Ercole v. Wilkie

Background

Joseph Ercole, appearing without a lawyer, sued Robert Wilkie, identified as the Secretary of the U.S. Department of Veterans Affairs, and the Merit Systems Protection Board (NY). He invoked federal civil-rights statutes, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Uniformed Services Employment and Reemployment Rights Act, and the Freedom of Information Act.

Ercole alleged that, while working as a contract specialist at three Veterans Affairs locations, he was subjected to an improper-conduct report, an unsatisfactory performance appraisal, denial of a within-grade pay increase, and failure to receive an internal position for which he applied. He also alleged that his supervisor questioned whether he could postpone military leave and that the Veterans Affairs agency did not provide records he requested about the internal position. He alleged that the Merit Systems Protection Board had not properly processed his complaint.

Screening standard

Because Ercole had been allowed to proceed without prepaying court fees, the court was required to screen the complaint under 28 U.S.C. § 1915(e)(2)(B). The court explained that it must dismiss claims that are frivolous, malicious, inadequately pleaded, or directed against a defendant immune from monetary relief. It also must dismiss claims when the court lacks subject-matter jurisdiction. Although pleadings filed without a lawyer are read liberally, they still must provide enough facts to make a claim plausible and must satisfy the requirement for a short and plain statement of the facts supporting relief.

Civil-rights claims

The court explained that claims under 42 U.S.C. §§ 1981 and 1983 generally require conduct by state actors and therefore do not provide a basis for an employment-discrimination action against federal defendants. It also declined to treat those claims as claims for damages under Bivens, the implied remedy recognized for certain constitutional violations by federal officials, because the Civil Service Reform Act covers Ercole’s federal employment and bars that type of constitutional employment challenge.

The court further explained that 42 U.S.C. § 1985 does not waive the federal government’s immunity and therefore does not provide a remedy against the federal government or federal officials sued in their official capacities. The order directed Ercole not to reassert claims for which amendment would be futile.

Merit Systems Protection Board, Title VII, and age-discrimination claims

The court could not determine what claims Ercole had presented to the Merit Systems Protection Board, when he had filed them, or what response he had received. It therefore found it unclear whether any request for judicial review of a Board decision was ready for court review.

The court also concluded that Ercole had not plausibly alleged discrimination under Title VII or the Age Discrimination in Employment Act. Although he listed race, national origin, ethnicity, age, and reprisal as grounds for discrimination, he did not provide facts about his own protected characteristics, those of his supervisor or other employees, or particular events supporting an inference that the adverse employment actions occurred because of a protected characteristic. The court noted that Ercole instead appeared to allege that he was penalized for following rules, reporting workplace issues, and speaking up about other employees’ absences. The order allowed him to amend these claims if he could provide facts supporting an inference of unlawful discrimination and describe the administrative steps he took with the Merit Systems Protection Board, the Veterans Affairs agency, or the Equal Employment Opportunity Commission.

Military-service discrimination

The court held that Ercole’s allegations did not state a claim under the Uniformed Services Employment and Reemployment Rights Act. His allegation that his supervisor asked whether he could postpone five days of military leave was insufficient, without more, to show that military service was a motivating factor in the unsatisfactory review, improper-conduct report, or denial of the within-grade increase.

Freedom of Information Act claim

The court found the records claim inadequately pleaded and possibly not ready for review. Ercole did not identify the requested records beyond saying that he sought documents about the internal job. He also did not explain whether the agency had denied the request, what reasons it gave, or whether he appealed an adverse agency decision through the required administrative process. The court noted that the agency itself, rather than an individual employee, is the proper defendant for a Freedom of Information Act claim.

Disposition and amendment instructions

The court granted Ercole leave to file an amended complaint within 60 days. The amended complaint had to replace the original complaint rather than supplement it, identify the relevant people and defendants, describe what each defendant did or failed to do, provide dates and locations when possible, explain how the conduct violated federal rights, describe injuries, and state the requested relief. The amended complaint had to be labeled “Amended Complaint” and include docket number 19-CV-11961 (LLS). No summons would issue at that time. The court warned that failure to comply, absent good cause, would result in dismissal for failure to state a claim.