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Punch v. Bridenstine

United States Court of Appeals, Fifth Circuit

December 17, 2019

JOHNNETTA PUNCH, Plaintiff-Appellant,
v.
JIM BRIDENSTINE, in his official capacity as Administrator, National Aeronautics and Space Administration; NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, (NASA); MARK GEYER, in his official capacity as Director, National Aeronautics and Space Administration, Defendants-Appellees.

          Appeal from the United States District Court for the Southern District of Texas

          Before JONES, HO, and OLDHAM, Circuit Judges.

          ANDREW S. OLDHAM, CIRCUIT JUDGE

         Johnnetta Punch says the National Aeronautics and Space Administration ("NASA") discriminated against her. She pursued her claims before numerous tribunals-none of which found any discrimination or other violation of law. But the merits of her allegations are not before us. The issue here is procedural. We must decide whether Punch pled her way out of federal court by attempting to litigate her claims in several mutually exclusive forums. The district court said yes. We agree.

          I.

         When a federal employee challenges an adverse employment action, such as termination, a "complicated tapestry" of statutes and regulations governs her claim. Butler v. West, 164 F.3d 634, 637 (D.C. Cir. 1999). We think the better metaphor is a road. But this trip is not for the easily carsick.

         The Civil Service Reform Act ("CSRA") gives federal employees numerous job protections. One is the right to challenge certain "serious personnel actions." Perry v. Merit Sys. Prot. Bd., 137 S.Ct. 1975, 1979 (2017). The employee "may merely allege that the agency had insufficient cause for taking the action under the CSRA." Kloeckner v. Solis, 568 U.S. 41, 44 (2012). The employee "may also or instead charge the agency with discrimination prohibited by another federal statute." Ibid. This second type of charge is called a "mixed case." Ibid. (citing 29 C.F.R. § 1614.302).

         Under the CSRA, employees face a series of mutually exclusive paths to bring a "mixed case." Option 1 is an appeal to the Merit Systems Protection Board ("MSPB"). The MSPB is "an independent adjudicator of federal employment disputes" that hears appeals from "particularly serious" actions, such as terminations of employment. Ibid.

         After the MSPB decides a mixed case, the road forks again. The employee has three options for further review. First (Option 1.A), she can appeal to the Federal Circuit-but only if she waives her discrimination claims and limits her appeal to CSRA claims. 5 U.S.C. § 7703(b)(1). If she chooses Option 1.A, she must file her appeal within 60 days of the MSPB's decision. Id. § 7703(b)(1)(A).

         Second (Option 1.B), the employee can instead keep pursuing her mixed case. But the road for review forks once again. The employee can immediately file suit in the appropriate federal district court (Option 1.B.i). Id. § 7703(b)(2). Or the employee can take a further administrative appeal to the EEOC (Option 1.B.ii). Id. § 7702(b)(1). And if she's unhappy with the EEOC's resolution, the employee can sue in district court. Id. §§ 7702(b)(3)(A), (b)(5)(A), (b)(5)(B), (c), 7703(b)(2); see Perry, 137 S.Ct. at 1980. Thus, both of these options (1.B.i and 1.B.ii) allow the employee to continue pursuing discrimination claims as part of her mixed case, and both eventually lead to litigation in district court. The employee's deadline to file a complaint in district court is 30 days from the final decision by the relevant administrative body-either the MSPB or the EEOC, depending on the route she chooses. See 5 U.S.C. § 7703(b)(2).

         But the employee need not start with the MSPB-or take any of the roads running from it. There's another way. Call it Option 2. An employee can file a mixed case complaint with the agency's Equal Employment Opportunity ("EEO") office. 29 C.F.R. § 1614.302(b); see also Kloeckner, 568 U.S. at 45. If the agency's EEO office rules against the employee, she can appeal to the EEOC. When the EEOC's decision becomes final and reviewable, she can challenge it in district court. See 29 C.F.R. § 1614.407. So Option 2, like Options 1.B.i and ii, eventually leads to district court.

         II.

         We turn now to Punch's case. In early 2013, Punch worked as a Program Analyst at NASA. On March 4, 2013, her supervisors gave her a "notice of unacceptable performance" and placed her on a "performance improvement plan." The plan required her to successfully complete certain tasks within her general job duties.

         The plan did not go well for Punch. She received an "unacceptable" rating on her 2012-2013 performance review. So in June 2013, Punch's supervisor recommended her employment be terminated. NASA terminated her on August 7, 2013.

         Punch alleged that NASA discriminated against her on the basis of race, color, sex, and age (among other things). She also alleged NASA discriminated against her by placing her on the performance improvement plan, conducting the plan, and terminating her employment. She also alleged her termination violated the CSRA. In other words, she had a "mixed case." As described above, Punch had several paths to seek review of her mixed case. But instead of choosing one path, Punch tried to choose all of them. First Punch chose Option 1. Then she tried to choose Option 2. But then she lost Option 1-so she tried to choose Option 1.A. and 1.B. Procedural chaos ensued.[1]

         A.

         We start, as Punch did, with Option 1. On September 5, 2013, Punch timely appealed her termination to the MSPB. She argued that NASA violated the CSRA by failing to provide the necessary resources and support to complete the improvement plan, that the same failures were discriminatory, and that the whole thing was retaliation for discrimination complaints she had submitted to NASA in the past.

         The MSPB affirmed NASA's decision. The MSPB's decision letter instructed Punch that she had two options for pursuing her mixed case. She could pursue all of it (both the CSRA claims and the discrimination claims) in the district court (Option 1.B.i). Or she could appeal to the EEOC (Option 1.B.ii). The MSPB also informed her that either filing would need to be made within 30 days of Punch's receipt of the decision letter. Punch received the letter on February 9, 2016, so her deadline to file in district court or appeal to the EEOC was March 10, 2016.

         Ultimately, Punch chose neither option. She instead purported to drop the discrimination claims and to pursue only her CSRA claims in the Federal Circuit (Option 1.A). She filed her petition for review on April 5, 2016. Her petition did not purport to press a mixed case. Indeed, Punch submitted a form to the Federal Circuit certifying that "[n]o claim of discrimination by reason of race, sex, age, national origin, or handicapped condition has been or will be made in this case." All of that makes sense because the Federal Circuit has jurisdiction to review only CSRA claims. So far so good, right?

         B.

         Not so fast. Three months after Punch chose Option 1 by appealing to the MSPB, she also purported to choose Option 2. On December 9, 2013, Punch also filed a discrimination complaint with NASA's EEO office. As pertinent here, Punch alleged (1) she received an "unacceptable" performance rating, (2) her request for reassignment was denied, (3) she was "denied official time to work on [a] prior EEO complaint," and (4) her supervisor proposed that Punch's employment be terminated.

         Punch's complaint was handled by NASA's Office of Diversity and Equal Opportunity ("ODEO"). NASA ODEO declined to consider allegation (4) because the termination itself had already been appealed to the MSPB. But it allowed three other allegations to go forward through the EEO process (Option 2):

1) On June 6, 2013, you received an "unacceptable" rating for your 2012-2013 appraisal due to your supervisor's denial of your request for additional resources (snag-it CD, sit/stand workstation, lightweight laptop computer) that would have enabled you to perform your job more effectively.
2) On June 19, 2013, your request for a reassignment and/or modification to your scope of work was denied.
3) On July 8, 2013, you were denied official time to work on your prior EEO complaint, Agency Docket No. NCN-13-JSC-00025.

Ultimately, NASA ODEO found no discrimination.

         Punch appealed NASA ODEO's final decision to the EEOC. Regulations provide that if the EEOC has not issued a final decision on such an appeal within 180 days, the claimant can file suit in the appropriate federal district court. 29 C.F.R. § 1614.407(d). That deadline passed without an EEOC decision. So on May 17, 2016, Punch filed an Option 2 lawsuit in the Southern District of Texas that's based, she contends, solely on her NASA EEO complaint. If governed by the 30-day deadline for seeking judicial review of an EEOC action, the complaint was timely. See 5 U.S.C. § 7703(b)(2); 29 C.F.R. § 1614.407(d).

         The Option 2 complaint alleges Punch was denied the resources she needed to complete the improvement plan, such as computer software and training, and that NASA "retaliated against Plaintiff by giving her an unacceptable rating on her 2012-2013 performance appraisal, proposing her removal from the Agency on June 6, 2013, and refusing to allow her to transfer to another manager." It also alleges she "was retaliated against by being placed on a Plan and eventually removed from her position" because of her prior EEOC complaints.[2]

         C.

         Punch's Option 2 complaint prompted NASA to move to dismiss her Option 1.A appeal to the Federal Circuit. That's ...


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