Morey v. Secretary, Department of Veterans Affairs

Filing 54

ORDER granting-in-part 26 --motion to dismiss; dismissing Counts I and II; denying as moot 41 --motion to dismiss; denying as moot 8 --motion to dismiss; construing Doc. 43 in part as a motion under Rule 21; granting 43 --dismissing the claims against Witty and Wax; construing Doc. 43 in part as a motion to dismiss; granting 43 --motion to dismiss; dismissing Count IV; amended complaint due 8/1/2017. Signed by Judge Steven D. Merryday on 6/29/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

WILLIAM “KEVIN” MOREY,
Plaintiff,
v.

CASE NO.: 8:16-cv-3232-T-23AEP

ROBERT A. MCDONALD, Secretary,
Department of Veterans Affairs, et al.,
Defendants.
____________________________________/

ORDER
William “Kevin” Morey worked for the Department of Veterans Affairs
until the department terminated his employment in September 2013. Morey
complained to the department about his dismissal, but in a final agency decision
(Doc. 26-4) the department finds that Morey failed to establish disability
discrimination or retaliation. Morey sues (Doc. 21) Robert A. McDonald, Secretary
of Veterans Affairs, under Title VII for disability discrimination and under the
Rehabilitation Act for retaliation and hostile work environment.
Morey alleges (a) that McDonald discriminated by denying Morey a
reasonable accommodation on more than two dozen occasions and (b) that the
denials of a reasonable accommodation and McDonald’s “forcing or engaging in

illusory settlements [with Morey]” constitute a hostile work environment
(Doc. 21 at 22). Morey adds that his termination was an act of retaliation for
engaging in activity protected by Title VII and by the Rehabilitation Act. On
April 11, 2012, Morey signed (Doc. 26-1 at 4) a mediation settlement and waived
“any and all actions, claims, complaints, EEO [equal employment opportunity]
complaints, grievances, appeals and proceedings of whatever nature against the
Agency. . . [Morey] has not waived any rights or claims that may arise after the date
[the] agreement is signed.” (Doc. 26-1 at 3). On March 22, 2013, Morey signed
(Doc. 26-2 at 4) a second mediation settlement agreement, which contains an
identical waiver. According to Morey, the mediation agreements and the
circumstances under which they were signed constitute disability discrimination
and retaliation. McDonald moves under Rules 12(b)(1) and 12(b)(6), Federal Rules
of Civil Procedure, to dismiss Counts I and II “in part” and to dismiss Count III.
Disability discrimination and retaliation
A. Subject-matter jurisdiction
Responding to Morey’s allegation of disability discrimination and retaliation
between January 2011 and September 2013, McDonald asserts (1) that the
settlements bar Morey’s alleging disability discrimination and retaliation, both of
which occurred before March 22, 2013, and (2) that because of the settlements Morey

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fails to invoke subject-matter jurisdiction because no case or controversy exists for
conduct that occurred before March 22, 2013.
Although perhaps barring Morey’s claim for some other reason, the settlement
agreements are wholly incompetent to affect the district court’s subject matter
jurisdiction, which results from a grant by the Constitution and the statutes of the
power to adjudicate specific classes of disputes. For example, the unripeness of a
dispute for adjudication, the lack of a party’s standing to assert a claim, a party’s
failure to satisfy a condition precedent to asserting a claim, and similar disabilities
might result in a party’s failing successfully to invoke subject matter jurisdiction, but
the defect causing the resulting dismissal is not lack of subject matter jurisdiction,
that is, not a lack of the court’s organic power to adjudicate the class of cases that
includes the dispute, but the failure or inability of a particular party asserting a
particular claim at a particular time to invoke the power of adjudication granted to
the court by the Constitution and the statutes. See generally, Santiago-Lugo v. Warden,
785 F.3d 467, 471–475 (11th Cir. 2015).
B. Failure to exhaust administrative remedies
Before suing under Title VII or the Rehabilitation Act, a federal employee
must exhaust administrative remedies. Shiver v. Chertoff, 549 F.3d 1342, 1343
(11th Cir. 2008). Under 29 C.F.R. § 1614.105(a)(1), an aggrieved employee must
complain to a “counselor” within forty-five days of the alleged discrimination.
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McDonald argues that Morey failed to exhaust administrative remedies
because the final agency decision (Doc. 26-4) lacks analysis (1) of Morey’s failure to
accommodate allegations, (2) of Morey’s mediation conduct allegations, and (3) of
Morey’s settlement agreement allegations. (Doc. 26 at 8) McDonald states that the
final agency decision “only addresses Plaintiff’s termination.” (Doc. 26 at 2)
I. Failure to accommodate
The final agency decision states:
[Morey] alleges that the Agency’s unlawful denial of his reasonable
accommodation request forced him to stop going to work. . . . He asserts that but
for the denial of his reasonable accommodation request, he would have
[maintained] attendance . . . we do not have jurisdiction to adjudicate that issue,
which is before the EEOC.

(Doc. 26-4 at 9) But the Department of Veterans Affairs’ notice of partial acceptance
(Doc. 26-3), which identifies the EEO claims accepted by the Department, notes
“reasonable accommodation request.” (Doc. 26-3 at 2)
Asserting that “[t]he discrete acts occurring before March 22, 2013 are . . .
prior to the forty-five day window for exhausting administrative complaints,”
McDonald argues that “the earlier allegations of failing to accommodate should be
dismissed . . . for not exhausting administrative remedies by filing a timely claim.”*

In a similar motion (Doc. 8) to dismiss, McDonald includes a convoluted argument that he
“seeks to dismiss allegations of failure to provide reasonable accommodations prior to the March 22,
2013 agreement—rather than 45 days before the date of contacting an EEO counselor—because the
agency previously accepted allegations for review earlier than the 45-day period that were part of an
alleged recurring denial of reasonable accommodations back to February 15, 2013, but does not
appear to have considered the March 22, 2013 settlement agreement in its analysis.” (Doc. 8 at 7)
*

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(Doc. 26 at 9; Doc. 8 at 7) McDonald’s argument lacks merit. Rather than
constituting “discrete acts” that were not raised and are therefore dismissible as
“independently actionable claim[s],” the allegations of failure to accommodate
Morey’s disability are “sufficiently related to the overall pattern of harassment as
[they involve] the same management officials and [are] inextricably intertwined with
the remaining events and [are] included for consideration in the analysis of the
harassment claim.” (Doc. 26-3 at 3)
On February 18, 2014, the Department appeared to accept Morey’s complaint
about an “ongoing” refusal to “process and approve the . . . reasonable
accommodation request.” (Doc. 26-3 at 2) Therefore, Morey exhausted the
administrative remedy on his allegation of a failure to accommodate.
II. The mediation and the settlement agreements
The department’s notice (Doc. 26-3) lacks mention of mediation or the
settlement agreements. The record fails to show that Morey complained to the
Department about either the conduct of the mediations or the settlement agreements.
Therefore, Morey appears to have failed to exhaust his administrative remedy on
either. Morey must amend the complaint to remove an allegation that the
mediations and the settlement agreements constitute discrete acts of disability
discrimination and retaliation.

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III. The validity of the settlement agreements
The waiver of a Title VII claim is closely scrutinized, and in determining
whether a waiver is “knowingly” and “voluntarily” signed, the “totality of the
circumstances” are examined. Puentes v. United Parcel Service, Inc., 86 F.3d 196, 198
(11th Cir. 1996). The enforceability of a waiver depends on:
the plaintiff's education and business experience; the amount of time the plaintiff
considered the agreement before signing it; the clarity of the agreement; the
plaintiff's opportunity to consult with an attorney; the employer's encouragement
or discouragement of consultation with an attorney; and the consideration given
in exchange for the waiver when compared with the benefits to which the
employee was already entitled.

Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir. 1995).
Morey challenges the validity of the waiver on the ground that the agreements
lacked consideration, that Morey suffered from “memory issues and . . . fatigure from
anxiety,” and that Morey signed the settlement under duress and without knowledge
of the settlement’s contents. (Doc. 30 at 9–10) Morey argues that the Department
“bargained” with him in “one day.” (Doc. 30 at 12) Puentes holds that twenty-four
hours to decide whether to sign a release is insufficient because such a short timeframe “substantially impede[s]” one’s ability to consult a lawyer.
A factual dispute exists because Morey plausibly challenges the waiver’s
validity. Therefore, the issue must await resolution after further discovery and
perhaps on a motion for summary judgment. Subject to further adjudication to the

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contrary, Morey may assert a claim for disability discrimination and for retaliation
based on conduct before March 22, 2013.
Hostile work environment
A. Failure to exhaust administrative remedies
Although the final agency decision appears not to address Morey’s hostile
work environment allegation, the Department’s notice of partial acceptance discusses
hostile work environment. (Doc. 26-3 at 2–3) Thus, Morey exhausted his
administrative remedy.
B. Failure to sue timely
Under 29 C.F.R. § 1614.310(a), Morey can sue in district court within thirty
days after receipt of the agency decision. Morey received the agency’s decision on
October 21, 2016. Morey failed to allege hostile work environment in the
November 18, 2016 complaint. In the amended complaint submitted
February 6, 2017, Morey adds a claim for hostile work environment.
Rule 15(c)(1)(B) provides that “an amendment to a pleading relates back to the date
of the original pleading” when the amendment derives from the “conduct,
transaction, or occurrence set out” in the original pleading. Morey’s hostile work
environment claim derives from the same facts and course of conduct as the claims in
the original complaint.

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In determining whether a claim arises out of the same “conduct, transaction,
or occurrence,” an order must consider (1) whether the defendant knew about the
new claim and (2) whether in support of the later claim the plaintiff relies on the
“same kind” of evidence offered in support of the original claim. Moore’s Federal
Practice, Vol. 3, § 15.19[2] (3d ed. 2016). McDonald knows about the claim
McDonald purportedly asserts, and Morey will rely on the “same kind” of evidence
offered in support of the original complaint. Therefore, Morey’s claim for hostile
work environment “relates back.”
C. Failure to state a claim
To plead a hostile work environment claim, the plaintiff must allege (1) that he
was disabled; (2) that he was subjected to unwelcome harassment; (3) that the
harassment was because of the plaintiff’s disability; and (4) that the harassment was
“sufficiently severe or pervasive” to alter a term and condition of employment and to
create a “discriminatorily abusive” workplace. Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1275 (11th Cir. 2002). McDonald asserts that Morey alleges harassment
that was “sporadic” and not “severe and pervasive.” (Doc. 26 at 13–14)
Harassment “must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did
perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The
hostility of a work environment is measured by the frequency and severity of the
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alleged conduct, by whether the alleged conduct is physically threatening or
humiliating, and by whether the alleged conduct unreasonably interferes with the
employee’s job performance. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246
(11th. Cir. 1999). A plaintiff must allege that the workplace environment is “hostile
and deeply repugnant” and not “merely unpleasant.” Hopkins v. Baltimore Gas and
Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (Wilkinson, J.).
Morey alleges “forced absen[ce],” lack of accommodation for a severe medical
disorder, more than thirty instances of unsuccessfully requesting an accommodation,
“forced” usage of more than five months leave in 2013, and the demand for a timepressured settlement agreement from “a disabled veteran [Morey] with memory and
fatigue disabilities.” (Doc. 30 at 15) Assuming the truth of the complaint and
indulging reasonable inferences in Morey’s favor, the facts alleged in the complaint
(1) sufficiently establish regular rather than sporadic occurrences and (2) adequately
describe events sufficiently “severe and pervasive” to allege a plausible claim for
hostile work environment.
CONCLUSION
McDonald’s motion (Doc. 26) to dismiss is GRANTED IN PART. Counts I
and II are DISMISSED. Also, Morey announces (Doc. 43) a voluntary dismissal of
Witty and Wax. Construed as a motion (Doc. 43) under Rule 21 to drop a party, the
claims against Witty and Wax are DISMISSED. Construed as a motion to dismiss
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Count IV of the amended complaint, Morey’s motion (Doc. 43) to dismiss is
GRANTED. McDonald’s January 18, 2017 motion (Doc. 8) to dismiss the
complaint is DENIED AS MOOT. Wax and Witty’s motion (Doc. 41) to dismiss
the amended complaint is DENIED AS MOOT.
No later than AUGUST 1, 2017, Morey must amend the complaint and
remove Count IV. Morey must amend Counts I and II to omit an allegation that the
mediations and the settlement agreements evidence discrimination and retaliation.
Morey may not add a new claim.
ORDERED in Tampa, Florida, on June 29, 2017.

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