Jolley v. United States

Docket NumberCivil Action 21-cv-2709 (TSC)
Decision Date24 May 2023
PartiesWILLIAM B. JOLLEY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtU.S. District Court — District of Columbia


Plaintiff William B. Jolley, proceeding pro se, is a U.S. Air Force veteran and a former employee of the U.S. Department of Housing and Urban Development (HUD). Compl. at 2-3, 7, ECF No. 1. He sues the United States and HUD's Secretary for claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act (ADA), and the U.S Constitution. Id. at 2-5. For the reasons set forth below, Defendants' Motion to Dismiss, ECF No. 39 (Defs.' Mot.), will be GRANTED in part and DENIED in part.

A. Factual Background

At the motion to dismiss stage, the court assumes the following allegations from the Complaint to be true. Plaintiff was employed by HUD from 1963 to 1972 and from 2004 to 2010. Compl. at 7. The conflict between HUD and Plaintiff began in 2003, when Plaintiff sued the agency alleging age discrimination. Id. at 8. That case was settled in 2004, with HUD offering Plaintiff a GS-15 position and $60,000. Id. Following the settlement, Plaintiff returned to work for HUD as a Field Officer in its Jacksonville, Florida office from 2004 to 2007. Id. While in that role, Plaintiff was frequently given clerical work below his qualifications, such as receptionist duties, and faced “covert animosity that was manifested occasionally by intemperate personal directions by the Jacksonville office Director.” Id. Despite these issues, Plaintiff describes his work for HUD in every position as “successful[], polite[], and professional[].” Id. at 9.

Plaintiff alleges that in 2007, HUD's “uncooperative and disparaging treatment” escalated after he successfully litigated a USERRA claim against the Department of Homeland Security (DHS), challenging the operation of the Federal Law Enforcement Training Center that DHS operates in conjunction with HUD. Id. at 8. Plaintiff claims that in early 2008, HUD initiated a ‘reorganization' that was not authorized as required by law” and directed Plaintiff to accept the position of Field Office Director for the State of Idaho “or be fired.” Id. Plaintiff was not allowed to transfer to “other identical and vacant positions at locations closer to [his] home, family, and interests,” and ultimately accepted the Boise, Idaho position. Id. at 8-9. Later, Plaintiff sought to swap positions with a willing director based in Springfield, Illinois, but HUD rejected the proposal. Id. at 9. After Plaintiff eventually left the Boise position in 2010, the director from Springfield was transferred to Plaintiff's former role. Id.

In 2018, Plaintiff applied for his previously held and newly available position as a GS-15 Field Office Director for HUD in Boise. Id. at 2-3. He alleges that he was not selected for the position due to his “advanced age,” his hearing disability, and his past litigation of a USERRA claim before the Merit Systems Protection Board (MSPB). Id. at 3. After he applied, HUD cancelled the initial announcement and six months later released two GS-14 announcements for the same position, allegedly to avoid hiring him for the GS-15 Director position. Id. Plaintiff claims that when “HUD investigated [his] complaint” about that change, presumably at the EEOC charge stage, both the “Selecting Official” and Plaintiff's former supervisor refused to provide affidavits to the agency investigator to explain Plaintiff's non-selection for the Boise Field Office Director position in 2018. Id. at 5, 9.

B. Procedural History

Over the years, Plaintiff has litigated several claims regarding his employment with HUD. Id. at 3-4, 6, 8; Defs.' Mot. at 8-9, 13. In one complaint to the MSPB, Plaintiff claimed that his “retirement in 2010 was involuntary and constituted a constructive removal.” Jolley v. HUD, No. SF-0752-13-0583-I-1, 2015 WL 847859 (M.S.P.B. Feb. 26, 2015). In that case, Plaintiff alleged discrimination based on his status as a veteran and retaliation for whistleblower disclosures. Id. The MSPB found that Plaintiff's “discrimination and retaliation claims [did] not support a finding of involuntary retirement,” and dismissed the claims for lack of jurisdiction. Id. Plaintiff appealed to the U.S. Court of Appeals for the Federal Circuit, and while that Court agreed that the MSPB had no jurisdiction over the involuntary retirement claim, it held that the MSPB did have jurisdiction over Plaintiff's USERRA challenge to his reassignment and remanded to MSPB to consider the merits of that claim. Jolley v. Merit Sys. Prot. Bd., 636 Fed.Appx. 567, 570 (Fed. Cir. 2016); Compl. at 4, 6. Although the MSPB had not rendered a decision at the time Plaintiff brought this case, the MSPB held in 2022 that Jolley had “not established his claim that the agency violated his USERRA rights in directing his reassignment. Jolley v. Dep't of Hous. and Urban Dev., Nos. SF-0752-13-0583-M-1 and SF-0752-14-0286-M-1, 2022 WL 1600004, at *1 (M.S.P.B. May 20, 2022).

In April 2019, Plaintiff filed a complaint with the EEOC, alleging that his 2018 nonselection was the result of age and disability discrimination. Compl. at 3; ECF Nos. 17-2, 17-3.[1]In March 2020, while his case was pending before the EEOC, Plaintiff also filed a lawsuit in this district. See Jolley v. United States, 549 F.Supp.3d 1 (D.D.C. 2020). In that suit, Plaintiff alleged that USERRA's review process violates his right to equal protection because, unlike federal employees, private sector employees may bring their USSERA claims in federal court.” Id. at 3. Plaintiff also claimed that USERRA's requirement that federal employees must seek relief administratively from the MSPB violates Article III of the Constitution,” and that “the MSPB's Administrative Judges before whom federal employees are required to appear are not designated consistent with the requirements of the Appointments Clause.” Id. The court ultimately dismissed the action for lack of subject matter jurisdiction. Id. at 6. That case remains on appeal. See Jolley v. United States, No. 21-5181 (D.C. Cir.).

Meanwhile, on November 2, 2020, Plaintiff failed to attend an initial telephone conference for his EEOC action. ECF No. 17-4, at 2. The next day, the EEOC issued an Order Authorizing Discovery and to Show Cause. Id. Plaintiff did not respond until December 24, 2020, when he advised the EEOC that because 180 days had passed without an EEOC decision, he had brought this suit-raising the same issues as the EEOC complaint-in the Southern District of Indiana on December 15, 2020. ECF No. 17-5 at 1-2, 5. The EEOC consequently dismissed Plaintiff's action, construing his email as a withdrawal and explaining his noncompliance with the adjudicative process. ECF No.17-5. Specifically, the EEOC found that Plaintiff “did not enter his appearance for the Initial Conference, Prehearing Conference, submit PCI, respond to the Agency's Motion for Summary Judgment, . . . submit [a] Witness list . . . [or] cooperate, in a timely manner, with the Agency.” ECF No. 17-5 at 2-3.

On October 14, 2021, the District Court for the Southern District of Indiana granted Defendants' motion to dismiss for improper venue and transferred this case to the District of Columbia pursuant to 28 U.S.C. § 1406(a). ECF No. 33. On December 21, 2021, Defendants filed a Renewed Motion to Dismiss under Federal Rules of Procedure 12(b)(1) and 12(b)(6). Mot. to Dismiss, ECF No. 39.

A. Rule 12(b)(1)

Rule 12(b)(1) addresses a court's subject-matter jurisdiction. “Because Article III courts are courts of limited jurisdiction, we must examine our authority to hear a case before we can determine the merits.” Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (citation omitted). While courts must construe pro se filings liberally, U.S. v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004), a litigant must still demonstrate that the court has subject-matter jurisdiction, Stoddard v. Wynn, 68 F.Supp.3d 104, 110 (D.D.C. 2014) (citing Khadr, 529 F.3d at 1115) (“The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists.”). Further, “a Rule12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001).

B. Rule 12(b)(6)

Rule 12(b)(6) permits a party to move for dismissal on the grounds that the complaint fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A complaint only establishes a facially plausible claim if it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“The Court is mindful that a pro se litigant's complaint is held to a less stringent standard than formal pleadings drafted by lawyers. Jarrell v Tisch, 656 F.Supp. 237, 239 (D.D.C. 1987) (citing Redwood v. Council of the District of Columbia, 679 F.2d 931 (D.C. Cir. 1982); Haines v. Kerner, 404 U.S. 519 (1972)). The court must grant the plaintiff “the benefit of all inferences that can be derived...

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