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Wormack v. Shinseki

July 1, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer


Before the Court is Defendant Eric Shinseki's ("Defendant") Motion to Dismiss pro se Plaintiff Raymond D. Wormack's ("Plaintiff") Complaint. (Docket No. 5). To rule on this motion, the Court must consider whether Plaintiff, proceeding pro se, has plausibly stated his two claims -- alleging race discrimination, gender discrimination, retaliation and harassment in the workplace in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), and alleging that female co-workers were paid more than him in violation of the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"). For the following reasons, the Court finds that, even considering his pro se status, Plaintiff has not successfully stated a plausible claim under either statute; therefore, Defendant's Motion is GRANTED and Plaintiff's Complaint is dismissed.


In consideration of Plaintiff's pro se status, the following facts are drawn not only from his initial Complaint (Docket No. 1), but also from his other representations to the Court, including the various documents submitted to the Court and Plaintiff's testimony under oath at a hearing in this matter. (Docket Nos. 35, 36). The parties do not contest the authenticity of any of these submissions. Although the veracity of some of the following facts is contested by Defendant, a court, when evaluating a motion to dismiss, accepts as true all of a plaintiff's factual allegations. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Accordingly, the following factual recitation is drawn from the various submissions before the Court and construed in a light most favorable to Plaintiff.*fn1

Plaintiff, an African-American male, is an employee of the Veterans Administration ("VA") and claims that he has been discriminated against on the basis of his race and gender and retaliated against in response to his brother's filing of similar discrimination claims with the United States Equal Employment Commission ("EEOC") against the VA.*fn2 (Docket No. 1).

Plaintiff is, and was at all times relevant to his claims, a Case Management Specialist / Social Worker, employed by Defendant at the VA. (Id.). He was hired at the VA Pittsburgh Healthcare system in March 2007. (Docket No. 12 at 1). During his yearly performance evaluation on or around October 17, 2007, Plaintiff received a "Less than Fully Successful" rating. (Docket No. 14 at 1). This evaluation was not made a part of Plaintiff's file at the time, but it was shown to him during a meeting with his supervisor, Ron Rabold. (Docket No. 23-1 at 1). Plaintiff was never given a copy of the evaluation. (Id.) Plaintiff complained to his immediate supervisors about the "Less than Fully Successful" rating in several meetings, but no change was made. (Docket Nos. 12 at 1, 23-1 at 1). Plaintiff then sent an email to someone at the VA Office of Resolution Management ("ORM"). (Docket Nos. 14 at 1, 23-1 at 1). A response to that email informed Plaintiff that an email to the ORM was not the proper means of filing an EEOC claim. (Id.). Plaintiff then emailed an EEOC counselor and eventually filed an EEOC complaint, before the 45-day deadline for filing same. (Docket No. 14-2).

After Plaintiff had contacted the EEOC, but before the actual complaint was filed, the "Less Than Fully Successful" evaluation was changed to "Fully Successful." (Docket No. 12 at 1). Plaintiff states that, during a meeting, Ron Rabold changed the form, which was eventually put in his file. (Docket No. 12 at 1).*fn3 In a November 8, 2007 letter, submitted by Plaintiff in support of his claim, EEOC counselor Lisa Bartko indicated that on November 5, 2007 Plaintiff had first reported to the ORM "that [he had] been discriminated against when on October 17, 2007, [he] received a poor evaluation," and that the "Resolution" of said claim was "Upgrade evaluation." (Docket No. 14-2). Nonetheless, Plaintiff continued to feel that he had been discriminated against and sent an email to Ms. Bartko on November 19, 2007 stating that:

I am contacting you regarding what I believe to be a discriminatory action taken against me by my supervisor's supervisor. I believe my evaluation was intentionally suppressed to hinder my advancement and also to aid in a possible future termination.

I believe this is being done in retaliation due to my brother Michael Wormack, raising claims that systematic discrimination exist at the Pittsburgh Healthcare system, and because I am a black male. I believe that an investigation of my charge will show that Black males are denied positions at GS-5 and above and if they are hired they are dealt with harsher on their evaluations. (Docket No. 14-3). Plaintiff then filed a complaint of Employment Discrimination on December 18, 2007, reiterating these same complaints, and referencing his November 19, 2007 email. (Docket No. 6-5). Plaintiff complained that his initial "Less Than Fully Successful" rating was discrimination, and, evidently, did not feel that the resolution, changing it to "Fully Successful," was an adequate one. (Id.).

In addition to the specific claim regarding his October 2007 evaluation, Plaintiff also makes a number of other allegations of discrimination or of adverse employment actions which he attributes to discrimination, including the general averments "that Black males are denied positions at GS-5 and above and if they are hired they are dealt with harsher on their evaluations." (Docket Nos. 14-3, 32-1). In his Complaint, Plaintiff summarizes his claims in a section entitled "ALLEGATIONS," stating, in full:

1. Mr. Wormack was retaliated against due to his brother filing similar claims for protected EEO activity.

2. Mr. Wormack was discriminated against because he is a black male.

3. Mr. Wormack was paid less because he is a black male.

4. Mr. Wormack was harassed because he is a black male.

5. Mr. Wormack was denied promotions because he is a black male.

6. The Department of Veterans Affairs elevated EEO numbers to misrepresent that more black man [sic] were working at the Pittsburgh Division than actually did, to conceal systematic and intentional discriminatory actions against Mr. Wormack and countless other individuals.

(Docket No. 1 at 2). He makes the following factual allegations in support of these general claims. He contends that he "has been rejected from 4 different positions he had applied for." (Id. at 1, Docket No. 36 at 34). He also states that he was "[a]sked to complete assignments other Social Workers of similar description are not required to do" and that he "was given a heavier workload then [sic] the other social workers of similar description." (Docket Nos. 1 at 1-2, 36 at 25-27, 33, 48, 52-53). He has not provided any examples of projects assigned to him or of other workers who received less work or were paid more than him. (Docket No. 36 at 25-27, 33, 48, 52-53). He was hired as a "Grade 12 Social Worker," has remained at that grade, and has received salary step increases and bonuses. (Docket No. 36 at 22-23, 57).


The procedural history is lengthy for a case at the motion to dismiss stage, which reflects the time and opportunities afforded to Plaintiff to clarify the nature of his claims to assist the Court in deciding the Motion to Dismiss. Plaintiff, proceeding pro se, filed this complaint against Defendant on July 14, 2009. (Docket No. 1). After waiving service, Defendant responded with a Motion to Dismiss or in the Alternative, Motion for Summary Judgment, and a Brief in Support. (Docket Nos. 5, 6). This is the motion before the Court, but subsequent proceedings have altered its nature since it was originally filed. In its original form, the instant motion argued for dismissal pursuant to FED.R.CIV.P.12(b)(1), since the Court lacked jurisdiction over Plaintiff's Equal Protection Act claim, and pursuant to FED.R.CIV.P. 12(b)(6), since Plaintiff had failed to state a claim upon which relief could be granted -- in particular, that Plaintiff was untimely in initiating the EEOC process and had not exhausted his claims at the EEOC level. (Id.). In the alternative, Defendant moved for summary judgment on those same grounds. (Id.). Defendant attached, as exhibits to the brief, various VA and EEOC records of Plaintiff's evaluation and his EEOC complaint, to support the untimeliness and failure to exhaust defenses. (Docket Nos. 6-1 to 6-6).

Plaintiff filed a Response to the motion on October 1, 2009 (Docket No. 12), and Defendant filed a Reply Brief one week later. (Docket No. 13). Plaintiff then filed a Reply Brief on the same topic on October 12, 2009 (Docket No. 14), before the Court held a Case Management Conference on October 22, 2009. (Docket No. 15). At that Conference, the parties expressed interest in participating in alternative dispute resolution, and accordingly the Court held ruling on the pending motion in abeyance and agreed to request that a Magistrate Judge convene a settlement conference. (Id.). The Court did so, and referred the case Magistrate Judge Cathy Bissoon, for mediation and / or settlement conference. (Docket No. 16). Upon notice from Magistrate Judge Bissoon that the settlement / mediation conference had not resolved the case, the Court convened a Telephone Status Conference, which was held on December 21, 2009. (Docket Nos. 17-19). At this second conference with the Court, Plaintiff indicated that time for discovery would be needed for him to counter Defendant's contentions in the pending Motion; Defendant argued that no discovery was needed. (Docket No. 19). The Court advised the parties that if Defendant wanted a stay of discovery, then he should move for same, and entered an order setting a schedule for such a motion. (Docket Nos. 19, 20).

Defendant filed a Motion to Stay Discovery the next day. (Docket No. 21). Two weeks later, after the deadline had passed for Plaintiff to respond, the Court granted Defendant's motion. (Docket No. 22). The next day Plaintiff filed a "Motion for Rule 56(f) further Discovery," which was, in essence, a late response to Defendant's Motion to Stay. (Docket No. 23). Nonetheless, the Court ordered a response from Defendant, who filed said response on January 19, 2010. (Docket No. 24). In light of the dispute, the Court held a hearing on Plaintiff's motion on January 25, 2010. (Docket No. 26). At the hearing, the Court heard argument and accepted evidence on both Plaintiff's pending motion for discovery and on the underlying merits of the case, as they affected Defendant's pending Motion to Dismiss, or in the Alternative Motion for Summary Judgment, and took both motions under advisement. (Id.) The Court also ordered Plaintiff to search his own files and provide any documentation of the alleged October 17, 2010 evaluation to Defendant's counsel, as well as ordered Plaintiff to request his EEOC file from Defendant's counsel. (Docket No. 27).

At a subsequent Telephone Status Conference, the parties informed the Court that Defendant had provided a copy of the EEOC file to Plaintiff, but Plaintiff had not located any documentation in his possession. (Docket No. 28). The Court, considering Plaintiff's pro se status, allowed him additional time to find and produce said documents, and ordered Defense counsel to produce a copy of Plaintiff's VA personnel file to him; the Court then ordered the parties to advise the Court's law clerk of their progress on a telephone call, before a fourth Telephone Status Conference with the Court on March 9, 2010. (Id.). Plaintiff and counsel for Defendant did exchange such documents, and informed the Court of same before the Telephone Status Conference. (Docket No. 30).

Immediately after the fourth Telephone Status Conference, Defendant filed a "Motion to Withdraw Without Prejudice, His Argument that Plaintiff was Untimely in Contacting an EEO Counselor," as Plaintiff had succeeded in raising a question of fact as to the date of his evaluation and the timeliness of his EEOC complaint. (Docket No. 29). As the parties had exchanged the relevant documents and had informed the Court of same at the Telephone Status Conference, the Court issued an order: denying Plaintiff's Motion for Rule 56 (F) Further Discovery (Docket No. 23), without prejudice; granting Defendant's motion to withdraw the untimeliness claim (Docket No. 29) and determining that it would treat Defendant's pending motion (Docket No. 5) as a motion to dismiss only; setting a schedule for Plaintiff to file any supplement to his Reply Brief (Docket No. 14), and for Defendant to respond; and, finally, scheduling a second hearing and oral argument to address the pending Motion to Dismiss. (Docket No. 31).

Plaintiff did file a Supplement (Docket No. 32), with additional exhibits attached, and Defendant filed a Response (Docket No. 33). At the appointed time for the hearing on the Motion to Dismiss, Plaintiff failed to appear, and the Court rescheduled the hearing. (Docket No. 34). Finally, on May 11, 2010, the Court held a hearing and oral argument on the instant motion, during which both sides offered argument and the Plaintiff offered sworn testimony in support of his claims. (Docket No. 35). A transcript of these proceedings was ordered. (Docket No. 36).

As the instant motion has been exhaustively briefed and argued, and the Court has received substantial evidence regarding same, it is now ripe for decision.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the lack of subject matter jurisdiction over a plaintiff's claims. See FED.R.CIV.P. 12(b)(1). "At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" Petruska v. Gannon University, 462 F.3d 294, 302 (3d Cir. 2006) (quoting Mortenson v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977)). As he is the party asserting jurisdiction, Plaintiff "bears the burden of showing that [his] claims are properly before the district court." Development Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir.1995); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)("When subject matter jurisdiction is challenged under Rule 12(b) (1), the plaintiff must bear the burden of persuasion").

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); and FED. R. CIV. P. 8(a)(2)(a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief."). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for 'all civil actions.'" Iqbal, 129 S.Ct. at 1953; Fowler, 578 F.3d at 210-11. The Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555); see also Fowler, 578 F.3d at 210; and Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556); see also Fowler, 578 F.3d at 210-11 (holding that in light of Iqbal, a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "'plausible claim for relief.'"). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

As noted above, because Plaintiff is proceeding pro se, his allegations are liberally construed and he is held to a less stringent standard than an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the United States Court of Appeals for the Third Circuit and District Courts within the Third Circuit, including this Court, have applied the Iqbal and Twombly factual plausibility standard when evaluating pro se complaints. See e.g., Capogrosso v. Rabner, 588 F.3d 180, 184-85 (3d Cir. 2009); Goodson v. Maggi, Civ. A. No. 08-44, 2010 WL 1006901 (W.D. Pa. Feb. 22, 2010); Paschal v. Billy Beru, Civ. A. No. 08-1144, 2009 WL 1099182 (W.D. Pa. Apr. 23, 2009), aff'd, 2010 WL 1401465 (3d Cir. 2010)(not reported); Van Tassel v. Lawrence County Domestic Relations, et ...

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