Silveria v. Wilkie

Background

Anthony J. Silveria, proceeding without a lawyer, sued Robert Wilkie, identified as the Secretary of the Department of Veterans Affairs. Silveria alleged that the Department discriminated against him because of disability and retaliated against him for whistleblowing and filing employment-discrimination complaints. He also alleged that the Department denied him a within-grade pay increase, removed him from federal service, failed to provide reasonable accommodation, and violated federal protections concerning health information.

Silveria worked as a Rating Veterans Service Representative in the Department’s Oakland office from September 2009 until his removal on June 29, 2014. He alleged that he had multiple medical conditions and that the Department took various adverse actions against him, including ordering him back to work while on leave, suspending him, proposing his removal, denying a within-grade increase, and charging him with unauthorized absences.

The court had previously dismissed Silveria’s first amended complaint with leave to amend and instructed him to organize his allegations by claim and plead exhaustion of required administrative remedies. Silveria then filed the second amended complaint, which asserted five claims. Wilkie moved to dismiss under Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). Rule 12(b)(1) concerns subject-matter jurisdiction, and Rule 12(b)(6) concerns whether a complaint adequately states a legal claim.

Rulings on Pleading and Administrative Exhaustion

The court denied the motion to dismiss on Rule 8 grounds. Although the second amended complaint was lengthy and unclear in some respects, the court found that Silveria had attempted to organize the allegations chronologically and by claim, identify the relevant actors and time periods, and request relief. The court stated that it would address the sufficiency of the Rehabilitation Act and Whistleblower Protection Act claims, as well as administrative exhaustion, under the Rule 12 standards.

The court held that federal employees must generally complete the required administrative process before bringing employment-discrimination claims in federal court. It found that Silveria’s claims were not consolidated in the administrative proceedings and therefore considered each claim separately.

The court found the removal-related disability-discrimination and whistleblower-retaliation claims exhausted because the Merit Systems Protection Board considered them, the Equal Employment Opportunity Commission affirmed the decision, and Silveria received a right-to-sue letter covering the removal claim. However, the court dismissed the related claims because the second amended complaint did not adequately plead the required elements and, for the whistleblower claim, did not plead it as a mixed claim involving both whistleblower retaliation and discrimination.

Disposition of the Five Claims

Claim 1 — 2013 Equal Employment Opportunity complaint. Silveria’s allegations arising from his 2013 administrative complaint concerned disability discrimination, termination, harassment, and retaliation. The court found it unclear whether the Equal Employment Opportunity Commission had received a request for reconsideration that Silveria said he sent by email on August 11, 2017. The court dismissed this claim with leave to amend so Silveria could allege how and when he submitted the request, whether he received proof of submission, and whether he learned the result.

Claim 2 — Whistleblower Protection Act claim. The court held that Silveria had exhausted a whistleblower claim only to the extent it related to his removal. Because the claim was not pleaded as a mixed claim, the court granted the motion to dismiss this claim without prejudice. The court stated that Silveria could amend by pleading the claim as a mixed claim and limiting the protected-activity allegations to those considered by the Merit Systems Protection Board in connection with the removal.

Claim 3 — Within-grade increase. The court found that Silveria did not exhaust his claim concerning denial of a within-grade increase. The Merit Systems Protection Board had found that it lacked jurisdiction, and Silveria did not seek review in the Federal Circuit within the applicable period. The court granted the motion to dismiss this claim with prejudice in the discussion and, in the conclusion, dismissed it without leave to amend.

Claim 4 — Rehabilitation Act claim. The court held that Silveria had not adequately pleaded disability discrimination or failure to provide reasonable accommodation. The complaint listed medical conditions but did not identify which condition limited a major life activity, explain the essential functions of his position, allege that he could perform those functions with or without accommodation, identify who took the discriminatory action, or specify what each person allegedly did. The court also found that identifying an ergonomic setup and an ergonomics evaluation did not adequately explain the requested accommodation or whether it would have enabled him to perform the essential job duties. The court granted the motion to dismiss this claim without prejudice and allowed amendment.

Claim 5 — 2014 non-mixed Equal Employment Opportunity claim. This claim involved a hostile-work-environment allegation and five discrete acts. The court noted that the claim had recently become exhausted after the Equal Employment Opportunity Commission decided on July 19, 2019 to stop further investigations, but Silveria had not pleaded the claim in the second amended complaint. The court granted the motion to dismiss this claim without prejudice and allowed amendment.

Final Order

Judge Edward M. Chen granted Wilkie’s motion to dismiss the second amended complaint overall. The court dismissed Claims 1, 2, 4, and 5 with leave to amend, subject to the requirements described in the order, and dismissed Claim 3 without leave to amend. The amended complaint had to be filed and served by October 15, 2019. The order disposed of Docket No. 64.