Squires v. Merit Sys. Prot. Bd.

LARRY SQUIRES, Plaintiff, v. MERIT SYSTEMS PROTECTION BOARD, et al., Defendants.

No. 4:19-CV-5-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION

July 3, 2019

ORDER

On January 3, 2019, Larry Squires ("Squires" or "plaintiff"), proceeding pro se, filed a notice of appeal from a final decision of the Merit Systems Protection Board (the "MSPB") [D.E. 1-1], which dismissed his mixed-case appeal for lack of jurisdiction. On January 7, 2019, Squires filed a petition for review of the MSPB's decision [D.E. 4] and a copy of the MSPB's decision [D.E. 4-1]. On January 22, 2019, Squires refiled his notice of appeal from the MSPB's decision [D.E. 7]. On April 1, 2019, the MSPB and the United States Department of Navy (the "Navy"; collectively, "defendants") moved to affirm the MSPB's decision [D.E. 11], moved to dismiss Squires's discrimination and retaliation claims for lack of subject-matter jurisdiction and failure to state a claim [D.E. 12], filed a memorandum in support of both motions [D.E. 14], and filed the administrative record [D.E. 15-1]. On the same date, the court notified Squires about the motions, the consequences of failure to respond, and the response deadlines [D.E. 16]. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). On April 24, 2019, defendants filed a supplemental memorandum in support [D.E. 17]. On April 26, 2019, Squires responded in opposition [D.E. 19]. On May 9, 2019, defendants replied [D.E. 20]. As explained below, the court affirms the MSPB's decision, denies defendants' motion to dismiss for lack of subject-matter jurisdiction, grants defendants' motion to dismiss for failure to state a claim, and dismisses Squires's discrimination claims without prejudice.

I.

On December 10, 2017, Squires accepted the position of Director, Community Plans and Liaison Office, a GS-0020-13 step 6 position (Supervisory Community Planner), with the Department of Navy, United States Marine Corps. See [D.E. 15-1] 7, 103. On June 22, 2018, Squires e-mailed his commanding officer, Lieutenant Colonel Todd W. Ferry ("Ferry"), and the Director of Manpower Andrew Kowalski ("Kowalski") and stated that he suffered from various medical conditions and that these conditions had become more acute in recent months. See id. at 23-24, 39. For example, Squires told Ferry and Kowalski that he could not use his computer effectively, attend meetings or gatherings, or establish and maintain effective relationships. See id. Squires admitted that his conditions prevented him from fulfilling his duties, and he requested a reasonable accommodation for his current position or assistance in obtaining a new position at the same grade or pay level. See id. at 24, 39.

On June 25, 2018, Kowalski put Squires in contact with Equal Employment Opportunity ("EEO") personnel to discuss Squires's request for a reasonable accommodation or reassignment. See id. at 24. Mike Arkin ("Arkin"), an EEO Manager, met with Squires and informed Squires that finding an accommodation or reassignment would be difficult due to Squires's responsibilities. See id. On June 28, 2018, Squires requested and received the Family Medical Leave Act ("FMLA") forms required to request medical leave. See id. On the same day, Squires sent Arkin written questions concerning disability retirement and the reasonable accommodation process. See id.

On June 29, 2018, Squires claims that Rhonda Murray ("Murray"), a Navy Community Plans and Liaison Officer for the Mid-Atlantic region and later Squires's immediate supervisor, "reached out to [Squires] under the pretext of discussing [Department of Transportation] funding sources available to the [Department of Defense]." Id.; see [D.E. 14-1]. Squires claims that Murray did so because he had significant experience with transportation programs and projects. See [D.E. 15-1] 24. Squires also claims that Murray had been considered for the same position that Squires accepted. See id. On July 20, 2018, Kowalski told Squires that defendants wished to replace Squires with Murray as soon as possible. See id. at 26-27. Squires told Kowalski that he planned to take FMLA leave while awaiting more information from his doctors concerning his medical conditions. See id. at 27.

On July 26, 2018, Squires told Lieutenant Colonel Spangenberger ("Spangenberger") that he believed that any efforts to replace him with Murray constituted discrimination based on his perceived disability. See id. On or about the same day, Squires met with Kowalski and an EEO official to discuss FMLA leave options. See id. at 28. Squires alleges that he told Kowalski about a time when Squires's commanding officer laughed at Squires's medical conditions and stated that, having learned more about Squires's medical history, his commanding officer understood Squires better. See id. Squires told Kowalski that he wanted a transfer to a temporary position under the FMLA while he sought treatment for his medical conditions. See id.

On August 5, 2018, Squires received a step increase. See id. at 29. On August 7, 2018, Squires's doctor faxed the medical certification for his FMLA to defendants. See id. On the same day, Kowalski and Spangenberger met with Squires. See id. At the meeting, they informed Squires that they had created a new position for Squires. See id. The position had the same grade, same pay, and many of the same duties, but it left out supervisory duties that Squires had said that he could not fulfill. See id. Furthermore, they told Squires that, if he came back from medical leave, he would return to the newly-created position and Murray would take Squires's former position. See id. Squires objected to this arrangement because he believed that reassignment to a permanent position would constitute disability discrimination in violation of the FMLA. See id. Instead, Squires requested a temporary reassignment that left him the option of returning to his current position. See id. Kowalski told Squires that a temporary reassignment was not possible because it would prevent defendants from filling Squires's old position while he was away on medical leave. See id. Squires also claimed that he had not officially requested a reassignment or reasonable accommodation. See id. at 29-30.

On August 30, 2018, defendants reassigned Squires to the newly-created Community Planner position at the same grade and pay¹ effective September 4, 2018. See id. at 83, 103. On September 4, 2018, Squires e-mailed Kowalski to decline the reassignment because he believed that the reassignment was "unreasonable as well as discriminatory—and, probably violates a few prohibited personnel practices and merit system principles." Id. at 102. On September 24, 2018, Squires e-mailed Kowalski and claimed that Navy personnel had "exercised an obscene amount of discretion" in reassigning Squires to a new position to fill his former position with Murray and that he wished to file a complaint alleging retaliation and discrimination. Id. at 106-07. Squires also asked to be placed on paid medical leave while his discrimination complaints were resolved. See id. at 107. On September 25, 2018, Squires met with Navy officials. See id. at 113-14. At the conclusion of the meeting, Navy officials refused to reconsider the decision to reassign Squires. See id. at 113.

On October 10, 2018, Squires submitted a notice of his resignation and applied for immediate retirement. See id. at 7. On the same date, Squires filed an "appeal of constructive removal and violation of prohibited personnel practices, discrimination, retaliation, and harassment with motion to stay" with the MSPB. Id. at 4. Liberally construed, Squires alleged that Navy personnel had deceived him concerning his leave options and discriminated against him based on his medical disabilities, failed to accommodate his medical needs, retaliated against him, and created a hostile work environment. See id.

On October 15, 2018, the MSPB instructed Squires to produce evidence that showed it had jurisdiction over his claims. See id. at 167-68. On October 18, 2018, Squires responded, adding a claim under the Whistleblower Protection Act of 1989 ("WPA") and clarifying that his complaint was for constructive removal resulting in his involuntary retirement See id. at 190-91. On October 24, 2018, the MSPB ordered Squires to produce evidence that he exhausted administrative remedies before the Office of Special Counsel ("OSC"). See id. at 201-03.

On November 15, 2018, an administrative law judge ("ALJ") issued an initial decision dismissing Squires's appeal for lack of jurisdiction. See [D.E. 4-1] 1-2. After recounting the undisputed facts, the ALJ found that Squires had "not demonstrated or even alleged that the agency's reassignment action resulted in a reduction in his grade or pay." Id. at 3. Moreover, the ALJ found that Squires had not alleged or produced any evidence that he exhausted his administrative remedies concerning his WPA claim. See id. After denying Squires's motion to stay, the ALJ denied Squires's motion to certify interlocutory review to the MSPB. See id. at 3-4. On December 20, 2018, the decision became the MSPB's final decision. See id. at 5. On January 3, 2019, Squires appealed [D.E. 1-1].

II.

Defendants argue that the court should affirm the MSPB's dismissal of Squires's claims for lack of jurisdiction. The Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 1101 et seq., permits a federal employee subjected to an adverse personnel action to appeal the relevant agency's decision to the MSPB in some circumstances. See 5 U.S.C. §§ 1221(a), 7512, 7701; Kloeckner v. Solis, 568 U.S. 41, 43-44 (2012). The CSRA provides a statutory framework for administrative and judicial review of employment decisions involving certain federal employees. See Chin-Young v. United States, No. 17-2013, 2019 WL 2114737, at *4 (4th Cir. May 14, 2019) (unpublished). Although generally judicial review of MSPB decisions...