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Silveria v. Wilkie

United States District Court, N.D. California

September 12, 2019

ANTHONY J. SILVERIA, et al., Plaintiffs,
ROBERT WILKIE, et al., Defendants.




         Plaintiff Anthony J. Silveria, proceeding pro se, initiated this case in the Eastern District of California in February 2018. He asserted claims of employment discrimination (based on disability) and whistleblower retaliation against the Secretary of the U.S. Department of Veteran Affairs. Subsequently, Mr. Silveria moved to amend his complaint-not only to name the new Secretary, but also “to add the direct line managers who were involved in the discrimination.” Docket No. 4. The Eastern District court granted the motion and thus Mr. Silveria filed his first amended complaint (“FAC”) in May 2018. See Docket No. 7. The case was thereafter transferred, in November 2018, to the Northern District because “the alleged unlawful employment practice occurred at the VA's Regional Office in Oakland.”[1] Docket No. 25. Defendant then moved this Court for a dismissal of the FAC. See Docket No. 43. In April 2019, the Court granted the motion to dismiss but with leave to amend. Docket No. 59. Mr. Silveria subsequently filed his second amended complaint (“SAC”), and now Defendant moves for a dismissal of that pleading. This is the motion currently pending before the Court. Docket No. 64 (“Mot.”).


         Following the Court's order, Mr. Silveria filed his SAC, naming Robert Wilkie, the Secretary of the U.S. Department of Veteran Affairs, as the sole defendant[3] on the captions page. Docket No. 61. The Court previously dismissed the three individual “direct line managers” as they were not proper defendants. See Docket No. 60; see also Johnston v. Horne, 875 F.2d 1415, 1419 (9th Cir. 1989) (noting that a plaintiff who was or is a federal employee and who asserts employment discrimination may bring a Rehabilitation Act claim under 29 U.S.C. § 791 but must “name the appropriate head of the department, agency or unit” as the defendant), overruled on other grounds by Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990). The SAC alleges as follows. A. Employment History with the U.S. Veteran Affairs Mr. Silveria served in the U.S. Marine Corps from 1989 to 1999. SAC ¶ 46. After his service, he became a federal employee with the U.S. Department of Veteran Affairs (“VA”), serving as a Rating Veterans Service Representative in its Oakland office-a/k/a/ the Oakland VA Regional Benefit Office (VARBO)-from September 2009 until his removal in June 2014. Id. ¶ 48. From 2010 until the present, Mr. Silveria has suffered from “100% permanent disability, ” and he has been diagnosed with “GERD, ulcers, multiple brain injuries, vision loss, migraines, psoriasis, psoriatic arthritis, back pain, shoulder pain, knee pain, and a reconstructed ankle, with more than one major life limiting disability . . . .” Id. ¶ 51.

         In August and September 2012, Mr. Silveria complained of discrimination to the Office of Resolution Management (“ORM”)[4] by filing an Equal Employment Opportunity (“EEO”) complaint. Id. ¶¶ 53, 54. Because of this activity, Mr. Silveria suffered from prohibited personnel practices in the form of “increase[d] surveillance.” Id. ¶ 55. While Mr. Silveria's claims were pending, he was “followed around work and getting routinely harassed . . . in 2012, 2013, and 2014 . . . .” Id. ¶ 59. Throughout this period, Mr. Silveria reported the increased surveillance to his managers. Id. ¶ 60.

         Since 2012, Mr. Silveria received repeated prohibited personnel practices because of his protected disclosures. Id. ¶ 61. From August 2013 through May 2014, VA took adverse actions against Mr. Silveria by ordering him back to work while he was out on FMLA leave; suspending him for three days while out on FMLA leave; proposing removal for being sick; denying him a within-grade increase in January 2014; and charging him thirty (30) times for being absent without leave while he was sick. See SAC ¶ 69.

         According to Mr. Silveria, these practices became so severe and pervasive that he was unable to work, which led to him losing a within-grade increase and ultimately being removed from work while he had a pending reasonable accommodation request from December 2013.[5] Id. ¶ 62 On May 30, 2014, Mary Markey, Veterans Service Center Manager, proposed Mr. Silveria's removal based on four charges: (1) failure to follow instructions; (2) failure to follow leave procedures; (3) inappropriate conduct; and (4) waste of official duty time. Defendant's Request for Judicial Notice, Ex. 5 at 6. Mr. Silveria was removed on June 29, 2014. Id. Mr. Silveria never received a reasonable accommodation before his removal in June 2014. Id. ¶¶ 79, 82. He also did not receive his final pay check, which he considered to be continued retaliation by VA and reported it to the Office of Accountability and Whistleblower Protection (“OAWP”)[6] and the Office of Special Counsel (“OSC”). Id. ¶ 84.

         Subsequently, on October 20, 2014, Mr. Silveria filed a complaint with the OSC, alleging that he was a whistleblower and that he had suffered retaliation as a result of his whistleblowing activities. Id. at 7. On December 9, 2014, the OSC notified Mr. Silveria that it was closing its file and gave him notice of his opportunity to file an Individual Right of Action (IRA) with the MSPB. Id. Mr. Silveria did not file an IRA appeal with the MSPB by the deadline of March 5, 2015. Id.

         B. Timeline of Relevant Administrative Proceedings

         Mr. Silveria filed two formal EEO complaints with the ORM for claims that are related to this lawsuit. See Collazo Decl. ¶¶ 7-8, Declaration of Robert J. Barnhart (“Barnhart Decl.”) ¶ 3 & Ex. 1. Below is a timeline of Mr. Silveria's claims and his appeals thereafter.

• January 29, 2013-Mr. Silveria initiated an EEO complaint (“2013 EEO Claim”) and asserted a claim of discrimination and hostile work environment on the basis of national origin, reprisal, and disability. Barnhart Decl., Ex. 1;
• April 19, 2014-Mr. Silveria initiated a second EEO complaint (“2014 EEO Claim”) asserting the following: (1) a non-mixed-case claim that Mr. Silveria was subjected to a hostile work environment and five discrete acts[7] based on disability and reprisal by events occurring between March 2014 and July 2014; (2) a mixed-case claim based on a request for reconsideration for the denial of Mr. Silveria's within-grade increase; and (3) a mixed-case claim that Mr. Silveria was subjected to discrimination based on disability and reprisal when he was removed from employment effective June 29, 2014;[8]
• April 21, 2014-The 2013 EEO Claim was denied in an ORM Final Agency Decision, and that decision was affirmed by the EEOC's Office of Federal Operations (“OFO”) on July 13, 2017. It is unclear whether Mr. Silveria requested reconsideration;
• July 7, 2015-the ORM referred the mixed case to the Office of Employment Discrimination Complaint Adjudication (“OEDCA”) and it issued a Final Agency Decision that found no discrimination from VA's actions in the 2014 EEO Claim.[9]Mr. Silveria appealed the two mixed-case decisions to the Merit Service Protection Board (“MSPB”), and the MSPB separated them into two appeals. Mr. Silveria is currently pursuing the non-mixed case before the EEOC;
• January 6, 2017-the MSPB held that it did not have jurisdiction to consider the denial Mr. Silveria's request for reconsideration regarding his within-grade increase claim.[10] Mr. Silveria was advised that he had 60 days to request review by the U.S. Court of Appeals for the Federal Circuit. RJN, Ex. 4. The Federal Circuit PACER system contains no record of any case filed by Mr. Silveria.
• August 1, 2017-the MSPB affirmed the ORM's denial of Mr. Silveria's removal claim, finding that the removal was not based on disability discrimination or whistleblower retaliation. The MSPB notified Mr. Silveria of his appeal rights to the EEOC or file a civil action in an appropriate U.S. District Court. RJN, Ex. 5. Mr. Silveria elected to appeal to the EEOC.
• January 24, 2018-the EEOC's decision affirmed the MSPB's removal finding, and it issued a right-to-sue letter on Mr. Silveria's removal claim, informing him of his right to sue in federal district court within thirty (30) days.

         Mr. Silveria filed the present lawsuit on February 23, 2018. Docket No. 1. This case was transferred to this Court on December 4, 2018, following Defendant's motion to dismiss for improper venue. Docket Nos. 25, 26. Then, in dismissing Mr. Silveria's FAC, this Court instructed him to group his factual allegations by each specific claim of each alleged unlawful act. Based on the groupings in the SAC, Mr. Silveria alleges five claims for relief:

• Claim 1: Disability discrimination, termination, and harassment in violation of 5 U.S.C. section 2302, 42 U.S.C. 12112(a), Rehabilitations Act, and Executive Order 5396 for differential treatment and denial of reasonable accommodations;
• Claim 2: Whistleblower retaliation and EEO retaliation in violation of 5 U.S.C. 2302 and 42 U.S.C. 12203 for retaliation based on his protected disclosures; • Claim 3: Disability discrimination for denial of within-grade increase in violation of CFR 432.105, 5 U.S.C. 2302, and the Rehabilitations Act of 1973;
• Claim 4: Disability discrimination for wrongful termination in violation of the Rehabilitations Act and 5 U.S.C. 2302; and
• Claim 5: HIPPA violations pursuant to 5 U.S.C. section 2302(b)(14).


         A. Rule 8

         Under Rule 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief, ” and “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ.P. 8(a), (d). “[T]he short and plain statement must provide the defendant with fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (citation omitted). “Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.” Bautista v. Los Angeles Cnty., 216 F.3d 837, 841 (9th Cir.2000) (citations and internal quotation marks omitted).

         Rule 8 “has been held to be violated by a pleading that was needlessly long, or a complaint that was highly repetitious, or confused, or consisted of incomprehensible rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir.2011) (citation and internal quotation marks omitted). See also Mc Henry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996) (affirming the dismissal of a complaint under Rule 8 for being “argumentative, prolix, replete with redundancy, and largely irrelevant”). A complaint may be dismissed for violating Rule 8 even if “a few possible claims” can be identified and the complaint is not “wholly without merit.” Id. at 1179.

         “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.2008) (citations and internal quotation marks omitted). However, “a pro se litigant is not excused from knowing the most basic pleading requirements” or “from following court rules.” Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir.2000) (citation and internal quotation marks omitted); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”).

         B. Rule 12(b)(1)

         Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, “the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). A Rule 12(b)(1) motion will be granted if the complaint, when considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 (9th Cir. 2003).

         C. Rule 12(b)(6)

         Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff's “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.'” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted).[11] “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.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).


         Defendant contends that the SAC should be dismissed for four reasons: (1) the SAC fails to comply with Rule 8; (2) the Court lacks subject matter jurisdiction all claims except his removal claim; (3) Mr. Silveria fails to state a claim under the Rehabilitation Act; and (4) Mr. Silveria fails to state a claim under the Whistleblower Protection Act. Mot. at 2. A. Mr. Silveria's Compliance with Rule 8 Defendant argues that the entire SAC should be dismissed because it fails to comply with Rule 8(a) and 8(d)(2). As noted above, the Court previously granted Defendant's motion to dismiss the FAC. In granting the motion, the Court advised Mr. Silveria “to group his factual allegations by each specific claim of an unlawful act (for instance, each act of discrimination or retaliation) ...

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