Dettrich v. Department of Veterans Affairs

Filing 34

MEMORANDUM AND ORDER Granting in Part and Denying in Part 29 Defendant's Motion to Dismiss. Defendant's request to strike portions of the FAC is Denied. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF IDAHO

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----oo0oo----

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LAURIE DETTRICH, an individual,

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Plaintiff,

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NO. CIV. 1:10-434 WBS
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

v.
ERIC K. SHINSEKI, Secretary,
United States Department of
Veterans Affairs,
Defendant.
/

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----oo0oo---Plaintiff Laurie Dettrich brought this action against

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defendant Eric R. Shinseki, Secretary of the United States

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Department of Veterans Affairs, alleging disability

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discrimination and failure to accommodate under the

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Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794f, wrongful

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discharge, intentional and/or negligent infliction of emotional

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distress, and breach of the implied covenant of good faith and

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fair dealing.

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Amended Complaint (“FAC”) for lack of subject matter jurisdiction

Defendant now moves to dismiss plaintiff’s First

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pursuant to Federal Rule of Civil Procedure 12(b)(1) and for

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failure to state a claim pursuant to Rule 12(b)(6).

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also requests that the court strike portions of the FAC pursuant

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to Rule 12(f).

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I.

Defendant

Factual and Procedural Background

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On June 22, 2008, plaintiff was hired as a staff nurse

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at the VA Medical Center (“VAMC”) in Boise, Idaho.

(FAC ¶ 10

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(Docket No. 27).)

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plaintiff served for twenty years as a Registered Nurse in the

Prior to her employment with the VAMC,

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United States Air Force.

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service, plaintiff suffered a traumatic brain injury, which

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resulted in her honorable discharge from the military and

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allegedly substantially limits her major life activities.

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¶¶ 8-9.)

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preclude her from working as a Registered Nurse and performing

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all essential functions of her job at the VAMC with or without

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reasonable accommodation.

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(Id. ¶ 6.)

During her military

(Id.

Plaintiff alleges that her injury did not, however,

(Id. ¶¶ 8, 22.)

When the VAMC hired plaintiff, it was allegedly aware

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of her disability.

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questioned plaintiff about her disability prior to and during her

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employment interview.

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(Id. ¶ 11).

Additionally, the VAMC allegedly

(Id.)

Plaintiff avers that beginning in November of 2008, she

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was subjected to a hostile work environment and retaliation.

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(Id. ¶ 18.)

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March of 2009 and continued throughout the remainder of her

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employment with the VAMC.

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contributing to the environment included: an “intervention” by

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co-workers, wherein plaintiff was subject to various criticisms;

The hostility and retaliation allegedly escalated in

Plaintiff avers that incidents

(Id.)

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circulation of rumors by plaintiff’s co-workers concerning

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plaintiff’s psychological state, personal relationships, and

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medical records; and false allegations concerning plaintiff’s

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work habits, which purportedly resulted in a reprimand by

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plaintiff’s supervisor, Molly Kusik.

(Id.)

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On April 21, 2009, plaintiff allegedly sought

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accommodation of her disability by requesting reassignment to the

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Women’s Health Veteran Program (“WHVP”).

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sought reassignment because she was the sole Registered Nurse

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serving on her team at the time, which allegedly precluded her

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from conferring with other licensed professionals and provided no

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back-up support when she was out of the office for medical

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appointments.

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would not have required her to perform tasks that required a

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second licensed professional’s opinion and would not have

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required a replacement nurse when plaintiff was absent for

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medical appointments.

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for reassignment.

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with the Equal Employment Opportunity Commission (“EEOC”),

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seeking assistance with the VAMC’s denial of plaintiff’s request

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for accommodation.

(Id.)

(Id. ¶ 13.)

Plaintiff

Plaintiff alleges that the WHVP position

(Id.)

(Id.)

The VAMC denied plaintiff’s request

That same day, plaintiff filed a report

(Id. ¶ 14.)

On June 3, 2009, plaintiff made a second request for

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reassignment and also requested a part-time schedule.

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16.)

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documentation from plaintiff, the VAMC “ignored” plaintiff’s

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request.

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(Id. ¶

After allegedly requesting and receiving supplemental

(Id.)
Later that month, plaintiff suspected unauthorized

access of her personal medical records and requested a list of
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all individuals with access to them.

(Id. ¶ 17.)

From this

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list, plaintiff allegedly became aware that fellow VAMC employees

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had accessed the records without proper authorization. (Id.)

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On June 19, 2009, plaintiff was subject to a

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Professional Standards Board review, which allegedly arose from

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false allegations made in a Proficiency Report by plaintiff’s

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supervisor and a medical assistant.

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review, the Board recommended accommodations for plaintiff,

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including a “Performance Improvement Plan” and temporary

(Id. ¶ 19.)

Following the

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reassignment to a separate department with a second Registered

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Nurse on duty.

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the Board’s recommendation and instead placed plaintiff on

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“authorized absence status,” ultimately terminating her

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employment.

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(Id. ¶ 20.)

The VAMC allegedly did not follow

(Id. ¶ 21.)

Defendant originally moved to dismiss plaintiff’s

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Complaint on January 7, 2011.

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subsequently filed her FAC, which directly responded to some of

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the alleged deficiencies set forth in defendant’s motion.

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(Docket No. 23.)

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plaintiff’s FAC on May 31, 2011, incorporating by reference the

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entire January 7 motion and asserting no new arguments in favor

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of dismissal.

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II.

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(Docket No. 5.)

Plaintiff

Defendant filed the instant motion to dismiss

Discussion
A.

Motion to Dismiss
On a motion to dismiss for lack of subject matter

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jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1),

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the plaintiff bears the burden of establishing a jurisdictional

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basis for her claim.

Kokkonen v. Guardian Life Ins. Co. of Am.,
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511 U.S. 375, 377 (1994).

Because “[f]ederal courts are courts

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of limited jurisdiction” that “possess only that power authorized

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by Constitution and statute,” id., a court must dismiss claims

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over which it has no jurisdiction.

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The court is presumed to lack jurisdiction unless the contrary

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appears affirmatively from the record.

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Cuno, 547 U.S. 332, 342 n.3 (2006).

Fed. R. Civ. P. 12(h)(3).

DaimlerChrysler Corp. v.

On a motion to dismiss for failure to state a claim

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upon which relief may be granted pursuant to Rule 12(b)(6), the

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court must accept the allegations in the complaint as true and

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draw all reasonable inferences in favor of the plaintiff.

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto,

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405 U.S. 319, 322 (1972).

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complaint must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its

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face.’”

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1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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1.

Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937,

Disability Discrimination and Failure to
Accommodate Claims under the Rehabilitation Act

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“To survive a motion to dismiss, a

Defendant seeks dismissal of plaintiff’s claims for

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disability discrimination and failure to accommodate.

In

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plaintiff’s original Complaint, she sought to bring these claims

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under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

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12101-12183.

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dismissal on the ground that the Rehabilitation Act provides

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plaintiff’s exclusive remedy for discrimination.

Defendant’s January 7 motion to dismiss sought

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On May 26,

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2011, plaintiff amended her complaint, alleging these claims

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under the Rehabilitation Act and omitting all reference to the

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ADA.

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incorporated the January 7 motion in its entirety, but asserted

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no new arguments supporting dismissal of plaintiff’s disability

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discrimination or failure to accommodate claims.

When defendant filed the instant motion to dismiss, he

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Because the instant motion offers no new arguments in

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support of dismissal and because plaintiff’s FAC, the operative

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complaint, asserts claims under the Rehabilitation Act rather

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than the ADA, defendant’s motion to dismiss plaintiff’s claims

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for disability discrimination and failure to accommodate will be

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denied.

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2.

State Law Claims

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Plaintiff, as a former federal employee, attempts to

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bring several state law claims against her employer.

As a

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preliminary matter, the court notes that agencies of the United

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States cannot be sued unless Congress expressly waives sovereign

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immunity.

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Though the Federal Tort Claims Act (28 U.S.C. § 1346(b)) serves

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as a limited waiver of the United States’ sovereign immunity, the

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Supreme Court has made clear that statutes governing federal

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employment significantly restrict a plaintiff’s ability to bring

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employment-related suits.

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2d 1057, 1061 (E.D. Mo. 1999) (“Generally, . . . federal

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employees are barred from bringing claims against the government

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when the claims ‘arise out of an employment relationship that is

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governed by comprehensive procedural and substantive provisions

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giving meaningful remedies against the United States.’”) (quoting

United States v. Dalm, 494 U.S. 596, 608 (1990).

Biermann v. United States, 67 F. Supp.

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Bush v. Lucas, 462 U.S. 367, 368 (1983)).

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Specifically, a federal employee must pursue

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employment-related claims under the Civil Service Reform Act of

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1978 (“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111 (codified in

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scattered sections of 5 U.S.C.), personal injury claims under the

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Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101-

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8193, and disability discrimination claims under the

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Rehabilitation Act.1

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States, 460 U.S. 190, 193-94 (1983) (FECA “was designed to

See Lockheed Aircraft Corp. v. United

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protect the Government from suits under statutes, such as the

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Federal Tort Claims Act, that had been enacted to waive the

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Government’s sovereign immunity.”); Mangano v. United States, 529

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F.3d 1243, 1246 (9th Cir. 2008) (“[W]here Congress has provided a

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process[, the CSRA,] for processing prohibited personnel

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practices, other potential employee remedies are preempted.”);

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Spence v. Straw, 54 F.3d 196, 197 (3d Cir. 1995) (The

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Rehabilitation Act “is the exclusive means by which a plaintiff

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may raise claims against federal agencies relating to handicap

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discrimination.”).
a.

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Wrongful Discharge Claim

Plaintiff’s third cause of action seeks relief for

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wrongful discharge under state law.

In Idaho, an employer may be

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liable for the wrongful termination of an employee if such

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When asked at oral argument whether plaintiff could
cite any case in which a claimant was able to bring suit against
a federal employer for state tort claims arising in the
employment context, plaintiff cited only one First Circuit
decision: Ellenwood v. Exxon Shipping Co., 984 F.2d 1270 (1st
Cir. 1993). The defendant in Ellenwood, however, was not an
agency or department of the government – it was a government
contractor.
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termination contravenes public policy.

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Lumber Prods., 139 Idaho 172, 176 (2003).

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derives from the state constitution and statutes.

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Idaho, 139 Idaho 615, 621 (2004).

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terminated her employment based on her disability, which was a

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violation of public policy because it violated the Rehabilitation

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Act.

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policy other than those alleged in her Rehabilitation Act claims.

(FAC ¶ 39.)

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Edmondson v. Shearer
Idaho public policy
Mallonee v.

Plaintiff avers that the VAMC

She does not allege any violations of public

As explained above, the Rehabilitation Act is the

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exclusive remedy for disability discrimination claims by federal

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employees.

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1989), abrogated on other grounds by Irwin v. Dep’t of Veterans

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Affairs, 498 U.S. 89 (1990).

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Inc., 554 F. Supp. 2d 1165, 1185 (D. Idaho 2008) (“[S]tatutory

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remedies under the ADA for the same allegations asserted within a

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wrongful discharge claim necessarily preclude the latter,

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separate, duplicative claim.”).

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for wrongful discharge will be dismissed.

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See Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir.

b.

Cf. McWilliams v. Latah Sanitation,

Accordingly, plaintiff’s claim

Negligent and/or Intentional Infliction of

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Emotional Distress Claim

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i.

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CSRA

The CSRA “governs the relationship between the federal

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government and its employees.”

Sculimbrene v. Reno, 158 F. Supp.

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2d 1, 5 (D.D.C. 2001).

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intended to balance the right of federal employees to obtain

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redress for employment-related grievances against the interest in

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promoting an efficiently run civil service,” Lehman v. Morrissey,

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779 F.2d 526, 527 (9th Cir. 1985), and “offers an administrative

The Act “provides a comprehensive scheme

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remedy to federal employees who allege prohibited personnel

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practices.”

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1991).

Saul v. United States, 928 F.2d 829, 833 (9th Cir.

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The remedies provided under the CSRA are “the

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comprehensive and exclusive procedures for settling work-related

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controversies between federal civil service employees and the

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federal government.”

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Tex. 1994).

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based on prohibited personnel practices covered by the Act.

Ross v. Runyon, 858 F. Supp. 630, 635 (S.D.

Thus, the CSRA preempts those common law tort claims

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Saul, 928 F.2d at 841-43 (state law tort claims were preempted by

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CSRA in order to “prevent them from conflicting with the remedial

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system that Congress prescribed for federal employees”).

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The “prohibited personnel practices” of the CSRA

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include taking “personnel action[s]” that discriminate “for or

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against any employee or applicant for employment . . . on the

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basis of a handicapping condition, as prohibited [by] the

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Rehabilitation Act of 1973.”2

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5 U.S.C. § 2302(b)(1)(D).

Plaintiff asserts that her emotional distress claim is

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based on conduct outside the ambit of CSRA protection:

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“co-workers accessing her private psychiatric records and

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disseminating such information amongst the staff; co-workers

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holding an ‘intervention’ with Dettrich to criticize her for

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forgetting things and making mistakes; co-workers making a number

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of false allegations regarding Plaintiff’s work habits; and

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The CSRA expressly preserves a federal employee’s right
of action under various antidiscrimination statutes, including
the Rehabilitation Act. 5 U.S.C. § 2302(d). Plaintiff’s
Rehabilitation Act claims set forth in counts one and two of the
FAC are thus not preempted by the CSRA. See id. § 2302(d)(4).
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inappropriate questions asked during Dettrich’s interview

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process.”

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No. 13).)

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(Pl.’s Resp. to Def.’s Mot. to Dismiss at 10 (Docket

Each of the allegations, however, falls well within the

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scope of the CSRA.

The “intervention” at issue, dissemination of

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confidential information contained in personnel records,

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purportedly wrongful questioning during an interview, and false

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allegations regarding plaintiff’s work habits which, according to

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plaintiff’s FAC, resulted in a reprimand by plaintiff’s

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supervisor and a subsequent Professional Standards Board review,

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are covered by several of the CSRA’s definitions of “personnel

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action”: (1) a disciplinary or corrective action; (2) a

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performance evaluation; or (3) any other significant change in

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duties, responsibilities, or working conditions.

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2302(a)(2)(A); see also Saul, 928 F.2d at 834 (rejecting “cramped

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construction of ‘personnel action’”).

5 U.S.C. §

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Plaintiff also attempts to avoid CSRA preemption by

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arguing that her emotional distress arose from the conduct of

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co-workers rather than a supervisor.

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to Dismiss at 9-10.)

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committed by “[a]ny employee who has authority to take, direct

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others to take, recommend, or approve any personnel action.”

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U.S.C. § 2302(b).

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broadly, and a claim does not escape application of the CSRA

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simply by virtue of the fact that an unlawful act was committed

(Pl.’s Resp. to Def.’s Mot.

Prohibited personnel practices may be

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The Ninth Circuit interprets this definition

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by a subordinate employee rather than a supervisor.3

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Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005).

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plaintiff’s allegations regarding her co-workers’ actions fall

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within the definition of prohibited personnel practices, the CSRA

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preempts state law tort claims based on those allegations.

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See
Because

Because the CSRA preempts plaintiff’s intentional

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and/or negligent infliction of emotional distress claim, this

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court lacks subject matter jurisdiction over the claim.

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Saul, 928 F.2d at 843 (CSRA preempts intentional infliction of

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emotional distress claim); Lehman, 779 F.2d at 526-28 (same).

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Accordingly, plaintiff’s emotional distress claim will be

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dismissed.

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ii.

See

FECA

To the extent that plaintiff’s claim may not properly

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be categorized as a personnel action under the CSRA, FECA

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provides the exclusive remedy for federal employees injured

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during the course of their employment.

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v. United States, 557 F.2d 204, 207 (9th Cir. 1977).

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claim falls within the purview of FECA coverage, a district court

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lacks jurisdiction to hear the claim.

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Sheehan v. United States, 896 F.2d 1168, 1174 (9th Cir. 1990).

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5 U.S.C. § 8116(c); Reep
Where a

5 U.S.C. § 8116(c);

Injured employees must pursue their administrative
remedies under FECA unless their injuries are clearly not covered

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Notably, plaintiff’s former supervisor was directly
involved in three of the four incidents that allegedly resulted
in plaintiff’s emotional distress. (Compare Pl.’s Resp. to
Def.’s Mot. to Dismiss at 10 (setting forth the actions on which
plaintiff’s claim is based) (Docket No. 13), with FAC ¶¶ 11, 1819 (naming plaintiff’s former supervisor, Molly Kusik, in several
incidents).)

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by FECA.

Reep, 557 F.2d at 208.

If a plaintiff has already

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filed suit in district court and a substantial question as to

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FECA coverage exists, the district court will generally stay the

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action pending a determination by the Secretary of Labor.

Id.

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The Ninth Circuit has held that emotional or

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psychological injuries divorced from any claim of physical harm

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are not cognizable under FECA.

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Where, however, a plaintiff brings a claim for psychological harm

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resulting in physical injury, the claim falls within FECA’s

Sheehan, 896 F.2d at 1174.

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scope.

Moe v. United States, 326 F.3d 1065, 1069 (9th Cir.

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2003); see also Figueroa v. United States, 7 F.3d 1405, 1408 (9th

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Cir. 1993) (possible claim under FECA where emotional injuries

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were “tied to physical harm”).

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Here, plaintiff alleges her emotional distress resulted

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in “extreme stress and anxiety/panic attacks, depression, loss of

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sleep, headaches, paranoia, difficulties with focus and

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concentration, and further reduction in her cognitive abilities.”

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(FAC ¶ 43.)

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and eligible for redress under FECA is a determination that must

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be made by the Secretary of Labor before this court may exercise

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jurisdiction over plaintiff’s emotional distress claim.

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Newsome v. United States, No. CV-F-04-5335 LJO, 2006 WL 1153609,

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at *4 (E.D. Cal. Apr. 28, 2006).

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was not preempted by the CSRA, plaintiff’s claim would be

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dismissed or stayed pending administrative review.

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F.2d at 208.

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Whether plaintiff’s symptoms are physical injuries

c.

See

Thus, even if plaintiff’s claim

See Reep, 557

Breach of Implied Covenant of Good Faith and
Fair Dealing Claim
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The Tucker Act, 28 U.S.C. § 1491, grants the United

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States Court of Federal Claims jurisdiction “to render judgment

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upon any claim against the United States founded upon . . . any

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express or implied contract with the United States . . . .”

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U.S.C. § 1491(a)(1).

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exclusive jurisdiction of claims arising under the Tucker Act in

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excess of $10,000.”4

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F.3d 907, 927 (9th Cir. 2009).

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“The Court of Federal Claims possesses

United States v. Park Place Assocs., 563

This court thus lacks jurisdiction over contract-based

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claims against the United States.

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Dynamics Corp., 136 F.3d 641, 646-47 (9th Cir. 1998).

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implied covenant of good faith and fair dealing is a covenant

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implied in law in the parties’ contract.

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Spring-Wareham, LLC, 141 Idaho 185, 192 (2005).

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implied covenant results in contract damages, not tort damages.

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Id.

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covenant of good faith and fair dealing must be dismissed for

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lack of subject matter jurisdiction.

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v. United States, 88 Fed. Cl. 688, 703-04 (Fed. Cl. 2009) (Court

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of Federal Claims has jurisdiction over claim for breach of

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covenant of good faith and fair dealing).

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Tuscon Airport Auth. v. Gen.
The

Bakker v. Thunder
Breach of the

Accordingly, plaintiff’s claim for breach of the implied

B.

See Kenney Orthopedic, LLC

Defendant’s Request to Strike Portions of Plaintiff’s
FAC

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A separate provision confers on district courts
concurrent jurisdiction over claims against the United States for
less than $10,000. 28 U.S.C. 1346(a)(2). Plaintiff may satisfy
this provision and obtain jurisdiction over her contract claim in
this court by waiving her right to receive more than $10,000.
Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 986 (9th Cir.
2006), readopted on reh’g, 540 F.3d 916, 929 (9th Cir. 2008).

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Defendant’s motion to dismiss includes requests to

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strike various portions of plaintiff’s FAC pursuant to Rule 12(f)

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and to “dismiss” specific paragraphs pursuant to Rules 12(b)(6)

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and 8(a).

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strike.

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The court will treat these requests as a motion to

Motions to strike are governed by Federal Rule of Civil

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Procedure 12(f), which allows the court to “strike from a

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pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f).

The

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purpose of the rule is to avoid the costs that accompany

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litigating spurious issues by dispensing with those issues prior

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to trial.

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(9th Cir. 1983).

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disfavor and are not frequently granted.

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pleading under attack in the light more favorable to the

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pleader.”

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1:08-CV-1924 AWI SMS, 2009 WL 2982900, at *23 (E.D. Cal. Sept.

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14, 2009) (citation omitted).

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appropriate and well-founded, Rule 12(f) motions often are not

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granted in the absence of a showing of prejudice to the moving

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party.”

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1649911, at *1 (E.D. Cal. June 1, 2007).

Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885
“Motions to strike are generally viewed with
Courts must view the

Garcia ex rel. Marin v. Clovis Unified Sch. Dist., No.

“[E]ven when technically

Hernandez v. Balakian, No. CV-F-06-1383 OWW DLB, 2007 WL

Defendant requests that the following allegations in

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the FAC be stricken: (1) references to alleged wrongful conduct

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that occurred prior to March 7, 2009;5 (2) descriptions of

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A plaintiff seeking redress under the Rehabilitation
Act must exhaust her available administrative remedies within
forty-five days of the claimed wrongful act. 29 C.F.R. §
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plaintiff’s disability as “perceived” or “as-regarded”;6 and (3)

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references to retaliation, the Family Medical Leave Act (“FMLA”),

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and the Health Insurance Portability and Accountability Act

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(“HIPAA”).7

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The court is not convinced that inclusion of these

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allegations is redundant, immaterial, impertinent, or scandalous.

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Simply because a particular word, phrase, or fact in a complaint

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might not entitle plaintiff to recover does not bar plaintiff

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from asserting additional historical or background information.

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Accordingly, the court will deny defendant’s motion to strike

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these allegations.

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IT IS THEREFORE ORDERED that:

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(1) Defendant’s motion to dismiss be, and the same hereby

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is, DENIED as to plaintiff’s claims for disability discrimination

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and failure to accommodate under the Rehabilitation Act, and

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GRANTED as to plaintiff’s claims for wrongful discharge,

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intentional and/or negligent infliction of emotional distress,

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and breach of implied covenant of good faith and fair dealing;

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and

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(2) Defendant’s request to strike portions of the FAC be,

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1614.105(a). Plaintiff’s first alleged contact with the EEOC
occurred on April 21, 2009, forty-five days after March 7, 2009.
(FAC ¶ 14.)

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In the Ninth Circuit, there is no duty to accommodate
an employee who is merely “regarded” as having a disability.
Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir.
2003). Plaintiff has also alleged, however, that defendant knew
that she was disabled. (See FAC ¶ 11.)
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Plaintiff does not bring an independent cause of action
for retaliation or violations of the FMLA or HIPAA.
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and the same hereby is, DENIED.

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DATED:

July 26, 2011

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