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Gary R. Still v. Eric K. Shinseki

October 21, 2011

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



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court is DEFENDANT‟S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT AS TO PLAINTIFF‟S AMENDED COMPLAINT (Document No. 25) filed by Eric K. Shinseki, Secretary, Department of Veterans Affairs ("Defendant" or the "VA"). The VA has filed a brief in support of its motion (Document No. 26). Plaintiff, who is proceeding pro se, has filed a response in opposition to Defendant‟s motion (Document No. 28). Accordingly, the motion is ripe for disposition.

Factual and Procedural Background

The factual background of this case is fully set forth in the July 6, 2011 Memorandum Opinion of this Court. In sum, Plaintiff, a non-veteran, claims that he was not selected for a position at a facility of the VA Pittsburgh Healthcare System, for which he had applied through three separate online postings, on the basis of his disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. 794 (the "RA").

This Court dismissed Plaintiff‟s Original Complaint by Memorandum Opinion and Order of July 6, 2011, but gave him an opportunity to file an Amended Complaint if he was able to state a plausible claim for relief.*fn1 In addition, the Court afforded Plaintiff the opportunity to assert a claim for retaliation even though it was never presented to the EEOC.*fn2

On July 25, 2011, Plaintiff filed his Amended Complaint, which again alleges that the VA failed to hire him in March and May 2006 because of his heart disease. Amend. Compl. at ¶¶ 6, 7. According to the Amended Complaint, two preference-eligible, disabled veterans who already worked for the VA were selected instead of Plaintiff, in accordance with VA policy. Amend. Compl. at ¶ 6. In addition, Plaintiff avers that he was not hired a third time in April 2008, as a result of "disability discrimination and disability discrimination based on retaliation" for the filing of his complaint with the EEOC. Amend. Compl. at ¶ 8.

On August 18, 2011, Defendant filed the instant motion, arguing that the Amended Complaint should be dismissed because it again fails to plead facts sufficient to establish a prima facie case of employment discrimination.*fn3 In addition, the VA contends that Plaintiff‟s retaliation claim is subject to dismissal for failure to exhaust administrative remedies.

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a complaint. The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007), the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that only a complaint that states a plausibleclaim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (emphasis added).

A district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. First, the Court must separate the factual and legal elements of the claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the Court "must accept all of the complaint‟s well-pleaded facts as true, [it] may disregard any legal conclusions." Id. at 210-211. Second, the Court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟ In other words, a complaint must do more than allege the plaintiff‟s entitlement to relief. A complaint has to "show‟ such an entitlement with its facts." Id. at 211 (citing Iqbal, 129 S. Ct. at 1949). The determination of "plausibility" will be ""a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.‟" Id. at 211 (quoting Iqbal, 129 S. Ct. at 1950).

Legal Analysis

Defendant contends that Plaintiff‟s Amended Complaint should be dismissed for failure to state a prima facie case of disability discrimination as to either the March or May 2006 non- selection. In addition, the VA argues that Plaintiff is barred from pursuing the additional claims of retaliation and disability discrimination because he failed to first raise those claims with the EEOC. The Court will address each of these contentions seriatim.

A. Discrimination Claims Stemming from March and May 2006

The Court agrees that Plaintiff‟s Amended Complaint fails to cure the deficiencies of his Original Complaint. In granting the VA‟s initial motion to dismiss, the Court set forth the elements of a prima facie case of employment discrimination and explained to Plaintiff that he had to "provide a sufficient factual basis from which the Court may reasonably infer that Defendant is liable for the alleged ...


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