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Wormack v. Shinseki

October 14, 2010

RAYMOND D. WORMACK, PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS AGENCY, DEFENDANT,



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

MEMORANDUM OPINION

Presently before the Court is a motion to dismiss filed by Defendant Eric Shinseki, Secretary of the Department of Veterans Affairs. (Docket No. 40). Defendant seeks dismissal of pro se Plaintiff Raymond Wormack‟s discrimination and retaliation claims against him. (Id.). In a prior Memorandum Opinion, the Court addressed a similar motion brought by Defendant, dismissing several of Plaintiff‟s claims, but granted Plaintiff leave to amend his civil rights complaint. See Wormack v. Shinseki, Civ. No. 09-916, 2010 U.S. Dist. LEXIS 65699 (W.D. Pa. July 1, 2010); (Docket No. 37). Plaintiff filed his First Amended Complaint and this challenge followed. For the reasons set forth below, Defendant‟s Motion [40] is GRANTED and Plaintiff‟s First Amended Complaint (Docket No. 39) and Addendum (Docket No. 43) are dismissed, with prejudice.

I. Procedural History

The procedural history of the instant matter is discussed in greater detail in the Court‟s prior Memorandum Opinion filed July 1, 2010 addressing Defendant‟s Motion to Dismiss Plaintiff‟s original Complaint. (Docket No. 37). By the Court‟s Order filed simultaneously with said Memorandum Opinion, Plaintiff‟s allegations of violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et se q. ("Title VII"), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA") were dismissed, without prejudice. (Docket No. 38). Plaintiff was ordered by the Court to file an amended complaint that cured the deficiencies in the pleading by August 2, 2010. (Id.).

Plaintiff filed his First Amended Complaint on July 30, 2010. (Docket No. 39). In response, Defendant filed the instant motion to dismiss on August 16, 2010. (Docket No. 40). Plaintiff did not file a timely response*fn1 and, on September 13, 2010, the Court issued a rule upon Plaintiff to show good cause why this failure should not result in the case‟s dismissal. (Docket No. 42). Subsequently, Plaintiff filed an Addendum to Plaintiff‟s Amended Complaint, ("Addendum") (Docket No. 43), which the Court construes as an amendment to his pleading.*fn2

II. Factual Background

In consideration of Plaintiff‟s pro se status, the Court gleans the following facts not only from his First Amended Complaint, (Docket No. 39), 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).*fn3 Additionally, because this matter comes to the Court on a Rule 12(b)(6) motion to dismiss, the Court accepts all of Plaintiff‟s factual allegations as true. Hemi Group, LLC v. City of N.Y., 130 S.Ct. 983, 986-87 (2010) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)).

Plaintiff is an African-American male who is employed by the Department of Veterans Affairs at the Veterans Administration Healthcare System in Pittsburgh, Pennsylvania.*fn4 (Docket No. 39 at 2). He alleges that Defendant discriminated against him on the basis of his race and gender and retaliated against him in response to his brother‟s raising similar discrimination claims against this same Defendant.*fn5 (Id. at 1).

Plaintiff is a Case Management Specialist / Social Worker, (Docket No. 1 at 1), who has been employed by Defendant at the Veterans Administration Healthcare system in Pittsburgh since March 2007, (Docket No. 39 at 2). During his yearly performance evaluation on or around October 17, 2007, (Docket No. 14 at 1), Plaintiff received an "Unacceptable [P]erformance" rating, (Docket No. 39 at 2). Despite his requests, Plaintiff has never received a copy of this evaluation. (Id. at 3).

In response to his substandard evaluation, Plaintiff complained to his supervisors about his rating in several meetings, but no change was made. (Docket No. 12 at 1). Subsequently, Plaintiff contacted an Equal Employment Opportunity Counselor within 45 days of the discriminatory action and eventually filed a timely Equal Employment Opportunity Complaint. (Docket No. 14 at 1-2).

After Plaintiff had contacted the Equal Employment Opportunity Counselor, but before the Equal Employment Opportunity Complaint was filed, Plaintiff‟s evaluation was changed to "Fully Successful." (See Docket Nos. 12 at 1, 39 at 3). This change occurred during a meeting with Plaintiff‟s supervisor, Ron Rabold, and the changed form was eventually placed in Plaintiff‟s file.*fn6

By letter dated November 8, 2007, Equal Employment Opportunity Counselor Lisa Bartko wrote that, on November 5, 2007, Plaintiff had reported being "discriminated against . on October 17, 2007, [when he] received a poor evaluation." (Docket No. 14-1). She apprised that the matter had been resolved through an "[upgraded] evaluation." (Id.). Nonetheless, Plaintiff continued to feel that he had been discriminated against and, on November 19, 2007, proceeded to send an e-mail to Ms. Bartko, which stated:

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 [sic] 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. 14-2). Plaintiff then filed a "Complaint of Employment Discrimination" on December 18, 2007, reiterating these same allegations and referencing his November 19, 2007 e-mail. (Docket No. 6-5). At the time of this complaint, Plaintiff was the only "[b]lack male social worker" employed by Defendant at the facility in which he was located. (Docket No. 39).

Though an employee of Defendant may be disciplined as a result of an "unacceptable performance" evaluation by a supervisor, (Docket No. 39 at 2), Plaintiff was hired as a Grade 12 social worker and has remained at that grade. (Docket No. 36 at 22-23). During his three years of employment, Plaintiff has received salary step increases and bonuses. (Id. at 22-23, 57). Plaintiff does not attest that another employee in his peer group received a bonus or pay increase that he did not. (Id. at 28). Plaintiff also does not ...


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