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Venesevich v. Leonard


December 19, 2008


The opinion of the court was delivered by: Judge Conner


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, alleging that defendants colluded to deprive her of her First Amendment rights.

"A Bivens action, which is the federal equivalent of the [42 U.S.C.] § 1983 cause of action against state actors, will lie where the defendant has violated the plaintiff's rights under the color of federal law."*fn3 Brown v. Philip Morris, 250 F.3d 789, 800 (3d Cir. 2001); see also Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004). "[C]courts have generally relied upon the principles developed in the case law applying section 1983 to establish the outer perimeters of a Bivens claim against federal officials." Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991).

Venesevich advances a Bivens action in which she alleges that Leonard retaliated against her by giving her undesirable work and by denying her promotions, salary increases, choice vehicle assignments, and parking privileges. Seislove allegedly infringed plaintiff's rights by placing her with a ride-along mentor and by temporarily transferring her to New Jersey. Generally, a First Amendment retaliation plaintiff must aver:

(1) conduct or speech protected by the First Amendment; (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights; and (3) a causal link between the constitutionally protected conduct or speech and the retaliatory action. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); see also, e.g., Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

Federal employment, however, may render a First Amendment Bivens claim untenable if the claim arises from the course of the plaintiff's employment. Under Bush v. Lucas, 462 U.S. 367, 390 (1983), a federal employee may not lodge a First Amendment claim for damages*fn4 against a supervisor if Congress has created a remedial statutory framework for handling such claims. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); Purtill v. Harris, 658 F.2d 134, 137 (3d Cir. 1981) ("[I]n light of available civil service remedies a federal employee has no cause of action for damages under the first amendment for retaliatory demotion."). The Civil Service Reform Act of 1978 ("CSRA"), Pub. L. 95-454, 92 Stat. 1111, provides such a structure.*fn5 Bush, 462 U.S. at 390. Hence, if the CSRA provides a putative plaintiff with a remedy for a First Amendment violation that occurs during the course of employment, the employee may not maintain a separate Bivens action to vindicate the wrong. Wright v. Hadrick, 90 F. App'x 641, 642 (3d Cir. 2004) ("[T]he CSRA provides the sole remedy for damage claims brought by federal employees who are subject to its protections.").

Bush forecloses Venesevich's retaliation because she may seek redress under the CSRA. At all times pertinent to this action, Venesevich worked as a special agent for OPM. (Doc. 1 ¶¶ 1, 11.) As a federal employee, the CSRA allows her to file a complaint with the Office of Special Counsel (hereinafter "the Special Counsel"), an entity that "receive[s] and investigate[s] allegations of prohibited personnel practices" by federal employees.*fn6 5 U.S.C. § 1212(a)(2); see also 5 C.F.R. § 1800.1(c)(establishing procedures for filing complaints arising from prohibited personnel practices). The Special Counsel investigates complaints and submits disciplinary recommendations to the Merit Systems Protection Board (hereinafter "the Board"), which adjudicates the recommended sanctions. See 5 U.S.C. § 1215(a)(1); see also 5 C.F.R. § 1201.2(a) (stating that the Board possesses original jurisdiction over all actions brought by the Special Counsel). If a federal employee files a complaint with the Special Counsel and the Special Counsel recommends no disciplinary action, the employee may appeal the Special Counsel's decision directly to the Board. See 5 U.S.C. § 1221 (allowing employees who suffer prohibited personnel practices to seek relief directly from the Board); id. § 1214(a)(3) (requiring most employees to seek corrective action from the Special Counsel before pursuing an action directly with the Board). An adverse decision before the Board is subject to judicial review. See id. § 7703.

These comprehensive remedial structures provide Venesevich with an adequate, meaningful remedy to vindicate the alleged First Amendment violations by Leonard and Seislove. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 796 (3d Cir. 2003) (stating that the CSRA provides meaningful remedies in a variety of claims in which the plaintiff's "status as a federal employee is central to [the] complaint"); Simpson v. McCarthy, 741 F. Supp. 95, 96 (W.D. Pa. 1990) ("Bush v. Lucas held that the Supreme Court would not authorize a Bivens action for federal employees whose First Amendment right to speak on a matter of public concern had been infringed by a superior." (citations omitted)). She must employ this remedial system in lieu of a Bivens action.*fn7

IV. Conclusion

The remedial system established by the CSRA provides Venesevich an adequate remedy for the First Amendment deprivations of which she complains. Her Bivens complaint will be dismissed without prejudice to her right to pursue a claim within this remedial structure.

An appropriate order accompanies this memorandum.

CHRISTOPHER C. CONNER United States District Judge


AND NOW, this 19th day of December, 2008, upon consideration of the motion to dismiss (Doc. 11) and, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. The motion to dismiss (Doc. 11) is GRANTED without prejudice to plaintiff's right to pursue any remedy available to her under the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989.

2. The Clerk of Court is instructed to CLOSE this case.

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