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Ezeh v. Va Medical Center

United States District Court, W.D. New York

September 29, 2014





Pro se plaintiff Christopher Ezeh ("Plaintiff") commenced this action on October 15, 2013, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). (Dkt. 1). Plaintiff's allegations are quite sweeping, encompassing 20 individual defendants in addition to his former employer, the United States Department of Veterans Affairs' Canandaigua Medical Center (identified in the complaint as the "VA Medical Center, Canandaigua, NY") (hereinafter the "Medical Center"). The individual defendants include officials from the Department of Veterans Affairs (the "VA") and the United States Postal Service (the "USPS"), as well as Plaintiff's former private attorney. The complaint alleges, in sum and substance, that the individual defendants discriminated against Plaintiff on the basis of his race (African American), national origin (Nigerian), and religion (Roman Catholic) during the course of his employment with the Medical Center and in connection with his various complaints of discrimination.

Although this case is relatively new, it has a complex procedural history due in large part to the fact that Plaintiff filed ten motions seeking various relief in the space of approximately seven months. (Dkt. 3, 11, 15, 17, 23, 24, 29, 30, 42, 51). On March 21, 2014, the Court conducted a status conference with the parties to discuss the then-pending motions filed by Plaintiff (Dkt. 11, 15, 17, 23, 24, 29 and 30). (Dkt. 32). The Court entered an Order on March 21, 2014, granting Docket 11, denying Docket 15 as moot, reserving decision on Docket 17, reserving decision on that portion of Docket 23 seeking relief against defendant Ed Moeller and noting that Plaintiff had agreed to withdraw the remainder of the motion, denying Docket 24, and reserving decision on Dockets 29 and 30. (Dkt. 33).

As a result, the following motions remain pending before the Court: (1) defendant William Burkhart's motion to dismiss for lack of jurisdiction and/or for failure to state a claim (Dkt. 14); (2) Plaintiff's first motion to amend the complaint (Dkt. 17); (3) Plaintiff's motion seeking relief against defendant Ed Moeller (Dkt. 23); (4) Plaintiff's motion for service on the VA and the USPS and for other miscellaneous reliefs (Dkt. 29); (5) Plaintiff's motion seeking relief related to his health insurance (Dkt. 30); (6) defendant James Gilbert's motion to dismiss for failure to state a claim (Dkt. 34); (7) the motion to dismiss filed by defendants John Batten, Cathy Boylan, Melody Christensen, Geraldine Clark, Donna Crouse, Frank Cullen, Claudi Dumitrescu, Edmund Flick, James Gilbert, Craig Howard, James Jindra, Patricia Lind, Thomas L. Maddux, John Milewski, Ed Moeller, Pamula Royal, Robert Searle, Daniel Spillsbury, Maxanne R. Witkin, and the Medical Center (collectively the "Federal Defendants") (Dkt. 37); (8) Plaintiff's second motion to amend the complaint (Dkt. 42); and (9) Plaintiff's third motion to amend the complaint (Dkt. 51).

For the reasons set forth below: (1) defendant William Burkhart's motion to dismiss (Dkt. 14) is granted; (2) Plaintiff's first motion to amend the complaint (Dkt. 17) is granted; (3) Plaintiff's request for relief against defendant Ed Moeller (Dkt. 23) is denied; (4) Plaintiff's motion for service on the VA and the USPS and for other miscellaneous reliefs (Dkt. 29) is denied; (5) Plaintiff's motion seeking relief related to his health insurance (Dkt. 30) is denied; (6) defendant James Gilbert's motion to dismiss for failure to state a claim (Dkt. 34) is granted; (7) the Federal Defendants' motion to dismiss (Dkt. 37) is granted on Plaintiff's claims related to the handling of his equal employment opportunity ("EEO") complaint by the VA's Office of Resolution Management and the VA's Office of Employment Discrimination Complaint Adjudication for lack of jurisdiction and on Plaintiff's wrongful discharge claim for failure to exhaust his administrative remedies and/or comply with the statutorily mandated deadline for seeking review. The Honorable Robert A. McDonald, Secretary of Veterans Affairs, is substituted as a defendant in place of the Federal Defendants as to all remaining claims; (8) Plaintiff's second motion to amend the complaint (Dkt. 42) is denied; and (9) Plaintiff's third motion to amend the complaint (Dkt. 51) is denied without prejudice. Secretary McDonald is ordered to serve an answer to the remaining allegations of the complaint within 20 days of entry of this Decision and Order.


Plaintiff was born in Nigeria and is a naturalized citizen of the United States. (Dkt. 1 at 8). He was hired by the Medical Center as a Roman Catholic Chaplain on March 2, 2011. ( Id. ). Plaintiff alleges that on March 2, 2012, he completed a one-year trial employment period and became a regular permanent employee. ( Id. ).

According to Plaintiff, on April 1, 2012, defendant Ed Moeller, a veteran and VA volunteer, approached Plaintiff and stated, "I hate you, I hate your accent, I hate the way you talk and the way you sound. I am so sad to see you take up this full time position. I am going to write to the VA Board Members and get others write too to have you removed. I am telling you this ahead of time so that you may not be taken unawares when it happens." ( Id. at 8-9). Plaintiff claims that he notified "management" of Mr. Moeller's statement, but no action was taken. ( Id. at 9). Plaintiff further alleges that on May 6, 2012, Mr. Moeller "physically threatened" him during a religious service. ( Id. ).

Plaintiff claims to have filed an EEO complaint against various VA officials on May 18, 2012. ( Id. ). According to Plaintiff, he complained that he was being harassed by Mr. Moeller and that nothing had been done to stop this harassment. ( Id. ).

Plaintiff alleges that he was subjected to a "series of harassment, creation of an overwhelming hostile work environment, retaliation in different shapes and discriminatory treatments in different forms" throughout June and July of 2012. ( Id. at 9). Plaintiff alleges that he was subjected to false charges of wrongdoing by defendants Patricia Lind and Donna Crouse. ( Id. ). Plaintiff claims that as a result of these false charges, he was escorted to his car by the VA police and the process of removing him from his position was begun. ( Id. ). Defendant Craig Howard allegedly sent Plaintiff a final dismissal letter on July 18, 2012. ( Id. at 10).

According to Plaintiff, Mr. Howard retaliated against him for filing his EEO complaint on May 18, 2012. ( Id. at 9). In addition to having been terminated in July 2012, Plaintiff claims that Mr. Howard denied him training, denied him promotion, underpaid him for hours worked, took excess deductions for Federal Employee Health Benefits (FEHB) premiums, and denied him a debt waiver. ( Id. at 10).

Plaintiff claims to have filed "spin-off" EEO complaints against several employees of the VA's Office of Resolution Management ("ORM") and the VA's Office of Employment Discrimination Complaint Adjudication ("OEDCA"), including defendants James Jindra, Thomas L. Maddux, Daniel Spillsbury, Frank Cullen, Geraldine Clark, and Maxanne Witkin. ( Id. at 11). OEDCA was established within the VA by Congress and is responsible for "making the final agency decision within the Department on the merits of any employment discrimination complaint filed by an employee...." 38 U.S.C. § 319. ORM processes EEO complaints within the VA pursuant to VA Directive 5877 (May 5, 2011).

Plaintiff alleges that the individual defendants employed by OEDCA and ORM improperly processed his EEO complaint, including by excluding relevant evidence from the investigative file and tampering with voice recordings. (Dkt. 1 at 11-12). According to Plaintiff, as a result of this improper processing, OEDCA rendered an unfair decision on his EEO complaint. ( Id. ).

Defendant James Gilbert is an administrative law judge ("ALJ"), allegedly employed by the USPS, whom Plaintiff claims was contracted by the VA to conduct a hearing regarding a payroll issue. ( Id. at 14). According to Plaintiff, the VA improperly "manipulated debts into [Plaintiff's] pay account without [Plaintiff's] knowledge, " then informed him that he owed money due to the administrative error. ( Id. ). Plaintiff alleges that his request for a waiver of this debt was denied and he requested a hearing. ( Id. ). ALJ Gilbert conducted the hearing, and Plaintiff alleges that he failed to follow proper procedure and rendered his decision "not in good faith." ( Id. ). Plaintiff alleges that ALJ Gilbert engaged in "abuse of judicial authority" because Plaintiff "was not born in America which [ALJ Gilbert] detected in [Plaintiff's] accent." ( Id. at 15).

Plaintiff also alleges that upon his dismissal from the Medical Center, he was discriminated against by being improperly denied the opportunity to continue his health benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S. Code §§ 1161 et seq. ( Id. at 16). Plaintiff claims he was granted unemployment insurance benefits by the New York State Department of Labor effective September 21, 2012. ( Id. at 10).

Defendant William Burkhart is Plaintiff's former privately retained attorney. ( Id. at 19). Plaintiff alleges that he hired Mr. Burkhart to represent Plaintiff in connection with his EEO complaint against the VA and other employment issues. ( Id. ). According to Plaintiff, Mr. Burkhart failed to effectively represent him, failed to raise particular issues at the hearing before ALJ Gilbert, failed to present a settlement demand letter as requested by Plaintiff, failed to provide Plaintiff with requested information regarding billing practices, and wrongfully obtained a judgment against Plaintiff in Rochester City Court with respect to legal fees. ( Id. at 19-20). Plaintiff states that he is suing Mr. Burkhart for "refusing [Plaintiff] legal representation and abandoning [Plaintiff's case]...." ( Id. at 20).


I. Mr. Burkhart's Motion to Dismiss (Dkt. 14) and Plaintiff's First Motion to Amend (Dkt. 17)

Defendant William Burkhart has moved to dismiss the complaint as to him for lack of federal jurisdiction and for failure to state a claim. In response to Mr. Burkhart's motion to dismiss, Plaintiff has moved for leave to amend the complaint and add additional allegations as to Mr. Burkhart. The Court therefore considers these motions together.

A. Legal Standard

In considering a motion to dismiss, a court generally may only consider "facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference." Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A court should consider the motion "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility standard is not akin to a probability requirement. A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.") (citations and internal quotation marks omitted).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted). Thus, "at a bare minimum, the operative standard requires the plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (internal quotation marks omitted).

With respect to Plaintiff's motion for leave to amend (Dkt. 12), Federal Rule of Civil Procedure 15 provides that the Court "should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). "[I]t is within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Id.

In addition, "[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest." Green v. U.S., 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation marks omitted); see also Hemphill v. N.Y., 380 F.3d 680, 687 (2d Cir. 2004) ("It is well-established that when [a] plaintiff proceeds pro se ... a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.'") (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Moreover, "a pro se litigant should be afforded every opportunity to demonstrate that he has a valid claim." Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 762 (2d Cir. 1990) (alteration in original) (internal quotation marks omitted).

B. Plaintiff's First Motion for Leave to Amend

Plaintiff asks the Court to permit him to amend his complaint as to Mr. Burkhart. (Dkt. 17 at 2). In particular, Plaintiff seeks to add additional claims related to Mr. Burkhart's alleged failure to comply with 22 N.Y.C.R.R. § 1210.1 (setting forth a client's rights), and related to Mr. Burkhart's alleged violation of the First and Fourteenth Amendments to the United States Constitution. ( See Dkt. 17 at 26-53).

As a threshold matter, the Court notes that Plaintiff has failed to comply with the Local Rules of Civil Procedure for the Western District of New York (the "Local Rules") with respect to his motion for leave to amend. Local Rule 15(a) provides:

A movant seeking to amend or supplement a pleading must attach an unsigned copy of the proposed amended pleading as an exhibit to the motion. The proposed amended pleading must be a complete pleading superseding the original pleading in all respects. No portion of the prior pleading shall be incorporated into the proposed amended pleading by reference.

L.R. Civ. P. 15(a) (emphasis added). Instead of filing a complete proposed amended pleading, Plaintiff has submitted only proposed additional allegations and exhibits related to Mr. Burkhart.

"[W]hile a pro se litigant's pleadings must be construed liberally... pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." Edwards v. I.N.S., 59 F.3d 5, 8 (2d Cir. 1995). However, the Court's determination in this case is complicated by the fact that Plaintiff did not need the Court's permission to amend his complaint one time as of right. See Fed.R.Civ.P. 15(a)(1)(B). Under similar circumstances, the Court of Appeals for the District of Columbia Circuit has held that a district court should consider a reply to a motion which seeks to add additional claims as an amendment. See Richardson v. United States, 193 F.3d 545, 584-9 (D.C. Cir. 1999) (district court should have considered plaintiff's reply to motion to dismiss to constitute amendment to his original complaint where plaintiff was proceeding pro se, plaintiff could still have amended his claim as of right, district court understood that plaintiff both recognized need for and attempted to make ...

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