The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GREGORY THOMPSON, SR., )
)
Plaintiff, )
)
v. ) Case No. 24-CV-0322-CVE-MTS
)
MARK AVERILL,1 )
Acting Secretary of the Army, )
)
Defendant. )
OPINION AND ORDER
Before the Court are defendant’s opposed motion to stay proceedings (Dkt. # 33), and
defendant’s opposed motion for extension of time to answer or otherwise plead pending ruling on
defendant’s motion to stay (Dkt. # 35).2 Plaintiff filed responses to defendant’s motion to stay and
motion for extension of time. Dkt. ## 34, 36. Defendant filed a reply to plaintiff’s response to the
motion to stay (Dkt. # 40). As plaintiff proceeds pro se, the Court liberally construes his pleadings.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002).
1 Effective January 20, 2025, pursuant to FED. R. CIV. P. 25(d), Mark Averill, Acting Secretary
of the Army, is substituted as the defendant in this action.
2 Plaintiff has also filed a motion for court oversight to protect due process and prevent
defendant’s improper influence over the Merit Systems Protection Board (Dkt. # 39). The
Court will not consider plaintiff’s motion in this opinion and order because the motion has
not been fully briefed.
I.
On July 10, 2024, plaintiff filed a complaint against defendant. Dkt. # 2. In his complaint,
plaintiff sought review of a final Merit Systems Protection Board (MSPB) decision3 and raised
claims of disability discrimination/denied accommodation, harassment/hostile work environment,
intentional infliction of emotional harm, constructive suspension, and retaliation under the
Rehabilitation Act. Id. at 1, 5. Plaintiff also notified the Court of two related cases before the
MSPB: case number DA-4324-24-0396-I-14 in which plaintiff raises a claim of violation of the
Uniformed Services Employment and Reemployment Rights Act (USERRA) and case number DA-
0752-23-0184-I-1 in which plaintiff raises disability discrimination, failure to accommodate, and
constructive discharge claims. Id. at 7. Plaintiff explained that his pending claims before the MSPB
involved the same set of background facts as his complaint before the Court. Id.
Defendant filed a motion for extension of time to answer or otherwise plead because of
unsettled questions regarding the proper party defendant in this case (Dkt. # 10, at 1, 3), and the
Court granted defendant’s motion (Dkt. # 11). Defendant then filed a motion to dismiss (Dkt. # 18)
plaintiff’s complaint for failure to effect proper service. Thereafter, defendant withdrew the
contentions in the motion to dismiss because plaintiff’s response to the motion included declarations
demonstrating that service was achieved by a non-party. Dkt. # 20. Consequently, the Court found
3 Plaintiff did not provide the case number. However, defendant attached the MSPB’s initial
decision dismissing plaintiff’s appeal for lack of jurisdiction, which provides the case
number DA-0752-22-0341-I-1. Dkt. # 10-1, at 1.
4 The Court notes that defendant made a typographical error in the case number of plaintiff’s
pending USERRA MSPB appeal, “DA-4324-24-09396-I-1.” Dkt. # 33, at 2. The correct
case number is DA-4324-24-0396-I-1. Dkt. # 2, at 7; Dkt. # 33-3, at 7.
2
that defendant’s motion to dismiss was moot and ordered defendant to file an answer by January 13,
2025. Dkt. # 21.
On January 1, 2025, plaintiff filed a motion for leave to file an amended complaint (Dkt. #
24), and the Court granted the motion and ordered plaintiff to file an amended complaint by January
10, 2025 (Dkt. # 26). Plaintiff failed to file his amended complaint within the deadline set by the
Court. On January 13, 2025, defendant filed an answer to the complaint (Dkt. # 27), and plaintiff
filed a motion to file amended complaint out of time (Dkt. # 30), which the Court granted (Dkt. #
31).
On January 14, 2025, plaintiff filed an amended complaint raising claims against defendant
for failure to accommodate under the Rehabilitation Act, and for hostile work environment,
discrimination, retaliation, and constructive suspension under USERRA and the Rehabilitation Act.5
Dkt. # 32, at 18-26. In his amended complaint, plaintiff alleges that he is a disabled combat veteran
who honorably retired from his position with the United States Army Corps of Engineers (USACE).
Id. at 1, 7. His claims arise out of: his employment with USACE; his USACE supervisor’s alleged
refusal to grant him a full time teleworking accommodation for his disability, or, in other words, one
day of telework in addition to USACE’s four day telework policy; and the events following this
alleged refusal. Id. at 7-17.
5 In plaintiff’s amended complaint, plaintiff appears to abandon his request for judicial review
of the MSPB decision. At this time, the Court does not decide whether plaintiff’s amended
complaint still seeks judicial review.
3
On January 24, 2025, defendant filed an opposed motion to stay proceedings (Dkt. # 33),6
and, on January 27, 2025, defendant filed an opposed motion for extension of time to answer or
otherwise plead pending ruling on defendant’s motion to stay (Dkt. # 35). Plaintiff filed responses
to both motions.7 Dkt. ## 34, 36. Defendant filed a reply to plaintiff’s response to the motion to
stay. Dkt. # 40.
II.
The Court first considers defendant’s motion to stay proceedings until 60 days following the
MSPB’s entry of final decisions on plaintiff’s pending appeals. Dkt. # 33, at 1, 5. Defendant argues
that plaintiff’s pending MSPB appeals involve the same factual background, substantive witnesses,
documents, and discovery as the claims before the Court. Id. at 2-3. Defendant argues that a stay
would allow the parties to consolidate all of plaintiff’s claims, prevent duplicative discovery and
inconsistent results between the MSPB and the Court, and conserve the parties’ and the Court’s
resources. Id. at 4-5. Finally, defendant argues that a stay would not present a reasonable risk of
damage to plaintiff because his claims in this case would remain viable while the parties await the
MSPB’s decisions on plaintiff’s pending appeals. Id. at 5.
6 Defendant attached to the motion: plaintiff’s response to the MSPB order on jurisdiction in
MSPB appeal number DA-0752-23-0184-I-1; plaintiff’s supplement to his claim of
USERRA violation in MSPB appeal number DA-0752-23-0184-I-1; and the MSPB’s orders
setting hearings on both of plaintiff’s pending MSPB cases (DA-0752-23-0184-I-1 and
DA-4324-24-0396-I-1) for February 28, 2025. Dkt. ## 33-1, 33-2, 33-3. The MSPB orders
explain that the hearings may result in a bench decision if the administrative judge “is
confident in deciding the issues of the case without further review of the record.” Dkt. # 33-
3, at 4, 10.
7 Plaintiff’s response to defendant’s motion to stay is an 11-page pleading with 215 pages of
attached exhibits related to, inter alia, the administrative judge’s and defendant’s alleged
improper conduct during the MSPB proceedings. Dkt. # 34.
4
Plaintiff responds that the claims pending before the Court and the MSPB are legally and
factually distinct because his constructive suspension claims, which are before the Court, arise out
of events that occurred months prior to the events giving rise to his constructive discharge claims,
which are before the MSPB.* Dkt. # 34, at 2, 5-6. Further, plaintiff argues that a stay would
prejudice him because it obstructs and manipulates the judicial process causing him further
emotional, financial, and physical harm.’ Id. at 2-3, 10-11. Additionally, plaintiff argues that the
stay would “provide no tangible benefit to judicial efficiency[,]” and that defendant fails to
demonstrate hardship because the two pending MSPB cases will be adjudicated together and the
claims before the Court are distinct from the claims pending before the MSPB. Id. at 8, 9-10, 11.
The Court has the inherent authority to control its docket, which includes the power to stay
cases in the interest of judicial economy. United Steelworkers of Am. v. Or. Steel Mills, Inc., 322
F.3d 1222, 1227 (10th Cir. 2003). “The power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the [cases] on its docket with economy of time and effort
for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 US. 248, 254 (1936). The party
Plaintiff also argues that defendant “intentionally conflates the constructive suspension and
constructive discharge claims in a bad-faith attempt to confuse and mislead the [C]ourt.”
Dkt. # 34, at 2, 7, 10. The Court finds that this argument is frivolous.
Plaintiff also alleges that defendant engaged in ex parte communications with the MSPB.
Id. at 3-4, 7. In a footnote of defendant’s motion to stay proceedings, defendant opines on
the likelihood of the MSPB dismissing plaintiff's pending appeals. Dkt. # 33, at 3, n.2.
From this statement, plaintiff infers that defendant engaged in improper ex parte
communications with the MSPB and argues that defendant’s motion is based on speculative
future actions. Dkt. # 34, at 2-4. The Court finds that plaintiff's argument is meritless.
Defendant bases the motion to stay on the overlapping factual backgrounds of the claims, not
“crystal ball predictions,” and defendant’s inference that the MSPB might dismiss plaintiff s
claims does not suggest that defendant engaged in any ex parte communications with the
MSPB. Regardless, in ruling on this motion, the Court does not consider the likelihood that
the MSPB will rule for or against plaintiff in his pending appeals.
requesting a stay “must make out a clear case of hardship or inequity. . . to go forward, if there is
even a fair possibility that the stay for which he prays will work damage to some[one] else.” Id. at
255.
The Court grants in part defendant’s motion to stay proceedings. Dkt. #33. In assessing
whether plaintiffs claims before the Court and the MSPB are so closely related that a stay in the
proceedings promotes judicial economy, the Court finds that the Tenth Circuit’s claim preclusion
precedent is instructive. When considering the issue of claim preclusion, courts are “not free to
transactionally distinguish wrongful termination claims from those claims arising out of the
employment but before and unrelated to the discharge.” Wilkes v. Wyo. Dep't of Emp. Div. of Lab.
Standards, 314 F.3d 501, 504-05 (10th Cir. 2002), as amended (Jan. 14, 2003) (quoting Yapp v.
Excel Corp., 186 F.3d 1222, 1228 (10th Cir.1999)). Rather, “a cause of action includes all claims
or legal theories of recovery that arise from the same transaction, event, or occurrence. All claims
arising out of the transaction must therefore be presented in one suit or be barred from subsequent
litigation.” Id. at 504 (quoting Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257 (10th
Cir.1997)). The Tenth Circuit has repeatedly “held that ‘all claims arising from the same
employment relationship constitute the same transaction or series of transactions for claim preclusion
purposes.’” Id. (quoting Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000)).
Plaintiff admits that all of his claims arise out of his employment relationship with USACE
and that the events giving rise to his claims occurred prior to plaintiff filing the present action with
the Court. Dkt. #34, at 5-6. Therefore, the Court finds that plaintiff's claims pending here and with
the MSPB represent a single cause of action, and a stay would not unfairly prejudice plaintiff, but,
rather, ensures plaintiff the opportunity to litigate all of his claims. See Wilkes, 314 F.3d at 506
(finding that the doctrine of claim preclusion barred plaintiff’s second suit against defendant for a
claim arising out of her employment relationship with defendant, and that the plaintiff could have
avoided this bar by filing her first employment related claim and then seeking a stay from the district
court until the EEOC issued a right-to-sue letter on her second employment related claim). Further,
plaintiff’s litigation strategy may result in piecemeal appeals to the Court or other district courts. The
federal courts’ historic policy against piecemeal appeals “promotes judicial efficiency, expedites the
ultimate termination of an action[,] and relieves appellate courts of the need to repeatedly familiarize
themselves with the facts of a case.” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir.
2001). Therefore, to avoid piecemeal appeals, the Court grants defendant’s motion to stay all
proceedings, except for briefing and ruling on plaintiff’s pending motion for court oversight (Dkt.
# 39), in the interest of judicial economy. However, the Court finds that defendant’s request that the
stay extend 60 days after the MSPB enters final decisions on plaintiff’s pending appeals is excessive.
Thus, the Court stays the proceedings only until the MSPB renders final decisions on plaintiff’s
pending appeals. Upon lifting the stay, the Court will set a deadline for defendant to file his answer
or otherwise plead.
III.
Because the Court will set a deadline for defendant to respond or otherwise plead when the
Court lifts the stay, the Court finds that defendant’s motion for extension of time (Dkt. # 35) to
answer or otherwise plead pending ruling on defendant’s motion to stay is moot.
IT IS THEREFORE ORDERED that defendant’s opposed motion to stay proceedings
(Dkt. # 33) is granted in part. The Court stays all proceedings, except for briefing and ruling on
plaintiff’s pending motion for court oversight (Dkt. # 39), until the MSPB renders final decisions
7
as to plaintiff's pending appeals. Upon lifting the stay, the Court will set a deadline for defendant
to file his answer or otherwise plead.
IT IS FURTHER ORDERED that defendant’s opposed motion for extension of time to
answer or otherwise plead pending ruling on defendant’s motion to stay (Dkt. # 35) is moot.
IT IS FURTHER ORDERED that the parties shall file notice of any final orders entered
by the MSPB in plaintiff's pending appeals within 15 days of their entry.
IT IS FURTHER ORDERED that the Court Clerk is directed, pursuant to FED. R. CIv. P.
25(d), to substitute Mark Averill, Acting Secretary of the Army, as the defendant in this action.
DATED this 12th day of February, 2025.
Cheine ¥ Coble —
CLAIRE V.EAGAN
UNITED STATES DISTRICT JUDGE