that the nonmoving party will be unable to prove his case at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party successfully negates an essential element of the nonmoving party's case, the burden shifts to the nonmoving party to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id., 477 U.S. at 248. A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. The nonmoving party must show more than the existence of a "metaphysical doubt" regarding the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L. Ed. 2d 538 (1986). Speculation or conjecture from a party cannot create a genuine issue of material fact. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). "A mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment." Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004); see also Celotex Corp., 477 U.S. at 317. The nonmoving party must either point to evidence in the record or present additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. See id.; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997) (Rule 56 requires the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, documents, affidavits or declarations, admissions, interrogatory answers or other materials on file, designate specific facts showing that there is a genuine issue for trial); Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994).

Evidence presented by the nonmoving party in opposition to the motion for summary judgment, and all reasonable factual inferences arising from it, must be viewed in the light most favorable to him. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999). Nonetheless, the nonmoving party still bears the burden of coming forward with sufficient evidence of every element that he must prove. See Celotex Corp., 477 U.S. at 317. A motion for summary judgment should be granted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322.

With regard to the factual positions asserted by the parties, the court must apply the standard set forth in Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:

Fed. R. Civ. P. 56(c) (2010). Facts asserted in hearsay statements which are not subject to a hearsay exception, and thus would not be admissible in evidence, are insufficient to show that a fact is genuinely disputed.

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court will consider the fact undisputed for purposes of the motion for summary judgment, or grant summary judgment if the moving party's motion and supporting materials—including the facts considered undisputed—show that the moving party is entitled to it. See Fed. R. Civ. P. 56(e)(2, 3) (2010).

III. CLAIMS AND ALLEGATIONS RAISED BY WELCOME IN THE COMPLAINT

Welcome, an African American male, alleges he was employed by the Navy as a federal civil service employee at the Fleet and Family Support Center ("FFSC") onboard NASP as a Transition Assistant Management Program Manager GS-0301-11/Work and Family Life Specialist Supervisor GS-0101-11 from July 25, 1995, through June 5, 2009 (ECF No. 1 at 4). His first line supervisors were Candice E. Carrier, a white female, from November 1996 to January 2005, and Bobbie Simpkins, also a white female, from January 2005 to June 5, 2009, and from February 13, 2011, to February 7, 2012 (id. at 4-5). Welcome alleges that on June 5, 2009, he transferred to Japan "until he became ill and returned to the FFSC in February 2011" (id. at 5).

Welcome states that in September of 2007, he testified for Yonna Diggs, a black female under Welcome's supervision, who had filed an EEO complaint against Ms. Carrier and Ms. Simpkins (ECF No. 1 at 5). According to Welcome, "the EEOC awarded Ms. Diggs and cited the FFSC for racial discrimination, sexual harassment and hostile work environment" (id.). Welcome alleges that he and "(white male) GS-0185-11 FFSC employee" Garland Hill had been walking for exercise during lunch for approximately eighteen months, but on October 5, 2007—or, the week after Welcome testified for Ms. Diggs—Ms. Simpkins advised Welcome, without "any prior warning or notice of her decision," that if he wished to continue walking during his lunch break he would need to take leave (id.).3

Welcome next alleges that in March 2008 all NASP employees at GS-11 or higher were converted to the National Security Personnel System (ECF No. 1 at 5). He claims that he received a lesser rating and pay raise than "the other two white female supervisors and two other employees" (id.). Welcome additionally contends that he was not "properly compensated for his comp time earned on 1/14/2009 by Ms. Simpkins" (id.).

Continuing, Welcome states that in December of 2010 he returned to the United States from Japan to attend a funeral and that on December 21, 2010, he visited the FFSC (ECF No. 1 at 5). He claims that Ms. Simpkins approached him while his was talking to his former FFSC employees, advised him that he was disturbing the workers, advised him that he could talk to them on their lunch breaks, and suggested that he leave the building (id.).

Welcome next contends that in or about January or February 2011 he "became sick and had to return to the United States to have emergency surgery" (ECF No. 1 at 5). He states that on February 2, 2011, he sent Ms. Simpkins an email requesting sick leave on February 14, 2011, his arrival date (id.). According to Welcome, Ms. Simpkins responded on February 8, 2011, stating that she would approve three days only (id.). She noted, however, "as soon as medical documentation is received from [Welcome's] doctor stating [his] diagnosis, prognosis, and expected date of return to full duty, she would approve anything over three days" (id.). Welcome contends that his physician did not know how much time he "would need and his condition before surgery" and that the surgery was scheduled for February 18, 2011 (id.). Welcome then states the following, which is repeated verbatim here because it is somewhat confusing:

(id.). Welcome states that on February 25, 2011, Ms. Simpkins faxed him thirteen pages which contained his new position description, a request for additional medical documentation, and a "Fit for Duty Requirement," portions of which she apparently wished to receive back from Welcome by March 11, 2011 (see id.). Welcome states he saw a psychologist on March 7, 2011, and that on March 8, 2011, he delivered a letter from the psychologist to the office of Captain Christopher Plummer, the Commanding Officer of NASP, which letter stated that Welcome had anxiety over the prospect of returning to the FFSC, because the environment there was hostile to him, and that he needed to be moved to a new workplace (id. at 6). Welcome appears to allege that he wanted to speak with Captain Plummer about the issues raised in the letter, but the "executive Office [sic]" responded by stating that "neither he," nor Captain Plummer, would respond to Welcome's "request but for him to return to work in the FFSC with a positive outlook and a clean slate" (id.).

Next, Welcome states that on October 28, 2011, Ms. Simpkins faxed him a letter with the subject "Duty Status," and noted therein that he had been on approved sick leave since February 14, 2011, that his position was being filled by a temporary employee, that she could no longer permit a drain on manpower and fiscal resources, and that if Welcome did not return to work by November 14, 2011, she was going to propose his removal for excessive approved absences (ECF No. 1 at 6-7). Welcome was additionally advised that in order to return to work he would need to provide a written and signed release to return to work from his physician, and Ms. Simpkins provided Welcome with a form to complete if he wished to "invoke his Family Medical Leave Act entitlement" (id. at 6).4

Welcome alleges that he received a "Notice of Proposed Removal," dated January 6, 2012, from Ms. Simpkins, which reflected a "proposal to separate [Welcome] from federal civil service for inability to perform the duties of his position as Work and Family life Supervisor, GS-0101-11, due to excessive approved leave" (ECF No. 1 at 6). Welcome then received a "Decision on [P]roposed Removal," dated February 7, 2012, from Commander Greg Thomas, Executive Officer, NASP, stating that Welcome was removed from his federal civil service position immediately and that his removal would promote the efficiency of the service (id.).

Finally, Welcome alleges that after he received the removal decision, he discovered information, pursuant to a Freedom of Information Act request, which supported his claim that his separation from the Navy was the result of a hostile work environment created at the FFSC. For example, Welcome alleges he discovered that the NASP command had: (1) conducted an investigation regarding his visit to the FFSC in December 2010 without his knowledge; (2) barred him from the FFSC building during working hours; (3) and accused him of breaking into the FFSC building during the weekend of February 12-13, 2011, upon his return to the United States (ECF No. 1 at 6). Welcome also alleges he discovered that: (1) Ms. Simpkins solicited statements from FFSC staff regarding Welcome's return to work in the FFSC; (2) FFSC staff responded to Ms. Simpkins by writing letters and memoranda for the record stating that Welcome "will be coming to a very hostile environment and that no one wants him to be present in the FFSC building"; (3) Ms. Simpkins stated to several FFSC employees that she intended to place Welcome in a small office across the hall from her and harass him until he blew up; and (4) Ms. Simpkins told FFSC employees that as long as she was the FFSC Director Welcome would never be promoted (id.).

Based on the foregoing allegations, Welcome raises the following ten5 claims in his Title VII complaint:

(ECF No. 1 at 6-7 (Claims); see also ECF No. 1 at 4-6 (Statement of Facts)).

Welcome states he filed formal charges of discrimination with the EEOC on December 13, 2007, February 20, 2009, and June 3, 2011 (ECF No. 1 at 3). He states that on December 19, 2014, and March 17, 2015, the EEOC issued final decisions notifying him of his right to file a federal civil action ("notice of right to sue"), and he attached the notices to his complaint (id. at 4, 9-18). The decision issued on December 19, 2014 was Welcome v. Mabus, Appeal No. 0120112369, EEOC No. 420-2009-00146X, Department of Navy ("DON") Nos. 08-00204-00176 and 09-00204-01989 (id. at 9-13). The decision issued on March 17, 2015 was Welcome v. Mabus, Appeal No. 0120122968, EEOC No. 420-2012-00087X, DON No. 110020402357 (id. at 14-18).7

IV. DISCUSSION

A. Waiver of Discrimination Claims Related to Welcome's Separation from the Navy

On February 7, 2012, the Navy notified Welcome that he was removed from federal civil service, effective immediately, due to excessive approved absence (ECF No. 17-3, Ex. 39, Decision on Proposed Removal). Welcome was notified of his appeal rights as follows:

(ECF No. 17-3, Ex. 44, Corrected Notice of Employee Rights).8

On February 23, 2012, Welcome filed an appeal with the MSPB, Docket Number AT-0752-12-0317-I-1, challenging the Navy's action of removing him from federal civil service (see ECF No. 17-4, Ex. 73). Welcome claimed that he was wrongfully removed from federal civil service, in part, because the removal was based upon sick-leave that had been approved (id.). In Welcome's reply brief to the Navy's response to his initial pleading, Welcome asserted claims of discrimination, alleging that he was removed from his federal civil service job because of his race, retaliation, and hostile work environment (ECF No. 17-4, Ex. 79). On April 18, 2012, the Administrative Judge ("AJ") issued an initial decision, dismissing the appeal as moot, because prior to the Navy's removal decision, Welcome applied for voluntary retirement, and the voluntary retirement was approved; therefore, the Navy rescinded its removal decision and deleted all references to that decision from Welcome's official personnel file (id.). Welcome filed a petition for review of the AJ's decision with the MSPB. In a decision issued on February 5, 2013, the MSPB determined that Welcome was not removed from service but instead retired and thus his appeal was moot (ECF No. 17-4, Ex. 74).

On March 30, 2012, during the processing of that MSPB appeal, Welcome filed a submission which he alleged that his retirement was involuntary (see ECF No. 17-4, Ex. 76). The AJ construed the submission as a separate appeal, Docket Number AT-0752-12-0469-I-1, and issued an initial decision on June 1, 2012, dismissing the appeal, because Welcome failed to overcome the presumption that his retirement was voluntary (id.). Welcome filed a petition for review of the AJ's decision with the MSPB. In a decision issued on February 5, 2013, the MSPB ultimately determined that Welcome's retirement was voluntary and not appealable (see ECF No. 17-4, Ex. 76).

Although Welcome primarily challenged the nature of his separation from the Navy in the MSPB proceedings, he also raised allegations of discrimination and retaliation. For example, as noted in Final Orders of the MSPB dated February 5, 2013, Welcome argued—in seeking review of the AJ's dismissal of both appeals—that his appeals should not be dismissed because "there [were] outstanding issues of unlawful discrimination" (see ECF No. 17-4, Ex. 74, p.2). Additionally, Welcome specifically argued in his petition for review of the AJ's dismissal of his alleged involuntary retirement appeal, that "he was coerced to retire because of racial discrimination and retaliation for his prior protected . . . EEO activity" (ECF No. 17-4, Ex. 76, p. 2). The MSPB rejected Welcome's claims of racial discrimination and retaliation because he raised them for the first time in his petitions for review (see ECF No. 17-4, Exs. 74, 76). The MSPB explained however, in affirming the dismissal of his alleged involuntary retirement appeal, that even considering the claims of discrimination and retaliation, Welcome would not be entitled to relief because he had failed to demonstrate that the Navy made his working conditions so unpleasant that his separation from service was involuntary (ECF No. 17-4, Ex. 76, p. 3). More specifically, the MSPB stated the following:

(ECF No. 17-4, Ex. 76, p. 3) (internal references to MSPB record omitted). Although the MSPB noted that Welcome specifically identified only the incident of October 5, 2007, as a discreet incident of discrimination or retaliation, the record of the MSPB proceedings shows that Welcome additionally referenced or relied upon the following facts or circumstances in presenting his arguments to the MSPB, which he has also alleged in his employment discrimination complaint filed in this Court: (1) "[Welcome's] feeling that his work environment [at the FFSC] would be hostile"; (2) his visit to the FFSC in December 2010; (3) the Commanding Officer's receipt of the letter from Welcome's Licensed Mental Health Counselor; (4) the indication in that letter "that [Welcome] could perform the duties of his job in a hostile free work environment"; (5) the Agency's and/or Commanding Officer's refusal to respond to that letter; (6) the "Executive Officer" of NASP cancelling a meeting with Welcome; (7) Welcome's allegedly improper receipt of "propos[ed] [] removal[s]" from his position instead of an offer to place him a non-hostile working environment as suggested by his counselor; and (8) that "he [presumably the Commanding Officer or Executive Officer] was aware of the history in the FFSC." See Welcome v. MSPB, No. 13-3093 (Fed. Cir.), MSPB Reply Brief attachments, ECF Nos. 20-3 at 22-23, 20-5 at 20 (in the MSPB proceedings, Welcome also referenced a letter from his mental health counselor to the "Commanding Officer," in which the counselor expressed his opinion that Welcome could perform his job in a hostile-free work environment, and Welcome referenced the Navy's lack of response to the letter).9

Welcome appealed both MSPB decisions to the Federal Circuit Court of Appeals, by filing a petition for review on April 1, 2013. See Welcome v. MSPB, No. 13-3093 (Fed. Cir.), Petition for Review, ECF No. 1. The Federal Circuit found that the MSPB did not err in holding that Welcome failed to rebut the presumption that his retirement was voluntary and not appealable. See Welcome v. Merit Sys. Protection Bd., 542 F. App'x 940, 944 (Fed. Cir. 2013). It thus affirmed the decision of the MSPB, concluding—in short—that Welcome's retirement was not involuntary; it also affirmed the MSPB's other final decision dismissing Welcome's removal appeal as

Section 7702 of Title 5 of the United States Code governs the prosecution of a "mixed case," which is "an adverse personnel action subject to appeal to the MSPB coupled with a claim that the action was motivated by discrimination." Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (citing 5 U.S.C. § 7702). "The MSPB and EEOC regulations that structure the prosecution of mixed cases are extremely complicated, but they can be reduced to a decision tree, albeit a somewhat elaborate one." Id.

The employee's first decision in the tree is electing a forum in which to proceed. Butler, 164 F.3d at 638. The employee may file a "mixed-case appeal" with the MSPB or a "mixed-case complaint" with the agency EEO office, but not both.10 Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009) (citing 5 U.S.C. § 7702; 29 C.F.R. § 1614.302(b) (2008); McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995)); Butler, 164 F.3d at 638 (citing 29 C.F.R. § 1614.302(b)). Although the MSPB does not have jurisdiction over discrimination claims that are not related to adverse actions, it may entertain appeals in "mixed cases," where an employee alleges a Title VII violation in relation to one of the specified adverse employment actions.11 Chappell v. Chao, 388 F.3d 1373, 1374 (11th Cir. 2004) (citations omitted). Indeed, in either a mixed case appeal or a mixed case complaint, Section 7702 directs the MSPB or the agency EEOC office to consider both the adverse-personnel action and the related discrimination claim. See Butler, 164 F.3d at 638 (citation omitted).

If the employee elects to pursue a mixed-case appeal with the MSPB, the employee first receives an initial decision from an MSPB administrative judge ("AJ"). Butler, 164 F.3d at 638 (citing 5 C.F.R. §§ 1201.41(b), 1201.111). If dissatisfied with the initial decision, the employee may petition the MSPB for review. Id. at 639. The MSPB then issues a final decision, either by denying the petition and rendering the initial decision final, or by granting the petition and issuing its own decision. Id. (citing 5 C.F.R. § 1201.113(b)-(c)).

If the employee remains dissatisfied, the next fork in the decision tree is options for appeal: the employee may appeal the entire case to federal court, appeal only the discrimination claim to the EEOC, or appeal the adverse-personnel action to the Federal Circuit. Butler, 164 F.3d at 639 (citing 5 U.S.C. § 7703(b); 5 C.F.R. §§ 1201.120, 1201.157, 1201.175; 29 C.F.R. § 1614.310(b)); Pueschel, 577 F.3d at 563 (citing 5 U.S.C. § 7703).

If the employee pursues an appeal in the Federal Circuit, he abandons his claims of discrimination because the Federal Circuit lacks jurisdiction to entertain discrimination claims. Pueschel, 577 F.3d at 563 (citing Williams v. Dep't of the Army, 715 F.2d 1485, 1490 (Fed. Cir. 1983) (stating, "Congress did not direct or contemplate bifurcated review" of mixed cases under § 7702)); see also Chappell, 388 F.3d at 1377 (same) (citing Williams, 715 F.2d at 1490); Browder v. Postmaster Gen., U.S. Postal Serv., 449 F. App'x 799, 803 (11th Cir. 2011) (citations omitted). Because of this jurisdictional restriction, the Federal Circuit requires petitioners "to file a statement indicating whether discrimination issues persist in their cases." Smets v. Dep't of Navy, 498 F. App'x 1, 4 (Fed. Cir. 2012) (citing Fed. Cir. R. 15(c)). "The Rule 15(c) statement allows petitioners to avoid mixed-case jurisdictional issues by expressly waiving discrimination claims." Smets, 498 F. App'x at 4.

Moreover, if a federal employee appeals a decision to the Federal Circuit, he waives his right to pursue not only any discrimination claims he raised before the MSPB, but also any other discrimination claims arising out of the same facts. Chappell, 388 F.3d at 1378-79 (by appealing his termination claim to the Federal Circuit, rather than bringing his discrimination and related termination claims in the district court, Chappell waived his right to bring the claims before the district court) see also Browder, 449 F. App'x at 803.

Stated differently, "according to the statutory scheme governing review of MSPB final orders, if a federal employee wants to pursue any type of discrimination claim on appeal, the employee must file a complaint in a federal district court, as the federal district court is the only forum in which an employee can appeal both parts of a mixed claim." Chappell, 388 F.3d at 1375-76 (emphases added). "The statutory scheme established by Congress for federal employees requires them either to combine their related employment discrimination and termination claims and pursue them in Federal district court, or to appeal their termination claims to the Federal Circuit and waive any discrimination claims." Id. at 1374.

Here, upon the Navy's issuance of its decision to remove Welcome from federal civil service, the Navy properly advised Welcome of his appellate rights. Welcome elected to appeal the decision to the MSPB instead of first filing an EEOC complaint, and in doing so, he was required to raise any allegations of discrimination in his appeal to the MSPB. Welcome did not raise claims of discrimination in his initial pleadings to the MSPB, but he did assert such claims in seeking review of the AJ's dismissal of his removal appeal as moot, and the AJ's dismissal of his alleged involuntary retirement appeal for lack of jurisdiction. The MSPB opined that Welcome's discrimination claims were procedurally improper, since he raised them for the first time in his petitions for review of the AJ's decision; but the MSPB nevertheless found the discrimination claims without merit.12

Welcome was advised of this jurisdictional restriction. In the MSPB's final orders issued on February 5, 2013, Welcome was notified of his appellate rights (ECF No. 17-4, Exs. 74, 76). Both orders notified Welcome that information pertaining to pro se appeal was available on the website for the Federal Circuit Court of Appeals (Welcome proceeded pro se before the MSPB and in the Federal Circuit) (see id., referencing www.cafc.uscourts.gov, with directions to search for Rules of Practice, Guide for Pro Se Petitioners and Appellants, Forms/Sections 5, 6, and 11). Section Six of the Pro Se Guide, titled "Discrimination claims in Merit Systems Protection Board cases," to which Welcome was referred, states:

See www.cafc.uscourts.gov (search Rules of Practice/Guide for Pro Se Practitioners and Appellants/Section 6) (last visited August 17, 2016) (bolded emphases added).

Welcome submitted the Rule 15(c) waiver form to the Federal Circuit. He checked option one on the form, which indicates that: "No claim of discrimination. . . has been or will be made by me in this case." See Welcome v. MSPB, No. 13-3093 (Fed. Cir.), Petitioner's Fed. Cir. R. 15(c) Statement Concerning Discrimination, ECF No. 2 (attached). Welcome did not check option two, the only other potentially applicable option, which states, "Any claim of discrimination . . . raised before and decided by the [MSPB] or arbitrator has been abandoned or will not be raised or continued in this or any other court." (id.). Thus, although Welcome did not acknowledge that he raised discrimination claims before the MSPB or expressly waive them by checking option two, the record makes clear—as it did in Smets—that Welcome indeed raised allegations of discrimination, despite his selecting option one on the form instead of option two. See Smets, 498 F. App'x at 4 ("Ms. Smets filed a Rule 15(c) statement, but instead of waiving her discrimination claims, Ms. Smets stated that "[n]o claim of discrimination by reason of race, sex, age, national origin, or handicapped condition has been or will be made in this case. . . Of course, the administrative judge's initial decisions make clear that Ms. Smets made allegations of discrimination. . . ."). Here, as in Smets, the MSPB decisions make clear that Welcome raised claims of discrimination, which claims ultimately were rejected.

The undersigned thus concludes that Welcome knowingly waived his right to bring those claims of discrimination he brought before the MSPB—and any claims of discrimination that are related to his separation and the events leading up to his separation from the Navy—in this district court by pursuing his adverse action or termination claim in the Federal Circuit. See, e.g., Lee v. United States, 544 F. App'x 898, 901 (11th Cir. 2013) ("if the federal employee appeals a decision to the Federal Circuit, he `waives his right to pursue not only any discrimination claims he raised before the MSPB, but also any other discrimination claims arising out of the same facts'") (quoting Chappell, 388 F.3d at 1378 (noting in relevant part that the MSPB's order explicitly stated that Chappell's discrimination and related termination claims could only be pursued in a district court and that Chappell had informed the Federal Circuit that he did not plan on pursuing his discrimination claims elsewhere)).

As in Chappell, Welcome was clearly instructed that if he wished to raise both discrimination claims (e.g., Title VII-type claims) and non-discrimination claims (his termination or allegedly forced retirement claim), he must proceed in a district court, yet he chose to proceed in the Federal Circuit, well aware of the consequences of so proceeding and well aware that he had raised claims of discrimination in the MSPB proceedings. See Chappell, 388 F.3d at 1378-79 (noting that Chappell had "ample notice" of the consequences of filing his appeal in the Federal Circuit and that he had "numerous opportunities to avoid those consequences"). Additionally, as in Chappell, Welcome informed the Federal Circuit that he did not plan on pursuing his discrimination claims elsewhere

In a similar case, the District Court in the Eastern District of Virginia noted that "a litigant may not have `two bites at the apple,' [and that the employee] waived her opportunity to remove her appeal to the district court, where both her discrimination and nondiscrimination claims could be heard, when she appealed to the Federal Circuit." Parker v. Dep't of Def., No. CIV.A. 03-431-A, 2003 WL 23641757, at *2 (E.D. Va. Oct. 27, 2003), aff'd sub nom. Parker v. U.S. Dep't of Def., 96 F. App'x 892 (4th Cir. 2004). The Parker court, referencing the Federal Circuit's Guide for Pro Se Practitioners, noted supra, pointed out that an appellant must either file a written waiver of his or her discrimination claims utilizing the Rule 15(c) waiver form or remove his or her case to the appropriate district court for review. Id. (emphasis added) (citing in relevant part Davidson v. U. S. Postal Serv., 24 F.3d 223, 223-24 (Fed. Cir. 1994) (ordering that petitioner must file "either (1) a request for the [Federal Circuit] to proceed which must be accompanied by the appropriate waiver, or (2) a request for transfer to a particular United States district court."); Daniels v. U.S. Postal Serv., 726 F.2d 723, 724 (Fed. Cir. 1984) (ruling that a waiver of a claim of discrimination must be by an express written statement)). Continuing, the Parker court emphasized:

Parker, 2003 WL 23641757, at **3-4 (footnotes omitted).

Just as in Parker and Smith, Welcome chose to pursue only his nondiscrimination claims by filing his appeal to the Federal Circuit. Welcome was advised that the Federal Circuit would not hear discrimination claims, and that if he wished to pursue his discrimination claims, he could remove his claims to an appropriate district court, which had jurisdiction to hear both his discrimination and nondiscrimination claims. Welcome chose to proceed in the Federal Circuit and submitted a Rule 15(c) waiver form. To allow him to purse his discrimination claims here would undermine the Federal Circuit's efforts to prevent sequential forum shopping. Accordingly, the undersigned concludes that all of Welcome's claims raised in this Title VI action are waived because they all relate to the allegedly hostile and retaliatory work environment at the FFSC and the events leading up to and surrounding his separation from the Navy.13

B. Summary Judgment

To the extent any of Welcome's claims are not waived, the undersigned concludes that summary judgment should be granted in favor of Mabus as to all of them.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of racial discrimination, a plaintiff must show (1) he belongs to a protected class; (2) he was qualified to do the job; (3) he was subjected to adverse employment action; and (4) his employer treated similarly situated employees outside his class more favorably. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam)). With respect to the third element, a plaintiff must prove that his employer took actions that materially changed the terms, conditions, or privileges of employment. Smith v. City of Greensboro, No. 15-11643, 2016 WL 1425953, at *3 (11th Cir. Apr. 12, 2016) (citing Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013)).

Title VII also prohibits retaliation against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder]." 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1) he engaged in an activity protected under Title VII; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). As for the second element, the "type of employer conduct considered actionable [in the retaliation context] has been broadened from that which adversely affects the plaintiff's conditions of employment or employment status to that which has a materially adverse effect on the plaintiff, irrespective of whether it is employment or workplace-related." Crawford, 529 F.3d at 973 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L. Ed. 2d 345 (2006)); accord Lore v. City of Syracuse, 670 F.3d 127, 163-64 (2d Cir. 2012) ("If the adverse-action element of a Title VII retaliation action can be satisfied by an action causing the employee harm outside the workplace, a fortiori an act in retaliation for the employee's exercise of a constitutional right need not be tied to harm in the workplace."). To determine whether the employer's conduct had a materially adverse effect, the court should consider the totality of circumstances "judged from the perspective of a reasonable person in the plaintiff's position." Burlington, 548 U.S. at 71, 126 S.Ct. 2405 (internal quotation marks omitted).

A plaintiff may prove a prima facie claim of intentional discrimination through direct evidence, circumstantial evidence, or statistical proof. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Once the plaintiff has made a prima facie case, a rebuttable presumption arises that the employer has acted illegally. Id. The employer can rebut that presumption by articulating one or more legitimate non-discriminatory reasons for its action. Id. If it does so, the burden shifts back to the plaintiff to produce evidence that the employer's proffered reasons are a pretext for discrimination. Id. Despite these shifts in the burden of production, the ultimate burden of persuasion remains on the plaintiff to show that the defendant intentionally discriminated against him. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004).

Similarly, in the context of retaliation claims, once a plaintiff has established a prima facie case, the employer then has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action. Pennington, 261 F.3d at 1266 (citations omitted). The ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct remains on the plaintiff. Id.

1. Claims One, Four Through Eight, and Ten

In each of these claims, Welcome alleges both discrimination and retaliation with respect to various incidents that occurred on October 5, 2007 (Claim One), December 22, 2010 (Claim Seven), and in 2011 following his return from Japan (Claims Four through Six, Eight, and Ten). With respect to each of these incidents, Welcome has failed to establish a prima facie case of discrimination or retaliation because he has not shown that he suffered an adverse employment action as to any of these claims.

With respect to Claim One, Welcome alleges Ms. Simpkins notified him that if the time he spent walking, obtaining his lunch, and eating his lunch exceeded his 30-minute paid lunch break, he would be required to take annual leave for the excess time. Welcome has not shown that this materially changed the terms, conditions, or privileges of his employment, as is required to state a prima facie claim of discrimination. Smith, 2016 WL 1425953, at *3 (citing Kidd, 731 F.3d at 1202); see also Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) ("to prove adverse employment action in a case under Title VII's anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment"). Nor has Welcome shown that Ms. Simipkins' conduct had a materially adverse effect on him, irrespective of whether it was employment or workplace-related, as is required to state a prima facie case of retaliation. Crawford, 529 F.3d at 973 (citing Burlington N. & Santa Fe Ry. Co., 548 U.S. at 67-68). Under the totality of circumstances "judged from the perspective of a reasonable person in [Welcome's] position" one simply cannot conclude that actions of which he complains (Ms. Simpkins' notifying him that if the time he spent walking, obtaining his lunch, and eating his lunch exceeded his 30-minute paid lunch break, he would be required to take annual leave for the excess time) would have had a materially adverse effect upon him. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71, 126 S.Ct. 2405 (internal quotation marks omitted). Therefore, Welcome failed to establish a prima facie case of discrimination or retaliation as to Claim One.

Likewise, Ms. Simpkins' requiring documentation of Welcome's illness (the basis for Claim Four), proposing Welcome's removal from federal civil service due to excessive approved absences (the basis for Claims Five and Ten), proposing that Welcome invoke FMLA leave (the basis for Claim Six), asking Welcome to leave the FFSC on one occasion at a time when he was not employed there (the basis for Claim Seven), and Commander Greg Thomas' cancelling an appointment with Welcome (the basis for Claim Eight) are not adverse employment actions under either the discrimination or retaliation standards.

2. Claims Two and Three

In these claims Welcome alleges discrimination (but not retaliation) based upon a purportedly unequal pay raise in 2008 and a denial of twenty-five (25) minutes of compensatory ("comp") time on January 14, 2009.

Welcome raised both of these claims before the EEOC in Hearing No. 420-2009-00146X (DON Nos. 08-00204-00176 and 09-00204-01989) (see ECF No. 17-3, Ex. 59), as claims numbered fifteen and sixteen, respectively (id. at 241). The EEOC determined that the decision regarding Welcome's pay raise was based on performance and that Welcome failed to show that the Agency's articulated reason was pretextual or that other similarly situated supervisors with the same performance as he received a higher raise for prohibited reasons (id.). Similarly, with regard to the comp time issue, the EEOC found that Welcome's supervisor did not approve his request for twenty-five minutes of comp time because Welcome failed to request the time in advance as the Agency's regulations required, and that the Agency's explanation for the denial was not pretextual, nor did Welcome show he was "disparately treated" (id. at 252).

With respect to Claim Two, Welcome has failed to establish a prima facie case of discrimination because he has not shown that his employer treated similarly situated employees outside his class more favorably. In his complaint, Welcome alleges only in the most general terms that he did not receive the same pay raise "as two other white female supervisors and two other [white FFSC] employees" (see ECF No. 1 at 5, 6). In his Statement of Facts ("SOF"), filed in opposition to Mabus' motion for summary judgment, Welcome adds:

Plaintiff, the only African American male received the smallest bonus ($229); salary increase ($1,301); and smallest dollar share ($1,536). M. Alice Pearson, African American female received the next smallest amount in comparison to the White FFSC employees.

FFSC Pensacola Employees wage comparison after NSPS implemented in 2008[:]

(ECF No. 27, Welcome's SOF, at 3-4, ¶¶ 14-16).

The relevant and undisputed facts for summary judgment purposes are as follows. The amount of the payout that each employee in the FFSC received from the Pay Pool was determined by the number of "shares" awarded to that employee and the employee's salary during the pay pool cycle (see, e.g., ECF No. 17-1 at 30-47). The range of shares available to the employee was based upon the employee's Final Rating of Record, which was determined by the employee's annual performance rating given by the Rating Official/Supervisor, as reviewed by a Higher Level Reviewer (see id. at 39, 41). Calculation of the Final Rating of Record began with the Rating Official/Supervisor's rating the employee, on a scale of 1 to 5, on his or her performance of Job Objectives (see, e.g., ECF No. 17-1 at 30-47).14 The Rating Official/Supervisor could apply a Contributing Factor Adjustment of +1, -1, or 0, to each Job Objective rating, based upon "attributes of job performance that are significant to the accomplishment of individual job objectives" (id. at 32-39). This resulted in an Adjusted Rating for each Job Objective (id.). The Adjusted Ratings were then averaged, to reach the employee's Average Score (see id. at 39). The Average Score was then rounded up or down, to reach the Final Rounded Score or Rating of Record (id.). The employee's Final Rating of Record and payout was based upon the following:

Welcome asserts that he received only 1 share of the payout, whereas white employees with the same Rating of Record of 3 received 2 shares. Welcome claims that the reason he received only 1 share was his race, African-American. However, the undisputed record evidence demonstrates that another African-American employee in the FFSC, specifically, A. Pearson, also had a Rating of Record of 3 and received 2 shares of the payout, like the white employees (ECF No. 17-1 at 129, 164). Further, the reason that the other employees who had Ratings of Record of 3 like Welcome (specifically, N. Fielder, S. Starling, A. Pearson, R. Price, and D. Huffman), received 2 shares of the payout was because all of them had an Average Score of 3.33, whereas Welcome had an Average Score of 3.00 (ECF No. 17-1 at 30, 67, 71, 96, 129, 164, 176; ECF No. 17-2 at 25, 37, 74, 117, 126). This is because all of the other employees (including the other African-American employee, A. Pearson) received a Contributing Factor adjustment of +1, but Welcome did not (see ECF No. 17-1 at 30-187; ECF No. 17-2 at 1-188).

Additionally, the amount of the payout distribution made to all employees in the FFSC (awarded as a bonus and a base salary increase) was calculated by multiplying the employee's base salary on the last day of the pay pool cycle (September 30, 2008) by 2.4543% (see ECF No. 17-1 at 30, 71, 129, 176; ECF No. 17-2 at 37, 117). This was an objective, mathematical calculation.

Welcome has failed to show that the lesser amount of pay raise he received was the result of racial discrimination. Therefore, Mabus is entitled to summary judgment on Claim Two.

With respect to Claim Three, Welcome alleges he was discriminated against in January 2009 when he was denied twenty-five minutes of comp time. Welcome has again failed to establish a prima facie case of discrimination because he cannot show that he suffered an "adverse action" regarding the denial of this comp time. Stated simply, being deprived of twenty-five minutes of comp time on one occasion does not constitute a serious or material change in the terms, conditions, or privileges of Welcome's employment. Davis, 245 F.3d at 1239; see also Smith, 2016 WL 1425953, at *3 (citation omitted). Furthermore, the undisputed facts, as set forth below, show that in actuality Welcome was denied only approximately 4.2 minutes of the comp time he sought, further eroding any argument that he suffered an adverse employment action.

Even if Welcome had established a prima facie case, however, Mabus has articulated a legitimate non-discriminatory reason for its action. In her declaration, Ms. Simpkins avers as follows:

(ECF No. 16-2 at 31-32; see also ECF No. 16, Mabus' SOF, at 6, ¶¶ 31-32).

Mabus has thus established that Ms. Simpkins' actions regarding Welcome's request for compensatory leave were legitimate, non-discriminatory, and made in accordance with applicable rules and regulations. As before, Welcome has not produced any evidence that the employer's proffered reason regarding his comp time is a pretext for discrimination. Indeed he acknowledges that ultimately Ms. Simpkins "approved [his] comp time request . . . on February 3, 2009," though he appears to take issue with the two-week delay between the time his request was made (January 15) and the time his request was approved (see Welcome's SOF, ECF No. 27, at 5, ¶ 30). The delay is not an adverse action and, in any event, Ms. Simpkins has offered a legitimate non-discriminatory explanation for both her actions and the timing thereof, which Welcome has not shown are pretexts for discrimination.

3. Claim Nine

In Claim Nine, Welcome alleges:

(ECF No. 1 at 7). As previously noted, it appears that Claim Nine is a general allegation that each of the specific events identified in Welcome's Title VII complaint was an act of discrimination, and that those acts created a hostile work environment that forced him to retire.

This court has previously determined, however, that none of the underlying acts or events of which Welcome complains constitute discrimination or retaliation under the relevant standards. As none are individually discriminatory or retaliatory, their combined effect is not discriminatory or retaliatory. Further, Welcome waived his right to bring a hostile work environment claim in relation to his retirement, by appealing the MSPB's decision to the Federal Circuit, instead of appealing his retirement case to a federal district court, as previously discussed.15

Accordingly, for the foregoing reasons, it is respectfully RECOMMENDED:

1. That the Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, for Summary Judgment (ECF No. 15) be GRANTED

2. That the Clerk be directed to enter judgment in favor of Secretary Mabus.