Boyte v. Shulkin

• Decision Date: 14 February 2018
• Docket Number: Case No. 3:16-cv-02799
• Parties: BARBARA BOYTE, Plaintiff, v. DAVID J. SHULKIN, M.D., SECRETARY, DEPARTMENT OF VETERAN AFFAIRS, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

BARBARA BOYTE, Plaintiff, v. DAVID J. SHULKIN, M.D., SECRETARY,DEPARTMENT OF VETERAN AFFAIRS, Defendant.

Case No. 3:16-cv-02799

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 14, 2018

Judge Aleta A. Trauger

MEMORANDUM

Pending before the court is a Motion to Dismiss or, in the Alternative, for Summary Judgment, (Docket No. 46) filed by the defendant, David J. Shulkin, M.D., Secretary, Department of Veteran Affairs ("DVA"), to which the plaintiff, Barbara Boyte, has filed a Response in opposition (Docket No. 51), and DVA has filed a Reply (Docket No. 52). For the reasons discussed herein, the motion will be granted in part and denied in part.

BACKGROUND¹

Boyte was employed at a DVA medical center in Nashville as an RN II, Step 12 level nurse. She suffers from a hearing impairment that increases her susceptibility to MRSA. In 2015, Boyte requested accommodations due to her disability. She provided medical documentation delineating her limitations: specifically, she needed a position that did not require direct contact with patients. Because Boyte was no longer able to perform the essential functions of her job, DVA offered to seek a suitable position for her. The parties engaged in the interactive process, with DVA requesting that Boyte attain medical assurance from her doctor that certainpositions would comport with her limitations. When Boyte did not provide such assurance, DVA notified her that it would consider her for positions consistent with her original medical documentation. Boyte thereafter informed DVA that she would not consider positions at locations besides the Nashville medical center, where she was employed, unless she received travel relocation expenses. Because DVA does not authorize such expenses as a matter of course, it limited its search to medically suitable positions at its Nashville medical center.

On September 18, 2015, DVA emailed Boyte an offer of reassignment to a GS4 Step 10 position, file clerk/scanning specialist. Boyte responded on September 21, 2015, stating that the offer of reassignment was unacceptable and threatening legal action if DVA did not provide a more favorable offer. DVA responded the following day, reminding Plaintiff that she "ha[d] 45 calendar days from the date [she] became aware of the discriminatory action or the date it occurred to contact an Equal Employment Opportunity ("EEO") counselor with the Office of Resolution Management ("ORM")." DVA included with its response an ORM chart describing the EEO complaint process, a toll free telecommunications-device-for-the-deaf phone number, and a web address for initiating ORM contact.

On October 2, 2015, Boyte accepted the offer of reassignment, writing on the acceptance form that she was accepting under protest. The reassignment became effective October 4, 2015. On October 8, 2015, Boyte requested to be reassigned to Nursing Coordinator for Performance Measurements, a position comparable in level to her previous role. DVA informed Boyte that she would have to apply for the position competitively, as she was not eligible for another medical accommodation. On November 20, 2015, 47 days after her reassignment became effective, Boyte initiated contact with an EEO counselor.

On February 26, 2016, Boyte filed a formal Complaint of Employment Discrimination. ORM granted a Notice of Partial Acceptance on April 14, 2016. ORM found that independent claims based on the following events were time-barred under agency regulations:

(Event 3) on July 27, 2015, [Plaintiff] was temporarily detailed to the Patient Safety Program, Nashville campus;

(Event 5) on September 23, 2015, [Plaintiff's] detail was extended until October 1, 2015;

(Event 6) on October 2, 2015, [Plaintiff] was denied [the] opportunity to remain as a nurse, or be reassigned to identified, comparable positions when she signed the [OR] under protest; and

(Event 7) on October 4, 2015, [Plaintiff] was reassigned from a Registered Nurse [RN] position to a Scanning Specialist position.

On October 26, 2016, Boyte brought suit in this court, alleging failure to accommodate, retaliation, and hostile work environment under the Rehabilitation Act, 29 U.S.C. § 791 ("RHA"),² disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"), retaliation under Title VII, 42 U.S.C. § 2000e, violation of her due process rights under 42 U.S.C. § 1981, and "[v]iolations of the Equal Pay Act, 42 U.S.C. 2000-a, 42. U.S.C. 2000e-5 as amended." (Docket No. 43.)

LEGAL STANDARD

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). TheFederal Rules of Civil Procedure require only that a plaintiff provide "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint's allegations, however, "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the "facial plausibility" required to "unlock the doors of discovery," the plaintiff cannot rely on "legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action," but, instead, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679; Twombly, 550 U.S. at 556. According to the Supreme Court, "plausibility" occupies that wide space between "possibility" and "probability." Iqbal, 556 U.S. at 678. If a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied.

ANALYSIS

DVA contends that Boyte's claims related to her October 4, 2015 reassignment and all events prior to her reassignment are time-barred. For federal employees, 29 C.F.R. § 1614.105(a)(1) provides that parties who believe that they have been discriminated against must "initiate contact with [an EEO counselor] within forty-five (45) days of the matter alleged to be discriminatory, or in the case of personnel action, within 45 days of the effective date of the[discriminatory action]." A plaintiff who fails to contact an EEO counselor within forty-five days is barred from pursuing a remedy for the discriminatory action in federal court. See 29 C.F.R. § 1614.107(a)(2) (2009); Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976). "Failure to timely seek EEO counseling is grounds for dismissal of the discrimination claims." Hunter v. Sec'y of the U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009); see also Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003); McFarland v. Henderson, 307 F.3d 402 (6th Cir. 2002). ORM specifically found that Boyte was time-barred from raising independent claims for discrete acts occurring on or before October 4, 2015.

But 29 C.F.R. § 1614.105(a)(2) provides an exception to the time bar: "The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them." Boyte claims that she was not notified of the time limit. Even taking as true DVA's claim that it responded to Boyte's September 21, 2015 email with explicit reminders about the 45-day complaint period, Boyte creates a disputed issue of material fact that is not suitable for disposition on a motion to dismiss. Boyte's claims will therefore not be dismissed as time-barred and will be considered in turn.

The court turns first to claims brought under the ADA and RHA, which will be analyzed together. See Thompson v. Williamson Cty., Tenn., 219 F.3d 555, 557, n.3 (6th Cir. 2000). "By statute, the Americans with Disabilities Act standards apply in Rehabilitation Act cases alleging employment discrimination." Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002) (citation omitted).

1. Failure to Accommodate

The ADA prohibits an employer from "discriminat[ing] against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). "Discrimination" under the ADA includes an employer's failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." Id. at § 12112(b)(5)(A); accord Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). A plaintiff asserting a claim of failure to accommodate under the ADA must show that she (1) has a disability, (2) was qualified for her job, and (3) requested a reasonable accommodation and was denied, or was subject to an adverse employment decision that was made solely because of her disability. Dumas v. Hurley Med. Ctr., 837 F. Supp. 2d 655, 665-66 (E.D. Mich. 2011); Jackson v. O'Reilly Auto. Stores, Inc., No. 3:12-cv-1215, 2014 WL 993269, at *6, 8 (M.D. Tenn. Mar. 12, 2014).

Boyte clearly states a claim for failure to accommodate. The parties do not dispute that she had a disability and was qualified for her job. Whether Boyte...