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Shipp v. Hargan

United States District Court, D. Maryland

January 24, 2019

DAVID M. SHIPP, Plaintiff,
v.
ERIC HARGAN, Acting SECRETARY OF HEALTH AND HUMAN SERVICES Defendant.

          MEMORANDUM OPINION

          Paula Xinis, United States District Judge

         Pending before the Court is Defendant Eric Hargan, Acting Secretary of the Department of Health and Human Service's motion to dismiss the Complaint or, in the alternative, for summary judgment. ECF No. 16. Plaintiff David Shipp (“Shipp”) opposes the motion. ECF No. 19. Shipp has also requested leave to amend his Complaint. ECF No. 15. The Court now rules because no hearing is necessary. See D. Md. Loc. R. 105.6. For the reasons discussed below, Defendant's motion is GRANTED as to the claims which were not administratively exhausted. Shipp's motion to amend is also GRANTED. Shipp is forewarned that any Amended Complaint must state only those claims for which he has exhausted administrative remedies and must conform to the Rules as discussed below or risk future dismissal with prejudice.

         I. Background

         A trained chemist, Shipp applied for the position of GS-09 Chemist with the Food and Drug Administration (“FDA”) in the end of 2010. ECF No. 16-2 at 24. On January 20, 2011, Shipp learned that he was not selected among the “best qualified” of candidates. Id. Shipp timely filed a formal charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. at 20. In it, Shipp details the grounds for which he believes he was not selected for the position:

I applied to Job Announcement Number: HHS FDA-2011-0030 during the vacancy announcement period between 12/10/2010 and 12/17/2010. My non-selection took place on 1/20/2011; days earlier, I was ruled ineligible for the position with the pretextual basis that all of my required documents were not included with the application package, even though my package was full and complete; perhaps, because the discrepancy was corrected, my non-selection than [sic] took place. The basis for my claim that racial discrimination was the true reason is: I am a member of a protected class. I was similarly situated to others outside my protected class, namely, the candidates placed on the certification list of best qualified candidates for review by the selecting official(s), and one or more candidates were treated more favorably than me, insofar as the agency and OPM considered those candidates to be better qualified than me for this chemist position, even though I met and exceeded all of the basic eligibility requirements for the GS-09 Chemist position, having previously occupied the position of chemist with the FDA at the GS-12/02 level, following previous federal service of 4 years and 11 months where I received yearly promotions, starting at the GS-07 level . . . .

Id. at 24.

         The formal charge also references “retaliation” for prior protected EEO activity “and [a Merit Systems Protection Board] appeal which was still active at the time of the non-selection in the form of a pending Petition to Reopen and is currently active . . . .” Id. The formal charge concludes, “I want [sic] challenge my non-selection to vacancy announcement 385227, 392978, 402757, 394191, and Job Announcement Number. HHS-FDA-01-2011-0021.” Id.

         In July 2012, the EEOC Administrative Law Judge issued an Order of Dismissal and instructed the Agency to issue a Final Agency Decision (“FAD”). Id. ECF No. 16-2 at 6. Health and Human Services (“HHS”) issued a FAD in December 2014. Id. Shipp timely appealed the FAD to the EEOC Office of Federal Operations (“OFO”). Id. On April 5, 2017, the OFO upheld the FAD. Id. Plaintiff then timely sought reconsideration of the FAD. Id. On August 8, 2017, the OFO denied reconsideration and upheld its prior decision. Id. Shipp then timely filed the Complaint in this Court. See ECF No. 1.

         The Complaint is undoubtedly dense, rich with detail and not altogether easy to follow. Much of the factual allegations appear unrelated to the FDA's 2011 decision to not hire Shipp. As Defendant rightfully points out, the Complaint spills much ink discussing earlier discrimination claims that Shipp pursued in 2006 (hereafter “the 2006 case”), which not only resulted in a settlement agreement executed in 2007 but in subsequent litigation which has been fully adjudicated by other courts. Compare ECF No. 1 ¶¶ 40-51 and at 21-22, with Shipp v. Leavitt, No. 2:08-CV-1460RAJ, 2009 WL 10695708 (W.D. Wash. Mar. 2, 2009), aff'd sub nom. Shipp v. Sebelius, 369 Fed.Appx. 861 (9th Cir. 2010); Shipp v. Dep't of Health & Human Servs., 498 Fed.Appx. 975, 978 (Fed. Cir. 2012).

         Shipp has also sought to amend the Complaint, adding greater confusion to this case. ECF No. 8. The Court denied Shipp's previous proposed amendment because it failed to conform with the Federal Rules of Civil Procedure and this Court's local rules, to include filing a redlined version of the proposed Amended Complaint so that the Court may evaluate the proposed amended materials. ECF No. 11. Shipp responded with a pleading, fifty-three pages in length, asserting that “to the best of his ability as a non-lawyer, ” Shipp has attempted again to amend the Complaint. ECF No. 15 at 2. Yet again, the proposed “amendment” does not conform with the rules and is even more inscrutable than the original Complaint. Specifically, the proposed amendment includes greater detail about Shipp's 2006 case and does not clearly set forth the grounds for challenging the FDA's 2011 failure to hire him. Id. For purposes of Defendant's motion, therefore, the original Complaint (ECF No. 1) remains the operative Complaint.

         Defendant moves to dismiss for lack of jurisdiction, contending that Shipp only challenges the 2006 matter, the substance of which Shipp did not administratively exhaust in his formal charge to the EEOC. ECF No. 16. Defendant fails to address, however, the merits of the formal charge which Shipp did exhaust - Shipp's non-selection in 2011. Accordingly, as more fully discussed below, unexhausted claims must be dismissed while also providing Shipp one final opportunity to seek resolution of his exhausted claims on the merits.

         II. Standard of Review

         Generally, “questions of subject matter jurisdiction must be decided ‘first, because they concern the court's very power to hear the case.'” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore's Federal Practice § 12.30[1] (3d ed. 1998)). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). At the motion to dismiss stage, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court may consider evidence beyond the four corners of the Complaint to resolve matters of jurisdiction. Chang Lim v. Azar, 310 F.Supp.3d 588, 598 (D. Md. 2018), citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

         III. ...


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