Curry v. Shinseki

Filing 14

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 7/24/12. (ASL)

FILED
2012 Jul-24 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADRIENNE CURRY,
Plaintiff,

)
)
)
vs.
)
)
ERIC K. SHINSEKI, SECRETARY, )
UNITED STATES DEPARTMENT )
OF VETERANS AFFAIRS,
)
Defendant.
)

CASE NO. 2:12-CV-0608-S

MEMORANDUM OPINION
Pending before the court are a motion to dismiss, or in the alternative for
summary judgment, by defendant Eric K. Shinseki, Secretary of the U.S. Department
of Veterans Affairs (hereinafter, “VA”) (doc. 6), a brief (doc. 7), and evidentiary
submissions (doc. 8) in support thereof, a response by plaintiff Adrienne Curry (doc.
12), and defendant’s reply (doc. 13). Having considered the motion and all other
pleadings filed to date, the court finds as follows:
Factual Background
Plaintiff is a female who was employed by defendant’s Medical Center in
Birmingham, Alabama, from 1985 until May 1997, in the position of Program
Support Clerk (Compl. ¶¶ 8–9). In May 1997 the Federal Office of Worker’s

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Compensation Program (“OWCP”) accepted plaintiff’s claim for prolonged chronic
depressive reaction (chronic depression) and placed her on total disability and
removed her from employment with defendant (Compl. ¶ 9).
In July 2004, plaintiff obtained a license from the state of Alabama to practice
nursing, and subsequently received a bachelor’s degree in nursing in spring 2005
(Compl. ¶¶ 11–12). In November 2005 she was examined by a physician retained by
OWCP and released to return to work for defendant on a part-time basis (Compl. ¶
13). From May 18, 2006, until September 2008, plaintiff attempted to return to
employment with defendant, seeking both full- and part-time positions and including
both clerical and nursing positions (Compl. ¶ 16). She was not hired for any position
(Compl. ¶ 16).
On December 5, 2008, plaintiff lodged a formal EEO complaint, alleging she
was refused employment based on her disability of chronic depression1 (Compl. ¶ 18).
Her claims were denied in a March 11, 2009, Final Agency Decision (Compl. ¶ 19).
On or about May 13, 2009, the OWCP referred plaintiff for a vocational
rehabilitative assessment (Compl. ¶ 20). On May 15, 2009, the OWCP released

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Although the plaintiff refers to this complaint as a formal “EEOC” complaint, the
evidence before this court reflects that the complaint was filed within her agency’s EEO office.
Thus, the court has considered the allegations of her complaint wherein she refers to the “EEOC”
to mean the Department of Veterans Affairs Office of Employment Discrimination Complaint
Adjudication, which this court will refer to as the “EEO.”
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plaintiff to return to work on a part-time basis (Compl. ¶ 21). Plaintiff submitted
applications for employment for a registered nurse position with defendant on both
May 26, 2009, and July 9, 2009, receiving a response to neither (Compl. ¶¶ 22–23).
Defendant subsequently informed the OWCP that suitable employment was not
available for plaintiff due to her mental issues because it did not wish to place
plaintiff in an environment that could cause undue stress (Compl. ¶ 24). On
September 22, 2009, plaintiff was informed by the OWCP that no part-time positions
were available with defendant (Compl. ¶ 25).
On October 18, 2009, plaintiff made an informal complaint of disability
discrimination and retaliation with defendant’s internal EEO office (Compl. ¶ 26). On
December 2, 2009, plaintiff filed a lawsuit in the Southern Division of the United
States District Court for the Northern District of Alabama based on her first formal
EEO complaint of December 5, 2008 (Compl. ¶ 27). On January 6, 2010, plaintiff
filed a formal complaint of employment discrimination with the agency EEO based
on defendant’s actions subsequent to May 13, 2009. Plaintiff exhibit 3 (doc. 12-4).
On October 12, 2010, defendant employed plaintiff as a nursing assistant
escort, an equivalent position to the clerk’s position that plaintiff held in 1997 before
leaving defendant’s employ due to her disability (Compl. ¶ 30).
On August 31, 2011, as final adjudication of plaintiff’s December 2, 2009,
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lawsuit, Judge Abdul Kallon, United States District Judge for the Northern District
of Alabama, issued an order granting summary judgment on behalf of the present
defendant for reasons explained in an accompanying memorandum opinion
(hereinafter, “Curry I”). See Def. Exh. D (doc. 8), opinion in Curry v. Shinseki, case
no. 2:09-cv-02441-AKK. The court found that the VA did not discriminate against
Curry based on her claimed disabilities either on or after May 26, 2009. See id.
Standard of Review
A moving party is entitled to summary judgment if there is no genuine issue of
material fact, leaving final judgment to be decided as a matter of law. See Federal
Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 1355–56 (1986). The facts, and any reasonable inferences therefrom,
are to be viewed in the light most favorable to the non-moving party, with any doubt
resolved in the non-movant’s favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144,
158 (1970). All “reasonable doubts” about the facts and all justifiable inferences are
resolved in favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993). However, all “doubts” need not be so resolved. Barnes v. Southwest
Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987). Once met by the moving
party, however, the burden shifts to the non-moving party to come forward with
evidence to establish each element essential to that party’s case sufficient to sustain
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a jury verdict. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990).
A party opposing a properly submitted motion for summary judgment may not
rest upon mere allegations or denials of his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir. 1990). In addition, the non-moving party’s evidence on rebuttal must
be significantly probative and not based on mere assertion or be merely colorable. See
Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
Speculation does not create a genuine issue of fact. Cordoba v. Dillard’s, Inc., 419
F.3d 1169, 1181 (11th Cir. 2005). “‘The mere existence of some factual dispute will
not defeat summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case . . . . A genuine issue of material fact does not exist
unless there is sufficient evidence favoring the nonmoving party for a reasonable jury
to return a verdict in its favor.’” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th
Cir. 2000) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). A
factual dispute regarding a non-material issue will not preclude the defendant from
succeeding on a motion for summary judgment. Brown v. American Honda Motor
Co., 939 F.2d 946, 953 (11th Cir. 1991).
With these standards in mind, the court considers each of the plaintiff’s claims.
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Legal Analysis
Plaintiff’s complaint contains four counts alleging both disability
discrimination, in the form of adverse employment action (Count I) and failure to
accommodate (Count II), and retaliation reprisal, in the form of failure to hire (Count
III) and failure to accommodate (Count IV). See Compl. (doc. 1) at 7–12. However,
defendant, in its motion for summary judgment or, in the alternative, for dismissal,
does not address the substance of plaintiff’s complaint, and instead asserts that
plaintiff’s claims are barred by the doctrine of res judicata.2 Accordingly, the court
will treat defendant’s motion as one to dismiss based on the ground of res judicata,
and will conduct its analysis accordingly.
Res judicata is “a judicially crafted doctrine, created to provide finality and
conserve resources.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375 (11th Cir.

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Defendant’s motion also alleges that plaintiff’s claims are barred by the statute of
limitations; specifically, defendant alleges that plaintiff failed to file suit within 90 days of
receipt of a right-to-sue letter “against the respondent named in the charge,” as required by 42
U.S.C. § 2000e-16(c) (2009). See Def. Br. (doc. 7) at 5–6. It appears, however, that defense
counsel erred when computing the applicable deadlines.
Plaintiff received defendant’s final agency decision of March 11, 2011, on March 14,
2011, and timely appealed that decision to the EEOC. The EEOC issued its decision on
November 17, 2011, and this decision was received by plaintiff on November 22, 2011. 90 days
from this date was February 20, 2012. Plaintiff’s action was filed on February 21, 2012, 91 days
after November 22, 2011. However, this is permissible because February 20, 2012, was
President’s Day, a federally recognized holiday. Pursuant to Fed. R. Civ. P. 6, “if the last day [of
a filing period] is a . . . legal holiday, the period continues to run until the end of the next day that
is not a . . . legal holiday.” Thus, plaintiff’s action was timely filed, and should not be dismissed
for failure to adhere to the applicable statute of limitations.
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2011). The traditional rule is a simple one: “res judicata ‘bars the filing of claims
which were raised or could have been raised in an earlier proceeding.’” Id. (quoting
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999)). Accordingly,
“a final judgment on the merits bars the parties to a prior action from re-litigating a
cause of action that was or could have been raised in that action.” In re Piper Aircraft
Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). For res judicata to bar a subsequent case,
four elements must be present: “(1) there is a final judgment on the merits; (2) the
decision was rendered by a court of competent jurisdiction; (3) the parties, or those
in privity with them, are identical in both suits; and (4) the same cause of action is
involved in both cases.” Maldonado, 664 F.3d at 1375 (quoting Ragsdale, 193 F.3d
at 1238). If these elements are present, “[t]he court next determines whether the claim
in the new suit was or could have been raised in the prior action; if the answer is yes,
res judicata applies.” Piper Aircraft, 244 F.3d at 1296. “As for the fourth element,
two cases are generally considered to involve the same cause of action if the latter
case ‘arises out of the same nucleus of operative fact, or is based upon the same
factual predicate,’ as the former one.” Maldonado, 664 F.3d at 1375 (quoting
Ragsdale, 193 F.3d at 1239).
In Curry I, there was a final judgment on the merits by a court of competent
jurisdiction, and the parties are identical in Curry I and the present case (hereinafter,
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“Curry II”). Thus, the court must determine whether the same cause of action is
involved in both cases. Plaintiff argues that the facts and allegations of Curry II were
not contained in her first administrative charge because “they had not yet occurred,”
and that accordingly she had not, and indeed could not have, exhausted the applicable
administrative remedies prior to filing the present discrimination action. Pl. Resp.
(doc. 12) at 12. Specifically, plaintiff contends that the last event in Curry I occurred
in October 2008 (see id. at p. 4 ¶ 11; see also id. at p. 11) and that events from May
13, 2009, until she filed a formal EEO complaint for disability discrimination on
January 8, 2010, should be allowed to go forward in the present suit (see id. at 11).
Defendant counters that in the present matter, Curry II, the complaint makes the same
remedial claims raised in Curry I (regarding a part-time nurse position at the VA, as
opposed to a part-time clerk position) because in Curry I, the VA conduct
contemplated in the court’s ruling covered activities which occurred both before and
after May 26, 2009 (the date plaintiff was released by the OWCP to return to parttime work at the VA), such that the court’s decision reached the conduct which is the
subject matter of the case at bar. See Def. Br. (doc. 7) at 7–8; Def. Reply Br. (doc. 13)
at 2–3.
The old Fifth Circuit held, in a Title VII case still valid precedent in the
Eleventh Circuit, that “it is unnecessary for a plaintiff to exhaust administrative
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remedies prior to urging a retaliation claim growing out of an earlier charge; the
district court has ancillary jurisdiction to hear such a claim when it grows out of an
administrative charge that is properly before the court.” Gupta v. East Texas State
Uni., 654 F.2d 411, 414 (5th Cir. 1981). As the Eleventh Circuit later explained,
[a]s long as allegations in the judicial complaint and proof
are “reasonably related” to charges in the administrative
filing and “no material differences” between them exist, the
court will entertain them. As we have noted . . . , “the
‘scope’ of the judicial complaint is limited to the ‘scope’ of
the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.”
Judicial claims which serve to amplify, clarify, or
more clearly focus earlier EEO complaints are appropriate.
Allegations of new acts of discrimination, offered as the
essential basis for the requested judicial review[,] are not
appropriate.
Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (quoting Ray v. Freeman, 626
F.2d 439, 443 (5th Cir. 1980) (other internal quotations omitted)). Applying these
principles to the present case, because the Curry I decision covers conduct which
occurred both before and after May 26, 2009, if the claims which plaintiff raises
today “arise[] out of the same nucleus of operative fact, or [are] based upon the same
factual predicate,’ as” Curry I (Maldonado, 664 F.3d at 1375), then the fundamental
claims of disability discrimination in Curry I and Curry II are the same, and res
judicata would apply.

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In footnote 11 of Curry I, United States District Judge Abdul Kallon wrote the
following:
The court notes that for purposes of plaintiff’s
Rehabilitation Act claims, it will consider events alleged
not only in plaintiff’s December 5, 2008[,] EEO complaint
but also those alleged in her January 8, 2010[,] EEO
complaint, despite the fact that plaintiff has not amended
her judicial complaint to specifically include those
subsequent acts. While the Eleventh Circuit requires a
federal employee to pursue and exhaust administrative
remedies within her own agency before filing a judicial
complaint of employment discrimination, [see] Griffin v.
Carlin, 755 F.2d 1516, 1522 (11th Cir. 1985), the
exhaustion requirement is satisfied when the issues raised
in the judicial action were either expressly raised in the
EEO complaint or are “reasonably related” to those
contained in the EEO complaint, as long as there are no
“material differences” between the two. Wu v. Thomas, 863
F.2d 1543, 1547 (11th Cir. 1989). Importantly, when the
allegations made in the judicial action involve conduct
committed subsequent to the filing of the EEO complaint,
the conduct is still reasonably related to the charged
conduct where: (1) the subsequent conduct would fall
within the reasonably expected scope of the agency
investigation of the administrative charges; (2) the claim
alleges retaliation against the employee for filing an EEO
complaint; or (3) the plaintiff alleges “further incidents of
discrimination carried out in precisely the same manner
alleged in the EEOC charge.” Buzzi v. Gomez, 62 F. Supp.
2d 1344, 1352 (S.D. Fla. 1999). Here, defendant has
investigated the charges comprising the January 8, 2010[,]
complaint and has issued plaintiff a report of the
investigation. Under these circumstances, plaintiff has
sufficiently exhausted her administrative remedies with
regard to her Rehabilitation Act claims as bolstered by the
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events alleged in the second complaint. See Ray v.
Freeman, 626 F.2d 439, 422 (5th Cir. 1980) (“Discrete acts
of discrimination which occur after the filing of an EEO
complaint must first be reviewed administratively before
such acts may serve as the basis for a finding of
discriminatory conduct justifying remedial action by the
court.”). See also Griffin v. Casey, 1987 WL 8195, at *3
(M.D. Fla. Jan. 20, 1987) (the exhaustion requirement is
satisfied when the administrative agency considered the
issues in the investigation).
Def. Exh. D (doc. 8), opinion in Curry v. Shinseki, case no. 2:09-cv-02441-AKK.
As the applicable precedent permits, Judge Kallon’s opinion considers not only
the allegations of plaintiff’s December 5, 2008, EEO complaint but also those of her
January 8, 2010, EEO complaint because the facts alleged in the latter complaint
arose out of the same nucleus of operative fact as those alleged in the former
complaint. Those facts, and the related EEO complaints, form the entire factual
foundation of the present suit. Thus, pending before the court today is a matter in
which this same United States District Court, a court of competent jurisdiction,
rendered a final judgment on the merits in a case between identical parties involving
the same cause of action raised today. As previously noted, res judicata “bars the
filing of claims which were raised or could have been raised in an earlier proceeding.”
Maldonado, 664 F.3d at 1375. The claims alleged today are so barred.

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Conclusion
Having considered the foregoing, and being of the opinion that the motion to
dismiss of defendant Eric K. Shinseki is due to be granted on the ground of res
judicata, the court shall so rule by separate Order.
DONE and ORDERED this 24th day of July, 2012.

INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE

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