Hornsby v. Thompson
| Decision Date | 17 January 2023 |
| Docket Number | Civil Action 22-1472 (RC) |
| Parties | RICHARD HORNSBY, Plaintiff, v. SANDRA L. THOMPSON, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Richard Hornsby (“Plaintiff”) brings the instant action against Sandra L. Thompson (“Defendant”) the Acting Director of the Federal Housing Finance Agency (“FHFA” or “the agency”), and raises a number of claims arising out of the termination of his employment as Chief Operating Officer of the FHFA and his subsequent appeal of that termination to the United States Merit Systems Protection Board (“MSPB”). Specifically, Plaintiff alleges that: (1) in terminating his employment, Defendant retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act (“CSRA”), 5 U.S.C. § 2302(b); (2) the Administrative Judge (“AJ”) and MSPB adjudicating Plaintiff's appeal failed to provide him with interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the MSPB's affirmation of the agency's decision to terminate Plaintiff's employment was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with the law. Compl. ¶¶ 44-48, ECF No. 1. Defendant has filed a motion to dismiss or, in the alternative, a motion for summary judgment, contending that the Court must first dismiss Plaintiff's retaliation claim for failure to exhaust administrative remedies and then dismiss Plaintiff's remaining claims for lack of subject-matter jurisdiction. Mem. in Supp. Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.'s Mem.”) at 1-2, ECF No. 8-1. For the reasons explained below, the Court grants Defendant's motion insofar as it seeks dismissal of Plaintiff's retaliation claim, but denies Defendant's request that Plaintiff's remaining claims be dismissed and instead transfers those claims to the Federal Circuit.
The CSRA “provides a grievance process and remedies to an employee who believes that he is the victim of a prohibited personnel practice,” Wilson v. U.S. Dep't of Transp., 759 F.Supp.2d 55, 63 (D.D.C. 2011), whereas Title VII “prohibits the federal government from . . . retaliating against employees for engaging in activity protected by Title VII,” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). “When an employee believes he is the victim of a prohibited practice that was motivated by discrimination in violation of Title VII, the employee can file a ‘mixed case,' i.e. one alleging violation of both CSRA and Title VII.” Wilson, 759 F.Supp.2d at 63 (D.D.C. 2011). “Government employees alleging discrimination in violation of Title VII or challenging personnel practices prohibited by the Civil Service Reform Act must exhaust administrative remedies before bringing their claims to federal court.” Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012) (citations omitted). Those who file mixed cases can exhaust administrative remedies by either “(1) fil[ing] a discrimination complaint with the agency through the agency's Equal Employment Opportunity (‘EEO') Office, or (2) fil[ing] an appeal directly with the MSPB.” Rodgers v. Perez, 139 F.Supp.3d 67, 71 (D.D.C. 2015) (citing 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154(a)); see also Hamilton, 666 F.3d at 1 349 (“Because Hamilton's 2002 detail claim presented a ‘mixed case,' involving charges of both discrimination and prohibited personnel practices, Hamilton could have exhausted his administrative remedies by presenting his claim either to the IRS's EEO office or to the Merit Systems Protection Board.”); accord Morris v. Jackson, 842 F.Supp.2d 171, 177 (D.D.C. 2012), aff'd sub nom. Morris v. McCarthy, 825 F.3d 658 (D.C. Cir. 2016). But “[a]n employee cannot maintain the same action in both forums,” and must instead “exhaust [his] administrative remedies in the forum where [his] complaint or appeal was first filed.” Rodgers, 139 F.Supp.3d at 71 (citations omitted).
“Generally, decisions of the MSPB ‘are reviewed in the Federal Circuit,'” but an “exception is made for ‘mixed cases' brought before the MSPB that allege adverse employment action along with allegations of discrimination.” Bowe-Connor v. McDonald, No. 15-cv-231, 2016 WL 5675854, at *2 (D.D.C. Sept. 30, 2016) (citation omitted). Thus, an employee who “pursues a mixed case appeal with the MSPB . . . may appeal an adverse decision by filing suit in federal district court.” Rodgers, 139 F.Supp.3d at 71 (citing 5 U.S.C. § 7703(b)(2)).
The instant case arises out of facts and allegations recounted in significant part by the D.C. Circuit in Hornsby v. Watt, No. 17-5001, 2017 WL 11687516 (D.C. Cir. Nov. 14, 2017), which affirmed the decision of another court in this District that dismissed Plaintiff's previous, related case filed in 2016. Id. at *1. In that case, the D.C. Circuit recounted:
Id. (internal citations omitted).[1]
Plaintiff then appealed his termination to the MSPB, “challeng[ing] his removal on the substantive merits and also rais[ing] an affirmative defense of retaliation for his prior EEO activity.” Compl. ¶ 27. In July 2016, the AJ issued an Initial Decision that reversed Plaintiff's termination but that also found that Plaintiff had failed to prove his claim of retaliation. Id. ¶ 28. On August 25, 2016, FHFA filed a Petition for Review of the AJ's Initial Decision with the MSPB. Id. ¶ 30. Plaintiff then filed a response opposing the FHFA's Petition for Review of the Initial Decision, in which he contended that the MSPB should deny the agency's petition because the AJ “made no erroneous findings of material fact, or erroneous applications of law.” Ex. 1 to Def.'s Mem., Appellant's Resp. in Opp'n to Agency's Pet. for Review of Initial Decision (“Pl.'s Response to Pet. for Review”) at 9, ECF No. 8-2. But because the MSPB did not have a quorum for over five years, the MSPB only issued a final decision on the FHFA's petition in April 2022. Compl. ¶¶ 31-32. Its decision of April 28, 2022 “revers[ed]” the AJ's Initial Decision and “order[ed] Mr. Hornsby's termination be reinstated,” in addition to “affirming the AJ's determination that Mr. Hornsby had not proven the affirmative defense that his removal was the product[] of unlawful retaliation based upon his participation in EEO activity.” Id. ¶ 32. In particular, the Board noted:
Neither of the parties has challenged the administrative judge's finding that the appellant failed to prove his affirmative defense of EEO reprisal, and we discern no reason to disturb this finding.... Because the appellant here failed to prove his initial burden that a prohibited factor played any part in the agency's decision, we do not reach the question of whether EEO reprisal was a but-for cause of that decision.
Ex. 2 to Def.'s Mem., MSPB Final Order at 4 n.5, ECF No. 8-3.
Plaintiff now seeks to challenge the MSPB's final decision in this Court and alleges that: (1) in terminating his employment Defendant retaliated against him in violation of Title VII of the Civil Rights of Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act, 5 U.S.C. § 2302(b); (2) the AJ and MSPB adjudicating Plaintiff's appeal failed to provide him with interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the MSPB's affirmation of the agency's decision to terminate Plaintiff's employment was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with the law. Compl. ¶¶ 44-48. Defendant filed a motion to dismiss or, in the alternative, a motion for summary judgment, contending that the Court must first dismiss Plaintiff's retaliation claim for failure to exhaust administrative remedies and then dismiss Plaintiff's remaining claims for lack of subject-matter jurisdiction. Def.'s Mem. at 1-2. Plaintiff filed an opposition to Defendant's motion, see generally Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Pl.'s...
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