Bejar v. Department of Veteran Affairs
Filing
56
MEMORANDUM AND ORDER granting 19 Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. Signed by District Judge Daniel D. Crabtree on 7/18/2014. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSE M. BEJAR,
Plaintiff,
vs.
Case No. 13-2222-DDC-GLR
SLOAN D. GIBSON,
SECRETARY OF UNITED STATES
DEPARTMENT OF VETERANS
AFFAIRS,1
Defendant.
___________________________________
MEMORANDUM AND ORDER
Plaintiff brings this employment discrimination and retaliation action against his
employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter
comes before the Court on defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint
(Doc. 19). Defendant argues that the Court must dismiss plaintiff’s First Amended Complaint
because it lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and fails to state a
claim under Fed. R. Civ. P. 12(b)(6). After considering the arguments made by both parties, the
Court grants defendant’s Motion to Dismiss.
I.
Background
The following facts are taken from plaintiff’s First Amended Complaint and viewed in
the light most favorable to him. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (“We
accept as true all well-pleaded factual allegations in the complaint and view them in the light
1
On May 30, 2014, Sloan D. Gibson became Acting Secretary of the Department of
Veterans Affairs and is automatically substituted for his predecessor, Eric K. Shinseki, as the
proper defendant in this action. Fed. R. Civ. P. 25(d).
1
most favorable to the [plaintiff].”) (quotation omitted). The Court notes that defendant’s motion
cites to factual allegations contained in plaintiff’s original Complaint. But “it is well established
that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”
Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (quotation omitted); see also 6
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1476
(3d ed. 2010) (“A pleading that has been amended . . . supersedes the pleading it modifies . . . .
Once an amended pleading is interposed, the original pleading no longer performs any function
in the case.”) The Tenth Circuit has explained that once an amended complaint is filed, it is
proper for the district court to limit its examination only to the claims that are included in the
amended pleading. Franklin v. Kansas Dep’t of Corr., 160 F. App’x 730, 734 (10th Cir. 2005).
“However, pursuant to Rule 10(c), specific allegations of the prior complaint may be referenced
or incorporated by the amended complaint, but only if reference to allegations in the prior
complaint is direct and specific.” Fullerton v. Maynard, 943 F.2d 57, 1991 WL 166400, *2
(10th Cir. Aug. 29, 1991) (unpublished table opinion) (citations omitted).
Here, plaintiff’s First Amended Complaint makes no direct references to specific
allegations in his original Complaint or to the documents which plaintiff attached to his original
Complaint. Consequently, the First Amended Complaint supersedes the allegations in the
original Complaint. Therefore, when analyzing defendant’s motion under Fed. R. Civ. P.
12(b)(6), the Court has examined only the factual allegations contained in the First Amended
Complaint.
Plaintiff was hired as a neurologist by defendant on January 28, 1988. At some point
before December 23, 1996, plaintiff filed an Equal Employment Opportunity (“EEO”) complaint
alleging that defendant was discriminating against him based on his national origin (Ecuadorian).
2
Afterwards, defendant required plaintiff to undergo psychiatric evaluation, placed him on
administrative leave, and suspended his privileges as a physician. On December 23, 1996,
plaintiff filed a second EEO complaint alleging that defendant was discriminating against him
based on his national origin and retaliating against him for filing the first EEO complaint by
suspending his privileges. On June 29, 1999, plaintiff and defendant entered into a settlement
agreement that resolved his discrimination and retaliation claims.
Beginning in 2007, plaintiff filed at least five additional EEO complaints alleging that
defendant was discriminating against him based on his race and national origin and retaliating
against him because of his earlier EEO complaints. These five additional EEO complaints were
filed on July 27, 2007, September 7, 2007, December 21, 2007, May 5, 2010, and October 19,
2010.
On July 7, 2011, plaintiff filed an EEO complaint2 that gives rise to the allegations in this
lawsuit. That EEO complaint alleged that defendant was discriminating against plaintiff by
assigning him extra work and using a female patient to “frame him up” for unprofessional
conduct.3 Plaintiff alleged claims of discrimination based on race and national origin and
retaliation for filing previous EEO complaints.
The ordinary policy and procedure of defendant’s primary care unit is to assign male
patients to male doctors and female patients to female doctors. Plaintiff alleges that he was
2
Under 29 C.F.R. § 1614.106, federal employees must file their formal complaint of
discrimination with their agency’s equal employment opportunity office, not the Equal
Employment Opportunity Commission like nonfederal employees. Therefore, plaintiff filed his
complaint with the Department of Veteran’s Affairs, the agency that allegedly discriminated
against him.
3
In his First Amended Complaint, plaintiff has abandoned any claims based on defendant
assigning him extra work. The only claims from his EEO complaint plaintiff asserts in the First
Amended Complaint are based on the allegation that defendant used a female patient to “frame”
plaintiff.
3
regularly assigned female patients in violation of the policy and despite the availability of a
female neurologist on his team. Plaintiff contends that the female patients assigned to plaintiff
were “typically severely psychiatrically disturbed” and that many of the female patients made
sexual advances towards plaintiff during his examinations. Plaintiff denies that he indulged any
of the patients’ sexual advances.
Plaintiff’s immediate supervisor, Dr. Hedge, directly assigned patients to plaintiff.
Plaintiff claims that the ordinary policy and procedure of defendant’s primary care unit is for
clerks to assign patients to physicians. Therefore, plaintiff alleges that Dr. Hedge’s assignments
to plaintiff contravened the normal policy and procedure and that Dr. Hedge designed them to
elicit a complaint against plaintiff by one of the female patients. On some unidentified date,
plaintiff requested that defendant assign female patients to the female neurologist, in conformity
with defendant’s ordinary policy and procedure, but he claims that defendant ignored his request.
Plaintiff also asked defendant to have a nurse present whenever he examined female patients, but
he alleges that defendant ignored this request as well.
Plaintiff contends that defendant’s motivation for assigning female patients to him was to
discriminate based on race and national origin and to retaliate for his prior EEO complaints.
Plaintiff claims that the doctors in his “entire chain of command” are from India, and he
contends that the Indian physicians favor each other and treat physicians of other nationalities as
inferior. Plaintiff further contends that these physicians created an environment where the nurses
and staff also treated physicians of other nationalities as inferior.
Defendant informed plaintiff that on September 30, 2011, a patient had complained that
plaintiff had inappropriately touched her during an examination. Plaintiff believes that this
patient was “MH.” Plaintiff asserts that her complaint is not credible. Plaintiff contends that
4
defendant did not investigate the matter, but instead suspended his privileges as a physician on
October 3, 2011.
In his First Amended Complaint, plaintiff alleges that defendant persuaded MH to file a
false complaint against plaintiff in an effort to “frame” him, or alternatively, even if defendant
did not persuade MH to file a false complaint, defendant violated its ordinary policy by assigning
him to a female patient that allowed the patient to make a false complaint. Plaintiff also
contends that defendant encouraged MH to file a complaint without investigating the legitimacy
of her allegations. Plaintiff contends that his race, national origin, and prior EEO complaints
were motivating factors in defendant’s actions.4
II.
Legal Standard
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis
to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation
omitted). Federal district courts have original jurisdiction of all civil actions arising under the
constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28
U.S.C. § 1331; 28 U.S.C. § 1332. “A court lacking jurisdiction cannot render judgment but must
dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation
omitted). Since federal courts are courts of limited jurisdiction, there is a presumption against
4
Plaintiff recognizes in his Suggestions in Opposition to Defendant’s Motion to Dismiss
that this is not the proper causation standard for retaliation claims. Doc. 25 at 15. Plaintiff
further requests leave to amend his First Amended Complaint to reflect the proper causation
standard. The Court denies plaintiff’s cursory request to amend his First Amended Complaint
because he fails to set forth any reasons that the Court should grant leave to amend pursuant to
Fed. R. Civ. P. 15(a). Further, in light of the Court’s dismissal of the action, any amendment on
this basis would be futile.
5
jurisdiction, and the party invoking federal jurisdiction bears the burden to prove it exists.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Generally, a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995). “First, a facial attack on the complaint’s allegations as to
subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial
attack on the complaint, a district court must accept the allegations in the complaint as true.” Id.
(citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal
citations omitted).
“Second, a party may go beyond allegations contained in the complaint and challenge the
facts upon which subject matter jurisdiction depends. When reviewing a factual attack on
subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s
factual allegations. A court has wide discretion to allow affidavits, other documents, and [to
conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1).” Id. at 1003 (internal citations omitted); Los Alamos Study Group v. United States
Dep’t of Energy, 692 F.3d 1057, 1063–64 (10th Cir. 2012). See also Sizova v. Nat’l Inst. of
Standards & Tech., 282 F.3d 1320, 1324–25 (10th Cir. 2002) (holding that a court must convert
a motion to dismiss to a motion for summary judgment under Fed. R. Civ. P. 56 only when the
jurisdictional question is intertwined with the merits of case, but the jurisdictional issue of
exhaustion of Title VII administrative remedies is not an aspect of the substantive claim of
discrimination and does not require conversion to summary judgment).
6
B. Motion to Dismiss for Failure to State a Claim
Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does
not require ‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” which, as the
Supreme Court explained, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009)
(quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
Although the Court must assume that the factual allegations in the complaint are true, it is
“‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Id. at 1263
(quoting Iqbal, 556 U.S. at 678). “‘Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice’” to state a claim for relief. Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court may
consider not only the complaint itself, but also attached exhibits and documents incorporated into
the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing
7
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); TMJ Implants, Inc. v. Aetna,
Inc., 498 F.3d 1175, 1180 (10th Cir. 2007); Indus. Constructors Corp. v. United States Bureau of
Reclamation, 15 F.3d 963, 964–65 (10th Cir. 1994)). A court “‘may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.’” Id. (quoting Alvarado v. KOB–TV, L.L.C., 493 F.3d
1210, 1215 (10th Cir. 2007)) (internal quotation omitted).
III.
Analysis
Defendant moves the Court to dismiss plaintiff’s First Amended Complaint under both
Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. The Court addresses each of these arguments in turn below.
A. Subject Matter Jurisdiction
i. Plaintiff’s Failure to State the Basis for Subject Matter Jurisdiction in
his First Amended Complaint
Defendant argues that the Court should dismiss plaintiff’s First Amended Complaint
because he has failed to state the basis for subject matter jurisdiction. Fed. R. Civ. P. 8(a)(1)
requires a plaintiff to state plainly the grounds for the federal court’s jurisdiction. See Fed. R.
Civ. P. 8(a)(1) (“A pleading that states a claim for relief must contain a short and plain statement
of the ground for the court’s jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support . . . .”).
Plaintiff filed his original Complaint pro se on May 10, 2013. Doc. 1. On the first page
of the original Complaint, plaintiff stated that he was bringing an “employment discrimination
lawsuit . . . based on . . . Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §§
2000e, et seq., for employment discrimination on the basis of race, color, religion, gender, or
national origin.” Doc. 1 at 1. Afterwards, plaintiff obtained counsel who entered his appearance
8
on June 25, 2013. Doc. 8. Plaintiff moved for and was granted leave to file a First Amended
Complaint, which was filed on August 22, 2013. In paragraph 1 of plaintiff’s First Amended
Complaint, plaintiff states “[j]urisdiction is proper in this Court as all parties either reside in
Kansas or conduct substantial and continuing business in Kansas.” Pl.’s First Am. Compl. (Doc.
16 at ¶ 1). As defendant correctly points out, this is not a proper basis to invoke this Court’s
subject matter jurisdiction. The Court agrees that plaintiff’s First Amended Complaint fails to
state the grounds for this Court’s subject matter jurisdiction as required by Fed. R. Civ. P.
8(a)(1). In other words, plaintiff’s First Amended Complaint does not state on its face whether
he seeks to invoke this Court’s diversity of citizenship subject matter jurisdiction pursuant to 28
U.S.C. § 1332 or federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Nevertheless, while the plaintiff’s First Amended Complaint is not a model pleading, it
adequately states actions by defendant that form the basis for his Title VII discrimination and
retaliation claims, and he specifically states a prayer for relief. Thus, the Court construes
plaintiff’s First Amended Complaint as one invoking this Court’s federal question subject matter
jurisdiction because plaintiff asserts discrimination and retaliation claims under Title VII, 42
U.S.C. §§ 2000e, et seq., which is a federal statute. Moreover, Fed. R. Civ. P. 8(a)(1) requires
the plaintiff to state plainly the basis for jurisdiction “unless the court already has jurisdiction
and the claim needs no new jurisdictional support . . . .” The Court already had jurisdiction over
this action when plaintiff previously identified that he was bringing this action under Title VII in
his original Complaint. Therefore, the Court declines to dismiss on this basis.
Defendant also complains that plaintiff has failed to allege a waiver of sovereign
immunity. “‘The concept of sovereign immunity means that the United States cannot be sued
without its consent.’” Iowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir.
9
2010) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th
Cir. 1992)). A federal court “lack[s] subject matter jurisdiction over a claim against the United
States for which sovereign immunity has not been waived.” Id. (citing Normandy Apartments,
Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1295 (10th Cir. 2009)). The plaintiff
bears the burden of proving an explicit waiver of sovereign immunity. Id. (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Sydnes v. United States, 523 F.3d
1179, 1182–83 (10th Cir. 2008)).
As plaintiff explains in his Suggestions in Opposition to Defendant’s Motion to Dismiss,
Title VII contains a waiver of the United States’ sovereign immunity. Gaskins v. Dep’t of the
Army ex rel. McHugh, No. 10-4076-WEB, 2011 WL 4452529, at *4 (D. Kan. Sept. 26, 2011)
(citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93–94 (1990)); see also West v. Gibson,
527 U.S. 212, 224–25 (1999) (“Section 717(b) of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–16(b), which authorizes the EEOC to enforce federal compliance with Title VII
‘through appropriate remedies, including reinstatement or hiring of employees with or without
back pay,’ effects a waiver of the United States’ sovereign immunity for some purposes.”).
While plaintiff did not specifically plead the waiver of sovereign immunity in his First Amended
Complaint, the Court concludes that this defect also is not fatal to plaintiff’s claims, especially
when plaintiff has met his burden of proving a waiver of sovereign immunity in his Opposition
brief.5 Therefore, the Court denies defendant’s motion to dismiss for lack of subject matter
jurisdiction on this basis.
5
The Court also notes that plaintiff easily could cure these deficiencies by amendment.
Thus, the Court declines to dismiss plaintiff’s First Amended Complaint on this basis. But
because the Court grants defendant’s motion to dismiss on other grounds, as described in more
detail below, any amendment to the First Amended Complaint to plead subject matter
jurisdiction and a waiver of sovereign immunity expressly would be futile.
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ii. Exhaustion of Administrative Remedies
For the first time in its Reply, defendant alleges that this Court lacks subject matter
jurisdiction over certain claims because plaintiff failed to exhaust his administrative remedies. In
plaintiff’s First Amended Complaint, he alleges that defendant suspended his physician
privileges on October 3, 2011. Pl.’s First Am. Compl. (Doc. 16 at ¶ 6). Plaintiff further alleges
in his Suggestions in Opposition to Defendant’s Motion to Dismiss that he has “asserted a claim
that he was suspended and eventually terminated because of discrimination and retaliation.”
Doc. 25 at 15. In its Reply, defendant argues that plaintiff did not exhaust these claims in his
administrative complaint to the Department of Veteran’s Affairs. Indeed, plaintiff’s EEO
complaint makes no mention of plaintiff’s suspension or termination. Doc. 1-2 at 6.6 Further,
plaintiff alleges that he filed that complaint on July 7, 2011, almost three months before his
suspension on October 3, 2011. Moreover, the EEOC’s determination attached to plaintiff’s
First Amended Complaint does not reference plaintiff’s suspension or termination. Doc. 16-1.
Rather, it states that plaintiff alleged in his administrative complaint that “he was subjected to
discrimination based on race, national origin and reprisal when: (1) on May 9, 2011, a female
patient was being used by Agency employees to ‘frame him up’ for unprofessional conduct; (2)
that he was assigned to conduct compensation and pension examinations; and (3) that he was
6
In addressing whether dismissal under Rule 12(b)(1) for lack of subject matter
jurisdiction is appropriate, the Court may consider documents submitted by the parties to resolve
any jurisdictional fact questions. See Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320,
1324–25 (10th Cir. 2002) (holding that a court must convert a motion to dismiss to a motion for
summary judgment under Fed. R. Civ. P. 56 only when the jurisdictional question is intertwined
with the merits of case, but the jurisdictional issue of exhaustion of Title VII administrative
remedies is not an aspect of the substantive claim of discrimination and does not require
conversion to summary judgment).
11
asked to provide a medical advisory opinion.” Id. at 1. Thus, defendant contends, these three
complaints are the only properly-exhausted claims.
The Court generally does not address arguments made for the first time in a reply brief.
Stumps v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (citation omitted). However, the Court
considers the argument here because its resolution determines whether the Court has subject
matter jurisdiction over plaintiff’s claims. See Heck v. Sutcliffe, No. 13-2264-CM, 2013 WL
5651406, at *2 n.3 (D. Kan. Oct. 16, 2013) (considering defendant’s argument raised for the first
time in his reply brief because it potentially affected the court’s subject matter jurisdiction).
Because the Tenth Circuit has instructed that “[g]enerally, the nonmoving party should be
given an opportunity to respond to new material raised for the first time in the movant’s reply,”
the Court ordered plaintiff to file a surreply addressing whether he had properly exhausted his
administrative remedies for his claim that defendant suspended and eventually terminated him
because of discrimination and retaliation. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir.
2005) (citing Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998)). Plaintiff
submitted a surreply on July 15, 2014 (Doc. 54), and the defendant filed a reply to plaintiff’s
surreply on July 17, 2014 (Doc. 55). In his surreply, plaintiff concedes that he has not exhausted
his administrative remedies for his suspension or termination claim.
A plaintiff must exhaust his or her administrative remedies before filing suit under Title
VII. Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996), cert. denied, 520 U.S. 1115 (1997).
Failing to exhaust administrative remedies is a bar to subject matter jurisdiction. McBride v.
CITGO Petro. Corp., 281 F.3d 1099, 1106 (10th Cir. 2002) (citing United States v. Hillcrest
Health Ctr., Inc., 264 F.3d 1271, 1278 (10th Cir. 2001)). As the party seeking to invoke federal
12
jurisdiction, plaintiff bears the burden to show by competent evidence that he properly exhausted
the claims he asserts in federal court. Id. (citing Hillcrest Health Ctr., Inc., 264 F.3d at 1278).
Following the Supreme Court’s decision in Nat’l R.R. Passenger Corp. v. Morgan, “each
discrete incident of [discrimination or retaliation by an employer] constitutes its own ‘unlawful
employment practice’ for which administrative remedies must be exhausted.” Martinez v Potter,
347 F.3d 1208, 1210 (10th Cir. 2003) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 110–13 (2002)). “‘Discrete acts such as termination, failure to promote, denial of transfer,
or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable unlawful employment practice.’”
Id. (citing Morgan, 536 U.S. at 114) (further internal quotations omitted). In Martinez v. Potter,
the Tenth Circuit explained that the Supreme Court applied this rule in Morgan to bar a plaintiff
from bringing claims that he had not administratively exhausted when those incidents occurred
more than 300 days before filing the administrative complaint. Id. The Tenth Circuit held that
this “rule is equally applicable, however, to discrete claims based on incidents occurring after the
filing of” an administrative complaint. Id. at 1210–11.
Here, plaintiff’s suspension and termination occurred after he filed his administrative
charge on July 7, 2011. Plaintiff was required to exhaust his administrative remedies for any
claims based on his suspension or termination. Plaintiff concedes that he has not done so. Doc.
54. Therefore, plaintiff has failed to exhaust his administrative remedies, and the Court lacks
subject matter jurisdiction over any claims based on his suspension or termination.
Further, defendant asserts that none of the claims plaintiff properly has exhausted are
asserted by his First Amended Complaint. The only claims that plaintiff has exhausted are: “(1)
on May 9, 2011, a female patient was being used by Agency employees to ‘frame him up’ for
13
unprofessional conduct; (2) that he was assigned to conduct compensation and pension
examinations; and (3) that he was asked to provide a medical advisory opinion.” Doc. 160-1 at
1. Plaintiff does not assert any claims in his First Amended Complaint based on the second and
third claims that he did exhaust—that he was assigned to conduct compensation and pension
examinations or that he was asked to provide a medical advisory opinion. Plaintiff’s First
Amended Complaint also does not assert any claim based defendant’s use of a female patient to
“frame him up” on May 9, 2011. In his administrative charge, plaintiff alleged that a female
patient was used to set him up on May 9, 2011. Doc. 1-2 at 6. In a letter dated June 28, 2011,
the Department of Veterans Affairs described plaintiff’s complaint in more detail as alleging that
on May 9, 2011, defendant used “Patient 4W” in an attempt to frame him. Doc. 1-2 at 3.
Plaintiff’s First Amended Complaint makes no reference to defendant’s attempt to frame him by
using Patient 4W on May 9, 2011. Rather, plaintiff’s claims are based on the allegation that
defendant “encouraged” and “persuaded” a patient, “MH,” to file a false claim against him in an
effort to frame him. Pl.’s First Am. Compl. (Doc. 16 at ¶¶ 37, 43). Plaintiff also alleges that
defendant told him on September 30, 2011, that a patient (who he believes is “MH”) complained
that plaintiff had touched her inappropriately during an examination. Id. at ¶ 31. Plaintiff’s
administrative complaint does not contain any allegations about a patient named “MH” filing
false complaints against him. Indeed, plaintiff alleges that he filed his administrative complaint
on July 7, 2011—more than two months before defendant informed plaintiff of the alleged
complaint by “MH” on September 30, 2011.
Although the Court must “liberally construe charges filed with the EEOC in determining
whether administrative remedies have been exhausted as to a particular claim,” the Court’s
“inquiry is limited to the scope of the administrative investigation that can reasonably be
14
expected to follow from the discriminatory acts alleged in the administrative charge.” Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (citations omitted). “In other words, the
charge must contain facts concerning the discriminatory and retaliatory actions underlying each
claim.” Id. In this case, plaintiff’s charge of discrimination does not fairly encompass a claim
for discrimination or retaliation based upon defendant persuading a patient, “MH,” to file a false
claim against him in an effort to frame him. Therefore, plaintiff did not exhaust his
administrative remedies, and the Court lacks subject matter jurisdiction over any claims asserted
in his First Amended Complaint. The Court therefore grants defendant’s motion to dismiss for
lack of subject matter jurisdiction.
B. Failure to State a Claim
Defendant also argues that even if plaintiff’s First Amended Complaint is not barred on
jurisdictional grounds, plaintiff has failed to state a claim upon which relief can be granted, and
therefore, the Court should dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6). The Court
agrees. That is, even if it construed plaintiff’s administrative charge as having properly
exhausted a claim based on defendant’s use of a female patient, “MH,” to frame plaintiff, the
Court must dismiss plaintiff’s First Amended Complaint for failure to state a claim.
The Tenth Circuit recently provided an extensive analysis of the pleading standard for
employment discrimination and retaliation claims under Twombly. Khalik v. United Air Lines,
671 F.3d 1188, 1193–94 (10th Cir. 2012). In that case, the court affirmed a district court
decision dismissing a plaintiff’s Title VII discrimination and retaliation claims and FMLA
retaliation claims under Fed. R. Civ. P. 12(b)(6). Id. In so doing, the court cautioned that under
Twombly, the plaintiff is not required to “set forth a prima facie case for each element” to
15
successfully plead a claim of discrimination. Id. at 1193. Rather, the plaintiff is only required to
“set forth plausible claims.” Id.
In this case, plaintiff brings discrimination and retaliation claims under Title VII. “A
plaintiff proves a violation of Title VII either by direct evidence of discrimination or by
following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).” Khalik, 671 F.3d at 1192 (10th Cir. 2012) (citing
Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir. 2011)). Plaintiff here has not
alleged any direct evidence of discrimination or retaliation in his First Amended Complaint.
Thus, under McDonnell Douglas, “a three-step analysis requires the plaintiff first prove a prima
facie case of discrimination.” Id. (citing Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1216
(10th Cir. 2002)).
A prima facie case of discrimination under Title VII requires a plaintiff to demonstrate:
(1) membership in a protected class, (2) adverse employment action, (3) he was qualified for the
position at issue, and (4) he was treated less favorably than others not in the protected class. Id.
(citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998)). If plaintiff meets this
burden, then the burden shifts to the defendant to produce a legitimate, non-discriminatory
reason for the adverse employment action. Id. (citing Garrett, 305 F.3d at 1216). If defendant
satisfies that burden, the burden then shifts back to the plaintiff to show that the plaintiff’s
protected status was a determinative factor in the employment decision or that the employer’s
explanation is pretext. Id. (citing Garrett, 305 F.3d at 1216).
The same analysis applies to Title VII retaliation claims; plaintiff must prove a violation
of Title VII either by direct evidence of discrimination or by the McDonnell Douglas burdenshifting framework. Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014).
16
Where there is no direct evidence of retaliation, plaintiff must first establish a prima facie case of
retaliation by showing that: “(1) he engaged in protected activity; (2) he suffered an adverse
employment action; and (3) there is a causal connection between his protected activity and the
adverse employment action.” Id. (citing Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998
(10th Cir. 2011)). “The Supreme Court has recently clarified the causation standard for Title VII
retaliation claims, explaining: ‘[A] plaintiff making a retaliation claim under § 2000e–3(a) must
establish that his or her protected activity was a but-for cause of the alleged adverse action by the
employer.’” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517,
2534 (2013)).
The Court is mindful that the McDonnell Douglas burden-shifting framework is an
evidentiary standard, not a pleading requirement, and that plaintiff does not need to adhere to
these requirements of establishing a prima facie case in order to survive a motion to dismiss.
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510–11 (2002). However, “while Plaintiff is not
required to set forth a prima facie case for each element, [he] is required to set forth plausible
claims.” Khalik, 671 F.3d at 1193; see also Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
The Tenth Circuit has noted that “[w]hile ‘[s]pecific facts are not necessary,’ some facts are.”
Khalik, 671 F.3d at 1193 (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
Defendant argues that even if the Court has subject matter jurisdiction over plaintiff’s
allegation that defendant used a patient, “MH,” to frame him, plaintiff has not sufficiently
pleaded facts showing that he suffered an adverse action. Therefore, he has failed to state a
claim upon which relief can be granted. The Court agrees.
Plaintiff’s discrimination and retaliation claims both require that plaintiff prove that he
suffered an adverse employment action. An adverse employment action is one that is “materially
17
adverse” to the employee’s job status. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 533 (10th
Cir. 1998). An action that is “‘a mere inconvenience or an alteration of job responsibilities’” is
not materially adverse to employment status. Heno v. Sprint/United Mgmt. Co., 208 F.3d 847,
857 (10th Cir. 2000) (quoting Sanchez, 164 F.3d at 532). To constitute an adverse employment
action, the employer’s action must result in “a significant change in employment status, such as
hiring, firing, or failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998).
Plaintiff bears the burden of pleading enough facts to establish a plausible claim that
defendant’s attempt to “frame” plaintiff for unprofessional conduct constituted “a significant
change in employment status.” He fails to meet this burden. He does not allege that this
attempted framing resulted in any significant change in his benefits or any of the other terms and
conditions of his employment. Thus, plaintiff’s First Amended Complaint fails to state a
plausible claim for discrimination or retaliation because it contains no facts showing that plaintiff
suffered an adverse impact.
The Court recognizes that plaintiff’s suspension and termination may constitute adverse
employment actions if they resulted in a change in the terms and conditions of his employment,
but plaintiff has not exhausted his administrative remedies with respect to those two events. That
omission is fatal to his claims. See Duncan v. Manager, Dep’t of Safety, City and Cnty. of
Denver, 397 F.3d 1300, 1314 (10th Cir. 2005). Therefore, even if the Court had subject matter
jurisdiction over plaintiff’s claim that defendant encouraged “MH” to file a false claim in an
effort to frame him, the Court would grant defendant’s motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) because plaintiff has failed to state a claim for relief.
18
IT IS THEREFORE ORDERED BY THE COURT THAT Defendant’s Motion to
Dismiss Plaintiff’s First Amended Complaint (Doc. 19) is granted.
IT IS SO ORDERED.
Dated this 18th day of July, 2014, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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