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Gary R. Still v. Eric K. Shinseki

July 6, 2011

GARY R. STILL,
PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS
DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Judge

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court are DEFENDANT‟S MOTION TO DISMISS PLAINTIFF‟S COMPLAINT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (Document No. 9) filed by Eric K. Shinseki, Secretary, Department of Veterans Affairs ("Defendant") and PLAINTIFF‟S MOTION TO AMEND ORIGINAL COMPLAINT (Document No. 13) filed by Gary R. Still ("Plaintiff"). Defendant has filed a brief in support of his motion (Document No. 10), along with several exhibits, and has also filed a response in opposition to Plaintiff‟s motion to amend (Document No. 18). Plaintiff, who is proceeding pro se, has filed "Plaintiff‟s Brief in Answer to Defendant‟s Motion to Dismiss Plaintiff‟s Complaint or, in the Alternative, for Summary Judgment" (Document No. 10), with several exhibits attached, as well as a brief in support of his motion to amend (Document No. 14). Plaintiff has also replied to Defendant‟s response in opposition to Plaintiff‟s motion to amend (Document No. 20). Both motions are ripe for disposition.

Documents Considered on Judicial Review

At the outset, the Court must determine the extent of its consideration of documents submitted by both parties with respect to Defendant‟s motion. Specifically, Defendant has provided the Court with several documents pertaining to the administrative proceedings that have given rise to the instant action, including Plaintiff‟s initial complaint with the Department of Veterans Affairs ("VA"), the final order of the Administrative Law Judge ("ALJ") denying Plaintiff‟s claim, and the Equal Employment Opportunity Commission ("EEOC" or the "Agency") decision affirming the ALJ‟s final order. Along with his "Brief in Answer to Defendant‟s Motion to Dismiss Plaintiff‟s Complaint or, in the Alternative, for Summary Judgment," Plaintiff has attached several of those same documents. To resolve a Fed. R. Civ. P. 12(b)(6) motion, a court may generally consider the allegations in the complaint, along with any exhibits attached to the complaint and matters of public record, including administrative decisions. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998). Furthermore, the United States Court of Appeals for the Third Circuit has made clear that "a court may consider any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff‟s claims are based on the document" without converting a motion to dismiss into one for summary judgment. Pension Benefit Guar. Corp. v. White Consol. Industries, 998 F.2d 1192, 1196 (3d Cir. 1993) (internal citations omitted).

The parties do not dispute the authenticity of the attached documents, and indeed, they are matters of public record. The Court‟s reading of the complaint, therefore, "is informed by these documents and other public records of which [it] can take judicial notice." City of Pittsburgh, 147 F.3d at 259. Accordingly, the Court will treat Defendant‟s motion as a motion to dismiss pursuant to Rule 12(b) and not one for summary judgment.

Factual and Procedural Background

In essence, Plaintiff, a non-veteran, claims that the VA failed to hire him due to his disability. In December 2005, plaintiff applied for a position of maintenance worker with a facility of the VA Pittsburgh Healthcare System, which was listed in two separate vacancy announcements. Along with his applications, Plaintiff submitted certification of disability from the Commonwealth of Pennsylvania. On March 24, 2006, Plaintiff learned that he was not selected for one of the positions. Two months later, on May 26, 2006, he became aware of his non-selection for the second position for which he had applied.

On December 22, 2006, Plaintiff contacted the VA EEO office, alleging that he had not been hired due to his disability.*fn1 On February 16, 2007, after attempts to informally resolve the matter failed, Plaintiff submitted a formal complaint of employment discrimination to the VA in compliance with 29 C.F.R. § 1614.106.*fn2

The EEOC accepted Plaintiff‟s complaint for investigation, and on November 20, 2008, a decision in favor of the VA was issued by the ALJ without a hearing. In reaching his decision, the ALJ determined that Plaintiff had failed to show that a non-disabled applicant was selected instead of the Plaintiff for the position in the first vacancy announcement. To the contrary, the record reflected that two ten-point disabled veterans were hired. Similarly, with regard to the second position, the ALJ concluded that Plaintiff was not considered because he was not a Delegated Examining Unit candidate, as were the seven applicants who were eventually considered for the position. Subsequently, two preference-eligible veterans were selected to fill the vacancies.

Plaintiff filed a timely appeal from the ALJ‟s final order on January 22, 2009; however, the Agency affirmed the finding of no discrimination on July 22, 2010. The EEOC decision advised Plaintiff that if he wished to pursue his claim he must file suit in a district court within ninety (90) days of receiving notice of final Agency action. In addition, the Certificate of Mailing attached to the decision provided that the EEOC presumed that the decision was received by Plaintiff within five (5) calendar days of its mailing on July 22, 2010.

Ninety-five (95) days following the EEOC decision, on October 25, 2010, Plaintiff filed a motion for leave to proceed in forma pauperis ("IFP") in this Court, with his Complaint and a supporting affidavit attached. Plaintiff was denied IFP status two (2) days later. Subsequently, a motion for reconsideration of Plaintiff‟s IFP application was also denied.

On December 7, 2010 -- nearly five (5) months after Plaintiff is presumed to have received notice of the EEOC decision on July 27, 2010 -- he paid the requisite filing fee of $350, and the Complaint was officially filed and docketed by the clerk of this Court. In the Complaint, Plaintiff alleges that on two separate occasions, March 24, 2006 and December 22, 2006, he was denied employment because of his disability, in violation of Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et. seq. Defendant has moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, and, alternatively, for summary judgment, averring that the filing of the complaint was untimely because it was not submitted within ninety (90) days of receipt of notice of the EEOC decision. Further, Defendant contends that Plaintiff‟s unsuccessful IFP motion, which was submitted on the final day of the 90-day period for the filing of a civil complaint, does not otherwise render Plaintiff‟s complaint timely.

On June 2, 2011, Plaintiff sought leave to amend his Complaint pursuant to Fed. R. Civ. P. 15(a)(2). In a document entitled "brief" filed in support of his motion, which was actually in the form of a complaint, Plaintiff alleged that in addition to the two purported instances of discrimination in 2006, he was also denied employment by the VA in April 2008 in retaliation for having filed his original EEOC complaint. Defendant submitted a response ...


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