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Wilson v. Wilkie

United States District Court, S.D. Ohio, Eastern Division

July 12, 2019

CARL WILSON, Plaintiff,
v.
ACTING SECRETARY ROBERT WILKIE, et al., Defendant.

          OPINION AND ORDER

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court upon the Motion to Amend Complaint (ECF No. 13) of Plaintiff, Carl Wilson, and the Motion for Judgment on the Pleadings (ECF No. 16) of Defendants, the United States Department of Veterans Affairs (the “VA”) and Robert Wilkie, Acting Secretary of the VA, (collectively, “Defendants”). Both motions are fully briefed and ripe for disposition. For the following reasons, Plaintiff's Motion to Amend Complaint is DENIED (ECF No. 13), and Defendants' Motion for Partial Judgment on the Pleadings is GRANTED (ECF No. 16).

         I. BACKGROUND

         A. Facts Relevant to Defendants' Motion for Partial Judgment on the Pleadings

         Plaintiff was employed by the VA at the Chillicothe Veterans Affairs Medical Center (“Chillicothe VAMC”) as a Recreation Assistant. (Compl. ¶ 3, ECF No. 1.) Plaintiff was compelled to undergo a drug test, in which he allegedly tested positive for THC/marijuana. (Id. at ¶ 5.) As a result of the positive drug test, Plaintiff was removed from service on May 26, 2017. (Id.) Plaintiff's work performance was not at issue in this case, as he received “fully successful” or “exceeds expectation level” reviews at every performance evaluation. (Id. at ¶ 4.) Additionally, he never received any disciplinary actions prior to his removal. (Id.)

         Plaintiff appealed his removal to the Merit Systems Protection Board (“MSPB”), [1]alleging in part that the drug test was improper under the Fourth and Fifth Amendments to the United States Constitution and the VA's own policies.[2] (Compl. ¶¶ 5-6, ECF No. 1.) On March 23, 2018, the Administrative Judge issued a decision finding that, based on the totality of the circumstances, the VA “did not have reasonable suspicion under the Fourth Amendment” to compel Plaintiff to submit to a drug test and that the VA's actions violated its own written policies regarding reasonable suspicion drug tests. (Id. at ¶¶ 7-8.) The Administrative Judge concluded that Plaintiff was improperly removed from his position and ordered the VA to reinstate Plaintiff with backpay and benefits restored from the date of initial removal. (Id.) On April 27, 2018, the Administrative Judge's decision became the final decision of the MSPB. (Id. at ¶ 7.)

         Plaintiff filed his Complaint with this Court on May 24, 2018. (Compl., ECF No. 1.) Plaintiff alleges that he suffered “emotional stress, anxiety and humiliation as a consequence of his being compelled to submit to the illegal drug test and due to his unlawful termination.” (Id. at ¶ 10.) Plaintiff further alleges that, because the MSPB is not authorized to award compensatory damages for his emotional distress, anxiety, and humiliation, he “can obtain general compensatory damages from the Secretary of the Department of Veterans Affairs for the violation of his constitutional rights in a Bivens action.” (Id. at ¶¶ 9-10.)

         In the Complaint, Plaintiff also appeals aspects of the MSPB decision. Specifically, he appeals the MSPB's finding that his termination was not a result of race discrimination (id. at ¶¶ 12-14) and/or disability discrimination (id. at ¶¶ 15-17). He also brings a claim under the Equal Pay Act for unlawful disparity in pay for Recreation Assistants. (Id. at ¶¶ 18-22). These claims are not at issue in Defendants' Motion for Judgment on the Pleadings (ECF No. 14).

         In their Motion for Judgment on the Pleadings, Defendants only challenge Plaintiff's Bivens claim. Defendants contend that the Supreme Court of the United States has refused to extend Bivens claims to the context of federal employment and that the Court should not authorize a Bivens action in this context. (Id. at 2.) Defendants also assert that Plaintiff cannot bring a Bivens suit against a federal agency or a federal employee in his or her official capacity. (Id. at n. 2.) Plaintiff counters that the Supreme Court has specifically allowed damages claims to proceed in the context of unconstitutional searches and seizures under the Fourth Amendment. (Pl.'s Resp. in Opp'n at 2, ECF No. 19.) He also contends that the Supreme Court has not completely precluded a federal employee from bringing a Bivens action for violation of his or her constitutional rights. (Id.) Defendants maintain, however, that although Plaintiff asserts a Fourth Amendment claim as the plaintiff did in Bivens, this case presents a “new context” for a Bivens action because it involves the federal employment relationship. (Defs.' Reply at 1-6, ECF No. 20.)

         B. Proposed Amendments to the Complaint

         The Court's Preliminary Pretrial Order provides that any motions addressing the parties or pleadings must be filed by April 26, 2019. (ECF No. 11.) On April 25, 2019, Plaintiff filed a Motion to Amend Complaint (ECF No. 13), in which he seeks leave to add a claim under 42 U.S.C. § 1985(3) for conspiracy to deprive him of his constitutional rights. Plaintiff submitted a proposed Amended Complaint with his Motion to Amend Complaint. (ECF No. 13-1.) For his new claim under 42 U.S.C. § 1985(3), Plaintiff alleges as follows:

18. Patti Gilliland, Supervisor; Terrance Andrews, Labor Relations Specialist; Lt. Lionel Hamilton, Police Officer; Jeaneen Summers Moore, HR Specialist; and Mark Murdock, Medical Center Director acted together to deprive Plaintiff's [sic] of his constitutional rights.
19. Ms. Gilliland, Mr. Andrews, Lt. Hamilton, Ms. Summers Moore, and Mr. Murdock conspired to deprive Plaintiff of his constitutional rights.
20. Plaintiff states a claim under 42 USC Section 1985 against Ms. Gilliland, Mr. Andrews, Lt. Hamilton, Ms. Summers Moore, and Mr. Murdock for conspiring to ...

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