Gryder v. Choa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

DONALD E. GRYDER, )

)

Plaintiff, ) Case No. 2:20-cv-255

)

v. ) Judge Travis R. McDonough

)

PETER BUTTIGIEG, Secretary of ) Magistrate Judge Cynthia R. Wyrick

Department of Transportation, )

)

Defendant. )

MEMORANDUM OPINION

Before the Court is Defendant Peter Buttigieg’s (“the Secretary”) motion to dismiss or,

alternatively, motion for summary judgment (Doc. 60). For the following reasons, the

Secretary’s motion for summary judgment (id.) will be GRANTED.1

I. BACKGROUND2

Plaintiff Donald Gryder was employed by Defendant as a railroad safety inspector until

he was terminated on November 21, 1997. (Doc. 62, at 22.) Plaintiff previously sued Defendant

in the United States District Court for the Northern District of Georgia, claiming that Defendant

retaliated against him, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq., by terminating his employment. Gryder v. Dennin, 427 F. App’x 844,

845 (11th Cir. 2011). A jury found for Plaintiff, and, on September 15, 2010, the district court

awarded Plaintiff backpay of $923,656.08 for the period of 1997–2010. Id. The district court

1 Because the Court grants Defendant’s motion, Plaintiff’s motion to conduct the trial in

Greeneville (Doc. 66) is DENIED AS MOOT.

2 These facts are drawn from the administrative record (Doc. 62).

also ordered Defendant to reappoint Plaintiff to his previous position. Id. Despite receiving a

verdict and judgment in his favor, Plaintiff appealed, arguing he was entitled to greater damages

and that he should have been appointed to a more senior position. Id. The Eleventh Circuit

upheld the district court’s decision, id. at 847, and Plaintiff was reappointed to his former

position on October 1, 2010 (Doc. 62, at 22).

While that case was proceeding, Plaintiff applied for over 100 Department of

Transportation (“the Department”) job vacancies. (Id. at 23.) However, Plaintiff was not

selected for any of these open positions. (Id. at 10.) Plaintiff subsequently filed several Equal

Employment Opportunity (“EEO”) complaints alleging that he was not selected on the basis of

his race, sex, and disability, and as retaliation for his prior protected activity. (Id. at 10–11.) At

the conclusion of Defendant’s investigation into Plaintiff’s allegations, Defendant requested a

hearing before a U.S. Equal Employment Opportunity Commission (“EEOC”) Administrative

Judge. (Id.) As part of these proceedings, the EEOC found that the Department failed to comply

with its orders and failed to produce a Report of Investigation (“ROI”). (Id. at 10–12.) As a

sanction, the EEOC “dr[ew] an adverse inference that a complete ROI would show that

[Defendant’s] articulated non-retaliatory reasons for not selecting [Plaintiff] were false and a

pretext for reprisal.” (Id. at 14.) This amounted to a default judgment in favor of Plaintiff. The

EEOC ordered, among other things, that Defendant appoint Plaintiff to the position of Deputy

Regional Administrator, award him “the appropriate amount of backpay” as determined by

Defendant, and “issue a final decision on the issue of compensatory damages.” (Id. at 15–16.)

Both parties requested that the EEOC reconsider its decision, with Plaintiff arguing he was owed

a greater amount of backpay. (Id. at 62.) On October 11, 2018, the EEOC affirmed its decision.

(Id. at 68.)

While these administrative proceedings were still pending, Defendant fired Plaintiff for a

second time. (Id. at 4.) On April 11, 2016, Plaintiff appealed his removal to the Merit System

Protection Board (“MSPB”), arguing that the removal was discriminatory.3 (Id. at 72–73.) On

April 25, 2017, the MSPB issued an initial decision which affirmed Defendant’s removal. (Id. at

72.) Plaintiff filed a petition for review, and, on June 22, 2023, the MSPB issued its final

decision affirming Plaintiff’s removal. (Id. at 27.)

Defendant subsequently paid Plaintiff $83,720.13 in backpay and $500 in compensatory

damages. (Id. at 25, 107.) Plaintiff nonetheless filed a “Petition for Enforcement” of the

EEOC’s order, arguing that his backpay should have been calculated from October 25, 2004,

rather than October 1, 2010, and that his backpay should reflect the promotions he would have

received had he been hired in 2004. (Id. at 23–24.) On September 11, 2020, the EEOC ruled on

Plaintiff’s Petition for Enforcement, finding that Defendant had “complied with the

Commission’s order by commencing back pay on October 1, 2010” and that Defendant correctly

calculated Plaintiffs’ promotions. (Id. at 24.) In a separate appeal to the EEOC, Plaintiff

challenged Defendant’s calculation of compensatory damages. (Id. at 112.) On September 16,

2020, the EEOC modified Defendant’s compensatory damage decision and awarded Plaintiff

$2,000. (Id. at 116.)

Plaintiff filed the present action on December 4, 2020, within ninety days of the EEOC’s

decision on the Petition for Enforcement and its decision on compensatory damages. (Doc. 1.)

Defendant moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 9.) On

February 28, 2022, the Court granted Defendant’s motion. (Doc. 34.) The Court noted it was

3 Plaintiff claimed, among other things, that federal employees “want[ed] to enter his home to

conduct a search” and that they were “working in concert with others to murder [Plaintiff] and

his wife.” (Doc. 62, at 74 (internal quotations omitted).)

unclear what causes of action Plaintiff was alleging, but nevertheless construed his complaint as

asserting: (1) failure to accommodate, discrimination, and retaliation under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq.; (2) age discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; and (3) race, national

origin, and sex discrimination and retaliation under Title VII. (Id. at 4.) After examining each

cause of action, the Court found that Plaintiff had failed to allege facts giving rise to an inference

of discrimination. (See generally id.)

Plaintiff appealed the Court’s decision on March 28, 2022. (Doc. 36.) The Sixth Circuit

affirmed in part and remanded in part, finding that the Court was required to give Plaintiff the

opportunity to amend his complaint even though Plaintiff had not requested the opportunity to do

so. (Doc. 39, at 6–7.) Plaintiff filed his amended complaint on August 18, 2023, this time

including a C.D. that contained a large number of administrative documents, emails, and medical

records. (Doc. 44.) In total, Plaintiff provided 128 separate documents amounting to over 1000

pages. (Id.) In his amended complaint, Plaintiff summarized the various administrative

complaints he had filed against Defendant over the years and again, and purported to assert

claims under the ADA, the ADEA, and Title VII. (Id. at 1.)

On June 13, 2024, Defendant moved to dismiss Plaintiff’s claims pursuant to Rule

12(b)(6) or, in the alternative, for summary judgement.4 (Doc. 60.) The motion is now ripe.

4 Defendant filed another motion for summary judgment on June 17, 2024, arguing that summary

judgment is warranted because Plaintiff has failed to comply with the Court’s orders. (Doc. 63.)

However, because the Court will grant Defendant’s present motion, it need not consider the

subsequent motion.

II. STANDARD OF LAW

Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court views the evidence in the light most favorable to the nonmoving party and

makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc.,

253 F.3d 900, 907 (6th Cir. 2001). The moving party bears the burden of demonstrating that

there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this

burden either by affirmatively producing evidence establishing that there is no genuine issue of

material fact or by pointing out the absence of support in the record for the nonmoving party’s

case. Celotex, 477 U.S. at 325. Once the movant has discharged this burden, the nonmoving

party can no longer rest upon the allegations in the pleadings; rather, it must point to specific

facts supported by evidence in the record demonstrating that there is a genuine issue for trial.

Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002).

At summary judgment, the Court may not weigh the evidence; its role is limited to

determining whether the record contains sufficient evidence from which a jury could reasonably

find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). A mere

scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could

return a verdict in favor of the non-movant based on the record. Id. at 251–52; Lansing Dairy,

Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary

judgment. Celotex, 477 U.S. at 323.

The Court notes that Plaintiff is proceeding in this action pro se. The Court is mindful

that pro se complaints are liberally construed and are held to less stringent standards than the

formal pleadings prepared by attorneys. Bridge v. Ocwen Fed. Bank, 681 F.3d 355, 358 (6th Cir.

2012). The Court is “not required to either guess the nature of or create a litigant’s claim.”

Leeds v. City of Muldraugh, 174 F. App’x 251, 255 (6th Cir. 2006) (citations omitted).

Likewise, “liberal treatment of pro se pleadings does not require lenient treatment of substantive

law,” and ultimately, those who proceed without counsel must still comply with the procedural

rules that govern civil cases, including the pleading standards set forth in Rule 8(a) of the Federal

Rules of Civil Procedure. Durante v. Fairlane Town Ctr., 201 F. App’x 338, 344 (6th Cir.

2006); Whitson v. Union Boiler Co., 47 F. App’x 757, 759 (6th Cir. 2002); Kafele v. Lerner,

Sampson, Rothfuss, L.P.A., 161 F. App’x 487, 491 (6th Cir. 2005) (“[P]ro se litigants are not

relieved of the duty to develop claims with an appropriate degree of specificity.”). Thus,

although the standard of review for pro se litigants is liberal, it requires more than the bare

assertion of legal conclusions. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir.

1996).

III. ANALYSIS

This case has been ongoing for nearly four years, and it is still not clear what causes of

action Plaintiff is asserting.5 Plaintiff purports to bring various claims of discrimination under

5 The Sixth Circuit directed the Court to grant Plaintiff leave to amend his complaint, noting that

allowing Plaintiff to amend “would enable him to attach the EEOC decisions and summarize

their contents.” (Doc. 39, at 6.) Plaintiff followed this suggestion to a fault. Plaintiff spends the

entirety of his amended complaint summarizing old administrative proceedings and has attached

128 separate documents amounting to over 1000 pages. (Doc. 44.) These documents are not

specifically referenced by name or page number anywhere in the amended complaint, nor does

Plaintiff explain the significance of any given document. (See generally id.) As a result, the

amended complaint has clarified nothing.

Title VII, the ADA, and the ADEA, but he fails to allege the basic facts which would support a

claim of discrimination in his complaint. (See generally Doc. 44.) Instead, Plaintiff merely

summarizes the procedural history of past EEOC decisions. (See id.) The Court has now

reviewed the initial complaint (Doc. 1), amended complaint (Doc. 44), the attached documents,

and Plaintiff’s extensive filings (Docs. 67–69), and it is apparent that Plaintiff is not actually

seeking to litigate any employment-discrimination claims, but instead simply takes issue with

how much backpay the EEOC has awarded him.

Plaintiff has now made clear that he is not interested in litigating whether Defendant is

liable for discrimination. (See Doc. 49-1, at 2 (Plaintiff noting his belief that “[t]he matter of

what the defendants [sic] did or did not do is not before this court as that issue has been settled

and defendants [sic] have agreed.”).) Plaintiff states that, “[a]ll that is required is for the jury to

examine what is required to make Plaintiff ‘whole’ from this accounting [of damages] and

compare what [D]efendant has allege [sic] to pay Plaintiff to discover the outstanding amount

due Plaintiff.” (Doc. 67, at 9.) Plaintiff goes on to state, “[h]ow much clearer could it be? From

day one Plaintiff has advised [D]efendant that his claim [is] failure to be made whole and his

ground upon which it rests is failure of the OFO6 to award make whole relief.” (Doc. 67, at 19.)

Specifically, Plaintiff claims he “is due pay at the GS-13 from October 25, 2004 to October 24

2006, then at the GS-14 pay from October 2006 forward . . . [and is] due to be paid at the GS-14

rate from October 1, 2010 to March 26, 2025.” (Doc. 67, at 4–5.) Such statements make clear

that Plaintiff only wants the Court to review the EEOC’s decision as to what backpay is

6 The “Office of Federal Operations” (“OFO”) is an office within the EEOC. The Court’s use of

the term “EEOC” encompasses the OFO as well.

appropriate, not make any finding as to liability.7 8 (See Doc. 44, at 27–28.) This is not possible.

42 U.S.C. 2000e-16(c) provides in relevant part that: “[w]ithin 90 days of receipt of

notice of final action taken . . . by the Equal Employment Opportunity Commission . . . an

employee or applicant for employment, if aggrieved by the final disposition of his complaint, or

by the failure to take final action on his complaint, may file a civil action.” 9 See 29 C.F.R. §

7 Plaintiff further states that “this litigation has been put to rest by the OFO decision December

17, 2015, (almost 10 years ago) which was favorable to Plaintiff by awarding him make whole

relief.” (Doc. 68, at 6.) This EEOC decision is the crux of Plaintiff’s case.

8 To the extent that Plaintiff attempts to assert any other claims, he fails to do so under even the

liberal pleading standard of Rule 8(a)(2). Defendant argues the amended complaint fails to give

him notice of the claims Plaintiff is attempting to assert. (Doc. 61, at 14.) The Court agrees.

Plaintiff is proceeding pro se and, as a result, is entitled to have his pleadings liberally construed.

However, Plaintiff still must comply with basic pleading standards. See Kafele, 161 F. App’x at

491 (“[P]ro se litigants are not relieved of the duty to develop claims with an appropriate degree

of specificity.”). A pleading that leaves both the Court and the defendant confused as to what

claims he is asserting certainly does not comply with Rule 8(a)(2). See Twombly, 550 U.S. at

545 (noting that a complaint must “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests”) (internal quotations omitted).

Plaintiff seems to believe that he can simply attach over 125 documents and the Court is

obligated to sift through them to decipher his claim. This is not the case. The Sixth Circuit has

held that a court is “not required to either guess the nature of or create a litigant’s claim.” Leeds,

174 F. App’x at 255 (citations omitted). If this holding is to mean anything, it must mean that a

district court is not required to comb through over 125 documents to discern whether a viable

claim is hidden within. If district courts were required to do so, vast amounts of judicial

resources would be consumed on a handful of pro se plaintiffs, a cost which would inevitably be

borne by all other parties before the courts, including criminal defendants. This would also

require district courts to essentially function as counsel for pro se litigants, which is not their

proper role. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to

act as counsel or paralegal to pro se litigants . . . [r]equiring district courts to advise a pro se

litigant in such a manner would undermine district judges’ role as impartial decisionmakers.”).

Plaintiff has had every chance to amend his pleading and four years to refine his claims. At

some point, enough must be enough. The Court therefore declines to give Plaintiff yet another

unsolicited opportunity to amend his complaint.

9 Plaintiff has filed approximately twenty-five complaints of discrimination over the years. (See

Doc. 44, at 8–23; Doc. 62, at 96 n.2.) Defendant argues that, to the extent that Plaintiff wishes to

challenge any of these past EEOC decisions, these claims are time barred because were not filed

within ninety-days of the final decisions, which “were issued between 2016-2019.” (Doc. 61, at

18–19.) See 42 U.S.C. 2000e-16(c); 29 C.F.R. § 1614.407(c). Plaintiff does not provide any

evidence to the contrary, simply stating that “each of the EEOC complaints submitted in this

1614.407(c) (providing that an employee has ninety days to file suit after receiving the EEOC’s

final decision). If a federal employee does bring a civil action, he has “the right to trial de novo

of [his] employment discrimination claims.” Pamplin v. Potter, No. 05-73620, 2006 WL

1284915, at *2 (E.D. Mich. May 10, 2006) (citing Chandler v. Roudebush, 425 U.S. 840 (1976)).

A de novo review, however, “requires a trial of all the issues in a particular case,” and the district

court is not bound by the EEOC’s findings. Id.

Accordingly, “[f]ederal employees who secure a final administrative disposition finding

discrimination and ordering relief have a choice: they may either accept the disposition and its

award, or file a civil action, trying de novo both liability and remedy.” Id. at *3 (quoting Scott v.

Johanns, 409 F.3d 466, 471–72 (D.C. Cir. 2005)). It is well established that an employee cannot

ask a court to review only whether she has been awarded appropriate damages while ducking the

issue of liability. See Herron v. Veneman, 305 F. Supp. 2d 64, 76 (D.D.C. 2004) (“[A] plaintiff

is not entitled to a limited or fragmented trial de novo on damages without having to relitigate

favorable findings on liability.”); Timmons v. White, 314 F.3d 1129, 1233 (10th Cir.2003)

(noting that “a plaintiff seeking relief under [42 U.S.C.] § 2000e-16 is not entitled to litigate

those portions of an EEOC decision believed to be wrong, while at the same time binding the

government on those issued in his or her favor.”). A plaintiff who asks that a court decide only

the issue of damages is requesting relief which a court cannot grant, and summary judgment is

case, each either had been appealed back to OFO seeking reconsideration and had not had any

decision rendered or had a decision as stated by Plaintiff in his filing.” (Doc. 67, at 22–23.)

However, Plaintiff’s amended complaint lays out the dates of the EEOC’s decisions, all of which

are well beyond the ninety-day threshold. (See, e.g., Doc. 44, at 12 (noting that the EECO issued

its decision on multiple complaints of Plaintiff on March 28, 2017).) The documents on the C.D.

Plaintiff filed with his amended complaint confirm these dates. The Court therefore finds that,

insofar as Plaintiff seeks to challenge any earlier EEOC decision, he is barred from doing so.

appropriate.10 See McNeely v. Potter, No. 1:05-0092, 2006 WL 1697193 at *7 (M.D. Tenn. June

14, 2006) (granting summary judgement when a plaintiff sought to only “challenge[] the EEOC’s

interpretation of the appropriate remedy”).

That is not to say that a plaintiff cannot sue to enforce an EEOC order. As the Sixth

Circuit explained, “[i]f a federal employee has received a favorable determination at the

administrative level, he or she is able to go into federal court to enforce that order without risking

de novo review of the merits.” Haskins v. U.S. Dep’t of Army, 808 F.2d 1192, 1200 n.4 (6th Cir.

1987). When a plaintiff sues to enforce an order, “the only question before the court is ‘whether

the employing agency has complied with the administrative disposition.’” Dellinger v. Potter,

No. 3:08-CV-00219, 2009 WL 2243834, at *6 (S.D. Ohio July 22, 2009) (quoting Scott v.

Johanns, 409 F.3d 466, 469 (D.C.Cir.2005)). However, “an employee’s claim for judicial

enforcement is proper only where the EEOC determines that the agency is not in compliance

with its previous decision, or where the agency has failed to submit a compliance report.” Yu v.

Brennan, No. 2:18-CV-1732, 2019 WL 4277812, at *4 (S.D. Ohio Sept. 10, 2019) (citing 29

C.F.R. § 1614.503(g)). An employee may not sue to enforce an EEOC order when the EEOC

has determined that the agency is in compliance. See id.; Yu v. United States, 150 Fed. Cl. 11, at

*17 (2020).

Plaintiff is plainly seeking judicial review only on the issue of damages, not whether

Defendant is liable for any type of discrimination.11 Plaintiff cannot do so for two reasons. First,

10If a plaintiff does decide to seek de novo review, he must return the backpay that he was

awarded. See Kloock v. Potter, No. 04-73610, 2005 WL 1593448, at *2 (E.D. Mich. July 6,

2005) (“If the plaintiff chose to relitigate his claims, he would have to disgorge the previously

awarded compensatory damages”).

11 Plaintiff has repeatedly said as much. (See, e.g., Doc. 67, at 19 (“How much clearer could it

be? From day one Plaintiff has advised [D]efendant that his claim [is] failure to be made whole

and his ground upon which it rests is failure of the OFO to award make whole relief.”)

insofar as Plaintiff seeks to enforce the EEOC’s decision on his Petition for Enforcement, he

cannot because the EEOC has already determined that Defendant is in compliance. (See Doc.

62, at 26); Yu, 2019 WL 4277812, at *4 (“The [EEOC’s] determination that the [agency] is in

full compliance with the 2014 EEOC Order has preclusive effect on this Court's subject matter

jurisdiction over enforcement of that Order.”) Second, the Court cannot review only the award

of backpay or other damages. Plaintiff has repeatedly expressed that he has no desire to litigate

whether Defendant discriminated against him and has stated his belief that the question of

liability “is not before this court as that issue has been settled.” (Doc. 49-1, at 2.) Plaintiff’s

only claim is that he deserves more money that the approximately $1.1 million he was already

awarded. By requesting the Court decide only the issue of damages, Plaintiff is requesting relief

that the Court has no power to grant, and summary judgment is therefore appropriate. See

Herron, 305 F. Supp. 2d at 76 (“[A] plaintiff is not entitled to a limited or fragmented trial de

novo on damages without having to relitigate favorable findings on liability.”). Accordingly,

Defendant’s motion for summary judgment will be granted.12

12 Plaintiff references in passing his desire to challenge “the MSRB Decision” upholding his

2015 termination. (Doc. 44, at 28.) Defendant argues that insofar as Plaintiff seeks review of

this decision, his claim is time barred. (Doc. 61, at 19.) The Court agrees.

Federal employees seeking to assert Title VII claims must exhaust their administrative remedies

before filing suit. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976). Courts routinely

dismiss actions when a plaintiff has failed to exhaust his administrative remedies. See Speer v.

UCOR, LLC, No. 3:21-cv-368, 2022 WL 3971036 at *11 (E.D. Tenn. Aug. 31, 2022) (collecting

cases). When a federal employee appeals his case to the MSPB, he must exhaust his remedies in

that forum. See McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995) (“Having chosen [to

appeal to the MSPB], [the plaintiff] was required to exhaust her claims in that forum before

filing a civil action.”); Burden v. U.S. Postal Serv., 345 F. App’x 972, 973 (6th Cir. 2009)

(upholding district court’s dismissal for a plaintiff’s failure to exhaust his claims before the

MSPB). The exhaustion requirement is not a “jurisdictional prerequisite to filing suit” and is

“subject to waiver, estoppel, and equitable tolling.” Williams, 53 F. App’x at 352. However, a

court does not have the discretion to simply waive the exhaustion requirement as a mere

technicality. See Jones v. Truck Drivers Loc. Union No. 299, 748 F.2d 1083, 1086 (6th Cir.

1984) (“The Supreme Court did not suggest that the [exhaustion] requirement could be set aside

IV. CONCLUSION

For these reasons, the Court GRANTS Defendant’s motion for summary judgment (Doc.

60). Plaintiff’s claims are hereby DISMISSED WITH PREJUDICE.

AN APPROPRIATE JUDGMENT SHALL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE

or waived in the discretion of the District Court . . . there is no basis for setting aside the

requirement as ‘technical.’”). Moreover, the Sixth Circuit has made clear “plaintiffs should not

be encouraged to attempt to bypass the administrative process,” and, therefore, the

administrative-exhaustion requirement must be enforced. Jones v. Nat. Essentials, Inc., 740 F.

App’x 489, 494 (6th Cir. 2018).

Here, the MSRB did not issue its final decision until June 22, 2023. (Doc. 62, at 27.) Plaintiff

then had thirty days to file his action in federal court. 5 U.S.C. § 7703(B)(2). Plaintiff does not

claim that he filed an action within that time and, by now, that claim would be time-barred.

Plaintiff argues instead that he “already included this action in his [initial complaint]” and

therefore his claim is not time barred. (Doc. 67, at 24.) In essence, Plaintiff is arguing that he

did not have to administratively exhaust his remedies before filing suit. That is not the case.

Courts in this circuit are required to vigorously enforce the exhaustion requirement. Jones, 740

F. App’x at 494. Moreover, Plaintiff has not demonstrated that waiver, estoppel, and equitable

tolling would be appropriate in this case. Nothing precluded Plaintiff from filing suit once the

MSPB issued its final decision. He simply chose not to.