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Venesevich v. Leonard

December 19, 2008

DEBORAH K. VENESEVICH, PLAINTIFF
v.
MICHAEL J. LEONARD AND FRANCINE SEISLOVE, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a civil rights action brought by plaintiff Deborah K. Venesevich ("Venesevich") against her superiors, defendants Michael J. Leonard and Francine Seislove. All parties hereto are federal employees. Venesevich alleges that defendants violated her First Amendment rights by retaliating against her for raising complaints about their management practices. Defendants have filed a motion to dismiss (Doc. 11) on the ground that Venesevich's claims are not cognizable as a matter of law. For the reasons that follow, the motion will be granted and the case closed.

I. Factual Background*fn1

Venesevich works as a special agent for the Federal Investigative Services

Division of the Office of Personnel Management ("OPM"). (Doc. 1 ¶ 1.) She was compensated at grade GS-7 on the General Schedule pay scale at the time she filed the instant complaint. (Id. ¶ 12.)

At an unspecified point during her employment, Venesevich's immediate supervisor, defendant Michael J. Leonard ("Leonard"), allegedly mismanaged government resources under his control. (Id. ¶¶ 17, 20.) Venesevich has not identified which resources Leonard purportedly wasted, nor has she described the manner in which he did so. At some point, she broached the subject with Leonard, who allegedly responded through a series of adverse actions, including withholding promotions, assigning her to undesirable tasks, and denying her a choice of work vehicles and parking privileges. (Id. ¶¶ 17, 21.)

Venesevich then reported Leonard's conduct to his supervisor, defendant Francine Seislove ("Seislove"). (Id.) Seislove allegedly recognized the impropriety of Leonard's conduct but failed to remedy the situation. (Id. ¶¶ 22, 24.) Instead, she assigned Venesevich a ride-along mentor and temporarily transferred her to a duty station in New Jersey, where Venesevich shadowed an agent from another office under Seislove's command. (Id. ¶ 23.) Venesevich alleges that Seislove performed these actions in further retaliation for her complaints about Leonard's conduct. (Id. ¶¶ 22-23, 25.)

Venesevich alleges that in the absence of defendants' conduct she would presently qualify for compensation at a grade GS-11 or GS-12 level. (Id. ¶¶ 13-14.) She contends that colleagues with positions and experience similar to hers have received promotions while she has not. (Id. ¶¶ 14-16.)

Venesevich filed the instant complaint on November 20, 2007, requesting damages for alleged violations of her First Amendment rights. (See Doc. 1 at 7 & ¶ 27.) She advances a retaliation claim under Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), to which she appends a civil conspiracy claim under state law. Defendants contend that these claims cannot be advanced by plaintiffs such as Venesevich, who have access to statutory federal civil service remedies for adverse actions that arise during the course of their employment. The parties have fully briefed these issues, which are now ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to "give the defendant notice of what the... claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus,---U.S.---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544,---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at----, 127 S.Ct. at 1965). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion*fn2

Venesevich advances a First Amendment retaliation claim under Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) based upon defendants' response to her criticism of Leonard's job performance. She also asserts a state law conspiracy claim, ...


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