United States District Court, D. Delaware
Terrance Peterson, Newark, Delaware, Pro Se Plaintiff.
C. Weiss, United States Attorney, 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 Sled this employment discrimination action
against the Secretary of Veterans Affairs
("Defendant"), pursuant to Tide VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et. seq., ("Tide VII"), the Rehabilitation
Act of 1973, as amended, 29 U.S.C. §§ 621, et
seq., ("Rehab Act"), and die Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. ("ADA"). (D.I. 2) The original Complaint
was dismissed on March 17, 2017 and Plaintiff was given leave
to amend. (D.I. 17, 18) On April 3, 2017, Plaintiff filed a
combined Amended Complaint and objection/reconsideration of
dismissal of claims of due process. (D.I. 19) Presendy before
the Court are Defendant's motion to dismiss and
Plaintiffs motion for order to establish jurisdiction, as
well as Plaintiffs opposition to the motion to dismiss. (D.I.
22, 23, 24) For the reasons that follow, the Court will grant
in part and deny in part Defendant's motion, deny
Plaintiffs motion for an order to establish jurisdiction,
deny Plaintiffs objection/motion for reconsideration, and
give Plaintiff leave to file a second amended complaint.
original Complaint contained numerous claims including
employment discrimination under Tide VII by reason of race
and sex. It also alleged employment discrimination by reason
of disability under the ADA which, given Plaintiff s pro
se status, the Court construed as a claim under the
Rehab Act. Plaintiff was given leave to amend die
Tide VII and Rehab Act claims. Plaintiff timely amended. The
Amended Complaint contains the following counts: Count One,
race discrimination under Tide VII; Count Two, disability
discrimination under the Rehab Act; Count Three, retaliation
under Title VII and the ADEA; Count Four, violation of the
right to due process; Count Five, hostile work environment under
Tide VII, the Rehab Act, and the ADEA; and Count Six,
retaliation under the Uniformed Services Reemployment Right
Act ("USERRA"), 38 U.S.C. §§ 4301-4335.
federal employment was terminated on April 25, 2014.
Plaintiff alleges employment discrimination based upon race
and disability, as well as retaliation, as an eligible
veteran male for having complained about discrimination.
Plaintiff alleges he was subjected to a hostile work
environment when sham investigations were initiated against
him after he made "protected disclosures" to the
Office of the Inspector General, two senators, and a
congressman. He further alleges he was not provided a
reasonable accommodation, was punished for requesting medical
leave, and was required to attend anger management based upon
a fraudulent investigation that used witnesses who were
subjects of his protected disclosures. Plaintiff alleges his
employment was terminated by Defendant, who sought a criminal
investigation based upon false allegations.
has filed multiple EEOC complaints. Plaintiff also 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.1.13 at Ex.
B) Plaintiff appealed his termination to the Office of
Federal Operations on August 3, 2015. (See D.I. 4)
The February 25, 2016 decision found that Plaintiff did not
demonstrate that he was subjected to reprisal or
was employed as a health technician at the VA in Wilmington,
Delaware. He worked in the specialty clinic and alleges he
was qualified for the position. Plaintiff alleges that he was
falsely accused of "performing out of the scope of [his]
position.” (D.I. 19 at ¶ 7) His first level
supervisor was Vanessa Covington ("Covington"), an
African American female, and his second level supervisor was
Ruthann Wolski ("Wolski"), a white female.
(Id. at ¶ 8) Plaintiff alleges that Covington
treated him differently from similarly situated employees and
she created a hostile work environment that included privacy
violations regarding Plaintiffs request for medical leave and
discussions Plaintiff had with a physician when Plaintiff
complained the physician was not following protocol.
(Id. at ¶ 9)
alleges he was transferred to a different department in
December 2012 at the request of Wolski. (Id. at
¶ 11) Plaintiff believes he was transferred to the
dialysis department for making protected disclosures and due
to an EEOC complaint that was at the hearing stage.
(Id.) He alleges Covington was aware that Plaintiff
had made disclosures regarding dialysis practices.
(Id. at ¶ 13) During this time, Plaintiff
contacted a senator's office and complained of
retaliation and that he was targeted due to his reporting of
VA practices. (Id.) Plaintiff made a report to the
Office of Inspector General about the practices.
(Id.) At the same time, he complained that Covington
refused to send him to training or promote him.
(Id.) A white male was selected to attend the
training, but the position for promotion was not created.
filed a hostile work environment and discrimination claim
based upon race and sex in January 2013. (Id. at
¶ 14) Plaintiff was transferred back to the specialty
clinic and alleges that the "hostility and retaliation
began by limiting [his] ability to move about the clinics and
work in different areas for coverage." (Id.)
Plaintiff alleges he was accused of not being in his assigned
area and "reported false allegations of threats."
(Id.) Plaintiff alleges that similarly situated
employees were not treated in this manner, and he was the
only health technician who had designated lunch times and had
his office changed for no reason. (Id.)
March 2013, Plaintiff complained to Human Resources about the
hostile work environment created by Covington. (Id.
at ¶ 15) Then VA director Daniel Hendee
("Hendee"), a white male, convened an
Administrative Investigative Board ("AIB") to
investigate the ENT department. (Id.) Plaintiff
alleges his hostile work environment claim was not
result of the AIB investigation, Plaintiff was ordered to
attend anger management. (Id. at ¶ 17)
Plaintiff alleges that he attended anger management in
September 2013, having taken the remainder of his shift to
attend. (Id. at 18) Covington called to inquire why
the anger management counselor had not seen Plaintiff.
(Id.) The counselor stated that Plaintiff was late;
Plaintiff alleges that he did not agree with the counselor,
told him he would reschedule, and left. (Id.) In
October 2013, Plaintiff was suspended for ten days (to take
place in December) for "conduct unbecoming a federal
employee for not attending anger management and was accused
of being hostile to the counselor." (Id. at
¶19) He later completed the anger management program.
(Id.) In October 2013, Plaintiff sought leave under
the Family Medical Leave act due to "continued
harassment and the discriminatory allegations of being angry
and a threat as an African American male and false claim of
operating out of his scope of duties." (Id. at
ten-day suspension took place from December 2, 2013 to
December 13, 2013. (Id. at ¶ 19) He returned to
work on December 15, 2013, and on December 18, 2013 was given
a letter stating that, effective December 17, 2013, he was
barred from the facility due to threats. (Id.)
Plaintiff alleges he was able to perform his duties as
assigned, but was barred from the facility as a pretext to
discharge him in retaliation for multiple complaints and
disclosures regarding the facility and its agent.
(Id. at ¶ 20) Plaintiff alleges that he was