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Bell v. Department of Homeland Security

United States District Court, W.D. North Carolina, Charlotte Division

May 31, 2018

JACQUELINE BELL, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM AND RECOMMENDATION

          David S. Cayer United States Magistrate Judge

         THIS MATTER is before the Court on “Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, ” Doc. 23, and the parties' associated briefs, Docs. 24, 29 and 32.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and the Motion is now ripe for consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be granted in part and denied in part as discussed below.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Taking the facts of the Amended Complaint as true, Plaintiff Jacqueline Bell is an African American female who is over forty years old. Beginning in 2004, she worked at the Charlotte Douglas International Airport as an Assistant Federal Security Director for Screening with the Transportation Security Administration (“TSA”). TSA is a component of the Department of Homeland Security (“DHS”). Deputy Federal Security Director Kurt Jordan, a Caucasian male, was Plaintiff's immediate supervisor. David Wray, also a Caucasian male, became the Federal Security Director in August 2009.

         Plaintiff alleges that she was subjected to wrongful discharge and discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., on the basis of her age, race, and sex. She further alleges that she was subjected to retaliation for engaging in protected equal employment opportunity (“EEO”) conduct. Plaintiff also asserts state law claims for wrongful discharge on the basis of sex, race, and age discrimination in violation North Carolina public policy and the North Carolina Equal Employment Practices Act, N.C. G.S. § 143 - 422.2, et seq.

         On or about September 20, 2011, Plaintiff filed a formal EEO Complaint, No. HS-TSA-01767-2011, with TSA alleging discrimination based upon her race, sex, age, and prior EEO activity as well as hostile work environment. On August 29, 2012, DHS terminated Plaintiff's employment with TSA. On September 24, 2012, Plaintiff appealed her termination to the Merit Systems Protection Board (“MSPB”). On November 14, 2012, Plaintiff filed a second formal EEO Complaint, No. HS-TSA-23243-2012, alleging that she had been subjected to discrimination on the basis of her age, race, and reprisal when she was terminated.

         On November 4, 2013, Plaintiff's first Complaint was dismissed by DHS because she elected to pursue her claims of discrimination as a “mixed case” in an MSPB appeal. See Doc. 23, Exhibit 1, Final Agency Decision, No. HS-TSA-01767-2011 (Nov. 4, 2013). The Procedural Dismissal noted that Plaintiff's second Complaint, HS-TSA-23243-2012, was based upon her termination on November 14, 2012, and since her harassment and termination claims were “inextricably intertwined”, they should both be referred to the MSPB. Id. The Procedural Dismissal also noted that Plaintiff's counsel had contacted the EEOC Administrative Law Judge (ALJ) who was assigned to adjudicate HS-TSA-01767-2011 and requested that that case “be held in abeyance, as she was also pursuing her claims through [MSPB].” Id.

         On February 27, 2013, Plaintiff's second EEO Complaint was dismissed by DHS because “Complainant has already filed, in another forum, an appeal of TSA's termination of her employment.” See Doc. 23, Exhibit 2, Final Agency Decision, No. HS-TSA-23243-2012 (Feb. 27, 2013). The Procedural Dismissal noted that pursuant to 29 C.F.R. § 1614.302(b), “a complainant may file a mixed-case complaint within the EEO process or with the MSPB, but not with both.” Id. Plaintiff first filed with the MSPB, and as of the date of the Procedural Dismissal, her MSPB appeal was still pending.

         A hearing on Plaintiff's appeal to the MSPB was conducted on January 14, February 3-4 and April 29-20, 2014 before ALJ Anthony W. Cummings. The ALJ considered Plaintiff's claims regarding her termination as well as her claims of discrimination on the basis of her age, race, and sex, hostile work environment, and reprisal. On August 14, 2015, the ALJ issued a 106 page Initial Decision, upholding TSA's termination of Plaintiff due to her poor performance. The ALJ found that TSA had articulated a legitimate non-discriminatory reason for its actions. The ALJ specifically found that Plaintiff failed to prove her termination resulted from discrimination on the basis of her age, race, or sex; that she had not been subjected to a hostile work environment; and that she failed to prove she had been subject to retaliation for engaging in protected EEO activity.

         This Initial Decision explained Plaintiff's options for further review, and stated that the decision would become final on September 18, 2015 unless a Petition for Review (“PFR”) was filed by that date. Plaintiff had thirty days to file a PFR with the full Board of the MSPB, or if the Initial Decision was received by Plaintiff or her representative more than five days after it was issued, then thirty days after Plaintiff or her representative actually received the Initial Decision. Alternatively, Plaintiff could request review of the Initial Decision on her discrimination claims by the EEOC in accordance with 5 U.S.C. § 7702(b)(1), not later than thirty days after the Initial Decision became final. Finally, if she did not request review of the Initial Decision by the EEOC, she had thirty calendar days after the Initial Decision became final to seek review of all of her claims in district court in accordance with 5 U.S.C. § 7703(b)(2).

         Having received the ALJ's Initial Decision on August 16, 2015, Plaintiff elected to file a PFR with the full MSPB on September 17, 2015. In her PFR, Plaintiff challenged only the ALJ's findings regarding her termination and his conclusion that she had not been subject to reprisal for engaging in protected EEO activity. She did not raise her age, race, or sex discrimination claims in her PFR. The MSPB only considered Plaintiff's termination and reprisal claims. On September 22, 2016, the MSPB issued a Final Order affirming the ALJ's findings with regard to Plaintiff's claims for unlawful termination and reprisal.

         The MSPB Final Order advised Plaintiff that she could request review of the final decision on her discrimination claims by the EEOC in accordance with 5 U.S.C. § 7702(b)(1) within thirty days of the date she received the Final Order. Alternatively, she could seek review of the final decision on all of her claims in district court pursuant to 5 U.S.C. § 7703(b)(2) within thirty days of the date ...


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