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Peterson v. Shulkin

United States District Court, D. Delaware

March 12, 2019

DAVDJ. 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.




         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., ("Tide 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) 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. (D.I. 19) Counts One, Two, Four, Five, and Six of the Amended Complaint were dismissed on March 14, 2018, and Plaintiff was given one final opportunity to amend to cure pleading defects. (D.I. 26) Plaintiff filed a Second Amended Complaint on March 15, 2018. (D.I. 27) Presendy before the Court is Defendant's motion to dismiss and Plaintiffs opposition to the modon. (D.I. 30, 31) For die reasons that follow, the Court will grant the motion.


         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 and, upon motion, all claims except Count Three were dismissed. Plaintiff was given one final opportunity to amend to cure die pleading defects in Count One (attempting to raise a race discrimination claim), Count Two (attempting to raise a Rehab Act claim), and Count Five (attempting to raise a hostile work environment claim).

         The Second Amended Complaint contains three Counts: Count One, race discrimination under Title VII; Count Two, disability discrimination under the Rehab Act; and Count Three, hostile work environment under Title VII. (D.I. 27) It does not contain a prayer for relief.[2]

         Count One, race discrimination, alleges that Plaintiff is a Black American male, who was qualified for his position at the VA and was terminated from his position for making protected disclosures that involved VA medical practices affecting patient safety. Plaintiff alleges: his supervisor instilled fear and created a hostile work environment with false allegations of threats; Plaintiff was barred from returning to work; the VA did not investigate Plaintiffs allegations of false threats; and it intimidated Plaintiff with a threat of prosecution that involved the U.S. Attorney's Office. (D.I. 27 at 2)

         Count Two, disability discrimination, alleges that Plaintiff had a medical appointment with a clinical social worker on November 13, 2013 for an evaluation for post-traumatic stress disorder, depression, and anxiety, "created from a long period of a hostile work environment caused by repeated false accusations of threats." (D.I. 27 at 3) On November 15, 2013, a special agent spoke to the social worker regarding Plaintiffs mental status and created an impression that Plaintiff was mentally unstable. This had an impact on Plaintiffs employment. The VA Director barred Plaintiff from the VA on December 13, 2013, stating that Plaintiff was a danger to himself and others. (Id. at 3) Plaintiff alleges the VA interfered with his treatment process, and he had to cancel all VA appointments because of privacy violations and unauthorized users (i.e., law enforcement) on VA's systems of records.

         Count Two also alleges that on June 6, 2014, a psychologist flagged Plaintiffs veteran record, which required Plaintiff to have a police escort. Plaintiff alleges this caused anxiety and undue stress that created medical problems. The Complaint alleges the psychologist's documentation is discriminatory and defaming. He also alleges the VA disseminated information to NCIS regarding firearm inquires, and the VA sent a firearm inquiry to Plaintiffs home address. Plaintiff alleges these intrusions violated his Second Amendment rights, which had nothing to do with his employment (Id. at 3-4)

         Count Three, hostile work environment, alleges that the VA and its agents, including the Office of the Inspector General, created an offensive and hostile environment when Plaintiff was accused of being threatening, and used his veteran's record and false statements to document assessments made by a psychologist, who stated that Plaintiff was unable to control his behavior and that he was a danger to himself and others. Plaintiff alleges a special agent relayed the untrue information to the U.S. Attorney's Office and there was a request to prosecute Plaintiff. He further alleges there was an invasion of privacy, as his veteran's record which has nothing to do with employment. Plaintiff alleges the VA and the U.S. Attorney's Office abused the Fourth Amendment to create this impression, and they used the judicial process to obfuscate criminal conduct (i.e., seizing his veteran's record to characterize Plain tiff in a discriminatory and abusive way), in violation of 18 U.S.C. § 1519 and 42 U.S.C. § 1983.[3] Plaintiff adds that he has endured sham investigations that falsely accused him and that it is known throughout the VA that officials use the same tactics against other VA whistleblowers. Plaintiff alleges that one whistleblower, a white male, was treated similarly but was reinstated. Plaintiff alleges the VA Secretary publicly stated that he was in contact with all whistleblowers, but Plaintiff was never contacted.

         Defendant moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that none of Plaintiff s stated claims is facially plausible. (D.I. 30)

         III. ...

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