Thurman v. Mabus, CASE NO. C12-6093 RJB

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtROBERT J. BRYAN
PartiesPETER C THURMAN, Plaintiff, v. RAY MABUS, Defendant.
Docket NumberCASE NO. C12-6093 RJB
Decision Date24 June 2013

RAY MABUS, Defendant.

CASE NO. C12-6093 RJB


Dated: June 24, 2013


This matter comes before the court on Defendant's Motion to Dismiss and/or Motion for Summary Judgment. Dkt. 28. The court has considered the relevant documents and the remainder of the file herein.


On April 30, 2012, plaintiff, then a civilian employee of the United States Navy, was arrested by Naval police and charged with simple assault and possession of a loaded weapon without a permit, arising from an altercation that occurred at the Missouri Gate of Naval Base Kitsap earlier that day. Dkt. 29-1, at 2-3.

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On May 8, 2012, the Commanding Officer of Naval Facilities Engineering Command Northwest issued a Proposed Suspension of Access to Classified Information and Areas, proposing that plaintiff's access to classified information be suspended due to the pending criminal charges. Dkt. 29-1, at 12.

On May 14, 2012, the Commanding Officer of the Naval Facilities Engineering Command Northwest issued a Final Decision on the proposed suspension, suspending plaintiff's access to classified information. Dkt. 29-1, at 14. The Final Decision informed plaintiff that the final security eligibility determination would be made by the Department of the Navy Central Adjudication Facility. Dkt. 29-1, at 14.

On June 20, 2012, LCDR Anthony Haverly issued a Decision on Proposed Indefinite Suspension (suspension letter), in which plaintiff was notified that due to his inability to access classified information, the Navy was placing him on an indefinite suspension effective June 20, 2012. Dkt. 29-1, at 16-19. The June 20, 2012 suspension letter further notified plaintiff of his right to challenge the suspension by filing an appeal with the Merit Systems Protection Board (MSPB) within thirty (30) calendar days or by using the negotiated grievance process contained in the collective bargaining agreement with his union; that, if he chose to appeal to the MSPB, the appeal must be filed within thirty days; and that, if he did not submit his appeal within the time set by statute or regulation, it would be dismissed as untimely unless good reason for the delay was shown. Dkt. 29-1, at 18. The suspension letter also informed plaintiff, as follows:

8. If you believe this action discriminated against you on the basis of race, color, religion, sex, national origin, age, handicap or reprisal for participation in equal employment opportunity (EEO) protected activity, you may file a complaint of discrimination with the Navy Region Northwest, EEO Office, within 45 calendar days of the effective date of this action....
9. If you decide to file, you must make an election on what forum to use. You may not file both a MSPB appeal and an EEO complaint. You must make an election to file in

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one or the other. Should you elect to file a complaint of discrimination, your complaint will be processed in accordance with EEOC regulations in 29 CFR Part 1614. Should you elect to file an appeal with MSPB, your appeal will be processed in accordance with MSPB regulations in 5 CFR part 1201, Subpart B.

Dkt. 29-1, at 19.

Plaintiff received the June 20, 2012 suspension letter on June 23, 2012. Dkt. 29-1, at 20.

On August 17, 2012, approximately fifty-five (55) days after receiving the June 20, 2012 suspension letter, plaintiff electronically filed an appeal with the MSPB challenging his suspension. Dkt. 29-1, at 24-29. In explaining why he thought that the agency was wrong in taking his action or making this decision, plaintiff stated as follows:

I am not, and have never been a law-breaker. I always obey law-enforcement. I never received an unsatisfactory performance appraisal in my 27-years civilian service, I have two (2) Honorable Discharges for military service (USMC Reserves (1979-1985 and 1998-2000) and never received office- hours, and I received a letter of commendation for service as a reserve police officer during the WWII 50-year commemary [sic] in Bremerton, WA. Prior to my April 30th arrest, I was in-training to do my job as Design Engineer by my supervisor, Earl McCarthy. Further, The Navy intends to dismiss their charge of Simple Assault which prompted my arrest by law enforcement, my loss of clearance and my suspension.

Dkt. 29-1, at 28. The appeal form provided a place for plaintiff to file "all additional claims you would like to file with this appeal." Dkt. 29-1, at 27. One of the choices was "File a claim of prohibited discrimination;" plaintiff did not mark that claim, but instead marked "No additional Claims." Dkt. 29-1, at 27. Also, on the appeal form, plaintiff stated that the date he received the agency's final decision letter was May 14, 2012. Dkt. 29-1, at 26. That was apparently the date plaintiff received the decision suspending his access to classified information, not the date he received the letter placing him on indefinite suspension (June 23, 2012). Nonetheless, the MSPB considered the latter date--June 23, 2012—as the date the final decision on which the time limit began to run (Dkt. 29-1, at 36); this latter date was in plaintiff's favor.

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On August 20, 2012, plaintiff and the United States entered into a Plea Agreement whereby plaintiff agreed to plead guilty to the offense of leaving a loaded weapon in an unlocked vehicle, in violation of 18 U.S.C. Sections 7 and 13 and RCW 9.41.050(2). Dkt. 29-1, at 5-7. Pursuant to the Plea Agreement, a Judgment was issued against plaintiff on August 20, 2012. Dkt. 29-1, at 10.

On September 18, 2012, after giving plaintiff an opportunity to provide "good cause" for the late filing, the MSPB administrative judge dismissed the appeal as untimely. Dkt. 29-1, at 31-42. Plaintiff filed a Petition for Review with the full MSPB on September 20, 2012. Dkt. 29-1, at 44-50.

On September 21, 2012, plaintiff contacted an EEO counselor with the Navy's EEO office, and an initial interview was conducted on September 26, 2012. Dkt. 29-2, at 2-7.

On October 5, 2012, the Navy reinstated Plaintiff's access to classified information. Dkt. 29-1, at 2.

On November 16, 2012, plaintiff filed a formal EEO complaint with the Navy alleging that (1) his June 2012 suspension was in reprisal for an earlier and unrelated informal EEO complaint; and (2) his April 2012 arrest was due to his color, race, sex, and age. Dkt. 29-2, at 9-10. On December 17, 2012, the Navy dismissed the November 2012 EEO complaint on the grounds that (1) plaintiff had already chosen the MSPB as his forum to appeal the agency's actions; and (2) the EEO complaint was untimely. Dkt. 29-2, at 29-34.

On December 31, 2012, plaintiff filed this case against Ray Mabus, Secretary of the Navy, alleging employment discrimination on the basis of "race, occupation, age, personality." Dkt. 1-1, at 2. In support of his claims, plaintiff alleged as follows:

Navy command and unknown civil service workers do not want me employed as mechanical engineer. They defame me by telling/spreading falsehoods about me. Along

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with Navy police, they do not acknowledge or take action on my behalf over assaults or property damages I experience on govt property. Navy command has opposed my training and function as a mechanical engineer, and they acknowledge no wrongdoing by themselves.

Dkt. 1-1, at 2. Plaintiff alleges that the discrimination occurred on or about April 30, 2012. Dkt. 1-1, at 2. The complaint requests back pay from June 22, 2012 to October 11, 2012; removal of an August 20, 2012 criminal conviction from his record; and five times $3.8 million or the amount deemed fair and reasonable by the court. Dkt. 1-1, at 3.

As of the date defendant's motion was filed (May 28, 2013), no final decision on the Petition for Review had been rendered by the Board in the MSPB appeal. Dkt. 29, at 2.


On May 28, 2013, defendant filed a motion to dismiss and/or motion for summary judgment. Dkt. 28. Defendants request that the court dismiss this case because plaintiff failed to exhaust his administrative remedies with regard to employment discrimination claims and to any arguable tort claims for defamation, assault, and property damage.

On May 29, 2013, the court issued a notice, informing plaintiff of the requirements to respond to the motion. Dkt. 30. On June 17, 2013, plaintiff filed a response to the motion. Dkt. 31 and 32. Plaintiff contends that he has an exemplary work history; and that he was unfairly arrested and charged with assault and unlawful possession of a concealed weapon. Dkt. 31, at 1-2. Plaintiff stated that his criminal trial was continued to August 20, 2012, and that the deadlines for the MSPB appeal and EEO process passed "before plaintiff's mental state was up to task of legal work." Dkt. 31, at 2. Regarding any tort claims he may assert in his complaint, plaintiff stated that he is "ignorant of my requirement to use SF 95 and FTCA. I am only knowledgable [sic] of EEO, MSPB and federal court." Dkt. 32, at 1. Plaintiff requests that the court dismiss the case without prejudice. Dkt. 31, at 3.

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On June 21, 2013, defendant filed a reply,...

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