Rogers v. Shinseki
Filing
56
ORDER granting 46 Motion to Dismiss as to all remaining claims in the Amended Complaint; directing the Clerk to close this case. Signed by Judge J. Randal Hall on 11/04/2014. (thb)
IN THE UNITED
STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOSEPHINE D.
ROGERS,
Plaintiff,
CV 112-194
v.
ERIC K.
SHINSEKI,
Secretary, Department of
Veterans Affairs,
Defendant.
ORDER
This
matter
Dismiss.
(Doc.
is
before
46.)
In
the
this
Court
on
action,
Defendant's
to
Josephine
Plaintiff
Motion
D.
Rogers, a former registered dietician at the Department of Veterans
Affairs
(MVA")
Medical
Center
in
Augusta,
Georgia,
alleges
her
supervisors harassed her and retaliated against her on the basis of
race in violation of Title VII of the Civil Rights Act of 1964,
U.S.C.
§ 2000e et seq.
On March 18, 2014,
an
42
amended
complaint.
complaint on April 25,
the Court granted Ms. Rogers leave to file
Ms.
Rogers
2014 (Doc. 41),
timely
filed
her
amended
to which Defendant filed a
Motion to Dismiss in lieu of an answer (Doc. 46).
Ms.
Rogers did
not respond to Defendant's motion within fourteen days and thus,
pursuant to this Court's Local Rules,
the motion unopposed.
L.R. 7.5, SDGa.
the Court could have deemed
Recognizing, however, that
Ms. Rogers is proceeding pro se and did file a Motion for Default
Judgment within the fourteen-day window,
on October 8,
the Court issued an Order
2014 granting Ms. Rogers ten additional days in which
to respond to the instant motion to dismiss.1
filing,
Ms. Rogers has responded that w[a]11 parties are aware that
Plaintiff
has
Dismiss,"
and
she
published
in
July,
not
been
cites
complaints across
cites
In a timely, one-page
no
Amended
other
two
that
the
to
the
articles
report
on
content
from
the
The
of
relevant
and
no
to
prevalence
the
legal
the
Augusta
country at VA facilities.
facts
Complaint
privy
(Doc.
claims
authority
of
set
in
Motion
to
Chronicle,
retaliation
54.)
forth
She
in
opposition
her
to
Defendant's motion.
The Court again finds Ms.
Rogers'
filing fails to address the
merits of the motion presently before the Court,
not
inclined
opportunities
to
continue
granting
given her persistent
Ms.
Rogers
confusion
but the Court is
second
about
the
and
third
duties
of
litigants before this Court and Defendant's consistent flexibility
in response.2
1
Indeed, although plaintiffs who act pro se are "held
The Court denied Ms.
Rogers'
52.)
Further, as the default
belief that Defendant did not
Motion for Default Judgment.
(Docs.
47,
motion only addressed Ms. Rogers' erroneous
answer or otherwise respond to her Amended
Complaint, the Court did not interpret it as being responsive to the Motion
to Dismiss currently under the Court's consideration.
(See Doc. 53.)
2
(Doc.
Ms.
Rogers responded similarly to Defendant's first motion to dismiss
15) .
In
two
lines,
she
remarked,
"Plaintiff
is
responding
to
the
motion by the defendant to dismiss the case.
Plaintiff opposes this motion.
Also, on July 26, 2013 Plaintiff received the Order from Judge Brian K. Epps
to proceed with the case."
(Doc. 17.)
Ms. Rogers' ultimately filed a
substantive response
(Doc. 19) and sur-reply (Doc.
22)
after Defendant
advised Ms. Rogers in its Reply that "she ha[d] misconstrued the [Magistrate
Judge's]
grounds]
July 26, 2013 Order" and that she "must address [the substantive
if she does not agree that her case must be dismissed for the
reasons asserted by Defendant"
(Doc. 18).
On account of Ms. Rogers'
apparent
ability to produce substantive argument in response to Defendant's first
dispositive motion, which she obtained electronically through the Court's
filing system, the Court expects no different at this stage.
Additionally,
Defendant represents to the Court that he served the motion to dismiss and
2
to a less
"will,
stringent
therefore,
standard"
be
than attorneys
liberally construed,"
have "no license to harass others,
meritless litigation,
Tannenbaum v.
Patterson v.
those
same
plaintiffs
clog the judicial machinery with
and abuse already overloaded court dockets."
United States,
Aiken,
and their pleadings
841
148 F.3d 1262,
F.2d
quotation marks omitted).
386,
387
1263
(11th
(11th Cir.
Cir.
1988)
But in consideration of Ms.
se status and this Court's
1998);
(internal
Rogers'
pro
strong policy of determining cases on
the Court proceeds to evaluate Defendant's motion for
the merits,
dismissal in the context of Ms. Rogers' two claims: retaliation and
constructive discharge.
I.
LEGAL STANDARD
The Court must construe the pleadings of
and in
the
light most
motion to dismiss.
(11th
Cir.
favorable
Watts v.
2007) .
At
Fla.
this
to
the plaintiff
Int'l Univ.,
stage,
a complaint broadly
the
in
reviewing a
495 F.3d 1289,
Court
tests
for
1295
legal
sufficiency,
not whether the plaintiff will ultimately prevail on
the merits.
Scheuer v.
a
plaintiff
is
allegations"
provide
not
Rhodes,
416 U.S.
required
provide
of his 'entitle[ment]
more than labels and conclusions,
of
236
to survive a motion to dismiss,
the 'grounds'
elements
to
232,
a
cause
of
action
(1974).
"detailed
Although
factual
the "obligation to
to relief
requires
and a formulaic recitation of the
will
not
do."
Bell
Atl.
Corp.
v.
brief on Ms. Rogers twice at her address of record, and has not received any
correspondence from Ms. Rogers requesting an additional copy.
(Def.'s Reply,
Doc.
55,
at 1-2.)
Twombly,
accept
550 U.S.
544,
the complaint's
pled facts.
555
(2007) .
legal
Simply put,
conclusions
as
the court need not
true,
only its
well-
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
As the Court previously noted, when plaintiffs act pro se, the
pleadings are
"held to a less stringent
drafted by attorneys and will,
Tannenbaum v.
"This
leniency,
rewrite
action."
637
United States,
an
however,
otherwise
Thomas v.
(11th Cir.
148
does
1263
require
pleading
Pentagon Fed.
in
(11th Cir.
or
allow
order
Credit Union,
1998).
courts
sustain
to
to
an
3 93
F. App'x 635,
of
this
2010) .
Court
previously
DISCUSSION
outlined
thorough form in its March 18,
liberal
be liberally construed."
F.3d 1262,
not
deficient
II.
The
therefore,
standard than pleadings
the
facts
2014 Order.
(Doc.
case
in
38 at 1-6.)
A
reading of the Amended Complaint reveals two claims:
retaliation and
(2)
constructive discharge.
The
Court
(1)
addresses
each in turn.
A.
To
Ms. Rogers' Direct Retaliation Claims
state
a
claim
for
retaliation
under
Title
plaintiff must first establish a prima facie case.
Taco Bell Corp.,
141 F.3d 1457,
prima facie case is met,
1460 (11th Cir.
VII,
the
Olmstead v.
1998).
If this
a presumption of retaliation arises and
the burden shifts to the defendant to "proffer a legitimate,
retaliatory reason for the adverse employment action."
the defendant sets forth such a reason,
4
Id.
non-
If
the presumption disappears
and the plaintiff must show that the reasons stated were merely a
pretext. Id.; Masso v. Miami-Dade Cnty.,
(S.D.
Fla.
465 F. Supp.
2d 1260, 1265
2006).
"A prima
facie
case of retaliation contains three elements:
1first,
the
second,
the plaintiff suffered an adverse employment action;
finally,
plaintiff
engaged
in
statutorily
Williams
(11th Cir. 2002)
v.
Motorola,
is statutorily protected,
recognized
and
two
unlawful
assisted,
clause)
or
proceeding,
clause)."
303
1284,
employment
or
1291
Co.,
197
the Supreme Court and Eleventh Circuit
categories
(2)
participated
of
activity:
has
employee
is
xhe has opposed any practice
practice
*he
"An
by
made
in any manner
this
Clover v. Total Sys. Servs.,
subchapter'
a charge,
in
an
or hearing under this subchapter'
(11th Cir. 1999)
F.3d
In determining whether activity
protected from discrimination if (1)
opposition
Inc.,
(quoting Farley v. Nationwide Mut. Ins.
F.3d 1322, 1336 (11th Cir. 1999)).
made an
conduct;
the adverse action was causally related to the protected
expression. "'
have
protected
Inc.,
(the
testified,
investigation,
(the participation
176 F.3d 1346,
1350
(quoting 42 U.S.C. § 2000e-3(a)).
When proceeding under the opposition clause, a plaintiff need
not prove the underlying discrimination claim, but must demonstrate
"a good faith, reasonable belief that the employer was engaged in
unlawful employment practices."
F.3d
1307,
omitted).
1311
(11th
Cir.
Weeks v.
2002)
Harden Mfg.
(internal
Corp.,
quotation
291
marks
It
is
critical
under
this
to
emphasize
standard
has
that
both
a
a
plaintiff's
subjective
burden
and
an
objective component. A plaintiff must not only show that
[s]he subjectively (that is, in good faith) believed that
[her]
employer was
engaged
in unlawful
employment
practices, but also that [her] belief was objectively
reasonable in light of the facts and record presented.
Id.
at 1312
(quoting Little v.
Div., 103 F.3d 956, 960
Ms.
when
she
Rogers
Opportunity ("EEO")
when she
Carrier Transicold
(11th Cir. 1997)).
alleges
initiated
United Tech.,
she participated in opposition activity
informal
counseling
with
an
Equal
representative on October 5,
Employment
2010 and again
filed a formal administrative complaint with the
December 30, 2010.
(Am. Compl., Doc. 41, at 1.)
EEO on
She premises her
direct retaliation claim on the assertions that she received (1) a
"Fully Successful" performance rating on October 20, 2010, which
was lower than the previous year and
notice on December 17,
context or details,
Ms.
2010.
(2)
Further,
a ten-day suspension
without
any additional
Rogers states that on November 19,
2010,
she "became aware that [her] supervisor, Sheri Loflin, was aware of
[her] contact with the agency's EEO Officer."
1.
(Id. 1 7.)
October 20, 2010 Performance Evaluation
Ms. Rogers has failed to allege sufficient facts to make out a
prima facie case of retaliation on the ground of a deficient
performance evaluation.
not
constitute
performance
an
adverse
evaluations,
consequences,'
are
First, a rating of "Fully Successful" does
not
employment
which
xdo
sufficient
not
to
action.
lead to
form
the
"[E]mployee
tangible
basis
of
job
a
retaliation claim under Title VII."
Batch v. Jefferson Cnty.
Dev. Council, 183 F. App'x 861, 863 (11th Cir. 2006)
v. Town of Lake Park,
245 F.3d 1232,
1241
Child
(quoting Davis
(11th Cir.
2001)).
Ms.
Rogers merely asserts that the rating should have been higher, and
that
she
"did not
[receive]
credit
for
the
work that [she] did throughout the year."
27;
Compl.,
Doc.
consequences
highest
she
1,
rating
(11th Cir. 2006)
212
which . . .
action."),
She
available:
amount
has
no
alleged
of receiving
tangible
the
no termination,
second
demotion,
or loss
Id. ; Brown v. Snow, 440 F.3d 1259, 1265-66
(internal citation omitted); Gupta v. Fla. Bd. of
F.3d
had
of
(Am. Compl. at 20; id. H
ineligibility for promotional opportunities,
of salary or benefits.
Regents,
7.)
suffered as a result
performance
reassignment,
at
tremendous
no
571,
588
effect
on
(11th
an
Cir.
employee
2000)
is
not
("An
an
action,
*adverse'
abrogated on other grounds by Burlington N. & Santa Fe
Ry. Co. v. White,
548 U.S. 53 (2006); see also Cain v. Geren, 261
F. App'x 215, 217 (11th Cir. 2008)
(affirming the district court's
finding that an employee's receipt of a "2" instead of a "1" was
not
an
adverse
employment action,
as
she
did
not
present
any
evidence that the "2" rating had an adverse impact on her ability
to receive a promotion,
raise,
or any other type of employment
benefit); Odom v. Holder, No. 2:11-CV-3086-SLB, 2014 WL 1233709, at
*22
(N.D.
Ala.
Mar.
25,
2014)
(finding
employee's
"Excellent"
rather than "Outstanding" performance review was not a materially
adverse
action
that
would
dissuade
a
reasonable
employee
from
filing an EEO complaint).
Moreover,
to satisfy the causal connection requirement of the
prima facie case, at a minimum, Ms. Rogers must allege sufficient
facts
to
show
that
her
supervisors
were
actually
aware
of
the
protected expression at the time they allegedly took the adverse
employment action.
Cir.
1997).
Holifield v. Reno,
Although such awareness
circumstantial
evidence,
an employer's
awareness
115 F.3d 1555,
may
be
1566
established
(11th
with
this Circuit requires plaintiffs to show
"with more
evidence
timing coupled with speculative theories."
that
mere
curious
Raney v. Vinson Guard
Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)
(citing Goldsmith
v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)).
Ms. Rogers'
on November 19,
in
time
-
sole allegation that she personally became aware
2010 that Ms. Loflin - at some unidentified point
learned
of
her
indescript and unavailing.
contact
with
the
EEO
counselor
is
It is improper for the Court to make
any assumptions about the proximity of events,
and it will not
retroactively impart awareness upon Ms. Loflin so as to satisfy Ms.
Rogers' burden at the pleading stage.
See Williams v. Cleaver-
Brooks , Inc., No. 7:11-CV-144 HL, 2012 WL 6151141, at *14 (M.D. Ga.
Dec. 11, 2012), aff'd, 529 F. App'x 979 (11th Cir. 2013).
2.
December 17, 2010 Suspension Notice
As a second basis for her retaliation claim, Ms. Rogers points
to the ten-day suspension imposed on December 17,
2010 by Jean
Yarsawich,
Chief
of
Food
and
Nutrition
Services,
for
her
"deliberate refusal to carry out a proper order" on four occasions
during the period of November 9 through November 22, 2010.
Compl. §§ 13,
allege
16; Doc. 34 at 30.)
sufficient
retaliation.
facts
There
to
is no
Here,
make
out
question
too, Ms.
a
that
Rogers fails to
prima
Ms.
facie
Rogers'
Wal-Mart
(holding
that
constituted
retaliation
913,
920
without
Dep't
Stores,
Inc.,
141
written
adverse
Hairston
Cir.
1993)
an
adverse
pay was
of
Corr.,
(finding
418
patrol
F.
1453,
reprimands
employment
claim);
(11th
F.3d
that
employment
Supp.
for
2d
a
Sun
1369,
1381
(S.D.
Ga.
1998)
1998)
suspensions
purposes
Pub.
of
Co.,
thirty-day
9
v.
1276-77
(M.D.
Ala.
suspension
(holding
the
a
F.3d
suspension
Evans
without
"clearly" an adverse-employment action); Naia v. Deal,
2d
Cir.
action);
1271,
ten-day
(11th
the
of
See Wideman
one-day
Gainesville
(holding
officer's
and
actions
v.
1455
case
suspension
without pay constitutes an adverse employment action.
v.
(Am.
Alabama
pay
2005)
was
13 F. Supp.
plaintiff's
two-week
suspension without pay, written reprimand, and six-month probation
term
constituted
adverse
employment
actions
for
Title
VII
purposes); see also Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66,
80 n.ll
(D.D.C.
disciplinary
2002)
("[C]ourts have almost uniformly held that a
suspension
for
which
the
employee
is
not
compensated . . . amounts to an adverse employment action.").
Again,
connection
however,
Ms.
requirement
Rogers has failed to satisfy the causal
in
her
pleadings.
Ms.
Rogers'
only
allegation
setting
forth
supervisory
awareness
states
that
Ms.
Rogers became aware on November 19, 2010 that Ms. Loflin — at some
unidentified point in time — learned of her EEO counseling.
The
Court
does
retaliatory
not
negate
suspension
that
the
claim:
timeline
resolving
is
all
right
as
to
the
inferences
in
Ms.
Rogers' favor, Ms. Loflin was aware of Ms. Rogers' EEO activity at
some point on or before November 19, 2010 and the VA suspended Ms.
Rogers on December 17, 2010.
her own awareness,
substantiating
however,
facts,
Beyond the vague assertion addressing
Ms. Rogers'
does not allege any other
especially those which
would
implicate
Ms.
Yarsawich, who appears to have been ultimately responsible for her
suspension.
(Doc. 34 at 30-34.)
Inc. , No. 108-CV-3551-TW,
2010)
See Enadeghe v. Ryla Teleservs.,
2010 WL 481210, at *9 (N.D. Ga. Feb. 3,
(dismissing retaliation claim because plaintiff "d[id]
not
identify the individual who made the decision to terminate her in
her Complaint, and she d[id] not allege that the decisionmaker was
aware that she complained about any discriminatory conduct").
Just
as the Court will not strain to impart awareness upon Ms. Loflin,
it will not extrapolate the pleadings to impart such knowledge on
Ms. Yarsawich,
who is not even named.
Furthermore, Ms. Rogers' pleading overall fails to support the
proposition that her protected October expression and the December
suspension were related in any tangible way.
1337
Farley, 197 F.3d at
(reciting that plaintiffs are required to demonstrate only
that the protected activity and the adverse action were "not wholly
10
unrelated"
in
a
retaliation
quotation marks omitted).
action)
(citations
and
internal
Although "close temporal proximity" — in
this case, approximately ten weeks — may be sufficient to state a
claim in
some cases,
it
is not
dispositive
standing alone.
Id.
The facts pled indicate that Ms. Rogers
sought EEO counseling on
October
Over
5,
2010.
(Am.
Compl.
at
1.)
one
month
later
on
November 9, 2010, she refused to attend a meeting scheduled for the
next day, and in fact did not attend.
of
behavior
recurred
three
times,
twice on November 22, 2010.
"continued to
schedule me
Doc. 34 at 30.)
(Id. at 17.)
once
(See id.
on
The same cycle
November
16,
2010
and
(noting that the supervisor
to attend this meeting";
id.
§§ 9,
28;
These glaring facts do not suggest in the least
that it was Ms. Rogers' EEO counseling, about which her supervisors
questionably were aware, that precipitated suspension.
As Ms. Rogers has failed to allege sufficient facts to make
out a prima facie case, the Court DISMISSES her direct retaliation
claims.
B.
Ms. Rogers' Claim Based on Retaliatory Hostile Work
Environment
Ms.
Rogers
also
alleges
she
suffered a series
of
twelve
incidents of hostile work environment prior to her resignation on
January 31, 2Oil.3
3
In Gowski v. Peake, the Eleventh Circuit Court
The EEOC identified twenty-four incidents in its comprehensive review
of Ms. Rogers' claims, but only twelve occurred after Ms. Rogers' initial
contact with the EEO counselor.
(See Am. Compl. at 24-26.)
As the protected
conduct must precede the retaliatory action, the Court will not consider any
conduct by Defendant that took place before October 5, 2010 in addressing Ms.
Rogers' retaliatory hostile work environment claim.
11
of
Appeals
recognized
work environment.
Court
to
find
a
cause
682 F.3d 1299,
that
the
"the
pervasive
1312
for
retaliatory
(11th Cir.
of
the
2012).
Department
Ms. Yarsawich,
hostile
For this
of
Veterans
and/or Albert Ward —
Rogers to a hostile work environment in retaliation
for her EEO activity,
that
action
Secretary
Affairs — through Ms. Loflin,
subjected Ms.
of
actions
she must allege sufficient facts to establish
complained
to alter
of
were
sufficiently
the terms and conditions
constituting an adverse employment action."
of
Id.
severe
employment,
or
thus
The requirement
that the harassment be "severe or pervasive" contains an objective
and a subjective component.
277 F.3d 1269,
behavior
1276
must
Miller v.
(11th Cir.
result
in
both
2002).
an
Kenworth of Dothan,
Inc./
" [T]o be actionable,
environment
that
a
this
reasonable
person would find hostile or abusive and an environment that the
victim
subjectively
perceive[s] ... to
(internal quotation marks omitted).
be
abusive."
Id.
In evaluating the objective
severity of the harassment, courts consider "(1) the frequency of
the conduct;
conduct
offensive
is
(2)
the
severity of
physically
utterance;
threatening
and
(4)
the conduct;
or
whether
(3)
humiliating,
the
conduct
interferes with the employee's job performance."
Id.
whether
or
a
the
mere
unreasonably
"[W]hether
an environment is *hostile' or 'abusive' can be determined only by
looking at all the circumstances."
510 U.S.
17,
23
Harris v. Forklift Sys., Inc.,
(1993).
Among other incidents, Ms. Rogers alleges:
12
(1)
On November 9, Ms. Loflin ordered Ms. Rogers to attend a
meeting that began thirty minutes before her scheduled
tour of duty, which she refused to attend (Am. Compl. at
17) ;
(2)
Between
November
9
and
November
22,
Ms.
Rogers'
supervisor continued to order her to attend the abovementioned, regularly-scheduled interdisciplinary meeting
and "formed her 'posse'" on e-mails as to this matter
(Id.);
(3)
On November 17, a co-worker slid patient profiles under
Ms. Rogers' door for an upcoming meeting, and Ms. Rogers'
called the VA Police "to handle" the documents and escort
her to see Ms. Yarsawich because she "did not feel safe
in her work environment" (Doc. 34 at 19);
(4)
On the same day, Ms. Loflin advised the entire staff that
Ms. Rogers would cover a co-worker's assignment (Am.
Compl. at 20, 25);
(5)
On November 23, 2010, Ms. Loflin slid an e-mail under Ms.
Rogers' office door that gave her a direct
attend a meeting for a co-worker (Id. H 9);
(6)
order to
On the same day, and then again on November 29 and 30,
2010, Ms. Loflin "confronted [Ms. Rogers] several times
in the hallways" and insisted that Ms. Rogers meet with
her and Ms. Yarsawich about potential disciplinary action
(Id. 1| 10) ;
(7)
On November 30, 2010, Ms. Loflin sent Ms. Rogers five
e-mails with the subject matter "Proposed Disciplinary
Action," which she did not open (Id. H 11; Doc. 34 at
17);
(8)
Ms.
Yarsawich
ignored
Ms.
Rogers'
December
10,
2010
request to be reassigned to a new supervisor (Am. Compl.
11 12);
(9)
On December 17, 2010, "with the assistance of the VA
Police," Ms. Rogers' supervisor placed a "suspicious
package" on her desk (Id. at 15) ;
(10) Ms. Loflin called Ms. Rogers on January 6,
while
she
voicemail
was
"out on
"requesting"
sick
leave"
and
2011 at home
left
a
brief
that her call be returned;
Ms.
Rogers and her husband subsequently reported the
voicemail message to the VA Police (Id. at 15; id. H 15;
Doc.
34 at 50,
51); and
13
(11) During her suspension without pay from January 19 to
January 28, 2011, "illegal entries were made on [her]
time card"
to charge her with annual
leave,
which were
later corrected (Am. Compl. H 17; id. at 35).
The Court assumes that Ms. Rogers subjectively believed the actions
described
above
amounted
to
severe
and pervasive
her penchant to involve the police supports that.
belief is not objectively reasonable.
Title
VII
prohibits
harassment,
and
But Ms. Rogers'
It is not even close.
discrimination;
it
"is
not
a
shield
against harsh treatment" or the "petty slights or minor annoyances
that often take place at work and that all employees experience."
Burlington, 548 U.S. at 68; McCollum v.
(11th Cir. 1986)
1186
(5th Cir.
those
610
(citing Jackson v. City of Killeen, 654 F.2d 1181,
1981)).
abusive
intimidation,
Bolger, 794 F.2d 602,
Instead,
workplaces
ridicule,
Title VII
"permeated
and insult."
is meant
with
Harris,
Rogers' own pleadings make clear (1)
to
address
discriminatory
510 U.S.
at 21.
Ms.
that she disagreed with her
superiors as to how her job should be performed and how her co
workers
should
be
managed,
and
(2)
in
response,
she
chose
to
disregard her supervisors' orders and attempts to communicate with
her.
Non-threatening, non-humiliating e-mails and requests limited
to Ms. Rogers' apparent failure to cooperate and to fulfill work
assignments do not objectively constitute severe conduct for which
Title VII's anti-retaliation provision provides a remedy.
Gowski,
682
retaliated
F.3d
against
at
two
1313-14
(finding
doctors
14
who
hospital
filed
EEO
Cf.
administration
complaints
by
operating a targeted "campaign" over a period of years in which the
they spread rumors about the doctors,
front
of
doctors
their
to
peers,
build
solicited
cases
for
attempted to malign them in
negative
information
termination,
about
removed
them
the
from
committees and projects, prohibited them from conducting research,
limited
their
privileges
and
access
to
positions
within
the
hospital, and gave them low proficiency ratings).
Accordingly, Ms.
Rogers'
claim
retaliatory
hostile
work
environment
must
be
DISMISSED.
C.
To
Ms. Rogers' Constructive Discharge Claim
sustain
a
constructive
discharge
claim,
Ms.
Rogers
must
sufficiently allege that Defendant imposed working conditions so
onerous that
a reasonable person in her position would have been
compelled to resign.
F.3d 1432,
1434
Thomas v.
Dillard Dep't Stores,
(11th Cir. 1997) .
Inc.,
116
The Court cannot consider Ms.
Rogers' subjective feelings in evaluating such a claim, but rather
employs a wholly objective standard.
Dist.,
145
F.3d
1441,
1450
(11th
Doe v.
Cir.
Dekalb Cnty.
1998).
Further,
Sch.
the
threshold for a constructive discharge claim is higher than that
for a hostile work environment claim.
Ins.
Co.,
252 F.3d 1208,
1231
Hipp v. Liberty Nat'l Life
(11th Cir.
2001).
A plaintiff
claiming constructive discharge must show "a greater severity or
pervasiveness of harassment"
reasonable response.
(11th Cir.
such that resignation is the only
See Bryant v.
2009).
15
Jones,
575 F.3d 1281,
1298
Here,
as
Ms.
Rogers'
plausible claim for
state a
Amended
Complaint
retaliatory harassment,
claim constructive discharge.
fails
it
to
likewise
state
fails
a
to
Notwithstanding that there
is a substantial question as to whether Ms.
Rogers retired rather
than resigned,4 the conduct about which Ms. Rogers complains - that
Defendant
assigned
her
to
cover
meetings
for
co-workers,
made
frequent attempts to communicate with her, and ultimately suspended
her on a temporary basis in response — does not suggest or indicate
such objectively intolerable working conditions that would compel a
reasonable person to resign.
find
that
an
employer
Courts in this circuit have failed to
constructively
discharged
plaintiffs
situations far more egregious than those alleged in this case.
Wingfield v.
S.
Univ.
2010 WL 2465189,
at *9
of
Fla.,
(M.D.
Inc.,
Fla.
No.
June 15,
in
See
8:09-cv-01090-T-24-TBM,
2010)
(listing cases) ;
see also Dale v. Wynne, 497 F. Supp. 2d 1337, 1344 (M.D. Ala. 2007)
(concluding
supervisor
that
no
only
constructive
communicated
with
discharge
employee
occurred
by
where
email,
told
employee's peers that he needed to approve anything she did, and
would
not
allow
her
to
manage
her
subordinates).
Ms.
Rogers'
4
Ms. Rogers' Amended Complaint avers that she "resigned from the agency,
effective January 31, 2011." (U 18.)
In her prayer for relief, however, Ms.
Rogers appears to seek damages for delayed retirement payments, and notes
that "upon retirement, my salary was at the GS-11, Step 8 level."
(Id^ at 6
(emphasis added).)
During the administrative process, moreover, the ALJ
found that Ms.
Rogers'
retired.
(Id^ at 35.)
To the extent Ms.
Rogers
asserts the delay in payment of her retirement benefits was another
retaliatory act, the Court finds she has not stated a claim. She appears to
allege the delay was unintentional - due to "technicalities in the system" and fails to allege that anyone involved in processing her paperwork at the
VA or Office Personnel Management was aware of her protected expression.
(See Am. Compl. at 6.)
16
constructive
discharge
allegations,
therefore,
are
due
to
be
DISMISSED.
III.
For
Motion
the
to
reasons
Dismiss
Amended Complaint.
ORDER
November,
ENTERED
stated
(Doc.
46)
CONCLUSION
herein,
as
to
the
Court
GRANTS
all
remaining
Defendant's
claims
in
the
The Clerk is DIRECTED to CLOSE this case.
at
Augusta,
Georgia,
this
/
2 014.
HONORHBfE^J. RANDAL HALL
UNITE© STATES DISTRICT JUDGE
50UTJJERN DISTRICT OF GEORGIA
17
day
of
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