                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2007

Fleeger v. Principi
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5250




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-5250


                                  SUSAN FLEEGER,

                                                          Appellant

                                            v.

                            ANTHONY J. PRINCIPI,
                      SECRETARY OF VETERANS’ AFFAIRS



                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 03-cv-00735)
                    District Judge: Honorable Terrence F. McVerry


                      Submitted Under Third Circuit LAR 34.1(a),
                                  January 23, 2007

     Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

                                 (Filed: March 7, 2007)

                                    ______________

                                       OPINION
                                    ______________


FUENTES, Circuit Judge.

      Susan Fleeger appeals the District Court’s dismissal of her Title VII retaliation
claim under 42 U.S.C. § 2000e and her claim under the Whistleblower Protection Act of

1989, 5 U.S.C. § 1213 et seq. (“WPA”). We conclude, first, that because Fleeger has

failed to engage in activity protected under Title VII, her retaliation claim was properly

dismissed. We conclude, second, that because Fleeger has failed to exhaust her

administrative remedies with respect to her WPA claim, that claim was properly

dismissed as well. We will therefore affirm.

                                          I.

       Fleeger had been employed as a nurse by the United States Department of

Veterans Affairs (“VA”) Medical Center in Butler, Pennsylvania since 1991, before she

began to experience problems at work in 2001. Since 1994, when Fleeger was promoted

to registered nurse, Fleeger had been responsible for supervising lower level nurses,

making rounds with doctors, transcribing doctors’ orders, and for patient care. Her

complaints about the VA began to accrue in her fifth year as a registered nurse. In April

1999, Fleeger filed an Equal Employment Opportunity (“EEO”) charge against the VA,

alleging that the VA denied her participation in a tuition reimbursement program because

of her diabetes. The charge was dismissed without a hearing.

       On December 31, 2001, Fleeger voiced complaints about VA management outside

the agency. She e-mailed President Bush, at the White House’s general e-mail address, to

complain about working conditions. Fleeger informed the President that VA nurses were

regularly asked to provide care not typically permitted in VA hospitals. According to

Fleeger, this included implanting intravenous lines and administering blood and

                                               2
intravenous medications. She reported that nurses were severely overworked, denied

vacations, and that their complaints were being ignored by VA management. In the days

that followed her e-mail to the President, Fleeger also sent letters and e-mails, voicing

similar concerns, to the U.S. Office of Personnel Management and to then-U.S. Senator

Rick Santorum.

       At the same time that Fleeger was communicating with officials outside the VA,

she also notified supervisors within the VA of her concerns. According to Fleeger’s

appellate brief, when she sent the e-mails to officials outside the VA, she informed her

unit manager that she had sent them. Her unit manager then informed the VA’s Chief

Nurse, Kathy Zeiler, of Fleeger’s actions. Fleeger also notes that during a group meeting

in January 2002, she again informed Zeiler that she had sent e-mails to officials outside

the VA. She told Zeiler that if the improper management she had alleged continued, she

would continue to send e-mails.

       Soon after these interactions with VA management, on Friday, January 13, 2002,

Fleeger was assigned to one of the VA’s Transitional Care Units. Around 7:30 p.m. that

night, Fleeger called her supervisor, Janice Martin, to inform Martin that the family of a

terminally ill cancer patient was very upset and had accused the nurses on duty, including

Fleeger, of improper care. After a preliminary investigation, the VA’s Medical Center

Director determined that Fleeger’s conduct could have been patient abuse that was serious

enough to warrant an administrative board examination. Fleeger was notified on January

18, 2002 that she would be removed from patient care and assigned to file room duty

                                              3
pending resolution of the investigation.

       On March 5, 2002, the administrative board concluded that although Fleeger had

“acted unprofessionally,” the allegation of patient abuse was unsubstantiated. On May

30, 2002, Fleeger was relieved of file-room duty and reassigned to a position as a “float”

nurse in the VA’s transitional care program. Fleeger alleges that the float nurse position

was inferior to her prior position as a registered nurse because, among other things, she

was ineligible for pay differentials based on night and shift work.

       About three weeks after the VA transferred her from the file room, Fleeger was

informed that the administrative board had cleared her of all patient abuse charges.

Nonetheless, allegedly because of the board’s conclusion that Fleeger had acted

unprofessionally, the Medical Director notified Fleeger in August 2002 that her periodic

step increase in salary would be temporarily withheld due to unsatisfactory performance.

The VA requested that Fleeger complete a performance improvement plan and receive a

satisfactory rating before she could receive the increase. Fleeger proceeded with the

improvement plan for about two months in the summer of 2002, but resigned from her

position at the VA in October 2002.

       Prior to these events in the spring and summer of 2002, Fleeger had felt that the

Administrative Board investigation and her assignment to the file room, were improperly

motivated. She contacted an EEO counselor on February 13, 2002, and on March 20,

2002 filed an EEO complaint with the VA’s Office of Employment Discrimination,

challenging these actions as reprisal for her prior EEO activity. After the VA’s Office of

                                             4
Resolution Management investigated Fleeger’s March complaint, Fleeger requested an

immediate final agency decision without a hearing.

       The VA’s Office of Employment Discrimination Complaint Adjudication issued a

final agency decision on April 25, 2003. The agency concluded that all of the incidents of

retaliation which Fleeger alleged were “temporary and corrective in nature,” and did not

rise to the level of “discriminatory harassment” or “disparate treatment” under Title VII,

nor was there any evidence that the VA had taken action against Fleeger because of her

prior protected activity. The Agency also dismissed Fleeger’s constructive discharge

claim because she had failed to show that a reasonable employee would have found the

work conditions she complained of to be intolerable.

       On May 22, 2003 Fleeger filed a Title VII retaliation complaint in the District

Court. Later, on February 11, 2004 she filed an Amended Complaint, which included an

additional claim under the WPA. In an opinion and order filed on August 15, 2005, the

District Court granted the VA’s motion for summary judgment in part and denied it in

part. The Court granted the motion with respect to Fleeger’s Title VII claim, and denied

it with respect to her WPA claim. Three months after that decision, in its order and

opinion dated November 9, 2005, the Court granted the VA’s motion to dismiss the WPA

claim for failure to exhaust administrative remedies, under Fed. R. Civ. P. 12(c).

                                            II.




                                             5
       Fleeger appeals the partial grant of summary judgment on her Title VII claim,1 but

fails to explain how filing an EEO complaint that alleges disability discrimination is a

protected activity under Title VII. For essentially the reasons provided by the District

Court, we agree that Fleeger cannot pursue this claim under 42 U.S.C. § 2000e.

       Briefly, § 2000e-3(a) provides:

       It shall be an unlawful employment practice for an employer to discriminate
       against any of his employees . . . because he has opposed any practice made
       an unlawful employment practice by this subchapter, or because he has
       made a charge, testified, assisted, or participated in any manner in an
       investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). To establish retaliation under Title VII, a

plaintiff must demonstrate that: “(1) she engaged in activity protected by Title VII; (2) the

employer took an adverse employment action against her; and (3) there was a causal

connection between her participation in the protected activity and the adverse

employment action.” Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995).

       Title VII does not bar every conceivable type of employment-related grievance.

Title VII bars “discriminat[ion] against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). “With respect to ‘protected

activity,’ the anti-retaliation provision of Title VII protects those who participate in



       1
       We exercise plenary review over the District Court’s grant of summary
judgment. Mortellite v. Novartis Crop Protection, Inc., 460 F.3d 483, 488 (3d Cir. 2006).


                                               6
certain Title VII proceedings (the ‘participation clause’) and those who oppose

discrimination made unlawful by Title VII (the ‘opposition clause’).” Moore v. City of

Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Slagle v. County of Clarion,

435 F.3d 262, 266 (3d Cir. 2006)). Whatever the protected activity, “the employee must

hold an objectively reasonable belief, in good faith, that the activity they oppose is

unlawful under Title VII.” Id.

       In Fleeger’s case, the agency acknowledged that a Title VII plaintiff must show,

among other things, that she engaged in “protected activity” under Title VII, in order to

make out a prima facie case for reprisal. The agency identified Fleeger’s protected

activity as her EEO counseling on February 14, 2002, and determined that she had not

engaged in any protected activity prior to her January 18, 2002 assignment to the file

room. Although the agency incorrectly determined that Fleeger had engaged in activity

protected under Title VII (ultimately denying her claim on other grounds) the District

Court correctly determined that no reasonable person could have believed that the

underlying incidents Fleeger complained of violated Title VII.

       Title VII bars race, color, religion, sex, or national origin discrimination; Fleeger

complained of discrimination based on her diabetes and reprisal for her complaints about

workplace conditions not related to discrimination. For this reason, Fleeger failed to meet

the “protected activity” requirement, and her Title VII retaliation claim was properly

dismissed by the District Court.

                                             III.

                                              7
       Fleeger contends that the District Court incorrectly concluded that she had failed to

exhaust her administrative remedies as to her WPA claim.2 Fleeger argues that she made

a good-faith attempt to exhaust the claim in the same EEO complaint that included her

Title VII claims.

                                              A.

       The WPA protects 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. See 5 U.S.C. § 2302(b)(8).

The Civil Service Reform Act (“CSRA”) provides the exclusive remedy for claims

brought pursuant to the WPA. See, e.g., Richards v. Kiernan, 461 F.3d 880, 885-86 (7th

Cir. 2006) (citing cases).

       If a case involves only a whistleblower claim, a plaintiff must first seek relief

before the Office of Special Counsel (“OSC”), 5 U.S.C. § 1214(a)(3). Under the CSRA,

after a federal employee files her claim with the OSC, the OSC investigates and may

petition the Merit Systems Protection Board (“MSPB”) on the employee’s behalf if it

finds a violation. 5 U.S.C. §§ 1214(a)(3)-(4), 1221. If the OSC does not find a violation,

the employee, herself, may seek review before the MSPB. Id. MSPB decisions are in

turn appealable only to the Federal Circuit. 5 U.S.C. § 7703(b)(1).

       The only way that an agency decision under the WPA may be reviewed by a



       2
           Our standard of review of a dismissal under Fed. R. Civ. P. 12(c) is plenary.

                                               8
federal court, other than the Federal Circuit, is if the plaintiff has filed a “mixed case”

complaint—that is, a complaint that raises, in addition to claims under the CSRA like

whistleblowing, issues under various anti-discrimination statutes. See 5 U.S.C. §

7703(b)(2) (listing statutes). If the employee raises a “mixed case claim”—for example,

one that alleges both WPA and Title VII claims—the employee may seek relief either by

filing a complaint with the agency’s EEO department, or by appealing directly to the

MSPB. 5 U.S.C. § 7702.

                                              B.

       Under any scenario, the WPA has an exhaustion requirement which Fleeger has

not met. See Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) (“[u]nder no

circumstances does the WPA grant the District Court jurisdiction to entertain a

whistleblower cause of action brought directly before it in the first instance.”). Fleeger

elected to file her reprisal claims with the VA’s EEO office. She now contends that the

claims she pursued at the administrative level were “mixed,” comprising both a Title VII

retaliation claim and a WPA retaliation claim. The record shows, however, that although

facts which could support a WPA claim were brought to the attention of the VA, Fleeger

did not attempt to pursue such a claim and therefore did not exhaust her remedies with

respect to such a claim.

       In similar contexts, we have held that “the relevant test in determining whether

appellant was required to exhaust her administrative remedies . . . is whether the acts

alleged in the subsequent [district court complaint] . . . are fairly within the scope of the

                                               9
prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d

1291, 1295 (3d Cir. 1996) (internal quotation marks omitted). An EEO complaint does

not encompass a given claim merely because investigation would reveal facts that could

support the given claim. Id. at 1296. Rather, in the context of similar Title VII claims,

we have recently held that “the parameters of the civil action in the district court are

defined by the scope of the EEOC investigation which can reasonably be expected to

grow out of the charge of discrimination.” Atkinson v. LaFayette Coll., 460 F.3d 447,

453 (3d Cir. 2006) (internal quotation marks omitted).

       Fleeger’s first contact with one of the VA’s EEO counselors is documented in an

“EEO Counselor’s Report” dated March 25, 2002 (reporting the date of Fleeger’s initial

EEO contact as February 13, 2002). The report describes Fleeger’s claim as “reprisal,”

and the counselor notes that Fleeger had filed a prior EEO complaint in 1999. The

counselor’s report specifies that Fleeger had not raised “mixed case” issues (App. 52),

and it informed Fleeger that claims other than disparate treatment based on reprisal,

unless raised during informal EEO counseling, may not be included in any formal EEO

complaint should Fleeger choose to file one.

       Fleeger did file a formal complaint, on March 20, 2002, but she did not add any

additional claims. She did, however, define her claims with more specificity. Fleeger

submitted her complaint on a standard filled-in form that instructed her to list the basis for

each employment related matter that she believed was discriminatory. To this end, the

form directs complainants to “list one or more of the following” bases, including race,

                                              10
color, religion, sex, sexual orientation, national origin, age, disability, and “[r]eprisal for

prior EEO activity or having opposed discrimination.” (App. 511.) Fleeger’s filled-in

response, indicates “reprisal” as the basis of her claim, and specifies that she had “filed

complaints in 2001 and Jan. 2002 about work conditions . . . [i]n response [the VA]

removed [her and] placed [her] in isolation/file room . . . .” (Id.) Fleeger’s complaint

form also indicated that she had legal representation, and listed the name and address of

her attorney.

       About a month after she filed her formal complaint, Fleeger’s counsel received a

“Notice of Acceptance” of the complaint from the VA’s Office of Resolution

Management. In that notice, the VA informed Fleeger’s counsel as follows:

       2. Your client’s Complaint of Discrimination . . . states the following:

                A. The complainant was discriminated against on the basis of
                reprisal with regard to reassignment when:

                      1. On January 18, 2001, she was reassigned from Nursing
                      Service to the file room pending the outcome and
                      recommendations of an administrative board of investigation.
       ...
       4. If you or your client believes that the accepted claim is improperly
       formulated, incomplete, or incorrect, she has the opportunity to notify this
       office within 7-calendar days of your receipt of this letter, in writing or by
       fax, to state her disagreement. . . . If you or your client does not contact this
       office within 7-calendar days, it will be assumed that the claim is correctly
       stated.

(App. 513 (footnote omitted).)

       Fleeger’s counsel responded to the VA’s “Notice of Acceptance” and corrected the

date of Fleeger’s reassignment from 2001 to 2002. (App. 517.) Next, on two more

                                               11
occasions (September 12, 2002 and September 24, 2002), Fleeger’s attorney submitted

additional evidence of “reprisal for prior EEO activity.” (Id.) Fleeger’s new evidence

covered five new incidents of reprisal, which the VA summarized in an October 29, 2002,

“Notice of Receipt and Acceptance of Additional Evidence.” The October notice also

states that Fleeger “alleged that all of these incidents were a form of harassment on the

basis of reprisal for prior EEO activity,” and that the agency agreed to accept the

additional evidence as part of a revised claim “on the basis of reprisal for prior EEO

activity.” (App. 524 (emphasis added).)

       Fleeger argues that the mention of “reprisal” throughout the administrative record

shows that the scope of her EEO complaint and the investigation arising therefrom

encompassed her whistleblowing claim. But stating a claim for reprisal based on EEO

activity alone, without any indication of an intention to state a claim for whistleblowing,

does not support a reasonable expectation that the agency would investigate a WPA

claim. Reprisal “for EEO activity,” which can form the basis for a cause of action under

Title VII and other statutes, involves employee disclosures within the framework of

established procedures, and generally does not encompass whistleblowing activity, which

usually involves disclosures outside established procedures. See Spruill v. Merit Systems

Protection Bd., 978 F.2d 679 (Fed. Cir. 1992) (holding filing of an EEO complaint, in

which an employee alleged discrimination in violation of Title VII did not constitute a

whistleblowing disclosure within the meaning of § 2302(b)(8) (establishing cause of

action for WPA claims), but instead, was a nonwhistleblowing disclosure under §

                                             12
2302(b)(9)(A) (establishing cause of action for reprisal based on “the exercise of any

appeal, complaint, or grievance right granted by any law, rule, or regulation”)).

       Thus, when Fleeger claimed reprisal for EEO activity, based on her complaints “in

2001 and Jan. 2002,” it was reasonable for the agency to assume that she meant her

complaints to her unit manager in late 2001 and to Kathy Zeiler in early 2002. If Fleeger

believed that the agency had it wrong, she had numerous opportunities to correct the

characterization of her claims. Her counsel undertook to amend her claim several times

throughout the process, but never challenged the characterization of Fleeger’s claim as

“reprisal for EEO activity.”3

       The fact that the final agency decision dismissing Fleeger’s claims mentions

Fleeger’s e-mail messages to the White House and others inside and outside the VA, is

insufficient in the face of this administrative record to show that Fleeger diligently

pursued a WPA claim. It is clear to the Court that these facts are included in the agency

decision as additional background to Fleeger’s claims, and do not reflect the substance of

the claims she pursued.

                                           IV.


       3
         We note, however, that the District Court’s alternative reasoning—that even if
Fleeger had raised a WPA claim, she could not have exhausted that claim because the
agency failed to investigate and address it—is incorrect. If an agency fails to address a
properly raised WPA claim in a mixed case, the District Court must review that failure
under the appropriate CSRA standard of review. See, e.g., Robinson v. Dalton, 107 F.3d
1018, 1026 (3d Cir. 1997) (remanding for district court to consider whether the EEOC
should have been put on notice plaintiff’s claim of retaliatory discharge and therefore
investigated that claim).

                                             13
       For all of these reasons, the District Court correctly determined that Fleeger had

not exhausted a WPA claim at the administrative level, and that she failed to engage in

protected activity under Title VII.




                                            14
