Chapman v. Shulkin

Filing 16

ORDER granting in part 12 Motion to Dismiss. Plaintiff's age discrimination and whistleblower claims are dismissed for failure to exhaust administrative remedies. Should Plaintiff wish to pursue this case, It Is Ordered that she shall amend her complaint to include all of her allegations in one document, within twenty-one (21) days of the date of this Order. Plaintiff is directed to file and serve her amended complaint on Defendant no later than twenty-one (21) days from the date of this Order. If Plaintiff does not file a timely amended complaint, the Court will assume that she does not wish to prosecute the case, and the case will be dismissed without further notice. Signed by Judge Dudley H. Bowen on 10/09/2018. (thb)

FiLEO

U.S. DISTRICT COURT
AUGUSTA DIV.
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA 20I8OCT-9 fiH 10=59
DUBLIN DIVISION

CLERK.

J.

SO. DiS i. UF G
EVA CHAPMAN,

*
*

Plaintiff,

*
*

CV 318-014

V.

ROBERT WILKIE, Secretary,
United States Department of
Veterans Affairs,

*
*
*
*

Defendant.

*

ORDER

Plaintiff Eva Chapman, who is proceeding pro se, initiated

this case on February 26, 2018, when she filed a form "Complaint
for Employment Discrimination."

On August 6, 2018, Defendant

Robert Wilkie, the Secretary of the United States Department of
Veterans Affairs, filed a motion to dismiss Plaintiff's claims,

pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), for
failure to exhaust administrative remedies and failure to state a

claim.

Plaintiff

timely

filed

a

responsive

brief

opposing

dismissal.

The Court has reviewed the complaint, the parties'

briefs, and

the

follows.

relevant case

law and

resolves the

matter as

I.

Federal

Rule

MOTION TO DISMISS STANDARD

of

Civil

Procedure

8(a)(2)

requires

that

a

complaint contain "a short and plain statement of the claim showing
that the pleader is entitled to relief."

The United States Supreme

Court has provided additional guidance to the Rule 8(a) analysis
in

Bell

Ashcroft

Atlantic
V.

Corp.

Iqbal,

556

v.

Twombly,

U.S.

662

550

U.S.

(2009).

544

(2007),

Pursuant

to

and
the

Twombly/Iqbal paradigm, to survive a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6),

"a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'"

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

To be

plausible, the complaint must contain "well-pleaded facts" that

"permit the court to infer more than the mere possibility of
misconduct."

Id. at 679; GeorgiaCarry.Org, Inc. v. Georgia, 687

F.3d 1244, 1254 (ll^h Cir. 2012) (stating that a plaintiff must

necessarily
element

elements

of

of

"include
his

a

or

factual

her

cause

of

allegations

claim").

action,

statements, do not suffice."

for

"Threadbare

supported

by

each

essential

recitals

mere

of

the

conclusory

Iqbal, 566 U.S. at 678-79.

Stated

another way. Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."

Id. at 678.

The pleadings of a pro se plaintiff "are held to a less

stringent standard than pleadings drafted by attorneys and will.

therefore, be liberally construed."

Tannenbaum v. United States,

148 F.3d 1262, 1263 (ll^h cir. 1998).

"This leniency, however,

does not require or allow courts to rewrite an otherwise deficient
pleading in order to sustain an action."

Thomas v. Pentagon Fed.

Credit Union, 393 F. App'x 635, 637 (llth cir. 2010).

II.

PLAINTIFF'S COMPLAINT

When considering a motion to dismiss, all facts set forth in
the plaintiff's complaint "are to be accepted as true and the court
limits its consideration to the pleadings and exhibits attached

thereto."
1993).

GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 {11^^ Cir.

In the instant case. Plaintiff attached to her complaint

the decision of the United States Equal Employment Opportunity
Commission, dated November 29, 2017, to affirm the Department of

Veterans Affairs final order granting summary judgment in favor of

Plaintiff's

employer

on

her

discrimination and reprisal.

claims

of

race

and

disability

(See Attachment to Compl., Doc. No.

1 (hereinafter "EEOC Decision Letter").)

Thus, for purposes of

setting forth the factual background of Plaintiff's case and the
allegations

arising

therefrom,

the

Court

refers

only

to

Plaintiff's form complaint and the EEOC Decision Letter.

According to Plaintiff's complaint, she was employed by the
Carl Vinson VA Medical Center (the "VA") in Dublin, Georgia.

In

July or August 2012, Plaintiff applied for a Registered Nurse

position

advertised

709875-DP.

August

under

Vacancy

Announcement

Number

OA-12-

Plaintiff and two others applied for the position.

28,

2012,

the

three

applicants

were

referred

selecting official; however, no selection was made.

to

On

the

Rather, the

position was readvertised under Vacancy Announcement Number OA12-736830.

Plaintiff did not re-apply for the position, and the

VA chose another applicant.

In July or August 2012, Plaintiff applied for the position of

Supervisory Program Specialist which was advertised under Vacancy
Announcement Number OA-12-701395.
other

candidates

were

referred

On September 19, 2012, three
to

the

selection

panel.

The

position was filled from this list of candidates; thus. Plaintiff
did not get this position either.

On November 21, 2012, Plaintiff filed an EEO complaint in

which she alleged that the VA discriminated against her based on
her

race

(African

American),

disability

(major

depression/sarcoidosis), and in reprisal for prior protected EEO

activity when she was not hired for these two positions. Plaintiff
received a Notice of Right to Sue letter on December 9, 2017, and

timely filed the instant case.

As stated previously. Plaintiff

used a form Complaint for Employment Discrimination, on which she
checked the following boxes as bases for this Court's jurisdiction:
(1) Title VII of the Civil Rights Act of 1964, as codified, 42
U.S.C. §§ 2000e - 2000e-17 ("Title VII"); (2) Age Discrimination

in Employment Act of 1967, as codified, 29 U.S.C. §§ 621-634
("ADEA"); (3) Americans with Disabilities Act of 1990, as codified,
42 U.S.C. §§ 12112-12117 ("ADA"); and (4) Other - "Whistle Blower

Laws."i

(Doc. No. 1, Compl. at 3.)

III.

ANALYSIS

Defendant has moved to dismiss all of Plaintiff's claims,

contending that she failed to exhaust her administrative remedies
with respect to the ADEA and WPA claims, and that she failed to

allege sufficient facts to plausibly suggest that she is entitled
to relief on all of her claims.

A.

In

Failure to Exhaust the ADEA and WPA Claims

general,

where

a

plaintiff

is

required

to

exhaust

administrative remedies prior to bringing a federal lawsuit, the

scope of the judicial complaint is limited to the scope of the
investigation
("EEOC").

by

the

Equal

Employment

Opportunity

Commission

Thus, a plaintiff is precluded from pursuing any claims

in a federal lawsuit that are not "like or related" to the claims

asserted by the plaintiff in her EEOC charge, or that could not
reasonably be expected to arise during the course of the EEOC
investigation.

Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277,

1279-80 (11th cir. 2004).

1

Plaintiff is presumably referring to the federal Whistleblower

Protection Act ("WPA"), 5 U.S.C. § 2302(b)(8).

The ADEA requires an individual alleging age discrimination

in employment to exhaust the administrative remedies available
from the EEOC prior to filing suit in federal court.
626(d)(1).

In this case, Plaintiff's EEOC complaint does not

mention age discrimination.

and

"disability"

Moreover,

29 U.S.C. §

the

as
EEOC

the

Instead, she lists "race," "reprisal"

bases

Decision

of

her

discrimination

Letter

discrimination in its review of the merits.

never

claim.^

mentions

age

Also, while Plaintiff

checks the box listing the ADEA as a basis for this Court's

jurisdiction, she does not check the "age" box under the Statement
of Claim section, and in her factual background, she only mentions

race, disability and reprisal. Finally, Plaintiff does not mention
age discrimination in her responsive brief.

Upon the foregoing, the Court concludes that Plaintiff did
not intend to pursue a claim for age discrimination under the ADEA,

and in any event, any ADEA claim must be dismissed for failure to
exhaust administrative remedies.

The

Court now addresses Plaintiff's reference to "Whistle

Blower Laws" in her complaint.

The Whistleblower Protection Act

2 Defendant attaches Plaintiff's EEOC complaint to its motion to
dismiss. (Doc. No. 12-1.) Because Defendant has moved to dismiss
for failure to exhaust administrative remedies, matters outside of

the pleadings, such as an EEOC complaint, may be considered. See
Brady v. Postmaster General, U.S. Postal Serv., 521 F. App'x 914,
916 (11*^^ Cir. 2013) (quoting Bryant v. Rich, 530 F.3d 1368, 1376
(11th Cir. 2008)).

("WPA"), 5 U.S.C. § 2302(b)(8), provides protection to federal

employees against agency reprisal for whistleblowing activities,
such as disclosing illegal conduct, gross mismanagement, gross
waste of funds, or acts presenting substantial dangers to health

and

safety.

WPA

claims

are

considered

under

the

framework of the Civil Service Reform Act ("CSRA").

Snow, 2006 WL 288099 (ll^h cir. Feb. 8, 2006).

procedural
Hendrix v.

Thus, the CSRA

provides the exclusive remedy for claims brought pursuant to the
WPA.

Indeed, "'[u]nder no circumstances does the WPA grant the

district court jurisdiction to entertain a whistleblower cause of
action brought directly before it in the first instance.'"

Id. at

*8 (quoting Stella v. Mineta, 284 F.3d 135, 142 (B.C. Cir. 2002)).
In this case. Plaintiff has not alleged that she complied

with the procedures set forth in the CSRA.
relief

before

the

Office

of

Special

She has not sought

Counsel

(see

5

U.S.C.

§

1214(a)(3)), nor has the Office of Special Counsel investigated
the matter.

Instead, Plaintiff only filed a claim with the EEOC.

In her EEOC claim. Plaintiff did not contend or state facts to

support a claim that she did not get a promotion due to the VA's
reprisal for whistleblowing activities.

In fact. Plaintiff has

not alleged that she engaged in any conduct that would constitute
a whistleblowing activity.

Finally, Plaintiff does not mention

the WPA or whistleblowing activities in her responsive brief.

Upon the foregoing, the Court concludes that Plaintiff did
not intend to pursue a claim under the WPA, and in any event, any
WPA claim must be dismissed for failure to exhaust administrative
remedies.

B.

Title VII Race Discrimination

In the absence of direct evidence of racial discrimination,^

a plaintiff must allege facts sufficient to show a prima facie
case

of

racial

framework, to wit:

discrimination

under

the

McDonnell

Douglas'^

(1) that she is a member of a protected class,

(2) that she was qualified for the position; (3) that she suffered
an adverse employment action; and (4) that she was treated less

favorably than a similarly situated person outside of her protected
class.

See, e.g., Flowers v. Troup Cnty., 803 F.3d 1327, 1336

(11th cir. 2015).

The McDonnell Douglas framework, however, is an evidentiary

standard, not a pleading requirement.

Thus, a Title VII complaint

need not allege specific facts sufficient to establish a prima
facie case, but "must provide 'enough factual matter (taken as

true) to suggest' intentional [race] discrimination."

Castillo v.

Allegro Resort Marketing, 603 F. App'x 913, 917 (11th cir. 2015)

3 Plaintiff pled no facts that would constitute direct evidence of
discrimination.

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
a

Cir. 2008)) (emphasis added); see also Andrews v. City of Hartford,
700 F. App'x 924, 926 (11^^ Cir. 2017) ("[A] complaint must allege
sufficient

facts

to

allow

the

court

to

draw

the

reasonable

inference that the employer engaged in discrimination.").
In this case, Plaintiff has alleged that she was black and

that she was not hired for two positions, thus satisfying the first
and third elements.

However, she has not alleged that she was

qualified for the positions or that a similarly-situated, nonblack individual was selected or treated more favorably.

The

entirety of the statement of facts in Plaintiff's complaint are:
On Nov. 21, 2012, I filed an EEC complaint in which [I]
alleged that the Agency discriminated against [me] on
the bases of race (Black), disability and in reprisal
for prior protected EEC activity when 1. On August 28,
2012 [I] was referred but not selected for the position
of Registered Nurse (Wound Care) . . .; and 2. On Sept.
19, 2012, [I] was not referred for the position of
Supervisory Program Specialist . . . .
(Doc. No. 1, at 4-5.)

These facts do not address the other two

elements - qualification and comparators.
While

the

EEOC

Decision

Letter

attached

to

Plaintiff's

complaint provides more factual content, it does not cure the
inadequacies of Plaintiff's pleading.

Indeed, the stated facts of

the EEOC Decision Letter actually cut against any claim

Plaintiff was discriminated against.

that

It points out that Plaintiff

did not even apply for the readvertised position of Registered
Nurse (EEOC Decision Letter, at 5); thus. Plaintiff can hardly be

similarly situated to the applicant who was hired.

There is also

a statement indicating that Plaintiff may not have been qualified

for the

Registered

Nurse

position in

that none of

the

three

referred applicants (including Plaintiff) were selected because

they lacked wound care experience on their applications.

(Id.)

As to the second position, Supervisory Program Specialist, the
only statement respecting qualification remarks that Plaintiff was
not

referred

because

"she

was

not

listed

on

the

internal

certification list, and under the local American Federation of

Government
required

Employees

to

Plaintiff

review

has

not

(AFGE)

master

internal
alleged

agreement,

candidates

sufficient

first."

facts

to

management
(Id.)
show

is

Thus,
she

was

qualified for each position, and she has not identified any
specific

comparator

she

contends

was

treated

differently

or

presented any facts indicating how that individual is similarly
situated.5

The only other factual allegations in the EEOC Decision Letter

potentially relevant to a claim of racial discrimination are
statements attributed to Plaintiff through the EEOC investigation.
The EEOC Decision Letter reports that Plaintiff complained "that

5
The Court notes that Plaintiff provides more specific facts
regarding her qualifications, the selection process, and the

people involved therein in her responsive brief to the motion to
dismiss.
The Court cannot consider these facts because they are
matters outside of the pleadings.
10

the Selecting Official saw her application and threw it into the
trash . . . .

[Plaintiff] thought that race was a factor in her

nonselection because management ran the [VA] *like a plantation,
'

and Caucasian nurses get to do their jobs by 'sitting down or
carrying a pad around and checking things, while African-American
'

nurses are responsible for patient care and work with medicine
carts."

(Id. at 2-3.)

Plaintiff also made the blanket assertion

that "management is racist."

(Id. at 3.)

These allegations,

however, are mere labels and conclusions and thus, do not suffice

to state a plausible claim for relief.

See Iqbal, 556 U.S. at 678

("A pleading that offers 'labels and conclusions' . . . will not
do.

Nor

does

a

complaint

suffice

if

it

tenders

'naked

assertion[s]
' devoid of 'further factual enhancement.'" (quoting
Twombly, 550 U.S. at 55, 557)); see also Gadling-Cole v. Lagory,

2015 WL 1268018 (N.D. Ala. Mar. 19, 2015) (in granting a motion to

dismiss,

concluding

that the

plaintiff's "bare

statement that

'other employees' received more favorable treatment is the type of
conclusory allegation that 'epitomizes speculation and therefore
does not amount to a short and plain statement of [her] claim under
Rule 8(a)'" (quoted source omitted)).

The factual allegations in the complaint and the EEOC Decision
Letter are insufficient to allow the Court to infer that Plaintiff

was not hired for either position because of her race.

11

In short.

Plaintiff has failed to allege a plausible claim of disparate
treatment, and her claim of race discrimination must be dismissed.
C.

Title VII Retaliation Claim

To plausibly state a claim for retaliation under Title VII,

a plaintiff must show that (1) she engaged in statutorily protected

activity, (2) she suffered an adverse employment action, and (3)
there is some causal connection between the two events.

McCann v.

Tillman, 526 F,3d 1370, 1375 (11^^ cir. 2008); Hopkins v. Saint

Lucie Cnty. Sch. Bd., 399 F. App'x 563, 566 (11*^^ Cir. 2010).

consideration of

the

In

complaint and the EEOC Decision Letter,

Plaintiff has failed to allege any facts that would show that she

had engaged or was engaging in a statutorily protected form of

expression

when

she

was

turned

down

for

either

position.

Plaintiff's EEOC complaint was filed in November 2012, after the

two

positions

had

been

filled.

Accordingly,

Plaintiff's

conclusory claim of "reprisal" is unsupported by any factual
allegations and must be dismissed.
D.

The Disability Claim

Plaintiff checks the "ADA" box on her complaint indicating

that she intends to pursue a disability discrimination claim.
also mentions disability discrimination with the EEOC.

She

However,

a disability discrimination claim by a federal employee must be
brought under the Rehabilitation Act.

12

29 U.S.C. § 791.

A plaintiff shows a prima facie case of discrimination under
the Rehabilitation Act by showing that (1) she has a disability,
(2) is otherwise qualified for the position, and (3) was subjected
to unlawful discrimination because of that disability.

Lader,

185

F.3d

1203,

1207

(11^^ cir.

1999).

As

Sutton v.

previously

explained. Plaintiff has failed to allege sufficient facts to show

that she was qualified for either position for which she applied.
Moreover, Plaintiff has wholly failed to allege facts that would
indicate that her disability played any role in the decision not
to

hire

her

determinative

for

either

factor.

position,

See

let

Andrews,

alone

700

F.

that

it

was

a

App'x

at

926-27

(affirming district court's dismissal of an ADA claim because the

plaintiff did not allege that his disability was a "determinative
factor"

in

the

city's

decision

to

fire

him).

A

conclusory

statement that Plaintiff was not hired because of her disability
is not sufficient to state a discrimination claim. See id. at 927

(dismissing the plaintiff's ADA claim because he failed to allege

plausible facts concerning the officials who made the decision and
their motives, how his disability was a determinative factor in

the decision, or "any other facts giving rise to an inference of

disability discrimination").
discrimination

claim

under

Accordingly, Plaintiff's disability
the

dismissed.

13

Rehabilitation

Act

must

be

IV.

CONCLUSION

Upon the foregoing, Defendant's motion to dismiss (doc. no.
12)

is

GRANTED

whistleblower

IN

PART.

claims

Plaintiff's

are

dismissed

age

for

discrimination

failure

to

and

exhaust

administrative remedies.

The Court also concludes that Plaintiff has failed to state

a claim for race discrimination, disability discrimination, or

reprisal.
Federal

Thus, these claims are due to be dismissed pursuant to

Rule

of

Civil

Procedure

12(b)(6).

Nevertheless,

the

Eleventh Circuit has counseled that when "a more carefully drafted

complaint might state a claim, a plaintiff must be given at least
one

chance

to

amend

the

complaint

before

dismisses the action with prejudice."
1161, 1163 (11^1^ Cir. 2001).

the

district

court

Bryant v. Dupree, 252 F.3d

Here, Plaintiff has not previously

amended her complaint, and it cannot be said that any attempt to

do so with respect to her claims of race discrimination, disability
discrimination, and reprisal would be futile.

Thus, Plaintiff

will be given one opportunity to amend her complaint in a manner
that comports with the pleading requirements set forth above.
Should Plaintiff wish to pursue this case, IT IS ORDERED
that

she

shall

amend

her

complaint

to

include

all

of

her

allegations in one document, within twenty-one (21) days of the
date of this Order.

Plaintiff's amended complaint MUST comply

with the following instructions.
14

The amended complaint must be printed legibly so the Court
may

discern

replace

Plaintiff's

in

Plaintiff.

its

claims,

entirety

the

and

it

previous

will

supersede

pleading

filed

and
by

See Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194,

1202 (11'^'^ Cir, 2011); Lowery v. Ala. Power Co., 483 F.3d 1184,

1219

(ll*^*^ Cir.

2007) ("an amended complaint supersedes the

initial complaint and becomes the operative pleading in the
case").

The amended complaint should clearly set forth which

causes of action or "counts" (race discrimination, disability

discrimination, and/or reprisal) Plaintiff is pursuing.

The

amended complaint must contain sequentially numbered paragraphs
containing only one act of misconduct or factual allegation per
paragraph.
Plaintiff

is

cautioned

that

she

must

avoid

conclusory

allegations; she must state specific facts that support her
claims.

In

discriminated
discrimination

particular,
against
she

if

her,

contends

she

she

alleges

must

occurred;

state
who

that

Defendant

what

acts

engaged

in

of
the

discriminatory acts and when; and the facts she contends support
her

belief

that

the

acts

was

taken

because

characteristic such as race or disability.

of

a

protected

If Plaintiff alleges

that Defendant retaliated against her, she must identify the

statutorily protected activity she engaged in; when she engaged
15

in the protected activity; to whom she voiced her complaint and
the form of her complaint; the acts of retaliation (when they
occurred and who took them); and facts to support her belief
that the acts were taken because she engaged in statutorily

protected activity.

While Plaintiff may attach exhibits to her

amended complaint, she shall not incorporate them by reference

as a means of providing the factual basis for her complaint.^
Plaintiff is further cautioned that no portion of any prior

pleading (including her response to the motion to dismiss and
original

complaint)

shall

complaint by reference.

be

incorporated

into

her amended

Moreover, Plaintiff shall submit only

one amended complaint in accordance with the terms of this
Order.

Therefore, Plaintiff shall state in the single amended

complaint filed in accordance with the terms of this Order all
claims she wishes the Court to consider as a basis for awarding
the relief sought.
Plaintiff

is

DIRECTED

to

file

and

serve

her

amended

complaint on Defendant no later than twenty-one (21) days from
the date of this Order.

If Plaintiff does not file a timely

amended complaint, the Court will assume that she does not wish

6 For example. Plaintiff should not simply state, "See attached
documents."
16

to prosecute the case, and the case will be dismissed without
further notice.

ORDER ENTERED at Augusta, Georgia, this 9^^ day of October,
2018.

UNITE

17

JUDGE