Opinion
Civil No. 05cv0149-L(BLM), Docket No. 3, 35, 37.
March 13, 2006
This matter comes before the Court on Defendant Gordon R. England's Motion to Dismiss or, in the Alternative, Summary Judgment. The Court finds the motion suitable for determination on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1).
APPLICABLE ADMINISTRATIVE REMEDIES
In 1978, Congress passed the Civil Service Reform Act, which, inter alia, created the MSPB "as a quasi-judicial Government agency to adjudicate Federal employee appeals of agency personnel actions." Sloan v. West, 140 F.3d 1255, 1258-59 (9th Cir. 1998). The MSPB oversees and protects the merit system and adjudicates conflicts between Federal employees and their employers. Id. at 1259. The MSPB reviews "adverse employment actions" that are one of the following: (1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; or (5) a furlough of 30 days or less. 5 U.S.C. § 7512(1)-(5); Sloan, 140 F.3d at 1259.
The CSRA allows federal employees to challenge "prohibited personnel practices" by their supervisors. 5 U.S.C. § 2302.
The MSPB also has pendent jurisdiction over discrimination claims brought in connection with an "adverse action" otherwise appealable to the MSPB. 29 C.F.R. § 1614.302; Sloan, 140 F.3d at 1259. "This presents an employee with an option not usually available when he or she seeks to pursue a claim of discrimination." Sloan, 140 F.3d at 1259. A federal employee asserting a discrimination claim under Title VII of the Civil Rights Act must exhaust his administrative remedies as a precondition to filing a civil action in federal district court. Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001); Sloan, 140 F.3d at 1259; McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995). The employee must first consult with an Equal Employment Office ("EEO") counselor within 45 days of the alleged discriminatory act or effective date of the personnel action. 29 C.F.R. § 1614.105(a)(1). Then the employee must file a formal EEO complaint with the head of his agency. 29 C.F.R. § 1614.106; Sloan, 140 F.3d at 1259. Once the agency issues a final decision, the employee may appeal the agency's decision to the Equal Employment Opportunity Commission ("EEOC"), or alternatively, file a civil suit in federal district court. Sloan, 140 F.3d at 1259.
However, when a federal employee contends he has been affected by both an "adverse employment action" and a related Title VII violation — a paradigmatic "mixed case complaint" — the employee may elect to file a complaint with his agency's EEO department or assert both claims before the MSPB in order to satisfy the exhaustion of administrative remedies requirement. 5 U.S.C. § 7702; 29 C.F.R. § 1614.302; Sloan, 140 F.3d at 1259; McAdams, 64 F.3d at 1141. If an employee files a mixed case complaint with the agency's EEO and wishes to preserve both claims, he must appeal the EEO's decision to the MSPB, not the EEOC; otherwise, the employee will be deemed to have waived the non-discrimination claim. Sloan, 140 F.3d at 1260.
While a federal employee can choose between filing an EEO complaint with his agency and asserting his discrimination and non-discrimination claims before the MSPB, he cannot do both. See 29 C.F.R. § 1614.302(b) ("An aggrieved person may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both."); Carlson v. Veneman, 2002 WL 413807, at *2 (N.D. Cal. Mar. 12, 2002) (discussing 29 C.F.R. § 1614.302(b)). Under 29 C.F.R. § 1614.107, "an agency is required to dismiss [an EEO] complaint that raises claims also raised in an appeal to the MSPB"). Carlson, 2002 WL 413807, at *2; see 29 C.F.R. § 1614.107(a)(4) (requiring dismissal of an EEO complaint "[w]here the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the Merit Systems Protection Board and § 1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO process.").
"If 120 days have passed without a judicial reviewable action by the EEO department of the agency, the employee may appeal the matter to the MSPB even in the absence of an agency decision." Nater v. Riley, 114 F. Supp. 2d 17, 24 n. 2 (D.P.R. 2000); 5 U.S.C. § 7702(e)(2).
If the employee files an appeal with the EEOC, "[o]nce the EEOC either investigates and resolves the question, or issues the complainant a `right to sue' letter, he or she may file a civil action in federal district court." Sloan, 140 F.3d at 1259 n. 9. Title VII requires plaintiffs to file a civil action in federal district court within 90 days of receipt of notice of final action by the EEOC. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407.
After the MSPB issues a decision, the employee may file a petition for review to the three member board of the MSPB. 5 C.F.R. § 1201.113-114; Sloan, 140 F.3d at 1260. If the petition for review is denied, the employee can either appeal the discrimination claim to the EEOC or alternatively, appeal the entire case (both discrimination and non-discrimination claims) to the appropriate United States District Court. 5 U.S.C. § 7703(b)(2); Sloan, 140 F.3d at 1260. In contrast to "mixed cases," that can be appealed to the appropriate district court, "MSPB cases that do not raise discrimination claims must be appealed to the United States Court of Appeals for the Federal Circuit." Hays v. Postmaster General, 868 F.2d 328, 330 (9th Cir. 1989); 5 U.S.C. § 7703(b)(1).
BACKGROUND
Plaintiff Thomas G. Calabrese, a Housing Management Assistant at Camp Pendleton, filed an EEO complaint on October 26, 2001, alleging he had been discriminated against because of a mental handicap, depression. While Plaintiff's EEO matter was pending, removal proceedings were initiated against Plaintiff for the following reasons: leaving the work area without authority; unauthorized absence; improper operation of a government vehicle; willful misuse of a government vehicle; providing false statements/information; defiance of authority; and making statements that caused anxiety in the workplace. Plaintiff had been a federal employee for 16 years, including over one year of active duty in the Marine Corps, when on June 20, 2002 he was ordered removed.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. A, Compl. of Discrimination.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. C, Not. of Decision to Effect Removal at 1.
Id. at 3.
Plaintiff administratively appealed the order of removal to the MSPB. Plaintiff had originally raised as defenses whistleblower reprisal and disability discrimination. However, the ALJ's February 21, 2003 order affirming the agency's decision did not address Plaintiff's discrimination defense. Plaintiff subsequently appealed the decision to the full MSPB, which affirmed the ALJ's decision on March 16, 2004. Plaintiff did not appeal the MSPB decision to the Federal Circuit. Instead, Plaintiff filed a petition with the EEOC seeking review of the MSPB's March 16, 2004 decision. The EEOC denied the petition for reconsideration on May 13, 2004, finding that because the MSPB did not address any claims of discrimination, it did not have jurisdiction to review Plaintiff's case regarding his removal.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. B, Calabrese v. Dep't of the Navy, MSPB No. SF-0752-02-0536-I-2 (Feb. 21, 2003).
Id.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. E, Calabrese v. Dep't of the Navy, MSPB No. SF-0752-02-0536-I-2 (Mar. 16, 2004).
Def's Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. G, EEOC's Denial of Consideration at 1.
Id.
While Plaintiff's case proceeded before the MSPB, on March 6, 2003 the Department of the Navy issued its final agency decision and dismissed Plaintiff's EEO complaint that he had filed on October 26, 2001. The dismissal was based in part on the agency's finding that Plaintiff had raised his disability discrimination claims in his MSPB proceedings. Plaintiff appealed the agency's March 6, 2003 decision to the EEOC, and on June 30, 2004, the EEOC affirmed the agency's decision dismissing the EEO complaint.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. F, Dismissal Letter of Discrimination Complaint.
Id. at 4.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. I, EEOC Decision at 3.
Plaintiff filed this action on January 25, 2005. The Complaint alleges his former supervisors harassed him, created a hostile work environment, and discriminated against him. ( See Compl.) He further contends that his former supervisors falsified the charges against him that led to his wrongful termination. Id. Defendant Gordon R. England filed a Motion to Dismiss or, in the Alternative, Summary Judgment. Upon review, the Court found that disposition of the motion would require examination of the evidence extrinsic to the Complaint. The Court gave notice to the parties it would review Defendant's motion under the summary judgment standard set forth in Federal Rule of Civil Procedure 56, and provided the parties with additional time to brief the issues presented. Because Plaintiff is proceeding in pro se, the Court also directed Plaintiff to the requirements of Rule 56.
All future citations to "Rule" refer to the Federal Rules of Civil Procedure.
LEGAL STANDARD FOR SUMMARY JUDGMENT MOTIONS
Rule 56 empowers the court to enter summary judgment on factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material when, under the substantive governing law, it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).
The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party does not have the burden of proof at trial, it may carry its initial burden by "produc[ing] evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). When the moving party bears the burden of proof on an issue — whether on a claim for relief or an affirmative defense — the party "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in its favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); see S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
If the moving party fails to discharge its initial burden of production, summary judgment must be denied and the court need not consider the nonmoving party's evidence, even if the nonmoving party bears the burden of persuasion at trial. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970); Nissan Fire, 210 F.3d at 1102-03. When the moving party carries its initial burden of production, the nonmoving party cannot "rest upon mere allegation or denials of his pleading." Anderson, 477 U.S. at 256. Rather, the non-movant must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotations omitted); Anderson, 477 U.S. at 256; Nissan Fire, 210 F.3d at 1103.
A "genuine issue" of material fact arises if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). When ruling on a summary judgment motion, the court cannot engage in credibility determinations or weighing of the evidence; these are functions for the jury. Anderson, 477 U.S. at 255; Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). The court must view the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1180 (9th Cir. 2002). The court is not required "to scour the record in search of a genuine issue of triable fact," Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted), but rather "may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).
DISCUSSION
Defendant moves for summary judgment arguing this Court lacks subject matter jurisdiction over the Complaint and the Complaint is time-barred. Plaintiff has filed numerous documents in opposition to the motion for summary judgment, and has also filed motions to exclude the decision by the MSPB on the basis the ALJ committed judicial misconduct. Plaintiff's filings relate to the merits of his discrimination claim; in particular, he contends he was improperly denied medical leave when his symptoms of Post Traumatic Stress Disorder — with which he was diagnosed after returning from Vietnam — were triggered by on-the-job stress. Plaintiffs briefs also bear on his claim that his former supervisors filed false charges against him, and retaliated against him for publicly complaining about what he perceived as gross mismanagement of housing at Camp Pendleton. Before the Court can turn to the merits of Plaintiff's claims, the threshold matter that must be addressed is whether this case is properly before the Court. I. Plaintiff's Claims Regarding His Removal
Plaintiff also filed a document in which he contends Defendant wrongfully failed to inform and assist him regarding obtaining the requisite forms for Civil Service Retirement System Disability Annuity. ( See 05cv0149, Dock. No. 28.)
Federal courts have limited jurisdictional power, and therefore, are under a continuing duty to confirm their subject matter jurisdiction over a particular case before reaching the merits of a dispute. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977). "`Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)); see In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988) ("Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing."), overruled on other grounds in Partington v. Gedan, 923 F.2d 686, 688 (9th Cir. 1991).
Defendant contends that this Court lacks subject matter jurisdiction over Plaintiff's claims insofar as he is challenging the MSPB's decision affirming his termination. This Court has jurisdiction to review the MSPB decision only if his MSPB appeal was a "mixed case." 5 U.S.C. § 7703(b)(2); Sloan, 140 F.3d at 1260; Hays, 868 F.2d at 330. However, if it is not a "mixed case," jurisdiction lies only in the Federal Circuit. 5 U.S.C. § 7703(b)(1); Hays, 868 F.2d at 330.
Defendant acknowledges Plaintiff raised his discrimination claims in his MSPB proceedings. However, it appears Plaintiff abandoned those claims and his MSPB case proceeded only as to his removal action and his defense of whistleblower reprisal. Sheryl G. Williams, who observed Plaintiff's MSPB hearing, states in a declaration that Plaintiff's counsel represented at the hearing Plaintiff did not intend to pursue the disability discrimination allegation in the MSPB proceedings, and thus Plaintiff's EEO complaint and MSPB appeal were not consolidated. Evidence submitted by Plaintiff further supports the conclusion that his MSPB appeal did not adjudicate his discrimination claims. An April 2, 2004 letter to the Plaintiff from Dale Larabee, his attorney in the MSPB proceedings, states,
See Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't at 2-3.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. D, Williams Decl.
I understand that someone is questioning whether your EEO complaints were combined with our MSPB hearing.
Absolutely not. I initially recommended combining the two. Judge Bartholomew refused. I cannot remember what position Major Gilbert took. Regardless, Judge Bartholomew ruled the EEO complaints were not combined with the MSPB matters. They weren't. The EEO matters were not tried nor decided.
All your EEO complaints are still alive and well, unless resolved in some what other than at the MSPB hearing.
Plaintiff also submitted a declaration by Mr. Larabee that avers,
Judge Bartholomew made it clear to me during pre-trial conferences that Mr. Calabrese's EEO complaints were immaterial in his opinion. Judge Bartholomew wrote on September 10, 2002 "The basis for the termination is the decision issued by the Agency on June 20, 2002. It is that decision that provides the basis for the Board's decision in this matter." Judge Bartholomew also wrote on September 25, 2002. "The Board has no general jurisdiction to hear claims of discrimination and or unfairness."
Pl.'s Opp'n to Def.'s Mot. for Summ. Judg't, Ex., Letter from Dale Larabee to Tom Calabrese dated April 2, 2004.
Larabee Decl. ¶ 4.
The procedural history of Plaintiff's MSPB case further supports a finding that his MSPB proceedings did not adjudicate Plaintiff's discrimination claims. The MSPB's March 16, 2004 decision itself indicates it was not a "mixed case" as it informs Plaintiff he had the right to request the Federal Circuit to review the decision — that court only has jurisdiction over nondiscrimination claims. See Hays, 868 F.2d at 330. Also, when Plaintiff appealed the MSPB's affirmance of the ALJ's decision to the EEOC, the EEOC denied the appeal on the ground it did not have jurisdiction because "the MSPB did not address any matters within the Commission's jurisdiction," i.e., did not address Plaintiff's allegations of discrimination.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. E, Calabrese v. Dep't of the Navy, MSPB No. SF-0752-02-0536-I-2, at 2 (Mar. 16, 2004).
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. G, EEOC's Denial of Consideration at 1.
Accordingly, because Plaintiff did not adjudicate his discrimination claims before the MSPB, this Court does not have jurisdiction to review any of his claims regarding his removal from his job as Housing Management Assistant. See 5 U.S.C. § 7703(b)(1); Hays, 868 F.2d at 330. Having so concluded, the Court must next consider whether it should transfer this action to the Federal Circuit under 28 U.S.C. § 1631. See Hays, 868 F.2d at 331. This inquiry requires the Court to "consider whether the action would have been timely if it had been filed in the proper forum on the date filed, and if so, whether a transfer would be in the interest of justice." Id. (internal quotations omitted).
Even if the ALJ erred in refusing to consider Plaintiff's discrimination claims, "[a] finding by the MSPB that it lacks jurisdiction to hear a claim is appealable only to the United States Court of Appeals for the Federal Circuit." Nater, 114 F. Supp. 2d at 24; see Sloan, 140 F.3d at 1261-62. On appeal, the plaintiff would have to persuade the Federal Circuit that it was in fact a mixed case. Nater, 114 F. Supp. 2d at 24. "If the plaintiff succeeded in that endeavor, the District Court still would not have jurisdiction over the case. Rather, the Federal Circuit would remand the case to the MSPB, and the MSPB would have to rule on the discrimination claim." Id. at 24-25. "[U]ntil the discrimination issue and the appealable action have been decided on the merits by the MSPB, an appellant is granted no rights to a trial de novo in a civil action under [5 U.S.C.] § 7702 or § 7703." Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244, 1246 (Fed. Cir. 1984); accord Nater, 114 F. Supp. 2d at 25.
Here, although the Federal Circuit would have jurisdiction over the case, the action would have been untimely. Under 5 U.S.C. § 7703(b)(1), a petition for review must be filed within 60 days after the date the petitioner receives notice of the final order or decision of the MSPB. 5 U.S.C. § 7703(b)(1). The MSPB's final decision is dated March 16, 2004, and Plaintiff did not file this action until January 25, 2005. Although the MSPB's decision informed Plaintiff he could seek review before the Federal Circuit within 60 days, Plaintiff instead filed a petition for review to the EEOC, which denied consideration on May 13, 2004. Even if this Court were to calculate the limitations period as beginning from that date, and used the 90-day time limit under Title VII, Plaintiff's Complaint will still be time-barred. Although the 90-day filing period is subject to equitable tolling, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990), Plaintiff has not presented any evidence or argument to support a tolling of the statute of limitations that would render the claims timely. Accordingly, transfer to the Federal Circuit is not warranted, and Plaintiff's claims requesting review of the MSPB's decision must be dismissed for lack of subject matter jurisdiction.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. E, Calabrese v. Dep't of the Navy, MSPB No. SF-0752-02-0536-I-2, at 2 (Mar. 16, 2004).
Id. at 2.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. G, EEOC's Denial of Consideration.
II. Plaintiff's Discrimination Claims
Plaintiff contends he was discriminated against based on his disability, depression. Defendant argues this Court does not have jurisdiction over Plaintiff's discrimination claims because he abandoned them during his MSPB proceedings. Defendant also contends the Plaintiff's discrimination claims are time-barred by the applicable statute of limitations.
A. Failure to Exhaust Administrative Remedies
Defendant argues Plaintiff abandoned his discrimination claims in the form of an affirmative defense in the MSPB proceedings and therefore failed to exhaust administrative remedies. As discussed above, the record supports a finding Plaintiff abandoned his discrimination claims in his MSPB case. "[A]bandonment or failure to cooperate in the administrative process prevents exhaustion and precludes judicial review." Sommatino, 255 F.3d at 708; see Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995) ("A plaintiff may not cut short the administrative process prior to its final disposition, for upon abandonment a claimant fails to exhaust administrative relief and may not thereafter seek redress from the courts."). Thus, Plaintiff's discrimination claims must be dismissed for failure to exhaust. See Greenlaw, 59 F.3d at 997.
B. Statute of Limitations
Defendant also argues that Plaintiff's discrimination claims must be dismissed for the alternative reason that they are time-barred. The Court agrees. As noted above, a plaintiff has 90 days after receiving notice of final action by the EEOC to file a civil action in federal district court. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. The EEOC upheld the Department of the Navy's decision to dismiss Plaintiff's EEO complaint on June 30, 2004. The EEOC thereafter denied reconsideration on August 10, 2004, and informed Plaintiff in the decision that he had the "right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision." Calculating 90 days from the August 10, 2004 date, Plaintiff's Complaint, filed on January 25, 2005, is untimely.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. I, EEOC Decision.
Def.'s Memo. of P. A. in Supp. of Mot. to Dismiss or, in the Alternative, Summ. Judg't Ex. J, EEOC Denial of Request for Reconsideration.
The 90-day filing requirement is subject to equitable tolling. See Irwin, 489 U.S. at 95-96. However, Plaintiff has not presented any evidence or argument to support an equitable tolling of the limitations period that would render this action timely. Accordingly, Plaintiff's discrimination claims must be dismissed on the alternative ground that they are barred by Title VII's statute of limitations.
III. Plaintiff's Motions
To support his opposition to Defendant's motion, Plaintiff filed two motions: (1) a Motion to Submit Evidence that Substantiates Plaintiff's Allegation that U.S. Merit Board Failed to Investigate Complaint of Judicial Misconduct by Administrative Judge; and (2) a Motion to Exclude Decision by Merit Systems Protection Board Because of Judicial Misconduct by Administrative Judge. These motions contend ALJ Bartholomew committed misconduct and was biased against Plaintiff, and therefore the Court should not consider his decision. These arguments bear on the merits of Plaintiff's claims. Because this Court has found it does not have subject matter jurisdiction over Plaintiff's claims relating to his MSPB proceedings and that Plaintiff's discrimination claims are unexhausted and untimely, Plaintiff's motions must be denied as moot.
CONCLUSION
Having reviewed the record and applicable law, IT IS HEREBY ORDERED:
1. Defendant's Motion for Summary Judgment is GRANTED.
2. Plaintiff's Motion to Submit Evidence that Substantiates Plaintiff's Allegation that U.S. Merit Board Failed to Investigate Complaint of Judicial Misconduct by Administrative Judge is DENIED AS MOOT.
3. Plaintiff's Motion to Exclude Decision by Merit Systems Protection Board Because of Judicial Misconduct by Administrative Judge is DENIED AS MOOT.
The Clerk of the Court is directed to enter judgment in accordance with this order.
IT IS SO ORDERED.