Ikossi v. Department of Navy

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2007 Decided February 29, 2008

No. 05-5456

KIKI IKOSSI,
APPELLANT

v.

DEPARTMENT OF NAVY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 04cv01392)

Michael D. Kohn argued the cause for appellant. With him
on the briefs was David K. Colapinto. Stephen M. Kohn entered
an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Michael J. Ryan and Wyneva Johnson, Assistant U.S. Attorneys,
entered appearances.
 2

Before: GINSBURG*, ROGERS and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This appeal arises from the
termination of Dr. Kiki Ikossi’s employment at the Navy
Research Lab (“NRL”) where she was an electrical engineer.
After appealing to the Merit System Protection Board (“MSPB”)
and filing a complaint with the Equal Employment Opportunity
(“EEO”) office, Dr. Ikossi sued the Secretary of the Navy and
the NRL in the district court, alleging gender, age, and national
origin discrimination and unlawful retaliation as well as
violations of the Family and Medical Leave Act (“FMLA”) and
the Civil Service Reform Act (“CSRA”). The district court
dismissed her non-discrimination claims for lack of subject
matter jurisdiction, dismissed her pre-termination claims as
untimely, and granted summary judgment to the Secretary on
her discrimination and retaliation claims. We affirm in part and
reverse in part. Because Dr. Ikossi did not administratively
appeal the dismissal by the EEO office or file a civil action on
those claims within ninety days, we affirm the dismissal of the
pre-termination claims. However, because 5 U.S.C.
§ 7702(e)(1) provided subject matter jurisdiction over the
entirety of Dr. Ikossi’s “mixed case” under the CSRA when the
MSPB failed to issue a final decision within 120 days, id.
§ 7702(a)(1), and because summary judgment was premature in
view of her request for discovery pursuant to Fed. R. Civ. P.
56(f), we reverse and remand the case to the district court.

I.

In view of the controlling legal questions that resolve this

*
Circuit Judge Ginsburg was Chief Judge at the time of oral
argument.
 3

appeal, we limit our statement of the evidence to highlight the
procedural history.

Dr. Ikossi joined the staff at the NRL in 1998 after having
been a tenured professor at Louisiana State University and an
NRL summer research fellow for eight years. Her job
description called for her to work on research teams as well as
conduct independent research, and she was expected to “define,
execute and publish the results of a personal research agenda.”
For much of her employment, Dr. Ikossi was directly supervised
by Dr. Harry Dietrich, her second level supervisor was Dr.
Dennis Webb, and her third level supervisor was Dr. Gerald
Borsuk.

Between 1999 and 2002, Dr. Ikossi received an array of
awards from the NRL and consistently good reviews. However,
Dr. Ikossi became increasingly concerned that she was not
receiving proper credit for her work. For example, she was not
assigned to lead a project to which her research had made
substantial contributions, and she believed that her contributions
had not been properly acknowledged by male colleagues in
publications and presentations. Concluding this was a result of
gender discrimination, she met in December 2000 with Dr.
Webb and contacted the NRL’s Human Resources Office
(“HRO”).

As a result of a reorganization initiated by Dr. Webb in
March 2002, Mr. Brad Boos became Dr. Ikossi’s immediate
supervisor. As part of the reorganization, Dr. Ikossi was to
move her office and share space with another full-time scientist,
an arrangement she considered inadequate to meet her
professional needs and inferior to that provided to her male
colleagues, some of whom were permitted to set up private
offices in unused laboratory space. On April 23, 2002, Dr.
Ikossi complained to Mr. Boos, Dr. Webb, and the HRO that she
 4

was being subjected to a hostile work environment. On
September 16, 2002, Mr. Boos issued her a letter of reprimand
for yelling at a colleague, a level of discipline that Dr. Webb
could not recall having ever been used and one more severe than
that used in a case of sexual harassment, where the employee
was issued a letter of caution, which does not become part of an
employee’s personnel record.

On June 3, 2002, Dr. Ikossi filed a formal EEO complaint
alleging gender, age, and national origin discrimination. The
EEO office accepted the complaint for investigation on July 19,
2002. She amended her complaint on November 17, 2002 and
February 6, 2003 to add a retaliation claim and to allege that her
supervisors had treated younger males with inferior
qualifications substantially better than they treated her. On
November 20, 2002, an EEO investigator held a fact-finding
conference. By fall 2002, Dr. Ikossi was often on medical leave,
and by the end of the year her health had deteriorated to the
point she advised that she would not be able to work anytime
soon. She took approved leave under the FMLA between
December 23, 2002 and February 28, 2003, at which time she
began to work part-time. On December 2, 2002, Mr. Boos
proposed that she be suspended for 14 days; Dr. Webb converted
the proposal into a proposed removal of Dr. Ikossi from federal
employment. Dr. Borsuk terminated Dr. Ikossi’s employment
on April 23, 2003.

On May 20, 2003, Dr. Ikossi filed a mixed-case appeal with
the MSPB, contending that the termination of her employment
violated Title VII and the Age Discrimination in Employment
Act (“ADEA”) as well as the CSRA and the FMLA. In a
statement of jurisdiction, she noted that she had not included her
termination claims in her pending EEO complaint. An
administrative judge held a one-day hearing on August 28, 2003.
The EEO office dismissed her complaint on September 16, 2003
 5

on the ground that she had been afforded the opportunity to
litigate those claims before the MSPB; she was advised that she
had the right to appeal to the Equal Employment Opportunity
Commission (“EEOC”) or to file a civil action within ninety
days. On December 17, 2003, the administrative judge
dismissed her MSPB appeal in light of a tentative settlement
between Dr. Ikossi and the NRL. Subsequently, after the
administrative judge forwarded Dr. Ikossi’s letter advising that
she had withdrawn from the settlement, the MSPB treated the
letter as a petition for review and remanded the case to the
administrative judge on August 23, 2004 to determine whether
she had timely withdrawn from the settlement.

Meanwhile, on October 10, 2003, Dr. Ikossi filed suit
against the Secretary in federal district court alleging that the
termination of her employment violated Title VII and the
FMLA; on May 14, 2004 she moved to amend her complaint,
including adding a hostile work environment claim. She filed a
second lawsuit on August 16, 2004 that included her CSRA
claims, pursuant to 5 U.S.C. § 7702(e)(1), and added the NRL
as a defendant. In this complaint she alleged that she had been
the victim of a hostile working environment due to
discrimination based on age, gender, and national origin, that
she had been, in effect, denied leave under the FMLA due to
requests to continue to work while on approved medical leave,
and that her termination violated Title VII, the ADEA, the
FMLA, and the CSRA. The district court granted her motion to
dismiss her initial complaint on August 24, 2004. On December
27, 2004, the administrative judge granted her motion to dismiss
her administrative appeal without prejudice because her claims
were pending before the district court on de novo review; on
May 18, 2005, the MSPB denied the NRL’s petition challenging
the administrative judge’s jurisdiction to issue a dismissal
without prejudice.
 6

The district court granted the Secretary’s motion to dismiss
the CSRA and FMLA claims for lack of subject matter
jurisdiction, dismissed the pre-termination claims as time barred,
and granted the Secretary’s motion for summary judgment on
the discrimination claims related to Dr. Ikossi’s termination,
concluding that she had failed to rebut the NRL’s lawful reason
for terminating her employment and denying her Rule 56(f)
request for discovery. Ikossi v. England, 406 F. Supp. 2d 23
(D.D.C. 2005). Dr. Ikossi appeals, except for the dismissal of
her FMLA claim. Our review is de novo, see Wilson v. Pena, 79
F.3d 154, 160 n.1 (D.C. Cir. 1996), except for the denial of
discovery, which we review for abuse of discretion, see
Carpenter v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231, 238
(D.C. Cir. 1999).

II.

Section 7702 of Title 5 of the United States Code governs
the adjudication of mixed cases, which both challenge adverse
personnel actions otherwise appealable to the MSPB and allege
that discrimination played a part. See Butler v. West, 164 F.3d
634, 638 (D.C. Cir. 1999). As relevant to district court
jurisdiction, section 7702(e)(1) provides that:

Notwithstanding any other provision of law, if at any
time after -
...
(B) the 120th day following the filing of an appeal
with the [MSPB] under subsection (a)(1) of this
section, there is no judicially reviewable
action . . . ,
...
an employee shall be entitled to file a civil action to the
same extent and in the same manner as provided in
section 717(c) of the Civil Rights Act of 1964 (42
 7

U.S.C. 2000e-16(c)), section 15(c) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
633a(c)), or section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)).

5 U.S.C. § 7702(e)(1) (emphasis added).

The district court ruled that the “to the same extent and . . .
same manner” clause limited judicial review under section
7702(e)(1)(B) to claims that would otherwise arise under the
listed civil rights statutes. Ikossi, 406 F. Supp. 2d at 29-30.
Therefore, it determined that it lacked jurisdiction over Dr.
Ikossi’s non-discrimination claims until the MSPB had issued a
final decision, at which point Dr. Ikossi could appeal pursuant
to 5 U.S.C. § 7703(b), which provides for judicial review based
on an administrative record. Dr. Ikossi’s challenge to the district
court’s interpretation of its jurisdiction over her mixed case is
well taken because the district court’s ruling is inconsistent with
the plain text and legislative history of section 7702. While the
district court may “stay the case, or hold it in abeyance, for a
reasonable period of time” to allow the administrative process
to conclude, Butler 164 F.3d at 643, it errs in dismissing non-
discrimination claims for lack of subject matter jurisdiction
because there is not a final decision by the MSPB.

The plain text of the concluding clause of section
7702(e)(1) — “to the same extent and in the same manner as
provided in section 717(c) of the Civil Rights Act of 1964,. . .
section 15(c) of the [ADEA], . . . or section 16(b) of the Fair
Labor Standards Act of 1938” — demonstrates that it is not a
limitation on the type of claims that may be pursued under
section 7702(e)(1). The three referenced statutory provisions
are procedural in nature: section 717(c) addresses the time for
bringing a civil action and requires that the “head of department,
agency, or unit” be named the defendant, 42 U.S.C. § 2000e-
 8

16(c); section 15(c) creates jurisdiction in the federal district
court and provides for both legal and equitable relief, 29 U.S.C.
§ 633a(c); and section 16(b) authorizes damages and identifies
federal or state court as the proper venue, 29 U.S.C. § 216(b).
Thus, the concluding clause of section 7702(e)(1) merely
specifies the procedure that governs mixed cases brought
pursuant to section 7702(e)(1). An illustration of the operation
of this clause appears in Kienlen v. MSPB, 687 F. Supp. 461,
463 (D. Minn. 1988), where the district court dismissed the
MSPB as a defendant upon ruling that section 7702(e)(1), by
incorporating section 717(c) of the Civil Rights Act, only
permitted the plaintiff to name the Postmaster General as a
defendant. And as is further illustrated by section
7702(a)(1)(B), which describes the kinds of discrimination
claims that may be brought before the MSPB, Congress knew
how to invoke the substantive provisions of the civil rights
statutes. That provision references the entire “section 717 of the
Civil Rights Act of 1964” rather than only section 717(c).

The procedural nature of the concluding clause of section
7702(e)(1) also accords with its omission of any reference to the
Rehabilitation Act, which is listed in section 7702(a) as a basis
for a discrimination claim protected under section 7702. See 5
U.S.C. § 7702(a)(1)(B)(iii). Although the Rehabilitation Act
provides substantive protection against discrimination, 29
U.S.C. § 791, it does not include procedural requirements for
judicial review, incorporating instead the requirements of
section 717 of the Civil Rights Act, see 29 U.S.C. § 794a;
because section 7702(e)(1) already incorporates section 717(c),
reference to the Rehabilitation Act would have been
superfluous. Reading section 7702(e)(1) to impose a
jurisdictional requirement would create the odd result that a
plaintiff alleging discrimination on the basis of disability, unlike
a plaintiff alleging a violation of any other civil rights law
identified in section 7702(a)(1)(B), would be foreclosed from
 9

seeking judicial review after the MSPB had failed to render an
appealable decision after 120 days. Moreover, interpreting the
concluding clause of section 7702(e)(1) as more than a
procedural limitation is incompatible with Congress’s intent to
set a timetable for the MSPB to decide “both the issue of
discrimination and the appealable action,” 5 U.S.C.
§ 7702(a)(1)(B), as it would deny the complainant a right to
enforce this timetable with respect to a portion of her claim.

Construing section 7702 to confer jurisdiction over all
elements of a mixed case is also consistent with the section’s
“treatment of mixed cases in previous stages of the process:
section 7702 explicitly requires the Board in appealable cases
alleging both discrimination and non-discrimination claims to
decide both issues,” Wiggins v. U.S. Postal Serv., 653 F.2d 219,
221-22 (5th Cir. 1981) (emphasis in original) (quotation marks
omitted). This holding also reflects the legislative history,
which states that “questions of the employee’s inefficiency or
misconduct, and discrimination by the employer, [are] two sides
of the same question and must be considered together,” Doyal
v. Marsh, 777 F.2d 1526, 1537 (11th Cir. 1985) (quoting S. Rep.
No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N.
2723, 2775); see also Williams v. Dep’t of the Army, 715 F.2d
1485, 1490 (Fed. Cir. 1983) (en banc) (quoting same). As this
court has observed, “discrimination and nondiscrimination
claims . . . are closely related both logically and as a factual
matter.” Hayes v. U.S. Gov’t Printing Office, 684 F.2d 137, 140
(D.C. Cir. 1982).

While this court has not yet addressed whether a district
court has jurisdiction over non-discrimination claims under
section 7702(e), it has long viewed “[t]he plain language of [5
U.S.C. §§ 7702-03] [to] suggest[] that a mixed case is to be
treated as a unit, and is to be brought before the district court.”
Id. at 139. The court in Hayes held that the district court rather
 10

than the court of appeals has jurisdiction over both
discrimination and non-discrimination claims when an employee
appeals a final decision by the MSPB. See id. at 139, 140 & n.2.
In Butler, the court similarly concluded that section 7702(e)
“clearly express[es] Congress’ desire that mixed cases should be
processed expeditiously, and that complainants should have
access to a judicial forum should their claims languish
undecided in the administrative machinery.” 164 F.3d at 640.
So long as “the complainant has neither deliberately abandoned
the administrative regime, . . . nor refused to cooperate in its
processes, . . . section 7702(e)(1)(B) explicitly sanctions a civil
action in the federal district courts once 120 days have passed
without a final decision from the MSPB.” Id. at 643. The court
reached this conclusion after observing that “[t]he MSPB and
EEOC regulations that structure the prosecution of mixed cases
are extremely complicated,” id. at 638, and outlining the
statutory “decision tree” to be applied, id. at 638-39.
Subsequently, in Evono v. Reno, 216 F.3d 1105, 1109 (D.C. Cir.
2000), the court followed this decision tree and again concluded
that “[s]ection 7702(e)(1) provides an employee with a right to
file a ‘mixed case’ in the district court.” Neither Evono nor
Butler, however, involved non-discrimination claims.

The Sixth and Eleventh Circuits have expressly held that the
district court has jurisdiction over non-discrimination claims
when agencies fail to meet the 120-day time line established by
section 7702(e)(1)(B). See Valentine-Johnson v. Roche, 386
F.3d 800, 808, 811, 813 (6th Cir. 2004); Seay v. TVA, 339 F.3d
454, 472 (6th Cir. 2003); Doyal, 777 F.2d at 1533, 1535-37.
Thus, in Seay, the Sixth Circuit held that the district court had
subject matter jurisdiction over non-discrimination claims where
the employer’s EEO office failed to act within 120 days and that
the plaintiff was not required to develop an administrative
record by appealing to the MSPB. 339 F.3d at 471-72.
Following Seay, the Sixth Circuit in Valentine-Johnson “rejected
 11

the argument that ‘nondiscrimination claims must always be
reviewed on an administrative record.’” 386 F.3d at 813
(quoting Seay, 339 F.3d at 472). In Doyal, the Eleventh Circuit
held that “the entire mixed case complaint was properly before
the district court,” 777 F.2d at 1537, and stated that “Congress,
through [] section [7702(e)(1)], has explicitly given the
employee certain rights and options, one of which is to file a
civil action based on his mixed case complaint before resorting
to the MSPB,” id. at 1536.

The Secretary’s analysis of Valentine-Johnson and Seay
hardly compels a contrary interpretation. Valentine-Johnson is
not a “solitary decision,” Appellee’s Br. at 27, and Seay does not
support his position that the district court lacked subject matter
jurisdiction over Dr. Ikossi’s complaint. In Seay, the Sixth
Circuit correctly stated that “[o]n-the-record review is required
for nondiscrimination claims . . .[that are] appealed from the
MSPB,” 339 F.3d at 472 (emphasis added), which would occur
under section 7703 addressing appeals where the MSPB has
ruled on the complainant’s claims. But Dr. Ikossi is not
appealing an MSPB decision but rather proceeding pursuant to
section 7702(e)(1) because the MSPB did not render a final
decision within 120 days of the filing of her administrative
appeal, and under that provision the district court may review
her entire mixed case without an administrative record. The
Secretary does not mention the Eleventh Circuit’s opinion in
Doyal (nor does Dr. Ikossi), and he has not cited any circuit
court of appeals decision (or, for that matter, any district court
opinion other than the one under review here) holding that the
district court lacks jurisdiction over the non-discrimination
aspects of a mixed case when a lawsuit is filed pursuant to
section 7702(e)(1). In Vanover v. O’Leary, 967 F. Supp. 1211,
1221 (N.D. Okla.1997), cited by the district court, Ikossi, 406 F.
Supp. 2d at 29, but not the parties here, the district court held it
could address the non-discrimination claims in a mixed case
 12

brought pursuant to § 7702(e)(1) only if the MSPB issued a final
decision before the district court disposed of the discrimination
claims. 967 F. Supp. 1220-21. Although we credit the district
court’s concern that it did not “have the expertise to address the
issue of whether a federal employee’s termination was for the
efficiency of the service,” id. at 1221; see Butler, 164 F.3d at
643, the appropriate action in that situation is not to dismiss for
lack of jurisdiction but rather to “stay the case, or hold it in
abeyance, for a reasonable period of time,” id. Insofar as
Vanover suggests that the district court lacks jurisdiction to
consider de novo the non-discrimination claims in a mixed case,
we disagree with its conclusion.

Moreover, the MSPB’s grant of Dr. Ikossi’s motion to
dismiss her mixed case does not, as the Secretary suggests, oust
the district court of jurisdiction. Dr. Ikossi cannot be deemed to
have abandoned her non-discrimination claims by filing a
motion in her administrative proceeding after she had filed her
civil suit; to the contrary, her motion was designed to avoid the
burden of concurrently litigating the same claims before both the
district court and the MSPB. The Secretary’s reliance on
Vinieratos v. U.S. Department of Air Force, 939 F.2d 762 (9th
Cir. 1991), is misplaced. In Vinieratos, the Ninth Circuit
affirmed the dismissal of the complaint because the plaintiff,
having elected an administrative remedy, failed to exhaust it by
“wholly obstruct[ing] both the previously initiated EEO efforts
and the MSPB’s efforts” and thus had effectively abandoned the
administrative proceedings. Id. at 770. Nothing in Vinieratos
suggests that filing a motion to dismiss in an administrative
forum can divest the district court of jurisdiction over a
previously filed complaint.

III.

Dr. Ikossi’s challenge to the dismissal of her pre-
 13

termination claims, however, fails. To be timely, she was
required within ninety days of the EEO dismissal of her
complaint either to appeal to the EEOC or to file a civil suit.
See 42 U.S.C. § 2000e-16(c). She did not appeal to the EEOC,
and although her initial complaint in district court was filed
within ninety days of the EEO dismissal, it did not raise her pre-
termination claims. Her second complaint, which did raise her
pre-termination claims, was filed on August 16, 2004, long after
the ninety-day period had expired.

Dr. Ikossi advances no persuasive argument that waiver,
estoppel, or equitable tolling applies. See Colbert v. Potter, 471
F.3d 158, 164 (D.C. Cir. 2006). She contends that her motion to
amend her initial complaint to add her pre-termination claims
should excuse her delinquency. But this motion was not filed
within ninety days of the dismissal. Alternatively she contends
that the MSPB was obligated to extend its jurisdiction over her
pre-termination claims after the EEO office dismissed her case,
and therefore the district court can exert jurisdiction over them
pursuant to section 7702(e)(1). Yet she never requested the
MSPB to consider these claims; her only filing with the MSPB
with respect to her pre-termination claims stated that they were
before the EEO office. Even assuming that the MSPB would
have had jurisdiction once the EEO office dismissed her pre-
termination claims on the stated assumption that she could raise
them as part of her mixed case, Dr. Ikossi still had to raise them
before the MSPB in order for section 7702(e)(1) to apply. Dr.
Ikossi’s contention that her termination claim, which was timely
filed, sufficed under National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002), to raise the panoply of her
pre-termination hostile work environment claims is also to no
avail, for Morgan does not suggest that a plaintiff can obtain
judicial review of an EEO decision outside of the ninety-day
period or raise a hostile work environment claim without first
exhausting her administrative remedies, see, e.g., Greer v.
 14

Paulson, 505 F.3d 1306, 1317-18 (D.C. Cir. 2007). Rather,
Morgan held merely that “[t]he timely filing provision only
requires that a Title VII plaintiff file a charge within a certain
number of days after the unlawful practice happened. It does
not matter, for purposes of the statute, that some of the
component acts of the hostile work environment fall outside the
statutory time period.” 536 U.S. at 117.

IV.

Dr. Ikossi’s challenge to the district court’s grant of
summary judgment to the Secretary before permitting discovery
pursuant to Rule 56(f) might present a closer question in the
absence of the district court’s jurisdictional error and with the
benefit of a complete administrative record, but we conclude
that she sufficiently demonstrated a need for discovery.

Rule 56(f) provides that:

If a party opposing the motion [for summary judgment]
shows by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition, the court
may: (1) deny the motion; (2) order a continuance to
enable affidavits to be obtained, depositions to be
taken, or other discovery to be undertaken; or (3) issue
any just order.

In Hackley v. Roudebush, 520 F.2d 108, 149 (D.C. Cir. 1975),
the court rejected the notion that a district court can ordinarily
resolve a Title VII complaint based on the administrative record,
noting the “substantial interests served by a fair and complete
judicial fact-finding process, replete with the tools of discovery
and compulsory process.” The court stated:

Rather than presuming that the record is properly the
 15

sole basis for decision, and that the plaintiff must
affirmatively establish his need for supplementation,
courts should focus on the employee’s complaint. The
administrative record should be admissible as one
piece of evidence concerning the issues raised in the
complaint, but the employee should have the right to
conduct discovery and compel the attendance of
witnesses to furnish additional evidence. The Federal
Rules accord the trial judge sufficient control over the
conduct of discovery and the trial that duplication of
proceedings — which serves no party’s interest —
should be minimal.

Id. at 151. More recently, in Chappell-Johnson v. Powell, 440
F.3d 484 (D.C. Cir. 2006), the court concluded that the district
court abused its discretion by granting summary judgment in a
Title VII case where the plaintiff had been afforded no
discovery, citing cautioning instruction from the Supreme Court
against premature grants of summary judgment, id. at 488
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002));
see also Holy Land Found. for Relief & Dev. v. Ashcroft, 333
F.3d 156, 165 (D.C. Cir. 2003); First Chi. Int’l v. United Exch.
Co., 836 F.2d 1375, 1379 (D.C. Cir. 1988).

Nonetheless, Dr. Ikossi had the burden to state with
“sufficient particularity to the district court — or, for that
matter, to this court — why discovery was necessary.” Strang
v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859,
861 (D.C. Cir. 1989). The affidavit filed by Dr. Ikossi’s
attorney identifies four individuals whom he wished to depose:
her supervisors at the NRL (Drs. Webb and Borsuk and Mr.
Boos) and a staff member at the NRL’s HRO. Although the
affidavit states that discovery is sought regarding their
motivations in taking disciplinary action against Dr. Ikossi, it
does not identify precisely what evidence it is hoped will be
 16

discovered. This lack of precision does not make any less self-
evident, however, the nature of the evidence Dr. Ikossi seeks;
Dr. Ikossi believes that the depositions of those four individuals
will produce additional evidence that the termination of her
employment was in retaliation for her pursuing an EEO
complaint and for exercising her FMLA rights and was
unlawfully motivated by gender, age, or national origin
discrimination. By providing an explanation for their actions,
the four individuals, all of whom were involved in the NRL’s
disciplinary process, may reveal their motives, which lie at the
heart of Dr. Ikossi’s discrimination claims.

In denying Dr. Ikossi discovery for failing to show that the
requested depositions would be “essential to justify [her]
opposition,” Ikossi, 406 F. Supp. 2d at 37 (quoting Fed. R. Civ.
P. 56(f)) prior to the 2007 amendment) (alteration in original),
the district court concluded that “[t]he record in this case is
extensive, and all of the major factual disputes appear to be quite
well fleshed out. Further, plaintiff . . . has already had at least
two opportunities to examine her three most promising proposed
witnesses under oath.” Id. at 36. However, neither reason
survives analysis. First, the record in the district court does not
appear to be as comprehensive as the district court’s conclusion
suggests. Fewer than twenty pages of the transcript of over 300
pages of the hearing before the administrative judge is in the
district court record. Of those pages, all but three are testimony
by Dr. Ikossi. The district court record also does not contain
affidavits from any of the four individuals named in the Rule
56(f) affidavit. Further, one of them did not testify before the
administrative judge and no testimony from a second appears in
the district court record.

Second, the pages of the transcript of the administrative
judge’s hearing before the district court do not indicate the scope
of the one-day hearing. Dr. Ikossi asserts that the hearing was
 17

“tightly constrained . . . so that the hearing could be completed
in one day,” Reply Br. at 13, an assertion the Secretary did not
contest during oral argument. Although her attorney’s affidavit
stated that none of the four individuals had been deposed, Dr.
Ikossi does not deny that three of them testified at the hearing.
Still, the district court record does not indicate whether Dr.
Ikossi was afforded a reasonable opportunity to cross-examine
those three. The other examination opportunity referenced by
the district court presumably was the EEO fact-finding hearing
on November 20, 2002 on Dr. Ikossi’s pre-termination claims.
But this hearing could not provide her with an opportunity to
elicit evidence about the termination of her employment because
it occurred months before Dr. Webb had proposed her removal
from federal service. Also, the district court record contains
only twenty-three pages of the EEO transcript, all but five of
which are testimony by Dr. Ikossi. Additionally, Dr. Ikossi
notes that the district court record contained a transcript of a
reference check conducted after the MSPB hearing, during
which Dr. Webb made comments about her national origin, and
she has never had an opportunity to question him about his
motives in view of this comment.

Further, because the district court ruled that it lacked
jurisdiction over Dr. Ikossi’s non-discrimination claims, it never
considered her request for discovery in light of all of the claims
that were properly before it. Although the claims in a mixed
case may be “closely related both logically and as a factual
matter,” Hayes, 684 F.2d at 140, they are not identical. It is true
that the district court record includes numerous documents and
reveals that Dr. Ikossi filed responses to Dr. Webb’s proposal to
terminate her employment. For example, Dr. Ikossi has
proffered emails authored by Dr. Webb, Dr. Dietrich, and Mr.
Boos. However, self-generated emails are hardly comparable to
testimony under oath. Given the key nature of testimony by the
witnesses whom Dr. Ikossi sought to depose, the limited record
 18

of the administrative proceedings before the district court and
the limited scope of those hearings, and the district court’s
misunderstanding of the claims properly presented to it, the
district court abused its discretion in denying Dr. Ikossi’s
request for reasonable discovery in this trial de novo.
Consequently, the grant of summary judgment was premature.

Accordingly, we affirm the dismissal pursuant to Rule
12(b)(6) of the pre-termination claims as untimely filed, and we
reverse the dismissal of the MSPB non-discrimination claims
pursuant to Rule 12(b)(1) and the grant of summary judgment on
the discrimination claims pursuant to Rule 56 and remand the
case to the district court.