                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


TIMOTHY D. TAYLOR,               :
                                 :
          Plaintiff,             :
                                 :
     v.                          : Civil Action No. 08-0984 (JR)
                                 :
RAYMOND E. MABUS, JR., Secretary :
of the Navy,                     :
                                 :
          Defendant.             :

                              MEMORANDUM

          Timothy D. Taylor, plaintiff pro se, alleges that his

former employer, the Department of the Navy,1 discriminated

against him on the basis of race, gender, and disability, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and Section 501 of the Rehabilitation Act of

1973, 29 U.S.C. § 791 et seq., and that the Navy retaliated

against him for filing a complaint with his Equal Employment

Opportunity office.    The Navy moves to dismiss, or, in the

alternative, for summary judgment.    Because Mr. Taylor failed to

exhaust his administrative remedies, the motion to dismiss will

be granted with respect to his Rehabilitation Act claims.      The

motion for summary judgment will be granted with respect to his

Title VII claims.

          Mr. Taylor is a 47-year-old African-American male, who

worked in the Navy’s Human Resources Office for more than 23


     1
          Pursuant to Fed.R.Civ.P. 25(d), Raymond E. Mabus is
substituted as defendant in his official capacity.
years.    In March 2004 and December 2005, he sustained two on-the-

job back injuries that required surgery in January 2006 and

prevented him from working during a five-month rehabilitation

period.   While he was on leave, Mr. Taylor applied and

interviewed for four open positions within his organization, but

the Navy did not select him for any of them.    Mr. Taylor

subsequently contacted an EEO counselor and alleged that his non-

selection was because of discrimination based on race, gender,

and disability.

           In July 2006, Mr. Taylor re-injured his back at work

and was restricted from working until February 2007.    When he

returned to work, the Navy terminated him for failure to follow

proper leave request procedures and for absence from work without

leave.    Mr. Taylor appealed the termination to the Merit Systems

Protection Board on March 8, 2007.

           “Before filing a Title VII suit, a federal employee

must timely pursue administrative remedies, following the

requirements set forth in 29 C.F.R. § 1614.”    Bowden v. United

States, 106 F.3d 433, 437 (D.C. Cir. 1997).2   To exhaust his

administrative remedies, a plaintiff must contact an EEO

counselor within 45 days of the alleged discrimination in an

effort to resolve the situation informally.    29 C.F.R.

§ 1614.105(a)(1).   The 45-day time limit will be extended “when

     2
          The Rehabilitation Act also requires exhaustion.      See
Bowden v. Clough, 658 F.Supp.2d 61, 71 n. 3 (D.D.C. 2009).

                                - 2 -
the individual shows . . . that he or she did not know and

reasonably should not have known that the discriminatory matter

or personnel action occurred.”    Hines, 594 F. Supp. 2d at 22.

          If the plaintiff is unable to resolve the issue through

informal counseling, then he or she has 15 days from receipt of a

Notice of Right to File Formal Complaint, “subject to application

of equitable doctrines such as waiver, estoppel, and tolling,”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002),

to file such a complaint.   Once the agency issues an adverse

final decision, or when 180 days have elapsed without a decision,

the plaintiff may file a civil action.    42 U.S.C. § 2000e-16(c).

          Mr. Taylor’s claim can withstand the Navy’s dispositive

motion only “if he timely filed his EEO complaint and exhausted

administrative remedies . . . or if the circumstances surrounding

[the alleged discrimination] warrant equitable tolling.”

Hairston v. Tapella, 2009 WL 3379008, *4 (D.D.C. October 21,

2009).

          Failure to exhaust administrative remedies compels

dismissal, but courts in this District differ on whether the

defect is jurisdictional.   See, e.g., Marcelus v. Corrections

Corp. of America/Correctional Treatment Facility, 540 F. Supp. 2d

231, 234 n. 4 (D.D.C. 2008).   Because I do not regard exhaustion

as a jurisdictional prerequisite, I must consider the Navy’s

motion with respect to Mr. Taylor’s Title VII claims under Rule



                                 - 3 -
12(b)(6), rather than Rule 12(b)(1).   See, Hodge v. United

Airlines, 2009 WL 3416202, *1 (D.D.C. October 26, 2009) (citing

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir.

2004)).   Moreover, because both parties have filed materials

outside the pleadings that are relevant to the exhaustion issue,

Rule 12(b)(6) requires that I handle the Navy’s motion with

respect to the Title VII claims as one for summary judgment.3

(The Navy’s motion to dismiss the Rehabilitation Act claims will

be considered under Rule 12(b)(1) because that statute explicitly

states that exhaustion is jurisdictional.   Spinelli v. Goss, 446

F.3d 159, 162 (D.C. Cir. 2006) (citing 29 U.S.C. § 794a(a)(1)).)

           1. Non-Selection

           The basis for Mr. Taylor’s initial discrimination claim

was the Navy’s decision not to hire him for four positions: Naval

Installations Command (“CNIC”)/Naval District Washington(“NDW”)

Site Manager; National Naval Medical Center (“NNMC”)/Bethesda

Satellite Manager; Naval Facilities and Engineering Command

(“NAVFAC”) Site Manager (collectively, “Satellite Manager




     3
          When a motion to dismiss is converted to a motion for
summary judgment, the court is required to give all parties “a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, both
parties submitted exhibits and affidavits on the exhaustion
issue, and the Navy fashioned its motion to dismiss as one for
summary judgment in the alternative. Therefore, both parties
have been afforded adequate opportunity to present all the
relevant materials to the Court.

                               - 4 -
positions”); and Director for the HRO-W Labor and Employee

Relations (“LR/ER”).4

          Mr. Taylor’s non-selection claims with respect to the

three Satellite Manager positions fail because he did not comply

with the required time limits, thereby failing to exhaust his

administrative remedies.   He was notified of his non-selection

for the three Satellite Manager positions on February 21,

2006,[Dkt. # 6, Def. Ex. 14, Ex. F], but he waited 56 days - 11

days beyond the deadline - before contacting the EEO counselor.

His EEO counselor sent him a Notice of Right to File a Formal

Complaint on September 18, 2006, [Dkt. # 6, Def. Ex. 24].    The

notice advised him that he had 15 calendar days to file his

formal complaint, but he did not do so until June 12, 2007, [Dkt.

# 6, Def. Ex. 40], some 252 days late.

          With respect to Mr. Taylor’s non-selection claim for

the Director for the HRO-W Labor and Employee Relations position,

Mr. Taylor did make timely contact with the EEO counselor, but he

did not comply with the deadline for filing a formal complaint.

          Mr. Taylor’s response is to deny that he received

either the February 21, 2006 email notifying him of his non-


     4
          In Mr. Taylor’s Opposition, he alleges discrimination
because of his non-selection for six, rather than four,
positions. The two additional positions are Satellite manager
for the Human Resources Office, HRO-W and Satellite Manager for
the HRO-W Commander. Mr. Taylor’s Complaint only references the
four positions listed above. Therefore, I only address the non-
selection for those positions.

                               - 5 -
selection for the three Satellite Manager positions or the

September 18, 2006 Notice of Right to File Formal Complaint.

[Dkt. # 10, Pl. Ex. 1].   This denial is contradicted by the

Navy’s dated documentation.   [Dkt. # 6, Def. Ex. 14, Ex. F; Def.

Exs. 24, 25].   Mr. Taylor offers no particularized details to

support his version of the facts – no evidence that he ever

inquired about the positions or about the status of the EEO

investigation, no recitation of actions he took, other than

extremely belated attempts to reinitiate contact with his EEO

counselor in June 2007 after his MSPB claim was dismissed.     He

has not established his entitlement to equitable tolling.    Conteh

v. Kandarian, 2002 WL 1635368, * 1 (D.C. Cir. July 23, 2002)

(affirming dismissal of employment discrimination claim for

failure to exhaust administrative remedies because plaintiff’s

contention that he did not receive notice of non-selection did

not meet standard set forth in 29 C.F.R. § 1614.105(a)(2)).

          2. Removal

          Mr. Taylor also alleges discrimination because of his

termination from Federal Service on February 13, 2007.   Here, his

appeal was not timely.

          When an employee challenges an adverse personnel action

that is subject to appeal to the MSPB and that is coupled with a

discrimination claim - a “mixed case” - he must navigate a

procedural regime of Title VII regulations and Civil Service



                               - 6 -
Reform Act regulations.   5 U.S.C. § 7702.   Because courts bestow

labels such as “byzantine” and “extremely complicated” on this

statutory and regulatory framework, a brief description of the

structure is appropriate.   Butler v. West, 164 F.3d 634, 638

(D.C. Cir. 1999).

          First, the aggrieved party must decide whether to file

a “mixed case complaint” with his agency’s EEO office or file a

“mixed case appeal” directly with the MSPB.   29 C.F.R.

§ 1614.302(b).   If he or she selects the agency EEO route,5 the

aggrieved party has 30 days from the EEO’s final decision to file

an appeal with the MSPB or a civil discrimination action in

federal district court.   29 C.F.R. §§ 1614.302(d)(1)(ii),

1614.310(a).

          If an aggrieved party elects to appeal directly to the

MSPB or appeals to the MSPB after pursing the claim with the

relevant EEO office, an Administrative Judge makes an initial

decision, which becomes final within thirty-five days unless

either party or the MSPB itself seeks further review.     5 C.F.R.

§ 1201.113.    Once the MSPB decision is final, the complainant has

three options: he or she (1) may appeal the discrimination claim

to the EEOC within 30 days, 5 C.F.R. § 1201.157; (2) appeal the

entire claim to the appropriate district court within 30 days; or

     5
          If an employee files in both places, the regulations
dictate that “whichever is filed first (the EEO complaint or the
MSPB appeal) shall be considered an election to proceed in that
forum.” 29 C.F.R. § 1613.403.

                                - 7 -
(3) appeal the nondiscrimination claim to the Court of Appeals

for the Federal Circuit within 60 days.       5 U.S.C. § 7703(b).

When the MSPB’s decision dismisses the challenge on procedural

grounds and does not reach the merits of the case, the Federal

Circuit - rather than federal district courts - retain

jurisdiction.   Powell v. Dept. of Defense, 158 F.3d 597, 599

(D.C. Cir. 1998).

           On March 8, 2007, Mr. Taylor challenged his removal

directly with the MSPB, raising reprisal for his discrimination

claims as the Navy’s motivation for the termination. [Dkt. # 6,

Def. Ex. 34].   On May 3, 2007, the MSPB dismissed the challenge

for failure to prosecute.   [Dkt. # 6, Def. Ex. 37].      The MSPB

decision became final on June 7, 2007.       At that point, Mr. Taylor

did not pursue any of the three options outlined above - in

effect, abandoning his discrimination and removal claims.

           Mr. Taylor argues that his decision to abandon his MSPB

claim did not foreclose him from pursuing the claims with the

EEOC.   Instead, he contends that his March 28, 2007 EEOC

submission entitled “Formal Complaint for Discrimination,” should

take precedence over his MSPB claim, which was still pending at

the time. [Dkt. # 6, Def. Ex. 35].       Once he raised the

discrimination claims in his MSPB claim, however, Mr. Taylor had

to exhaust his remedies there.    McAdams v. Reno, 64 F.3d 1137,

1143 (8th Cir. 1995)(finding that plaintiff’s abandonment of her



                                 - 8 -
discrimination claims before the MSPB prevented her from raising

them later in federal district court); Williams v. Munoz, 106 F.

Supp. 2d 40, 43-44 (D.D.C. 2000)(holding that plaintiff’s

election to raise retaliation claims before the MSPB precluded

her from pursuing those claims with the agency EEO, despite the

fact that she withdrew the claims during her MSPB proceedings).6

Even if he had requested timely review here, I would be compelled

to dismiss for lack of jurisdiction because the MSPB never

reached the merits of his case.    Powell, 158 F.3d at 599.

          3. Other Allegations

          In addition to his non-selection and removal claims,

Mr. Taylor also makes a number of scattershot allegations of

discrimination – the agency improperly processed his EEO

complaint; the Navy improperly processed his workers’

compensation claims; the Navy improperly denied him use of his

paid leave time; the Navy denied his request to work from home

while he recovered from back surgery – and he alleges that his

termination was reprisal for his EEO complaint.

          Mr. Taylor did not exhaust his administrative remedies

with respect to any of these claims.     He raised them for the


     6
          In any event, Mr. Taylor did not comply with the
applicable EEOC deadlines either. Mr. Taylor did not make file a
Formal Complaint within the requisite 15 days after receiving
notice that his EEO counseling would be terminated. See [Dkt.
#6, Def. Ex. 36] (notifying Mr. Taylor that counseling would end
on April 30, 2007) and [Dkt. # 6, Def. Ex. 40] (Formal Complaint
filed by Mr. Taylor on June 12, 2007).

                                 - 9 -
first time in his March 28, 2007 Formal Complaint of

Discrimination, which was well after the expiration of the 45

days he had to initiate contact with an EEO counselor.    [Dkt. #6,

Def. Ex. 35].   He argues that exhaustion is not required for

these claims because they are reasonably related to or grow out

of his initial discrimination allegations, but a plaintiff must

still exhaust administrative remedies for “discrete acts” of

discrimination or retaliation.    Camp v. District of Columbia,

2006 WL 667956, *7 (D.D.C. 2006) (citing Coleman-Adebayo v.

Leavitt, 326 F. Supp. 2d 132, 137-138 (D.D.C. 2004) and National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).       In any

event, the question of whether the additional claims are

reasonably related is irrelevant, because Mr. Taylor never

exhausted his remedies with respect to the initial allegations.

          In the accompanying order, the defendant’s motion to

dismiss is granted with respect to the Rehabilitation Act claims,

and its motion for summary judgment is granted with respect to

the Title VII claims.




                                       JAMES ROBERTSON
                                 United States District Judge




                              - 10 -
