Silveria v. Wilkie

Background

Anthony J. Silveria, representing himself, sued Robert Wilkie and others over alleged employment discrimination and whistleblower retaliation during his employment with the Department of Veterans Affairs. He alleged disability discrimination, harassment, denial of reasonable accommodations, denial of a within-grade increase, removal from federal service, and related retaliation. The court had previously dismissed earlier versions of his complaint and allowed amendment on some claims.

The third amended complaint asserted seven claims that the court said appeared to derive from five claims previously addressed. The court explained that the current motion concerned only the claims that were properly before it. The hostile-work-environment claim based on five discrete acts in the 2014 administrative complaint was being pursued in a separate related case, Case No. 19-cv-6600-EMC, and was not before the court on this motion.

Administrative exhaustion

Federal employees bringing employment-discrimination claims generally must first complete the required administrative process. The court concluded that the within-grade-increase claim had already been dismissed with prejudice because Silveria did not timely seek review of the Merit Systems Protection Board’s jurisdictional decision in the Federal Circuit. Because he continued to assert that claim without seeking reconsideration of the court’s prior order, the court granted the motion to dismiss the claim with prejudice.

The court also dismissed claims arising from Silveria’s 2013 equal-employment-opportunity complaint with prejudice. Although Silveria had previously pointed to an email with “request for reconsideration” in its subject line, his third amended complaint did not allege sufficient facts showing how and when he submitted a substantive request, whether the request was received, or whether the Equal Employment Opportunity Commission considered it. The court found that a postal receipt attached to the complaint did not establish that he had submitted such a request.

The court concluded that Silveria had exhausted his whistleblower claim only insofar as it related to his removal as a mixed claim. A mixed claim combines a discrimination claim with a challenge to an adverse employment action that can be reviewed by the Merit Systems Protection Board. The court stated that a standalone Whistleblower Protection Act claim would fall within the Federal Circuit’s jurisdiction rather than the district court’s jurisdiction.

Claims properly before the court

The court dismissed the Rehabilitation Act disability-discrimination claim with prejudice because the complaint did not allege facts showing that Silveria was a qualified individual at the time of his June 2014 removal. Although the complaint described the essential functions of his position and qualifications from earlier years, it did not allege that he was qualified when the removal occurred.

The court dismissed the failure-to-accommodate claim with prejudice because the complaint did not adequately allege that Silveria was denied a reasonable accommodation or explain how the proposed accommodations would have allowed him to perform the essential functions of his position.

The court dismissed with prejudice the hostile-work-environment claim to the extent it arose from the 2013 administrative complaint, because that claim was not exhausted. The court reserved ruling on hostile-work-environment allegations connected to the 2014 non-mixed claim in the separate related case.

The court dismissed the disability-retaliation claim with prejudice because Silveria did not adequately identify the disability-related protected activity that allegedly caused the retaliation or sufficiently connect that activity to the alleged adverse actions.

Finally, the court dismissed the Whistleblower Protection Act claim with prejudice. The court reasoned that the claim had to be pleaded as a mixed claim to be administratively exhausted in district court, but Silveria no longer had a viable Rehabilitation Act claim to serve as the discrimination component of that mixed claim.

Disposition

The court granted the defendant’s motion to dismiss with prejudice for failure to exhaust administrative remedies and failure to state a claim. It stated that all claims subject to the motion were dismissed with prejudice, the consolidation order concerning the related case was moot, and the clerk was instructed to enter judgment and close this case.