PETER M. KING, Plaintiff,
TOBYHANNA ARMY DEPOT and LEON PANETTA, SECRETARY OF DEFENSE Defendants,
MALACHY E. MANNION, District Judge.
Pending before the court is the report and recommendation, (Doc. No. 30), of Judge Thomas Blewitt, recommending the dismissal of plaintiff's complaint, (Doc. No. 1), in its entirety for failure to exhaust his administrative remedies under the Civil Servant Reform Act (CSRA) and Veterans Employment Opportunities Act (VEOA). Because the court agrees that plaintiff failed to exhaust his administrative remedies and, even if he had exhausted his remedies, failed to file suit with the Federal Circuit, the court will ADOPT the report and recommendation IN ITS ENTIRETY and DISMISS plaintiff's complaint WITH PREJUDICE.
This case arises out of a labor dispute in which plaintiff alleges that defendants denied him veterans preferences, a fair opportunity to compete for federal employment, and seniority in applying for jobs. He also claims that they breached his employment contract and harassed him for filing employment grievances and asserting his veterans preferences. (Doc. No. 1, at 6.) In December 2007, plaintiff was hired at Tobyhanna Army Depot as a part-time WG-09 employee on second shift. (Doc. No. 1, at 2.) In November 2008, he was placed on a federal hiring list for a permanent WG-09 position but, despite his excellent qualifications and eligibility for veterans preferences, he was not selected for the job. (Doc. No. 1, at 2.) Plaintiff was placed on the hiring list for another permanent position in 2009, but was again denied the job. (Doc. No. 1, at 2.) Shortly after the alleged second incident, a 15-6 investigation was conducted at Tobyhanna to determine whether the facility personnel had engaged in unfair hiring practices. (Doc. No. 1, at 2.) One of plaintiff's superiors was removed from his position but nothing else was done to remedy the alleged employment violations of which plaintiff complains. (Doc. No. 1, at 2.)
In 2010, plaintiff was again placed on a federal hiring list for a WG-09 position but he was not offered the position, again despite his qualifications and veterans preferences. (Doc. No. 1, at 3.) Around this time, Tobyhanna management decided to lay off all term employees. (Doc. No. 1, at 3.) Plaintiff was scheduled to be terminated in January of 2011, but this date was later extended until September 2011. (Doc. No. 1, at 3.)
In June of 2011, plaintiff was, for the fourth time, placed on a federal hiring list for a permanent WG-07 position. (Doc. No. 1, at 3.) A month later, a representative from defendant Tobyhanna contacted plaintiff to verify his entitlement to veterans preferences. (Doc. No. 1, at 3.) Plaintiff claims that he was uncertain as to why he was being contacted by a representative because he had already gotten the assurance of the Army Inspector General that he was entitled to veterans preferences and that he would have no further trouble from his employer. (Doc. No. 1, at 3.) Despite this assurance, plaintiff was moved from first shift to second shift shortly thereafter. (Doc. No. 1, at 3.) Plaintiff informed his supervisor on August 1 that he would like to speak with the next person in the chain of command because he believed his seniority rights were being violated. (Doc. No. 1, at 3.)
On August 9, plaintiff again spoke with his supervisor about speaking with a superior, and his supervisor informed him that there had been a misunderstanding. (Doc. No. 1, at 3.) The supervisor had believed he wanted his case forwarded to the Civilian Personnel Advisory Center (CPAC), which he had already done. (Doc. No. 1, at 3.) The supervisor gave him a contact number at CPAC and scheduled a meeting with branch chief Mike Romanchek. (Doc. No. 1, at 3.)
On August 17, 2011, plaintiff met with Mike Romanchek, who allegedly informed him that it was unfair to place plaintiff on third shift because of his seniority. (Doc. No. 1, at 3.) He also stated that unfair hiring practices had occurred at Tobyhanna but informed plaintiff that his grievance was with CPAC, not management. (Doc. No. 1, at 3.) Plaintiff asked to remain on first shift until the problem was resolved, but Mr. Romanchek denied the request. (Doc. No. 1, at 3-4.) Plaintiff subsequently asked to have the issue elevated to the next person in the chain of command. (Doc. No. 1, at 4.)
On August 22, plaintiff met with Deputy Director Robert Marmo and Mike Romanchek. (Doc. No. 1, at 4.) He informed Mr. Marmo that it was unfair for him to be placed on third shift and that unfair hiring practices had occurred. (Doc. No. 1, at 4.) He told Mr. Marmo that they could have avoided this problem if Tobyhanna personnel had followed the law in the first place and given him the position the first time he applied because he was at the top of the list. (Doc. No. 1, at 4.) In response, Mr. Marmo told plaintiff that there were no numerical values assigned to the hiring list and denied his request to remain on first shift. (Doc. No. 1, at 4.) Several days later, plaintiff received an email from the human resources coordinator stating that he was number six on the federal hiring list. (Doc. No. 1, at 4.) Plaintiff forwarded this email to Mr. Marmo as proof of the numerical hiring system and asked to speak to the next person in the chain of command. (Doc. No. 1, at 4.)
On August 26, 2011, plaintiff met with Terrance Hora, Director of the SIS. (Doc. No. 1, at 4.) Mr. Hora informed plaintiff that it was unfair for him to be moved to third shift and that unfair hiring practices had occurred at Tobyhanna. (Doc. No. 1, at 4.) Nonetheless, he denied plaintiff's request for transfer to first shift and stated that he had "no intention of rectifying the issue." (Doc. No. 1, at 4.) He also showed plaintiff the new hiring policy, which required all new employees to work third shift, and explained that, because plaintiff is a new employee, his seniority had no bearing on what shift they assigned him. (Doc. No. 1, at 4.) Plaintiff claims that this internal policy was applied inconsistently because other new employees remained on first shift at the time plaintiff was moved to third shift. (Doc. No. 1, at 4.) He also claims that Mr. Hora has since resigned from his position because he was suspected of complicity in a drug ring operating at Tobyhanna Army Depot. (Doc. No. 1, at 4.)
Plaintiff claims that he has been harassed by his supervisors in retaliation for complaining about the benefits to which he was entitled. (Doc. No. 1, at 4.) On one occasion, plaintiff claims that his supervisor laughed at him for having a temporary work restriction on the amount of weight he could be required to lift. (Doc. No. 1, at 5.) Plaintiff also claims that his supervisors have given him negative work evaluations despite the fact that he has had an exemplary work history and frequently receives praise from his work leader. (Doc. No. 1, at 5.) Finally, he claims that his supervisors have retained him on third shift, threatened him with termination, and ordered him to work above his pay grade. (Doc. No. 1, at 5.)
Plaintiff alleges that he has received no response from CPAC or any other representative of the Tobyhanna Army Depot concerning any of his complaints. (Doc. No. 1, at 5.) He has contacted the EEOC, the Office of the Inspector General, the Department of Labor, Tobyhanna Army Depot Management, CPAC, and the Secretary of Defense about his grievances. (Doc. No. 1, at 5.) Therefore, he sought relief in the U.S. District Court for the Middle District of Pennsylvania. (Doc. No. 1, at 5.)
Plaintiff filed a complaint on March 19, 2012, alleging claims pursuant to various provisions of the CSRA and VEOA, including 5 U.S.C. §2108, 5 U.S.C. §3318(a) and (b), and 5 U.S.C. §2301. More specifically, he alleges that defendants denied him veterans preferences under the VEOA, a fair opportunity to compete for federal employment, and seniority rights at Tobyhanna Army Depot. (Doc. No. 1, at 6.) He also claims that the defendants harassed him, breached his employment contract, and denied him education benefits and advancement opportunities. (Doc. No. 1, at 6-7.) In response, defendants filed a motion to dismiss or, in the alternative, for summary judgment on May 25, 2012, arguing that plaintiff failed to exhaust his administrative remedies under the CSRA and VEOA. (Doc. No. 12.) ...