Henry v. Wilkie
| Decision Date | 11 January 2021 |
| Docket Number | CIV. NO. 20-00070 LEK-KJM |
| Parties | LUCRETIA VELVET HENRY, Plaintiff, v. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS (GOVERNMENT AGENCY); Defendant. |
| Court | U.S. District Court — District of Hawaii |
On September 1, 2020, Defendant Robert L. Wilkie, Secretary of Veterans Affairs ("Defendant"), filed his Motion for Partial Dismissal, or in the Alternative, for Partial Summary Judgment ("Motion"). [Dkt. no. 24.] Pro se Plaintiff Lucretia Velvet Henry ("Plaintiff") filed her memorandum in opposition on October 1, 2020, and Defendant filed his reply on October 9, 2020. [Dkt. nos. 30, 41.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii ("Local Rules"). For the reasons set forth below, Defendant's Motion is hereby granted in part and denied in part. Defendant is entitled to summary judgment as to Plaintiff's age discrimination claim arising from the events at issue in her second administrative complaint, but Defendant's Motion is denied in all other respects.
Plaintiff filed her Complaint for Employment Discrimination ("Complaint") on February 11, 2020. [Dkt. no. 1.] On May 27, 2020, Plaintiff submitted a letter requesting leave to amend her Complaint, and the magistrate judge granted the request in a June 5, 2020 entering order. [Dkt. nos. 11, 13.]
[Id. at PageID #: 227.] Plaintiff states she was diagnosed in March 2017 as having an anxiety disorder, and she was diagnosed by another mental health professional in April 2017 as having both an anxiety disorder and an adjustment disorder because of the discrimination she was experiencing at her workplace. [Id. at PageID #: 231.]
Plaintiff brings this action pursuant to: Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq.; and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112, et seq. [Amended Complaint at PageID #: 226.] She states this case follows after two cases before the United States Equal Employment Opportunities Commission ("EEOC"): EEOC No. 480-2019-00262X ("First EEOC Action"); and EEOC No. 480-2017-00631X ("Second EEOC Action"). According to Plaintiff, she received a right-to-sue letter in each case. [Amended Complaint at PageID #: 227.]
Plaintiff alleges she not selected for a Program Specialist position with the PIHCS in 2016.1 [Id. at PageID#: 227, 230.] According to Plaintiff, at that time, "[t]here may have been 1 if any African American (dark skinned) females over 40 years old working as [a] Program Specialist." [Id. at PageID #: 230.] As to Plaintiff's hostile work environment claim, she alleges she was harassed because of her race, gender, and age, and the harassment included:
-"unwelcomed physical and verbal conduct," such as "isolation (on and off emails sent by [Plaintiff's] coworkers)," "continual yelling from one of [Plaintiff's] co-workers (even in her emails)," "bump[ing Plaintiff's] chair," "suggest[ing] having catfights," and "unwelcomed racial conversations" and comments about African Americans and people with dark skin"; [id. at PageID #: 227-28;]
-"coworkers hiding [Plaintiff's] files sabotaging [her] work so that [she] could not complete [her] tasks timely"; [id.(internal citations omitted);]
-"coworkers talk[ing] about tampering with [Plaintiff's] car"; [id. at PageID #: 228;]
-a coworker warning Plaintiff to "be watchful as [the coworker's] husband thought [Plaintiff] was introducing her to black men"; [id.;] and
-"someone put[ting] white paint or white out on the side of [Plaintiff's] car in 2017, [with] more tampering [in] January 2019" [id. (citation omitted)].
Plaintiff also alleges: she was given additional work, but she was not given additional time to complete the work; her delegation of tasks to her subordinates was disregarded; hersubordinates would not consult her when she was the acting lead employee during the lead employee's absence. [Id.]
According to Plaintiff, the Second EEOC Action addressed daily harassment from August 2016 to February 2018. She alleges she made several transfer requests, but the VA leadership denied her requests because of her race, color, gender, and age, and because she contested the VA's unfair hiring practices. Plaintiff states she knows of non-African American employees whose requests for reassignment were granted. [Id. at PageID #: 232.] At some point, Plaintiff was transferred out of the office where she alleges her co-workers caused her emotional distress, anguish, and vertigo that was triggered by her emotional distress. [Id. at PageID #: 235.]
In the instant Motion, Defendant seeks the dismissal of some of Plaintiff's claims because she failed to exhaust her administrative remedies as to those claims. Specifically, Defendant argues Plaintiff failed to exhaust her administrative remedies as to: her Title VII gender discrimination claim and retaliation claim that arise from the events at issue in the First EEOC Action; and her ADEA claim that arises from the events at issue in the Second EEOC Action.
The internal complaint which led to the First EEOC Action was based on Plaintiff's race and color. The VA Office of Resolution Management ("the ORM") construed the 7/7/16 VA Complaint, as clarified and amended by Plaintiff's September and October 2016 email submissions,2 as raising the following issues:
[Miyamoto Decl., Exh. B (letter dated 10/18/16 to Plaintiff from Paul Maraian, ORM Pacific District Manager ("10/18/16 ORM Letter")) at 034-35.]
The ORM accepted Plaintiff's claim based on the non-selection for the Program Specialist position for investigation as an independently actionable claim. It also accepted Plaintiff's hostile work environment claim based on all of the listed events for investigation. [Id. at 035-36.] The ORM investigated the accepted claims from December 27, 2016 to April 30, 2017 and prepared an Investigative Report, dated May 4, 2017, for the Regional EEO Officer's consideration ("5/4/17 Report"). [Miyamoto Decl., Exh. C (5/4/17 Report) at 000047.]
In June 2017, Plaintiff requested a hearing before an administrative judge, but Plaintiff and the VA entered into a settlement agreement before the hearing. [Id., Exh. D (EEOC Administrative Judge Thomas T. Harward's Decision GrantingAgency's Motion for Summary Judgment, dated 10/2/19 ("First EEOC Decision")) at 1.3] Even though the 7/7/16 VA Complaint did not assert a claim under the ADEA, the ORM concluded that the settlement agreement was voidable at Plaintiff's election because of the failure to include language in the agreement necessary to comply with the Older Workers Benefits Protection Act. Plaintiff elected to void the settlement agreement and to reinstate the First EEOC Action. Plaintiff was also allowed to add age as a basis for the alleged discrimination. [Miyamoto Decl., Exh. D (First EEOC Decision) at 1-2.4] Thus, the EEOC Administrative Judge considered whether Plaintiff was not selected for the Program Specialist and whether she suffered a hostile work environment because of her race, color, and/or age.5 [Id. at 2-3.] The EEOC Administrative Judge granted summary judgment in favor of the VA because Plaintiff failed to present sufficient evidence to support any of her claims. [Id. at 19.]
The internal complaint that led to the Second EEOC Action was based on Plaintiff's race, color, unspecified mental disability, and retaliation for her use of the VA's equal employment opportunity ("EEO") process. [Miyamoto Decl., Exh. E (VA Complaint of Employment Discrimination form, dated 8/11/17 ("8/11/17 VA Complaint")).] The ORM construed the ...
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