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Drevaleva v. United States Department of Veterans Affairs

United States District Court, N.D. California

July 11, 2019

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, and ROBERT WILKIE, Secretary, United States Department of Veterans Affairs, Defendants.




         In this employment discrimination action, pro se plaintiff moves (1) for leave to amend her complaint; (2) to stay three claims for relief; (3) for reconsideration of her motion for preliminary injunction; (4) to sever one of her claims; and (5) to certify this action to our court of appeals or to appoint a master. For the reasons stated herein, the motions for leave to amend the complaint and for reconsideration are Denied. The motions to stay, sever, and certify or appoint a master are Denied as moot.


         The alleged facts giving rise to the instant action, which remain unchanged in the proposed amended complaint, are detailed in a prior order (Dkt. No. 69 at 1-3). Briefly, in April 2017, defendants United States Department of Veterans Affairs and Robert Wilkie, Secretary of United States Department of Veterans Affairs, hired pro se plaintiff Tatyana E. Drevaleva as a medical instrument technician at the Raymond G. Murphy Veterans Affairs Medical Center in Albuquerque (Dkt. No. 86-2 ¶ 2).

         In May 2017, plaintiff spoke with her supervisor about requesting leave without pay to travel to Russia to undergo in vitro fertilization. Plaintiff informed her supervisor that as a citizen of Russia, she was entitled a free IVF attempt. She detailed the history of her attempts to conceive a child, explaining that she had been married twice, had sexual relationships with men, and underwent approximately eight intrauterine inseminations at Kaiser Permanente, to no avail. Plaintiff also disclosed that she had a frozen embryo in Russia, a result of three IVF attempts that spanned from January 2014-July 2016. Her plan was to travel to Russia, undergo a fourth IVF attempt, freeze the embryo if the IVF attempt was successful, and return to work in order to earn money to hire a surrogate mother in Russia. Plaintiff's supervisor informed her that she did not meet the minimum duration of employment (twelve months) required for FMLA, but described the procedure for requesting unpaid leave outside of FMLA (id. ¶¶ 5-6, 8-11; Dkt. No. 86-18 at 110).

         On May 17, 2017, plaintiff approached her assistant supervisor with the same request. Plaintiff's assistant supervisor advised plaintiff of the proper procedure for requesting unpaid leave but allegedly said “If you need to go - go!” Allegedly believing she had verbal permission, plaintiff filled out the form without any medical documentation, slipped it under her assistant supervisor's door, and left for Russia the following evening. While in Russia, plaintiff emailed her supervisors several times without response. On July 3, 2017, plaintiff received an email from her supervisor indicating that plaintiff had been terminated on June 30, 2017. The termination letter was also mailed to plaintiff's home address in New Mexico. Plaintiff was not able to complete a successful IVF attempt and she returned to the United States in August 2017. During a mediation session with her supervisor in September 2017, plaintiff learned that her request for unpaid leave had been denied and her termination had been a result of taking leave without permission (Dkt. Nos. 86-2 ¶¶ 13-14, 17-18, 20-21, 26-28; 86-7 at 4). Following unsuccessful mediation through the Office of Resolution, plaintiff commenced this action (Dkt. No. 86, Exhs. 8 at 8; 14-15; 19).

         On June 25, 2018, plaintiff filed a complaint that advanced three sets of claims: (1) discrimination claims; (2) tort claims; and (3) constitutional claims. Her discrimination claims included: (a) gender and pregnancy discrimination under Title VII of the Civil Rights Act; (b) disability discrimination and failure to accommodate under the Rehabilitation Act of 1973; and (c) age discrimination under the Age Discrimination in Employment Act. Plaintiff also moved for preliminary injunction, seeking an order reinstating her to her previous position or “a similar full time job with benefits” (Dkt. No. 39 at 4).

         On December 3, 2018, an order was issued which, inter alia, dismissed the entire suit and denied plaintiff's motion for a preliminary injunction. Plaintiff's tort and constitutional claims were dismissed with prejudice because Title VII provided the exclusive remedy for these claims (Dkt. No. 69 at 7-8). The order detailed the legal standards for each of plaintiff's discrimination claims and explained why plaintiff's complaint insufficient. That order also provided plaintiff the opportunity to seek leave to file an amended complaint, which she did in a timely manner (id. at 4-6, 9).

         Throughout the course of these proceedings, plaintiff made five trips to our court of appeals (see Dkt. Nos. 58, 70, 72, 85, 105). Each of plaintiff's appeals resulted in either a denial or dismissal (Dkt. Nos. 90, 114-115, 136). Plaintiff petitioned for a writ of certiorari before the United States Supreme Court twice (Dkt. Nos. 60, 132). Both petitions and plaintiff's subsequent petition for rehearing were denied (Dkt. Nos. 133, 145, 152).

         A stay was instituted due to the federal government shutdown, pending restoration of funds to the Department of Justice (Dkt. No. 107). During this time, plaintiff filed an affidavit, pursuant to 28 U.S.C. § 144, claiming that the undersigned judge “ha[d] a bias and prejudice towards the Plaintiff and act[ed] in favor of the opposing Party” (Dkt. No. 102). After the stay was lifted, the undersigned judge declined to recuse himself, instead treating the affidavit as a motion to disqualify (Dkt. Nos. 117; 129 at 2). This action was stayed once more, pending resolution of the motion to disqualify (ibid.). The motion to disqualify was reassigned to Judge Yvonne Gonzales Rogers, who denied it on the ground that no reasonable question was raised as to the undersigned judge's impartiality (Dkt. No. 138 at 10). In total, these stays spanned multiple months. Plaintiff then requested that the stay be maintained, pending the United States Supreme Court's decision on one of plaintiff's petitions for a writ of certiorari (Dkt. No. 139). Because of the slim likelihood that the petition would be granted, the stay was lifted (Dkt. No. 142). On April 15, 2019, the petition was denied (Dkt. No. 133).

         Now, plaintiff moves for the following: (1) leave to amend her complaint; (2) to stay the tort and constitutional claims; (3) for reconsideration of her motion for preliminary injunction; (4) to sever two of her discrimination claims; and (5) to certify the action to our court of appeals or to appoint a master. This order follows full briefing and oral argument.


         1. Motion for Leave to Amend.

         Rule 15(a)(2) permits a party to amend its pleading with the court's leave, advising that “[t]he court should freely give leave when justice so requires.” In ruling on a motion for leave to amend, courts consider: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Futility alone can justify denying leave to amend. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). The legal standard for assessing futility on this motion is identical to that of a ...

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