Bangura v. Department of Veteran Affairs et al
Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 39 Plaintiff's Motion to Amend Complaint. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAVID J. SHULKIN, Secretary of the
DEPARTMENT OF VETERANS AFFAIRS,
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION FOR LEAVE TO AMEND HER COMPLAINT
October 2, 2017
The plaintiff, Rosaline Bangura, has brought this action against her former employer, the
Department of Veteran Affairs, through its Secretary (collectively, the “VA”), raising a number
of claims of discrimination and retaliation in connection with her work as a Certified Nursing
Aide and her departure from the VA as a result of her alleged constructive discharge. This
matter is before the court on “Plaintiff’s Motion for Leave to Amend Her Complaint.” (Docket
No. 39). By this motion, the plaintiff seeks to amend her Complaint to restate Count I as a claim
under the Rehabilitation Act (“RA”) instead of the Americans with Disability Act (“ADA”), and to
add a new count for a claim for promissory estoppel. For the reasons detailed herein, the
plaintiff’s motion is ALLOWED as to the changes from the ADA to the RA, but DENIED insofar as
she is seeking to add a count for promissory estoppel.
II. STATEMENT OF FACTS
Plaintiff filed her original Complaint on March 29, 2016, and amended the Complaint on
August 3, 2016 pursuant to Fed. R. Civ. P. 15(a)(1)(A). In her Amended Complaint, plaintiff
added details to her nine causes of action for “retaliation; denial of reasonable accommodation; harassment/hostile work environment; constructive discharge; intentional and/or
negligent infliction of emotional distress; breach of contract; and breach of implied covenant of
good faith and fair dealing in plaintiff’s employment contract and her employment relationship
with the defendants.” (Am. Compl. (Docket No. 11) ¶ 1). Count I of the Amended Complaint
purported to state a claim for failure to accommodate under the ADA. (Id. ¶¶ 23-26). Count II
purported to state a claim of retaliation under the RA. (Id. ¶¶ 28-30).
On July 28, 2017, plaintiff again moved to amend her Complaint pursuant to Fed. R. Civ.
P. 15(a)(2). (Docket No. 39). Plaintiff seeks to bring her claim for failure to accommodate
(Count I) under the RA instead of the ADA, and to make the necessary substitutions throughout
the Complaint. Plaintiff additionally seeks to add a claim of promissory estoppel against the VA
because “she may not have a robust, valid, or sustainable breach of contract claim against the
defendants.” (Id. at 3). The VA filed a “Partial Opposition to Plaintiff’s Motion to Amend the
Complaint” on August 2, 2017, contending that the promissory estoppel claim is futile and
should be dismissed, but not objecting to plaintiff’s request to amend Count I to state a claim
under the RA. (See Docket No. 41).1
Although plaintiff’s subsequent “Response (Reply) to Defendants’ Partial Opposition to Plaintiff’s
Motion to Amend Complaint” (Docket No. 43) was filed 14 days late, the Court has considered it in
deciding the present issue.
The Alleged Employment Discrimination
According to her proposed Second Amended Complaint (Docket No. 39-1) (“Second
Amended Complaint” or “SAC”), plaintiff was hired by the VA in 2007 to work as a Certified
Nursing Aide in the Bedford VA Medical Center in Bedford, Massachusetts. (SAC ¶¶ 4, 6, 8).
Plaintiff alleges that she accepted the job with defendants and failed to seek any other
employment based on defendants’ representation of a discrimination-free workplace. (Id.
¶ 57). Plaintiff, an African American woman of Sierra Leone origin, is disabled with severe
arthritis and high blood pressure. (Id. ¶¶ 4, 15). In January 2014, plaintiff returned to work
after an illness, with the doctor’s advice that she not work more than eight hours a day due to
her health conditions. (Id. ¶ 10).
Plaintiff made her doctor’s advice known to her management officials, Barbara Mueller,
Ann Goulet, and Mary-Ann Petrillo. (Id. ¶ 11). Her management officials allegedly ignored the
advice and forced plaintiff to work extra hours, “especially when any employee on the midnight shift called out.” (Id.). Mueller and Goulet acted with hostility towards plaintiff, and
caused plaintiff’s co-workers to also turn against plaintiff with hostility. (Id. ¶ 12). Mueller and
Goulet additionally “instigated harassing, intimidating and humiliating conducts” and wrote
false reports against plaintiff. (Id.). Plaintiff’s accent and manner of speaking were also
targeted, and when plaintiff was eating, persons used their hands “to close their noses as if
plaintiff’s food was stinking” as plaintiff ate. (Id. at ¶ 13).
Plaintiff reported the behavior to management and requested to be reassigned, but her
request was denied. (Id. ¶¶ 12, 14). Plaintiff’s shift was then changed to the nine-hour
morning shift in June 2014, allegedly constructively discharging plaintiff as she was under
medical advisement to not work more than eight hours a day. (Id. ¶¶ 16-17). Defendants knew
at the time that plaintiff was unable to work the morning shift, and plaintiff again informed
defendants that it would be “against [her] health and medical conditions” to work the morning
shift. (Id. ¶ 16). Defendants threatened to arrest plaintiff if she came to work on any evening
Standard of Review
The government opposes the amendment of the Complaint to add a claim of promissory
estoppel on the basis that the claim is futile. A motion to amend may be denied on the basis of
the futility of the underlying claim. See Hatch v. Dep’t for Children, Youth & Their Families, 274
F.3d 12, 19 (1st Cir. 2001)). This court finds the government’s arguments persuasive.
To properly assert a claim of promissory estoppel, “a plaintiff must allege that (1) a
promisor makes a promise which he should reasonably expect to induce action or forbearance
of a definite and substantial character on the part of the promisee, (2) the promise does induce
such action or forbearance, and (3) injustice can be avoided only by enforcement of the
promise.” Neuhoff v. Marvin Lumber & Cedar Co., 370 F.3d 197, 203 (1st Cir. 2004) (quotations
and citations omitted). However, “[t]he traditional doctrine of equitable estoppel does not
apply fully in cases of estoppel against the Government. For the Government to be estopped, it
is necessary not only that a party have relied on the Government’s conduct – the basis of the
traditional doctrine – but also that the Government have engaged in ‘affirmative misconduct.’”
Akbarin v. INS, 669 F.2d 839, 842 (1st Cir. 1982).
“[E]stoppel claims do not ordinarily lie against the government” and therefore a “private
individual asserting estoppel against the government has a very heavy burden to bear.”
Bateman v. FDIC, 112 F. Supp. 2d 89, 94 (D. Mass. 2000) (citation omitted). Indeed, the First
Circuit has “repeatedly refused to apply estoppel against the government in ordinary situations
where a private party would or might have been estopped.” Nagle v. Aton-Boxborough Reg’l
Sch. Dist., 576 F.3d 1, 4 (1st Cir. 2009) (finding that there was no promissory estoppel claim
where plaintiff’s employment was terminated after she was mistakenly given oral approval for
leave under the Family and Medical Leave Act); see also Phelps v. FEMA, 785 F.2d 13, 17 (1st
Cir. 1986) (explaining that “[i]n a complex government with thousands of agencies and departments, and innumerable employees, there is a very real need to protect the Government
against binding commitments by improper conduct of its agents”).
In the present case, the plaintiff has not met this heavy burden. Plaintiff asserts that the
court should allow her to amend her complaint to state her promissory estoppel claim because
at the root of the claim are serious allegations of employment discrimination on the part of the
government. (Pl. Reply (Docket No. 43) ¶ 5). However, Title VII and the Rehabilitation Act,
under which plaintiff is bringing claims, provide exclusive remedies for plaintiff’s claims of
employment discrimination against the federal government. See Brown v. GSA, 425 U.S. 820,
835, 96 S. Ct. 1961, 1969, 48 L. Ed. 2d 402 (1976) (Title VII provides “the exclusive judicial
remedy for claims of discrimination in federal employment”); Mannie v. Potter, 394 F.3d 977,
982 (7th Cir. 2005) (the Rehabilitation Act is “the sole remedy for federal employees claiming
disability discrimination”). Therefore, not only are her claims appropriately covered by other
concrete causes of action, but allowing plaintiff to bring her promissory estoppel claim based
on the same allegations of discrimination would enable her to make an impermissible “end run”
around Title VII and the Rehabilitation Act. Bateman, 112 F. Supp. 2d at 94-95, and cases cited.
As such, plaintiff has not met her “heavy burden” and her proposed promissory estoppel claim
Plaintiff’s request to bring her claim of failure to accommodate (Count I) under the RA
instead of the ADA, and to substitute references to the ADA with the RA, is not opposed by the
defendants. Furthermore, these amendments do not alter the substance of her claims.
Consequently, plaintiff’s motion for leave to amend her Complaint to bring plaintiff’s claim for
failure to accommodate under the RA instead of the ADA, and to make the necessary related
corrections in the Complaint, is GRANTED.
For the reasons detailed herein, “Plaintiff’s Motion For Leave to Amend Her Complaint”
(Docket No. 39) is GRANTED IN PART and DENIED IN PART. The motion is allowed as to the
changes from the ADA to the RA, but denied insofar as the plaintiff is seeking to add a count for
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge
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