Jolly v. United States

In the United States Court of Federal Claims

NOT FOR PUBLICATION

No. 22-1551C

(Filed: February 28, 2023)

)

JACQUELINE K. JOLLY, )

)

Plaintiff, )

)

v. )

)

UNITED STATES, )

)

Defendant. )

)

Jacqueline K. Jolly, Ph.D., Cleveland, OH, pro se.

Daniel Bertoni, Trial Attorney, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, Washington DC, for defendant, with whom on the

briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General,

and Patricia M. McCarthy, Director, Claudia Burke, Assistant Director, and

Igor Helman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, Washington, DC. Erica M. Skelly, Staff Attorney,

Office of General Counsel, Department of Veterans Affairs, Akron, OH, Of Counsel.

OPINION AND ORDER1

On October 17, 2022, plaintiff pro se Jacqueline K. Jolly, Ph.D., filed this

action alleging her former employer, the United States Department of Veterans

Affairs (VA), engaged in a series of illegal employment actions ultimately resulting

in her termination after more than 20 years of government service. Dr. Jolly’s

claims include defamation and violations of: Title VII of the Civil Rights Act of

1964 (Title VII), as amended by the Equal Employment Opportunity Act of 1972,

42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 633a(a); the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.

1This case was transferred to the undersigned for adjudication on December 22, 2022, pursuant

to Rule 40.1(b) of the Rules of the United States Court of Federal Claims (RCFC). See ECF 7–8.

Briefing on the pending motions continued through February 14, 2023. See ECF 6, 10–11, 13, 15.

§ 1101 et seq.; and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.

Dr. Jolly seeks injunctive relief, including reinstatement, and $2 million in

damages.

Pending before the Court is defendant’s motion to dismiss the complaint for

lack of subject matter jurisdiction and failure to state a claim upon which relief

can be granted pursuant to RCFC 12(b)(1) and 12(b)(6), respectively. See ECF 6.

Specifically, defendant argues the Court lacks jurisdiction to hear all of Dr. Jolly’s

claims except her FLSA claim. Regarding that claim, defendant avers, as pled, the

complaint fails to assert a viable claim for statutory overtime backpay. In opposing

the government’s motion, Dr. Jolly seeks discovery in the form of patient medical

records related to her tenure as a VA psychologist. See ECF 10 & 15.

I. Subject Matter Jurisdiction

In determining whether the Court has subject matter jurisdiction to

entertain a claim, all undisputed facts asserted in the complaint must be accepted

as true and reasonable inferences drawn in plaintiff’s favor. Trusted Integration,

Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United

States, 60 F.3d 795, 797 (Fed. Cir. 1995)). Moreover, where, as here, Dr. Jolly is

proceeding pro se, the Court construes her pleading liberally. See, e.g., Kinney v.

United States, 161 Fed. Cl. 644, 647 (2022) (“[P]ro se plaintiffs are ‘not expected

to frame issues with the precision of a common law pleading.’”) (quoting Roche v.

U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987)). Nevertheless, pro se

plaintiffs must establish the Court’s jurisdiction by a preponderance of the evidence.

Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States,

303 F.3d 1357, 1359 (Fed. Cir. 2002)).

In this case, the Court must dismiss all of Dr. Jolly’s claims save her FLSA

claim for want of subject matter jurisdiction. Dr. Jolly’s employment-discrimination

(and retaliation) claims based on race, sex, and age arise under Title VII and the

ADEA. It is well settled that jurisdiction over such claims lies exclusively with

the federal district courts. See Taylor v. United States, 310 F. App’x. 390, 392–93

(Fed. Cir. 2009) (“Because Title VII vests jurisdiction over discrimination claims

exclusively in the district court, the Court of Federal Claims cannot exercise

jurisdiction over those claims.”); Canonica v. United States, 41 Fed. Cl. 516, 523

(1998) (“[Court of Federal Claims] does not have jurisdiction over actions brought

under the ADEA; exclusive jurisdiction rests with federal district courts.”)

(citations omitted).

Next, Dr. Jolly’s wrongful termination and whistleblower retaliation claims

constitute claims of adverse employment action, which are covered by the CSRA.

See Hall v. United States, 617 F.3d 1313, 1316 (Fed. Cir. 2010) (unlawful removal

and whistleblower reprisal claims fall within the CSRA). Jurisdiction over such

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claims is similarly vested exclusively in federal district court. Id. (“It is well

established that the Court of Federal Claims lacks jurisdiction over personnel

actions that are covered by the CSRA.”) (citing United States v. Fausto, 484 U.S.

439, 449 (1988)).

Lastly, Dr. Jolly’s defamation claim–which “sounds in tort”–also falls outside

this Court’s subject matter jurisdiction. See Golden v. United States, 118 Fed. Cl.

764, 772 (2014) (“Cases sounding in tort, such as defamation, are expressly excluded

by the [Tucker Act].”) (citing 28 U.S.C. § 1491(a)(2)).

II. Potential Transfer

Before dismissing Dr. Jolly’s claims pursuant to RCFC 12(b)(1), the Court

considers whether a transfer under 28 U.S.C. § 1631 is proper. Section 1631

provides:

Whenever a civil action is filed in a court . . . and that court finds that

there is a want of jurisdiction, the court shall, if it is in the interest of

justice, transfer such action or appeal to any other such court . . . in

which the action or appeal could have been brought at the time it was

filed or noticed . . . .

28 U.S.C. § 1631. “Transfer is appropriate when three elements are met: (1) the

transferring court lacks subject matter jurisdiction; (2) the case could have been

filed in the court receiving the transfer; and (3) the transfer is in the interests

of justice.’” Willis v. United States, No. 21-2170, 2022 WL 54443, at *3 (Fed. Cl.

Jan. 6, 2022) (quoting Brown v. United States, 74 Fed. Cl. 546, 550 (2006)

(citing 28 U.S.C. § 1631)).

For Dr. Jolly’s claims of employment discrimination, wrongful termination,

whistleblower retaliation, and defamation, the first requirement is easily satisfied

because this Court lacks subject matter jurisdiction to hear them.

The second requirement is potentially satisfied for the employment

discrimination and retaliation claims since, as explained supra, federal district

courts have exclusive jurisdiction over Title VII and ADEA claims. In this case,

given the location of Dr. Jolly’s VA employment, as pled, the United States District

Court for the Northern District of Ohio is likely the appropriate venue. However,

a proper transfer of the claims would involve factual inquiries not currently before

this Court: whether the 90-day statute of limitations governing Dr. Jolly’s Title VII

and ADEA claims had run prior to her filing this action on October 17, 2022.2

2 The statute of limitations for both Title VII and ADEA claims is 90 days from the receipt of final

agency action. See 42 U.S.C. § 2000e-16 (90-day statute of limitations for federal-sector Title VII

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The second element is not satisfied for Dr. Jolly’s wrongful termination,

whistleblower, and defamation claims. Dr. Jolly’s CSRA claims (i.e., wrongful

termination and whistleblower claims) must be presented to the Merit Systems

Protection Board (MSPB). See Read v. United States, 254 F.3d 1064, 1067 (Fed. Cir.

2001) (removal claim); Piccolo v. Merit Sys. Prot. Bd., 869 F.3d 1369, 1371 (Fed. Cir.

2017) (retaliation claim). Section 1631 permits transfers to “courts” as defined

in 28 U.S.C. § 610 which, in turn, does not include the MSPB. As for Dr. Jolly’s

defamation claim, the United States has not waived sovereign immunity under the

Federal Tort Claims Act, 28 U.S.C. § 2680(h), for any claims alleging libel, slander,

or defamation. See Golden, 118 Fed. Cl. at 770. The Court, therefore, may not

properly transfer her defamation claim to any court.

For those claims which satisfy the first and potentially the second element–

namely, the employment discrimination and retaliation claims–a transfer would not

serve the interests of justice. As the Court recently reiterated,

“The phrase ‘if it is in the interest of justice’ relates to claims which are

nonfrivolous and as such should be decided on the merits.” Galloway

Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) (citing

Zinger Constr. Co. v. United States, 753 F.2d 1053, 1055 (Fed. Cir.

1985)). The decision to transfer “rests within the sound discretion of

the transferor court, and the court may decline to transfer the case

‘[i]f such transfer would nevertheless be futile given the weakness of

plaintiff’s case on the merits.’” Spencer v. United States, 98 Fed. Cl.

349, 359 (2011) (quoting Faulkner v. United States, 43 Fed. Cl. 54, 56

(1999)).

Willis, 2022 WL 54443, at *3. Even liberally construed, Dr. Jolly’s claims of

employment discrimination and retaliation proffer merely “conclusory allegations,”

lacking necessary specificity as to the underlying factual basis. See, e.g., ECF 1 at

11 (“Defendants conspired to [engage in] and were involved in . . . intentional

discrimination [and] harassment.”); see Pollack v. United States, No. 11-19, 2011

WL 5330313, at *6 (Fed. Cl. Nov. 7, 2011) (“When assessing the merits of a

plaintiff’s case, the court need not accept conclusory allegations or legal conclusions

masquerading as factual conclusions.”) (cleaned up) (citing cases), aff’d,

498 F. App’x. 19 (Fed. Cir. 2012). As such, transfer is not warranted.

claims); Price v. Bernanke, 470 F.3d 384 (D.C. Cir. 2006) (same for federal-sector ADEA claims)

(citing 29 U.S.C. § 626(e)). The record is not clear whether and, if so, when Dr. Jolly received a

“Right to Sue” letter from the Equal Employment Opportunity Commission, thereby triggering the

90-day clock. See ECF 10 at 2 (Dr. Jolly’s request for a “Right to Sue” letter dated July 24, 2022).

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III. FLSA Claim

The FLSA requires the payment of overtime compensation when the

United States employs a non-exempt worker in excess of a 40-hour workweek.

See 29 U.S.C. §§ 207(a)(2)(C) & 213(a)(1). Monetary claims for unpaid overtime

compensation under the FLSA against the federal government are within the

jurisdiction of the Court of Federal Claims. Abbey v. United States, 745 F.3d 1363,

1369 (Fed. Cir. 2014) (“[T]he Tucker Act applies to a claim against the government

under the monetary-damages provision of the FLSA.”) (citing cases).

To prevail on her FLSA claim for unpaid overtime compensation, Dr. Jolly

must demonstrate: (1) she was a non-exempt VA employee or otherwise subject

to the protections of the FLSA; (2) each activity for which she seeks overtime

compensation constitutes “work”3; (3) the work claimed is integral or principally

related to her job description or assignment; and (4) the claimed additional work

was not de minimis. See Abbey v. United States, 124 Fed. Cl. 397, 401 (2015)

(citing cases), cited in Akpeneye v. United States, 146 Fed. Cl. 356, 365 (2019).

Although not the model of clarity and lacking sufficient detail, Dr. Jolly’s

complaint, liberally construed, generally alleges she was compelled to work beyond

the statutory 40-hour-a-week limit without due compensation. See ECF 1 at 10.

More specifically, Dr. Jolly alleges the VA demanded that she work through lunch,

during breaks, and before and after normal business hours presumably in addition

to her ordinary 40-hour workweek. See id. at 16. In connection with this claim,

she seeks money damages in the form of “lost wages . . . [for] violations of labor

law.” See id. at 11.

Nevertheless, Dr. Jolly’s complaint and three responses to defendant’s

pending motion to dismiss her FLSA claim under RCFC 12(b)(6) fail to specify,

among other material facts: (1) whether she was a non-exempt VA employee

or otherwise covered by the FLSA; (2) the dates and times she purportedly worked

overtime during the relevant statute of limitations period4; (3) at whose direction

within the VA she purportedly worked overtime; (4) with whose knowledge at

the VA she purportedly worked overtime; (5) the precise work she claims to have

3 To constitute “work,” the activity must have been “(1) undertaken for the benefit of the employer,

(2) known or reasonably should have been known by the employer to have been performed, and

(3) controlled or required by the employer.” Bull v. United States, 68 Fed. Cl. 212, 220 (2005)

(internal citations omitted).

4The statute of limitations for FLSA claims is two years unless Dr. Jolly shows the VA acted

willfully; in that case the extended three-year statute of limitations applies. See Armstrong v.

United States, No. 22-46, 2022 WL 17730001, at *5 (Fed. Cl. Dec. 16, 2022) (quoting 29 U.S.C

§ 255(a); citing Santiago v. United States, 107 Fed. Cl. 154, 159 (2012)). Since the complaint in this

case was filed on October 17, 2022, Dr. Jolly’s maximum potential recovery is from October 17, 2019,

until the earlier of her placement on administrative leave or termination.

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performed outside the 40-hour workweek; (6) whether the alleged overtime work

related to her job description and/or assigned duties; (7) the total number of hours

of overtime she allegedly worked during the applicable two- or three-year statute of

limitations period; and (8) the dates she was placed on administrative leave and

thereafter terminated. These deficiencies prevent the Court from meaningfully

assessing whether Dr. Jolly’s FLSA claim should survive dismissal.

For these reasons, the Court directs Dr. Jolly to file an amended complaint

limited to her FLSA claim for unpaid overtime compensation. In the amended

pleading, Dr. Jolly shall specify the factual basis for her overtime claim including

the critical information outlined in the preceding paragraph. Dr. Jolly’s amended

complaint will be filed by leave of the Court pursuant to RCFC 15(a)(2). Failure

to comply with this Order will result in the dismissal of this action for failure to

prosecute under RCFC 41(b). In accordance with RCFC 15(a)(3), defendant shall

respond to Dr. Jolly’s amended complaint within 14 days of its filing.

IV. Discovery

Generally, courts allow broad discovery and discovery rules are interpreted

liberally. See New Orleans Reg’l Physician Hosp. Org., Inc. v. United States,

122 Fed. Cl. 807 (2015) (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)).

Discovery at this stage, however, is typically restricted since dismissal centers

on the legal assessment of the complaint’s sufficiency. See, e.g., Harris v. United

States, 868 F.3d 1376, 1378 (Fed. Cir. 2017) (affirming trial court’s denial of

discovery because the issues “implicate legal questions for which no fact discovery

was required”). Although rare, courts may allow limited discovery necessary to

resolve a pending dispositive motion. See, e.g., Fairholme Funds, Inc. v. United

States, 114 Fed. Cl. 718, 721–22 (2014) (plaintiff entitled to limited discovery to

respond to RCFC 12(b)(1) and 12(b)(6) motions where defendant made factual

assertions beyond and contradicting allegations in complaint). Of note, in

Fairholme Funds, the plaintiff not only specified the discovery sought but explained

how that discovery would demonstrate the court’s jurisdiction and viability of the

claims.5 Id. at 722.

Dr. Jolly seeks discovery in the form of access to the VA’s Computerized

Patient Record System (CPRS); but the pleadings fail to explain the necessity of

the requested discovery, particularly as to her now-remaining FLSA claim. See

ECF 10-1 at 1. The requested patient records include Dr. Jolly’s clinical notes, on

which she presumably seeks to rely in disputing her termination (i.e., documenting

5 The Court’s jurisdiction to hear Dr. Jolly’s FLSA claim is not in dispute. As such, jurisdictional

discovery is not at issue. Cf. Fox Logistics & Constr. Co. v. United States, 145 Fed. Cl. 236, 239

(2019) (“When jurisdictional facts are in dispute, jurisdictional discovery is appropriate.”)

(citing Hopi Tribe v. United States, 113 Fed. Cl. 43, 50 (2013)).

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patient care). As explained supra, this Court lacks jurisdiction to adjudicate

Dr. Jolly’s challenge to her termination. Accordingly, to the extent the patient

records are sought for this purpose, they are not relevant to this matter.

Nonetheless, the Court considers whether the requested patient records are

relevant to and necessary for Dr. Jolly to file an amended complaint focused on her

FLSA claim and, thereafter, respond to an anticipated renewed dispositive motion.

Appended to Dr. Jolly’s consolidated response to defendant’s motion to dismiss and

request for discovery are what appear to be excerpts of Dr. Jolly’s clinical notes.

See ECF 10 at 28–42. Although the notes purport to include the date and time as

recorded by Dr. Jolly, they do not account for or distinguish between a 40-hour

workweek and overtime. At this stage, moreover, in accordance with RCFC 8(a),

Dr. Jolly needs only “a short and plain statement of [her FLSA] claim[] showing

that [she] is entitled to relief” (i.e., state the factual basis for her overtime claim

including the critical information outlined in the preceding section). Should this

case move beyond the initial pleading phase, patient records may be relevant

to corroborating allegations of, for example, the number of patients seen on a

particular day or during a particular week, working through the lunch hour

or before or after regular working hours. Put simply, the request is, at best,

premature.6 Accordingly, the Court denies Dr. Jolly’s request for discovery at

this time.

CONCLUSION

For the foregoing reasons,

(1) Defendant’s Motion to Dismiss plaintiff’s complaint for lack of subject matter

jurisdiction under RCFC 12(b)(1) as to all claims except the FLSA claim

(ECF 6) is GRANTED.

(2) Defendant’s Motion to Dismiss plaintiff’s FLSA claim for failure to state a

claim upon which relief can be granted under RCFC 12(b)(6) (ECF 6) is

DENIED without prejudice.

(3) Plaintiff shall FILE an Amended Complaint consistent with this Order on or

before March 14, 2023, limited to her FLSA claim for unpaid overtime

compensation.

6 Significantly outweighing their limited probative value at this juncture is the fact the records are

rife with sensitive patient information (e.g., medical issues, diagnoses, treatment; therapy session

quotes and summaries; patients’ ages and personal histories; dependent information). In granting

access to the patient portal, Dr. Jolly–a former VA employee–likely would have access to current

patient information as well as the medical records of patients she never treated.

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(4) Plaintiff’s Amended Complaint may be rejected by the Court if the pleading

fails to address the material facts listed below and outlined in Section III of

this Order:

a. Whether plaintiff was a non-exempt VA employee or otherwise covered

by the FLSA;

b. The dates and times plaintiff purportedly worked overtime during the

relevant statute of limitations period;

c. At whose direction within the VA plaintiff purportedly worked

overtime;

d. With whose knowledge at the VA plaintiff purportedly worked

overtime;

e. The precise work plaintiff claims to have performed outside the

40-hour workweek;

f. Whether the alleged overtime work related to plaintiff’s job description

and/or assigned duties;

g. The total number of hours of overtime plaintiff allegedly worked

during the applicable two- or three-year statute of limitations period;

and

h. The dates plaintiff was placed on administrative leave and thereafter

terminated.

(5) The Clerk of Court shall FILE plaintiff’s Amended Complaint by leave of the

Court in accordance with RCFC 15(a)(2).

(6) If no amended complaint is received, the Court will issue an order dismissing

the complaint for failure to prosecute pursuant to RCFC 41(b).

(7) Defendant shall FILE a response to plaintiff’s Amended Complaint within 14

days of the filing of the amended pleading by leave of the Court.

(8) Plaintiff’s Motion for Leave to Conduct Discovery (ECF 10) is DENIED

without prejudice.

(9) Filings not filed within this scope of this Order may be REJECTED by the

Court.

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It is so ORDERED.

___________________

Armando O. Bonilla

Judge

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