Sankey v. Wilkie (MAG+)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

SHARESTA K. SANKEY, )

)

Plaintiff, )

)

v. ) Case No. 3:19-cv-00525-RAH-CWB

)

ROBERT WILKIE, DEPARTMENT OF )

VETERAN AFFAIRS, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Sharesta K. Sankey, who is proceeding pro se, filed this action on July 24, 2019

to assert a claim against Defendant Robert Wilkie in his capacity as the Secretary of the

Department of Veterans Affairs. (Doc. 1). Along with the complaint, Plaintiff also filed a motion

to proceed in forma pauperis. (Doc. 2). On August 23, 2019, the court granted in forma pauperis

status and ordered the clerk to defer service of process pending a preliminary review of the

complaint pursuant to 28 U.S.C. § 1915. (Doc. 7). See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). For the

reasons set out herein, the undersigned Magistrate Judge recommends that Plaintiff’s complaint be

dismissed without prejudice.

I. Analysis

Plaintiff filed this action pro se using the standard “EEOC Complaint” form for claims

brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

(Doc. 1, at ¶¶ 2, 8, 10). The core factual allegations, however, appear to be related to potential

whistleblower retaliation rather than to discrimination under Title VII:

I reported gross [mis]management to leadership, in reference to the individual

named above [“John Bailey, African American, Male, Chief of /Chaplain

Services”], once he found out about the report, he began to harass, make false

accusations, create a hostile work environment and terminated me without proper

documentation or reasonings.

(Id. at ¶¶ 7, 9). In the section of the complaint entitled “Defendant(s)’ conduct is discriminatory

with respect to the following,” Plaintiff indeed marked “Other” and wrote “Whistleblower

Retaliation.” (Id. at ¶ 6).

Attached to the complaint is a June 25, 2019 letter to Plaintiff from the EEOC. (Doc. 1-

1).1 It appears from the letter that Plaintiff previously submitted a complaint to the Merit Systems

Protection Board (“MSPB”) arising out of the same underlying allegations. (Id.). It further appears

that the MSPB dismissed Plaintiff’s complaint for lack of jurisdiction. (Id.). The EEOC thus

concluded that Plaintiff had not presented a “mixed case” of alleged discrimination under

29 C.F.R. § 1614.302(a)2 and that it had no jurisdiction to consider the stated allegations. (Id.).

Despite Plaintiff’s use of an “EEOC Complaint” form, and even assuming arguendo that

Plaintiff had exhausted her administrative remedies for asserting a claim of discrimination, the

court concludes that the complaint does not plead a cognizable claim of discrimination under

Title VII. Regarding federal employees, 42 U.S.C. § 2000e-16(a) provides that “[a]ll personnel

1 The court will consider the attachment to the complaint in determining whether Plaintiff has

stated a plausible claim for relief. Carroll v. White, No. 1:16CV229, 2016 WL 7238914, at *1 n.2

(M.D. Ala. Nov. 21, 2016), report and recommendation adopted, No. 1:16CV229, 2016 WL

7234090 (M.D. Ala. Dec. 14, 2016) (citing Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th

Cir. 2016)); Fed. R. Civ. P. 10(c).

2 A mixed case “is a complaint of employment discrimination filed with a federal agency based on

race, color, religion, sex, national origin, age, disability, or genetic information related to or

stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB).”

29 C.F.R. § 1614.302(a)(1). The mixed case complaint may either “contain only an allegation of

employment discrimination or it may contain additional allegations that the MSPB has jurisdiction

to address.” Id.

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actions affecting employees or applicants for employment . . . shall be made free from any

discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).

“This provision extends to federal employees the same protections against discrimination and

retaliation that are provided to private-sector employees.” Gilliam v. U.S. Dep’t of Veterans Affs.,

822 F. App’x 985, 989 (11th Cir. 2020). Nowhere in the complaint, however, does Plaintiff allege

that she was discriminated against based upon her race, color, religion, sex, or national origin—or

that she was retaliated against for complaining about such forms of discrimination. The complaint

therefore fails to state a claim under Title VII upon which relief any relief can be granted.

See Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010) (“A dismissal under

§ 1915(e)(2)(B)(ii) is governed by the same standard as dismissal under Federal Rule of Civil

Procedure 12(b)(6).”) (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(observing that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)); accord Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015).

The gravamen of Plaintiff’s complaint instead is the allegation that she was retaliated

against (via a hostile work environment and ultimate termination) after making accusations of

“gross mismanagement,” and Plaintiff specifically identifies “whistleblower retaliation” as the

underlying wrongful conduct. (Doc. 1, at ¶¶ 6, 7, 9). “The [Whistleblower Protection Act

(“WPA”)] provides protection to federal employees against agency reprisal for whistleblowing

activities, such as disclosing illegal conduct, gross mismanagement, gross waste of funds, or acts

presenting substantial dangers to health and safety.” Hendrix v. Snow, 170 F. App’x 68, 78 (11th

Cir. 2006) (emphasis added); see 5 U.S.C. § 2302(b)(8). To establish a prima facie case of reprisal

for whistleblowing, a plaintiff has “the burden to establish (1) the acting official had the authority

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to take any personnel action; (2) the aggrieved employee made a protected disclosure; (3) the

acting official used his authority to take, or refuse to take, a personnel action; and (4) the protected

disclosure was a contributing factor in the agency’s personnel action.” Abrahamsen v. United

States Dep’t of Veterans Affs., No. 20-14771, 2021 WL 5321678, at *3 (11th Cir. Nov. 16, 2021),

cert. denied sub nom. Abrahamsen v. Dep’t of Veterans Affs., 142 S. Ct. 1418 (2022).

It is unclear from the record whether Plaintiff asserted a whistleblower claim with the

MSPB—although the MSPB’s dismissal for lack of jurisdiction suggests that she did not. The

court therefore cannot determine whether Plaintiff has exhausted her administrative remedies prior

to seeking judicial review. What is clear, however, is that jurisdiction over such review does not

lie in this court. Pursuant to federal statute, claims for reprisal for whistleblowing “shall be filed

in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent

jurisdiction.” 5 U.S.C. § 7703(b)(1)(B). As observed by the Eleventh Circuit Court of Appeals,

“[t]he district courts are clearly omitted from this grant of jurisdiction.” Boyd v. United States

Dept. of Veterans Affairs, 808 F. App’x 1015, 1016 (11th Cir. 2020). Because federal courts are

courts of limited jurisdiction and may only hear cases as specifically authorized, see Exxon Mobil

Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005) (citing Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994)), this court would lack jurisdiction over a WPA claim even if

Plaintiff’s “EEOC Complaint” were construed to state a claim in that regard. Such a lack of

jurisdiction renders the claim “frivolous” for purposes of review under § 1915. See, e.g., Neitzke

v. Williams, 490 U.S. 319, 327 n.6 (1989).

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Ill. Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that this action be

DISMISSED WITHOUT PREJUDICE.

It is further ORDERED that, by August 25, 2022, the parties may file written objections to

this Recommendation. An objecting party must identify the specific portion of the factual findings

or legal conclusions to which the objection is made and must describe in detail the basis for the

objection. Frivolous, conclusive, or general objections will not be considered.

Failure to file a written objection to this Recommendation shall bar a party from a de novo

determination by the District Court of any factual findings or legal conclusions contained herein

and shall waive the right of the party to challenge on appeal any subsequent order that is based on

factual findings and legal conclusions accepted or adopted by the District Court, except upon

grounds of plain error or manifest injustice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark

Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794

(11th Cir. 1989).

DONE this 11th day of August 2022.

/s/

CHAD W. BRYAN

UNITED STATES MAGISTRATE JUDGE

> Courts may dismiss a pro se complaint without affording an opportunity to amend when, as here,

it is clear that a potential amendment would be futile. Bryant v. Dupree, 252 F.3d 1161, 1163

(11th Cir.2001) (“A district court need not, however, allow an amendment ... where amendment

would be futile.”); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).