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Rizzo v. Wilkie

United States District Court, E.D. Kentucky, Northern Division, Covington

March 25, 2019

ROBERT L. WILKIE, JR., Secretary[1] of Department of Veterans Affairs DEFENDANT



         This matter is before the Court on Defendant's Motion to Dismiss (Doc. # 16). Plaintiff, proceeding pro se, has filed a Response, which was supplemented. (Docs. # 21 & # 24).[2] Defendant has filed his Reply. (Doc. # 22). Therefore, the motion is ripe for review. For the reasons set forth below, Defendant's Motion will be granted.

         I. Factual/Procedural Overview

         As explained in footnote 2, Plaintiff has filed three actions with this Court with respect to her employment with the Cincinnati Department of Veterans Affairs: No. 2:17-cv-95-DLB-CJS (“Rizzo I”), filed June 12, 2017; No. 2:18-cv-35-DLB-CJS (“Rizzo II”), which is the within action filed March 9, 2018; and No. 2:18-cv-135-DLB-CJS (“Rizzo III”), filed July 25, 2018.[3] In view of the somewhat convoluted procedural history of the three cases, some limited discussion of the collective factual background of these three actions is necessary to properly address the current Motion to Dismiss.

         Plaintiff Rizzo worked for the Cincinnati Department of Veterans Affairs (“VA”) as an Administrative Assistant at the VA's Fort Thomas Community Living Center (“CLC”). (Rizzo I, Doc. # 13, at 1; Doc. # 13-1, at 4). Plaintiff also served as the time keeper for the CLC, and Union Steward. (Rizzo I, Doc. # 13-1, at 5; Doc. # 22, at 2). Plaintiff provides that as a Union Steward, she has represented other employees in EEOC cases against the Cincinnati VA. (Rizzo I, Doc. # 13, at 4).

         Plaintiff was first terminated from her position with the VA in December 2008. (Rizzo I, id. at 3; Doc. # 22, at 2). Subsequently, Plaintiff filed a complaint with the Office of Resolution Management of the EEOC and asserted that the termination resulted because she filed an official complaint with the VA after being harassed by a co-worker. (Rizzo I, Doc. # 13, at 1-2, 3; Doc. # 13-1, at 30). In March 2010, the parties entered into a settlement agreement regarding the 2008 termination, wherein they agreed Plaintiff would be reinstated to her position of Administrative Assistant at the CLC. (Rizzo I, Doc. # 13, at 13; Doc. # 13-1, at 30-32; Doc. # 22, at 2).

         Following reinstatement, around June 2010 the Plaintiff filed a second complaint with the EEOC after additional alleged harassment by a co-worker. (Rizzo I, Doc. # 13, at 1, 3; Doc. # 22, at 2). This complaint was also resolved via settlement agreement in November 2011. (Rizzo I, Doc. # 13-1, at 34-36). The agreement indicates that following the filing of her June 2010 complaint, Plaintiff had been issued a 14-day suspension in August 2011. (Rizzo I, id. at 34). Neither agreement is the subject of litigation currently before this Court. The record indicates that Plaintiff filed an additional formal complaint with the EEOC on January 6, 2011 (id. at 39) alleging harassment by a co-worker, and a complaint with the Office of Resolution Management in 2012. (Rizzo I, Doc. # 13, at 5).

         The lawsuit filed by Plaintiff in June 2017 as No. 2:17-cv-95 (Rizzo I) arises out of events occurring from September 2012 through March 2014. (Id. at 2). In February 2013, Plaintiff filed a formal complaint with the EEOC (id. at 5; Doc. # 13-1, at 23; Doc. # 22, at 3), wherein she alleged the VA discriminated against her based on race, national origin, sex, and reprisal for prior protected activity. (Rizzo I, Doc. # 13-1, at 23-24). The alleged discrimination was based on acts that allegedly began to occur in 2012 and continued through 2013. (See Id. at 24). The ALJ assigned to Plaintiff's case held a hearing on July 9, 10, and 11, 2014, and issued a decision on September 8, 2014, finding that Plaintiff had failed to establish a prima facie case of harassment or retaliation, and further had failed to prove that the VA subjected her to the discrimination alleged. (Rizzo I, Doc. # 13-1, at 8). Plaintiff timely filed an appeal, and the EEOC issued its decision on November 3, 2016, finding in favor of the VA. (See id. at 4-15). However, the Commission did find per se retaliation with respect to a proposed 30-day suspension issued to Plaintiff. (Id. at 23-24). Plaintiff requested reconsideration of the appeal, which was denied on March 7, 2017. (Id. at 25, 27). Following the denial, Rizzo initiated Rizzo I on June 12, 2017, and filed an Amended Complaint in that case on September 19, 2017, alleging various Title VII claims. (Rizzo I, Docs. # 1 & 13).

         Following the filing of her initial February 2013 complaint with the EEOC, and prior to a final decision, Plaintiff was placed on administrative leave in March 2014. (Rizzo I, Doc. # 13, at 8; Doc. # 22, at 4). Defendant provides this decision was made because between December 2013 and February 2014 Plaintiff was involved in multiple altercations on VA premises, one of which resulted in a conviction of disorderly conduct. See United States v. Rizzo, No. 1:14-cr-124, 2015 WL 1475114 (S.D. Oh. Mar. 31, 2015); (Rizzo I, Doc. # 22, at 4). Plaintiff asserts that she remained on leave until October 2014, when her employment was terminated. (See Rizzo I, Doc. # 13, at 9; Rizzo II, Doc. # 2, at 2).

         Plaintiff provides that following her termination in October 2014, she filed a timely appeal with the EEOC Merit Systems Protection Board (“MSPB”). (Rizzo II, Doc. # 2, at 2, 4). Plaintiff alleges that the MSPB ALJ declared her a whistleblower, imposed a 3-day suspension in lieu of termination, and ordered that she be reinstated in March 2016. (Id. at 2). However, Plaintiff provides that the MSPB ALJ did not find the Agency responsible for any alleged retaliation. (Id. at 8). Rizzo asserts that this was because the Agency representatives lied under oath claiming not to have knowledge of her whistleblower activity. (Id.). Plaintiff alleges that following her reinstatement she was subjected to further discrimination and retaliation. (Id. at 3, 5). Specifically, Plaintiff alleges that “the VA ordered the Petitioner to come to work despite not issuing a badge or computer access and waiting nearly [two] months before paying her. The Agency [s]ubmitted paperwork indicating that they had reinstated her to her position as an Administrative Assistant” within the same department, however, she alleges she was involuntarily reassigned to the PTSD clinic even though her former position still existed. (Id. at 3, 5). The record shows that in April 2016, Plaintiff was reassigned as an Administrative Assistant in research in the “Trauma Recovery Center (commonly referred to as PTSD clinic).” (Rizzo II, Doc. # 16-3, at 4). Rizzo asserts that her new position required her to undergo additional training, did not equate to her previous duties, and stripped her of “all grade leveling duties and assignments.” (Rizzo II, Doc. # 2, at 5). She asserts that the Agency falsified documents to make it appear that she was reinstated to a position with a similar description. (Id.) She alleges that she requested transfers and applied to other open positions within the VA but was denied. (Id. at 6). Rizzo asserts that her employer “deliberately orchestrated an administrative scheme to place her in a position she did not want, in order to provoke her, create an atmosphere for a constructive discharge and/or a hostile work environment.” (Id. at 5).

         Once Plaintiff was relocated to the PTSD clinic, she failed to perform almost any task because she objected to the reassignment. (See Rizzo II, Doc. # 16-2, at 11-12; Doc. # 16-3, at 4). Plaintiff further admits that she began to repeatedly call in sick to work as a result of depression. (Rizzo II, Doc. # 2, at 6). On July 12, 2016, Plaintiff's supervisor suspended Rizzo for 10 days following an email sent in May 2016 in which the Plaintiff refused to perform an assigned task. (Rizzo II, Doc. # 16-3, at 5-6). On September 9, 2016, Plaintiff's supervisor suspended her for an additional 14 days on the basis that Plaintiff had failed to perform required training and sent emails deemed to be inappropriate. (Id. at 6-8). On November 18, 2016, Rizzo's employment was terminated. (Rizzo II, Doc. # 16, at 1; see Rizzo III, Doc. # 2, at 5).

         Plaintiff's reassignment and subsequent suspensions form the basis of Rizzo II, the instant action, in which Plaintiff seeks review of a final decision issued by the EEOC on February 6, 2018, addressing these actions. (See Rizzo II, Doc. # 2, at 1, 11-12). Following her September 2016 suspension, Plaintiff “attempted to file a complaint with the Office of Special Counsel (OSC) . . . [however, ] due to an OSC error her new allegations were added to a previous complaint filed in 2014.” (Rizzo II, Doc. # 16-3, at 8). On May 21, 2017, Plaintiff filed an individual right of action with the MSPB, asserting violations of the Whistleblower Protection Act and Whistleblower Protection Enhancement Act when she was involuntarily reassigned and issued the subsequent suspensions. (Id. at 3-4).

         The termination of Plaintiff's employment in November 2016 forms the basis of Rizzo III, in which Plaintiff seeks review of a final decision issued by the EEOC on June 13, 2018 regarding the removal from employment.[4] (See Rizzo III, Doc. # 2, at 1; Doc. # 2-1, at 52-56). Rizzo filed a timely administrative appeal from the Agency's termination of her employment on December 14, 2016. (Rizzo III, Doc. # 2-1, at 58). Pursuant to her request, the Plaintiff's December 2016 appeal to the MSPB was consolidated for hearing with her action filed May 21, 2017, concerning her 2016 suspensions. (Id. at 57; Rizzo II, Doc. # 16-2, at 1-2). A combined hearing was held on the appeals on October 23, 25, 26 and November 6-7, 2017. (Rizzo II, Doc. # 16-2, at 2; Rizzo III, Doc. # 2-1, at 57-58).

         The MSPB, acting without a quorum, subsequently issued a separate decision in each appeal. On November 16, 2017, addressing the May 2017 action directed to Plaintiff's reassignment and subsequent suspensions, the MSPB found that the VA did not violate the Whistleblower Protection Act or the Whistleblower Protection Enhancement Act. Rizzo v. Dep't of Veterans Affairs, No. CH-1221-17-0365-W-1, 2017 WL 5569384 (Merit Systems Protection Board Nov. 16, 2017); (Rizzo II, Doc. # 2, at 11; Doc. # 16-3). On January 21, 2018, Plaintiff filed a petition with the EEOC seeking review of the MSPB's decision. On February 6, 2018, the EEOC declined to consider the case because it involved only whistleblower issues and not discrimination. (Rizzo II, Doc. # 2, at 11). The MSPB decision provides that it became final on December 21, 2017, unless a petition for review with the Board is filed (Rizzo II, Doc. #16-3, at 14), and Plaintiff subsequently filed her Complaint with this Court in the instant case (Rizzo II) on March 9, 2018. (Rizzo II, Doc. # 2).

         In that Complaint, Rizzo alleges one count of retaliation for her whistleblower activities, and a claim of intentional infliction of emotional distress because the Agency required her to do the assigned duties in the PTSD Clinic even though she was not hired for that position and did not want to work in that department. (Id. at 6, 8). Specifically, she asserts that she suffered from a debilitating mental state as a result of the Agency's alleged retaliation. (Id. at 9). Rizzo further alleges the Agency failed to act in “good faith and fair dealings.” (Id. at 7). Plaintiff asserts that this Court has jurisdiction under the False Claims Act and seeks an award of compensatory damages under the Whistleblower Protection Act and Whistleblower Protection Enhancement Act, punitive damages, as well as a permanent injunction against future acts of retaliation. (Id. at 3, 9). Plaintiff's Complaint named the Secretary of the Department of Veterans Affairs, as well as individual Agency employees of the Department of Veterans Affairs. However, on March 26, 2018, the Court sua sponte dismissed Rizzo's claims against the individually named agency employees pursuant to 42 U.S.C. § 2000e-16(c). (See Rizzo II, Doc. # 10).

         As for Plaintiff's December 2016 appeal based upon the November 2016 termination of her employment, the MSPB issued its decision on January 9, 2018 (Rizzo III, Doc. # 2-1, at 57-104), in which the ALJ found that, although Plaintiff did make one protected disclosure as a whistleblower, she failed to prove that the disclosure was a contributing factor in her removal. Rizzo v. Department of Veterans Affairs, No. CH-752-17-0121-I-2, 2018 WL 400535 (Merit Systems Protection Board Jan. 9, 2018). Ultimately, the ALJ found that the penalty of termination of employment was reasonable and affirmed the VA's action. On March 13, 2018, Plaintiff timely filed a petition with the EEOC asking for review of the MSPB's decision. (Rizzo III, Doc. # 2-1, at 52). On June 13, 2018, the EEOC concurred with the MSPB's decision and found that the VA “articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated because she refused to do the work assigned to her.” (Id. at 54). The EEOC decision alerted Rizzo that she may file a civil action in an appropriate United States District Court based on the decision of the MSPB within thirty days of her receipt of its decision. (Id.) Rizzo subsequently filed her Complaint in No. 2:18-cv-135 (Rizzo III) on July 25, 2018. (Rizzo III, Doc. # 2). Therein, she asserts claims for retaliation (Count I), disparate treatment (Count II), hostile work environment (Count III), and further alleges the ALJ originally assigned to her MSPB claim erred in judgment. (Id., at 7, 10-11).

         II. Defendant's Motion to Dismiss

         On June 25, 2018 Defendant Secretary, through counsel, filed a Motion to Dismiss in lieu of filing an answer. (Doc. # 16). In his Motion, Defendant asserts this Court lacks jurisdiction to hear Plaintiff's claims because the U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over review of final decisions issued by the MSPB. (Doc. # 16-1, at 2) (citing 5 U.S.C. § 7703(b)(1)(A)). Defendant concedes that “mixed cases” involving both whistleblower and discrimination claims can be heard by a federal district court. However, he asserts this exception does not apply when discriminatory conduct is not alleged by the plaintiff and “the gravamen of [Plaintiff's] complaint surely is its narrative of whistleblowing and subsequent retaliation against her[.]” (Doc. # 16-1, at 3) (citing Gibbs v. Jewell, 36 F.Supp.3d 162, 167-68 (D.D.C. 2014)).[5] He argues Plaintiff failed to set forth any evidence of discrimination during the administrative proceedings, “other than the occasional unsupported statement of her belief that her race somehow contributed to retaliation[.]” (Id.). He notes that the EEOC's decision that Rizzo's claim did not constitute a “mixed case” is also persuasive. (See Doc. # 2, at 11).

         Defendant's Motion to Dismiss further argues that to the extent Plaintiff's case could be interpreted as appealing the denial of review by the EEOC, the result would be the same, as Rizzo has not pointed to any additional evidence that would justify reversal of the EEOC's decision that this is not a mixed case. (Doc. # 16-1, at 2 n.2). Further, he asserts even if the Court were inclined to consider jurisdiction over the case, Plaintiff's Complaint fails to state a claim under the False Claims Act, fails to state a claim based upon the Agency's alleged failure to engage in “good faith and fair dealings, ” and fails to state a claim for intentional infliction of emotional distress. (Id. at 3). He argues Rizzo can make no showing as to how contract law applies in this situation, and she has not alleged that she exhausted her administrative remedies for purposes of any tort claim. (Id. at 3-4).

         In response, Rizzo states she “wishes to AMEND this instant case to introduce the mixed motive analysis involving both” whistleblower and discrimination claims and alleges facts which would tend to support a discrimination claim. (Doc. # 21-1, at 13, 15). She goes on to argue, however, that the initial MSPB decision in this case “was actually a mixed case claim involving allegations of discrimination for which the MSPB did not rule” on the discrimination matters, “but ultimately declared her a whistleblower[.]” (Doc. # 21-2, at 15, 16). Further in response, Plaintiff argues that the ALJ “did not decide on both cases at the same time however the joinder of the claims gave rise to the mixed case analysis[.]” (Doc. # 21-1, at 14). Plaintiff agrees in her response that judicial review of a “final decision of the Board falls within the exclusive jurisdiction of the Federal Circuits.” (Doc. # 21-1, at 13). However, she argues that she has not received a “final order” by the Board but rather a Bench Decision. (Id.). Additionally, Plaintiff argues that “she has a right to seek review in [f]ederal [c]ourt as a result of following the procedures outlined in her appeal instructions and claims.” (Id., at 14). ...

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