Laguerre v. McDonough

• Decision Date: 02 December 2021
• Docket Number: CIVIL ACTION NO. 19-12464-DPW
• Citation: 573 F.Supp.3d 479
• Parties: Geraldine LAGUERRE, Plaintiff, v. Dennis MCDONOUGH, Secretary of Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Massachusetts

573 F.Supp.3d 479

Geraldine LAGUERRE, Plaintiff,

v.Dennis MCDONOUGH, Secretary of Department of Veterans Affairs, Defendant.¹

CIVIL ACTION NO. 19-12464-DPW

United States District Court, D. Massachusetts.

Filed December 2, 2021

Emily E. Smith-Lee, Rebecca E. Royer, SLN Law, LLC, Sharon, MA, for Plaintiff.

Erin E. Brizius, U.S. Department of Justice US Attorney's Office for the District of Massachusetts, Boston, MA, for Defendants Department of Veterans Affairs, Secretary Robert Wilkie.

MEMORANDUM AND ORDER REGARDING MOTION TO DISMISS

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

Geraldine Laguerre commenced this litigation with a complaint contending that she was discriminated against by her employer, the United States Department of Veterans Affairs, under federal and state law. I will dismiss the complaint's Title VII claim because Ms. Laguerre failed to exhaust her administrative remedies by pursuing to conclusion her earlier asserted collective bargaining agreement grievance. I will dismiss the complaint's state law claim because it is preempted by Title VII.

When Congress in 1972 brought federal employees, such as Ms. Laguerre, within the scope of Title VII of the Civil Rights Act of 1964, it established a particularized administrative and judicial enforcement mechanism. The Civil Service Reform Act of 1978 then integrated federal collective bargaining grievance procedures into this administrative and judicial enforcement regime. By terms, the Civil Service Reform Act of 1978, as codified in 5 U.S.C. §§ 7101, et seq. provides that an employee alleging that she has been discriminated against on the basis of race or sex through a practice which also falls under the coverage of a negotiated collective bargaining grievance procedure may "raise the matter under a statutory procedure or the negotiated procedure, but not both." 5 U.S.C. § 7121(d). Failure to exhaust the specified administrative remedies through the chosen procedure will be fatal to later asserted claims regarding the same matter. This federal administrative and judicial enforcement regime preempts application of state antidiscrimination procedures to federal employees.

I. BACKGROUND

All factual allegations are taken from the complaint.²

Plaintiff Geraldine Laguerre is a health technician with the VA Boston Healthcare System in Boston, Massachusetts.³ She alleges that she was harassed, discriminated against for being a black woman, and bullied by her supervisor, Marsha Hopkins, for approximately five years.⁴ She further alleges Ms. Hopkins also treated other black employees differently than similarly situated white employees.⁵

The incidents of discrimination alleged became focused for Ms. Laguerre when Ms. Hopkins handed her two written "admonishments" that stated Ms. Laguerre had yelled at Ms. Hopkins and that Ms. Laguerre's coworker had switched vacation weeks with Ms. Laguerre because, if she had not, "Ms. Laguerre would make her life ‘a living hell.’ "⁶

When Ms. Laguerre refused to sign and thereby acknowledge these admonishments, Ms. Hopkins allegedly screamed at her.⁷ The VA at the insistence of Ms. Hopkins then temporarily transferred Ms. Laguerre from the West Roxbury facility where she had been working to the VA facility in Jamaica Plain pending an investigation into Ms. Laguerre's purported threats against the woman with whom she had switched vacation days.⁸ The allegedly threatened woman never made a complaint against Ms. Laguerre, however, and the VA never in fact conducted an investigation into this alleged incident.⁹ Ms. Laguerre alleges that after she was transferred, Ms. Hopkins told her not to return to West Roxbury and that no one wanted her there.¹⁰

II. PROCEDURAL HISTORY

On May 15, 2015, Ms. Laguerre filed a collective bargaining agreement grievance challenging her admonishments and removal to the Jamaica Plain campus.¹¹ Ms. Laguerre, a union member, was covered by the 2003 Master Agreement Between the Department of Veterans Affairs and the National Association of Government Employees and was therefore able to raise her employment discrimination claim through that collective bargaining agreement's grievance procedure.¹² There are circumscribed paths to judicial enforcement and review following arbitration of a grievance. See generally Nat'l Treasury Emps. Union v. Fed. Lab. Rels. Auth. , 392 F.3d 498, 499 (D.C. Cir. 2004) (enforcement); Int'l Ass'n of Fed. Firefighters, Loc. F-263 v. Sec'y of the Navy , No. CV 15-00526 LEK-KSC, 2016 WL 843252, at *6 (D. Haw. Feb. 29, 2016) (enforcement); Johnson v. Peterson , 996 F.2d 397 (D.C. Cir. 1993) (review). Although she advanced to Step 2 of the grievance process, Ms. Laguerre did not advance her grievance to Step 3.¹³

Nevertheless, between May 26, 2015 and July 15, 2015, Ms. Laguerre engaged in informal counseling with an Equal Employment Opportunity counselor through the VA's Office of Resolution Management. ¹⁴

This initiated the VA's Title VII procedure, of which Ms. Laguerre then attempted to make use. The path to judicial review in federal court following the Title VII procedure is different from that for contested collective bargaining agreement arbitration procedures. See generally Al-Saffy v. Vilsack , 827 F.3d 85, 87-89 (D.C. Cir. 2016) (outlining the procedures for resolution of statutory discrimination complaints); see also Nielsen v. Hagel , 666 F.App'x. 225, 228 (4th Cir. 2016) (citing 42 U.S.C. § 2000e-16 ; 29 C.F.R. §§ 1614.110, 1614.401 ).

Ms. Laguerre filed a formal Complaint of Employment Discrimination (EEO Complaint) with the VA's Office of Resolution Management on or about July 24, 2015, alleging that she had been discriminated against "because of Ms. Hopkins’ creation of a hostile work environment, her discriminatory admonishments of Plaintiff, and her discriminatory and unwarranted reassignment of Plaintiff to the Jamaica Plain facility."¹⁵

On September 30, 2015, the VA's Office of Resolution Management assigned an EEO investigator to Ms. Laguerre's EEO Complaint.¹⁶ The investigation was completed on February 4, 2016.¹⁷ Following such an internal EEO investigation, Ms. Laguerre had two options as to how her EEO Complaint could be adjudicated: she could obtain a Final Agency Decision from the VA's Office of Employment Discrimination Complaint Adjudication, or she could elect an EEOC hearing held before an Administrative Judge.¹⁸ On February 23, 2016, Ms. Laguerre purported to elect a hearing before an EEOC Administrative Law Judge.¹⁹ On September 17, 2019, Ms. Laguerre withdrew her complaint from the EEOC to proceed in federal court.²⁰ Ms. Laguerre then filed on December 5, 2019 the operative complaint in this case now before me.

III. ANALYSIS

When ruling on a motion to dismiss, I "must accept as true the factual allegations of the complaint, construe all reasonable inferences therefrom in favor of the plaintiffs, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory of the case." Beddall v. State St. Bank & Tr. Co. , 137 F.3d 12, 16 (1st Cir. 1998).

A. Ms. Laguerre Failed to Exhaust Her Administrative Remedies (Count I)

Ms. Laguerre asserts in Count I a Title VII claim alleging unlawful discrimination on the basis of race. "Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin." Brown v. General Services Administration , 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). It was amended in 1972 by the Equal Employment Opportunity Act, id. , in order to "create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination."

Id. at 829, 96 S.Ct. 1961. Under this specific Title VII statutory scheme, "an aggrieved employee [could] file a civil action in a federal district court to review [her] claim of employment discrimination" only after seeking "relief in the agency that has allegedly discriminated against [her]." Id. at 832, 96 S.Ct. 1961.

The VA contends that because Ms. Laguerre first filed a collective bargaining agreement grievance, she was required to pursue that negotiated remedy procedure as far as it was possible to take it, before appealing an unfavorable decision to the district court. As a general proposition, exhaustion of remedies is required under the federal employee statutory antidiscrimination enforcement regime. Cf. Rodriguez v. United States , 852 F.3d 67, 78 (1st Cir. 2017) ("It is settled that a federal court will not entertain employment discrimination claims brought under Title VII unless administrative remedies have first been exhausted."). While the exhaustion of administrative remedies "is not a jurisdictional prerequisite to filing a Title VII claim in federal court," the characterization as such means that a failure to exhaust administrative remedies may be subject to equitable defenses, even with respect to collective bargaining grievance procedures. Romero-Perez v. U.S. Dep't of Justice , 780 F. Supp. 2d 162, 168 (D.P.R. 2011). Thus, a plaintiff "must adequately show why exhaustion should be waived," id. at 169, by demonstrating that "full exhaustion would have caused undue prejudice, irreparable harm, or unusual hardship" to the plaintiff or that the agency proceeding was futile. Id. at 170 ("all reasonable possibilities of adequate administrative relief [must] have been effectively foreclosed."). Ms. Laguerre has not attempted to make such a demonstration; consequently, she was required to exhaust her administrative remedies before proceeding to district court.

The federal employee statutory anti-discrimination enforcement regime has been established under an overreaching statutory direction providing that

[a]n employee shall be deemed to have exercised [her] option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the

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