Report and Recommendation (Doc. No.12)

NANCY A. VECCHIARELLI, Magistrate Judge.

This case is before the United States Magistrate Judge on referral for general pretrial supervision, including the preparation of reports and recommendations for the disposition of case dispositive motions. (Doc. No. 10) This case arises out of Plaintiff Laurence Lucy-Evan's ("Plaintiff") claims that the Department of Veterans Affairs discriminated against him on the basis of race and disability, as well as subjected him to reprisal for prior Equal Employment Opportunity (EEO) and whistleblower activity. Currently pending before the Court is the Motion to Dismiss filed by Defendant Robert McDonald ("Defendant"), the Secretary of the Department of Veterans Affairs.1 (Doc. No. 12.) For the reasons set forth below, the United States magistrate judge recommends that this Court GRANT the Motion to Dismiss.

I. Background

A. Relevant Facts

On November 7, 2011, Plaintiff began working for the Veteran's Administration (VA) as an Assistant Specially Adapted Housing Agent. (Complaint, Doc. No. 1, at ¶ 1.) During his tenure at the VA, Plaintiff allegedly committed a number of disciplinary violations, which resulted in verbal and written counseling, a five day suspension, and proposed termination. (Complaint, Doc. No. 1, at ¶ 6, 12, 14, 15, 17, 18, 21, 22, 23, 25, 29.) The VA ultimately terminated Plaintiff in August 2013. (Office of Employment Discrimination Complaint Adjudication (OEDCA) Final Decision, Doc. No. 12-2, at p.4.)

While employed, Plaintiff made various complaints alleging that a national VA directive to scan paper documents from veterans' files, create an electronic file, and subsequently shred the paper files, violated federal records management law. (Complaint, Doc. No. 1, at p.1, 2.) Plaintiff maintains that the VA wrongfully subject him to reprisal for his whistleblowing activity.

During his tenure at the VA, Plaintiff also filed two EEO complaints. Plaintiff alleges that because of his EEO activity, the VA discriminated against him on the basis of race, disability, and reprisal. Plaintiff filed his first complaint in October 2012. (Complaint, Doc. No. 1, at ¶ 18; OEDCA Final Decision, Doc. No. 12-2, at p.2.) The agency administratively closed the complaint when Plaintiff failed to file a formal complaint of discrimination. (OEDCA Final Decision, Doc. No. 12-2, at p.2.) The parties entered into a settlement agreement in January 2013 that resolved some of the claims in the October 2012 complaint. (Id.)

In July 2013, Plaintiff filed a second complaint with the EEO, which was accepted by the VA's Office of Resolution Management (ORM). (Complaint, Doc. No. 1, at ¶ 28; OEDCA Final Decision, Doc. No. 12-2, at p.2.) The second complaint included the following claims:

Claim A: Whether the Complainant was subjected to a hostile work environment based on race (Black), disability (Mental), and reprisal (prior EEO activity) as evidenced by the following events:

Claim B: Whether the Complainant was discriminated against based on race, disability, and reprisal, as of March 11, 2013, when management officials failed to respond to his January 24, 2013, request for a reasonable accommodation.

Claim C: Whether the Complainant was discriminated against based on race, disability, and reprisal, when on March 28, 2013, MF issued him a written counseling regarding his sick leave usage.

Claim D: Whether the Complainant was discriminated against based on race, disability, and reprisal, when on May 6, 2013, he was informed that he did not meet minimal qualifications, and was not referred to the position of Loan Specialist, (Realty), under vacancy announcement number 325-13-12, GS-1125-11.

Claim E: Whether the Complainant was discriminated against based on race, disability, and reprisal, when on May 15, 2013, and June 12, 2013, management denied him union representation for his proposed 5-day suspension.

Claim F: Whether the Complainant was discriminated against based on race, disability, and reprisal, when effective May 20, 2013, through May 23, 2013, and June 2, 2013, through June 3, 2013, the Complainant was issued a 5-day suspension.

Claim G: Whether the Complainant was discriminated against based on race, disability, and reprisal, when on June 12, 2013, the Complainant was placed on indefinite paid administrative leave pending an investigation of unspecified misconduct.

Claim H: Whether the Complainant was discriminated against based on race, disability, and reprisal, when on August 27, 2013, JC, the Director, issued the Complainant a notice of removal.

(OEDCA Final Decision, Doc. No. 12-2, at p.4-5.)

On May 30, 2014, the Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication (OEDCA) issued a Final Agency Decision. (OEDCA Final Decision, Doc. No. 12-2, at p.1, 23.) The OEDCA found no discrimination based on race, disability, or reprisal. (Id.) Its decision provided the following explanation of Plaintiff's right to appeal:

Plaintiff alleges that he received the OEDCA's decision on July 19, 2014. (Complaint, Doc. No. 1, at ¶ 31.)

Plaintiff subsequently filed an appeal with the MSPB. (MSPB Decision, Doc. No. 12-3, at p.1.) In its decision dated December 1, 2014, the MSPB affirmed Plaintiff's removal from employment. (Id. at 2.) The decision advised Plaintiff that it would become "final" on January 5, 2015,2 unless a petition for review with MSPB was filed by that date. (Id. at 25.) Plaintiff could pursue additional review of his claims through the MSPB, the EEOC, or the federal court system. (Id.) With regard to filing a civil action in federal court, the decision explained:

(Id. at 29-30.)

Plaintiff alleges that he received the MSPB's Decision on December 5, 2014. (Complaint, Doc. No. 1, at ¶ 32.) Plaintiff did not to seek further review through the MSPB, but instead filed the suit presently before this Court. (Id. at ¶ 33.)

B. Procedural History

On March 6, 2015, Plaintiff, proceeding pro se, filed in this Court an action alleging that Defendant violated Chapter 23 of U.S.C. Title 5, which governs federal personnel management. (Doc. No. 1.) On September 2, 2015, Defendant filed a Motion to Dismiss Plaintiff's Complaint. (Doc. No. 12.) To date, Plaintiff has not filed any opposition to the Motion to Dismiss.3

C. The Complaint

Defendant reasonably construes the Complaint to challenge the decisions of the OEDCA and MSPB and as raising Claims A through H, which are set forth on pages three and four of this opinion.4 The Court agrees with that construction. Moreover, the Complaint does not allege any basis for excusing any delay in the filing of the Complaint.

II. Motion to Dismiss

A. Material Outside the Pleadings

In support of the motion to dismiss, Defendant refers to, and has attached copies of, the OEDCA's Final Decision and the MSPB's Decision. (Doc. Nos. 12-2, 12-3.) Generally, the Federal Rules of Civil Procedure preclude a district court from considering materials outside the pleadings without treating the motion as one requesting summary judgment:

Fed. R. Civ. P. 12(d); see also Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009). There are, however, exceptions to this general rule, as a court may consider documents that are referenced in the complaint and are central to the plaintiff's claim. Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999).

In the present case, Plaintiff references the OEDCA's Final Decision and MSPB's Decision in the Complaint. (Doc. No. 1 at ¶ 31, 32.) The decisions are central to Plaintiff's claims as Plaintiff was required to administratively exhaust his claims and timely file a complaint with the appropriate court. Accordingly, this Court may consider the evidence without converting the motion to dismiss into one for summary judgment.

B. Legal Standard and Analysis

Federal Rule of Civil Procedure 12(b)(6) allows a court to grant a motion to dismiss when a complaint fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the complaint must contain sufficient factual information "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

A defendant may raise the defense that the plaintiff's claim is time-barred in the context of a Rule 12(b)(6) motion. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). When "the allegations in the complaint affirmatively show that the claim is time-barred . . . dismissing the claim under Rule 12(b)(6) is appropriate." Id. (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

Here, Defendant argues that if Plaintiff is raising claims solely under the Whistleblower Protection Act (WPA), this Court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant further maintains that in the event Plaintiff has asserted additional claims, he has failed to commence his civil action within the statutorily required time frame.

The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., creates a framework for evaluating personnel actions taken against federal employees. The statutory framework, as well as regulations of the MSPB and EEOC, dictate the procedures an employee must follow to pursue his claims, depending on the severity of the personnel action. Kloeckner v. Solis, 133 S.Ct. 596, 601 (2012).

If this Court were to construe this case as arising solely under the WPA, 5 U.S.C. § 2302(b)(8), this Court would lack jurisdiction and dismissal pursuant to Rule 12(b)(1) would be appropriate. Only the United States Court of Appeals for the Federal Circuit, and under some limited circumstances federal circuit courts of appeals,5 have jurisdiction to review MSPB decisions regarding whistleblower claims of retaliation in violation of 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 7703(b)(1)(A)-(B); see Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) ("Under no circumstance does the WPA grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly before it."); Grisham v. United States, 103 F.3d 24, 26-27 (5th Cir. 1997). Thus, if Plaintiff is asserting only a claim under the WPA, this Court lacks subject matter jurisdiction over his Complaint.

The one exception to the general rule that the district court cannot exercise jurisdiction over WPA claims is when a federal employee alleges a "mixed case." An aggrieved federal employee brings a "mixed case" when he complains of an adverse personnel action serious enough to appeal to the MSPB and alleges that the action was motivated by discrimination. 5 U.S.C. §§ 7702(a)(1)(A), (a)(1)(B); 29 C.F.R. § 1614.302(a)(1); Kloeckner, 133 S.Ct. at 601. The adverse actions entitling an employee to appeal a case to the MSPB include removal, a suspension for more than 14 days, a reduction in grade or pay, and certain furloughs. 5 U.S.C. § 7512. A "mixed case complaint" may contain only an allegation of employment discrimination or it may contain additional allegations that are within the jurisdiction of the MSPB. 29 C.F.R. § 1614.302(a)(1). When an employee challenges a serious personnel action under the CSRA alone, or attacks a less serious personnel action as discriminatory, he has not brought a mixed case and different procedures apply. Kloeckner, 133 S.Ct. at 601 (citing 5 U.S.C. §§ 7702, 7703(b)(2)).

In Claim H of his EEO complaint, Plaintiff alleged a mixed case, i.e., he was terminated based on race and disability discrimination. Plaintiff undertook a number of steps to pursue his mixed case claim, including an appeal of the mixed case complaint to the MSPB followed by filing a civil action in this Court.6 Plaintiff's appeal to this Court, however, was untimely.

An employee who receives notice of a final decision from the MSPB and elects to appeal a mixed case claim directly to federal district court, must file his complaint within 30 days of receipt of the MSPB's final decision. 5 U.S.C. § 7703(b)(2); 29 C.F.R. § 1614.310(b). If no review of the MSPB's decision is sought, the decision becomes "final" 35 days after the initial decision is issued. Ballard v. Tennessee Valley Auth., 768 F.2d 756, 763-64 (6th Cir. 1985) (citing 5 C.F.R. § 1201.113). In such circumstances, an employee is deemed to "receive notice" of a final decision "on the very day the initial decision becomes the final decision of the Board, and must file for judicial review within 30 days of that date." Id. at 764. Courts have interpreted this timing requirement to be nonjurisdictional and similar to a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (finding that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statue of limitations, is subject to waiver, estoppel, and equitable tolling); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990) (extending Zipes to administrative requirements for federal employees); Mitchell v. Chapman, 343 F.3d 811, 819-20 (6th Cir. 2003); Amini v. Oberlin Coll., 259 F.3d 493, 500 (6th Cir. 2001) (explaining that the Sixth Circuit "has repeatedly cautioned that equitable tolling relief should be granted only sparingly").

Here, the MSPB issued its initial decision on December 1, 2014. Plaintiff received a copy of the decision on December 5, 2014. Plaintiff elected not to pursue further review of the decision by the MSPB. Thus, the Board's decision became final on January 5, 2015. Plaintiff had until February 4, 2015, to file a civil action, but did not commence this lawsuit until March 6, 2015. Plaintiff, who has not filed a response to the motion to dismiss, has not set forth any basis for excusing his untimeliness. As a result, Plaintiff has failed to timely file his mixed case claim and it should be dismissed.

The remainder of the claims in Plaintiff's EEO complaint, Claims A through G, do not involve adverse personnel actions that could constitute the basis of a mixed case. To the extent that Plaintiff seeks judicial review of these claims, the deadline to file a district court action was 90 days from the receipt of a final agency decision. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a). The OEDCA issued its Final Decision on May 30, 2014. Plaintiff alleges that he did not receive the decision until July 19, 2014. Even assuming that Plaintiff received the decision at this late date, his Complaint was untimely because he was required to commence his suit by October 17, 2014. Plaintiff filed his claims approximately five months later, on March 6, 2015. Accordingly, these claims must be dismissed.

III. Conclusion

For the foregoing reasons, the magistrate judge recommends that this Court GRANT the Motion to Dismiss and dismiss Plaintiff's Complaint.