Doyle v. McDonough

MEMORANDUM OPINION

Ellen Lipton Hollander United States District Judge

The self-represented plaintiff, Jocelyn L. Pennella Doyle, filed an employment discrimination and retaliation action arising out of her former employment in West Virginia at the Department of Veterans Affairs (the “VA, ” the “Department, ” or the “Agency”). ECF 1. She initially sued Robert Wilke, who was then Secretary of the Department;^[1] Administrative Judge Mark Syska (“Judge Syska”) of the Merit Systems Protection Board (“MSPB”); and Timothy Cooke, “VA Medical Director.” Id. With her initial filing, plaintiff included a copy of a decision issued by the Equal Employment Opportunity Commission (“EEOC”) Office of Federal Operations (“OFO”). See Stacie D. v. Wilkie, Petition No. 2020004671, 2020 WL 6710397 (2020); ECF 1-2. There, she was denied relief as to her discrimination claims.^[2]

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Thereafter, with leave of court (ECF 15), plaintiff filed a rambling, 55-page Amended Complaint (ECF 16), joining seven new defendants, all of whom are Agency employees. They include Denis Tim Sullivan, Kent E. McClure, Alice Torres, Dr. Michael Zapor, Vanessa Parsons, and Sharon Self (collectively with Timothy Cooke, the “Individual Defendants”). ECF 16 at 1. In addition, the Amended Complaint adds Kathy Fiery as a defendant. She is an Agency employee who also serves as a representative of the National Association of Government Employees (“NAGE”). ECF 16 at 1, 45; see ECF 34-1 at 2.

Plaintiff challenges the rulings of Judge Syska, complaining, inter alia, that he erroneously affirmed her termination by the Agency (ECF 16 at 2), violated her rights “by de-consolidating” her individual action from her “Whistleblowing case, ” id. at 3, misapplied and misinterpreted the law, id., and made several other errors that violated plaintiff's rights. Id. at 4-6. Therefore, she seeks to “Appeal the final ‘AFFIRMED' decision of CASE #PH-0714-18-0483-I-1 March 19, 2019, from MSPB Judge Mark Syska, affirming the Department of Veteran Affairs” in regard to plaintiff's discrimination claims. Id. at 6. As to the Individual Defendants, she alleges multiple claims, including wrongful termination based on her gender, disability, religion, and as a whistleblower; failure to promote; harassment; retaliation; failure to accommodate her disability; hostile work environment. As to Fiery, plaintiff appears to allege that Fiery, in her capacity as a NAGE representative, breached her duty of fair representation. ECF 16 at 6; see the Civil Service Reform Act (the “CSRA”), 5 U.S.C. §§ 7101, et seq.

Plaintiff invokes various federal statutes: the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq. (the “ADA”); Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). ECF 16 at 2. In her original suit, plaintiff also referenced the Whistleblower Protection

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Enhancement Act of 1996 (the “WPA”). See ECF 1 at 4. Although the WPA is not specifically mentioned in the Amended Complaint, plaintiff frequently references allegations pertaining to her status as a “whistleblower.” See, e.g., ECF 16 at 2, 6, 28, 35, 53.

A host of motions are pending. See ECF 22; ECF 23; ECF 29; ECF 34; ECF 27; ECF 40; ECF 41. They are described, infra.

As an initial matter, the Agency and Fiery each filed motions seeking extensions of time to respond to the Amended Complaint. ECF 18; ECF 20. I granted both motions. ECF 19; ECF 21. But, I also gave plaintiff an opportunity to move to rescind either order as improvidently granted. ECF 19; ECF 21. Plaintiff filed a timely motion objecting to these extensions. ECF 23.

The Agency has filed a motion to dismiss for improper venue or, in the alternative, to transfer the case to the Northern District of West Virginia, pursuant to Fed.R.Civ.P. 12(b)(3). ECF 29. It is supported by a memorandum (ECF 29-1) (collectively, the “Agency Motion”) and an affidavit from an Agency official (ECF 29-2). The Agency Motion also urges the Court to dismiss the case as to the Individual Defendants. ECF 29-1 at 5. Plaintiff responded. ECF 31. The Agency has not replied, and the time to do so has expired. See Local Rule 105.2(a).

Fiery filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), claiming lack of subject matter jurisdiction, and under Rule 12(b)(6), asserting failure to state a claim. ECF 34. The motion is supported by a memorandum of law. ECF 34-1 (collectively, the “Fiery Motion”). In plaintiff's response to the Fiery Motion (ECF 38), plaintiff filed a supporting exhibit, which includes over 150 pages of emails between Ms. Doyle and various Agency officials and NAGE representatives. See ECF 38-1. Fiery has replied. ECF 39.

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Plaintiff has also filed a renewed motion requesting appointment of counsel. ECF 22.^[3] In addition, plaintiff has filed three motions that I construe as motions to amend the Complaint: a motion that appears to seek to add NAGE and its Deputy General Counsel, Sarah Suszczyk, as defendants (ECF 27); a motion to “attach Supplemental Exhibits” (ECF 40); and a motion that appears to object to further administrative hearings before the MSPB (ECF 41). NAGE and Ms. Suszczyk oppose their joinder to this suit. ECF 35.

The motions have been fully briefed and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I shall grant the Fiery Motion. In addition, I shall grant the Agency Motion as to the Individual Defendants and Judge Syska. I shall also dismiss plaintiff's ADA claim against the VA. Moreover, I shall deny all of plaintiff's motions. And, I shall transfer the remainder of the case to the District Court for the Northern District of West Virginia.

I. Factual Background^[4]

I incorporate by reference the factual background and procedural history set forth in my Order of February 9, 2021. ECF 12. I have also included facts as described in related legal proceedings: Doyle v. Dep't of Veterans Affairs, MSPB No. PH-0714-18-0483-I-1, 2019 WL 1315767 (March 19, 2019) (“Doyle I”), ECF 40-1 at 10-43; Doyle v. Dep't of Veterans Affairs, 855 Fed.Appx. 753 (Fed. Cir. 2021); Stacie D., Petition No. 2020004671, 2020 WL 6710397 and

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Doyle v. Dep't of Veterans Affairs, MPSB No. PH-1221-18-0012-W-3, 2019 WL 2745924 (June 29, 2019) (“Doyle II”).^[5]

On July 26, 2015, plaintiff was hired by the VA to work as a dental assistant in the Martinsburg, West Virginia office of the Veterans Health Administration. ECF 16 at 9. Ms. Doyle alleges that her supervisors and colleagues initially conferred “accolades and awards for [her] contributions.” Id. at 7-8.

In December 2016, Ms. Doyle lodged a complaint with the MSPB, after the Department failed to promote her to a position for which she believed she was qualified. Id. at 10. This led to discussions with Fiery and Susan Anderson, another NAGE representative. Id.

Further, plaintiff alleges that on December 14, 2016, she made a “protected disclosure concerning a safety Risk to the Safety Officer Krista Bowen. . . .” Id. at 11. As described by the Federal Circuit, Ms. Doyle was concerned that “members of the dental clinic were removing used surgical razor blades and scalpels from medical tools with their fingers . . . .” Doyle, 855 Fed.Appx. at 753. Plaintiff was particularly concerned because although “the department and its leadership” had knowledge “of the issue for six months, ” dental assistants continued to “remov[e] the blades with their fingers.” Id.

According to plaintiff, she was thereafter “branded . . . as a troublemaker, specifically chastised . . . for making protected disclosures, and subjected . . . to retaliatory actions, including a less than deserved performance rating, placement under many investigations, reassignment away from clinical duties, discrimination, hostile environments, [and] unfair workloads.” ECF 16 at 9. Ms. Doyle also alleges that her coworkers “created a hostile work environment” by taunting and

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harassing plaintiff for making disclosures regarding the alleged hazardous practices. ECF 16 at 12. Moreover, Ms. Doyle contends that one of her supervisors, Stacy Moody, publicly expressed frustration that plaintiff had reported these alleged issues outside of her “chain of command.” Id. And, plaintiff claims that another supervisor, Maureen Sowers, refused plaintiff sick leave “to care for [her] older daughter who had surgery . . . .” Id. at 11.

Ms. Doyle filed a complaint with the Office of Special Counsel (“OSC”) on December 27, 2016, after attempting unsuccessfully to obtain help from Fiery and Ms. Anderson. Id. at 13. She claimed that she was experiencing retaliation for her whistleblowing activity. Id. at 13, 17-18.

Soon after, Ms. Doyle filed a complaint with “Dr. McCutcheon, Chief Resident Dental Director, ” regarding the poor patient care exhibited by one of her colleagues, Dr. Kevin Patel. Id. at 13. Weeks later, Dr. Patel submitted a complaint against Ms. Doyle, claiming plaintiff was neglectful and abusive to her patients and aggressive towards her colleagues. Id. As a result of this complaint, the Agency empaneled an Administrative Investigation Board (“AIB”) to investigate Dr. Patel's allegations. Id. at 19-20. As recounted by the Federal Circuit, the AIB “was tasked with investigating all allegations concerning whether Ms. Doyle had engaged in: (a) incidents of patient abuse, mistreatment, or neglect; (b) violation of patient treatment procedures and protocols; (c) bullying, disrespectful, insulting, abusive, or obscene language, or conduct; and (d) refusal to carry out supervisors' or physicians' orders or willful resistance to...