Wilder v. U.S. Dep't of Veterans Affairs

• Decision Date: 31 March 2016
• Docket Number: No. 14-cv-10072 (RJS),14-cv-10072 (RJS)
• Parties: Tiza Wilder, Plaintiff, v. United States Department of Veterans Affairs, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

175 F.Supp.3d 82

Tiza Wilder, Plaintiff,

v.United States Department of Veterans Affairs, et al., Defendants.

No. 14-cv-10072 (RJS)

United States District Court, S.D. New York.

Signed March 31, 2016

Tiza Wilder, New York, NY, pro se.

Leigh Aaron Wasserstrom, U.S. Attorney's Office, Max Harrison Sicherman, Meyer, Suozzi, English & Klein, P.C., New York, NY, for Defendants.

OPINION AND ORDER

RICHARD J. SULLIVAN

, DISTRICT JUDGE

Plaintiff Tiza Wilder, proceeding pro se , brings this action primarily against (1) her former employer, the U.S. Department of Veterans Affairs (the “VA”), alleging discrimination on the basis of her race and sex in violation of federal, state, and local law, and (2) her former union, the American Federation of Government Employees, AFL-CIO, Local 1151 (the “Union”), alleging breach of the duty of fair representation in violation of federal law. Now before the Court are Defendants' motions to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)

, and for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. Nos. 35, 48.) For the reasons set forth below, the Court grants Defendants' motions and dismisses this action, with leave to amend with respect to Plaintiff's discrimination claim against the VA.

I. BACKGROUND

Plaintiff was employed by the VA from March 16, 2008 through April 16, 2013, when she was terminated for allegedly failing to complete the VA's “Annual Certification of Veteran Status and Veterans Relative” (the “VA Form”) and for failing to follow instructions. (Doc. No. 2 (“Compl.”) at 8; see also Doc. No. 2-18 (“April 10 Letter”).)¹ On May 6, 2013, Plaintiff challenged the VA's removal decision and sought reinstatement by filing a grievance complaint alleging an adverse personnel action through the negotiated grievance procedure established under a collective bargaining agreement (the “Collective Bargaining Agreement”) between the Union and the VA. (Doc. No. 2-24 (“Grievance Complaint”).) Thereafter, the VA denied Plaintiff's reinstatement request and, on June 3, 2013, Plaintiff invoked her right under the Collective Bargaining Agreement to have the Union bring her claim against the VA in arbitration. (See Doc. Nos. 2-26–2-28.) On June 11, 2013, after indicating that it would pursue her claim in arbitration, the Union did an about-face, informing Plaintiff that it would not be submitting her claims to arbitration on her behalf, and advising her that if she still wished to pursue arbitration against the VA, she must do so at her own expense. (Doc. No. 2-30.) On June 19, 2013, two days after the Union confirmed that it was closing her Grievance Complaint, Plaintiff appealed the denial of her Grievance Complaint to the Merit Systems Protection Board (“MSPB”). (Doc. No. 2-32.) On July 17, 2013, apparently at the MSPB's request, Plaintiff submitted two letters to the MSPB explaining why Plaintiff failed to timely file an appeal. (See id. ) At some point, the MSPB dismissed the appeal for lack of jurisdiction (see Compl. at 17; see also Doc. No. 39 at 2 n.2), although the timing and the specific basis for the dismissal remains unclear.

Thereafter, in July 2014, Plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that the VA had discriminated against her on the basis of her sex and terminated her under “false pretenses.” (See Compl. at 3.) On September 10, 2014, Plaintiff received a right to sue letter from the EEOC, and on December 2, 2014 (id. at 3–7), Plaintiff initiated this action by filing a standard-form employment discrimination complaint, along with thirty-nine exhibits attached thereto (collectively, the “Complaint”). (Doc. Nos. 2 and 2-1—2-39.)

In addition to the VA and the Union, the Complaint also names as Defendants numerous individual VA employees, including Doretha Turner, Joseph Corretjer, George Seper, Ira Tasman, Jivan Ji Kaur Soverall, Bruce Weston, Ana Davis, Michael Branam, and Arlyn De La Rosa (collectively, with the VA, the “VA Defendants”); the U.S. Department of Homeland Security (“DHS”) and DHS security officers assigned to the VA building where Plaintiff worked (collectively, the “DHS Defendants,” and with the VA Defendants, the “Federal Defendants”); and the Union and its former president, Anthony Jones (“Defendant Jones”) (collectively, the “Union Defendants,” and with the Federal Defendants, “Defendants”). In essence, the Complaint alleges that the VA Defendants discriminated against Plaintiff on the basis of her race and sex in violation of Title VII of the Civil Rights Act of 1964, and New York State and City law (Doc. No. 2 at 1–3), and that the Union failed to adequately represent her in the negotiated grievance procedure and arbitration process in violation of the Civil Service Reform Act of 1978 (the “CSRA”).

On July 22, 2015 and August 14, 2015, Defendants filed their motions to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)

, and for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. Nos. 35, 48.) These motions were fully briefed as of September 15, 2015. (See Doc. Nos. 36, 45, 49, 52, 54, and 56.)

II. LEGAL STANDARDS

In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(b)(6) motion, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). By contrast, a pleading that only “offers 'labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). If a plaintiff “ha[s] not nudged [her] claims across the line from conceivable to plausible, [her] complaint must be dismissed.” Twombly , 550 U.S. at 570, 127 S.Ct. 1955.

Moreover, in determining whether to dismiss a pro se complaint, a district court must construe the “pro se complaint[ ] ... liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Jackson v. County of Rockland , 450 Fed.Appx. 15, 18 (2d Cir.2011)

(citing Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir.2006) ). However, although pro se filings are read liberally and must be interpreted “to raise the strongest arguments that they suggest,” Pabon v. Wright , 459 F.3d 241, 248 (2d Cir.2006) (citation omitted); Osby v. City of New York , 633 Fed.Appx. 12, 13, 2016 WL 403410, at *2 (2d Cir. Feb. 3, 2016), a pro se complaint must still “plead sufficient facts ‘to state a claim to relief that is plausible on its face,’ ” Mancuso v. Hynes , 379 Fed.Appx. 60, 61 (2d Cir.2010) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

III. DISCUSSION

The Court liberally construes Plaintiff's Complaint to allege (1) a discrimination claim based on a hostile work environment on the basis of Plaintiff's race and sex in violation of federal, state, and local law, and (2) a claim against the Union Defendants for breach of the duty of fair representation arising from the Union's representation of Plaintiff in the negotiated grievance process under the CSRA. For the reasons set forth below, the Court dismisses the discrimination claim for failure to timely exhaust administrative exhaustion requirements under Title VII and dismisses the fair representation claim for lack of subject matter jurisdiction.

A. Title VII Public Employment Discrimination Claim

1. Statutory Framework

As an initial matter, when “discrimination is alleged [under] Title VII” by an aggrieved federal employee, the employee “must negotiate and exhaust the complex administrative regime that governs Title VII public employment cases in addition to the usual procedures for challenging an adverse personnel action under” the CSRA. Butler v. West , 164 F.3d 634, 638 (D.C.Cir.1999)

(citing Brown v. Gen. Servs. Admin. , 425 U.S. 820, 832–33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) ). The administrative requirements that a public employee must exhaust before seeking judicial review of her claims depends in part on “the nature of his claim.” Fernandez v. Chertoff , 471 F.3d 45, 53 (2d Cir.2006). Specifically, the framework established by the CSRA distinguishes between three types of claims that federal employees may assert against their federal employer: (1) “pure” adverse personnel action claims, (2) “pure” discrimination claims, and (3) “mixed” adverse action/discrimination claims, which “involve[ ] both a claim of discrimination and a challenge to other types of prohibited personnel actions taken by the [employer] agency that are ultimately appealable to the [MSPB],” including removal and an agency's denial of a reinstatement request. Id.

; see 5 U.S.C. § 7702.

An aggrieved public employee's exhaustion requirements also turn on which route she initially pursues to resolve her claims against a federal agency—either the “negotiated grievance” procedure pursuant to a collective bargaining agreement between a union and a federal employer, or the “statutory” procedure set forth under the CSRA. Fernandez , 471 F.3d at 52

. In general, the grievance procedure is “the exclusive administrative procedure for resolving grievances which fall within” the collective bargaining “agreement's coverage.” Id. (brackets omitted). However, if a federal...