Chappell v. Chao

• Decision Date: 28 October 2004
• Docket Number: No. 03-14750.,03-14750.
• Citation: 388 F.3d 1373
• Parties: Richard CHAPPELL, Sr., Plaintiff-Appellant, v. Elaine L. CHAO, Secretary, Department of Labor, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

388 F.3d 1373

Richard CHAPPELL, Sr., Plaintiff-Appellant, v. Elaine L. CHAO, Secretary, Department of Labor, Defendant-Appellee.

No. 03-14750.

United States Court of Appeals, Eleventh Circuit.

October 28, 2004.

John Derek Wales, Law Offices of John D. Wales, Marietta, GA, for Plaintiff-Appellant.

Stephanie H. Webster, Julia B. Anderson, Sharon Douglas Stokes, Asst. U.S. Atty., Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

Richard Chappell appeals the grant of summary judgment in favor of the Department of Labor (DOL) for lack of subject matter jurisdiction in this employment discrimination case. Chappell filed several administrative complaints against his supervisors in the Department of Labor alleging discriminatory treatment based on race and age, and retaliation for filing complaints on his own behalf and affidavits in support of other employees. When the Department of Labor's Equal Employment Office ruled against him, he appealed to federal district court. At the same time, he appealed his termination claim to the United States Court of Appeals for the Federal Circuit. The statutory scheme established by Congress for federal employees requires them either to combine their related employment discrimination and termination claims and pursue them in federal district court, or to appeal their termination claims to the Federal Circuit and waive any discrimination claims. Because Chappell elected to appeal his termination claim to the Federal Circuit, which disposed of it, and his discrimination and termination claims were based on the same facts, we affirm the dismissal of Chappell's suit in federal district court.

BACKGROUND

Chappell filed his first administrative complaint with the Department of Labor's Equal Employment Office (EEO) in March 1997, alleging disparate treatment based on race in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. He claims that he was reassigned to another post shortly thereafter but given inadequate training and resources to perform satisfactorily at his new position. Over the next three years, he filed several additional complaints with the EEO, alleging discrimination based on race and age, as well as retaliation for filing previous EEO complaints and helping other employees with their complaints. In June 2000, he requested a hearing before an administrative law judge with the Equal Employment Opportunity Commission (EEOC).

While Chappell's EEO complaints were pending, he was placed on a Performance Improvement Plan (PIP) in January 2000. When he failed to meet the requirements of the PIP, he was terminated in July 2000. On July 28, 2000, although his discrimination claims were still being considered by the EEOC, Chappell filed a parallel appeal of his termination to the Merit Systems Protection Board (MSPB), an administrative agency that has jurisdiction over specified "adverse employment actions" affecting federal civil servants, including terminations, demotions, and suspensions. See 5 U.S.C. § 7512.¹ When a federal employee has been subject to one of these adverse actions, he is entitled to appeal to the MSPB. See 5 U.S.C. § 7513(d). Although the MSPB does not have jurisdiction over discrimination claims that are not related to adverse actions,² it can entertain appeals in "mixed cases," where an employee alleges a Title VII violation in relation to one of the specified adverse employment actions. See 5 U.S.C. § 7702; 29 C.F.R. § 1614.302; Sloan v. West, 140 F.3d 1255, 1259 (9th Cir.1998).³ In a mixed case, a final decision from the MSPB exhausts an employee's administrative remedies and allows him to seek judicial review. See McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). In the MSPB appeal, Chappell challenged the fairness of the performance reviews and alleged that his termination was based in part on discrimination and retaliation for formal EEO complaints regarding the PIP.

Before the MSPB entered its order in his agency appeal of the termination, the EEOC, on May 1, 2001, found that Chappell had not made an adequate showing to establish his discrimination claims. Pursuant to 42 U.S.C. § 2000e-5(f)(1), which gave him the right to file a civil action in federal district court within 90 days of a decision by the EEOC, Chappell filed an action in the Northern District of Georgia on August 3, 2001, which forms the basis of this appeal.

After Chappell filed this suit, the MSPB appeals board issued a final order upholding Chappell's termination on September 28, 2001. The MSPB order informed Chappell that he had three options for appeal: (1) He could seek EEOC review of his discrimination claims pursuant to 5 U.S.C. § 7702(b)(1); (2) He could file a civil action in federal district court on both his discrimination and his termination claims under 5 U.S.C. § 7703(b)(2); or (3) He could request the United States Court of Appeals for the Federal Circuit to review the termination decision, but he could only pursue this avenue if he did not seek review of his discrimination claims, because the Federal Circuit does not have jurisdiction to hear discrimination appeals. See 5 U.S.C. § 7703(b)(1)-(2).⁴ Thus, according to the statutory scheme governing review of MSPB final orders, if a federal employee wants to pursue any type of discrimination claim on appeal, the employee must file a complaint in a federal district court, as the federal district court is the only forum in which an employee can appeal both parts of a mixed claim.

In November 2001, Chappell elected to appeal the MSPB decision pertaining to his termination to the Federal Circuit. Upon filing a petition for review of an MSPB final order, the Federal Circuit requires the filing of a Statement Concerning Discrimination, which Chappell submitted through his attorney. To complete the form, he had to select one of five statements to describe his appeal. He checked a box in front of the following statement: "Any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before the employing agency or the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court." Notwithstanding the fact that the form itself strictly prohibited "alter[ing] or add[ing] to any of the statements," Chappell's attorney submitted the form with a line drawn through the words "or any other" between "this" and "court," so that the sentence read: "[a]ny claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before the employing agency or the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court." The attorney's initials were written below the crossed-out words.

In January 2002, while the Federal Circuit appeal of his termination was pending, Chappell attempted to amend his petition in the district court proceeding in Georgia, to add his termination claims to the existing discrimination suit. The court rejected the attempt because Chappell never filed a motion for leave to amend. Although the court indicated that it would consider such a motion if Chappell wanted to file the petition again, Chappell never did so. Instead, Chappell moved the Federal Circuit to transfer his termination claims to the district court in Georgia. In July 2002, the Federal Circuit denied Chappell's motion, citing 28 U.S.C. § 1631, which permits transfer to a court in which the action could have been brought "at the time it was filed or noticed." Because the termination claim would have been untimely if filed in district court at the time of Chappell's motion to transfer, the Federal Circuit denied the transfer. Thereafter, the Federal Circuit dismissed Chappell's termination appeal on the merits. The DOL then moved for summary judgment on Chappell's discrimination complaint in the district court because it contained claims related to events already litigated in the Federal Circuit. The district court granted summary judgment in favor of the DOL, holding that it lacked subject matter jurisdiction over the case, and Chappell now appeals.

DISCUSSION

Summary judgment decisions are reviewed de novo. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). We may affirm the district court's decision for reasons different than those stated by the district court. See Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (stating that the decision of the lower court must be affirmed if the result is correct even though the lower court relied upon a wrong ground or gave a wrong reason); Lucas, 257 F.3d at 1256.

The Federal Circuit has held that a federal employee cannot split a mixed case into discrimination and non-discrimination claims in order to pursue two separate appeals from an MSPB final order. See Williams, 715 F.2d at 1490 (stating that "Congress did not direct or contemplate bifurcated review of any mixed case," and explaining that 5 U.S.C. § 7702, which gives the MSPB jurisdiction over mixed cases, reflects the understanding that in mixed cases, claims of adverse action and discrimination "will be two sides of the same question and must be considered together"). Once an employee appeals a discrimination claim to the district court, he or she may no longer go to the Federal Circuit to appeal related adverse action claims. See id. (dismissing adverse action claims because they could have been raised before the district court).

Similarly, the District of Columbia Circuit has held that an employee waives discrimination claims by appealing to the Federal Circuit after an MSPB ruling on a mixed appeal. In Smith v. Horner, 846 F.2d 1521, 1523 (D.C.Cir.1988), the court held that an employee waived the right to...