United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
U.S. Postal Service moves to dismiss plaintiff Keith
Craig's employment discrimination suit. For the following
reasons, the Court grants the motion.
was an employee of the U.S. Postal Service before his
termination in late 1999. On May 4, 2000, he filed a complaint
with the Equal Opportunity Office of the Postal Service,
alleging that he was terminated because of his race and
physical disability. See Craig v. Merit Sys. Prot.
Bd., 44 F. App'x 465, 465 (Fed. Cir. 2002). The
Equal Opportunity Office dismissed plaintiff's complaint
on the ground that it was not timely filed under 29 C.F.R.
§ 1614.105. Id. Plaintiff appealed that
decision, pro se, to the Merit Systems Protection
Board (MSPB or Board). Id. An Administrative Judge
(AJ) of the MSPB dismissed that appeal as untimely under both
29 C.F.R. § 1614.105 and 5 C.F.R. § 1201.22, and
the full Board declined review. Id. at 466. The
Federal Circuit affirmed. Id. at 467.
plaintiff filed a complaint with the Equal Employment
Opportunity Commission (EEOC). After both the EEOC and the
MSPB denied relief, plaintiff filed suit in this Court. The
Court dismissed the suit as untimely under 42 U.S.C. §
2000e-16(c) and 5 U.S.C. § 7703(b)(1). Craig v. U.S.
Postal Serv., No. 01-3643 (E.D. La. Sept. 11, 2002).
February 16, 2016, plaintiff filed his second pro se
appeal with the MSPB. The AJ dismissed this second appeal on the
ground that plaintiff was collaterally estopped from arguing
that his initial appeal was timely filed. Before the Board,
plaintiff argued that he was unable to file a timely appeal
because of his mental disability. The Board rejected this
argument, noting that plaintiff had an opportunity to raise
it during his initial appeal, and affirmed the AJ's
order. The MSPB's order became final on
December 12, 2016. On February 9, 2017, plaintiff filed a
petition for review with the Federal Circuit, which
transferred the case to this Court because the case involves
discrimination. See Kloeckner v. Solis, 568 U.S.
41, 56 (2012) (“A federal employee who claims that an
agency action appealable to the MSPB violates an
antidiscrimination statute . . . should seek judicial review
in district court, not in the Federal Circuit.”).
U.S. Postal Service now moves to dismiss plaintiff's suit
under the doctrine of collateral estoppel.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in
favor of the plaintiff. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the
Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's
claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim.
Lormand, 565 F.3d at 257. If there are insufficient
factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if
it is apparent from the face of the complaint that there is
an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007), the claim must be dismissed.
a plaintiff may file an employment discrimination suit in
federal court, she must administratively exhaust her claims.
See 42 U.S.C. § 2000e-5(f); id. §
2000e-16(c). Failure to meet regulatory deadlines during
administrative review means that a plaintiff's complaint
may be dismissed for lack of administrative exhaustion.
See, e.g., Pacheco v. Mineta, 448 F.3d 783,
791 n.11 (5th Cir. 2006) (“Generally, discrimination
claims alleging conduct that occurred more than 45 days
before the initiation of administrative action (contacting an
[Equal Employment Office] counselor) are time barred in a
subsequent action in federal court.”); see also
Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017)
(“[I]f an employee fails to meet any . . . statutory or
regulatory deadlines, the employee's federal court action
may be dismissed for failure to administratively exhaust the
Postal Service argues that this suit should be dismissed for
lack of administrative exhaustion under the doctrine of
collateral estoppel. Specifically, the Postal Service asserts
that plaintiff is collaterally estopped from showing the
timeliness of his initial MSPB appeal. If plaintiff's
initial appeal were untimely, then his second appeal-filed
fifteen years later- would also be untimely. Thus, the Postal
Service argues, the MSPB correctly dismissed the second
appeal. Plaintiff's pro se ...