STEVEN CROWE V. CHRISTINE WORMUTH, ET AL, No. 21-15802 (9th Cir. 2023)
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Plaintiff worked as a police officer at the Tripler Army Medical Center (TAMC) in Honolulu, Hawaii. Prior to his termination, Plaintiff filed a complaint with the Equal Employment Opportunity (EEO) office alleging sexual and race discrimination, retaliation, and a proposed and later a formal termination. After he was terminated, Plaintiff attempted to file a mixed case appeal with the Merit Systems Protection Board (MSPB), seeking to appeal the Army’s termination decision based on the affirmative defense of sexual orientation discrimination. The MSPB upheld Plaintiff’s termination and he filed suit in district court. He alleged that he had been subjected to discrimination based on his sexual orientation (bisexual) and race (Caucasian), retaliated against for protected conduct, and ultimately terminated from his employment.
The Ninth Circuit affirmed in part and vacated in part and remanded. The panel held that the MSPB lacked jurisdiction to consider the pre-termination claims. Neither the text nor the structure of the Civil Service Reform Act (CSRA) supports the theory that the MSPB has pendent jurisdiction to decide factually related claims of discrimination associated with personnel actions outside the list of “particularly serious” actions set forth in 5 U.S.C. 7512. The panel affirmed the district court’s (1) determination that Plaintiff failed to exhaust before the MSPB any other theories of discrimination for his termination besides sexual orientation; (2) grant of summary judgment to the Army on Plaintiff’s Title VII claim; and (3) grant of summary judgment to the Army on Plaintiff’s CSRA claim, finding that substantial evidence supported the MSPB’s finding that Plaintiff regularly had sex at TAMC during work hours.
Court Description: Employment/Merit Systems Protection Board. The panel affirmed in part and vacated in part the district court’s decision and remanded in an action brought by Steven Crowe, a police officer at the Tripler Army Medical Center in Honolulu, Hawaii, alleging that he had been subjected to discrimination based on his sexual orientation (bisexual) and race (Caucasian), retaliated against for protected conduct, and ultimately terminated from his employment.
Prior to his termination, Crowe filed a complaint with the Equal Employment Opportunity (EEO) office alleging sexual and race discrimination, retaliation, and a proposed and later a formal termination. After he was terminated, Crowe attempted to file a mixed case appeal with the Merit Systems Protection Board (MSPB), seeking to appeal the Army’s termination decision based on the affirmative defense of sexual orientation discrimination. The MSPB upheld Crowe’s termination and Crowe filed suit in district court.
The panel first vacated the district court’s decision that Crowe failed to exhaust administrative remedies before the MSPB with respect to his claims of pre-termination adverse employment actions. The panel held that the MSPB lacked jurisdiction to consider the pre-termination claims. Neither the text nor the structure of the Civil Service Reform Act (CSRA) supports the theory that the MSPB has pendent jurisdiction to decide factually related claims of discrimination associated with personnel actions outside the list of “particularly serious” actions set forth in 5 U.S.C.
7512. Such discrimination claims must instead be exhausted through the EEO process. The panel remanded for further proceedings.
The panel affirmed the district court’s (1) determination that Crowe failed to exhaust before the MSPB any other theories of discrimination for his termination besides sexual orientation, the only claim Crowe asserted; (2) grant of summary judgment to the Army on Crowe’s Title VII claim, finding there was no genuine dispute of material fact that Crowe was terminated because of his misconduct at the workplace, as opposed to his sexual orientation; and (3) grant of summary judgment to the Army on Crowe’s CSRA claim, finding that substantial evidence supported the MSPB’s finding that Crowe regularly had sex at TAMC during work hours.
Concurring, Judge Schroeder agreed with the majority’s outcomes, including its conclusion to remand the pre- termination claims to the district court, but noted the unfortunate situation that two government entities are taking opposing positions with respect to the district court’s jurisdiction to hear the pre-termination claims.
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