Poole et al v. United States Government Printing/Publishing Office/Agency

MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction

D.D.C.July 12, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA | DION POOLE, ET AL., | | Plaintiff, | | v. | Civil Action No. 16-494 (JEB) | UNITED STATES GOVERNMENT | PUBLISHING OFFICE, | | Defendant. | _____________________________________ | DEFENDANT’S MOTION TO DISMISS THE COMPLAINT Pursuant to Rules 8, 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure, Defendant United States Government Printing Office (“Defendant”), by and through undersigned counsel, respectfully moves the Court to dismiss the Complaint with respect to all Plaintiffs1 and all claims because the Complaint fails to properly notify Defendant of the claims being asserted by Plaintiff and fails to state a claim for relief. In the alternative, should the Court permit Plaintiffs to file an amended complaint, Defendant moves for dismissal of specific claims and an Order barring Plaintiffs from re- asserting those claims in an amended complaint. 1 The sixteen pro se Plaintiffs in this matter are: Gordon B. Findley Larry Warrick Derik Shannon Ossie Jones Dion Poole Deborah E. Stewart Maurice Robinson, Angela Jones James E. Smith Joseph M. Warren Howard M. Gilbert, III Kareem Latief Horace T. Harris, Jr. Sean Dank Lori A. Hill Leon J. Speller. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 1 of 21 2 The grounds for this Motion To Dismiss are set forth more fully in the accompanying memorandum. Dated: July 12, 2016 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VANHORN, D.C. Bar No. 924092 Chief, Civil Division By: /s/ April Denise Seabrook APRIL DENISE SEABROOK D.C. Bar No. 993730 Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Tel: (202) 252-2525 April.Seabrook@usdoj.gov Counsel for Defendant COUNSEL FOR DEFENDANT Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 2 of 21 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA | DION POOLE, ET AL., | | Plaintiff, | | v. | Civil Action No. 16-494 (JEB) | UNITED STATES GOVERNMENT | PUBLISHING OFFICE, | | Defendant. | _____________________________________ | DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT TABLE OF CONTENTS INTRODUCTION ................................................................................................................................. 2 BACKGROUND ................................................................................................................................... 2 I. FACTUAL BACKGROUND ................................................................................................... 2 II. ADMINISTRATIVE PROCEEDINGS .................................................................................... 5 III. DISTRICT COURT PROCEEDINGS ...................................................................................... 7 ARGUMENTS ....................................................................................................................................... 8 I. LEGAL STANDARDS ............................................................................................................. 8 A. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction ..................................................... 8 B. Rule 12(b)(6) -- Failure To State A Claim .................................................................... 9 C. Pleading Standards For Pro Se Litigants .................................................................... 10 II. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED BECAUSE IT FAILS TO COMPLY WITH THE NOTICE PLEADING STANDARDS OF RULE 8 .......................... 11 III. THE COURT SHOULD DISMISS SEVERAL OF PLAINTIFFS’ CLAIMS AND BAR PLAINTIFF FROM INCLUDING SUCH CLAIMS IN AN AMENDED COMPLAINT ..... 14 A. This Court Lack Jurisdiction Over Claims Related To Labor Practices, Personnel Actions, And Other Claims Potentially Alleged By Plaintiffs .................................... 14 B. Plaintiffs’ Claims Challenging Their Wages Should Be Dismissed As An Improper Collateral Attack On A Collective Bargaining Process .............................. 15 C. Plaintiffs’ Claims For Hostile Work Environment Under Title VII Should Be Dismissed For Failure To Exhaust Administrative Remedies .................................... 17 CONCLUSION .................................................................................................................................... 18 Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 3 of 21 2 INTRODUCTION Plaintiffs are sixteen current and former employees of the United States Government Publishing Office’s (“GPO” or “Defendant”) who broadly allege discrimination and retaliation based on their race (African-American). Plaintiffs’ Complaint provides a narrative packed with conclusory allegations involving various aspects of their employment, including complaints about their job descriptions, working conditions, and rate of pay, but it is devoid of any meaningful statement of what claim(s) each Plaintiff is asserting and/or the factual allegations supporting those claims. As a result, Plaintiffs’ Complaint is insufficient to put Defendant on notice of the claims and/or the relevant facts; consequently, this case should be dismissed pursuant to Federal Rules of Civil Procedure (“Rule”) 8, 12(b)(1), and 12(b)(6). Additionally, should the Court permit Plaintiffs leave to file an amended complaint that is consistent with Rule 8(a), Defendant moves for an Order dismissing certain claims pursuant to Rule 12(b)(1) and/or 12(b)(6) and barring Plaintiffs from including such claims in any amended complaint. BACKGROUND I. FACTUAL BACKGROUND The Government Printing Office is a unit of the legislative branch of the federal government and it employs workers in the competitive service. See Exhibit 1 at p. 2 (EEOC AJ’s Decision, dated 5/20/2013). During the relevant periods of time, Plaintiffs were employees with the GPO Digital Print Center (“DPC”). See Exhibit 1 at p. 2; Compl. at pp. 4-6. The DPC’s mission includes digital scanning and printing, as well as preparation, processing, and storage of reproducible items. See Exhibit 1 at p. 2 (EEO AJ’s Decision). The DPC is located in the Binding Division of GPO’s Plant Operations business unit. See Exhibit 1 at p. 2; Compl. at pp. 11. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 4 of 21 3 In the Binding Division, GPO employs three classes of workers: Bookbinders, Graphic Process Operators, and Printing Plant Workers (“PPW”). Exhibit 1 at p. 3 (EEOC AJ’s Decision); Thompson v. Sawyer, Public Printer, 678 F.2d 257, 264 (D.C. Cir. 1982). Bookbinder is a craft position that requires training in the trade; while Graphic Processor Operators and PPWs are considered non-craft by GPO, and have historically received lower pay than Bookbinders. Exhibit 1 at p. 3 (EEOC AJ’s Decision); citing Thompson, 678 F.2d at 264- 65. Each Plaintiff held one of the following positions within the Binding Division: Graphic Processer Operator, Web-Fed Digital Electronic Printing Systems Operator, Lead Graphic Processer Operator, and Supervisory Graphic Processor Operator.2 Compl. at pp. 4-6. Each of the nonsupervisory Plaintiffs - i.e., all Plaintiffs except Dion Poole, Angela Jones, and Gordon Findley - are members of a collective bargaining unit exclusively represented by Local 713-S of the Graphic Communications Conference, which is now affiliated with the International Brotherhood of Teamsters. See Exhibit 1 at p. 3 (EEOC AJ’s Decision). Although DPC Supervisors are not represented by the bargaining unit, the Supervisors have a direct interest in whatever pay is negotiated for the non-supervisory DPC employees because the Supervisor’s pay is a specified percentage above the negotiated pay rate for the GP Operators. Id at p. 3 n 5. 2 At all times relevant to the Complaint:  the following Plaintiffs were employed a Graphic Processer Operator (“GP Operators”): Sean Dank, Howard M. Gilbert, III, Horace T. Harris Jr., Kareem Latief, Maurice Robinson, Derik Shannon, Deborah Stewart, Joseph Warren, and Larry Warrick;  the following Plaintiffs were employed as Web-Fed Digital Electronic Printing Systems Operators (“OCE Operators”): Ossie Jones and Leon Speller;  the following Plaintiffs were employed in the DPC as Graphic Processor Operators (“Leaders”): Laurie Hill and Dion Poole; and  the following Plaintiffs were employed as Supervisory Graphic Processor Operators (“Supervisors”): Gordon Findley and Angela Jones. Laurie Hill’s name in GPO records is Laurie A. Jones. Plaintiffs Gilbert, Latieff, Stewart, and Warren have either retired or no longer work at GPO. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 5 of 21 4 Wage agreements at the GPO are negotiated between GPO and the Joint Bargaining Committee of GPO unions; the Joint Bargaining Committee (“JBC”) represents eight of the eleven trade unions at GPO, one of which is Plaintiffs’ representative, Local 713-S. Exhibit 1 at pp. 3-4 (EEOC AJ’s Decision). After wages are negotiated by the JBC and GPO, the wage agreement is submitted to the entire employee membership of the JBC for ratification. Approval of a wage agreement requires the vote of a majority of the JBC’s members. Pursuant to 44 U.S.C. 305(a), after the wage agreement is approved by the members, it must be submitted to - and approved by - the Joint Committee on Printing (“JCP”), which is a congressional committee composed of (i) the chairman and four members of the Senate Committee on Rules and Administration and (ii) the chairman and four members of the House Committee on Oversight. See 44 U.S.C. § 101; see also Exhibit 1 at pp. 2-3 (EEOC AJ’s Decision). The negotiations for the 2007-2012 Wage Agreement - which is at the root of Plaintiffs’ current gripes - took place between May and September of 2007, with a wage agreement being signed on October 22, 2007. Exhibit 1 at p. 3-4 (EEOC AJ’s Decision). This agreement was ratified by the members of the unions who comprise the JBC and approved by the JCP, as required by 44 U.S.C. § 305. See id at 4. The wage agreement provided each local union in the JBC with the same percentage annual wage increases over the term of the agreement. However, the method of calculating base pay for all the covered employees, including the DPC employees, was left unchanged.3 Exhibit 1 at p. 4 (EEOC AJ’s Decision). 3 During the negotiations, Local 713-S and GPO could not agree on what the DPC reference pay rate should be. GPO proposed 75% of the "engineering rate" (which was agreed to in the previous 2002-2007 Wage Agreement) to continue as the base pay reference rate for the DPC employees. Even though under GPO's proposal the engineering rate was due a percentage increase under the new contract, resulting also in an increase in the pay for DPC employees, Local 713-S proposed instead that DPC employees be paid 85% or 95% of the pay of GPO's Joumeyperson Bookbinders, a different and higher pay rate. Ultimately, as a result of the collective bargaining process, the then current negotiated base rate of pay for the DPC's Graphic Processor Operators remained at 75% of the Agency's "engineering rate". See Exhibit 1 at pp. 4-5 (EEOC AJ Decision); Exhibit 2 at pp. 3-4 (EEOC OFO Decision, dated 10/6/2014). Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 6 of 21 5 II. ADMINISTRATIVE PROCEEDINGS Plaintiffs contacted GPO’s Equal Employment Opportunity Office (“GPO EEO”) beginning in late July 2008 and subsequently filed separate EEO complaints, which were later consolidated by the GPO EEO.4 See Compl. at 2, 4-6. The complaints alleged discrimination on the basis of race. More specifically, [a] review of the formal complaints and pre-complaint documents reveals that the crux of the formal complaints concerns allegations of discrimination in connection with their rate of pay. In addition, they alleged hostile work environment with respect to issues related to their working conditions. The allegations included challenging their job descriptions, job training, and work assignments. Exhibit 1 at p. 2 (EEOC OFO Appeal Decision, dated 10/6/2014). On October 7, 2010, at the conclusion of extensive pre-hearing discovery conducted by both sides, complainants (through counsel) notified the EEOC that they were “withdrawing their claim of a hostile work environment on the basis of race” but they were “still pursuing their remaining claim of disparate treatment and disparate impact on the basis of race with respect to their rate of pay.” Exhibit 4 (Plfs’ Letter To EEOC Withdrawing Claim, dated 10/7/2010); see also Exhibit 2 (EEOC OFO Appeal Decision). On January 19, 2013, the EEOC Administrative Judge (“EEOC AJ”) presiding over the case issued on “Order on Claims”, in which he ordered Plaintiffs to clarify their claims because the EEOC AJ found that, much like the Complaint that is the subject of this motion, Plaintiffs’ allegations were “vague and ambiguous.” See Exhibit 1 at p. 1-2 (EEOC AJ’s Decision). In his Order, the EEOC AJ ordered Plaintiffs “to supplement [the] allegations, … identify in what specific way(s) the Agency has discriminated against [them] ‘as it relates to [their] rate of pay[,]” and to “show cause why the[] complaints should not be dismissed for failure to state a claim, on 4 Two individuals listed as complainants in the GPO EEO acceptance letter are not plaintiffs to this suit: Elmer Campbell and James Thompson. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 7 of 21 6 the grounds that they are merely a collateral attack on the collective bargaining process, or should be raised in a different forum.” Id. On May 20, 2013, after reviewing submissions by the parties and other information in the administrative record, the EEOC AJ dismissed Plaintiffs’ cases, pursuant to 29 C.F.R. § 1514.107(a)(1), for failure to state a claim. In his decision discussing the dismissal, the EEOC AJ noted that “[t]he commission has frequently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding”, see Exhibit 1 at p. 6 (citing EEO cases) (EEOC AJ’s Decision); and he determined that Plaintiffs’ challenge to their rate of pay constituted to an impermissible collateral attack on the wage contracts negotiated between GPO and the complainants’ designated collective bargaining representative in 2007, id at p. 7. GPO then issued its final order adopting the EEOC AJ’s dismissal on the basis of failure to state a claim. See Exhibit 2 at p. 5 (EEOC OFO Appeal Decision, dated 10/6/2014). Plaintiffs appealed the GPO’s final order to the EEOC’s Office of Federal Operations (“EEOC OFO”). On October 10, 2014, EEOC OFO issued a decision affirming the final agency order based on its “find[ing] that the AJ’s dismissal was proper as these complaints constitute an impermissible collateral attack on another proceeding”. See Exhibit 2 at p. 5 (EEOC OFO Appeal Decision, dated 10/6/2014). The EEOC OFO Appeal Decision went on to explain that: Much of what the Complainants argue and submit on appeal is related to their dissatisfaction with the outcome of the 2007-2012 collective bargaining agreement negotiations concerning their rate of pay. To that extent, the Commission has long held that an employee cannot use the EEO complaint process to lodge a collateral attack on the results of another proceeding such as the collective bargaining process. The proper forum for the Complainants to raise their challenges to actions involving matters governed by the collective bargaining agreement is within the collective bargaining procedure, and its special appeal process with the Joint Committee on Printing, which affords the Complainants a forum to challenge any dispute concerning wages. Exhibit 2 at pp. 4-5 (internal citations omitted) (EEOC OFO Appeal Decision). Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 8 of 21 7 Plaintiffs sought reconsideration from EEOC OFO of its Appeal Decision. On March 23, 2015, EEOC OFO affirmed its decision, explaining that: We have carefully considered Complainants’ request and the Agency's reply. We reject Complainants’ argument that these complaints “steer clear of any attack on the collective bargaining process.” Complainants are clearly complaining about their wages, and their wages are negotiated under a collective bargaining process. The unilateral compensation rate at issue was the result of a negotiation process where Complainants' union's demands for higher wages were not met by the Agency. This record amply supports the AJ’s conclusion that Complainants are alleging their dissatisfaction with the results of the collective bargaining negotiations in which the Agency and management disagreed on their rate of pay. See Exhibit 3 (EEOC OFO Reconsideration Decision, dated 3/23/2015). III. DISTRICT COURT PROCEEDINGS On June 15, 2015, Plaintiffs filed their Complaint in the U.S. District Court for the Eastern District of Virginia (“EDVA District Court”). Plaintiffs’ Complaint generally alleges discrimination and retaliation, complains of “noticeable disparate treatment in comparison to the other sections” in GPO’s Bindery Division, and lists general grievances such as a “lack of man power, unfair labor practices, inequality, discrimination tactics and not being paid on a comparable level for duties performed” and “downgrad[ing] of equipment, a veering of our work to higher paid employees and removal of highly technical equipment.” Compl. at p. 2. The Complaint does not, however, allege any concrete facts, as opposed to conclusions, that would support a claim. On September 29, 2015, as part of its ruling on Defendant’s Motion to Dismiss Or, In The Alternative, For Transfer (“Defendant’s Motion”) [ECF Nos. 4-7], the EDVA District Court issued an Order transferring this matter to the U.S. District Court for the District of Columbia (“D.C. District Court”). On March 14, 2016, the case was docketed in the D.C. District Court. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 9 of 21 8 ARGUMENTS I. LEGAL STANDARDS A. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction Federal Rule of Civil Procedure 12(b)(1) requires dismissal of claims where the Court “lack[s] jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). See Curran v. Holder, 626 F. Supp. 2d 30, 32 (D. D.C. 2009) (“Rule 12(b)(1) presents a threshold challenge to the Court's jurisdiction . . . [and] the Court is obligated to determine whether it has subject-matter jurisdiction in the first instance.”) (internal citation and quotation marks omitted). “A federal court presumptively lacks jurisdiction in a proceeding until a party demonstrates that jurisdiction exists. A party must therefore affirmatively allege in his pleadings the facts showing the existence of jurisdiction, and the court must scrupulously observe the precise jurisdictional limits prescribed by Congress.” Commodity Futures Trading Comm’n v. Nahas, 738 F.2d 487, 492 n.9 (D.C. Cir. 1984). See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“[I]t is presumed that a cause lies outside [the federal courts’] limited jurisdiction.”). A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be presented as either a facial or factual challenge. In a facial challenge, the court may decide the motion based solely on the complaint. Herbert v. National Academy of Science, 974 F.2d 192, 197 (D.C. Cir. 1992); Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D. D.C. 2003) (“A facial challenge attacks the factual allegations of the complaint that are contained on the face of the complaint.”) (internal quotations and citations omitted). In contrast, to determine the existence of jurisdiction in a factual challenge, a court may look beyond the allegations of the complaint, consider affidavits and other extrinsic information, and ultimately weigh the conflicting evidence. See Herbert, 974 F. 2d at 197; Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (Noting that, with respect to a factual challenge, the district court may consider materials outside Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 10 of 21 9 of the pleadings to determine whether it has subject matter jurisdiction over the claims.) Under either analysis, several of Plaintiff’s claims are ripe for dismissal. B. Rule 12(b)(6) -- Failure To State A Claim The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (The Court may grant the motion when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). A court considering such a motion presumes that the complaint’s factual allegations are true and construes them liberally in the plaintiff's favor. See United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. In addition, a court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555; see also Kowal v. MCI Communications Corp., 16 Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 11 of 21 10 F.3d 1271, 1276 (D.C. Cir. 1994) (emphasis added) (“[T]he court need not accept inferences drawn by [the] [plaintiff[] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations.”). When ruling on a motion under Rule 12(b)(6), “[t]his Court has held that ‘where a document is referred to in the complaint or is central to the plaintiff’s claims, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.’” Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D. D.C. 1999) aff'd, 38 F. App'x 4 (D.C. Cir. 2002); see also EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). This motion can be decided under Rule 12(b)(6) as the facts to be considered are pled in the Complaint, contained in documents incorporated therein by reference, and found in the submissions and orders in Plaintiff’s EEOC proceedings, which are matters of public record of which the Court may take judicial notice. Uzlyan v. Solis, 706 F. Supp. 2d 44, 55 & n.5 (D. D.C. 2010) (relying on statements made in hearing before administrative judge to dismiss retaliation claim); Covad Commun. Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (judicial notice of other court decisions and party's failure to respond to argument regarding them). Similarly, the D.C. Circuit approved judicial notice of public records on file at a government agency. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (patent assignment records on file with the Patent Trademark Office); Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (press release and agency order attached to plaintiff's complaint). C. Pleading Standards For Pro Se Litigants A complaint filed by pro se plaintiff must be “liberally construed,” and “held to less stringent standards” than would be a “formal pleading[] drafted by lawyers,” see Erickson v. Pardus, 551 U.S. 89, 94 (2007); however, “[e]ven with the liberality afforded pro se complaints, the district court ‘need not accept inferences unsupported by the facts alleged in the complaint or Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 12 of 21 11 legal conclusions cast in the form of factual allegations.’” Rodriguez v. Donovan, 922 F. Supp. 2d 11, 15 (D.D.C. 2013) (quoting Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C.Cir.2008)). (quotation marks omitted). “[A] pro se complaint, like any other, must present a claim upon which relief can be granted by the court”, Henthorn v. Dep't of Navy, 29 F.3d 682, 684 (D.C.Cir.1994), and “must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct,’” Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (citing Iqbal, 129 S.Ct. at 1950). Thus, pro se plaintiffs must abide by the legal rules and practices that ensure prompt, fair, and proper litigation. Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). II. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED BECAUSE IT FAILS TO COMPLY WITH THE NOTICE PLEADING STANDARDS OF RULE 8 Plaintiffs’ bald allegations of discrimination and retaliation fail to satisfy pleading requirements. Rule 8(a)(2) requires a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Conley, 355 U.S. at 45-46. The purpose of Rule 8 is to “give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Brown v. Califano,75 F.R.D. 497, 498 (D.D.C. 1977). “Beyond this, the rule serves to sharpen the issues to be litigated.” Brown, 75 F.R.D. at 498 (dismissing pro se plaintiff's complaint because it failed to reasonably inform the adverse party of the cause of action). A plaintiff’s pro se status does not excuse him from complying with requirements of Rule 8(a)(2). See Rogler v. U.S. Dep't of Health & Human Servs., 620 F. Supp. 2d 123, 127-28 (D.D.C. 2009) (dismissing “confusing” and “convoluted” Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 13 of 21 12 pro se complaint for failure to comply with Rule 8(a)). Plaintiffs’ Complaint here fails to comply with the Rules and, thus, should be dismissed. Plaintiff's’ Complaint is “rambling narrative of charges and conclusions … that are neither plainly nor concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and personal comments.” Brown v. Califano, 75 F.R.D. 497, 499 (D.D.C. 1977) (dismissing complaint for falling “far short of the admittedly liberal standard” of Rule 8(a)). While “a plaintiff filing an employment discrimination complaint … is not required to plead a prima facie case of discrimination or retaliation in his complaint,” the plaintiff must at least allege that “(i) [he] suffered an adverse employment action and (ii) [the action occurred] because of his race, color, or religion, sex or national origin.” Winston v. Clough, 712 F. Supp. 2d 1, 13 (D.D.C. 2010) (emphasis added); see Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000) (stating that plaintiff need not plead a prima facie case but under Rule 8, plaintiff is required to give the defendants fair notice of each claim and its basis) (citations omitted). Here, Plaintiffs’ Complaint suffers from numerous frailties, including that (i) most of the alleged acts listed do not appear on their face to be adverse employment actions;5 (ii) Plaintiffs fail to identify any specific claim or cause of action and similarly fail to even state whether they are pursuing claims alleging discrete acts of discrimination and/or asserting a claim of a hostile 5 To establish an adverse employment action for purposes of a discrimination claim, a plaintiff must demonstrate that he has suffered “materially adverse consequences affecting the terms, conditions, or privileges of his employment or his future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” Brown v. Brody, 199 F.3d at 457 (emphasis added). This Circuit has defined an adverse employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009). Many of the events listed in Plaintiffs’ Complaint and it attachments consist primarily of alleged actions that have no material adverse consequence on DPC employees within the meaning of Title VII; these alleged acts include allowing DPC vacant positions to remain unfilled longer than Plaintiffs think they should be vacant, having “outdated position descriptions that do not reflect current duties”, “downgrad[ing] of equipment, a veering of {DPC] work to higher paid employees and removal of highly technical equipment”, “not [being] given the opportunity to attend Expos or work on special project”, “title of positions not being accurate”, and “not being provided desks or offices to communicate with employees in a private setting.” See Compl. at pp. 4-6 (EEO attachment). Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 14 of 21 13 work environment; (iii) Plaintiffs fail to identify the specific act(s) that each Plaintiff alleges was committed against him/her, which is necessary to determine the appropriate defenses for Defendant to assert; and (iv) Plaintiffs fail to state when any of the alleged acts occurred. For example, Plaintiffs make the conclusory allegations that “[w]e were conscious of disparate treatment in comparison to the other sections of the [GPO’s] Bindery Division” and they assert that their equipment was downgraded, some highly technical equipment was removed, and their “work [was given] to higher paid employees.” Compl. at p. 2. Plaintiffs do not state facts in support of these assertions or even allege that individuals of other races did not experience these alleged actions.6 Plaintiffs also allege: “we were treated as a separate entity encountering numerous negative expressions and comments along with racial slur(s) from former Acting Public Printer Robert Tapella,” see Compl. at p. 2; but none of the sixteen plaintiffs provide any examples or details of any of the “numerous negative expressions” or alleged racial slurs, including when or where they occurred or to which Plaintiff(s) they were allegedly directed. Altogether, Plaintiffs present not one single specific or concrete fact in support of their claims of discrimination and retaliation. Rather, Plaintiffs speculate that the agency actions they complain of are discriminatory and were made on the basis of Plaintiffs’ race and in retaliation for EEO activity. Compl. at p. 2. In sum, Plaintiffs’ conclusory and naked allegations do not rise above the speculative level and fail to provide notice to Defendant of any specific claim being asserted by any of the sixteen Plaintiffs. These bare allegations of discrimination and retaliation are not sufficient to 6 Notably, not all employees working in the DPC are African-American. See Compl. at p. 11. Plaintiffs have not alleged in their District Court Complaint (or any other forum) that other DPC employees who are not African- American were treated differently they are have been treated. Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 15 of 21 14 state a claim upon which relief can be granted and, thus, the Court should dismiss the Complaint. See Iqbal, 556 U.S. at 682. III. THE COURT SHOULD DISMISS SEVERAL OF PLAINTIFFS’ CLAIMS AND BAR PLAINTIFF FROM INCLUDING SUCH CLAIMS IN AN AMENDED COMPLAINT As an initial matter, any claim based on an allegation related to lack of manpower, unfair labor practices, or other generalized workplace complaints are not cognizable under Title VII, which only provides a remedy for discrimination and retaliation in federal employment. See 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”); Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998) (“Title VII seeks to make persons whole for injuries suffered on account of unlawful employment discrimination.”); Rattigan v. Gonzales, 503 F. Supp. 2d 56, 79 (D.D.C. 2007) (“Title VII does not provide a cause of action for the ‘ordinary tribulations of the workplace,’ and ‘not everything that makes an employee unhappy is an actionable’”). A. This Court Lack Jurisdiction Over Claims Related To Labor Practices, Personnel Actions, And Other Claims Potentially Alleged By Plaintiffs Many of the allegations in the Complaint also suggest that Plaintiffs may seek to assert claims that this Court either lacks jurisdiction to adjudicate or that Plaintiffs would otherwise not be able to pursue successfully in this Court. First, to the extent that the Plaintiffs attempt to complain about federal employment personnel actions, Plaintiffs’ exclusive remedy, if any, is through the Civil Service Reform Act of 1978 (“CSRA”) and the exclusive jurisdiction for adjudication of such claims lies first with the Merit Systems Protection Board (“MSPB”). See Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 16 of 21 15 Hubbard v. U.S. E.P.A. Adm’r, 809 F.2d 1, 5 (D.C. Cir. 1986) (“[Civil Service Reform Act], deprives the district court of jurisdiction to review prohibited personnel practices; more serious infractions are appealable to the Merit Systems Protection Board.... Prohibited personnel practice claims may only be brought to the [Office of Special Counsel of the MSPB].”). Similarly, to the extent that the Complaint challenges alleged “unfair labor practices,” the Court lacks jurisdiction to consider such claims because the Federal Service Labor-Management Relations Act (“FSLMRA”) - also known as Title VII of the Civil Service Reform Act, 5 U.S.C. §§ 7101-7135 - provides an exclusive grant of enforcement authority over unfair labor practice claims to the Federal Labor Relations Authority. See Steadman v. Governor, U.S. Soldiers' & Airmen's Home, 918 F.2d 963, 966 (D.C. Cir. 1990) (“Congress passed an enormously complicated and subtle scheme to govern employee relations in the federal sector, including the authorization of collective bargaining. It follows, then, that federal employees may not circumvent that structure even if their claim is based as well on [other legal provisions].... [And] “it would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.”); Karahalios v. Nat'l Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 532 (1989) (pursuant to FSLMRA, the exclusive jurisdiction over unfair labor practice disputes lies with the Federal Labor Relations Authority). B. Plaintiffs’ Claims Challenging Their Wages Should Be Dismissed As An Improper Collateral Attack On A Collective Bargaining Process To the extent that Plaintiffs seek to challenge their pay/wages, this claim would be barred, because it would constitute an impermissible collateral attack on Plaintiffs’ collective bargaining process. Indeed, the EEOC OFO’s well-reasoned decision on Plaintiffs’ appeal provides a thorough discussion of this issue and it states, in part: Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 17 of 21 16 Much of what the Complainants argue and submit on appeal is related to their dissatisfaction with the outcome of the 2007-2012 collective bargaining agreement negotiations concerning their rate of pay. To that extent, the Commission has long held that an employee cannot use the EEO complaint process to lodge a collateral attack on the results of another proceeding such as the collective bargaining process. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Linead v. U.S. Postal Service, EEOC Request No. 05930106 (June 25 .1993). The proper forum for the Complainants to raise their challenges to actions involving matters governed by the collective bargaining agreement is within the collective bargaining procedure, and its special appeal process with the Joint Committee on Printing, which affords the Complainants a forum to challenge any dispute concerning wages. Exhibit 2 at pp. 4-5 (EEOC OFO Decision, dated 10/6/2014).7 The EEOC also noted that Plaintiffs had, in fact, sought substantially similar claims in an action filed with the FLRA in which they attempted to challenge the merits of the collective bargaining agreement. The EEOC OFO noted that: On December 20, 2010, the Complainants filed an action with the FLRA to de-certify Local 713- S, as a result of their dissatisfaction with Local 713-S inability to achieve higher wages during the collective bargaining agreement. In its August 30, 2011 decision, the FLRA noted that Complainants have been complaining about their pay rate since 2004, claiming that due to the technical nature of their work, they should be paid at a rate closer to a journeyperson’s hourly rate. The [FLRA] decision also noted that the Complainants have raised this issue with Local 713 and management many times. In its decision, the FLRA concluded that “[a]lthough [Digital Processing Center] employees are not satisfied with their current wage rate, Local 713’s inability to achieve desired wage levels does not demonstrate inadequate representation, but rather is a product of collective bargaining.” See Exhibit 2 at p. 5 n 2 (EEOC OFO Decision, dated 10/6/2014). 7 Pursuant to 44 U.S.C. § 305(a), “[w]hen the Director of the Government Publishing Office and the committee representing the trade fail to agree as to wages, salaries, and compensation, either party may appeal to the Joint Committee on Printing, and the decision of the Joint Committee is final.” Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 18 of 21 17 C. Plaintiffs’ Claims For Hostile Work Environment Under Title VII Should Be Dismissed For Failure To Exhaust Administrative Remedies Finally, to the extent that Plaintiffs seek to assert a claim for harassment or hostile work environment, this claim would be barred because Plaintiffs have failed to exhaust the required administrative remedies of Title VII. Title VII requires that before filing a lawsuit in federal court, a plaintiff must timely pursue and exhaust all available administrative remedies for each discrete claim. See 42 U.S.C. § 2000e-16(c); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Bowden v. Clough, 658 F. Supp. 2d 61, 71 n.3 (D. D.C. 2009). Accordingly, failure to exhaust administrative remedies precludes a plaintiff from pursuing the claim in District Court. See Gillet v. King, 931 F. Supp. 9, 12-13 (D. D.C. 1996) (dismissing Plaintiff’s Title VII claims for failure to exhaust his administrative remedies.); Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003). Among the rules governing administrative exhaustion is that, where the plaintiff requests EEOC OFO review of an agency’s final decision, the plaintiff cannot withdraw a portion of his request for review before EEOC OFO has made a decision, then pursue that withdrawn claim in District Court. See Noisette v. Geithner, 693 F. Supp. 2d 60, 67 (D.D.C. 2010) (dismissing claim for failure to exhaust and holding that “[b]y withdrawing his appeal, however, [the plaintiff] stripped the OFO of its chance to investigate in a meaningful way [his] complaint. To allow [the plaintiff] to abandon course after he affirmatively chose an appeal at the administrative level could frustrate Title VII’s goal of encouraging discrimination complaints to be resolved at the administrative level.”); see also Nguyen v. Potter, No. 1:13-cv-1386, 2014 WL 2861312 (E.D. Va. June 24, 2014) (noting that where “[p]laintiff clearly and specifically abandoned” his claim in the administrative process, he failed to exhaust his administrative Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 19 of 21 18 remedies), aff’d, 2015 U.S. App. LEXIS 1126 (4th Cir. Jan. 26, 2015) (citing Khader v. Aspin, 1 F.3d 968, 971 (10th Cir.1993)). Here, Plaintiffs explicitly abandoned claims of hostile work environment and harassment during the administrative proceedings when, through counsel, they submitted a letter dated October 7, 2010, to the Supervisory Administrative Judge of the EEOC’s Washington, DC Field Office notifying the EEOC that Plaintiffs were “withdrawing their claim of a hostile work environment on the basis of race”. See Exhibit 4 (Plfs’ Letter to EEOC Judge Withdrawing Claim, dated 10/7/2010). Given Plaintiffs unequivocal withdrawal of this claim, the Court should grant Defendant dismissal of this claim. CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiffs’ Complaint for failure to comply with the requirements of Rule 8(a). In the alternative, should the Court permit Plaintiffs to file an amended complaint, Defendant requests that the Court grant it dismissal of the above- listed claims and bar Plaintiffs from including such claims in their amended complaint. Dated: July 12, 2016 Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar No. 415793 United States Attorney DANIEL F. VANHORN, D.C. Bar No. 924092 Chief, Civil Division By: /s/ April Denise Seabrook APRIL DENISE SEABROOK, D.C. Bar No. 993730 Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Tel: (202) 252-2525 April.Seabrook@usdoj.gov Counsel for Defendant Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 20 of 21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this July 13, 2016, the foregoing Defendant’s Motion to Dismiss has been served on each of the sixteen pro se Plaintiffs via First Class Mail: April Denise Seabrook APRIL DENISE SEABROOK Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Office: (202) 252-2525 Fax: (202) 252-2599 Email: April.Seabrook@usdoj.gov Case 1:16-cv-00494-JEB Document 20 Filed 07/12/16 Page 21 of 21 Exhibit 1 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 1 of 27 ""·Er " "'v ' -l c w ., _ ... i ~t u '\ .. "' ~ ~-. - !MAY 22 AM 9:30 JfF!CE OF l H: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON FIELD OFFICE NE RAt. C 0 IJN c-, !· l 131M STREET,N.E., SUITE4NW02F WASHINGTON, D.C. 20507 Dian Poole, Complainant, v. Davita Vance-Cooks, Public Printer, 1 Government Printing Office, Agency. ) ) ) ) ) ) ) ) ) EEOC Case No. 570-201 0-00067x Agency Case No. 09-06 MAY 2 0 2013 DISMISSAL OF COMPLAINT2 This is one of several complaints filed by a group of employees of the Agency making the same allegation.3 Specifically, on November 2, 2009, the Agency accepted the following claim for investigation: Complainant alleges that because of his race (African American, Black, or Native American), he has been discriminated against as it relates to his rate ofpay.4 Report of Investigation ("ROI"), at Ex. 14 7. On January 19, 2013, I issued on Order on Claims, wherein I sought additional information from the Complainant about his claims. In my Order, I found the accepted allegation "to be vague and ambiguous," and ordered the Complainant "to supplement [his] allegations, and identify in what specific way(s) the Agency has discriminated against [him] 'as it relates to [his] 1 The current Acting Public Printer, Davita Vance-Cooks, is substituted as the named respondent. See, Fed. R. Civ. P. 25(d). 2 Nothing contained herein should be construed as expressing any opinion on the merits of this complaint. 3 Some previous motions and Orders were joined for processing. 4 The Complainant also included a hostile work environment claim, which he withdrew by letter (through counsel) dated October 7, 2010. 1 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 2 of 27 rate ofpay." Order, at 1. I also ordered the Complainant to "show cause why these complaints should not be dismissed for failure to state a claim, on the grounds that they are merely a collateral attack on the collective bargaining process, or should be raised in a different forum." !d. I further ordered the Complainant to address questions whether the Commission has the jurisdiction, and thus the power, to impose wage rates on the Agency, and whether the complaint merely presents a generalized grievance about his wages. !d. at 2. Complainants submitted a Response to Order on Claims ("Response"), the Agency submitted a Reply to Complainants' Response to Order on Claims ("Reply"), and the Complainants submitted a Reply to Agency's Response to Order on Claims (Comp. Reply). Background and Analysis The Government Printing Office is a unit of the legislative branch of the federal government, which employs workers in the competitive service. Thompson v. Sawyer, Public Printer, 678 F.2d 257 (D.C. Cir., 1982). GPO's primary function is to support Congress by publishing for distribution legislative journals, bills, resolutions, laws, reports, and numerous other documents. Lewis v. Sawyer, Public Printer, 698 F.2d 1261 (D.C. Cir., 1983). GPO employees are not subject to all of the civil service pay system statutes administered by the Office ofPersonnel Management. 5 U.S.C. § 5102(c)(9)(Supp. IV 1980). Unlike most federal agencies, GPO employees, through their collective bargaining agents, may negotiate their wages. Technically, wages are set by the Public Printer in conference with a committee of the various trades, subject to approval by the Congressional Joint Committee on Printing ("JCP"). 44 U.S.C. § 305 (Supp. IV 1980). Although GPO employees are not in the Executive Branch, Title VII of the Civil Rights Act of 1964, as amended, does apply to the Agency. 42 U.S.C. 2 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 3 of 27 §2000e-16(a)(l976). Besides supervisory and managerial employees, the GPO employs three classes of workers: joumeyperson bookbinders; journeyperson bindery workers, and printing plant workers. Thompson, at 264. Bookbinder is a craft position that requires training in the trade. Bindery workers and printing plant workers are considered noncraft by GPO, and have historically always received lower pay than bookbinders. /d. at 265. Overall, there are about 120 differentjob classifications. Reply, Ex. 3 at 106. The Complainant is among the Printing Plant Workers, and all of the complainants work in a unit called the Digital Print Center ("DPC"). The Complainants hold various jobs within DPC, such as Graphic Processer Operators, Web-Fed Digital Electronic Printing Systems Operators, Lead Graphic Processer Operators, and Supervisory Graphic Processor Operators. 5 The DPC unit is composed almost entirely of African American employees. Complainant claims that he and the other Complainants in his unit have not been paid "commensurate with the work they perform" since 2004, because they are African American, as compared to employees in the other two GPO classes of workers. They .claim disparate treatment on the basis of their race, and claim that the Agency's pay decisions have a disparate impact on African American employees. The Complainants' explanation for this is that over the years, the DPC evolved from a blue-collar lower skill operation to one that requires specialized training and knowledge of technical equipment. Complainants argue that their rate of pay has not increased to reflect these changes. Complainants allege that employees in other divisions perform some of the same or similar tasks as the DPC, but are paid at a higher rate. Complainants contend that is because the other units are not composed of mostly African 5 The supervisors are not actually in the bargaining unit, but their pay rates are related to the pay of their subordinates. 3 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 4 of 27 American employees. Complainants have been complaining about their pay since 2004. United States Government Printing Office, Agency, and Horace Harris, Petitioner, et al, U.S. Labor Relations Authority, Case No. WA-RP-11-0017, Regional Administrator's Decision, August 30, 2011 (unpublished), at Reply, Ex. 1 ("FLRA"), at 2.6 While the matter has been raised numerous times over the years, the DPC wage rate has remained at 75-80% of the pay scale for J ourneypersons. The employees of DPC are represented by Local 713-S of the Graphic Communications International Union, which merged with the International Brotherhood of Teamsters in 2003.7 Local 713-S is one of several unions comprising the Joint Bargaining Committee of GPO unions. FLRA, at 1-2. During the collective bargaining negotiations in 2007, labor and management disagreed on what the DPC pay rate should be. Both parties revisited their proposals from the negotiations in 2002. Reply, Ex. 2 at 2. The union sought to have DPC employees paid at 85% or 95% of a different and higher pay rate which governs the pay of GPO's journeyperson bookbinders. Management sought to continue the same relative pay scale that was agreed to in 2002. However, since the engineering rate itself was going to increase, that would also mean that the pay for DPC's employees would also increase. The final contract agreed to by union and management provided that DPC employees would be paid 75% of GPO's journeyperson bookbinders wages. 6 GPO is covered by the Federal Labor Management Relations Act, 5 U.S.C. Chapter 71, 5 U.S.C. § 7103(a)(3). However, the FLRA does not have jurisdiction to review decisions on compensation approved by the JCP under 44 U.S.C. § 305. Lewis v. Sawyer, 698 F.2d at 1264. 7 The instant complaints were filed by individual members of the bargaining unit; apparently their union was not involved. 4 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 5 of 27 As a result, employees in Complainant's unit filed an action before the Federal Labor Relations Authority to de-certify their bargaining agent, Local 713. The FLRA concluded that: FLRA at 5-6. The representative of the [Complainants] argues that Local 713 is not properly representing DPC employees because it has failed to secure higher wages for them. The [FLRA] investigation showed, however, that Local 713 has represented all PPWs8 including DPC employees in wage negotiations through the Local's participation in the Joint Bargaining Committee of GPO Unions. DPC employees are currently paid 75-80% ofajourneyperson's wage, a higher rate than other PPWs. Local 713 officials have also set up meetings with Agency officials where DPC employees could present their case for higher wages. Although DPC employees are not satisfied with their current wage rate, Local 713 's inability to achieve desired wage levels does not demonstrate inadequate representation, but rather is a product of collective bargaining. The results of that collective bargaining is what Complainant has brought to the EEOC. Complainant argues that "the Agency's pay setting decision, which was contained in the bargaining agreement, was intentionally discriminatory." Response, at 7. This is not an accurate reflection of the facts. The Agency did not unilaterally decide the pay rates, it negotiated the pay rates. That management's bargaining position became the provision that ended up in the contract only goes to bargaining success. The Commission has ruled that when some employees file an EEO complaint claiming that other employees receive a benefit that they do not receive, the dispute may be nothing more than an attempt to challenge the agency's negotiated agreement with a recognized union. As such, the EEO complaint addresses a matter more properly decided in the collective bargaining process. Almadova v. Department of Homeland Security, EEOC Appeal No. 01A62589 (Aug. 8 "Print Plant Workers." 5 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 6 of 27 15, 2006) (the net effect of the complaints is to challenge the agency's negotiated agreement with a recognized union, a matter more properly decided in the collective bargaining agreement/negotiated grievance process). 9 The commission has frequently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See, e.g., Sheets v. United States Postal Service, EEOC Appeal No. 0120122577 (Oct. 11, 2012) (no jurisdiction over matters concerning disputes regarding Complainant's union), Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998) (no collateral attack on the Army Criminal Investigation Division); Brown v. United States Postal Service, EEOC Appeal No. 0120130595 (April 11, 2013) (cannot use the EEO process to collaterally attack actions which involve child support proceedings), Gunn v. United States Postal Service, EEOC Appeal No. 0120120110 (Dec. 13, 2012) (no jurisdiction over FMLA claims), Edwards v. United States Postal Service, EEOC Appeal No. 0120093370 (July 18, 2012) (no jurisdiction over the workers' compensation process). Sometimes a complainant attempts to challenge the application of a provision m a collective bargaining agreement, alleging that management's action under the contract was discriminatory. However, in the instant case, that is not the allegation. Here, Complainants are not arguing that the agreement was discriminatorily applied, but that it was discriminatorily created. That is not a collateral attack on the application of the agreement, but it is a collateral 9 The case of Thompson v. Sawyer is of interest in this matter, but it is clearly distinguishable and of no useful precedent. 678 F.2d 257 (D.C. Cir. 1982). Prior to Thompson, the GPO and its unions historically had sex discrimination built into their collective bargaining agreements. !d. at 265-266. At the time of that action there were jobs specifically set aside for men, and other jobs set aside for women. By the very language of the CBA, the parties were in violation of Title VII. !d. at 267. Alleging sex discrimination, the plaintiffs prevailed. That is not the case here. Rather, the collective bargaining agreement negotiated by union and management does not set aside certain jobs for any class of employees-not by sex, not by race or color. Importantly, in Thompson, the court did not strike down the GPO job classification system itself. I d. 6 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 7 of 27 attack on the collective bargaining process. In short, the Complainants are trying to get from an EEO complaint that which they have not been able to get through collective bargaining: higher wages. THEREFORE, this complaint is deemed to be a collateral attack on the collective bargaining process, and is therefore dismissed for failure to state a claim. 10 IT IS SO ORDERED. To: Kerry Riggs, Esq. Kator, Parks & Weiser, PLLC 1200 18th Street, N.W., Suite 1000 Washington, D.C. 20036 Thomas Kelly, Esq. Associate General Counsel, U.S. Government Printing Office 732 North Capitol Street, N. W. Washington, D.C. 20401 Nadine Elzy, Director Equal Employment Opportunity/LERS Government Printing Office 732 North Capitol, N.W. Washington, D.C. 20401 Richard E. Schneider Administrative Judge 10 As a result of this ruling, other jurisdictional issues, such as the authority of the EEOC to tread on the subject of a Legislative Branch committee, are moot, and need not be addressed by the Commission. See also note 7, supra. The FLRA, another agency in the Administrative Branch, determined it did not have the authority to review decisions on compensation. 7 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 8 of 27 Exhibit 2 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 9 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 10 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 11 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 12 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 13 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 14 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 15 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 16 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 17 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 18 of 27 Exhibit 3 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 19 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 20 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 21 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 22 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 23 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 24 of 27 Exhibit 4 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 25 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 26 of 27 Case 1:16-cv-00494-JEB Document 20-1 Filed 07/12/16 Page 27 of 27