Joyner v. Garrett, Civ. A. No. 90-92-N.

• Decision Date: 26 November 1990
• Docket Number: Civ. A. No. 90-92-N.
• Parties: Paige M. JOYNER, Plaintiff, v. H. Lawrence GARRETT, III, Secretary, Department of the Navy, Agency, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

751 F. Supp. 555

Paige M. JOYNER, Plaintiff, v. H. Lawrence GARRETT, III, Secretary, Department of the Navy, Agency, Defendant.

Civ. A. No. 90-92-N.

United States District Court, E.D. Virginia, Norfolk Division.

November 26, 1990.

COPYRIGHT MATERIAL OMITTED

Theodore A. Boyce, Virginia Beach, Va., for plaintiff.

J. Phillip Krajewski, Asst. U.S. Atty., Norfolk, Va., and Ray T. Lee, Major U.S. Marine Corps, Dept. of the Navy, Arlington, Va., for defendant.

OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on Defendant's Motion to Dismiss or in the Alternative, for Summary Judgment. Because the court will consider matters outside the pleadings, defendant's motion to dismiss under Rule 12(b)(6) is "treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(c). Under Rule 56, summary judgment is improper unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Upon due consideration, following argument of counsel and submission of briefs and relevant material, the court DENIES defendant's motion for summary judgment on plaintiff's Title VII claim.

I. Facts

Plaintiff, Paige Joyner, brings this action against her federal employer, the Department of Navy (hereinafter referred to as "the Navy"), alleging that the Navy unlawfully discriminated against her on the basis of her religion in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (1981 & Supp. 1990). The suit arose from the Navy's discharge of plaintiff for alleged assaultive and disruptive behavior.

Plaintiff, a "born-again Christian," was employed as a packer, WG-4, at the Naval Supply Center in Norfolk, Virginia. The reason for plaintiff's discharge was "repeated disruptive and bizarre behavior,"¹ which culminated in a March 29, 1988, confrontation with a co-worker, Levi Carson. On or about March 29, 1988, plaintiff approached Mr. Carson and swung at him with her handbag, allegedly striking him. Then, plaintiff placed her hands around Mr. Carson's throat and allegedly began to choke him. See Joyner v. Garrett, Civil Action No. 90-92-N, Memorandum in Support of Defendant's Motion to Dismiss or for Summary Judgment at 3, and Exhibit B (E.D.Va. April 30, 1990) (hereinafter referred to as "Defendant's Memorandum"). Although plaintiff denies that her handbag actually hit Mr. Carson and that she tried to choke him, plaintiff admits that she desired to injure Mr. Carson. Defendant's Memorandum, Exhibit C at 1, 2 (plaintiff's statements); Exhibit F at 4, 5 (administrative judge's findings). Instead of choking Mr. Carson, plaintiff claims that she placed her hands under his cheeks and was praying for him. See Defendant's Memorandum, Exhibit C at 2; Exhibit I at 2. Furthermore, plaintiff defends her actions as being provoked by Mr. Carson whom, she claims, is a member of a satanic cult. Defendant's Memorandum, Exhibit C at 1. Specifically, plaintiff claims that Mr. Carson placed a curse on her, from which she was supposed to die. Defendant's Memorandum, Exhibit C at 1.

Plaintiff's removal from employment at the Naval Supply Center was proposed on May 6, 1988, at which time the Navy continued plaintiff's nonduty with pay status pending agency action. See Defendant's Memorandum, Exhibit A. Plaintiff initially was relegated to this status on April 4, 1988. Defendant's Memorandum, Exhibit A. After being afforded an opportunity to respond to her proposed removal, plaintiff was notified of her removal, effective June 24, 1988. Defendant's Memorandum, Exhibit E.

Plaintiff appealed her discharge on July 5, 1988, to an administrative judge who sat as the initial decision maker for the Merit Systems Protection Board (hereinafter referred to as "MSPB"). On November 1, 1988, the administrative judge affirmed the Navy's decision to discharge plaintiff. See Defendant's Memorandum, Exhibit F. The administrative judge informed plaintiff that his decision constituted the initial decision of the MSPB and it was subject to further MSPB review, if plaintiff so desired and petitioned for such review by December 7, 1988. Defendant's Memorandum, Exhibit F at 12-13. In the event no such petition was filed, plaintiff was informed that this initial decision would become the final decision of the MSPB. Additionally, plaintiff was made aware of other avenues of review, should she desire review by the Equal Employment Opportunity Commission (hereinafter referred to as "EEOC") or the federal courts. Specifically, plaintiff was told that EEOC review or federal court review could be petitioned for if initiated within thirty calendar days after the date that the initial decision of the MSPB became final. See Defendant's Memorandum, Exhibit F at 13, 14.

Prior to December 7, 1988, plaintiff petitioned the MSPB and the EEOC for review. Both petitions were filed on December 1, 1988. Defendant's Memorandum, Exhibit H; Joyner v. Garrett, Civil Action No. 90-92-N, Defendant's Supplemental Memorandum in Support of Defendant's Motion to Dismiss or for Summary Judgment, Exhibit A (E.D.Va. Sept. 14, 1990) (hereinafter referred to as "Defendant's Supplemental Memorandum"). Plaintiff's petition for MSPB review was returned for failing to serve a copy of the petition on the Navy and for failing to include a certificate of service of her petition on the Navy. See Defendant's Memorandum, Exhibit H. Plaintiff was instructed to perfect her petition for MSPB review within fifteen days of the date of the letter notice returning it, or else the initial decision would become the final decision of the MSPB. Defendant's Memorandum, Exhibit H.² The MSPB's letter notice returning the petition was dated December 13, 1988. See Defendant's Memorandum, Exhibit H. Plaintiff resubmitted no perfected petition for review with the MSPB. Thus, the initial decision became the final decision of the MSPB on December 28, 1988. Defendant's Memorandum at 6.

Plaintiff's December 1, 1988, petition for EEOC review also was rejected. In a letter dated January 5, 1989, the EEOC informed plaintiff that her petition was dismissed without prejudice as premature, because plaintiff's appeal was still pending before the MSPB. Defendant's Memorandum, Exhibit G.

On August 24, 1989, plaintiff again petitioned the EEOC for review of the final MSPB decision. See Defendant's Memorandum, Exhibit I at 1. The Navy claims it received no notice of this petition until it received, on January 5, 1990, a copy of the EEOC decision. See Defendant's Supplemental Memorandum, Exhibit B (declaration of then Labor Relations Specialist, Elsie Wilson).³ In a decision on the merits dated December 21, 1989, and received by plaintiff after January 3, 1990,⁴ the EEOC concurred with the final decision of the MSPB. See Joyner v. Garrett, Civil Action No. 90-92-N, Plaintiff's Memorandum in Response to Defendant's Motion to Dismiss or for Summary Judgment, Exhibit at 4 (E.D.Va. June 11, 1990) (hereinafter referred to as "Plaintiff's Memorandum"). On February 1, 1990, plaintiff filed her complaint with this court.

Defendant asserts two grounds to support this motion for summary judgment: 1) plaintiff's failure to timely appeal her discharge pursuant to the statutory scheme set forth in 5 U.S.C. §§ 7702 and 7703; and 2) plaintiff's failure to allege facts that constitute a violation of Title VII, 42 U.S.C. § 2000e-16.

II. Plaintiff's Untimeliness

Defendant contends that this court is precluded from considering plaintiff's claim, because plaintiff failed to appeal her discharge within thirty days after the initial decision of the MSPB became final. Title 5 U.S.C. § 7702(b)(1) permits EEOC review of final MSPB "mixed case" decisions. A "mixed case" is one in which an employee alleges that unlawful discrimination was a motivating factor in the personnel action being appealed. 29 C.F.R. § 1613.402; Ballard v. Tennessee Valley Auth., 768 F.2d 756, 757 (6th Cir.1985); Bartlett v. United States Postal Serv., 25 M.S.P.R. 317 (1984). Because plaintiff alleges that religious discrimination was a motivating factor in her dismissal, this case is a mixed case over which the EEOC had jurisdiction. Title 5 U.S.C. § 7703(b)(2), by reference to 42 U.S.C. § 2000e-16(c), permits judicial review of a final MSPB decision in mixed cases by a United States district court.

Section 7702(b)(1) provides that "an employee ... may, within 30 days after notice of the decision of the Board MSPB final decision ... petition the Commission EEOC to consider the decision." Thus, pursuant to section 7702(b)(1), if plaintiff desired EEOC review of the final MSPB decision, she should have filed a petition for such by January 27, 1989.

Section 7703(b)(2) provides, in part, that "notwithstanding any other provision of law, any such case filed under ... 42 U.S.C. § 2000e-16(c) must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under ... section 7702." Thus, this court must determine what is a judicially reviewable action and when did plaintiff's action become judicially reviewable. Pursuant to the scheme established by sections 7702 and 7703, there are six different types of decisions during the administrative process that are judicially reviewable in federal district court: 1) the agency's decision, if no appeal is filed with the MSPB, 5 U.S.C. § 7702(a)(2); 2) the MSPB decision, if no review by the EEOC is sought, 5 U.S.C. § 7702(a)(3)(A); 3) the EEOC's refusal to review the MSPB decision, 5 U.S.C. § 7702(a)(3)(B); 4) the EEOC's concurrence in the MSPB's decision, 5 U.S.C. § 7702(b)(5)(A); 5) the MSPB's adoption on remand of the EEOC's position, 5 U.S.C. § 7702(c); and 6) the special panel's decision, which is necessitated by the MSPB's refusal to adopt...