United States District Court, D. Delaware
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.
U.S. District Judge
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. (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
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
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.
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.
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
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).
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.
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 ...