Thompson v. Secretary of Department of Veterans Affairs
Filing
10
MEMORANDUM AND ORDER granting 6 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/24/18. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHLEEN L. THOMPSON,
Plaintiff,
vs.
Case No. 18-4046-SAC-KGS
ROBERT L. WILKIE as SECRETARY
OF THE UNITED STATES DEPARTMENT
OF VERTANS AFFAIRS,
Defendant.
MEMORANDUM AND ORDER
In this action plaintiff alleges age discrimination when she
was denied a promotion.
Defendant has filed a motion for summary
judgment.
Upon review, the motion shall be granted
Doc. No. 6.
because there is no genuine issue of fact that plaintiff failed to
timely exhaust her administrative remedies and plaintiff cannot
demonstrate a genuine issue of fact sufficient to claim that the
time
limit
for
administrative
exhaustion
should
be
equitably
tolled.
I. SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a).
“Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
1
summary judgment.”
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
At the summary judgment stage, the court’s job “is
not ... to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial. . .
. If [however] the evidence is merely colorable . . . or is not
significantly probative . . . summary judgment may be granted.”
Id. at 249-50.
An issue of fact is “genuine” if “there is
sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.”
Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998).
The court may not make
credibility determinations when examining the evidentiary record.
Fogarty v. Gallegos, 523 F.3d 1147, 1165-66 (10th Cir. 2008).
All
disputed facts are resolved in favor of the party opposing summary
judgment.
McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018).
The moving party bears the initial burden of showing the
absence of any genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
The movant may do so “by
pointing out to the court a lack of evidence for the nonmovant on
an essential element of the nonmovant’s claim.”
Adler, 144 F.3d
at 671. Once the moving party meets this burden, the burden shifts
to the nonmoving party to demonstrate that genuine issues remain
for trial as to those dispositive matters for which the nonmoving
party carries the burden of proof.
See McCoy, 887 F.3d at 1044.
The non-movant may not rely upon unsubstantiated allegations or
2
facts unsupported by competent evidence.
Id.; Kidd v. Taos Ski
Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).
II. FACTS
The following facts are considered uncontroverted for the
purposes of this order or are viewed in the light most favorable
to plaintiff.
Plaintiff applied for a registered nursing position at the
Hays Community Based Outpatient Clinic (HCBOC) in Hays, Kansas.
The position was posted on or about July 27, 2017.
The HCBOC is
affiliated with the Robert J. Dole VA Medical Center in Wichita,
Kansas (“Wichita VA”).
Plaintiff interviewed for the position but
learned on September 12, 2017 that she was not selected.
Although
plaintiff thought she was unlawfully denied the position because
of her age, she did not consult with an EEO counselor until
December 21, 2017, more than 45 days after learning that she was
not selected.
Plaintiff has explained this delay in an affidavit
which states:
Norman J. Forbes indicated to me that Ricky A. Ament had
approved another RN position in the HCBOC after the RN
position posted on July 24, 2017 was filled and that I
would most likely receive this position if I applied. I
interpreted this statement that I would be given the
latter position to make up for the fact I was denied the
original position.
Doc. No. 8, p. 12.
In early December 2017, plaintiff was informed that the RN
position that was going to be opened was no longer available to
3
her.
During the administrative investigation of this matter,
plaintiff’s
attorney
explained
the
delay
in
bringing
her
administrative complaint as follows:
[Plaintiff] was led to believe by Norm Forbes that a new
position had been approved and led to believe she would
receive that appointment. In addition, she understood
that her former supervisor had been demoted, which
further supported her belief that the situation was
going to be remedied without the need for a complaint.
When she learned that the position had not been approved
she immediately filed her complaint with the VA EEO.
The
Department
Management
of
dismissed
Veterans
Affairs’
plaintiff’s
Office
of
administrative
Resolution
complaint
as
untimely because 29 C.F.R. § 1614.105 provides that an aggrieved
person must initiate contact with a counselor within 45 days of
the date of the matter alleged to be discriminatory.
It further
determined
delay
insufficient
that
to
plaintiff’s
toll
the
explanation
time
limit
for
for
the
contacting
the
was
EEO
counselor.
Norman Forbes was the Associate Director for Patient Care
Services/Nurse Executive overseeing all employed nursing personnel
working at Wichita VA.
He recalls that Ricky A. Ament, the
Director of Wichita VA, had discussed another RN position at HCBOC.
He does not recall that plaintiff applied for the RN position
posted on July 24, 2017 and he had no role in denying plaintiff
that position.
He has stated in an affidavit that did not know
4
that plaintiff thought her non-selection was discriminatory until
her federal court complaint was filed in June 2018.
III. 29 C.F.R. § 1614.105(a) AND EQUITABLE TOLLING
A
federal
employee
who
believes
he
or
she
has
been
discriminated against on the basis of age or other protected
categories must consult a counselor prior to filing a complaint in
order to try to informally resolve the matter.
1614.105(a).
29 C.F.R. §
This contact must be initiated within 45 days of the
alleged discriminatory action.
Id.; see also Regennitter v.
Potter, 78 Fed. Appx. 659, 660 (10th Cir. 2003).
If the attempts
to resolve the employee's dispute through counseling fail, the
employee may file a formal administrative complaint with the EEO.
Regennitter, supra.
Alternatively, the employee “may bring the
action directly to a federal district court in the first instance,
so long as the employee gives the [EEO] notice of intent to sue
within 180 days of the alleged discriminatory act and then waits
thirty days before filing the action.” Jones v. Runyon, 32 F.3d
1454, 1455 (10th Cir. 1994).
The belated contacting of an EEO counselor outside the 45day period set out in 29 C.F.R. § 1614.105 is a violation of an
administrative
exhaustion
equitable tolling.
requirement
which
is
subject
to
Sizova v. Nat. Inst. of Standards & Tech., 282
F.3d 1320, 1325 (10th Cir. 2002).
Plaintiff bears the burden of
proving that the deadline for administrative exhaustion should be
5
equitably tolled.
Johnson v. Glickman, 155 F.Supp.2d 1240, 1246
(D. Kan. 2001).
The Tenth Circuit has generally recognized equitable tolling
of such time limitations only when there has been a showing of
active deception. Biester v. Midwest Health Services, Inc., 77
F.3d 1264, 1267 (10th Cir. 1996)(quoting the district court opinion
as a proper statement of the law).
Equitable tolling may be
appropriate where a plaintiff has been lulled into inaction by her
employer's deliberate design or by actions that the employer should
unmistakably have understood would cause the employee to delay
filing a charge. Al-Ali v. Salt Lake Comm. College, 269 Fed.Appx.
842, 847 (10th Cir. 2008)(citing Hulsey v. Kmart, Inc., 43 F.3d
555, 557 (10th Cir. 1994)); Smith v. Johnson Cty. Bd. of Cty.
Comm'rs, 56 Fed. Appx. 879, 883 (10th Cir. 2003).
The test for tolling has also been more narrowly framed at
times, limiting tolling “to situations where an employer's actions
relate to the actual deadline and assertion of rights.”
Quintana
v. Conner, 2009 WL 198076 *4 (D.Colo. 1/28/2009)(citing Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002); Scheerer v. Rose State
College, 950 F.2d 661, 665 (10th Cir. 1991)(“‘[I]n this circuit,
a Title VII time limit will be tolled only if there has been
“active
deception”’
of
the
claimant
regarding
procedural
prerequisites.”)(emphasis in original)(quoting Johnson v. United
States Postal Serv., 861 F.2d 1475, 1481 (10th Cir.1988)); and
6
Richardson
v.
Frank,
975
F.2d
1433,
1436
(10th
Cir.
1991)(determining that summary judgment was not appropriate when
there were genuine issues of material fact as to whether the EEO
office misled the plaintiff into thinking that there was not a
time limit for contacting the EEO Counselor)); see also Jarrett v.
US Sprint Communications Co., 22 F.3d 256, 260 (10th Cir. 1994)(“a
Title VII time limit will be tolled only if there has been active
deception of the claimant regarding procedural requirements”).
Speaking more generally, the Tenth Circuit has stated that
the
range
of
circumstances
justifying
equitable
tolling
is
narrowly limited and that the doctrine is sparingly applied.
Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018); Harms v.
I.R.S., 321 F.3d 1001, 1006 (10th Cir. 2003); Montoya, 296 F.3d at
957; Biester, 77 F.3d at 1267.
Courts from other circuits have reached contrasting results
in cases involving some type of representation regarding future
employment.
Compare, e.g., Price v. Litton Bus. Sys. Inc., 694
F.2d 963 (4th Cir. 1982)(employee’s hope for rehire or promotion
cannot toll the limitations statute absent employer conduct likely
to mislead an employee into sleeping on his rights); Coke v.
General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.
1981)(en banc)(misrepresentation of intent to reinstate plaintiff
and reasonable reliance thereon creates fact issue as to tolling);
Ott v. Midland-Ross Corp., 600 F.2d 24, 29-30 (6th Cir. 1979)(offer
7
of employment as consultant justifies estoppel); Unterreiner v.
Volkswagen
of
1993)(trying
inference
America,
to
of
find
lulling
Inc.,
the
the
8
F.3d
plaintiff
plaintiff
a
1206,
job
into
1212-13
does
not
(7th
not
Cir.
raise
filing
an
suit);
Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th Cir.
1984)(offer to help find other employment not likely to cause a
plaintiff to sleep on his rights); Cocke v. Merrill Lynch & Co.,
817 F.2d 1559, 1561-62 (11th Cir. 1987)(an employee should not be
expected to sue his employer at the same time he is led to believe
the employer is trying to place him in another job).
IV. PLAINTIFF FAILED TO TIMELY EXHAUST HER CLAIM.
Plaintiff
alleges
that
she
deferred
contacting
an
EEO
counselor because Norman Forbes, an executive with authority over
the nursing service at the Wichita VA, “indicated” to her that the
head of the Wichita VA had approved another RN position for HCBOC
and that plaintiff “would most likely receive this position if I
applied.”
This is not evidence of active deception by Norman Forbes or
another VA representative to cause plaintiff to delay contacting
an EEO counselor.
No facts have been presented that Forbes’
alleged statement to plaintiff was false when it was made or was
intentionally misleading.1
Nor is there evidence that Forbes’
1
Plaintiff notes that discovery has not started and that “it is difficult for
[plaintiff] to address the VA’s specific intent in making the referenced
statements absent discovery.”
Doc. No. 8, p. 8.
But, plaintiff has not
8
alleged statement would have been unmistakably understood by a
reasonable person to cause plaintiff to delay contacting an EEO
counselor.
the
Nothing has been presented to suggest that Forbes made
statement
in
response
to
knowledge
that
plaintiff
was
considering filing a charge or contacting an EEO counselor.
Nor
was plaintiff guaranteed another RN position. Plaintiff has merely
stated that Forbes indicated to her that another RN position would
be posted and also indicated that she would most likely receive
the position.
Plaintiff interpreted Forbes’ alleged statements to
mean that she would receive a later position to make up for being
denied
the
first
position.
Plaintiff’s
statement,
however,
provides no context for Forbes’ alleged remarks, only plaintiff’s
subjective opinion or interpretation to support a claim that a
reasonable person would unmistakably understand that the statement
would cause plaintiff to delay contacting an EEO counselor.
Such
a subjective interpretation is insufficient to make plaintiff’s
argument against summary judgment. See Mann v. Turner Bros., Inc.,
560 Fed.Appx. 743, 747 (10th Cir. 2014)(discounting subjective
opinion that a doctor was intoxicated during an examination); Rojas
submitted an affidavit or declaration, as required by Fed.R.Civ.P. 56(d),
showing for specified reasons that plaintiff cannot present facts essential to
oppose the motion for summary judgment and thereby justifying deferring or
denying the motion. Therefore, it is proper for the court to proceed to decide
the motion on the merits. See Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110
(10th Cir. 2017); Viking Ins. Co. v. Baize, 2018 WL 4154774 *7 (10th Cir.
8/29/2018). The Tenth Circuit took the same position in Dreiling v. Peugeot
Motors of Am., Inc., 850 F.2d 1373, 1381 (10th Cir. 1988) which is a case
plaintiff has cited (Doc. No. 8, p. 4) for the proposition that summary judgment
is disfavored prior to discovery.
9
v. Anderson, 727 F.3d 1000, 1003 n.4 (10th Cir. 2013)(police
officer-defendant’s
subjective
interpretation
of
plaintiff’s
actions is irrelevant to an objective reasonableness test used to
determine legal issue); Tran v. Sonic Industries Services, Inc.,
490 Fed.Appx. 115, 120-21 (10th Cir. 2012)(plaintiff must do more
than
provide
subjective
interpretation
employment discrimination case).
of
the
evidence
in
Also, plaintiff’s evidence does
not create a genuine issue of fact as to any active deception
regarding procedural prerequisites for bringing a discrimination
claim, if the more limited tolling standard is applied to this
situation.
This case is like Brough v. O.C. Tanner Company, 2017 WL
1102622 *3 (D.Utah 3/23/2017) where the court granted a motion to
dismiss on timeliness grounds because plaintiff’s tolling argument
was based on a claim that she “justifiably believed” an amicable
agreement would be reached settling the dispute, but plaintiff did
not
identify
specific
substantiate that claim.2
statements
or
actions
that
would
Here, plaintiff interpreted Forbes’
statements as meaning that she would be given a later promotion to
make up for the fact that she was denied the earlier promotion,
2
Plaintiff in Brough was permitted to amend her complaint and the amended
complaint survived a later motion to dismiss. Brough v. O.C. Tanner Company,
2017 WL 3172996 (D.Utah 7/25/2017).
The amended complaint alleged that two
attorneys for the defendant “specifically represented that they each believed
that a negotiated settlement was forthcoming and accepted [plaintiff’s
attorney’s] request not to prejudice his client should she delay her filing the
matter with the EEOC.” Id. at *3
10
but
she
does
not
provide
evidence
supporting
her
subjective
interpretation. Nor does plaintiff provide grounds to defer ruling
upon defendant’s motion pending discovery pursuant to Rule 56(d).
The court acknowledges that plaintiff did not wait very long
after learning that another RN position would not be offered to
contact an EEO counselor.
The court also finds that defendant has
not been persuasive in claiming prejudice from plaintiff’s failure
to
meet
the
45-day
requirement.
But,
these
factors
do
not
compensate for plaintiff’s failure to demonstrate a genuine issue
of fact as to whether plaintiff was lulled into inaction either by
her employer’s deliberate design or actions that the employer
should unmistakably have understood would cause plaintiff to delay
contacting an EEO counselor.
V. CONCLUSION
For
the
above-stated
reasons,
defendant’s motion for summary judgment.
the
court
shall
Doc. No. 6.
IT IS SO ORDERED.
Dated this 24th day of October 2018, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
11
grant
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