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Peterson v. Shulkin

United States District Court, D. Delaware

March 14, 2018

DAVD J. SHULKIN, Defendant.

          Terrance Peterson, Newark, Delaware, Pro Se Plaintiff.

          David C. Weiss, United States Attorney, 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 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.


         The 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.[1] 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;[2] Count Four, violation of the right to due process;[3] 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. (D.1.19)

         Plaintiffs 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.

         Plaintiff 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 discrimination. (Id.)

         Plaintiff 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)

         Plaintiff 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. (Id.)

         Plaintiff 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.)

         In 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 investigated.[4] (Id.)

         As a 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 ¶ 20)

         Plaintiffs 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 ΒΆ 20) Plaintiff alleges that he was ...

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