Ercole v. Wilkie

Background

Joseph Ercole, proceeding without a lawyer, sued the Secretary of Veterans Affairs and the Merit Systems Protection Board concerning disputes arising from his employment at the Department of Veterans Affairs. The opinion states that Denis R. McDonough, the successor to Robert Wilkie, was automatically substituted as a party under Federal Rule of Civil Procedure 25(d).

Ercole alleged that his supervisor placed an improper-conduct report in his personnel file, that the decision was affirmed by another supervisor, and that he was denied a periodic pay increase. He also alleged that he was not interviewed or offered for other Veterans Affairs positions, that his military-service obligations affected how he was treated, and that he experienced discrimination based on race, gender, and disability. He submitted two requests for records under the federal Freedom of Information Act, but alleged that the Veterans Affairs Department did not provide the requested information. He also alleged that he filed discrimination complaints with the Veterans Affairs Department and the Equal Employment Opportunity Commission.

Motion and legal standards

The defendants moved to dismiss under Federal Rules of Civil Procedure 8 and 12(b)(6). Rule 8 requires a complaint to provide a short and plain statement explaining the claim and why the plaintiff is entitled to relief. Rule 12(b)(6) permits dismissal when the facts alleged, accepted as true for purposes of the motion, do not state a legally plausible claim for relief.

The court recognized that complaints filed without a lawyer receive a liberal reading, but explained that this does not require the court to rewrite an unclear complaint.

Court’s analysis

The court held that the 51-page amended complaint violated Rule 8 because it was rambling, convoluted, and internally contradictory. It listed numerous constitutional provisions, statutes, agency policies, and other authorities without clearly explaining which defendant engaged in which conduct or what conduct violated which law. The lack of clarity meant that the defendants did not receive fair notice of the claims.

The court also examined claims it could reasonably identify:

- Federal employee grievances: The Civil Service Reform Act provides an administrative process for certain federal employee disputes. Because Ercole’s Merit Systems Protection Board materials did not allege that the challenged actions were partly caused by discrimination, the court concluded that it lacked jurisdiction over those personnel-practice claims. The opinion explains that review of such Merit Systems Protection Board decisions generally belongs in the Federal Circuit, rather than a federal district court. - Military-service discrimination: To the extent Ercole asserted a claim under the Uniformed Services Employment and Reemployment Rights Act, the court concluded that it lacked jurisdiction over that claim because the statute directs review through the Merit Systems Protection Board and then the Federal Circuit for the type of claim described. - Race and gender discrimination: The court found that Ercole did not adequately plead that he had completed the required administrative process before bringing a Title VII claim. He did not state when he filed his Equal Employment Opportunity Commission complaint, what facts it presented, or whether he received a notice permitting him to sue. The court also found that he did not allege specific facts supporting a reasonable inference that race or gender discrimination caused the challenged actions. His allegation that management consisted of women and that his gender played a role was considered conclusory. - Disability discrimination: The court found that Ercole did not adequately plead administrative exhaustion or facts showing a viable claim under the Americans with Disabilities Act. Although the complaint stated that he was disabled, it did not provide the necessary information about his disability, notice to the employer, a reasonable accommodation, or a refusal to provide such an accommodation. The court did not consider additional injury and workplace allegations raised for the first time in Ercole’s opposition to the motion. - Freedom of Information Act: The court found the allegations unclear about whether the Veterans Affairs Department had made or communicated a determination on the two records requests. It also explained that a Freedom of Information Act suit must name the Veterans Affairs Department itself, rather than the Secretary of Veterans Affairs, as the defendant.

Disposition

The court granted the defendants’ motion to dismiss. It dismissed Ercole’s amended complaint with leave to amend within 45 days of the Opinion and Order. The court stated that a second amended complaint would completely replace the amended complaint, so any facts or claims Ercole wished to pursue had to appear in the new filing. The court warned that, because Ercole had already received notice of the pleading problems twice, he was unlikely to receive another opportunity to amend.

The opinion also states that the status of Ercole’s Merit Systems Protection Board appeal was unclear, but that uncertainty did not affect the court’s decision.