United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge
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.
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.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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.
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.
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
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.
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
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).
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.
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 ...