Spence v. United States Dep't of Veterans Affairs

1

JO SPENCE, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.

Civil Action No. 19-1947 (JEB)

United States District Court, District of Columbia

August 12, 2022

MEMORANDUM OPINION

JAMES E. BOASBERG, DISTRICT JUDGE

Plaintiff Jo Spence, a Black woman over the age of 40, believes that her former employer, the Department of Veterans Affairs discriminated against her based on her race, sex, and age and then ultimately fired her in retaliation for whistleblowing activity. She thus brought this pro se suit under the Whistleblower Protection Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Civil Service Reform Act, and the Department of Veterans Affairs Whistleblower Protection Act.

Although she is herself a lawyer, she has constantly violated this Court's directives on how to frame her Complaint; in fact, Spence's operative Second Amended Complaint represents her fifth attempt to bring these claims against the VA. On multiple occasions, this Court has rejected her proposed Complaints for circumventing the required page limits, but it has each time given her another chance to amend, rather than dismissing the case with prejudice for failure to comply with the Court's orders. The last time around, Plaintiff was warned that this would be her final opportunity to abide by these restrictions and to cure her prolixity and confusing allegations. On her most recent try she finally filed a Complaint that complies with the Court's page limits.

Defendants VA and Secretary Denis McDonough, whom the Court will jointly refer to as the VA, nonetheless now move for dismissal or summary judgment, contending that her latest effort fails to state a claim upon which relief can be granted. Because Plaintiff's allegations remain facially deficient, the Court will grant the Motion, putting an end to her efforts.

I. Background

A. Factual Background

The Court, as it must at this stage, draws the facts from the Second Amended Complaint, presuming them to be true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). As additional facts relevant to Spence's specific claims are discussed later in the Opinion, the Court provides here only an overview of her employment with the VA.

Plaintiff has been an attorney for over 36 years. See ECF No. 36 (Sec. Am. Compl.), ¶ 4. Although the Complaint is unclear on the specifics of her tenure as an attorney at the VA, Spence most recently worked as a senior attorney for the Office of the General Counsel (OGC), Procurement Law Group (PLG) between 2007 and 2018. Id., ¶ 7. She identifies herself as a Black female over the age of 40. Id., ¶ 11.

According to her, trouble began when, in November 2017, she filed a complaint against the agency alleging discrimination on the basis of her race, sex, and age. Id., ¶¶ 10-11. Around the same time, on some unspecified dates in 2017 and 2018, Spence also filed a series of whistleblower disclosures with the VA OGC, Inspector General, and Office of Special Counsel. Id., ¶ 10. Her grievances covered a broad range of topics, including accusing the agency of creating a hostile work environment in retaliation for her equal-employment-opportunity complaints, id., ¶¶ 11, 34, inappropriately hiring additional personnel for the PLG office at a higher salary level, id., ¶ 30, and granting unlawful preference to those applicants for employment. Id., ¶ 39.

Spence contends that, as a result of these disclosures and because of her membership in protected classes, she became the subject of a campaign of discrimination and retaliation. Id., ¶¶ 10-27. She also developed an acrimonious relationship with her direct supervisors. During the year prior to her removal, she sparred with them via email about her performance on work assignments, e.g., id., ¶¶ 34, 49-51, 54, 57, 59, the office's decision to hire new attorneys, id., ¶ 67, and the belated approval of her leave request. Id., ¶¶ 16, 80. Spence was also issued a series of counseling and admonishment letters, denied a transfer of office, and suspended for three days in the summer of 2018. Id., ¶¶ 13-27, 31. Shortly thereafter, her supervisors proposed her removal. Id., ¶¶ 7, 26. The VA ultimately adopted the proposal and fired Spence in October 2018. Id., ¶ 27.

B. Procedural History

Plaintiff responded by challenging her termination before the Merit Systems Protection Board, an independent agency charged with adjudicating conflicts between federal workers and their employing agencies, which denied her appeal in a decision that became final on May 31, 2019. Id., ¶ 8. She then filed this suit, alleging in a capacious 98-page Complaint that the VA had unlawfully discriminated against her based on race, sex, and age in violation of the WPA, Title VII, the ADEA, the CSRA, and the VA WPA. See ECF No. 1 (Compl.) at 1-3.

Following a mutually agreed-upon stay of proceedings related to the pandemic, the action resumed in June 2021 when Defendants moved for summary judgment. See ECF No. 20 (Def. MSJ); see also Minute Order of Sept. 29, 2020 (lifting stay). Spence then sought leave to file an Amended Complaint in July 2021 and proposed a version spanning 234 pages, which added a sixth count (itself over 139 pages) challenging the MSPB's decision upholding her removal. See ECF No. 22 (Proposed Am. Compl. 1). This Court denied Spence's motion without prejudice on the ground that the new Complaint was far too long, and it allowed her to refile, provided her pleading did not exceed 50 pages. See Minute Order of July 30, 2021; see also Fed.R.Civ.P. 8(a)(2). On her second go-round in August 2021, Plaintiff reduced her proposed Amended Complaint to a mere 146 pages. See ECF No. 23 (Proposed Am. Compl. 2). This Court, unsurprisingly, handed Spence a familiar result: her Motion to Amend was denied, and she was reminded of the 50-page limit. See Minute Order of Sept. 2, 2021. One month later, Plaintiff proposed what appeared at first glance to be a 50-page Amended Complaint, see ECF No. 24 (Proposed Am. Compl. 3), which this Court initially accepted.

The VA, however, moved to dismiss, noting that Plaintiff had still violated this Court's orders. See ECF No. 30 (Def. MTD Am. Compl. 1) at 4. As it turned out, although the Complaint itself was 50 pages, it incorporated by reference a 57-page “Statement of Facts,” thus rendering her Third Proposed Amended Complaint 107 pages in length. Id. Recognizing this as no more than a “creative method of circumventing page limits,” this Court expressed its frustration with “Plaintiff's flagrant disregard for the limits the Court ha[d] imposed” and once again sent her back to square one, dismissing the First Amended Complaint. See ECF No. 33 (Order Dismissing Am. Compl. 1) at 2. Again indulging her pro se status, the Court chose to dismiss the Complaint without prejudice, giving Plaintiff “one more opportunity” to amend. Id. at 1. In doing so, however, the Court warned her that it would “behoove [her] to be as concise as possible on her fourth attempt” and cautioned that this opportunity to amend - her fourth in eight months - would be “her final one.” Id. at 2.

Two weeks later, Spence at last proposed a 50-page Second Amended Complaint, see ECF No. 34 (Proposed Am. Compl. 4), which contained all the claims from her prior pleadings, but removed references to the 57-page “Statement of Facts.” The Court accepted this Second Amended Complaint, which is the operative one here. See Minute Order of Apr. 14, 2022. This pleading alleges six counts: discrimination on the basis of race, sex, and age in violation of Title VII, the ADEA, and the WPA, and retaliation for protected EEO and whistleblowing activity in violation of the same (Count I); reprisal for whistleblowing activity in violation of the WPA (Count II); hostile work environment on the basis of race, sex, and age in violation of Title VII, the ADEA, and the WPA (Count III); harmful procedural error in Spence's firing in violation of the VA WPA (Count V); and an appeal of the MSPB decision upholding her firing as arbitrary and capricious (Count VI). The VA now moves to dismiss or, in the alternative, for summary judgment. See ECF No. 37 (Def. MTD).

II. Legal Standard

Defendants first argue that this Court should dismiss Plaintiff's WPA claims for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). A plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear her claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

The VA next asserts that it is entitled to summary judgment on Plaintiff's claim of harmful procedural error in violation of the WPA and its counterpart, the 2017 VA WPA. Summary judgment may be granted if “the movant shows that there is no genuine dispute...