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Thomas v. Wilkie

United States District Court, W.D. North Carolina, Asheville Division

February 22, 2019

ANGELA L. THOMAS, Plaintiff,
v.
ROBERT WILKIE, [1]Defendant.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf United States Magistrate Judge

         This matter is before the Court on Defendant's Partial Motion to Dismiss[2] (Doc. 13) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons addressed below, the undersigned recommends that Defendant's Partial Motion to Dismiss be granted.

         I. Procedural Background

         On July 12, 2017, Plaintiff, proceeding pro se, initiated this action in the United States District Court for the Southern District of Georgia. See Compl. (Doc. 1). At the same time, Plaintiff filed a motion to proceed in forma pauperis, which was granted. See (Doc. 3).

         On August 8, 2017, Plaintiff filed an Amended Complaint. See (Doc. 4). On April 20, 2018, Defendant filed the instant Motion to Dismiss or Transfer Venue (Doc. 13). On May 10, 2018, Plaintiff filed an Opposition (Doc. 14).

         On May 15, 2018, United States Magistrate Judge G. R. Smith deferred ruling on the Motion to Dismiss and granted the Motion to Change Venue, transferring the case to this Court. See (Doc. 15).

         On November 16, 2018, the undersigned directed the parties to submit a list of controlling authorities for courts within the Fourth Circuit. See (Doc. 18). Both parties complied. See (Docs. 19, 22).

         On December 14, 2018, Plaintiff filed a Motion to Appoint Counsel (Doc. 20), which was denied. See (Doc. 23).

         II. Factual Background

         While Plaintiff's Amended Complaint is not a picture of clarity, the facts as alleged, viewed in the light most favorable to Plaintiff, appear to be as follows:

         On an unknown date, Plaintiff commenced employment with the Department of Veterans Affairs, Mid-Atlantic Consolidated Patient Account Center (“VA-MACPAC”), in Asheville, North Carolina, as a Program Support Assistant. Am. Compl. (Doc. 4) ¶ 7. During Plaintiff's employment, VA-MACPAC had approximately 500 employees, though less than 10% were black. Id. ¶ 15.

         On January 20, 2011, Plaintiff received notice that she was able to be considered for the position of Financial Administrative Assistant under vacancy announcement number M - 730 - 008RRB - 11 (8 vacancies) (“Financial Administrative Assistant #1”). Plaintiff interviewed with Jim Glover (“Glover”) in February 2011 but received notice on March 8, 2011 that she had not been selected. Plaintiff alleges that she was more qualified than the Hispanic and white applicants who were selected for these vacancies. Id. ¶ 16 (a).

         On July 28, 2011, Plaintiff interviewed with Glover and Lesley Wright for the position of Supervisory Program Specialist (IV), GS - 301 - 07/09 under vacancy announcement OY484387BJG (two vacancies) (“Supervisory Program Specialist”). In mid-August 2011, Plaintiff was informed that Glover had filled one of the vacancies but had decided not to fill the second vacancy at the time. Id. ¶ 16 (b).

         On October 4, 2011, Plaintiff applied for the position of Financial Administrative Assistant, under Vacancy Announcement Number OY534149JAS (four vacancies) (“Financial Administrative Assistant #2”). Id. ¶ 17. Plaintiff claims that white applicants were treated more favorably, including being given preferences during the panel scoring and being given inside information, which negatively impacted Plaintiff's chances of being interviewed. Id. ¶ 19.

         On November 17, 2011, Plaintiff received notice that she was qualified for the position of Program Specialist (QA) GS - 301 - 09 under vacancy announcement number OYS19000BMK (one vacancy) (“Program Specialist”). In connection with her application for this position, Plaintiff was required to take an Excel test, which she contends was used to eliminate her from the selection process in favor of a white applicant.

         In relation to her application for the Financial Administrative Assistant # 2 position, Plaintiff was given zeros in many qualification categories on an evaluation dated December 15, 2011, even though she had similar if not better qualifications than some of the white candidates. Id. ¶ 20.

         On January 6, 2012, Plaintiff learned that a selection for the Program Specialist Position had been made at the end of December 2011 and that she had not been selected. Id. ¶ 16.

         Beginning on January 9, 2012, Plaintiff had a series of communications with her union president, Terry Wyatt, and voiced concerns about racial discrimination. Id. ¶¶ 17, 22, 23.

         On March 30, 2012, Plaintiff received an automated notice, which advised her that she was not selected for the Financial Administrative Assistant #2 position. Id. ¶ 17. The individuals ultimately selected to fill the Financial Administrative Assistant #2 vacancies could not be placed because there was negligence in the hiring practices. Id. ¶ 17. Three candidates were given “settlements” because of the erroneous hiring process, though Plaintiff was ignored. Id. ¶ 23. It appears that a second panel of applicants was assembled, though Plaintiff was not provided information in that regard. Id. ¶ 18.

         Plaintiff alleges that, at all times, she performed her job competently and was awarded for good job performance and ethics until she began requesting information regarding her non-selection to the positions of Financial Administrative Assistant #1, Supervisory Program Specialist, and Program Specialist. Id. ¶ 16.

         On April 9, 2012, Plaintiff made her “initial counseling contact.” Id. ¶ 24. Neither counseling nor the alternative dispute resolution process resulted in a resolution. Id.

         On May 15, 2012, Plaintiff filed a formal complaint of racial discrimination. Id. ¶ 25. This complaint was partially accepted for investigation on July 24, 2012. Id. ¶ 26.

         Plaintiff alleges that in retaliation for filing her EEO complaint, (1) her supervisor retracted a previous recommendation that Plaintiff be given a pay increase; (2) other employees attempted to delay and later closed a FOIA request Plaintiff had submitted; (3) Director Victor Cruz and Robin Ball refused to acknowledge her retirement or give her a certificate upon her exit, as was done for other retirees; and (4) she was given a negative evaluation, which led to her non-selection for the Financial Administrative Assistant #2 vacancies. Id. ¶¶ 20, 33.

         On December 11, 2013, Plaintiff received an Order of Decision without a Hearing signed by Administrative Judge Mary M. Ryerse. Id. ¶ 27. Judge Ryerse ruled in favor of Defendant. Id.

         On January 29, 2014, Plaintiff filed an appeal of Judge Ryerse's order with the EEOC, Office of Federal Operations. Id. ¶ 28.

         On February 27, 2014, the Office of Federal Operations sent a “Notice to Show Cause” to Defendant advising her to submit the entire complaint file within a specific time period or the ...


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