Gore v. Wilkie

CAMERON GORE, et al., Plaintiffs, v. ROBERT WILKIE, Secretary of the U.S. Dep't of Veterans Affairs, et al., Defendants.

Civil Action No. 19-cv-1134 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 31, 2020

MEMORANDUM OPINION

Plaintiff Cameron Gore worked as an attorney in the Office of the General Counsel at the Department of Veterans Affairs ("VA") for nearly twenty years before he resigned in May 2018. Dkt. 8 at 4, 13 (Am. Compl. ¶¶ 9, 22(EE)). He alleges that he resigned (1) because two of his colleagues, Robert Fleck and Kristina Wiercinski—a married couple who were investigated for misconduct related to Wiercinski's hiring by the office—lied to investigators about when Gore called Wiercinski to offer her a job at the VA; (2) because the VA failed to terminate Fleck for his misconduct and for lying to the investigators and failed take any other meaningful disciplinary action; and (3) because it became intolerable for Gore to continue working alongside Fleck and Wiercinski in light of these events and to continue working for an agency that failed to take his allegations or the misconduct at issue seriously. See Dkt. 8 at 10-15 (Am. Compl. ¶ 22). Gore further alleges that the offending conduct continued after he left the VA, when Fleck sued the VA and continued to make the same false statements in his complaint about Gore's actions, and the VA took no steps to correct those allegedly false allegations. Id. at 13-14 (Am. Compl. ¶¶ 22(FF)-(MM)). According to Gore, Fleck and Wiercinski acted in the course of their employment at the VA, and senior VA officials (most notably the General Counsel) also engaged in related acts of misconduct in the course of their employment. See id. at 15 (Am. Compl. ¶ 22(OO)) (quoting a letter from VA disputing Gore's contention that VA employees acted within the scope of their employment). Based on the narrative set forth in his 112-page amended complaint, Gore contends that he is entitled to recover from the VA under the Federal Tort Claims Act, 28 U.S.C. § 1346, for intentional and negligent infliction of emotional distress and constructive discharge. Id. at 62-84 (Am. Compl. ¶¶ 88-107). Gore's spouse, Plaintiff Heather Woods, brings a separate claim for loss of consortium arising out of this same alleged misconduct. Id. at 84-85 (Am. Compl. ¶ 108). Defendants move to dismiss all of Plaintiffs' claims for lack of subject-matter jurisdiction or, in the alternative, for failure to state claims upon which relief can be granted. See Dkt. 19.

For the following reasons, the Court will GRANT Defendants' motion to dismiss.

I. BACKGROUND

A. Factual Background

The following allegations from Plaintiffs' complaint are taken as true for purposes of Defendants' motion to dismiss. See Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).

Gore worked as an attorney in the VA's Office of General Counsel ("OGC") from January 1999 until May 4, 2018, when he resigned from his job as Chief Counsel for the OGC's Real Property Law Group. Dkt. 8 at 4, 13 (Am. Compl. ¶¶ 9, 22(EE)). His complaint centers on the VA's investigation of Robert Fleck—a coworker of Gore's—and Fleck's actions related to the OGC's hiring of Fleck's wife, Kristina Wiercinski, as an e-discovery attorney who wouldprovide support to both Gore and Fleck's groups within the OGC. See Dkt. 8 at 5, 8-9 (Am. Compl. ¶¶ 10-11, 18-19).

In June 2016, the VA's Deputy General Counsel, Richard Hipolit, asked Fleck for Wiercinski's resume in connection with hiring new attorneys in the OGC, and Fleck provided him the resume. Id. at 10 (Am. Compl. ¶ 22(A)-(B)). In early August 2016, Gore, Fleck and others within the OGC conferred and decided that, instead of hiring a general staff attorney to fill a vacancy within Gore's group, the office should hire an e-discovery attorney. See id. (Am. Compl. ¶ 22(C)). On August 12, 2016, the OGC posted the vacancy on an internal webpage and indicated that any applications from non-VA employees should be sent directly to Gore for evaluation. Id. (Am. Compl. ¶ 22(E)). On August 16, 2016, two OGC employees applied for the position. Id. (Am. Compl. ¶ 22(F)). On August 18, 2016, Wiercinski sent Gore her application by email. Id. (Am. Compl. ¶ 22(G)).

On September 30, 2016, Fleck emailed Wiercinski certain "[c]onfidential VA [i]nformation" from his work computer to her personal computer. Id. at 11 (Am. Compl. ¶ 22(I)). On October 4, 2016, a panel of OGC attorneys interviewed all three candidates for the vacancy and recommended Wiercinski to Gore "as the only candidate to be considered for the position." Id. (Am. Compl. ¶ 22(J)). That same day, Gore requested and received "clearance" from human resources to contact Wiercinski and to inform her that she has been "selected" for the position. Id. (Am. Compl. ¶ 22(K)-(L)).

Following the VA's decision to hire Wiercinski, the VA's Office of Inspector General ("OIG") investigated whether Fleck improperly played a role in the agency's decision to hire his wife. Id. at 8 (Am. Compl. ¶ 18). Gore alleges that both Wiercinski and Fleck "lied repeatedly" "under oath" in the course of that investigation and, in particular, that they "falsely alleg[ed] thatGore telephoned Wiercinski in mid-Sept[ember] 2016[] and offered her the e-discovery position," id. at 9 (Am. Compl. ¶ 19)—that is, before Fleck allegedly sent Wiercinski any confidential VA information. Gore vehemently disputes that he called Wiercinski before the panel interviewed the applicants and recommended that the VA hire Wiercinski. See, e.g., id. at 9, 10 (Am. Compl. ¶¶ 19, 22(H)). To do so, Gore explains, would have been "prior to and outside of the well-established . . . processes, procedures [and] protocols" of the VA. Id. at 9 (Am. Comp. ¶ 19). Gore further alleges that, as a result of Fleck and Wiercinski's false testimony, he "bec[ame] a 'subject of the investigation.'" Id. at 12 (Am. Compl. ¶ 22(S)). On March 29, 2018, the OIG issued its report which found, among other things, that "Fleck [and] Wiercinski lied repeatedly about Gore while testifying under oath to multiple OIG investigators." Id. at 12 (Am. Compl. ¶ 22(W)). The report also allegedly recommended that Fleck be terminated. See id. at 12 (Am. Compl. ¶ 22(V), (Z)).

In April 2018, after issuance of the report, Gore continued to follow up with leadership in the OGC about the "accountability process regarding the OIG report." Id. at 12 (Am. Compl. ¶ 22(X)—(Y)). He was, however, "rebuffed." Id. at 12 (Am. Compl. ¶ 22(X)). Gore also expressed "safety concerns about having to continue [to] work[] with . . . Fleck [and] Wiercinski," id. at 13 (Am. Compl. ¶ 22(AA)), after Fleck was not fired, notwithstanding the OIG report's recommendation, id. at 12-13 (Am. Compl. ¶ 22(Z)). Gore ultimately took a leave of absence from April 23, 2018 to May 4, 2018, after which he resigned his position. Id. at 13 (Am. Compl. ¶ 22(DD)-(EE))

After Gore resigned, Fleck filed a lawsuit in this Court against the VA under the Privacy Act, alleging that the OIG report contained false information and asserting that Gore called Wiercinski in mid-September 2016. Id. (Am. Compl. ¶ 22(FF)); see also Fleck v. Dep't ofVeterans Affairs Office of the Inspector Gen., No. 18-cv-1452 (D.D.C. filed Jun. 20, 2018). The VA moved to dismiss the suit and, Gore alleges, the attorneys at the Department of Justice representing the VA failed to advise this Court that the agency had already "reviewed and concurred with the [OIG's] finding" that Gore did not call Wiercinski to offer her the job in mid-September 2016. Dkt. 8 at 12 (Am. Compl. ¶ 22(LL)); see also Fleck v. Dep't of Veterans Affairs, Office of the Inspector General, 2020 WL 42842 (D.D.C. Jan. 3, 2020).

B. Procedural Background

On April 19, 2019, Gore filed this suit against Secretary Wilkie and the Department of Veterans Affairs for intentional infliction of emotional distress (Count I), Dkt. 8 at 62-80 (Am. Compl. ¶¶ 88-102); negligent infliction of emotional distress (Count II), id. at 80-82 (Am. Compl. ¶¶ 103-04); and constructive termination (Count III), id. at 82-84 (Am. Compl. ¶¶ 105-07). His spouse, Heather Woods, joins the action and seeks to recover on a theory of loss of consortium (Count IV). Id. at 84-85 (Am. Compl. ¶ 108).

II. LEGAL STANDARD

"A motion to dismiss under Rule 12(b)(1) challenges the court's jurisdiction to hear a claim and may raise a 'facial' or a 'factual' challenge to the court's jurisdiction." Lemma v. Hispanic Bar Ass'n, No. 17-2551, 2019 WL 4043983, at *2 (D.D.C. Aug. 27, 2019). A facial challenge asks whether the plaintiff has alleged facts sufficient to establish the court's jurisdiction, while a factual challenge asks whether "the complaint [as] supplemented by undisputed facts evidenced in the record, or the complaint [as] supplemented by undisputed facts plus the court's resolution of disputed facts" establish that the court has jurisdiction. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). The plaintiff bears the burden ofestablishing that the Court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

A motion to dismiss for failure to state a claim under Rule 12(b)(6), in contrast, "tests the legal sufficiency of the allegations contained in the complaint." Betesfa v. United States, 410 F. Supp. 3d 132, 137 (D.D.C. 2019). A complaint must contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (ellipsis in original). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. Instead, the...