Hooper v. Austin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ELTON HOOPER, JR., )

)

Plaintiff, ) No. 4:21-CV-1510 RLW

)

v. )

)

LLOYD AUSTIN, in his official capacity as )

Secretary of Defense, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on its Defendant’s Motion to Dismiss (ECF No. 9).1 This

matter is fully briefed and ready for disposition. As discussed herein, the Court grants

Defendant’s Motion to Dismiss and dismisses Plaintiff Elton Hooper, Jr.’s (“Hooper”)

Complaint with prejudice.

BACKGROUND2

Hooper is an African-American, formerly employed by the Department of Defense.

(Complaint (“Compl.”), ECF No. 1, ¶ 4). In August 2010, Hooper worked as an Information

Technology Specialist with the U.S. Army Reserves in St. Louis, Missouri (“HRC-STL”).

(Compl., ¶ 8). In 2009 and 2010, the DoD restructured its operations pursuant to the Base

Realignment and Closure (BRAC) process. (Compl., ¶¶ 6, 9, 54). As part of this process, duties

performed at Alexandria, Virginia, Indianapolis, Indiana, and HRC-STL were transferred to Fort

1 The Court refers interchangeably to Lloyd Austin and the Department of Defense (“DoD”) as

the Defendant in this action.

2 When considering a Rule 12(b)(6) motion, the Court assumes all of a complaint’s factual

allegations are true and construes all reasonable inferences in favor of the nonmoving party. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp., supra, at 555 – 556 (citing

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319,

326-27 (1989).

Knox, Kentucky. In 2009, Hooper was offered a transfer to Fort Knox, but he declined.

(Compl., ¶ 54). DoD offered Voluntary Separation Incentive Pay (VSIP) to some civilian

employees. (Compl., ¶ 50). However, DoD did not offer VSIP to Hooper because DoD

Instruction 1400.25, “DoD Civilian Personnel Management System: Voluntary Separation

Programs,” provides that an employee who would otherwise be eligible for VSIP or other buyout

would be ineligible if the employee has “declined to relocate with his or her position or declined

a transfer of function.” Harris v. Esper, No. 4:18-CV-00690-JAR, 2019 WL 5213027, at *2, n.2

(E.D. Mo. Oct. 16, 2019); see also Compl., ¶ 49 (“If an employee declines a transfer the

employee is barred from accepting a VSIP allocation.”). Hooper claims that DoD employees at

the Indianapolis and Alexandria locations were offered “job swapping opportunities,” but the St.

Louis office “was not offered job SWAP program as an alternative to moving to Ft. Knox,

KY[.]” (Compl., ¶¶ 19-20).

Hooper filed an EEO Complaint alleging “discrimination against MRC employees on the

bases of race (black), sex (male), color (black), and reprisal for prior EEO activity[.]” See Elton

Hooper, Jr., et al., Class Agent v. Mark Esper, Secretary, Department of the Army, Case No. 4:

19-CV-1853 RLW (“Hooper I”), ECF No. 1-3 at 1. Hooper received his right to sue letter on

March 20, 2019. (Id., ECF No. 1-3, at 2-7). Hooper filed his Employment Discrimination

Complaint regarding same on June 27, 2019 in this Court. (Id., ECF No. 1). Hooper alleged

DoD discriminated against him under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e, et seq., (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C.

§§ 621, et seq. (“ADEA”).

On December 13, 2019, the Court in Hooper I found Hooper’s allegations insufficient as

a matter of law and gave him thirty days to amend his complaint. See Hooper I, 4:19-cv-1853,

ECF No. 4. On January 12, 2020, Hooper filed a letter that did not comply with the Court’s

December 13, 2019 Order. Finally, on March 26, 2020, the Court dismissed Hooper’s claims

under Title VII and the ADEA. for failure to comply with this Court's December 13, 2019 Order.

Hooper v. Esper, No. 4:19-CV-1853-RLW, 2020 WL 1479675, at *4 (E.D. Mo. Mar. 26, 2020).

On December 29, 2021, Hooper filed this suit (Hooper II), alleging claims for racial

discrimination under Title VII (Count 1), age discrimination under ADEA (Count 2), violation of

5 C.F.R. Part 351.702 (Count 3), violation of 5 CFR Part 351.501(a) (Count 4), violation of Title

5 U.S.C. §9902(i) (Count 5), and hostile and abusive work environment (Count 6). (ECF No. 1).

STANDARD OF REVIEW

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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 Atlantic Corp., v. Twombly, 550 U.S.

544, 570 (2007)). A “formulaic recitation of the elements of a cause of action” will not suffice.

Twombly, 550 U.S. at 555. “The plausibility standard is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 556). Several principles guide the Court in

determining whether a complaint meets the plausibility standard. The court must take the

plaintiff’s factual allegations as true. Iqbal, 556 U.S. at 678. “This tenet does not apply, however,

to legal conclusions or ‘formulaic recitation of the elements of a cause of action’; such

allegations may properly be set aside.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th

Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” In re Pre-Filled Propane Tank Antitrust

Litig., 893 F.3d 1047, 1056 (8th Cir. 2018) (citing Iqbal, 556 U.S. at 678). Rather, the facts

alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

at 555.

DISCUSSION

A. Service of Process

Federal Rule of Civil Procedure 4(i)(A) provides the method for service on United States

officers. To serve the United States and its officers, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States

attorney for the district where the action is brought—or to an assistant United

States attorney or clerical employee whom the United States attorney designates

in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at

the United States attorney's office[.]

Fed. R. Civ. P. 4(i)(A).

Here, Hooper obtained summonses for the Secretary of Defense (ECF No. 5-2, 9-2) and

the Attorney General (ECF No. 5-2, 9-3). However, Hooper did not obtain a summons for the

proper United States Attorney’s office. (ECF No. 5-1, 9-4). Plaintiff obtained a summons for

the United States Attorney’s Office, 555 4th St. NW, Washington, DC 20530. (Id.) Plaintiff

served the U.S. Attorney’s office in the Eastern District of Missouri with a summons directed to

the U.S. Attorney’s office in the District of Columbia. Thus, Plaintiff’s service was improper

under Fed. R. Civ. P. 4(i)(A). See Ploetz v. United States, Case No. CIV. 10-3017 RHK FLN,

2011 WL 743062, at *1 (D. Minn. Feb. 23, 2011) (“The language of Rule 4(i)(1)(A)(i) clarifies

that clause (A) is concerned with ensuring that the local U.S. Attorney's office receives the

summons and complaint, and subdivision (ii) merely allows for service by mail to the civil-

process clerk at that office rather than requiring hand delivery to the U.S. Attorney.”); Smith v.

United States Postal Serv., No. 4:21-CV-00379-KGB, 2022 WL 3970771, at *3 (E.D. Ark. Aug.

31, 2022) (“Here, Ms. Smith did not serve the U.S. Attorney for this district; she served a civil

process clerk in Washington, D.C. ... In short, she has not satisfied the requirements of Rule 4(i)

for serving the United States.”).

Therefore, the Court could dismiss Plaintiff’s Complaint for improper service without

prejudice. However, since Plaintiff’s Complaint is otherwise defective, the Court will dismiss it

on other grounds with prejudice.

B. Complaint Untimely

The Court dismisses Hooper’s Complaint as untimely because it was not filed within 90

days after receiving the Final Agency Decision (“FAD”). (ECF No. 16 at 2). The DoD issued its

FAD on March 19, 2019. (ECF No. 9-1 at 10-15). Hooper received the FAD on April 10, 2019.

(ECF No. 14-1 at 1).

A plaintiff alleging claims under Title VII and ADEA may “file a civil action in an

appropriate United States District Court (a) within 90 days of receipt of the agency final action

on an individual or class complaint; [or] (c) Within 90 days of receipt of the Commission's final

decision on an appeal[.]” 29 C.F.R. §1614.407(c). Thus, Hooper was required to file his federal

court Complaint no later than July 9, 2019 or, alternatively, his EEOC appeal by May 11, 2021.

Hooper did not file this Complaint until December 29, 2021 (ECF No. 1) and did not file his

EEOC appeal until June 26, 2019. (ECF No. 14-1 at 2). Hooper’s filing of an untimely appeal

to the EEOC did not relieve him of his obligation to file a timely complaint in the district court.

See Mathis v. Corp. for Nat. & Cmty. Serv., 327 F. Supp. 2d 154, 157 (D. Conn. 2004) (“filing an

untimely appeal to the EEOC does not relieve the complainant of the burden to timely file in

district court”); Van Uitert v. Henderson, No. CIV.99-1021-AS, 2000 WL 776397, at *4 (D. Or.

June 13, 2000), aff'd, 19 F. App'x 604 (9th Cir. 2001) (“The fact that Plaintiff filed an appeal

with the OFO did not toll Plaintiff's obligation to file in this court.”); Staropoli v. Donahoe, 786

F. Supp. 2d 384, 395, n.9 (D.D.C. 2011) (“To be clear, a plaintiff cannot simply file a late

administrative appeal, wait for the EEOC to dismiss the appeal as untimely, and then file a civil

action within 90 days of the EEOC's dismissal (or within 90 days of the dismissal of such an

untimely appeal on a request for reconsideration).”).

Hooper argues that his Complaint was timely because “[o]n September 30, 2021, the US

Equal Employment Opportunity Commission Office of Federal Operations issued him a ‘right to

sue’ letter allowing him to file his case in a US District Court. (exhibit A).” (ECF No. 14 at 3).

Contrary to his position, the EEOC order denying Hooper’s request for reconsideration of his

untimely appeal did not reset the deadline for him to his complaint in the district court. Thus, the

Court dismisses Hooper’s Complaint in its entirety because he did not file this action within 90

days after receiving the FAD.

C. Failure to State a Claim

1. Counts 1, 2, and 63

The Court holds that Counts 1, 2 and 6 fail to state a claim as a matter of law. In Count 1

of his Complaint, Hooper alleges that DoD treated “similarly situated HRC Alexandria and

3 In his Motion, Defendant argues that this action is barred by res judicata. However, in his

reply, Defendant seemingly acknowledges that res judicata does not apply because Hooper I was

dismissed without prejudice. See ECF No. 16 at 2, n.2; Hooper v. Esper, No. 4:19-CV-1853-

RLW, 2020 WL 2104982, at *2 (E.D. Mo. May 1, 2020)(“On March 26, 2020, the Court

dismissed Plaintiff's case without prejudice for two reasons”); see also Hooper v. Esper, No.

4:19-CV-1853-RLW, 2020 WL 2104982, at *4 (E.D. Mo. May 1, 2020)(“Plaintiff was provided

with thirty (30) days to file an amended complaint and the Court's Order clearly informed

Plaintiff that if he failed to timely file his amended complaint, his action would be dismissed

without prejudice.”). As both parties seem to agree that the Court’s decision in Hooper I was

without prejudice, the Court holds that Hooper’s claims in Counts 1 and 2 are not barred by res

judicata.

Indianapolis” employees differently than HRC-STL employees based on “racial animus directed

at the HRD-STL[,] a primarily African-American work force.” (Compl., ¶ 29).

The Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to

discriminate against an individual because of his race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2. Hooper I, 2020 WL 1479675, at *4. To state a claim under Title VII, “a

plaintiff must show either direct evidence of discrimination, or evidence that is sufficient to

create an inference of discrimination under the McDonnell Douglas burden shifting framework.”

Id. (citing Onyiah v. St. Cloud State University, 684 F.3d 711, 716 (8th Cir. 2012)). Under the

framework, a plaintiff must show: (1) he is a member of a protected class; (2) he was meeting his

employer's legitimate job expectations; (3) he suffered an adverse employment action; and (4)

similarly situated employees outside the protected class were treated differently. Id. (citation

omitted). Id.

The Court holds that Hooper does not state sufficient facts to support his claim under

Title VII. Specifically, Hooper does not allege any facts to support his claim that HRC

Alexandria and Indianapolis employees were similarly situated. “To be similarly situated, ‘the

individuals used for comparison must have dealt with the same supervisor, have been subject to

the same standards, and engaged in the same conduct without any mitigating or distinguishing

circumstances.’” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting

Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)); see also Harvey v. Anheuser–

Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994) (noting that employees are similarly-situated when

they are “similarly situated in all relevant respects” and “are involved in or accused of the same

offense and are disciplined in different ways.”). “Simply alleging one department received a

benefit over another department is not enough to make plausible plaintiff's claims of unlawful

discrimination.” Hooper v. Esper, No. 4:19-CV-1853-RLW, 2020 WL 1479675, at *4 (E.D. Mo.

Mar. 26, 2020) (citing Adams v. Dep't of Def., 2017 WL 6699484, at *4 (E.D. Va. Sept. 29,

2017) (alleging a government agency denied early retirement to one department and not to

another does not properly allege a claim of unlawful discrimination)). Thus, the Court finds that

Hooper has not properly alleged a claim for discrimination under Title VII in Count 1.

Likewise, the Court finds that Hooper has not adequately alleged a claim under the

ADEA in Count 2. In Count 2, Hooper alleged that he was over age 40 and the “STL HRC work

force is largely as [sic] a community over the age of forty.” (Compl., ¶¶ 32-33). Hooper further

alleges the “disparate Agency-DOD conduct directed at the HRC-STL as alleged at length herein

constituted discrimination based on age.” (Compl., ¶ 34). To establish a prima facie case under

the ADEA, a plaintiff must show he “(1) was at least forty years old, (2) suffered an adverse

employment action, (3) was meeting his employer's legitimate expectations at the time of the

adverse employment action, and (4) was replaced by someone substantially younger.” Gibson v.

Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir. 2012) (quoting Morgan v. A.G. Edwards &

Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007)); Starkey v. Amber Enterprises, Inc., 987 F.3d

758, 763–64 (8th Cir. 2021). Hooper alleges no facts to support his allegation that he was

discriminated against based upon age. He does not allege that HRC Alexandria or Indianapolis

employees were substantially younger than him or substantially similar to him, which are

essential allegations for an ADEA claim. Since Hooper has failed to satisfy the basic pleading

requirements for an ADEA claim, the Court dismisses Count 2 with prejudice.

Finally, in Count 6, Hooper alleges that “Defendant’s conduct as alleged above

constitutes hostile and abusive working environment in violation of Title VII, Rehab Act, and the

ADEA.” (Compl., ¶ 57). Hooper further contends, “[t]he stated reasons for the Defendant’s

conduct were not the true reasons, but instead were pretext to hide the Defendant’s

discriminatory animus.” (Compl., ¶58). To establish a prima facie claim of hostile work

environment by non-supervisory co-workers, a plaintiff must show (1) that he belongs to a

protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment was

based on his membership in a protected group; (4) that the harassment affected a term, condition,

or privilege of his employment by creating a hostile work environment; and (5) that the employer

knew or should have known about the harassment and failed to take proper remedial action.

Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir. 2010); Wilkie v.

Dep't of Health & Hum. Servs., 638 F.3d 944, 952 (8th Cir. 2011). “[M]erely rude or

unpleasant” conduct is insufficient to support a claim; instead, “[a]ctionable conduct must ... be

extreme.” Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir.

2010). “A plaintiff must establish that discriminatory intimidation, ridicule, and insult permeated

the workplace.” Id. (citing Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 756–57 (8th Cir.

2001)). The Court dismisses Count 6 for failure to state a claim because he alleges no conduct

that anyone would consider to be extreme or abusive. Hooper does not allege any conduct that

was “physically threatening or humiliating” or that “interfere[d] with the plaintiff's job

performance.” Id. Therefore, the Court dismisses Count 6 with prejudice.

Hooper argues that he should be allowed to amend his Complaint. See ECF No. 14 at 4

(“Assuming, for the sake of argument, the defendant’s assessment is valid, the common recourse

in those situations is to simply allow plaintiff leave to amend his initial complaint.”). The Court

disagrees. First, Hooper did not provide a proposed amended complaint. “To preserve his right

to amend, a plaintiff must submit the proposed amended complaint along with his motion.”

Charleston v. McCarthy, 175 F. Supp. 3d 1115, 1129 (S.D. Iowa 2016); In re 2007 Novastar Fin.

Inc., Sec. Litig., 579 F.3d 878, 884 (8th Cir.2009); Clayton v. White Hall Sch. Dist., 778 F.2d

457, 460 (8th Cir.1985). In addition, Hooper has not identified any new facts that he would

allege, which would address the deficiencies in his initial complaint. Therefore, the Court finds

allowing such amendment would be futile and grants Defendant’s motion to dismiss for failure to

state a claim as to Counts 1, 2, and 6. See Charleston, 175 F. Supp. 3d at 1130 (dismissing

plaintiff’s complaint, with prejudice, where plaintiff, “despite being put on notice of his

Complaint's deficiencies by Defendants' Motion to Dismiss, did not attach a proposed amended

complaint, nor does he describe the substance of his proposed amended complaint”).

2. Counts 3-5

In Counts 3, 4, and 5, Hooper purports to allege claims under the Civil Service Reform

Act of 1984 (“CSRA”). The CSRA “provides a comprehensive scheme for review of federal

personnel actions.” Swartz v. I.R.S., 884 F.2d 1128, 1129 (8th Cir. 1989); Loos v. Napolitano,

665 F. Supp. 2d 1054, 1061 (D. Neb. 2009); Gergick v. Austin, 997 F.2d 1237, 1239 (8th Cir.

1993) (“civil service laws provide the exclusive remedy for wrongful discharge from government

employ”). “The purpose of the CSRA also supports our conclusion that the statutory review

scheme is exclusive, even for employees who bring constitutional challenges to federal statutes.

As we have previously explained, the CSRA's integrated scheme of administrative and judicial

review for aggrieved federal employees was designed to replace an outdated patchwork of

statutes and rules that afforded employees the right to challenge employing agency actions in

district courts across the country.” Elgin v. Dep't of Treasury, 567 U.S. 1, 13-14 (2012)(internal

citations omitted). “[T]he comprehensive statutory framework created in the 1978 legislation

was intended as an exclusive means of redress in this situation.” Carter v. Kurzejeski, 706 F.2d

835, 840 (8th Cir. 1983). The Court dismisses Hooper’s claims in Counts 3, 4 and 5 because

there is no private cause of action under the CSRA. Schrachta v. Curtis, 752 F.2d 1257, 1260

(7th Cir. 1985) (“There is no implied right of action under § 2301 to remedy alleged violations of

the section's principles.”).

D. Exhaustion of Administrative Remedies as to Counts 2-6

Hooper claims that he exhausted his administration remedies as to his claims, except for

his hostile work environment claim, before he sought redress with the Court. (ECF No. 14 at 3).

Plaintiff’s EEO Complaint “alleges discrimination against HRC employees on the bases [sic] of

race (black), sex (male)[,] color (black), and reprisal for prior protected EEO activity . . . .” (ECF

No. 1-3, Exhibit 1, at 2). The Court holds that Hooper did not exhaust his claims under Counts 2

through 6 because he only exhausted his discrimination claims.

Regarding a particular claim, the Eighth Circuit “deem[s] administrative remedies

exhausted as to all incidents of discrimination that are ‘like or reasonably related to the

allegations of the [administrative] charge.’” Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671

(8th Cir. 1994) (alteration in original) (quoting Anderson v. Block, 807 F.2d 145, 148 (8th Cir.

1986)); Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 539 (8th Cir. 2020). To allow “a

complaint to encompass allegations outside the ambit of the predicate EEOC charge would

circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party

of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.”

Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994). Therefore, a

plaintiff's claims of employment discrimination in his complaint “may be as broad as the scope

of the EEOC investigation which reasonably could be expected to result from the administrative

charge.” Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005).

The Court holds that the claims in Counts 2 through 6 were not “like or reasonably

related to” the discrimination claims Hooper alleged in his charge. In Count 2, Hooper alleges a

claim under the ADEA age discrimination. See Jackson v. Univ. of Arkansas for Med. Scis., No.

4:08CV04234-WRW, 2009 WL 890518, at *2 (E.D. Ark. Mar. 31, 2009) (“discrimination claims

based on age or disability do not fall within the scope of investigations of allegations of

discrimination based on race or color”); Pointer v. Missouri Dep't of Corr., 105 F. App'x 120,

121 (8th Cir. 2004) (plaintiff had not exhausted his administrative remedies as to race

discrimination; “[i]Instead, the record clearly demonstrates that Pointer alleged, and was given

the right to sue on, a claim of age discrimination”). Likewise, Count 6 purports to allege a claim

for hostile work environment. Hooper’s EEO Complaint did not allege hostile and abusive

working environment in his EEO Complaint. Hooper’s failure to include a hostile and abusive

working environment in his EEO Complaint requires dismissal of this claim. See Williams v.

Boeing Co., No. 4:19-CV-2275 SRC, 2020 WL 109002, at *3 (E.D. Mo. Jan. 9, 2020)

(“plaintiff's failure to include a hostile work environment/harassment claim in his narrative in his

charge of discrimination is fatal to his claim in his complaint”); see also Duncan v. Delta Consol.

Indus., Inc., 371 F.3d 1020, 1025 (8th Cir. 2004); Cruesoe v. MERS/Missouri Goodwill Indus.,

2006 WL 2917363, at *10 (E.D. Mo. Oct. 11, 2006); Mathews v. St. Louis University, 2006 WL

269992, No. 4:05CV1488 JCH (E.D. Mo. February 1, 2006).

Finally, Counts 3, 4, and 5 all allege violations under CSRA. Under the Civil Service

Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., certain federal employees may obtain

“administrative and judicial review of specified adverse employment actions.” Elgin v. Dep't of

Treasury, 567 U.S. 1, 5 (2012). The CSRA “established a comprehensive system for reviewing

personnel action taken against federal employees,” United States v. Fausto, 484 U.S. 439, 455

(1988); Elgin, 567 U.S. at 5. “Relief under the CSRA is restricted to ‘[a]ny employee or

applicant for employment adversely affected or aggrieved by a final order or decision of the

Merit Systems Protection Board [MSPB].’” Cubb v. Denise Belton, No. 4:15 CV 676 JMB, 2015

WL 4079077, at *4 (E.D. Mo. July 6, 2015) (citing 5 U.S.C. § 7703). The CSRA “requires the

exhaustion of administrative remedies prior to the initiation of suit in federal court.” Young v.

Frame, No. 4:19CV16 RLW, 2019 WL 2437444, at *4 (E.D. Mo. June 11, 2019) (citing Cubb,

2015 WL 4079077, at *3. Hooper did not exhaust his administrative remedies under the CSRA

and, therefore, this Court dismisses Counts 3, 4, and 5 for lack of subject matter jurisdiction. See

Cubb, 2015 WL 4079077, at *4.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF No. 9) is

GRANTED. Plaintiff Elton Hooper, Jr.’s claims are DISMISSED with prejudice.

An appropriate Order of Dismissal is filed herewith.

Dated this 28th day of October, 2022.

Parnti: od. □□ pite

RONNIEL.WHITE ———is—s—«ws

UNITED STATES DISTRICT JUDGE

-13-