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Wade v. McDonald

United States District Court, W.D. Virginia, Roanoke Division

September 18, 2014

ROBERT A. McDONALD, [1] Secretary, Department of Veterans Affairs, Defendant.


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff, Walter Burke Wade ("Wade"), filed this action pro se alleging age discrimination, violations of his rights as a whistleblower and workplace retaliation at the Veterans Affairs Medical Center in Salem, Virginia ("Salem VAMC"). Defendant moved to dismiss Wades claims under Fed.R.Civ.P. Rule 12(b)(1) for lack of subject-matter jurisdiction and under Fed. R. Civ. P Rule 12(b)(6) for failure to state a claim. For the reasons set forth below, I grant Defendants motions and dismiss this action.

A. Factual Allegations[3]

In February 2006, Wade was employed as a urologist at the Salem VAMC. Wade reported to administrators his concerns that nurses were disruptive in surgery and the impact such actions could have on patient care. Wade later lodged his concerns with U.S. Congressman Bob Goodlatte, which prompted Congressman Goodlatte to write to the Salem VAMC and to request an explanation regarding Wades disclosures.

On February 2, 2007, Wade wrote a letter to the Salem VAMC Acting Chief of Staff, Dr. Maureen McCarthy, reiterating his concerns about disruptive behaviors at the Salem VAMC and its impact on patient care. A month later in March 2007, the Salem VAMC charged Wade with disrespectful conduct related to incidences of inappropriate and unprofessional conduct. Wades supervisor, Dr. Gary Collin, proposed suspending Wade for ten (10) days and on May 30, 2007, Dr. Collin issued a letter suspending Wade without pay from June 4 through June 14, 2007. Wade then filed an age discrimination complaint with the Equal Employment Opportunity Commission (EEOC) office asserting that the Salem VAMC suspended him because of his age.

When Wade returned from his suspension, the Salem VAMC notified him that he was under investigation regarding multiple allegations of patient abuse; specifically, that Wade had inappropriately exposed a patient and intentionally hurt a patient in surgery. Wade contends that Dr. McCarthy informed him that if he did not voluntarily resign, the Salem VAMC would present the accusations of patient abuse to the hospital board with a recommendation that he be fired. Ultimately, Wade chose to resign his position at the Salem VAMC on June 30, 2007. At the time of his resignation, Wade was sixty five years old.

After his resignation, Wade applied to positions at more than twenty VA medical centers. Some of the VA medical centers simply rejected Wades application. Others extended to Wade a tentative employment offer, but each of those offers were subsequently rescinded. Wade claims that the Salem VAMC retaliated against him for complaining to Congressman Goodlatte and for filing an EEOC charge relating to the 10 day suspension by engaging in efforts to undermine his career by providing negative, misleading and false information to prospective employers, which prevented him from being hired for the positions he sought.

Wade also claims that his supervisor, Dr. Collin, had an age-related animus toward him and gave negative employment references to prospective employers. Wade bases this claim on a statement Dr. Collin made in an earlier unrelated legal proceeding that Wade "could not do the work of younger urologists." Dkt. No. 2. Wade further asserts that Dr. Collin told a prospective employer that Wade could not do the work unless he was limited to clinic work, which Wade relates to his age. Dkt. No. 2.

B. Administrative Complaints

Wade has filed multiple administrative charges, including two EEOC charges and three Merit Systems Protection Board ("MSPB") challenges seeking to address the various wrongs he claims to have suffered at the Salem VAMC.

1. Merit Systems Protection Board ("MSPB")

On June 27, 2007, Wade appealed his 10 day suspension to the MSPB, and he later amended his appeal to challenge his retirement from the Salem VAMC claiming that he was forced to retire (the "First MSPB Appeal"). Dkt. Nos. 35-1 and 35-3. On August 16, 2007, the MSPB dismissed Wades claim for lack of jurisdiction, finding that a 10 day suspension is not appealable to the MSPB, [4] and that Wade failed to assert non-frivolous allegations that he resigned involuntarily. Dkt. No. 35-3. Wade filed a Petition for Review, and on December 17, 2007, the MSPB issued a Final Order denying Wades claim and notifying him of his right to appeal to the Federal Circuit within 60 days. Dkt. No. 35-5. Wade did not appeal this decision.

On July 23, 2007, Wade filed a second appeal with the MSPB, alleging unspecified harassment by the VA in reprisal for whistleblowing activity related to his disclosures to Congressman Goodlatte (the "Second MSPB Appeal"). Dkt. No. 35-7. On September 11, 2007, the ALJ dismissed this claim for lack of jurisdiction, finding that Wade failed to exhaust his administrative remedy, and failed to make non-frivolous allegations that he engaged in protected whistleblowing activity and that a protected disclosure was a contributing factor in his 10 day suspension. Dkt. 35-8. Wade did not appeal this decision.

On November 14, 2013, Wade filed a third MSPB claim alleging that officials at the Salem VAMC willfully obstructed him from securing employment elsewhere in retaliation for his protected whistleblowing activity regarding his disclosures to Congressman Goodlatte (the "Third MSPB Appeal"). On January 13, 2014, the ALJ entered an Order to Show Cause why these were not collaterally estopped by denial of the Second MSPB Appeal. Dkt. No. 35-10. This claim is still pending before the MSPB.

2. Equal Employment Opportunity Commission ("EEOC")

On May 23, 2007, Wade filed a complaint with the EEOC alleging harassment and discrimination related to his 10 day suspension, Dkt. No. 27-9, but withdrew this complaint on August 13, 2007. Dkt. No. 27-8.

In November 2009, Wade filed a second complaint with the EEOC alleging that he was not being hired at other VA facilities because of age discrimination and in retaliation for filing a an EEOC complaint for age ...

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