Rockefeller v. Richardson , 23 F. App'x 893 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 15 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    TOD N. ROCKEFELLER,
    Plaintiff-Appellant,
    v.                                             Nos. 00-2480 & 01-2054
    (D.C. No. 99-CV-1059 PJK/KBM)
    SPENCER ABRAHAM, in his official                       (D. N.M.)
    capacity as Secretary, United States
    Department of Energy, *
    Defendant-Appellee.
    ORDER AND JUDGMENT           **
    Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
    Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    Spencer Abraham is substituted for his predecessor, Bill Richardson, as
    Secretary of Energy. See Fed. R. App. P. 43(c)(2).
    **
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
    therefore ordered submitted without oral argument.
    Plaintiff Tod N. Rockefeller, appearing     pro se , appeals the district court’s
    grant of summary judgment to his former employer, the Department of Energy, on
    his consolidated complaints alleging disability discrimination and retaliation in
    violation of Title VII and the False Claims Act.    1
    We review the grant of summary
    judgment de novo , using the same standard as the district court.      Watson ex rel.
    Watson v. Beckel , 
    242 F.3d 1237
    , 1239 (10th Cir. 2001). Summary judgment is
    appropriate “if the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show that there is no
    genuine issue as to any material fact and that the moving party is entitled to a
    judgment as a matter of law.” Fed. R. Civ. P. 56(c). We affirm.
    1
    Plaintiff filed a notice of appeal (No. 00-2480) from the district court’s
    September 28, 2000 order dismissing his retaliation claim under the False Claims
    Act. This court issued an order to show cause as to why that appeal should not be
    dismissed for lack of a final order adjudicating all claims. The district court
    subsequently entered a final order on December 20, 2000 dismissing all of
    plaintiff’s remaining claims, from which plaintiff has also appealed (No. 01-
    2054). We will treat plaintiff’s appeal in No. 00-2480 as a premature notice of
    appeal which became effective upon the district court’s final order.   See Lewis v.
    B.F. Goodrich Co. , 
    850 F.2d 641
    , 645 (10th Cir. 1988) (en banc). Accordingly,
    we have jurisdiction over both appeals, which have been consolidated.
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    I. Background
    Plaintiff was an environmental specialist with the Department of Energy
    when, in September 1997, the Department notified him that it proposed to remove
    him from that position because of poor performance. He filed a claim with the
    Merit Systems Protection Board (MSPB) claiming the proposed termination was
    in retaliation for alleged whistle-blowing activities. An MSPB administrative
    judge issued an initial decision in November 1997 finding that defendant had not
    engaged in protected whistle-blowing activities. Plaintiff filed a petition for
    review with the MSPB.
    The Department terminated plaintiff in December 1997 and he filed another
    claim with the MSPB, claiming he was fired because of alleged disabilities, in
    retaliation for protected activity under Title VII and in retaliation for alleged
    whistle-blowing activities. Following an administrative hearing, an MSPB
    administrative judge found that the Department had sustained its burden of
    demonstrating that plaintiff’s performance was unacceptable. The administrative
    judge further found that plaintiff had failed to demonstrate that he had engaged in
    protected whistle-blowing activities, that his termination was related to his
    claimed whistle-blowing activities or employment discrimination activities, that
    he was disabled or that his termination was related to his alleged disability.
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    Plaintiff filed a petition for review with the MSPB. He also filed a claim with the
    Department of Labor, raising the same claims as raised before the MSPB.
    Plaintiff then filed a motion with the MSPB requesting it dismiss both his
    pending petitions for review. The MSPB granted his motion, but informed
    plaintiff of his deadline for filing any request to re-file his petitions. Plaintiff
    later filed an untimely motion with the MSPB seeking to re-file his petitions for
    review. The MSPB denied his motion, finding that the petitions were untimely
    filed without good cause. The MSPB informed plaintiff that his only right of
    review was to the Federal Circuit Court of Appeals. Plaintiff did not file an
    appeal of the MSPB’s order, but instead filed a motion for reconsideration with
    the Equal Employment Opportunity Commission (EEOC), which denied the
    motion for lack of jurisdiction to review the MSPB’s order.
    Plaintiff then filed his complaint in New Mexico federal district court,
    alleging that he was denied reasonable accommodations for his claimed
    disabilities, in violation of the Americans With Disabilities Act (ADA), 
    42 U.S.C. §§ 12181-12189
    , and the Rehabilitation Act, 
    29 U.S.C. §§ 701-96
    , and that he
    suffered adverse employment actions in retaliation for complaining to the
    Department’s EEO office, in violation of Title VII, 42 U.S.C. § 2000e through
    § 2000e-17. Plaintiff amended his complaint to further allege that he suffered
    adverse employment actions, including his termination, in retaliation for engaging
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    in whistle-blowing activities, in violation of 
    31 U.S.C. § 3730
    (h) of the False
    Claims Act (FCA). Plaintiff later filed another complaint, which was
    consolidated with his earlier complaint, alleging that the Department intimidated
    his physicians to prevent him from receiving treatment, in violation of the ADA
    and the Rehabilitation Act.
    II. Analysis
    A. Discovery Motions
    Plaintiff contends the district court erred in various rulings it made
    concerning the discovery process. We review discovery rulings for an abuse of
    discretion. See Cole v. Ruidoso Mun. Sch. , 
    43 F.3d 1373
    , 1386 (10th Cir. 1994).
    Plaintiff first argues the district court erred in denying his motion to compel
    production of numerous documents, including documents relating to all of the
    Department’s firing decisions; the personnel records of all employees plaintiff
    suspected of having any role in his termination; records pertaining to the
    Department’s search methodology in responding to his discovery requests; and
    information concerning the Department’s Waste Isolation Pilot Program. The
    district court denied plaintiff’s motion to compel, finding that his requests for
    production were overly broad, unduly burdensome and unrestricted by topic and
    date and that plaintiff had failed to demonstrate the relevance or potential
    relevance of the requested information. We find that the district court allowed
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    plaintiff ample discovery and did not abuse its discretion in denying plaintiff’s
    motion to compel.   See Munoz v. St. Mary-Corwin Hosp.     , 
    221 F.3d 1160
    , 1169
    (10th Cir. 2000).
    Next, plaintiff argues the district court erroneously denied his motion
    requesting it to accept a 748-page binder of “self-authenticated” documents. R.
    Doc. 56. The district court denied the motion, but explained to plaintiff that he
    could reference and attach any documents he viewed as relevant in seeking or
    defending against summary judgment or at trial, and that the Department could
    raise any objections at that time. We find no error in the district court’s order.
    B. False Claims Act
    The FCA authorizes suit by a private person who has been discriminated
    against in his employment because of his whistle-blowing activities under the
    FCA. 
    31 U.S.C. § 3730
    (h). The district court dismissed plaintiff’s FCA claim,
    however, because the civil remedy provided in § 3730(h) does not apply to federal
    employees; rather, as a federal employee, plaintiff’s exclusive remedy for his
    allegation that he was discharged in retaliation for whistle-blowing activities is
    under the Civil Service Reform Act.    See Le Blanc v. United States , 
    50 F.3d 1025
    ,
    1029-30 (Fed. Cir. 1995);   Daly v. Dep’t of Energy , 
    741 F. Supp. 202
    , 205-06 (D.
    Colo. 1990).
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    Plaintiff claims that the district court’s dismissal of his FCA claims was in
    error, but he does not take issue with its legal conclusion that § 3730(h) is
    inapplicable to federal employees or that his exclusive remedy was under the
    CSRA. Although plaintiff’s argument is hard to follow, it appears he is arguing
    that he intended this claim to be under the Solid Waste Disposal Act, 
    42 U.S.C. § 6971
     (SWDA), and that the district court mischaracterized or disregarded his
    SWDA claim. This argument is without merit. Plaintiff’s complaint clearly
    raised an FCA claim and he did not assert any claim under the SWDA. Plaintiff
    did attempt to amend his complaint to add claims under the Clean Air Act and the
    SWDA after the close of discovery and after the deadline imposed by the district
    court for filing any amended complaint, but the district court denied his request.
    The district court did not abuse its discretion in denying plaintiff’s request for
    leave to amend his complaint.   See Viernow v. Euripides Dev. Corp.    , 
    157 F.3d 785
    , 799 (10th Cir. 1998) (holding that untimeliness alone is sufficient reason to
    deny leave to amend).
    C. Rehabilitation Act Claim
    Plaintiff amended his complaint to allege that the Department violated the
    Rehabilitation Act and the ADA by requesting medical information from his
    physicians and medical providers, which he claims the Department requested in
    order to harass and intimidate his physicians. The district court granted summary
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    judgment in favor of the Department, finding no evidence that the Department’s
    request was a pretext for discrimination. Plaintiff contends the district court
    erred in dismissing his claim, arguing, incorrectly, that the ADA prohibits
    requests for medical information.
    Under the ADA and the Rehabilitation Act, the employer has the right to
    request medical information.    See Templeton v. Neodata Servs., Inc.   , 
    162 F.3d 617
    , 619 (10th Cir. 1998). The undisputed evidence demonstrates that the
    Department requested this medical information pending assessment of plaintiff’s
    request for accommodation due to claimed disabilities. We agree with the district
    court that the Department’s request for medical information was reasonable and
    that plaintiff presented no evidence to support his speculative allegation that the
    request was pretextual. Accordingly, the district court correctly granted summary
    judgment in favor of the Department on this claim.
    D. Remaining Disability and Retaliation Claims
    The district court dismissed all of plaintiff’s remaining claims that he was
    denied reasonable accommodations for his claimed disabilities and that he
    suffered adverse employment actions in retaliation for complaining to the
    Department’s EEO office. “[F]ollowing an adverse agency decision, the
    employee has the option in a “mixed case” complaint of filing a civil action in the
    district court rather than appealing to the MSPB.”    Wells v. Shalala , 228 F.3d
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    1137, 1143 (10th Cir. 2000);    see also Austin v. Merit Sys. Prot.    Bd. , 
    136 F.3d 782
    , 783 (Fed. Cir. 1998) (explaining that “mixed case” is appeal to MSPB from
    adverse personnel action, coupled with allegations that action was based on
    prohibited discrimination). However, only the Federal Circuit Court of Appeals
    has jurisdiction to review MSPB jurisdictional decisions involving mixed claims.
    See Wall v. United States , 
    871 F.2d 1540
    , 1542-44 (10th Cir. 1989).
    Therefore, to the extent plaintiff sought to appeal the MSPB’s dismissal of
    his request for review as untimely, the district court correctly ruled that it lacked
    jurisdiction over plaintiff’s claim. Further, to the extent plaintiff sought to appeal
    his mixed case complaint in New Mexico district court, his complaint was
    untimely because it was filed more than a year after the date the decision of the
    MSPB’s administrative judge became final.            See 
    5 U.S.C. § 7703
    (b)(2) (in mixed
    case, complainant must appeal MSPB’s decision to district court within thirty
    days after receiving notice of judicially reviewable action).
    On appeal, plaintiff argues that the district court should have excused the
    late filing of his complaint under a “continuing violation” theory or the doctrine
    of equitable tolling. Neither theory is applicable in this case. Because it is clear
    from the record that plaintiff was aware of the basis of his complaints at the time
    he filed his initial complaint with the MSPB, he “cannot rely on a continuing
    violation theory to avoid the statutory time bar.”       Bullington v. United Air Lines,
    -9-
    Inc. , 
    186 F.3d 1301
    , 1311 (10th Cir. 1999) (holding that “a continuing violation
    claim will likely fail if the plaintiff knew, or through the exercise of reasonable
    diligence would have known, [he] was being discriminated against at the time the
    earlier events occurred”). Further, the doctrine of equitable tolling is not
    warranted because neither the Department nor the MSPB deceived or misled
    plaintiff regarding the procedural prerequisites to appealing his claims nor are
    there any other extraordinary circumstances that prevented plaintiff from asserting
    his rights. See Mosley v. Pena , 
    100 F.3d 1515
    , 1518 (10th Cir. 1996).
    The judgment of the United States District Court for the District of New
    Mexico is AFFIRMED and plaintiff’s motion for remand is DENIED. The
    mandate shall issue forthwith.
    Entered for the Court
    Deanell Reece Tacha
    Chief Judge
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