Peterson v. McDonald
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 3/13/17. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 16-160-LPS
DAVID J. SHULKIN,l
Terrance Peterson, Newark, Delaware, Pro Se Plaintiff.
Charles M. Oberly, III, and Jennifer K. Welsh, Assistant United States Attorney, for the District of
Delaware, Wilmington, Delaware. Counsel for Defendant.
March 13, 2017
David J. Shulkin was confirmed as Secretary of Veterans Affairs, to succeed Robert
McDonald Secretary of Veterans Affairs, on February 13, 2017. Pursuant to Fed. R. Civ. P. 25(d)(1)
and 42 U.S.c. § 405(g), David J. Shulkin is automatically substituted as the defendant in this action.
Plaintiff Terrance Peterson ("Plaintiff") proceeds pro se. He filed this employment
discrimination action against the Secretary of Veterans Affairs ("Defendant"), pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.c. §§ 2000e, et. seq., ("Title VII"), the
Rehabilitation Act of 1973, as amended, 29 U.S.c. §§ 621, et seq., ("Rehab Act), and the Americans
with Disabilities Act of 1990,42 U.S.c. § 12101 et seq. ("ADA"). (D.l. 2) Presently before the Court
are Defendant's motion to dismiss and Plaintiff's motion to strike, as well as the parties oppositions
to both motions. 2 (D.l. 13, 14, 15, 16) For the reasons that follow, the Court will grant Defendant's
motion, deny Plaintiff's motion, and provide Plaintiff leave to file an amended complaint.
Plaintiff's federal employment was terminated on April 25, 2014. Plaintiff alleges
employment discrimination based upon race, sex, and disability. He also alleges malicious
prosecution, attempted Privacy Act violations, unfair labor practices, and violations of the Family
Medical Leave Act in conjunction with a reasonable accommodation. Plaintiff has filed multiple
EEOC complaints. He alleges that there is a pattern of targeting veteran whistle blowers and that
the Office of the Inspector General made a prosecution request based upon hearsay from
adversarial witnesses who were subjects of Plaintiff's EEO complaints. Plaintiff further alleges that
his EEO complaints were used as affirmative defenses in a Merit Systems Protection Board
("MSPB") appeal. The MSPB issued a decision on July 31, 2015. (D.l. 13 at Ex. B) Plaintiff
appealed his termination to the Office of Federal Operations on August 3, 2015. (See D.l. 4)
2Plaintiff moves to strike Defendant's answer. (D.l. 14) Defendant, however, did not fue an
answer to the Complaint; instead, he moves to dismiss. The Court will deny Plaintiff's motion, and
will consider it as an opposition to the motion to dismiss.
Plaintiff alleges that its February 25, 2016 decision was not made in accordance \.V'ith the law, and is
arbitrary, and capricious. The February 25, 2016 decision found that Plaintiff did not demonstrate
that he was subjected to reprisal or discrimination. (Id.)
Plaintiffs Title VII claim alleges that Defendant discriminated against him when he used his
veteran record to create the perception that he was a threat. Plaintiff alleges that he was subjected to
a malicious prosecution attempt by the Office of Inspector General after making disclosures to it.
Plaintiff alleges that he was profiled as a dangerous African American male. Plaintiff claims an ADA
violation based upon his termination from employment on April 24, 2014. Plaintiff explains that, on
December 18,2013, he was given a letter barring him from his facility, during a "supposed
investigation." He alleges that on June 5, 2014 a "flag" was placed in his record by a psychologist
who never evaluated him or performed testing on him and that the "flag" cited previous acts of
violence and threats. Plaintiff alleges that he was denied a reasonable accommodation as a result of
a FMLA (i.e., Family Medical Leave Act) request that was never reviewed and that the request
resulted in a criminal investigation by the Office of the Inspector General. Plaintiff alleges that the
Office of the Inspector General questioned and contacted a psychologist who Plaintiff had seen for
a work evaluation related to PTSD (i.e., post traumatic stress disorder) that Plaintiff contends was
induced by a hostile work environment of false allegations and threats.
Next, Plaintiff alleges police misconduct pursuant to 42 U.S.c. § 14141 and 18 U.S.c. §§ 241
and 242, when, on December 17, 2013, a special agent from the Office of the Inspector General
made a "prosecution request" based on hearsay evidence in violation of the FLRA (i.e., Federal
Labor Relations Authority) rules. Plaintiff alleges that the agency attorney had ex parte
communications and committed Brady violations. Finally, Plaintiff contends that a Philadelphia
Administrative Law Judge closed one of Plaintiff's EEO cases on February 23, 2016 and it was used
as an affirmative defense in the MSPB appeal, all in violation of his right to due process.
Because Plaintiff proceeds pro Je, his pleading is liberally construed and his Complaint,
"however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers." ErickJon 1). ParduJ, 551 U.S. 89,94 (2007) (internal quotation marks omitted).
Defendant moves for dismissal pursuant to Rule 12(b)(6).
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the
Court to accept as true all material allegations of the complaint. See Spruill tJ. GilliJ, 372 F.3d 218,
223 (3d Cit. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims." In re Burlington Coat factory Sec. Litig.,
114 F.3d 1410, 1420 (3d Cit. 1997) (internal quotation marks omitted). Thus, the Court may grant
such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as
true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio
Aetna, Inc., 221 F.3d 472, 481-82 (3d Cit. 2000) (internal quotation marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See AJhcnift
Iqbal, 556 L.S. 662 (2009); BellAtL Corp. v. Twombfy, 550 L.S. 544 (2007). A plaintiff must plead
facts sufficient to show that a claim has substantive plausibility. See lohmon
Gry if She/try, _U.S._,
135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the
legal theory supporting the claim asserted. See id. at 346.
Under the pleading regime established by Twomb!J and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are
not entided to the assumption of truth; and (3) when there are well-pleaded factual allegations,
assume theit veracity and then determine whether they plausibly give rise to an entidement to relief.
See ConnellY v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cit. 2016). Deciding whether a claim is
plausible will be a "context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679.
To survive a motion to dismiss under Fed. R. Civ. P. 12(b) (6), a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See
Williams v. BASF CatalYsts LLe: 765 F.3d 306, 315 (3d Cit. 2014) (citing Iqbal, 556 U.S. at 678 and
TwomblY, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 V.S. at 678. At bottom, "[t]he complaint must state enough facts to raise a
reasonable expectation that discovery will reveal evidence of [each] necessary element" of a
plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cit. 2008)
(internal quotation marks omitted).
Defendant moves for dismissal on the grounds that: (1) the complaint does not allege a
plausible Tide VII action; (2) the complaint does not allege a plausible ADA action; (3) there is no
private right of action nuder the Law Enforcement lYlisconduct statute; and (4) the due process
claim fails to state a claim and is not cognizable based upon sovereign immunity. In turn, Plaintiff
strike Defendant's motion on the grounds that the Defendant misrepresents facts. In
addition, Plaintiff sees leave to file an amended complaint.
Plaintiff alleges employment discrimination by reason of race and sex. To state a claim
under Tide VII for employment discrimination, Plaintiff must allege that: (1) he is a member of a
protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment
action; and (4) the adverse employment action occurred under citcumstances that give rise to an
inference of discrimination. See "NIcDonne!1 DOllglaJ- Corp. v. Green, 411 U.S. 792, 802 (1973). Plaintiff
need not comrince the court of any of these elements at the motion to dismiss stage, but must
submit more than "the naked assertion that he was discharged because" of his membership in a
protected class. See Santos v. Iron Mountain Film e::.,." Sound, 593 F. App'x 117, 119 (3d Cit. Nov. 25,
2014). To state a Tide VII retaliation claim, Plaintiff must allege that: (1) he engaged in conduct
protected by Tide VII; (2) his employer took an adverse action against him either after or
contemporaneous with the protected activity; and (3) a causal link exists between his protected
conduct and the employer's adverse action. See Slagle v. COllnty qfClarion, 435 F.3d 262, 265 (3d Cit.
The crux of a Tide VII claim is that an employee has been treated less favorably than others
on account of his race, color, religion, sex, or national origin. See Sarullo v. U.S. Postal Sero., 352 F.3d
789, 798 (3d Cit. 2003). Plaintiff's Complaint indicates his employment was terminated, and he
checked boxes on the complaint form that the discrimination was based upon race and sex. He
alleges retaliation when his veteran's record was used to create the perception that he was a threat.
Plaintiff makes reference to his race and gender in one instance when alleging that he believes he
was "profiled as a dangerous African American male." However, even when liberally construing
Plaintiff's allegations, as the Court must, the Complaint fails to state a Tide VII claim under any
theory. At most, Plaintiff alleges that he is a member of a suspect class and he suffered an adverse
employment decision, but even those allegations are nothing more than naked assertions.
Significantly, Plaintiff fails to allege that any alleged discrimination occurred because of his race or
sex. Plaintiff must plead facts that plausibly connect his race and sex to his discharge. The
Complaint fails in this regard.
In addition, the Complaint fails to state a retaliation claim under Title VII (to the extent that
is even Plaintiffs intent). It is far from clear that Plaintiff alleges that he engaged in conduct
protected by Title VII. Nor is the Court able to discern the adverse action Plaintiff alleges was taken
against him as a result of any protected activity. The Complaint further fails to allege the requisite
causal connection between Plaintiffs protected conduct and the employer's adverse action.
Plaintiff has failed to state Title VII claims and, therefore, the Court will grant Defendant's
motion to dismiss. However, since it appears plausible that Plaintiff may be able to articulate a Title
VII claim he will be given an opportunity to amend his pleading. 3
Plaintiff invokes the ADA in attempting to allege employment discrimination by reason of a
disability. However, a plaintiff alleging disability discrimination against a federal agency may only
bring an action under the Rehab Act. See Spence v. Straw, 54 F.3d 196, 197 (3d Cit. 1995)
(Rehabilitation Act is "exclusive means by which a plaintiff may raise claims against federal agencies
relating to handicap discrimination"). Given that Plaintiff proceeds pro se, the Court liberally
construes the Complaint as attempting to raise a claim under the Rehab Act.
3Included in Plaintiffs brief in support of his motion to strike is an amended complaint,
through which it appears Plaintiff attempts to cure his pleading defects. (OJ. 15) However,
Plaintiff may not amend his Complaint through his opposition brief, and new facts may not be
considered by the Court on the instant motion to dismiss. See Commonwealth rj'Pa. ex reL Zimmerman
v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cit. 1988) (citing Car Carriers, Inc. t'. Ford Motor Co., 745 F.2d
1101, 1107 (7th Cit. 1984)) ("[I]t is axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.").
In order to sustain a claim of discrimination under the Rehab Act, Plaintiff must show that:
(1) he has a disability; (2) he is otherwise qualified to perform the essential functions of the job, with
or without reasonable accommodations by the employer; and (3) he was nonetheless terminated or
otherwise prevented from performing the job. See Donahue v. Consolidated Rail Cop., 224 F.3d 226,
229 (3d Cir. 2000) (quoting Shiring v. Rutryon, 90 F.3d 827, 831 (3d Cir. 1996)). The Rehab Act
provides that the "standards used to determine whether this section has been violated in a complaint
alleging employment discrimination under this section shall be the standards applied under Title I of
the Americans with Disabilities Act of 1990." 29 U.S.c. § 794(d); see also Donahue, 224 F.3d at 229
("The elements of a claim under § 504(a) of the Rehabilitation Act are very similar to the elements
of a claim under Title I of the Americans \vith Disabilities Act....").
The Complaint fails to state an employment discrimination claim by reason of disability.
Plaintiff makes reference to threats and acts of violence that he committed, which resulted in him
being banned from the facility (presumably where he worked) and also refers to PTSD, but it is not
clear if the foregoing are "disabilities" that resulted in Plaintiff's removal from federal service. In
addition, the Complaint lacks allegations that Plaintiff is otherwise qualified to perform the essential
functions of the job, \vith or without reasonable accommodations by the employer. Plaintiff seems
to refer to the failure to accommodate when he was denied a request for leave under the Family
Medical Leave Act but, again, it is not clear.
As currently pled, the Complaint fails to state a claim under the Rehab Act. Therefore, the
Court \vill grant Defendant's motion to dismiss this claim. However, Plaintiff will be given leave to
Law Enforcement Misconduct Statute
The Complaint alleges violations of 42 U.s.c. § 14141 and 18 U.S.c. § 241 and § 242. Both
18 U.S.c. §§ 241,242 are federal criminal statutes and 42 U.s.c. § 14141 is found under the Violent
Crime Control and Law Enforcement Act. The Violent Crime Control and Law Enforcement Act
provides the Attorney General of the United States with the authority to initiate a civil action for
injunctive or declaratory relief against law enforcement agencies that have engaged "in a pattern or
practice ... that deprives persons of rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States." 42 U.S.c. § 14141 (a). The statute does not provide a
private right of action. See 42 U.s.c. § 14141(b). As a result, the claim is not cognizable.
Plaintiff also seeks relief pursuant to 18 U .S.c.
241 and 242, federal criminal statutes that
relate to conspiracy against civil rights and deprivation of rights under the color of law. Neither of
these criminal statutes provides a private cause of action or a basis for a civ-1.llawsuit. See Stem v.
Halligan, 158 F.3d 729 (3d Cir. 1998) (no private cause of action under 18 U.S.c. § 241); Davis v.
Warden Lewisbut;g USP, 594 F. App'x 60 (3d Cir. Feb. 10,2015) (same for 18 U.S.c. § 242). Because
there is no private right of action under 18 U.S.c. § 241 or 18 U.S.c. § 242, Plaintiff has failed to
state a cognizable claim upon which relief may be granted.
Accordingly, the Court will grant Defendant's motion to dismiss these claims.
Plaintiff appears to allege his due process rights were violated during EEO or MSPB
proceedings, but it is not clear. Regardless, a federal employee may not bring an action under the
Due Process clause for damages, equitable relief, or declaratory relief based on an employment
decision. The Civil Service Reform Act of 1978 ("CRSA") created an "elaborate and comprehensive
scheme" for the protection of federal employees' rights, and it is a federal employee's exclusive
remedy. See JV'right v. Hadrick, 90 F. App'x at 642 (citing Blish v. Lucas, 462 U.S. 367, 388-390 (1983).
See Semper v. Gome;:;;, 747 F.3d 229, 242 (3d Cir. 2014) (CSRA precludes federal employee from
litigating constitutional claims for equitable and declaratory relief); Wright v. Hadrick, 90 F. App'x
641,642 (3d Cir. Feb. 10,2004) (federal employee may not bring an action for damages based upon
constitutional violation involved in employment decision).
The Complaint fails to state a claim upon which relief may be granted. Therefore, the Court
will grant Defendant's motion to dismiss the due process claim.
For the above reasom, the Court will grant Defendant's motion to dismiss (DJ. 13) and will
deny Plaintiff's motion to strike (D.I. 14). All claims are dismissed. Plaintifhvill be given leave to
amend the Title VII and the Rehabilitation Act claims.
An appropriate Order will be entered.
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