Tucker v. Department of Veterans Affairs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PAMELA D. TUCKER, Case No. 1:23-cv-804

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

DEPARTMENT OF VETERANS ORDER

AFFAIRS,

Defendant.

Pro se plaintiff Pamela Tucker initiated this action against defendant Department of

Veterans Affairs (VA) seeking judicial review of an adverse decision of the Merit Systems

Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA) and asserting

claims of disability discrimination, harassment, and retaliation. (Doc. 1-1, PAGEID 6, 13, 14).

This matter is before the court on plaintiff’s motion for sanctions and change of venue (Doc. 38),

and defendant’s responsive memorandum. (Doc. 40).

1. Background

After plaintiff was terminated from her employment with the VA, she appealed her

removal to the MSPB. The MSPB upheld the VA’s decision terminating plaintiff’s employment.

Plaintiff then filed a complaint in this federal court challenging the MSPB’s decision and

asserting additional claims for disability discrimination, harassment, and retaliation. (Doc. 1).

The complaint was initially filed in the Dayton location of Court and subsequently transferred to

the Cincinnati location of Court by Magistrate Judge Gentry. (Doc. 19). Plaintiff did not file

objections to the transfer order. See Fed. R. Civ. P. 72(b).

During a scheduling conference with the undersigned magistrate judge, the undersigned

explained that this was a “mixed case,” i.e., one involving an appeal of the MSPB’s final

decision upholding plaintiff’s termination and also alleging separate claims of discrimination

under federal law that are subject to discovery under Fed. R. Civ. P. 26. Plaintiff disagreed that

any additional discovery should be conducted in this matter, and she filed a “Motion Objection

[To] Case Review Standards And Sep[a]ration Of Claims” arguing that she was exempt from

Fed. R. Civ. P. 26 disclosures. (Doc. 25). The Court denied plaintiff’s motion, finding

plaintiff’s claims represented a “mixed case” and ordering that “the portion of plaintiff’s case

alleging violations of federal antidiscrimination laws will proceed on de novo review, including

trial if necessary, and discovery will proceed under Fed. R. Civ. P. 26.” (Doc. 31 at PAGEID

309). Plaintiff did not file objections to the undersigned’s order.

On August 1, 2024, defendant filed a certified copy of the MSPB record on the Court’s

docket. (Docs. 34, 36). On August 12, 2024, plaintiff filed a response alleging that the “Merit

Systems Protection Board files are compromised and lack records in support of [p]laintiff’s

affirmative defense.” (Doc. 37 at PAGEID 1905). Plaintiff now brings the present motion for

sanctions and a change of venue. (Doc. 38).

2. Motion for Sanctions

As best the Court can discern, plaintiff seeks unspecified sanctions against defendant,

defendant’s counsel, and the undersigned based upon the alleged spoliation and incompleteness

of the certified record. (Doc. 38 at PAGEID 1931). Plaintiff alleges, “Judge Litkovitz and

[d]efendant spoiled the [j]udicial [r]eview files and allow[ed] the [c]ertification of the files to be

under the authority of the [d]efendant (her client) and (his Agency).” (Id.). Defendant responds

by pointing out that the records to which the plaintiff refers “are not missing from the MSPB

certified record filed with the Court.” (Doc. 40 at PAGEID 2153). Defendant further states that

defendant’s counsel directed plaintiff to the location of the alleged missing documents. (Id.)

“Plaintiff bears the burden of proof on spoliation.” Watson v. Ohio Ambulance Sols.,

LLC, No. 1:20-cv-802, 2022 WL 2133739, at *4 (S.D. Ohio June 14, 2022) (citing Yoe v.

Crescent Sock Co., No. 1:15-cv-3, 2017 WL 5479932, at *9 (E.D. Tenn. Nov. 14, 2017).

Plaintiff points to three records she asserts are missing from the certified record: MSPB’s Order

to Show Cause dated August 18, 2016 (Doc. 40 at PAGEID 1908); defendant’s Response to the

Order to Show Cause dated September 19, 2016 (Id. at PAGEID 1912-1921); and plaintiff’s

Response to the Order to Show Cause dated September 27, 2016. (Id. at PAGEID 1922-28). On

August 14, 2024, counsel for defendant sent the following email to plaintiff stating, “The

documents you list as missing in your filing from August 12, 2024 (ECF No. 37) are in the

certified record. They are at ECF No. 34-5, PAGEID## 1535, 1543, 1548, and 1556. I will call

you at 1:30pm today to see if there is more to discuss.” (Doc. 40-3 at PAGEID 2181). Review

of the certified record confirms that the documents plaintiff references are present. (See Doc. 34-

5 at PAGEID 1535-38 (MSPB’s Order to Show Cause), 1548-54, 1556-61).1 Therefore, the

Court declines to impose sanctions based on the alleged spoliation or incompleteness of the

certified record. Plaintiff’s motion for sanctions on this basis is DENIED.

Further, to the extent plaintiff’s motion asserts that the certified record is incomplete

because it does not contain copies of motions or documents filed prior to the case being

transferred to the Cincinnati seat of Court that argument is without merit. All of the documents,

1 Plaintiff cites to “Doc. 32” filed “August 1, 2024” as the docket reference for the certified record. (Doc. 37 at

PAGEID 1905). However, the certified record is actually Doc. 34 on this Court’s docket. Further, plaintiff’s claim

that the certified record is incomplete may be due in part to confusion about which docket entry contains the entire

record. Initially, the court clerk sent notice of non-compliance with S.D. Ohio Civ. R. 5.1(c) to defendant requiring

defendant to refile portions of the certified record (Doc. 34) as a text searchable document. However, the court clerk

rescinded the notice on August 5, 2024, when it was discovered that Doc. 34 was text searchable. On August 5,

2024, defendant refiled part of the certified record, seemingly in an attempt to comply with the clerk’s notice and

served a copy on plaintiff via electronic mail. (Doc. 36). Plaintiff filed the present motion claiming the certified

record is spoiled or incomplete on August 12, 2024. (Doc. 37). Further, any references to the certified record in this

order cite to Doc. 34.

motion and orders from Tucker v. Department of Veterans Affairs, No. 3:23-cv-9 (S.D. Ohio),

were transferred to and appear on the docket of Tucker v. Department of Veterans Affairs, No.

1:23-cv-804 (S.D. of Ohio), the instant case. Therefore, this Court has access to all of the

documents previously filed in the Dayton case and plaintiff may cite to any of those documents

as needed.

Next, plaintiff requests that “the court impose respectfully a penalty upon Judge

Litkovitz” for an alleged error in the May 28, 2024 Order finding that because the action is a

“mixed case” plaintiff is subject to Fed. R. Civ. P. 26 disclosures. (Doc. 38 at PAGEID 1931,

1936, referencing Doc. 31 at PAGEID 309). Plaintiff does not specify what “penalty” she is

seeking. (Doc. 38). Plaintiff reiterates the same arguments she made in prior filings claiming

that the Court erred in finding this action represents a “mixed case” and that she should not be

subject to discovery. (Doc. 38 at PAGEID 1931; see also Doc. 25). Defendant argues that

plaintiff’s “arguments have been fully heard by the Court and rejected . . . [and] plaintiff’s

dissatisfaction with the result does not entitle her to the requested relief of disqualification.”

(Doc. 40 at PAGEID 2155, citing Docs. 25, 26, 28, 31).

The proper way for a party to seek correction of an alleged error in a federal magistrate

judge’s ruling is to file a timely objection. Under Rule 72, parties may file specific written

objections to the orders or proposed findings and recommendations of a federal magistrate judge

within fourteen days of being served with a copy. Fed. R. Civ. P. 72(a), (b)(2); see also 28

U.S.C. § 636; Scott v. Eastman Chem. Co., 275 F. App’x 466, 484 (6th Cir. 2008) (finding

plaintiff waived her right to assign error when she failed to object to the magistrate judge’s order

denying plaintiff’s motion to amend complaint). Here, plaintiff failed to file any objections to

the undersigned’s Order and has therefore waived her right to assign error. Accordingly,

plaintiff’s motion for sanctions on this basis is DENIED.

3. Plaintiff’s Motion for Change of Venue to the Dayton Location of Court

Plaintiff’s motion seeking a “change of venue back to the District of Dayton” asserts

plaintiff “cannot receive a fair[] adjudication [j]udicial [r]eview under this jurisdiction.” (Doc 38

at PAGEID 1934). Plaintiff does not address any of the factors the Court must consider under 28

U.S.C. § 1404(a) for a change of venue relating to “convenience and fairness.” (See Magistrate

Judge Gentry’s Order transferring venue to the Cincinnati location of Court, Doc. 19 at PAGEID

229, citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) and Means v. U.S. Conf. of

Catholic Bishops, 836 F.3d 643 (6th Cir. 2016)). Instead, plaintiff appears to argue that the

district court judge in Dayton would have ruled in her favor on the motions discussed supra.

(Doc. 38 at PAGEID 1934). Defendant responds by arguing that plaintiff’s motion is

unsupported, and plaintiff seeks transfer solely because she is dissatisfied with the Court’s

unfavorable rulings. (Doc. 40 at PAGEID 2155).

As discussed above, the proper way for a party to seek correction of an alleged error in a

federal magistrate judge’s ruling is to file a timely objection. Fed. R. Civ. P. 72. Plaintiff failed

to object to Magistrate Judge Gentry’s order transferring this action to the Cincinnati seat of

Court (Doc. 19), and therefore, plaintiff has waived her right to assign error to that order. Fed.

R. Civ. P. 72(a). Accordingly, plaintiff’s motion for change of venue is DENIED.

For the foregoing reasons, plaintiff’s motion for sanctions and change of venue (Doc. 38)

is DENIED.

IT IS SO ORDERED.

Date: 2/10/2025 Herm Kethovt-

Karen L. Litkovitz

United States Magistrate Judge