# Poole v. Del Toro

> District Court, E.D. North Carolina · July 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10252789

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** July 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:22-CV-148-BO
No. 4:22-CV-107-BO
DALLAS CLEON POOLE S8R., )
Plaintiff,
v. ) ORDER
CARLOS DEL TORO, SECRETARY OF
THE U.S. DEPARTMENT OF NAVY, )
Defendant.

This cause comes before the Court on defendant’s motions [4:22-cv-107, DE 10] and [4:22-
cv-148, DE 9] to dismiss. It is also before the Court on defendant’s motions [4:22-cv-107, DE 16]
and [4:22-cv-148, DE 11] to consolidate the above-captioned cases. Plaintiff filed motions [4:22-
cv-107, DE 18 & 20] and [4:22-cv-148, DE 16] to amend his complaint. In this posture, the matter
is ripe for adjudication.

BACKGROUND
Dallas Cleon Poole worked for the Navy’s Wounded Warrior Battalion East, organizing
programs and coordinating donations. Navy regulations require Poole’s superior to authorize any
donation over $1,500. And regardless of the amount, all donations must also be deposited into the
Navy General Gift Fund. Poole was accused of violating those gift regulations, and the Navy
started an investigation.
I. The First Proposed Removal resulted in a twenty-day suspension.
The Navy discovered that Poole had been accepting checks over $1,500 without proper
authorization. Poole had also directed donors to make their checks out to Marine Corporations
Community Services “MCCS” instead of to “The Navy General Gift Fund.” Then those checks
were deposited into Poole’s MCCS checking account. The Navy determined that Poole failed to

follow gift acceptance rules, misused gift funds, and conducted himself in a manner unbecoming
of a federal employee.
On January 29, 2018, the Navy initiated the First Proposed Removal, which sought to
remove Poole from his position. Instead, on April 12, 2018, the Navy decided to suspend him
without pay for twenty days. Poole was advised that:
“You have received a formal personnel action that may entitle you to seek review by an
independent federal agency. If you wish to obtain further review of this decision, you may
choose from the options outlined below. You may choose only one method, and the one
you choose first is considered your binding election.”
[DE 11-6 (emphasis in original)]. Plaintiff was suspended from April 16, 2018, to May 7, 2018.
On May 4, 2018, Poole filed a timely appeal with the Merit Systems Protection Board (“MSPB”),
challenging the First Proposed Removal and the twenty-day suspension but did not raise any
allegations of discrimination.
On June 12, 2018, Poole contacted the EEO office. On August 14, 2018 — while his MSPB
appeal was still pending — Poole filed an EEO complaint. On August 31, 2018, the EEO complaint
was dismissed on the merits.
That same day, an MSPB administrative judge affirmed the First Proposed Removal. Poole
was notified that he had four options: he could either (1) file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, (2) file an EEO complaint, or (3) file a civil action in the
United States District Court. The third option was unavailable unless he had claimed
discrimination in his MSSP appeal. And all three options were only available after the decision
became final on October 5, 2018. Poole was also advised that he could not file a civil action in
District Court
The fourth option — filing a petition for a review by the full MSPB board — was only
available if Poole filed his petition before the decision became final (October 5). Poole was warned

that the MSPB board lacked a quorum and thus would be unable to issue decisions until at least
one additional member was appointed by the President and confirmed by the United States Senate.
On November 5, 2018, a month after the decision became final, Poole took the fourth
option and filed a petition for a review by a full MSPB board. The MSPB board did not achieve a
quorum until March 3, 2022, and Poole’s petition is still pending. [DE 11-2 at 21].
II. |The Second Proposed Removal resulted in a seven-day suspension.
As part of the First Proposed Removal investigation, Poole had been ordered to turn over
all gift cards in his possession. Despite that order, Poole kept thousands of dollars worth of gift
cards in his office. So on September 26, 2018, the Navy initiated a Second Proposed Removal,
which accused Poole of failing to follow a direct order and failing to follow gift acceptance
procedures. Plaintiff was placed on paid administrative the same day. On December 13, 2018, the
Navy upheld the charges of failure to follow a direct order, and Poole was suspended for seven
days. However, the Navy held that seven-day suspension in abeyance for twelve months. As a
result, Poole never served the suspension.
On July 29, 2020, Poole submitted a Congressional Inquiry regarding the Navy’s alleged
lack of oversight of the gifts given to the Navy’s Wounded Warrior Regiment.
DISCUSSION
On September 8, 2022, Poole filed this pro se complaint. Poole alleges discrimination and
retaliation under Title VII in connection with the First Proposed Removal and the Second Proposed
Removal. Poole also makes fleeting references to the Federal Tort Claims Act and the False Claims
Act. On November 30, 2022, plaintiff filed a second pro se complaint alleging discrimination and
retaliation after Poole submitted a request for a Congressional Inquiry.

I. Motions to consolidate and motions to amend plaintiffs complaint.
For good cause shown, and with plaintiff's consent, the Court will grant defendant’s motion
[4:22-cv-107, DE 17] to consolidate the two above-captioned cases. Poole filed motions [4:22-cv-
107, DE 18 & 20] and [4:22-cv-148, DE 16] to amend the respective complaints. For good cause
shown, those motions will be granted.
II. Motions to Dismiss
Defendant argues that plaintiff's complaint must be dismissed pursuant to FED. R. Clv. P.
12(b)(6). Plaintiff's claims are numerous and difficult to comprehend, so it is helpful to divide
them into three categories: (1) claims regarding the First Proposed Removal, (2) claims regarding
the Second Proposed Removal, and (3) miscellaneous claims. The Court will briefly address each
in turn before conducting a more robust analysis.
In the first category, Poole challenges the EEO’s denial of his complaint and the MSPB’s
decision affirming his twenty-day sentence. Poole cannot challenge the EEO’s denial because,
when he filed the EEO’s complaint, he had already filed the MSPB appeal, which barred him from
filing the EEO complaint. In his attack on the MSPB’s decision, pads argues that his suspension
was caused by discrimination. Poole’s petition for a full MSPB review is still pending; he has
failed to exhaust his administrative remedies. Besides, Poole waived the discrimination argument
when he failed to raise it on his first MSPB appeal.
In the second category of claims, Poole argues his Second Proposed Removal violated Title
VII’s prohibition on discrimination and retaliation. His discrimination claim must be dismissed
because any harm or racial motivation is speculative. His retaliation claim must be dismissed
because there is no evidence that the Second Proposed Removal was caused by anything other than
his own misconduct.

In the third and final category, Poole makes several miscellaneous claims. Some claims are
mentioned in passing and never fully explained. Others are bare resuscitations of the elements of
the offense. These unsubstantiated and formulaic claims must be dismissed.

A. First Proposed Removal
Poole challenges the First Proposed Removal by attacking (1) the EEO’s denial of his
complaint and (2) the MSPB’s decision to affirm his twenty-day suspension.

1. EEO Complaint dismissed for lack of subject matter jurisdiction
According to the Code of Federal Regulations, “[a]n aggrieved person may initially file a
mixed case [EEO] complaint with an agency . . . or an appeal on the same matter with the MSPB

... but not both.” 29 C.F.R. § 1614.302(b) (emphasis added). On May 4, 2018, Poole filed an
MSPB appeal, barring him from filing an EEO complaint. Despite that, Poole filed an EEO
complaint two months later. That EEO complaint should have been barred by his pending MSPB
appeal, but it was denied on the merits. Here, Poole challenges the EEO’s denial. This Court need
not consider the merits of that denial because Poole’s original complaint was barred.
bs Poole’s MSPB appeal dismissed for lack of jurisdiction
Poole argues the MSPB’s affirmation of his twenty-day suspension should be overturned
because the First Proposed Removal was the result of discrimination. This argument fails for two
reasons.
First, Poole failed to argue discrimination on his first MSPB appeal. When an employee
fails to argue that an adverse action was motivated by discrimination, that claim is waived. 29
C.F.R. §§ 1614.107(a)(4) and 1614.109(b); Moore v. Potter, 217 F. Supp. 2d 364, 370 (E.D.N.Y.
2002); see McAdams yv. Reno, 64 F.3d 1137 (8th Cir. 1995). Thus, Poole waived his right to argue
the First Proposed Removal was due to discrimination.

Second, Poole failed to exhaust his administrative remedies. If plaintiff fails to exhaust
administrative remedies, this federal court lacks jurisdiction over the claim. Balas v. Huntington
Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013). “An employee who does not comply with
the [EEOC] administrative procedures .. . has failed to exhaust administrative remedies ... .”
Artis v. U.S. Foodservice, Inc., No. CIV.A. ELH-11-3406, 2014 WL 640848, at *17 (D. Md. Feb.
18, 2014). Therefore, this Court cannot consider Poole’s argument when his MSPB petition is still
pending. Even though that pending petition may be dismissed as untimely, it has not yet been
adjudicated, so Poole has not exhausted his administrative remedies.' Therefore, his challenge to
the MPSB’s affirmation of his twenty-day appeal must be dismissed.

B. Second Proposed Removal
As part of the investigation surrounding the First Proposed Removal, the Navy ordered
Poole to turn over all gift cards in his possession. The Navy initiated its Second Proposal Removal
when it discovered Poole had ignored this order and kept thousands of dollars of gift cards in his
office. Poole was placed on paid leave and was ultimately suspended for seven days. However,
that suspension was held in abeyance, so Poole never actually served it. Poole claims this
“suspension” was the result of discrimination and retaliation in violation of Title VII. Both claims
require plaintiff to show he was harmed.

The only harm Poole suffered was speculative. Poole cannot claim any monetary harm
because he was paid during the investigation and never actually served the resulting seven-day
suspension. Poole argues that workplace gossip harmed his professional reputation. The gossip

' The deadline to file a petition for a full MSPB review was October 5, 2018. Poole filed his petition on November 5,
2018, a month after the deadline. Thus, Poole’s petition appears to be untimely. However, because Poole does not
argue that his administrative remedies were exhausted on October 5 (the date his judgment became final), the Court
need not consider that argument.

was predicated on true events: Poole’s misconduct and the Navy’s disciplinary action. If his
coworkers discussed those true events, the nebulous harm to Poole’s reputation is speculative and
cannot sustain a Title VII claim.

l. No evidence of discrimination
“While a plaintiff is not required to plead facts that constitute a prima facie case in order
to survive a motion to dismiss, ‘[f]actual allegations must be enough to raise a right to relief above
the speculative level.’” McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin.,
780 F.3d 582 (4th Cir. 2015) (quoting Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010)). “The mere fact that a certain action is potentially consistent with discrimination
does not alone support a reasonable inference that the action was motivated by bias.” Bing v. Brivo
Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020). In essence, “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Even assuming Poole suffered non-speculative harm, the Court cannot reasonably infer
that the Second Proposal Removal was due to Poole’s race. All the evidence suggests Poole’s own
misconduct caused the Second Proposed Removal. Specifically, Poole siphoned charitable
donations into his personal bank account (triggering the First Proposed Removal). As part of that
investigation, the Navy ordered Poole to turn over all gift cards in his possession. A few weeks
later, the Navy discovered gift cards in Poole’s office — a direct violation of that order. There is
nothing to suggest the Second Proposed Removal was anything other than a justified sanction for
Poole’s misconduct.
Poole vaguely asserts that “discrimination occurred” over a nearly two-year period, and the
Proposed Removals were “racially charged.” [DE 1]. But “[t]he mere fact that a certain action is
potentially consistent with discrimination does not alone support a reasonable inference that the

action was motivated by bias.” Bing, 959 F.3d at 618. Given Poole’s misconduct and the lack of
evidence of racial bias, the Court cannot reasonably infer that the Second Proposed Removal was
racially motivated. Therefore, plaintiff’s Title VII discrimination claim must be dismissed.
2. No evidence of retaliation
Poole alleges the Second Proposed Removal was retaliation for his contact with the EEOC.
A Title VII retaliation claim requires plaintiff to demonstrate that (1) he engaged in protected
activity, (2) his employer took action against him that a reasonable employee would find materially
adverse, and (3) the employer took the materially adverse employment action because of the
protected activity. See, e.g., Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir.
2015).
Poole’s retaliation claim fails because there is no evidence the Navy initiated the Second
Proposed Removal because of his protected activity. The protected activity occurred on June 12,
2018, when Poole contacted the EEOC. The alleged retaliation occurred on September 26, 2018,
when the Navy launched its Second Proposed Removal. There is no evidence that this Second
Proposed Removal was caused by his contact with the EEOC. The only reasonable inference is
that the Second Proposed Removal was caused by Poole’s decision to ignore a direct order and
keep thousands of dollars of gift cards in his office. Therefore, his retaliation claim must be
dismissed.

C. Otherclaims —

While the Court must construe a pro se pleading liberally, “[. . .] liberal construction does
not mean overlooking the pleading requirements under the Federal Rules of Civil Procedure.”
Bing, 959 F.3d at 618 (citing Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015)).

1. Disparagement and Defamation
Poole claims that he was disparaged and defamed by his supervisor after Poole requested
a Congressional Inquiry into the Navy’s gift policy. Specifically, Poole alleges his supervisor
tarnished his reputation by discussing the two proposed removal actions with his coworkers. Even
assuming this is true, Poole’s allegations do not support a finding of disparagement or defamation.
It is a fact that Poole violated the Navy’s gift policy and failed to follow a direct order. And it is a
fact that, as a result, the Navy initiated the First and Second Proposed Removals against him.
Repeating those true facts cannot support a claim for disparagement or defamation. Allegedly,
Poole’s supervisor opined that Poole’s conduct warranted punishment. His supervisor cannot be
held liable for expressing his opinion of Poole’s conduct. The remaining portions of Poole’s
allegations do not identify any specific disparaging or defamatory statements. Without more, this
Court must dismiss Poole’s claims.

2. Hostile work environment
Poole makes two claims for relief for defendant’s allegedly hostile work environment.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678. Poole’s complaint merely repeats the elements of the
offense, so those two claims must also be dismissed.

3. False Claims Act and Federal Tort Claims Act
In passing, Poole references the False Claims Act and the Federal Tort Claims Act. But he
fails to satisfy the elements of either cause of action. In his motion to amend his complaint, Poole
supplements these allegations with attempts to relitigate whether he actually violated the Navy’s
gift policy. That issue has already been decided. He also alleges various forms of fraud, but after
reviewing the record, this Court finds those allegations do not meet the high bar imposed by FED.
R. Civ. P. 9. Those claims will be dismissed.

Poole also references N.C. Gen. Stat. § 14-122.1, a statute prohibiting the falsifying of
documents. Poole does not provide evidence to suggest that any documents were falsified, so that
claim will also be dismissed.
CONCLUSION
Without opposition, defendant’s motions [4:22-cv-107, DE 16] and [4:22-cv-148, DE 11]
to consolidate the above-captioned cases are GRANTED. The Clerk is DIRECTED to consolidate
the cases into a single action. For good cause shown, plaintiff's motions [4:22-cv-107, DE 18 &
20] and [4:22-cv-148, DE 16] to amend his complaint are GRANTED. And for the foregoing
reasons, defendant’s motions [4:22-cv-107, DE 10] and [4:22-cv-148, DE 9] to dismiss are
GRANTED. The case is DISMISSED without prejudice. The Clerk is DIRECTED to enter
judgment and close the case.

SO ORDERED, this_/ day of July 2023.

TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10252789. Public record. Not legal advice.