Pearson v. Chao ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLIFFORD D. PEARSON
Plaintiff,
Civil Action No: 17-1965
v.
ELAINE L. CHAO, Secretary,
U.S. Department of Transportation,
Defendant.
MEMORANDUM OPINION
Plaintiff Clifford D. Pearson, a former federal employee,
brings this action against Elaine L. Chao, Secretary of the
United States Department of Transportation (“DOT” or
“Defendant”). Mr. Pearson alleges, inter alia, violations of
employment discrimination based on his color and race, pursuant
to Title VII of the Civil Rights Act, 42 U.S.C. § 20003 et seq.
(“Title VII”) and discrimination based on his disability
pursuant to the Rehabilitation Act of 1973, 29 U.S.C § 790 et.
seq. (“Rehabilitation Act”). Am. Compl., ECF No. 8. Pending
before the Court is defendant’s renewed motion to dismiss Mr.
Pearson’s amended complaint. Upon careful consideration of
defendant’s renewed motion to dismiss, plaintiff’s opposition,
the defendant’s reply thereto, and for the reasons discussed
below, defendant’s renewed motion to dismiss is GRANTED.
I. Background
Mr. Clifford Pearson is an African-American man who was
formerly employed with DOT. He has several grievances with DOT
that relate to DOT’s alleged failure to provide reasonable
accommodations for him when he was temporarily disabled and DOT’s
alleged discrimination against him because of his race.
The first grievance relates to DOT’s alleged discriminatory
treatment based on Mr. Pearson’s disability. While employed at
DOT, Mr. Pearson suffered an injury to his spine that disabled him
temporarily. Am. Compl., ECF No. 8 at 21. This injury led to a
diagnosis of a cervical spine fracture, and Mr. Pearson was
medically required to wear a cervical collar for an extended
period of time. Id. From July 2014 to November 2014, he requested
accommodations for his temporary disability in the form a
“telework agreement, office work station modification, and mix use
of telework hours and sick leave.” Id. at 2, 11. He provided a
doctor’s note on September 25, 2014, with a diagnosis and a
recommendation that Mr. Pearson be allowed to work the maximum
number of teleworking days the agency allows weekly for a total of
12 weeks. Id. at 24–25. DOT authorized Mr. Pearson’s request for
reasonable accommodations on October 10, 2014. Id. at 32. After
authorizing the accommodations, DOT required Mr. Pearson to check
in monthly to determine his medical status. Id. at 33-34.
The second grievance relates to DOT’s alleged discriminatory
2
treatment based on DOT’s failure to promote Mr. Pearson. Mr.
Pearson applied for an open position of Realty Specialist and, in
early March, the application tracking system indicated that his
application met the vacancy requirements and had been referred to
a manager. Id. at 40. Around that same time, Mr. Pearson sent an
anonymous letter to EEOC complaining about discrimination in DOT’s
hiring practices. Id. at 43.
Mr. Pearson was interviewed for the Realty Specialist
position, but on July 21, 2016, he received an email informing him
that another candidate was selected. 1 Id. at 42. Mr. Pearson
learned that a Caucasian woman was chosen instead. Id. When he
asked for advice on ways to be more competitive for any future
comparable positions, he was told “you are not politically
connected” and “you’re taking advice from the wrong people.” Id.
Mr. Pearson alleges he was denied the promotion because of his
race, and in retaliation for the anonymous complaint that he
filed. Id. at 42–43. He also alleges that he was denied the
position because of his prior requests for leave and telework
1 Mr. Pearson’s complaint contains conflicting dates for when he
was denied the promotion. The Amended Complaint initially refers
to an April 19, 2016 date as the day he was “not selected for the
promotion position of Realty Specialist.” Am. Compl., ECF No. 8 at
11. However, later in the complaint, Mr. Pearson states that “[o]n
July 21, 2016, [he] received a USDOT email stating . . . ‘another
candidate was selected’” for the position. Id. at 42. Construing
the complaint in the light most favorable to Mr. Pearson, the
Court will assume he meant the later of the two dates. However,
for the reasons that follow, the analysis remains unchanged
regardless of which date Mr. Pearson was denied the promotion.
3
accommodations, and because he refused to disclose his medical
information during telework check-ins. Id. at 3.
Mr. Pearson’s last grievance relates a performance review he
received on July 14, 2016, that stated he “Achieved Results.” Id.
at 12. This rating meant that he “achieved the results listed in
[his] performance plan” Id. Mr. Pearson argues that this
performance review “evidenced his ability to perform his duties
and qualifications to be promoted from within the Agency.” Id. at
12. 2
On October 25, 2016, Mr. Pearson made an initial contact with
an Equal Employment and Opportunity (“EEO”) counselor to discuss
what he believed were discriminatory actions by DOT which he
alleged began in September 2014 and continued until October 20,
2016. Am. Compl., Ex. A, ECF No. 9 at 5. He filed a formal
complaint on December 30, 2016, alleging that he was discriminated
by DOT because of his disability when DOT failed to provide a
reasonable accommodation during the months of September to
November 2014, and when DOT failed to promote him because of his
color and race. Am. Compl., ECF No. 8 at 3. Generally, Mr. Pearson
alleged that all African-American employees in his office were not
considered for promotion beyond a certain paygrade, while
Caucasian employees were considered for promotion. See id. at 10.
2 The EEO treated this statement as a separate claim that he was
discriminated against because of his race. Am. Compl., Ex. B, ECF
No. 9-1 at 4.
4
On February 28, 2017, the Departmental Office of Civil Rights
(“DOCR”) notified Mr. Pearson of its final decision to dismiss his
complaint in its entirety. Am. Compl., Ex. B, ECF No. 9-1 at 5.
DOCR first explained that EEOC regulations required Mr. Pearson to
make first contact with an EEO counselor within 45 days of the
alleged discriminatory actions. Id. DOCR reasoned that his first
claim based on a request for a reasonable accommodation occurred
from “September 2014 to November 2014,” over two years before he
contacted an EEO counselor. Id. His second claim, related to a
July 3, 2015 3 leave request, occurred over a year before he
contacted the EEO counselor. Id. His third claim, that he was
discriminated against because of his race when he was notified
that he did not get a promotion on April 19, 2016, occurred over
six months before he made contact. 4 Id. Finally, his fourth claim,
that on July 14, 2016, he received a performance appraisal rating
of “Achieved Results,” occurred over two months before he
contacted the EEO counselor. Id. Because all of the alleged
discriminatory acts occurred outside the 45-day window, Mr.
Pearson’s complaint was dismissed based on untimely contact with
the EEO counselor. Id. (citing 29 C.F.R. § 1614.107(a)(1)). DOCR
3 Mr. Pearson was not disabled in July 2015, it is unclear if this
date is a clerical error and actually refers to a July 2014 date.
Either way, the analysis remains unaffected because either time
period would have fallen outside the 45-day window.
4 Under the July 21, 2016 promotion denial date, this would have
been over two months months before his contact with the EEO
counselor.
5
informed Mr. Pearson that he could appeal the decision to the
Office of Federal Operations (“OFO”) or file a civil action in a
U.S. District Court. Id.
Mr. Pearson notified DOCR of his intent to appeal the final
decision to the OFO but failed to file a supporting brief. Am.
Compl., Ex. B, ECF No. 9-1 at 8–10. Defendant filed a brief in
opposition, arguing the claims were properly dismissed by the
agency because Mr. Pearson failed to timely initiate contact with
the EEOC. See generally Am. Compl., Ex. D, ECF No. 9-2.
OFO reversed the final agency action dismissing the
complaint. Am. Compl., Ex. E, ECF No. 9-3. OFO reasoned that
although all of the specific examples of racial and disability
discrimination cited by DOT in its dismissal occurred well before
the 45-day limit, Mr. Pearson “alleged discriminatory events from
2014 through his departure from Agency employment on October 30,
2016.” Id. at 8. OFO explained that because the incidents that
make up a hostile environment claim collectively constitute one
unlawful employment practice, the entire claim is actionable, as
long as at least one incident that is part of the claim occurred
within the filing period. Id. at 9. OFO ruled that “various
incidents comprising Mr. Pearson’s hostile work environment claim
occurred within the 45-day period preceding [Mr. Pearson’s] EEO
counselor contact.” Id. Specifically, OFO explained that Mr.
Pearson noted that although DOT had an official policy of not
6
granting same-day requests for leave/telework, another employee
regularly requested such leave. Id. OFO referenced an October 20,
2016 email in which an employee expressed her intention to
telework and take leave on that same day. Id. at 8.
As to the disability claim, OFO stated that Mr. Pearson’s
complaint could be construed as a denial of a reasonable
accommodation, or as an agency action that caused him to cease
receiving a reasonable accommodation earlier than contemplated.
Id. at 9. OFO explained that “because an employer has an ongoing
obligation, to provide a reasonable accommodation, failure to
provide such an accommodation constitutes a violation each time
the employee needs it.” Id. (citation omitted). OFO remanded the
matter to DOT for further processing and investigation in
accordance with OFO’s order. Id. at 9–10. OFO also informed Mr.
Pearson of his right to file a civil action on the underlying
complaint. Id. at 10. If a civil action is filed, the
administrative proceedings would be terminated. Id. (citing 29
C.F.R. § 1614.409).
Rather than take his chances with DOT, Mr. Pearson filed a
complaint in this Court. Mr. Pearson failed to respond to
defendant’s first motion to dismiss but subsequently filed an
amended complaint alleging several new claims. Am. Compl., ECF No.
8. Defendant has filed a renewed motion to dismiss which is now
ripe for adjudication. Def.’s Mot. to Dismiss, ECF No. 15.
7
II. Legal Standard
Both the Rehabilitation Act and Title VII claims impose
administrative exhaustion requirements. The exhaustion requirement
under the Rehabilitation Act is jurisdictional, and therefore
reviewed under the standard set forth in Federal Rule of Civil
Procedure 12(b)(1), when a plaintiff “fail[s] to file an
administrative complaint or to obtain any administrative decision
at all.” Doak v. Johnson, 798 F.3d 1096, 1103. However, when a
plaintiff allegedly fails to exhaust their administrative
remedies due to a failure to comply with a regulatory requirement
the defect is not jurisdictional, and therefore reviewed under the
standard set forth in Rule 12(b)(6). Id. The Title VII exhaustion
requirement, “though mandatory, is not jurisdictional,” and
therefore the alleged failure to do so should also be analyzed
under Rule 12(b)(6). Douglas v. Donovan, 559 F.3d 549, 556 n.4
(D.C. Cir. 2009).
On a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Rule 12(b)(6), the court
will dismiss a claim if plaintiff’s complaint fails to plead
“enough facts to state a claim for relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To survive a motion to dismiss, the language in the complaint must
“possess enough heft to ‘sho[w] that the pleader is entitled to
relief.’” Twombly, 550 U.S. at 557 (citing Fed. R. Civ. P.
8
8(a)(2)). A court need not deny a motion to dismiss or convert it
to a summary judgment motion simply because it refers to materials
outside the pleadings if the materials are attached or referred to
in the complaint. Vassar v. McDonald, 228 F. Supp. 3d 1, 9-12
(D.D.C. 2016).
III. Analysis
Federal law protects federal employees from discrimination on
the basis of their race or disability in employment. See 29 U.S.C.
§ 794 (disability); 42 U.S.C. § 2000e–2 (race). If a federal
employee wishes to bring suit against his or her employer, the
employee must first “navigate a maze of administrative processes.”
Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017).
The procedures are the same for claims under both Title VII
and the Rehabilitation Act. 29 C.F.R. § 1614.103(a) (describing
the same procedure for claims under either statute). First, “[a]n
aggrieved person must initiate contact with a Counselor within 45
days of the date of the matter alleged to be discriminatory or, in
the case of personnel action, within 45 days of the effective date
of the action.” 29 C.F.R. § 1614.105(a). The 45-day period begins
to run when an employee has a “reasonable suspicion” of a
discriminatory action. Adesalu v. Copps, 606 F. Supp. 2d 97, 102
(D.D.C. 2009). If the matter is not resolved informally, the
counselor shall inform the employee in writing of the right to
sue, and the employee must file a formal complaint of
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discrimination with the agency. See 29 C.F.R. §§ 1614.105(d),
1614.106(a)-(c); Bowie v. Ashcroft, 283 F. Supp. 2d 25, 33 (D.D.C.
2003). The agency must then investigate the matter, after which
the complainant may demand an immediate final decision from the
agency or a hearing before an EEOC administrative judge. See 29
C.F.R. §§ 1614.106(e)(2), 1614.108(f). A complainant may file a
civil action within 90 days of receiving a final decision from the
agency or after a complaint has been pending before the EEOC for
at least 180 days. See 42 U.S.C. § 2000e–16(c); 29 C.F.R. §
1614.407; Price v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006).
Defendant moves to dismiss all of Mr. Pearson’s claims based
on one theory: Mr. Pearson failed to exhaust administrative
remedies because all acts on which he claims discrimination
occurred before the 45-day window. See generally Def.’s Mot. to
Dismiss, ECF No. 15. The Court addresses each claim in turn.
A. Rehabilitation Act Claim
“The exclusive remedy for federal employees alleging that
federal agencies engaged in disability discrimination is Section
501 of the Rehabilitation Act” Rand v. Geithner, 609 F. Supp. 2d
97, 100 (D.D.C. 2009). A federal employee “may file a . . .
Rehabilitation Act action in federal court only after exhausting
their administrative remedies before the relevant federal agency
for each allegedly discriminatory act.” Mahoney v. Donovan, 824 F.
Supp. 2d 49, 58 (D.D.C. 2011), abrogated on other grounds, Doak,
10
798 F.3d at 1103.
Relevant to this case, the Rehabilitation Act requires that
an employee first initiate the administrative process by notifying
an EEO counselor within 45 days of the alleged discriminatory act.
See 29 C.F.R. § 1614.105(a)(1); see also Rand, 609 F. Supp. 2d at
100. Any allegations that are not timely raised with an EEO
counselor “cannot form the basis for a subsequent suit.” Mohmand
v. Broad. Bd. of Governors, No. CV 17-618, 2018 WL 4705800, at *4
(D.D.C. Sept. 30, 2018)(citing Mount v. Johnson, 36 F. Supp. 3d
74, 83 (D.D.C. 2014)). “When an employee alleges that he or she
was the victim of a discrete or discriminatory act, the timeliness
inquiry focuses on that particular act.” Id. (citing Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)).
“Importantly, ‘discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in [a]
timely’ manner in the administrative process.” Id. (citation
omitted).
It is undisputed that Mr. Pearson made initial contact with
an EEO counselor on October 25, 2016, and, therefore, he only
timely exhausted “discrete discriminatory act[s]” that occurred
within 45 days of this date. See 29 C.F.R. § 1614.105(a)(1).
Accordingly, this Court may review any conduct that occurred on or
after September 10, 2016-- 45 days before Mr. Pearson made initial
contact. See Morgan, 536 U.S. at 110. However, Mr. Pearson has not
11
identified in his administrative complaint any discriminatory
conduct that occurred within the relevant time frame. In Mr.
Pearson’s administrative complaint, he stated that he was denied
reasonable accommodations from “September 2014 to November 2014.”
Am. Compl., Ex. B, ECF No. 9-1 at 4. Even taken as true, Mr.
Pearson had 45 days from the time when he was denied a reasonable
accommodation to make an initial contact with the EEO counselor.
He did not do so until well over a year later. 5
The only alleged incident identified in Mr. Pearson’s
complaint that falls within this time-frame is the allegation that
although DOT had a policy of not approving leave and telework
requested on the same day, a new employee regularly made such
requests whereas Mr. Pearson’s similar request on July 3, 2014 was
denied. Am. Compl., Ex. A, ECF No. 9 at 20. It appears that OFO
was persuaded that this incident brought Mr. Pearson within the
45-day window because Mr. Pearson attached an “October 20, 2016
email from [the other employee] reflecting her intention to
telework and take leave on that same day.” Am. Compl., Ex. E, ECF
No. 9-3 at 8. However, this incident relates to Mr. Pearson’s
allegation that he was denied a reasonable accommodation in July
5 In Mr. Pearson’s opposition to the motion to dismiss he concedes
that “the facts and claims in [his] EEO complaint are evidence
that Defendant denied [his] request for reasonable accommodation
[from] August 2 to December 25, 2015.” Pl.’s Opp’n, ECF No. 17 at
23. Under this calculation he would have had 45 days (i.e. January
20, 2016) to make an initial contact with the EEO counselor. He
did not do so until ten months later.
12
2014 as evidence by his explicit reference to his July 3, 2014
leave request date. Am. Compl., Ex. A, ECF No. 9 at 20 (DOT “has a
policy of not approving leave and telework on the same day as
exhibited by Mr. Pearson’s leave that was disapproved on
7/3/14.”). As such, this incident relates to an alleged
discriminatory act that occurred two years-prior to when Mr.
Pearson made initial contact with the EEO counselor. Therefore,
the discrete discriminatory act was well outside the 45-day time
requirement.
OFO noted that in Mr. Pearson’s formal complaint that he
“provided a chronological narrative of alleged discriminatory
events from 2014 through his departure . . . on October 30, 2016.”
Am. Compl., Ex. E, ECF No. 9-3 at 8. The example cited by OFO is
Mr. Pearson’s allegation that he was subject to coercive questions
causing him to “end his ‘reasonable accommodation for telework
early.’” Id. OFO also noted that because an employer has an
ongoing obligation to provide reasonable accommodations, the
failure to do so constitutes a violation every time an employee
needs the accommodation. Id. (citations omitted). The problem with
this reasoning is that there is nothing in the record that
suggests that Mr. Pearson requested an accommodation at any point
in 2016, or that he was denied one. In fact, Mr. Pearson
explicitly states that the dates on which he was denied reasonable
accommodations were from “September 2014 to October 2014.” Am.
13
Compl., ECF No. 8 at 2. 6 Mr. Pearson, however, did not contact an
EEO counselor until over a year later.
Mr. Pearson has failed to allege any discriminatory conduct
within the 45-day requirement. Accordingly, the Court concludes
that he has failed to exhaust his administrative remedies and
GRANTS the defendant's motion to dismiss Mr. Pearson’s
Rehabilitation Act claim.
B. Title VII Claim
Mr. Pearson’s next claim is that DOT discriminated against
him on the basis of race in violation of Title VII. Under Title
VII, a plaintiff is also required to exhaust his administrative
remedies before seeking relief from a federal court. Bowden v.
United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“[Title VII]
complainants must timely exhaust these administrative remedies
before bringing their claims to court.”).
A plaintiff alleging a Title VII discrimination claim is
subject to the same exhaustion requirements described above,
namely a plaintiff must: (1) contact his agency’s EEO office
within 45 days of the action giving rise to his discrimination
claim, 29 C.F.R. § 1614.105(a)(1); and (2) file a formal complaint
of discrimination before filing suit in federal court. 29 C.F.R. §
1614.407; see also 42 U.S.C. § 2000e-16(c) (Title VII statutory
6 There is a discrepancy between the dates Mr. Pearson cites in
his amended complaint, September to October 2014, and the dates
cited in the administrative filings, September to November 2014.
In either case, both dates fall well outside the 45-day deadline.
14
timeliness requirements equivalent to EEOC rules 1614.407(a) and
(b)).
Mr. Pearson alleges three discrete discriminatory acts. The
first act occurred on July 3, 2015 when his leave request was not
approved. The second act was on or about April 19, 2016, when he
was not selected for a promotion. 7 The last occurred on July 14,
2016, when he received his performance rating. The 45-day
deadlines for each claim would have accrued on August 18, 2015,
August 5, 2016, and August 30, 2016, respectively. Mr. Pearson’s
initial contact post-dated all of these deadlines, and therefore
he failed to meet the 45-day requirement for any of his claims.
OFO was apparently convinced that Mr. Pearson’s claims
survived because he alleged a hostile work environment. See Am.
Compl., Ex. E, ECF No. 9-3. The Supreme Court has held that a
person alleging a hostile work environment will not be time barred
if all acts constituting the claim are part of the same unlawful
practice, and at least one act falls within the filing period.
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002). In this case, even if Mr. Pearson had properly alleged a
hostile work environment, at least one of the alleged
discriminatory acts would need to fall within the 45-day initial
contact period. However, he has alleged no discriminatory acts
7 Again, Mr. Pearson provides inconsistent dates for when he was
denied the promotion. However, neither the April 19, 2016 date or
the July 16, 2016 date fell within the 45-day requirement.
15
that fall within the timeframe. Because none of Mr. Pearson’s
alleged acts of discrimination fall within the 45-day timeframe,
his hostile work environment claim must fail. See Morgan, 536 U.S.
101. Therefore, the Court GRANTS the defendant's motion to dismiss
Mr. Pearson’s Title VII claim.
C. Miscellaneous Claims
In both Mr. Pearson’s amended complaint and his opposition to
DOT’s renewed motion to dismiss, Mr. Pearson asserts several new
claims not considered by EEO. The three new claims in the amended
complaint are as follows: (1) a claim for retaliation; (2)
violations of several Executive Orders and agency policies which
were also a breach of contract; and (3) violation of the
Constitution. A fourth new claim, one for violation of the Privacy
Act, was referenced in Mr. Pearson’s opposition to DOT’s renewed
motion to dismiss. See Pl.’s Opp’n, ECF No. 17 at 35 (referencing
“privacy claims”). Because Mr. Pearson failed to present these
claims to the appropriate agency, the Court may not consider them.
“A plaintiff fails to exhaust her administrative remedies
when the complaint she files in federal court includes a claim
that was not raised in the administrative complaint.” Mogenhan v.
Shinseki, 630 F. Supp. 2d 56, 60 (D.D.C. 2009). As the D.C.
Circuit has explained: “[A]llowing a complaint to encompass
allegations outside the ambit of the predicate EEOC charge would
circumvent the EEOC's investigatory and conciliatory role, as well
16
as deprive the charged party of notice of the charge, as surely as
would an initial failure to file a timely EEOC charge.” Marshall
v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997). This
exhaustion requirement is not a “mere technicality,” but “serves
the important purposes of giving the charged party notice of the
claim and ‘narrow[ing] the issues for prompt adjudication and
decision.’” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995).
Mr. Pearson argues that he was retaliated against for filing
an anonymous complaint to the EEOC. See Am. Compl., ECF No. 8 at
19. This claim is cognizable under two theories. One theory is a
Title VII retaliation claim. For the reasons stated above, Mr.
Pearson failed to exhaust this claim when he failed to present it
in his administrative complaint in a timely manner. See supra at
14–15. The second theory is a violation of the Whistleblower
Protection Act, Pub. L. No. 101-12, 103 Stat. 16 (1989)(codified
in scattered sections of 5 U.S.C.). However, such a claim may not
be brought directly in federal court. See Stella v. Mineta, 284
F.3d 135, 142 (D.C. Cir. 2002)(“Under no circumstances does the
[Whistleblower Protection Act] grant the District Court
jurisdiction to entertain a whistleblower cause of action brought
directly before it in the first instance.”). Accordingly, the
Court GRANTS the defendant's motion to dismiss the retaliation
claim.
17
Mr. Pearson next argues that DOT violated several
Presidential Executive Orders, DOT policies, contracts, and the
Constitution. See Am. Compl., ECF No. 8 at 22. Mr. Pearson has
also failed to exhaust these claims. The Civil Service Reform Act
of 1978 (“CSRA”), Pub. L. No. 95–454, 92 Stat. 1111, provides an
exclusive system for challenging personnel actions taken against
covered federal employees. Grosdidier v. Chairman, Broadcasting
Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009) stating the
CSRA is “comprehensive and exclusive”). The CSRA also applies to
constitutional challenges. Elgin v. Department of Treasury, 567
U.S. 1, 23 (2012)([B]ecause the MSPB's expertise can otherwise be
“brought to bear” on employee appeals that challenge the
constitutionality of a statute, we see no reason to conclude that
Congress intended to exempt such claims from exclusive review
before the MSPB.”).
Under the CSRA, the plaintiff has the right to a hearing
before the Merit System Protection Board (“MSPB”) and is also
entitled to judicial review in the United States Court of Appeals
for the Federal Circuit if the MSPB issues an adverse final
decision. See Elgin, 567 U.S. at 5 (explaining statutory scheme).
Because Mr. Pearson failed to bring his claims through the CSRA
before filing in District Court, the Court GRANTS the defendant's
motion to dismiss Mr. Pearson’s various claims related to the
violation of agency orders, breach of contract, violation of
18
Executive Orders, and constitutional claims.
Finally, in his opposition, Mr. Pearson alleges that DOT
attempted to force him to disclose protected confidential
information in violation of the Privacy Act of 1974, 5 U.S.C. §
552a. Pl.’s Opp’n, ECF No. 17 at 15, 29, 39. As with the other
claims, this is the first time Mr. Pearson has brought this claim.
Because Mr. Pearson failed to exhaust his administrative remedies
the Court GRANTS the defendant's motion to dismiss Mr. Pearson’s
Privacy Act claim. See Haase v. Sessions, 893 F.2d 370, 373 (D.C.
Cir. 1990)(explaining Privacy Act exhaustion requirements).
IV. Conclusion
For the foregoing reasons, the Court GRANTS defendant’s
renewed motion to dismiss. An appropriate order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 28, 2019
19