UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FREDERICK SCHLOTTMAN, )
)
Plaintiff, )
)
v. ) Civil Case No. 11-752 (RJL)
)
HILDA L. SOLIS, in her official capacity )
as SECRETARY, u.s. DEPARTMENT ) F I L E D
OF LABOR, )
) FEB 2 7 2012
Defendant' ) Clerk. U.S. Districf & Bankrupt'cy
Courts for the District of Co|umbia.
<h_
MEMORANDUM OPINION

(February §, 2012) [Dkr. # 101

Plaintiff, Frederick Schlottman ("Schlottman"), brings this action against Hilda L.
Solis, in her official capacity as Secretary of the United States Department of Labor (the
"defendant"), seeking damages pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq., for discrimination and retaliation. Before the Court is the
defendant’s Motion to Dismiss, or Alternatively, for Summary Judgment. Upon
consideration of the parties’ pleadings, relevant law, and the entire record herein, the

defendant’s Motion to Dismiss is GRANTED.

BACKGROUND

Plaintiff was hired by the Department of Labor in April 2008 as a Legislative
Analyst. Compl. 1 7 . On July 20, 2008, in a letter to his supervisor, plaintiff
complained that his Division Chief was creating a hostile work environment, and on
September 30, 2008, he criticized his Division Chief in a report. Ia’. 1]1] 8-10. On
January l5, 2009, while still a probationary employee, plaintiff received a removal notice,
advising him that he was being terminated for unsatisfactory performance effective
January 31, 2009. Id. ‘ll ll; Pl.’s Opp’n to Def.’s Mot. to Dismiss ("Pl.’s Opp’n") at 3;
Def.’s Ex. l, Notice of Ter1nination During Probation Period, at l. The removal notice
stated that plaintiff had the right to challenge his termination if he believed it was based
on political affiliation, marital status or discrimination by directly appealing to the Merit
Systems Protection Board ("MSPB") within twenty days of the effective date of his

removal.l Pl.’s Opp’n at 3; Def.’s Ex. l at 1.

On January 31, 2009, Schlottman filed with the Office of the Special Counsel
("OSC") a whistleblower complaint, which was dismissed on April 6, 2009 for failure to
allege action protected by the Whistleblower Protection Act ("WPA"). Compl. 1111 13 &

14. On June 4, 2009 Schlottman appealed the OSC determination to the MSPB and filed

l The notice incorrectly stated that plaintiff had twenty days, when in fact, plaintiff had
thirty days to file his direct appeal to the MSPB. Pl.’s Opp’n at 4 n.2. Additionally, a
probationary employee may only appeal directly to the MSPB if he appeals his
termination both on marital status or political status grounds and on discrimination
grounds. 5 C.F.R. § l20l.3(a)(8); 5 C.F.R. § 3l5.806(b)-(d).

2

a "mixed case" appeal, alleging his termination involved reprisal for both whistleblowing
and discrimination.z Ia'. 1111 15 & l7. The MSPB dismissed the appeal on August 19,
2009 for lack of jurisdiction, and the decision became final on September 23, 2009. Ia'.
11 16; Def.’s Ex. 5, MSPB Initial Decision, at 1 & 6. Schlottman also initiated an
informal Equal Employment Opportunity ("EEO") complaint with the Department of
Labor on February 4, 2009, alleging discrimination and reprisal. Pl.’s Opp’n at 5 & 9;
Def.’s Ex. 2, informal Discrimination Complaint, at l. On May l, 2009, Schlottman
received notice of his right to file a formal EEO discrimination complaint, which had to
be filed within fifteen days of receipt of the notice. Pl.’s Opp’n at 6; Def.’s Ex. 3, Notice
of Right to File Discrimination Complaint, at 1; 29 C.F.R. § l614.l06(b). On
September 17, 2009, Schlottman filed his formal EEO complaint with the Department of
Labor, who dismissed it as untimely on October 29, 2009. Compl. 1[11 17 & 18.
Schlottman appealed the dismissal to the Equal Employment Opportunity Commission,
arguing "that his complaint was timely filed under the ‘savings clause’ of the mixed-case
statute, 5 U.S.C. § 7702(f)." Compl. 1120 On December 27, 20l0, the Commission
denied plaintiff’ s appeal, and then, denied plaintiff"s request for reconsideration on

Mar¢h 21, 2011. Compl. 1121.

On April 20, 2011, Schlottman initiated the instant action seeking reinstatement

2 In his MSPB Appeal Forrn, plaintiff indicated that the alleged discrimination was based
on marital status or political affiliation. Def.’s Ex. 4, MSPB Appeal Form, at 6.
Plaintiff now, however, states that this was an "inadvertent" mistake. Pl.’s Opp’n

at 6 n.3.

and back pay, compensatory damages and attomeys’ fees for relief from discrimination

and retaliation in violation of Title VII of the Civil Rights Act of 1964. Compl. 1111 1 & 2.

STANDARD OF REVIEW

Defendant moves to dismiss this action pursuant to Fed. R. Civ. P. l2(b)(6).3
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a forrnulaic recitation of the
elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (citations and quotation marks omitted) (alteration in original). The
complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face."’ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(citation omitted). The court "need not accept inferences drawn by plaintiff[] if such
inferences are unsupported by the facts set out in the complaint." Kowal v. MCI
Commc ’ns Corp., 16 F.3d l271, 1276 (D.C. Cir. l994). The court may, however,
consider "any documents either attached to or incorporated in the complaint and matters
of which [the court] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

3 "[A] Rule 12(b)(6) motion to dismiss for ‘failure to state a claim upon which relief can
be granted’ is the appropriate vehicle to challenge an alleged failure to exhaust." Rosier
v. Holder, No. l0-cv-525, 2011 WL 2516152, at *2 (D.D.C. June 24, 2011) (citing Artz`s

v. Bernanke, 630 F. 3d 1031, 1034 n.4 (D.C. Cir. 2011)).

4

ANALYSIS

Defendant moves to dismiss plaintiff’s claims for failure to state a claim and
failure to exhaust administrative remedies. Plaintiff alleges that he properly exhausted
his administrative remedies and timely filed a mixed case appeal. Compl. 1111 12-22; Pl.’s
Opp’n at 8-l7. Defendant argues that plaintiff did not file a mixed case appeal, but even
if he did, his claims were not preserved by the savings clause because the appeal was not
timely. Def.’s Mot. to Dismiss at 6-10; Def.’s Reply at l-4. Plaintiff counters
that defendant failed to properly inform him of his rights to appeal. Pl.’s Opp’n at 17-20.
Despite these arguments, this Court finds that under any scenario, plaintiff did not

exhaust his administrative remedies, and therefore, his claims must be dismissed.

Before suing under Title VII in district court, an aggrieved party must exhaust his
administrative remedies. See Bowa’en v. Um`ted States, 106 F.3d 433, 437 (D.C. Cir.
l997) (citing Brown v. Gen. Servs. Aa’min., 425 U.S. 820, 832-33 (1976)). Plaintiff had
two administrative channels to challenge his termination as discriminatory. He could file
an EEO complaint with the Department of Labor alleging "discrimination based on race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-16; 29 C.F.R. § l6l4.l03(a).
If a plaintiff elects to proceed in this forum, he first must file an informal complaint with
his employment agency within forty-five days of the effective date of the challenged
action, and then, if notified by the agency of his right to do so, file a formal complaint

within fifteen days after notification. 29 C.F.R. § 1614.l05(a); 29 C.F.R.

§ 1614. l06(a)-(b). Alternatively, plaintiff had the right to directly appeal his termination
to the MSPB challenging his termination as based on marital status or political activities,
or on grounds of improper procedure, while simultaneously challenging the termination
as discriminatory. 5 C.F.R. § 3l5.806(b)-(d). If a plaintiff elects this second option, he
must file his direct appeal within thirty days of the effective date of the challenged action.
5 C.F.R. § 1201.154(a). Either way, however, plaintiff must fully and timely exhaust all
administrative remedies within that option. 29 C.F.R. § l614.302(b); Wz'lson v. U.S.
Dep ’t of T ransp., 759 F. Supp. 2d 55, 63 (D.D.C. 201 1). Unfortunately for Schlottman,
even taking as true all of the allegations in his complaint, his claims must be dismissed as
untimely.

Schlottman did not file a formal EEO complaint until September 17, 2009, four
months after the May 16, 2009 deadline to file expired. Similarly, Schlottman missed the
deadline to file an MSPB discriminatory appeal by not filing the appeal until June 4,
2009, three months after the March 2, 2009 deadline. Schlottman, however, alleges that
he timely exhausted his administrative remedies because he filed a "mixed case appeal,"
preserving his claims under the "savings clause" of the Civil Service Refor1n Act

(“CSRA"), 5 U.s.c. § 7702." Compl. 11 17;1>1.’$ opp’n ar 1 & 10.

4 Plaintiff additionally argues that he was not adequately informed of his rights to appeal.
Pl.’s Opp’n at 17-20. However, plaintiff was informed of his right to appeal to the
MSPB in the Notice of Termination During Probation Period (Def.’s Ex. 1) and of his
right to file an EEO complaint in the Notice of Right to File Discrimination Complaint
(Def.’s Ex. 4). This Court also notes that plaintiff had the assistance of counsel in
navigating the administrative framework.
6

Under the CSRA, a "mixed case" is defined as "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). A "mixed case appeal" is

[A]n appeal filed with the MSPB that alleges that an
appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race, color, religion,
sex, national origin, disability, age, or genetic inforrnation.

29 C.F.R. l614.302(a)(2). Under the CSRA savings provision, "when an employee files
his or her mixed-case appeal in a timely manner, but with the wrong agency, the proper
agency must treat the appeal as having been timely filed there." Frank v. Ridge, 310 F.
Supp. 2d 4, 9 (D.D.C. 2004) (citing Mz`ller v. Dep ’t of Army, 987 F.2d 1552, 1555 (Fed.
Cir. 1993)), ajj"a’ sub nom. Frank v. Cherto]j§ 171 F. App’x 860 (D.C. Cir. 2005).5 But,
the mixed case appeal must nevertheless be filed within thirty days of the challenged

action_here, plaintiff’s termination on January 3l, 2009. 5 C.F.R. § 1201.154(a).

Here, even assuming that plaintiff filed a mixed case appeal with the MSPB, the

savings provision does not apply because it requires that the mixed case appeal be timely

5 The CSRA savings provision states, "[i]n any case which an employee is required to file
any action, appeal, or petition under this section and the employee timely files the action,
appeal, or petition with an agency other than the agency with which the action, appeal, or
petition is to be filed, the employee shall be treated as having timely filed the action,
appeal, or petition as of the date it is filed with the proper agency." 5 U.S.C. § 7702(f`).

7

filed. Since neither plaintiffs appeal to the MSPB nor his appeal to the EEOC was

timely filed, his case must be dismissed.6

CONCLUSION
For all of the foregoing reasons, the defendant’s Motion to Dismiss is GRANTED.

An Order consistent with this decision accompanies this Memorandum Opinion.

Matm

RICHARD J.‘BE?))N
United States District Judge

6 Although plaintiff’s whistleblower complaint was timely, unfortunately for plaintiff, the
savings provision only applies to complaints filed pursuant to 5 U.S.C. § 7702, not to
whistleblower complaints filed under 5 U.S.C. § 1221. Because plaintiffs complaint to
the OSC included only allegations of whistleblowing, it was not a mixed case complaint.
29 C.F.R. § l6l4.302(a)(1) (definition of mixed case complaint). Further, plaintiff’ s
appeal of the OSC decision was reviewable by the MSPB only on grounds of
whistleblowing, and thus, its mixed case jurisdiction was not invoked. Newcastle v.

Dep ’t of T reasury, 94 M.S.P.R. 242, 246 (2003) ("[Individual Rights of Appeal ("IRA")]
appeals under the WPA are not subject to the provisions of 5 U.S.C. § 7701 or § 7702,
and the Board, therefore, lacks jurisdiction to adjudicate the merits of the personnel action
at issue in an IRA appeal and lacks the authority to decide, in conjunction with an IRA
appeal, the merits of an appellant’s allegation of prohibited discrimination." (citation
omitted)).

