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March 10, 2000


The opinion of the court was delivered by: Sprizzo, District Judge.


Plaintiff pro se Alexander German brings the above-captioned action alleging discrimination on the basis of national origin under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-17 against Frederico Pena, Secretary of the United States Department of Energy ("DOE"). Plaintiff, a native of Russia, claims that because of his nationality, his superiors at the Environmental Measurements Laboratory ("EML") were dishonest in reviewing his job performance, forcing him to retire in lieu of being terminated.*fn1

Defendant moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendant's motion argues that dismissal is warranted because plaintiff failed to properly exhaust administrative remedies as to his discrimination claims prior to the commencement of this action. For the reasons stated below, defendant's motion to dismiss is hereby granted and this action is dismissed with prejudice.


Plaintiff Alexander German is a native of Russia who was hired by the Department of Energy's EML division in January 1989. See Memorandum of Law in Support of Defendant's Motion to Dismiss dated April 20, 1998 ("Def.Mem."), at 3. He initially held the position of Mechanical Engineer which was graded at GS-9, and he was promoted to GS-11 in August 1990. See id. Plaintiff asked to be promoted again in June 1992 and February 1994 but was denied these promotions. See id.

On March 30, 1995, plaintiff received an unacceptable performance rating and was placed on a 90-day performance improvement plan. See Declaration of Rachel D. Godsil dated April 20, 1998 ("Godsil Decl."), Exh. B, Alexander German v. Dept. of Energy, MSPB No. NY-0432-96-0382-I-2 dated December 30, 1996 ("MSPB Op. I"), at 2. On March 8, 1996, he received another unacceptable performance rating, and on May 16, 1996, EML's supervisory office decided to discharge plaintiff because his performance had not improved. See Complaint ("Compl.") at ¶ 8-4 to 8-9. To avoid termination, plaintiff retired from the EML on May 31, 1996. See Def. Mem. at 4.

On June 19, 1996, plaintiff filed an appeal of his removal with the Merit Systems Protection Board ("MSPB"). See Godsil Decl. Exh. C, MSPB Appeal Form dated June 19, 1996, at 1. On the appeal form, plaintiff alleged retaliation for unspecified whistle blower activities, but left the section blank that asked him to explain, if relevant, why he believed he was "discriminated against by the agency, in connection with the matter appealed, because of [his] . . . national origin." See id. at ¶ 32.

Following a hearing, on December 30, 1996 an MSPB Administrative Law Judge affirmed the agency's decision to remove plaintiff and on June 11, 1997 the MSPB denied plaintiff's petition for review. See MSPB Op. I at 22, 24, 30-32; Declaration of Joan M. Shands dated April 20, 1998, at ¶ 8. The Administrative Law Judge later denied plaintiff's re-introduction of the same claims on grounds of res judicata. See Godsil Decl., Exh. D, Alexander German v. Department of Energy, MSPB Docket No. NY-1221-97-0445-W-1, dated July 21, 1997 ("MSPB Op. II"), at 3. The Federal Circuit affirmed both MSPB decisions on March 18, 1998. See Godsil Decl., Exh. F, German v. Department of Energy, 152 F.3d 947 (Fed.Cir. 1998). Plaintiff's claims of discrimination were never addressed in any of these proceedings or judicial decisions.

On July 20, 1996, one month after initiating his initial appeal to the MSPB, plaintiff filed an EEO complaint alleging that he was discriminated against on the basis of his national origin.*fn2 Plaintiff in his EEO complaint also alleged that his performance evaluations were improper, but here he indicted that such impropriety was because of discrimination based on his national origin. See Godsil Decl., Exh. F, Notice of Dismissal of Mixed Case Complaint of Discrimination dated October 16, 1996 ("Mixed Case Dismissal"), at 1. DOE dismissed the complaint pursuant to 29 C.F.R. § 1614.107(d) and 29 C.F.R. § 1614.302(b) for prior election of MSPB procedures to adjudicate the claims relevant to his termination of employment. See id. This notice of dismissal explicitly informed plaintiff that "[t]he allegation of discrimination should be raised to the MSPB Administrative Judge in conjunction with the mixed case appeal." Id.

Plaintiff appealed this decision to the Equal Employment Opportunity Commission ("EEOC") which vacated and remanded to DOE with an order to supplement the record with a copy of plaintiff's MSPB appeal and to again decide whether to process or dismiss the complaint. See Godsil Decl., Exh. G, Amended Notice of Final Agency Decision dated September 25, 1997, at 1. On or about September 27, 1997, DOE complied with the EEOC order and notified plaintiff that his complaint would again be dismissed for prior election of MSPB procedures. See Godsil Decl., Exh. H, EEOC Compliance Notice dated September 29, 1997, at 1.


Defendant asks the Court to dismiss this complaint for lack of subject matter jurisdiction pursuant Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Second Circuit has held that "[n]either exhaustion nor its timeliness is a matter of jurisdiction, but rather is a matter to be raised in an affirmative defense." Downey v. Runyon, 160 F.3d 139, 146 (2d Cir. 1998). Accordingly, such motion is more properly considered a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). See e.g., Kelly v. Runyon, No. 96-3922, 1997 WL 757918, at *2 (S.D.N.Y. Dec. 8, 1997); Trenchfield v. Dupont Photomasks, Inc., 96-1135, 1997 WL 53238, at *3 (S.D.N.Y. Feb. 7, 1997); Hladki v. Jeffrey's Consolidated, Ltd., 652 F. Supp. 388, 392 n. 10 (E.D.N.Y. 1987) (all construing motions pursuant to Rule 12(b)(1) as motions pursuant to 12(b)(6)).*fn3

The Court may grant a motion to dismiss pursuant to Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). The Court must accept all facts alleged in the complaint as true and draw all reasonable inferences in plaintiff's favor. See Jackson Nat. Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994).

The MSPB and the EEO each have jurisdiction to hear "mixed case" claims, or those actions by aggrieved employees challenging termination allegedly based on both discriminatory and non-discriminatory but impermissible conduct. See 29 C.F.R. ยง 1614.302(b) (1999); McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995); Williams v. McCausland, 791 F. Supp. 992, 997-98 (S.D.N.Y. 1992). Once an employee has chosen the agency in which he wishes to adjudicate his claims, he is required to bring all claims relevant to his discharge in that proceeding. See 29 C.F.R. ...

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