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Drevaleva v. Wilkie

United States District Court, N.D. California

November 7, 2019

ROBERT WILKIE, United State Secretary of Veteran's Affairs, Defendant.


          William Alsup United States District Judge


         Pro se plaintiff brings this repetitive employment action against federal defendants. Defendants move to dismiss for failure to state a claim and lack of subject-matter jurisdiction. For the reasons stated herein, the motion to dismiss the complaint is Granted.


         This is the third of separate lawsuits arising from the same pattern of facts. In May 2017, after working for about six weeks at New Mexico Veterans Affairs Medical Center (VAMC), pro se plaintiff Tatyana Evgenievna Drevaleva suddenly went to Russia, evidently to undergo in-vitro fertilization (IVF). She did not return until August 2017. That July, plaintiff received a termination notice for being absent without leave (Dkt. No. 1 at 4).

         In May 2018, plaintiff applied to work at the Minneapolis VAMC without disclosing details about her VAMC termination in 2017. She received a tentative job offer. The offer was subsequently rescinded, however, once Minneapolis VAMC learned the details of her 2017 VAMC termination (Dkt. No. 26 at 2).

In June 2018, plaintiff applied for a position at West Los Angeles VAMC and allegedly disclosed facts about the 2017 VAMC termination on the application. During the phone interview later that month, she explained that the termination resulted from her taking time off for a health-related trip to Russia.[*] Plaintiff then told the interviewer that, if hired, she would need more time off to go to Russia for a medical follow-up. At this point, plaintiff never disclosed to West Los Angeles VAMC that these trips had to do with IVF or pregnancy. In the end, West Los Angeles VAMC decided not to offer plaintiff a position. Plaintiff asked for an explanation, but never received one (Dkt. No. 1 at 4-5).

         Plaintiff believed that West Los Angeles VAMC chose not to hire her due to discrimination and sought to file an Equal Employment Opportunity complaint with the Office of Resolution Management. Because this process first requires alternative dispute resolution, plaintiff engaged in a phone mediation with West Los Angeles VAMC in the fall of 2018. Plaintiff alleges that this mediation was the first time she disclosed to the facility that she did not have children and that she had gone to Russia to get pregnant. After a second mediation, plaintiff requested to be reconsidered for hire, but West Los Angeles VAMC declined. Plaintiff subsequently filed a formal EEO complaint, but never received a determination (Dkt. No. 1 at 5).

         As a result, plaintiff brings this current action against the United States Department of Veterans Affairs and Robert Wilkie pleading: (1) sex and pregnancy discrimination under Title VII of the Civil Rights Act; (2) age discrimination under the Age Discrimination in Employment Act; (3) disability discrimination under the ADA and failure to accommodate under the Rehabilitation Act of 1973; and (4) intentional infliction of emotional distress. Earlier, plaintiff brought these same claims against the same defendants in her first lawsuit in regard to her 2017 VAMC termination from New Mexico VAMC. Those claims were dismissed for failure to state a claim (Dkt. No. 1 at 6). So too here.

         Plaintiff filed the current complaint in May 2019. Rather than amending her complaint, plaintiff makes new allegations in her opposition brief by referencing the EEO investigation results. Although new facts should not be considered in this posture, all allegations were still reviewed for the purposes of this order. Her brief includes information about: the job vacancies at the West Los Angeles VAMC at the time plaintiff sought employment, applicants' scores on interview questions, and demographic information about the applicants selected for the positions available. Even if these allegations are true, however, they do not raise the right to relief above a speculative level (Dkt. No. 26 at 4-11).

         Defendants move to dismiss all of plaintiff's claims. This order follows full briefing (Dkt. Nos. 25, 26, 28) and oral argument.


         1. Discrimination Claims.

         Rule 12(b)(6) requires the dismissal of complaints that fail to state a claim for relief plausible on its face. Allegations that are merely conclusory need not be accepted ...

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