Hardyway v. McDonough
| Docket Number | 3:22-cv-00037 |
| Decision Date | 26 August 2022 |
| Parties | TONIA HARDYWAY, Plaintiff, v. DENIS MCDONOUGH, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Pending before the Court is Defendant's Partial Motion to Dismiss (Doc. No. 27, “Motion”). Plaintiff has filed a response (Doc. No. 38), and Defendant has filed a reply (Doc No. 41). The Motion is ripe for review.
For the reasons discussed herein, Defendant's Motion will be GRANTED in part and DENIED in part.
FACTUAL BACKGROUND[1]
Plaintiff, Tonia Hardyway, is a black woman and a citizen of Davidson County, Tennessee. (Doc. No. 1 at 1). Defendant, Denis McDonough, is the current Secretary of the Department of Veteran Affairs (“VA”). (Id.). The current action stems from Plaintiff's employment with the VA, specifically at the Tennessee Valley Healthcare System (“TVHS”). (Id.). Plaintiff began working at the VA on October 15, 1996. (Id. at 3). She became the Assistant Chief of Social Work Service (“SWS”) on January 27, 2013. (Id.).
The SWS ran a program known as the Community Based Care Program (“CBCP”). (Id. at 4). CBCP consisted of other smaller programs, including the Contract Nursing Home Program (“CNH”). (Id.). CNH was responsible for placing veterans in contract nursing home care in community nursing facilities at the VA's expense. (Id.). Larry Murray, a white male, was the CBCP Manager, in charge of supervising all CBCP programs. (Id.).
Around June 9, 2015, Holly Ellis-who worked in the VA's Compliance sector-informed Plaintiff that two white CNH social workers, Steve Pharris and George Sudberry, were documenting social-work visits with Veterans that had already passed away.[2] (Id.). Plaintiff immediately reported these actions to SWS Chief Violet Cox-Wingo. (Id.). In response, the VA convened an Administrative Investigative Board (“AIB”) to investigate the fraudulent CNH activities. (Id.). Concluding in April 2016, the AIB investigation found serious problems in the CBCP, including a concerning lack of oversight by SWS. (Id. at 5).
On July 22, 2016, James Wells became the TVHS Acting Chief of Staff and Michael Sullivan-Tibbs became the Acting SWS Chief. (Id. at 5). The same day, Wells relieved Plaintiff of her SWS Assistant Chief duties and directed her to report to Credentialing Services. (Id.). Plaintiff began reporting for duty to Credentialing Services on July 25, 2016. (Id.). In August 2016, Jennifer Vedral-Baron, a white woman, joined TVHS as Director, and Dr. John Nadeau, a white man, took over as Acting Deputy Chief of Staff. (Id. at 6).
Plaintiff was removed from all SWS-related emails on September 6, 2016, and her request to attend Case Management training was denied in October 2016. (Id.). Also in October 2016, the VA detailed Jennifer Silva, a white woman, to take over Plaintiff's former position as SWS Assistant Chief. (Id.).
On October 18, 2016, Plaintiff met with TVHS's Equal Employment Opportunity (“EEO”) Program Manager, who told Plaintiff that she would not have been demoted had she not been a black woman. (Id.). On October 24, 2016, the VA asked Plaintiff to remove the title “Assistant Chief, SWS” from her email signature block. (Id.). On October 28, 2016, Plaintiff commenced the EEO process, making initial contact with the VA's Office of Resolution Management (“ORM”). (Id. at 2).
On October 31, 2016, Director Jennifer Vedral-Baron described the Murfreesboro VA campus as being “like a plantation.” (Id. at 7). On December 28, 2016, Plaintiff noticed the SWS roster no longer featured her name, while it did feature several white colleagues who either had been removed from SWS or were under AIB investigation. (Id.). On February 13, 2017, Mr. Murray entered the role of Community Based Care Team Coordinator, a leadership position. (Id.).
On April 11, 2017, Chief of Staff John Nadeau, a white male, proposed permanently removing Plaintiff from her position as SWS Assistant Chief based on the single charge of Failure to Provide Adequate Program Oversight relating only to CBCP. (Id. at 8). On July 18, 2017, Director Vedral-Baron sustained the Failure to Provide Adequate Program Oversight charge and demoted Plaintiff to the position of Social Worker. (Id.). Plaintiff timely appealed the demotion to the Merit Systems Protection Board (“MSPB”), and on September 30, 2018, MSPB Administrative Judge (“AJ”) Sharon J. Pomeranz reversed the demotion. (Id. at 10). The VA filed a Petition for Review; it also restored Plaintiff's pay to its pre-demotion level, but it did not reinstate Plaintiff as SWS Assistant Chief, nor provide any other monetary relief. (Id.). Mr. Sudberry, Mr. Pharris, and Mr. Murray did not receive sanction or discipline for the CNH billing fraud, of which only they had first-hand knowledge. (Id. at 8).
On February 20, 2018, Plaintiff interviewed for a 90-day detail as the Acting Women's Veteran Program Coordinator. (Id. at 9). She scored highest of the three candidates who interviewed, but Chief of Staff Nadeau selected Carolyn Smith, a white woman. (Id.). On March 7, 2018, Plaintiff applied for the Supervisory Women Veterans Program Manager GS-13 position, interviewing through two rounds. (Id.). Chief of Staff Nadeau was an interviewer and scored Plaintiff lower than any other evaluator and ultimately chose Ms. Smith for the position. (Id. at 910).
After Plaintiff made initial contact with the VA's Office of Resolution Management (“ORM”) on October 28, 2016, ORM notified TVHS Director Vedral-Baron that Plaintiff had filed an EEO complaint on November 22, 2016. (Id. at 2, 7). On January 24, 2017, Plaintiff filed a Formal Complaint of Discrimination against the VA. (Id. at 2). On February 2, 2017, ORM District Manager Robbie Barham notified Director Vedral-Baron that Plaintiff filed a Formal Complaint of Discrimination. (Id. at 7).
In early March 2017,[3] ORM issued a Notice of Partial Acceptance of the Formal Complaint of Discrimination, of which Director Vedral-Baron received notice. (Id. at 2, 7).
On July 10, 2017, EEO Investigator Douglas Hobdy, Jr. issued ORM's Investigative Report, and Plaintiff then requested a hearing before an EEOC AJ. (Id. at 2). On April 4, 2018, the EEOC AJ issued an Acknowledgement and Order, and Plaintiff subsequently filed three motions to add like or related claims. (Id.). Then on June 3, 2021, Plaintiff filed a fourth motion to add a claim for a “per se act of retaliation” related to an event where Director Vedral-Brown referenced Plaintiff's federal court case on a VA Webinar entitled “Directors' Diversity Discussion.” (Id. at 2-3).
On October 14, 2021, the AJ issued an order entering judgment for the VA. (Id.). On October 22, 2021, the VA's Office of Employment Discrimination Complaint Adjudication (“OEDCA”) issued its Final Order, which included notification that Plaintiff could choose to file a civil action within 90 days, and it incorporated the AJ's October 14 Order and the allegation raised in Plaintiff's Fourth Motion. (Id.).
Plaintiff filed her Complaint with this Court on January 19, 2022, within the 90-day window prescribed by the Final Order. (Doc. No. 1).
Plaintiff's present action contains three causes of action. Count I is for “Disparate Treatment Discrimination in Violation of Title VII of the Civil Rights Act of 1964,” Count II is for “Retaliation in Violation of Title VII of the Civil Rights Act of 1964,” and Count III is for “Hostile Work Environment in Violation of Title VII of the Civil Rights Act of 1964.” (Id. at 1112).
Defendant requests that the Court dismiss some of these claims under Rule 12(b)(6) for the following reasons: (1) all allegations of disparate treatment discrimination should be dismissed for failure to administratively exhaust them; (2) all allegations of retaliation other than the two 2018 non-selections should be dismissed for failure to administratively exhaust them; and (3) all allegations of hostile work environment, except for those from the period between July 22, 2016, and March 8, 2017, should be dismissed for failure to administratively exhaust them. (Doc. No. 28 5-9).
Defendant's Motion has been brought under Rule 12(b)(6). As discussed immediately below, this approach was proper.
Bryant v. Wilkie, No. 3:18-cv-00104, 2020 WL 836547, at *2 (M.D. Tenn. Feb. 20, 2020). Administrative exhaustion serves two main purposes: promoting efficiency and protecting administrative agency authority by giving agencies “an opportunity to correct [their] mistakes.” Randolph, 453 F.3d at 732 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).
“To exhaust administrative remedies, a plaintiff must file an EEOC charge within 180 days of the alleged unlawful employment practice or, if the plaintiff has instituted proceedings with a state or local agency, within 300 days.” Williams v. Nw. Airlines, Inc., 53 Fed.Appx. 350, 351 (6th Cir. 2002). The Supreme Court has noted, “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one,...
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