Wade v. McDonald
| Decision Date | 18 September 2014 |
| Docket Number | Civil Action No.: 7:13-cv-394 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | WALTER BURKE WADE, Plaintiff, v. ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs, Defendant. |
MEMORANDUM OPINION2
Plaintiff, Walter Burke Wade ("Wade"), filed this action pro se alleging age discrimination, violations of his rights as a whistleblower and workplace retaliation at the Veterans Affairs Medical Center in Salem, Virginia ("Salem VAMC"). Defendant moved to dismiss Wade's claims under Fed. R. Civ. P. Rule 12(b)(1) for lack of subject-matter jurisdiction and under Fed. R. Civ. P Rule 12(b)(6) for failure to state a claim. For the reasons set forth below, I grant Defendant's motions and dismiss this action.
In February 2006, Wade was employed as a urologist at the Salem VAMC. Wade reported to administrators his concerns that nurses were disruptive in surgery and the impactsuch actions could have on patient care. Wade later lodged his concerns with U.S. Congressman Bob Goodlatte, which prompted Congressman Goodlatte to write to the Salem VAMC and to request an explanation regarding Wade's disclosures.
On February 2, 2007, Wade wrote a letter to the Salem VAMC Acting Chief of Staff, Dr. Maureen McCarthy, reiterating his concerns about disruptive behaviors at the Salem VAMC and its impact on patient care. A month later in March 2007, the Salem VAMC charged Wade with disrespectful conduct related to incidences of inappropriate and unprofessional conduct. Wade's supervisor, Dr. Gary Collin, proposed suspending Wade for ten (10) days and on May 30, 2007, Dr. Collin issued a letter suspending Wade without pay from June 4 through June 14, 2007. Wade then filed an age discrimination complaint with the Equal Employment Opportunity Commission (EEOC) office asserting that the Salem VAMC suspended him because of his age.
When Wade returned from his suspension, the Salem VAMC notified him that he was under investigation regarding multiple allegations of patient abuse; specifically, that Wade had inappropriately exposed a patient and intentionally hurt a patient in surgery. Wade contends that Dr. McCarthy informed him that if he did not voluntarily resign, the Salem VAMC would present the accusations of patient abuse to the hospital board with a recommendation that he be fired. Ultimately, Wade chose to resign his position at the Salem VAMC on June 30, 2007. At the time of his resignation, Wade was sixty five years old.
After his resignation, Wade applied to positions at more than twenty VA medical centers. Some of the VA medical centers simply rejected Wade's application. Others extended to Wade a tentative employment offer, but each of those offers were subsequently rescinded. Wade claims that the Salem VAMC retaliated against him for complaining to Congressman Goodlatte and for filing an EEOC charge relating to the 10 day suspension by engaging in efforts to undermine hiscareer by providing negative, misleading and false information to prospective employers, which prevented him from being hired for the positions he sought.
Wade also claims that his supervisor, Dr. Collin, had an age-related animus toward him and gave negative employment references to prospective employers. Wade bases this claim on a statement Dr. Collin made in an earlier unrelated legal proceeding that Wade "could not do the work of younger urologists." Dkt. No. 2. Wade further asserts that Dr. Collin told a prospective employer that Wade could not do the work unless he was limited to clinic work, which Wade relates to his age. Dkt. No. 2.
Wade has filed multiple administrative charges, including two EEOC charges and three Merit Systems Protection Board ("MSPB") challenges seeking to address the various wrongs he claims to have suffered at the Salem VAMC.
On June 27, 2007, Wade appealed his 10 day suspension to the MSPB, and he later amended his appeal to challenge his retirement from the Salem VAMC claiming that he was forced to retire (the "First MSPB Appeal"). Dkt. Nos. 35-1 and 35-3. On August 16, 2007, the MSPB dismissed Wade's claim for lack of jurisdiction, finding that a 10 day suspension is not appealable to the MSPB,4 and that Wade failed to assert non-frivolous allegations that he resigned involuntarily. Dkt. No. 35-3. Wade filed a Petition for Review, and on December 17, 2007, the MSPB issued a Final Order denying Wade's claim and notifying him of his right to appeal to the Federal Circuit within 60 days. Dkt. No. 35-5. Wade did not appeal this decision.
On July 23, 2007, Wade filed a second appeal with the MSPB, alleging unspecified harassment by the VA in reprisal for whistleblowing activity related to his disclosures to Congressman Goodlatte (the "Second MSPB Appeal"). Dkt. No. 35-7. On September 11, 2007, the ALJ dismissed this claim for lack of jurisdiction, finding that Wade failed to exhaust his administrative remedy, and failed to make non-frivolous allegations that he engaged in protected whistleblowing activity and that a protected disclosure was a contributing factor in his 10 day suspension. Dkt. 35-8. Wade did not appeal this decision.
On November 14, 2013, Wade filed a third MSPB claim alleging that officials at the Salem VAMC willfully obstructed him from securing employment elsewhere in retaliation for his protected whistleblowing activity regarding his disclosures to Congressman Goodlatte (the "Third MSPB Appeal"). On January 13, 2014, the ALJ entered an Order to Show Cause why these were not collaterally estopped by denial of the Second MSPB Appeal. Dkt. No. 35-10. This claim is still pending before the MSPB.
On May 23, 2007, Wade filed a complaint with the EEOC alleging harassment and discrimination related to his 10 day suspension, Dkt. No. 27-9, but withdrew this complaint on August 13, 2007. Dkt. No. 27-8.
In November 2009, Wade filed a second complaint with the EEOC alleging that he was not being hired at other VA facilities because of age discrimination and in retaliation for filing a an EEOC complaint for age discrimination while he was at the Salem VAMC. Dkt. 27-1.
The Equal Employment Opportunity Commission ("EEOC") held a hearing on February 28, 2012 regarding Wade's complaints, and on May 12, 2012, the ALJ denied Wade's claim in a written decision. Dkt. No. 27-8. The ALJ defined Wade's claim as whether the VAdiscriminated against him on the basis of age and reprisal (prior EEO activity) when he was not selected for four medical positions at other VA facilities: 1) Staff Care position in Anchorage, Alaska in April 2009; 2) Urologist in West Palm Beach, Florida in June 2009; 3) Urologist at Memphis, Tennessee in June 2009; and 4) locum tenens position in Anchorage, Alaska in December 2009.5 Dkt. No. 27-8, 30-5, p. 6. The ALJ concluded that neither Dr. McCarthy nor Dr. Collin either discriminated or retaliated against Wade by attempting to affect his applications for medical positions at other VA facilities.
Wade requested reconsideration of the decision, and on June 6, 2013, the EEOC denied Wade's request and notified him of his right to file a civil action in the appropriate United States District Court within ninety calendar days. Dkt. No. 5, p. 2. Wade filed this action on August 22, 2013.6
II.
Defendant moves to dismiss Wade's claims under Rule 12(b)(1) on the ground that the court lacks subject matter jurisdiction where Wade has failed to exhaust his available administrative remedies. See Stoyanov v. Mabus, CIV WDQ-07-1764, 2009 WL 4884518, at *2 (D. Md. Dec. 9, 2009)( that the failure to exhaust administrative remedies deprives federal courts of subject matter jurisdiction over claims arising under Title VII of the Civil Rights Act of 1964, as amended ("Title VII") 42 U.S.C. § 2000e-3(a), the Age Discrimination inEmployment Act, ("ADEA") 29 U.S.C. § 621, et seq., and the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302(b)(8)).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be granted if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When a court considers subject matter jurisdiction, the burden of proof is on the plaintiff to establish that the court has subject matter jurisdiction. Id. Additionally, in determining whether jurisdiction exists, the court is instructed to "'regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Id. (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).
The Whistleblower Protection Act of 1989 was "enacted for the purpose of protecting federal employees who disclose government illegality, waste, and corruption." McKinney v. Reich, Civ. A. No. 5:95-0160, 1996 WL 498187, at *2 (S.D.W. Va. Mar. 25, 1996)(quoting 5 U.S.C. § 1201). The WPA includes an individual right of action for certain personnel actions (those proscribed in 5 U.S.C. § 2303(b)(8)), and provides that the administrative remedy mechanism to challenge an adverse employment decision in violation of the WPA is through the MSPB. 5 U.S.C. § 1221(a); see also McKinney, 1996 WL 498187, at *3.
The MSPB is created by the Civil Service Reform Act, which includes a detailed administrative scheme to resolve complaints and creates the MSPB administrative appellate authority. 5 U.S.C. §§ 7501-7703; Sloan v. West, 140 F.3d 1255, 1259 (9th Cir. 1998). Certain federal employees may administratively appeal to the MSPB adverse employment decisionsinvolving removal, suspension for more than 14 days, reduction in...
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