Coffman v. Glickman, 01-6203.

Decision Date06 May 2003
Docket NumberNo. 01-6203.,01-6203.
Citation328 F.3d 619
PartiesDewey COFFMAN, Plaintiff-Appellant, v. Dan GLICKMAN, Secretary of the United States Department of Agriculture; United States Department of Agriculture, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Western District of Oklahoma, Ralph G. Thompson, J Steven M. Angel, Angel & Associates, LLC, Oklahoma City, OK, for the Plaintiff-Appellant.

Ron Pyle, Assistant United States Attorney, Oklahoma City, OK, (Robert G. McCampbell, United States Attorney, and Eleanor Darden, Assistant United States Attorney, Oklahoma City, OK on the brief), for the Defendants-Appellees.

Before SEYMOUR and McCONNELL, Circuit Judges, and KRIEGER, District Judge.*

KRIEGER, District Judge.

Dewey Coffman brought this civil rights action following review by the Merit Systems Protections Board (MSPB) of his termination from employment by the United States Department of Agriculture (USDA). Both before the MSPB and in this action, Mr. Coffman alleged that he was terminated by the USDA based upon illegal discrimination related to age, disability and in retaliation for filing prior discrimination complaints. Upon motion of the USDA, the district court found that Mr. Coffman's claims of unlawful discrimination had been "eliminated" by the MSPB, thereby extinguishing the "mixed" nature of the case. As a consequence, the district court concluded that it lacked subject matter jurisdiction and dismissed and transferred the action to the Court of Appeals for the Federal Circuit. Mr. Coffman appeals from such order. We REVERSE and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Mr. Coffman was terminated from employment by the USDA for "medical inability to perform duties." He appealed the agency's termination decision to the MSPB, asserting that he did not suffer from any medical or mental problems and was able to perform his duties. He affirmatively contended that his termination was the result of unlawful discrimination on the basis of an alleged disability, his age (62 years), and as retaliation for his filing of age discrimination complaints and whistle-blowing disclosures.1

At an evidentiary hearing before an Administrative Law Judge (ALJ), Mr. Coffman testified on his own behalf and presented testimony of witnesses Debra McAlister, Donna Ward, and Sam Cameron to support his claims of unlawful discrimination. The ALJ evaluated the evidence presented, then issued a thorough, 31-page written opinion affirming the USDA's decision to terminate Mr. Coffman and determining that the unlawful discrimination claims had no merit. The ALJ gave detailed consideration to each of Mr. Coffman's claims, finding the evidence presented to be inadequate to prove the requisite elements. Mr. Coffman petitioned for review to the MSPB, which was denied, making the decision of the ALJ the final MSPB decision. Mr. Coffman then sought de novo judicial review of the MSPB decision by filing this action.

The USDA moved to dismiss this action for lack of subject matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1). It argued that because the MSPB had "eliminated" Mr. Coffman's unlawful employment discrimination claims, the case was no longer a "mixed" case subject to de novo review by a federal district court. Instead, review of the MSPB decision fell within the exclusive jurisdiction of the United States Court of Appeals for the Federal Circuit. The district court agreed. It dismissed and transferred the action to the United States Court of Appeals for the Federal Circuit.

When this appeal was initiated, this Court directed the parties to address its jurisdiction. After consideration of written arguments, we determined that this Court had jurisdiction to review the dismissal and transfer order of the district court.

II. ISSUE PRESENTED AND STANDARD OF REVIEW

Review of a MSPB determination which does not involve claims of unlawful discrimination is conducted by the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1)(d); 28 U.S.C. § 1295(a)(9); see also Long v. United States Department of Air Force, 751 F.2d 339, 342 n. 2 (10th Cir.1984); Wall v. United States, 871 F.2d 1540, 1542 (10th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). However, when an appeal to the MSPB involves claims of unlawful discrimination related to or stemming from the employment action, it is considered a "mixed" appeal. 29 C.F.R. 1614.302(a)(1); see Williams v. Rice, 983 F.2d 177, 179 (10th Cir.1993); Williams v. Dept. of Army, 715 F.2d 1485, 1488 (Fed.Cir.1983); Hill v. Dept. of Air Force, 796 F.2d 1469, 1470 (Fed.Cir.1986); McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). Review of MSPB determinations in "mixed" cases lies solely in a district court. See 5 U.S.C. § 7703(b)(2); Williams, 983 F.2d at 180; Wells v. Shalala, 228 F.3d 1137, 1143 (10th Cir.2000).

The parties do not dispute that Mr. Coffman's proceeding before the MSPB was a "mixed" appeal. Instead, the issue presented is whether the case lost its "mixed" character by virtue of the ALJ's determination that Mr. Coffman failed to present sufficient evidence to prove his unlawful discrimination/retaliation claims. Because the resolution of this issue is determinative of the district court's subject matter jurisdiction, we review the underlying record de novo. US West Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.1999), cert. denied, 528 U.S. 1106, 120 S.Ct. 845, 145 L.Ed.2d 713 (2000).

III. ANALYSIS
(A) Statutory Framework for Determination of Unlawful Discrimination Claims by Federal Employees.

The statutes2 and implementing regulations that create the mechanism by which federal employees may assert claims of unlawful employment discrimination are complex and require careful attention by the employee.3 Summarized briefly, the process allows a federal employee who asserts claims of unlawful discrimination in conjunction with a challenge to an adverse employment action to either file an EEO complaint with the employing agency or appeal directly to the MSPB. 5 U.S.C. § 7702(a); 29 C.F.R. 1614.302; 5 C.F.R. §§ 1201.151-1201.157. Whichever action is taken first is considered an election to proceed in that forum. 29 C.F.R. § 1614.302(b).

The MSPB is authorized by 5 U.S.C. § 7702(a)(1)4 to review both the adverse action as well as the unlawful discrimination claims. The decision of the MSPB becomes a judicially reviewable action on the date it is issued. 5 U.S.C. § 7702(a)(3)(A).5 The employee may obtain de novo review of the MSPB decision in a "mixed" appeal by filing an action in federal district court. 29 C.F.R. § 1614.310(b); see also Harms v. IRS, 321 F.3d 1001, 1005 (10th Cir.2003); 5 U.S.C. § 7703(b)(2)6; Christo v. Merit Systems Protection Board, 667 F.2d 882, 884 (10th Cir.1981); Williams, 983 F.2d at 179; Wall, 871 F.2d at 1542-43; Wells, 228 F.3d at 1143.

The rationale behind this statutory scheme is to promote uniformity in treatment of unlawful discrimination claims brought by federal employees relative to those brought by their private sector counterparts. Christo, 667 F.2d at 884-85, citing to S.REP. No. 969, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 2775, 2785. These statutes and regulations are designed to ensure that federal employees, just as private sector employees, after exhausting their administrative remedies, can seek de novo review of claims of unlawful employment discrimination in a federal district court.

(B) Did Mr. Coffman's case lose its "mixed" character by virtue of the ALJ's determination?

There is no dispute, and the trial court properly found, that Mr. Coffman initiated a "mixed" appeal to the MSPB. The sole issue is whether the case lost its "mixed" character by virtue of the ALJ's determination that Mr. Coffman did not present sufficient evidence to prove his unlawful discrimination/retaliation claims.

The USDA relied upon the following cases before the trial court and again argues from them in this appeal: Meehan v. U.S. Postal Service, 718 F.2d 1069, 1073 (Fed.Cir.1983); Hill, 796 F.2d at 1471; Blake v. Dept. of the Air Force, 794 F.2d 170, 173 (5th Cir.1986); Ballentine v. Merit Systems Protection Bd., 738 F.2d 1244, 1248 (Fed.Cir.1984); Stephens v. Connley, 842 F.Supp. 1457, 1459 (M.D.Ga.1994), aff'd without opinion, 48 F.3d 537 (11th Cir.1995); Bullock v. Widnall, 1997 WL 1876544 (M.D.Ala.1997).7 The USDA asserts that these cases collectively stand for the proposition that an employee's failure to present evidence before the MSPB is considered an abandonment, waiver or elimination of an unlawful discrimination claim thereby extinguishing its "mixed" character. Mr. Coffman responds that these cases are factually distinguishable. He argues that he did not waive or abandon his claims before the MSPB. To the contrary, he presented evidence in support of the claims and, after assessing the evidence presented, the ALJ ruled against him.

For reasons stated more fully below, the cases cited by the USDA are not instructive. These cases do not define a standard for determining whether, after an MSPB appeal, a federal employee may pursue unlawful discrimination claims in district court. They provide only examples of MSPB appeals that lost their "mixed" character.

We believe that the proper standard to be applied is set forth in the thoughtful analysis of the Eighth Circuit Court of Appeals in McAdams v. Reno, supra, and the recent decision of this Court, Harms v. IRS, 321 F.3d 1001, 1007-1009 (10th Cir.2003). Both decisions recognize that a federal employee must exhaust his or her administrative remedies in order to obtain de novo review of unlawful discrimination claims by a district court. Harms, 321 F.3d at 1008-1009; McAdams, 64 F.3d at 1141. This rule is consonant with the purpose of the Civil Service Reform Act and its implementing regulations. Federal employees, like...

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