Fitzgibbon

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

DONALD FITZGIBBON, )

)

Plaintiff, )

)

v. ) 3:25-CV-130-KAC-JEM

)

UNITED STATES POSTAL SERVICE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER DISMISSING ACTION

This action is before the Court on Defendant United States Postal Service’s Motion to

Dismiss [Doc. 10]. Because the Court lacks jurisdiction over any claim that remains in this action,

the Court grants the Motion in part and dismisses this action without prejudice.

I. Background

Plaintiff Donald Fitzgibbon is proceeding pro se. According to the allegations in the

Complaint, he is a “former employee of [Defendant] . . . United States Postal Service” (“USPS”),

“a federal agency” [Doc. 1 ¶¶ 3, 6]. Plaintiff worked “at the USPS facility in Knoxville,

Tennessee” [Id. ¶ 7]. Plaintiff is a “Gold Star Father” because he “lost a Child” “in military

service to the United States” [Id. ¶ 4]. Because of his status as a Gold Star Father, Plaintiff

“received **veterans’ preference hiring points**, which contributed to his employment at

USPS” [Id. ¶ 5].

“On November 30, 2024,” an individual with an alleged “known history of violent

behavior” “initiated a[n] unprovoked violent attack on Plaintiff on postal property” [Id. ¶¶ 8-9].

The alleged attacker “pled guilty to [] assault and battery” [Id. ¶ 11]. Defendant “falsely alleged

that Plaintiff initiated the altercation” and terminated Plaintiff “effective January 28, 2025” [Id.

¶¶ 12-13]. “Plaintiff appealed his termination to the Merit Systems Protection Board (MSPB),

which upheld the termination in a biased and unfair process” [Id. ¶ 14].

On March 28, 2025, Plaintiff filed a “Complaint for Wrongful Termination” [Doc. 1]. The

Complaint alleges that “this case arises under federal law and 5 U.S.C. § 7703 (federal employee

wrongful termination claims)” [Id. ¶ 1]. 5 U.S.C. § 7703 is the section of the Civil Service Reform

Act of 1978, 5 U.S.C. § 1101 et seq., governing judicial review of MSPB decisions. See 5 U.S.C.

§ 7703(a)(1) (“Any employee or applicant for employment adversely affected or aggrieved by a

final order or decision of the Merit Systems Protection Board may obtain judicial review of the

order or decision”). The Complaint alleges that “Defendant wrongfully terminated Plaintiff in

violation of federal employment protections” [Id. ¶ 17]. Specifically, the Complaint alleges that

his “termination disregarded his **Gold Star Father status and veteran hiring preference,**

demonstrating further unfair treatment and lack of consideration for his contributions and

sacrifices” [Id. ¶ 16]. The Complaint further alleges that “Defendant’s actions were arbitrary,

capricious, and in retaliation for Plaintiff exercising his rights” [Id. ¶ 18]. The Complaint also

notes that Plaintiff “filed a complaint with the Equal Employment Opportunity Commission” that

was “still pending” at the time Plaintiff filed his Complaint [Id. ¶ 15].

Defendant filed the instant Motion to Dismiss, arguing that the Court lacks jurisdiction to

hear this action under Federal Rule of Civil Procedure 12(b)(1) or alternatively that the Complaint

fails to state a claim under Rule 12(b)(6) [See Doc. 10 at 1]. Plaintiff responded, arguing that his

claims “fall under Title VII and the ADEA” [Doc. 14 at 4]. But he did not seek to amend his

Complaint to add any additional allegations [See Doc. 14]. See Fed. R. Civ. P. 15. In his Response,

Plaintiff also voluntarily dropped any potential claims under the Federal Tort Claims Act,

“including IIED or assault,” “without prejudice to refiling after exhaustion” [See Doc. 14 at 4].

Defendant replied and did not oppose Plaintiff dropping any Federal Tort Claims Act claims

without prejudice [See Doc. 16 at 1].

II. Analysis

As an initial matter, Plaintiff has voluntarily dropped any claims under the Federal Tort

Claims Act, including, without limitation, any claims for intentional infliction of emotional distress

and assault, without prejudice [See Doc. 14 at 4]. See Fed. R. Civ. P. 21; E.D. Tenn. L.R. 7.2.

That leaves Plaintiff’s claim for wrongful termination.

Under Rule 12(b)(1), the Court dismisses an action without prejudice if the Court lack

jurisdiction to hear it. See Fed. R. Civ. P. 12(b)(1). Defendant lodges a facial attack on the Court’s

jurisdiction [See Doc. 11 at 3]. So, the Court “accepts” the facts in the Complaint “as true” and

construes them “in the light most favorable to” Plaintiff. See Am. Reliable Ins. Co. v. United

States, 106 F.4th 498, 504 (6th Cir. 2024) (citation omitted). The Court also liberally construes

the Complaint in Plaintiff’s favor because he is proceeding pro se. See Erickson v. Pardus, 551

U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But Plaintiff, as the party

invoking the Court’s jurisdiction, “bears the burden of establishing that . . . jurisdiction exists.”

See Hale v. Morgan Stanley Smith Barney LLC, 982 F.3d 996, 997 (6th Cir. 2020). The facts

properly construed must “assert a plausible claim” of jurisdiction. See Assoc. of Am. Physicians

& Surgeons v. U.S. Food and Drug Admin., 13 F.4th 531, 544 (6th Cir. 2021) (citation omitted).

The Civil Service Reform Act provides a general legal framework “for evaluating

personnel actions taken against federal employees.” See Kloeckner v. Solis, 568 U.S. 41, 44

(2012); see also 5 U.S.C. § 1101 et seq. When a federal agency takes a “particularly serious”

action against an employee, like termination, the employee may appeal the agency’s decision to

the MSPB. Id. at 44-45; see also Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 422 (2017); 5 U.S.C.

§ 7701. Before the MSPB, the employee may “assert[] rights under the C[ivil] S[ervice] R[eform]

A[ct]” and the employee may also “complain of adverse action taken . . . because of discrimination

prohibited by another federal statute,” including those statutes identified in 5 U.S.C. § 7702. See

Perry, 582 U.S. at 422-24 (quotation omitted); see also 5 U.S.C. § 7702(a)(1). But the nature of

the rights asserted has implications for judicial review of the MSPB determination.

Once, as here, the employee seeks judicial review of the MSPB determination, the road

splits. If the employee complains only of violations of his rights under the Civil Service Reform

Act, judicial review rests “exclusively” in the United States Court of Appeals for the Federal

Circuit. See Perry, 582 U.S. at 422 (citation omitted); see also 5 U.S.C. § 7703. If instead, he also

alleges “that the action was based on discrimination”—“[]he is said . . . to have brought a ‘mixed

case.’” Kloeckner, 568 U.S. at 45 (citation omitted); Perry, 582 U.S. at 422; see also Fuerst v.

Sec’y of the Air Force, 978 F.3d 369, 371 (6th Cir. 2020). Review of a “mixed case” can rest with

a relevant “district court.” Perry, 582 U.S. at 431-32 (citing Kloeckner, 568 U.S. at 50).

Here, the Complaint only plausibly raises a claim that Defendant or, liberally-construed,

the MSPB violated Plaintiff’s rights under the Civil Service Reform Act. So, this District Court

lacks jurisdiction to hear the claim. To the extent that the Complaint alleges that “Defendant’s

actions were arbitrary [and] capricious,” [see Doc. 1 ¶ 18], those allegations are covered by the

Civil Service Reform Act, see 5 U.S.C. §7703(c)(1). So too are the allegations that the MSPB

“upheld the termination in a biased and unfair process” [See Doc. 1 ¶ 14]. And Plaintiff’s status

as a “Gold Star Father” is protected under the Civil Service Reform Act. See 5 U.S.C. § 2108(3)(F)

(providing that “the parent of an individual who lost his or her life under honorable conditions

while serving in the armed forces” may be preference eligible); see also § 2302(b) (providing

protection against certain “personnel action if the taking of such action would violate a veterans’

preference requirement”). But that status is not protected under Title VII or the ADEA. See 42

U.S.C. § 2000e-2, 2000e-3 (prohibiting discrimination “because of such individual’s race,

color, religion, sex, or national origin”); 29 U.S.C. § 623 (prohibiting discrimination “because of

such individual’s age”).

The Complaint itself, which is the touchstone for the Court analysis, does not reference

any applicable anti-discrimination statute [See Doc. 1]. See Am. Reliable Ins. Co., 106 F.4th at

504. Nor does it include allegations that would allow the Court to infer that Plaintiff raised a claim

of discrimination under Title VII or the ADEA, as Plaintiff argues in his Response [See id., Doc.

14 at 3-4]. And Plaintiff cannot amend the allegations of his Complaint in his Response.

See Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020)

(Plaintiffs “cannot amend their complaint in an opposition brief or ask the court to consider new

allegations (or evidence) not contained in the complaint.” (cleaned up)). At bottom, even properly

and liberally construing the Complaint, it plausibly “asserts rights under the C[ivil] S[ervice]

R[eform] A[ct] only.” See Perry, 582 U.S. at 422-24. Accordingly, this District Court lacks

Jurisdiction.

Ill. Conclusion

For the above reasons, the Court GRANTS Defendant’s Motion to Dismiss [Doc. 10] in

Part and DISMISSES this action without prejudice. An appropriate judgment shall enter.

SO ORDERED.

United States District hidge