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Peterson v. Shulkin

United States District Court, D. Delaware

March 13, 2017

DAVID J. SHULKIN, [1]Defendant

          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.


          STARK, U.S. District Judge


         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.I. 2) Presently before the Court are Defendant's motion to dismiss and Plaintiffs motion to strike, as well as the parties oppositions to both motions.[2] (D.I. 13, 14, 15, 16) For the reasons that follow, the Court will grant Defendant's motion, deny Plaintiffs motion, and provide Plaintiff leave to file an amended complaint.


         Plaintiffs 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 Plaintiffs 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.I. 13 at Ex. B) Plaintiff appealed his termination to the Office of Federal Operations on August 3, 2015. (See D.I. 4) Plaintiff alleges that its February 25, 2016 decision was not made in accordance with 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 se, his pleading is liberally construed and bis Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 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 Spruillv. GilHs, 372 F.3d 218, 223 (3d Cir. 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. Utig., 114 F.3d 1410, 1420 (3d Cir. 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 v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

         A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); BellAtl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __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 Twombly 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 entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief, See Connelly v. Lane Const. Corp.,809 F.3d 780, 787 (3d Cir. 2016). Deciding whether a claim is plausible ...

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