The opinion of the court was delivered by: Cercone, J.
This matter comes before the Court on the Defendants' Partial Motion to Dismiss (Document No. 3), the Defendants' Motion to Strike the Plaintiff's Demand for a Jury Trial (Document No. 5), the Plaintiff's Motion to Assess Costs (Document No. 14), the Defendants' Renewed Motion to Dismiss the Plaintiff's Tort Claims (Document No. 35), and the Defendants' Renewed Motion to Strike the Plaintiff's Demand for a Jury Trial (Document No. 37).
Plaintiff Kim Ronce Shaffer ("Shaffer") commenced this action against Secretary of Veterans Affairs R. James Nicholson ("Nicholson") and the United States of America on March 8, 2007. Doc. No. 1. Since that time, James B. Peake has replaced Nicholson as the Secretary of Veterans Affairs. Consequently, pursuant to Federal Rule of Civil Procedure 25(d), Secretary Peake has been automatically substituted for Nicholson as a party in this case. Fed. R. Civ. P. 25(d). Since this matter comes before the Court in the present procedural posture, the allegations in Shaffer's complaint are assumed to be true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499, 2509 (2007). Although "heightened fact pleading of specifics" is not required, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Shaffer is an adult male who resides in Butler, Pennsylvania, and is employed by the Veterans Affairs Medical Center ("VAMC") in Butler. Doc. No. 1, ¶ 1. When this action was commenced, he was seventy-four years of age. Id., ¶ 4. Shaffer is a licensed dentist in good standing in the Commonwealth of Pennsylvania, and he has been employed by the Butler VAMC since 1971. Id. He was appointed as a dentist pursuant to 38 U.S.C. § 7401(1), and he completed his probationary period in 1973. Id., ¶ 5. Since his appointment, Shaffer has been consistently rated as "qualified" to perform his duties in his annual performance evaluations. Id., ¶ 6. He has also received awards for his performance. Id.
Since 2000, Linda Thompson ("Thompson") and Tracy Boyle ("Boyle") have been employed as dental assistants to both Shaffer and a younger, female dentist. Id., ¶ 7. Their duties have included preparing operating rooms and patients, passing instruments to the dentists, and ensuring that all rooms, instruments and equipment remain clean. Id. David Wood ("Wood") is also employed by the Department of Veterans Affairs. Id., ¶ 8. At one point, he was the Director of the Butler VAMC. Id. As such, he was responsible for supervising agency personnel on behalf of Charleen R. Szabo ("Szabo"), who was the Director of the Veterans Integrated Services Network ("VISN"). Id. Varsha Mehta ("Mehta") is the Butler VAMC's Chief of Staff. Id., ¶ 9. At all relevant times, she was responsible for supervising agency personnel on behalf of the Director of the Butler VAMC. Id. Although she is not a dentist and holds no qualifications in the field of dentistry, Mehta is Shaffer's immediate supervisor. Id., ¶ 10. The Butler VAMC has not had a Chief of Dental Service to supervise dental employees since 1998. Id., ¶ 11. For this reason, Thompson and Boyle have been supervised by a respiratory therapist who has no dental background. Id., ¶ 12. In 2004, this respiratory therapist completed all performance evaluations for members of the dental staff, including those for Shaffer, Thompson and Boyle. Id., ¶ 13.
Shaffer alleges that, during the spring of 2005, Thompson and Boyle decided that they no longer wanted to work for him. Id., ¶ 14. They allegedly conspired to engage in a pattern of conduct designed to make Shaffer's work environment hostile and, ultimately, to force the termination of his employment. Id. On March 10, 2005, Thompson and Boyle made false allegations about Shaffer to Wood and Mehta. Id., ¶ 15. These allegations were made both orally and in writing. Id. Thompson and Boyle claimed that Shaffer could not perform his duties as a dentist because of mental confusion, shaky hands, and poor eyesight. Id., ¶ 16. They also contended that he was slow and ineffectual, that he lacked competence, that he did not show enough empathy to his patients, and that he had injured patients without completing required reports about such injuries. Id. The most serious allegations lodged against Shaffer by Thompson and Boyle included statements that he had used dental instruments on patients until they were visibly bloody, and that he had been spreading loathsome diseases to his patients. Id.
Shortly thereafter, Wood and Mehta agreed that Shaffer should be put on an indefinite administrative leave, and barred from the Butler VAMC, until after a non-evidentiary hearing before three agency employees. Id., ¶ 17. They did not consult anyone with expertise in the field of dentistry before taking this action. Id. Despite the allegedly "intolerable" conditions placed on Shaffer, he did not resign. Id., ¶ 18. Shaffer received a hand-delivered summons at his home on March 14, 2005, directing him to appear for a hearing the following day. Id., ¶ 19. He was not informed of the charges against him, nor was he provided with written notification of the summary suspension of his privileges. Id. These omissions apparently constituted violations of agency policies. Id.
A non-evidentiary hearing was held on March 15, 2005, before a panel of three employees, none of whom were dentists. Id., ¶¶ 17, 20. Thompson and Boyle both testified at the hearing, making false accusations against Shaffer. Id., ¶ 20. Because the members of the panel were not dental experts, they took no action after the hearing. Id., ¶ 21. Wood responded in May 2005 by convening a panel of experts in the field of dental infection control to investigate the allegations against Shaffer. Id., ¶ 22. This panel included an agency infection control physician and three dentists. Id. Two of the dentists were employed by the Department of Veterans Affairs, while the third was employed by the United States Air Force. Id. The expert panel found the allegations against Shaffer to be without merit, determining that they had been motivated by a discriminatory animus and recommending that Shaffer's patients not be notified of the investigation. Id., ¶ 23.
Shaffer returned to work on May 23, 2005. Id., ¶ 24. The Department took no action to remedy the "discrimination" against him. Id. Thompson and Boyle refused to provide Shaffer with assistance. Id. Shaffer informed Mehta about the situation and requested further assistance, but his request was ignored. Id. Notwithstanding the expert panel's recommendation to the contrary, Wood sent letters to 2,086 former patients on June 9, 2005, advising them to call a help-line created for those believed to have contracted loathsome diseases from Shaffer during the previous six years. Id., ¶ 25. A staff meeting was held on June 20, 2005. Id., ¶ 26. At that meeting, Mehta ridiculed and demeaned Shaffer in front of the entire dental staff, referring to him as slow, ineffectual and incompetent. Id. She allegedly said this while knowing that Shaffer was both competent and productive, and that his patients were pleased with his services. Id. Throughout the spring and summer of 2005, Wood repeated several false allegations made by Mehta, Thompson and Boyle about Shaffer to numerous individuals. Id., ¶ 27. One such communication was made in the form of an electronic mail message to all employees of the Butler VAMC. Id. Wood also made statements about Shaffer to several dentists and public officials, as well as to the Pennsylvania Department of Health and the Joint Commission on Accreditation of Health Organizations ("JCAHO"). Id.
In August 2005, Mehta withheld Shaffer's application for the renewal of his professional privilege to work as a dentist at the Butler VAMC. Id., ¶ 28. This action allegedly constituted a violation of agency policy. Id. On September 21, 2005, Mehta made statements to the television, radio and newspaper media indicating that a member of the Butler VAMC's dental staff may have caused patients to contract loathsome diseases by using unsterilized equipment. Id., ¶ 29. The next day, Thompson and Boyle submitted to Wood and Mehta a list of false allegations against Shaffer involving sixty new patients. Id., ¶ 30. These allegations were based on notes which had been secretly compiled by Thompson and Boyle over a period of four months. Id. Wood and Mehta responded on September 23, 2005, by placing Shaffer on a directed reassignment to nonprofessional duties. Id., ¶ 31. They did not discuss the new allegations with a dental expert, nor did they provide Shaffer with a written notification of the suspension of his privileges. Id.
On September 27, 2005, Wood directed Anne M. Mikolajczak ("Mikolajczak"), an employee of the Butler VAMC, to repeat the new allegations made by Thompson and Boyle to the sixty patients appearing on the list which had been submitted five days earlier. Id., ¶ 32. In accordance with Wood's instructions, Mikolajczak recorded the responses of these patients in the form of written incident reports. Id. She also notified dentists in the community that Shaffer could not see his patients. Id. One day later, on September 28, 2005, Mikolajczak telephoned Shaffer to inform him that he was being terminated, and that he should submit his professional license to Wood. Id., ¶ 33. She made this telephone call pursuant to Wood's instructions. Id. After the passage of a few days, Wood informed the JCAHO that Shaffer was being terminated because of his alleged incompetence in the field of dentistry. Id., ¶ 34.
During the fall of 2005, Wood and Mehta forwarded false information about Shaffer (based on the September 22, 2005, list prepared by Thompson and Boyle) to a dentist employed by the Department in Philadelphia, Pennsylvania, for "peer/clinical reviews." Id., ¶ 35. Shaffer was not given an opportunity to respond. Id. On October 31, 2005, Shaffer requested counseling with the Department's Office of Resolution Management ("ORM") for Equal Employment Opportunity ("EEO") claims, naming Mehta as the responding authority for the Department. Id., ¶ 36. Mehta served Shaffer with a Notice of Proposed Discharge on November 23, 2005, based on three charges related to the prior allegations made by Thompson and Boyle. Id., ¶ 37. These charges were related to accusations that Shaffer abused his patients, exposed them to loathsome diseases by failing to adhere to appropriate infection control practices, and failed to obtain their informed consent before performing operations. Id. The Notice of Proposed Discharge also referenced the peer/clinical reviews. Id.
Shaffer, through his legal counsel, wrote a letter to Szabo on December 8, 2005, stating that at least five employees of the Butler VAMC were acting in concert to have him fired and publicly humiliated. Id., ¶ 38. He asked her to take control of the situation. Id. A few days later, Shaffer served a request for documents on the Butler VAMC pursuant to the Freedom of Information Act ("FOIA") [5 U.S.C. § 552]. Wood advised Shaffer that he would have to pay $24,423.50 to initiate the document production process, and that the documents would not be available until December 13, 2014. Id., ¶ 40. This effectively deprived Shaffer of a legitimate opportunity to defend himself. Id.
Shortly before December 15, 2005, Shaffer took his dental appointment book to the area in which he was assigned to work. Id., ¶ 41. He did this in order to prepare for a session which had been called for the purpose of mediating his EEO claims. Id. On December 20, 2005, Mehta demanded that Shaffer turn over his dental appointment book. Id., ¶ 42. She denied his request for time to speak with his counsel, referring to his resistance as "insubordinate." Id. She indicated that Shaffer's continued possession of the appointment book constituted an improper possession and use of government property. Id. That same day, Mehta withdrew the original Notice of Proposed Discharge and reported Shaffer to the Regional Counsel and Office of Inspector General ("OIG") for possessing his appointment book to prepare for the EEO mediation session. Id., ¶ 43. She sought the imposition of both a ten-year prison sentence and a $250,000.00 fine against Shaffer. Id. The agency staff attorney who was representing the Department in the EEO matter sent Shaffer's counsel a letter referring to Mehta's charge concerning the appointment book. Id., ¶ 44. The letter stated, in pertinent part, as follows:
In case you are unaware, violations of [HIPPA] calls for severe civil and criminal penalties for non-compliance, including . . . fines up to $250,000 and for imprisonment for up to 10 years . . . The decision to seek prosecution [of] a VA employee for violating HIPPA would be made by the Inspector General in collaboration with the US Attorney.
It is my understanding that the Inspector General's office has not yet made a decision whether to refer the matter to the U.S. Attorney for prosecution.
Id. (brackets in original averment). A copy of this letter was given to Shaffer. Id.
Shaffer filed an administrative complaint with the ORM on January 25, 2006, alleging that he was being subjected to unlawful discrimination based on age and gender. Id., ¶ 45. On February 13, 2006, Shaffer received a letter from the ORM stating that his EEO claim had been accepted for investigation. Id., ¶ 46. The next day, Mehta issued to Shaffer a second Notice of Proposed Discharge, which included three additional charges. Id., ¶ 47. The additional charges alleged Shaffer's unauthorized possession of government property, his unauthorized use of government property, and his insubordination. Id. Wood discharged Shaffer on March 2, 2006, based on the six charges in both Notices of Proposed Discharge prepared by Mehta and on the peer/clinical reviews. Id., ¶ 48.
On March 3, 2006, Wood and Mehta recorded that Shaffer was absent without leave ("AWOL"), ignoring a letter from Shaffer's counsel seeking information about their expectations for him. Id., ¶ 49. Shaffer appealed his discharge pursuant to 38 U.S.C. §§ 7461-7464. Id., ¶ 50. A Disciplinary Appeals Board ("DAB") comprised of three Department employees (two of whom were dentists and the third of whom was a physician) heard Shaffer's appeal at an evidentiary hearing which lasted from May 22-23, 2006. Id. On August 18, 2006, the Department made a final agency determination adopting the recommendations of the DAB. Id., ¶ 51. The DAB found that the new allegations made against Shaffer by Thompson and Boyle were not credible, and that they had probably been made on the basis of ulterior motives. Id. The determination vacated Shaffer's discharge, ordered that he be immediately reinstated with back pay, indicated that he should be disciplined with a "written counseling" in his personnel file for possessing the appointment book, and directed that an investigation be conducted into his competence based on the peer/clinical reviews. Id. The peer/clinical reviews had apparently not been used as a part of the Department's case-in-chief before the DAB. Id.
Although Shaffer received the determination ordering his immediate reinstatement on September 22, 2006, he did not receive instructions to return to duty. Id., ¶ 52. On November 2, 2006, he received a letter from the Department directing him to report for clerical reassignment while a Professional Standards Board ("PSB") was convened to investigate the allegations made by Thompson and Boyle, which had been included in the ex parte peer/clinical reviews. Id., ¶ 53. Since that time, Shaffer has been allowed to perform only clerical duties which bear no relationship to his training as a dentist. Id.
At approximately 4:00 P.M. on January 9, 2007, the Department served Shaffer with a summons to testify at a PSB hearing on January 12, 2007. Id., ¶ 54. The next day, Shaffer's counsel, who could not attend the hearing, filed a request for a continuance. Id., ¶ 55. Shaffer's counsel also filed various objections with the Department, alleging various violations of federal constitutional and statutory law. Id. The PSB nevertheless held a non-evidentiary hearing at the Butler VAMC on January 12, 2007, before two dentists and a psychiatrist employed by the Department. Id., ¶ 56. Thompson and Boyle were allowed to testify in secret. Id. Thus, Shaffer was not able to hear their testimony, nor was he able to confront them. Id.
Shaffer alleges that he has not been permitted to return to his duty as a dentist, and that he has been deprived of a statutory entitlement to practice his profession since September 23, 2005. Id., ¶ 59. He avers that the conduct of Wood, Mehta, Thompson and Boyle was motivated by an animus based on age and gender. Id., ¶ 60. As a result of this conduct, Shaffer has allegedly suffered damage to his professional reputation, a loss of earning power, extreme humiliation and emotional distress. Id., ¶ 61. The relevant employees of the Department are alleged to have been acting within the scope of their employment. Id., ¶ 62.
Shaffer commenced this action against Nicholson and the United States on March 8, 2007. Doc. No. 1. His Complaint includes twelve counts. The first three counts are based on alleged violations of the Age Discrimination in Employment Act ("ADEA") [29 U.S.C. § 621 et seq.]. In Count I, Shaffer alleges a violation of the ADEA pursuant to a hostile work environment theory. Id., ¶¶ 63-73. Count II asserts a claim under the ADEA for disparate treatment, while Count III is based on a theory of retaliation for Shaffer's exercise of his rights under the ADEA. Id., ¶¶ 74-79. In Count IV, Shaffer alleges that the Defendants' intentional discrimination against him because of his age violated his rights under 42 U.S.C. § 1981a. Id., ¶¶ 80-85. Counts V through VIII are based on allegations of gender discrimination. Id., ¶¶ 86-104. Counts V, VI and VII allege that the Defendants violated Shaffer's rights under Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. § 2000e et seq.] pursuant to hostile work environment, disparate treatment and retaliation theories. Id., ¶¶ 86-99. Count VIII, which also alleges gender discrimination, is based on § 1981a. Id., ¶¶ 100-104. Counts IX, X and XI seek redress for the torts of negligent infliction of emotional distress, negligent supervision and negligent damage to property pursuant to the Federal Tort Claims Act ("FTCA") [28 U.S.C. § 2671 et seq.]. In Count XII, Shaffer seeks injunctive, declaratory and other equitable relief for alleged violations of the Due Process Clause of the Fifth Amendment. Id., ¶¶ 133-147.
On May 10, 2007, the Defendants filed a Partial Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), seeking the total dismissal of Counts III, IV, VIII, IX, X, XI and XII and the partial dismissal of Counts II, VI and VII. Doc. Nos. 3 & 8. The Defendants argued that Counts IX, X and XI, which were based on the FTCA, needed to be dismissed for lack of subject matter jurisdiction on the ground that Shaffer had failed to exhaust his administrative remedies in accordance with 28 U.S.C. § 2675(a). Doc. No. 3, pp. 15-17. Apparently recognizing that the Defendants' argument had merit, Shaffer filed an administrative tort claim with the Department's Office of Regional Counsel on May 11, 2007, seeking damages in the amount of $12,000,000.00. Doc. No. 24-2, p. 26. This administrative claim was denied on September 6, 2007. Id., pp. 26-27. On September 13, 2007, Shaffer commenced a separate action against the Defendants, seeking redress under the FTCA for the torts of negligent infliction of emotional distress, negligent supervision and negligent damage to property. CV-07-1234, Doc. No. 1, ¶¶ 7-34. That same day, he sought leave to withdraw Counts XI, X and XI in this action, contending that they had been replaced by Counts I, II and III in his other action. Doc. No. 24. The Court subsequently granted Shaffer leave to withdraw Counts IX, X and XI. Doc. No. 25. On September 19, 2007, Shaffer filed a Motion to Consolidate these two actions. Doc. No. 26. The Court granted Shaffer's Motion to Consolidate on September 27, 2007, and his second action against the Defendants was closed. Doc. No. 28. The averments contained in Counts I, II and III in Shaffer's second action are identical in all relevant respects to those contained in Counts XI, X and XI in this action. To avoid confusing them with Shaffer's ADEA claims, the Court will continue to refer to Shaffer's FTCA claims as Counts XI, X and XI, with the understanding that these claims have now been administratively exhausted. The exhaustion of these claims essentially moots the Defendants' arguments originally raised in support of the dismissal of Counts XI, X and XI. Nevertheless, on December 6, 2007, the Defendants filed a Motion to Dismiss Shaffer's FTCA claims on other grounds. Doc. No. 35. Consequently, the Court must now rule on the Defendants' original Partial Motion to Dismiss as to Counts II, III, IV, VI, VII, VIII and XII, and on their second Motion to Dismiss as to Counts IX, X and XI.
On the same day that they filed their original Partial Motion to Dismiss, the Defendants filed a Motion to Strike Shaffer's demand for a jury trial as to Counts I, II, III, IV, IX, X and XI, contending that plaintiffs suing the United States under the ADEA and the FTCA have no right to a jury trial. Doc. No. 5. This Motion to Strike was filed pursuant to Federal Rule of Civil Procedure 39(a). After the consolidation of Shaffer's two actions, which resulted in the substitution of his exhausted FTCA claims for the previously unexhausted Counts XI, X and XI of the original Complaint, the Defendants filed a second Motion to Strike Shaffer's jury trial demand as to his claims under the FTCA. Doc. No. 37. The Defendants apparently took this action for the purpose of ensuring that their previous Motion to Strike had not been mooted as to Shaffer's FTCA claims by his subsequent exhaustion (and refiling) of those claims. These Motions to Strike are currently pending before the Court.
Shaffer filed his response in opposition to the Defendants' Partial Motion to Dismiss on June 8, 2007. Doc. No. 14. Included therein was a Motion to Assess Costs against the Defendants. Id., p. 5. Shaffer claims that costs should be assessed against the Defendants for causing him "an undue burden and additional harassment in attempting to bring his claims to this Court." Id. This Motion to Assess Costs is presently pending before the Court. The Defendants' Motions to Dismiss and Motions to Strike, as well as Shaffer's Motion to Assess Costs, have been extensively briefed, are ripe for resolution, and are the subject of this memorandum opinion.
A. The Administrative Exhaustion of Counts II, VI and VII
The Defendants move for the partial dismissal of Counts II, VI and VII on the ground that Shaffer did not exhaust his administrative remedies as to these claims with respect to the conduct alleged to have occurred prior to September 19, 2005. Doc. No. 4, pp. 4-8, 13-14. These counts include Shaffer's disparate treatment claims under both the ADEA and Title VII, as well as his retaliation claims under Title VII. The Defendants' basis for moving to partially dismiss these counts is 29 C.F.R. § 1614.105(a)(1), which provides:
§ 1614.105 Pre-complaint processing.
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1). The record indicates that Shaffer initially contacted an EEO counselor on November 3, 2005. Doc. No. 4-3, p. 2. The Defendants contend that Counts II, VI and VII must be dismissed as to conduct occurring prior to September 19, 2005, since Shaffer did not contact an EEO counselor about such conduct within the 45-day timeframe established by the applicable regulation. Doc. No. 4, pp. 4-8, 13-14.
Shaffer does not appear to take issue with the Defendants' reliance on § 1614.105(a)(1)'s 45-day limitations period. Instead, he states that the factual averments which the Defendants seek to have dismissed (as to Counts II, VI and VII) are included in the Complaint as background evidentiary averments. Doc. No. 10, pp. 1-3. The Court also notes that Counts I and V assert hostile work environment claims under the ADEA and Title VII. Doc. No. 1, ¶¶ 63-73, 86-93. In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the United States Supreme Court recognized that hostile work environment claims under Title VII can be based on all acts contributing to (or culminating in) the creation of the actionable hostile work environment, even if some of those acts occur outside of the applicable charging period. Speaking through Justice Thomas, the Supreme Court explained:
As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has "occurred," even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim ...