United States District Court, W.D. North Carolina, Asheville Division
ANGELA L. THOMAS, Plaintiff,
ROBERT WILKIE, Defendant.
MEMORANDUM AND RECOMMENDATION
Carleton Metcalf United States Magistrate Judge
matter is before the Court on Defendant's Partial Motion
to Dismiss (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.
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.
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).
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).
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).
December 14, 2018, Plaintiff filed a Motion to Appoint
Counsel (Doc. 20), which was denied. See (Doc. 23).
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:
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.
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).
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).
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.
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
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.
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.
on January 9, 2012, Plaintiff had a series of communications
with her union president, Terry Wyatt, and voiced concerns
about racial discrimination. Id. ¶¶ 17,
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.
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.
April 9, 2012, Plaintiff made her “initial counseling
contact.” Id. ¶ 24. Neither counseling
nor the alternative dispute resolution process resulted in a
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.
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.
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.
January 29, 2014, Plaintiff filed an appeal of Judge
Ryerse's order with the EEOC, Office of Federal
Operations. Id. ¶ 28.
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 ...