Kuriakose v. Veterns Affairs Ann Arbor Healthcare System
Filing
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OPINION AND ORDER granting 4 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEAN KURIAKOSE,
Plaintiff,
Case No. 14-12972
v.
Paul D. Borman
United States District Judge
VETERANS AFFAIRS ANN
ARBOR HEALTHCARE SYSTEM,
Defendant.
_______________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (ECF NO. 4)
This matter is before the Court on Defendant’s Motion to Dismiss. (ECF No. 4.) Plaintiff
filed a Response (ECF No. 7) and Defendant filed a Reply (ECF No. 8). The Court held a hearing
on February 12, 2015. For the reasons that follow, the Court converts the motion to one for
summary judgment and GRANTS the motion.1
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The Court may consider public records and other facts capable of being judicially noticed without
converting a motion to dismiss to one for summary judgment. New England Health Care Employee
Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003). Specifically, “[t]he court
may take judicial notice of the administrative record reflecting plaintiff's exhaustion of
administrative remedies without converting the motions into ones for summary judgment.” Allen v.
Shawney, No. 11-10942, 2013 WL 2480658, at *12 (E.D. Mich. June 10, 2013) (quotation marks
and citation omitted) (alteration in original). However, in this case, because both parties rely on
exhibits and matters that are outside the administrative record and are not attached to or referred to
in Plaintiff’s Complaint, the Court must convert the motion to dismiss to one for summary judgment.
See Fed. R. Civ. P. 12(d) (“If on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.”). “Whether notice of conversion of a motion to
dismiss to one for summary judgment by the court to the opposing party is necessary depends upon
the facts and circumstances of each case. Where one party is likely to be surprised by the
proceedings, notice is required.” Salehpour v. University of Tennessee, 159 F.3d 199, 204 (6th Cir.
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INTRODUCTION
This action involves Plaintiff’s claim that her employer, the Defendant Veterans Affairs Ann
Arbor Healthcare System (the “VA”), through its agents and particularly through the acts of Dr.
Wessam Bou-Assaly, created and permitted to exist a hostile work environment in which Plaintiff
was subject to sexual harassment and retaliated against when she complained about the harassment
she alleges she endured. Defendant now moves to dismiss the Complaint, claiming that Plaintiff
failed to properly exhaust her administrative remedies which required that she timely file a formal
1998) (citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.1975)).
In this case, both parties submitted substantial evidence relating to matters outside the
pleadings and outside the administrative record. Defendants submitted multiple witness
declarations, emails and VA records. Plaintiff submitted in response to these exhibits two affidavits,
one from Plaintiff and one from her treating psychiatrist, as well as correspondence and emails to
rebut the exhibits relied on by Defendant and to attempt to create a question of fact on the issue of
exhaustion. Indeed, at the hearing on the motion, Plaintiff’s counsel expressly stated that certain
evidence submitted by Plaintiff was sufficient to create “at least a question of fact regarding whether
equitable tolling or estoppel should apply.”
The Court has waited three months to issue this Opinion and neither party has sought leave
to supplement the record, even though Plaintiff’s counsel indicated at the hearing that he intended
to supplement Dr. Shiener’s Affidavit with Dr. Shiener’s report. Although having had ample time
to do so, Plaintiff never filed a report with the Court and never objected to the Defendant’s
submission of materials outside the pleadings. Rather, Plaintiff vigorously responded with
additional matters extrinsic to the pleadings. See Shelby County Health Care Corp. v. Southern
Council of Indus. Workers Health and Welfare Trust Fund, 203 F.3d 926, 932 (6th Cir. 2000)
(“Because the parties both submitted numerous exhibits fully addressing the [] argument for
dismissal, they had sufficient notice that the district court could consider this outside material when
ruling on the issues presented in the [] motion to dismiss and could convert it into a motion for
summary judgment under Fed. R. Civ. P. 12(b).”) (alterations added).
Given these facts and circumstances, because both parties submitted, and urged the Court
to rely on, matters outside the pleadings and administrative record, neither party can claim surprise
and the Court will convert the motion to dismiss to one for summary judgment. See Abernathy v.
Runyon, 156 F.3d 1228, at *1 (6th Cir. 1998) (table case) (noting that plaintiffs could have attempted
to convert defendant’s motion to dismiss for failure to exhaust to one for summary judgment by
submitting evidence attempting to show a question of fact on the issue of exhaustion); James v. Ann
Arbor Public Schools, No. 09-11230, 2010 WL 3084335, at *3 (July 15, 2010) (converting motion
to dismiss for failure to exhaust administrative remedies to motion for summary judgment where
both parties submitted, and the court considered, matters outside the pleadings) (Hluchaniuk, MJ).
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Equal Employment Opportunity (EEO) Complaint with Department of Veterans Affairs and timely
contact an EEO Counselor, both statutory prerequisites to filing her Title VII claim against the VA.
I.
BACKGROUND
A.
Plaintiff’s Claims of Sexual Harassment
Plaintiff Dr. Jean Kuriakose is a radiologist at the Defendant VA who claims that she was
subject to a sexually hostile working environment created by the sexually assaultive conduct of one
of her colleagues, Dr. Wessem Bou-Assaly. Plaintiff claims that Dr. Bou-Assaly was known to the
VA Hospital as a sexual predator who harassed many other females working at the VA but that the
VA turned a blind eye to his conduct.
In addition to her employment at the VA, Plaintiff was a lecturer at the University of
Michigan, and Dr. Bou-Assaly was an assistant professor of Radiology at the University of
Michigan. Compl. ¶¶ 10, 11. Plaintiff claims that in October, 2012, she met with the chairman of
the Radiology Department at the University of Michigan, Dr. N. Reed Dunnick, and told him that
women were treated disrespectfully. According to Plaintiff, Dr. Dunnick ignored her concerns and
moved to the next topic of discussion. Compl. ¶¶ 16-17. The University of Michigan is not a party
in this case.
Plaintiff alleges that Dr. Bou-Assaly became increasingly abusive and, in September, 2013,
touched her and other female workers, made sexually suggestive comments on a regular basis,
inappropriately texted female workers outside of work hours, and on December 6, 2013, exposed
his penis to Plaintiff and touched her breast when she attempted to get up and walk out of the room.
Compl. ¶ 19. Plaintiff reported this incident to local police which led to the filing of criminal
charges of fourth degree criminal sexual conduct against Dr. Bou-Assaly and an ultimate plea by
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Dr. Bou-Assaly to indecent exposure. (Pl.’s Resp. Ex. A, Register of Actions.)
Plaintiff claims to have made several complaints to her employer about Dr. Bou-Assaly’s
conduct but alleges that the VA never took action despite being on notice of his inappropriate and
dangerous behavior. Compl. ¶ 21-23. Plaintiff’s Complaint alleges that she was treated differently
based on unlawful consideration of her sex (Count I), was subject to a hostile work environment
(Count II), was retaliated against by the VA for her complaints of sexual harassment (Count IV), and
claims that the VA breached duties owed to her by inadequately hiring, training, retaining,
supervising and not reprimanding Dr. Bou-Assaly (Count III). Plaintiff claims to have suffered
severe depression, Post-Traumatic Stress Disorder and Anxiety, which she alleges has severely
affected her personality and ability to cope with her personal and professional life. In support of her
claim of psychological trauma, Plaintiff attaches the Affidavit of Dr. Gerald Shiener who conducted
a psychiatric examination of Plaintiff on September 4, 2014, and concluded that Dr. Bou-Assaly’s
assaults on Plaintiff have left her emotionally and psychologically traumatized such that she was
unable to report the sexual assault to her employer within the 45 days allowed under the applicable
statutory exhaustion requirements. (Pl.’s Resp. Ex. B, October 22, 2014 Affidavit of Dr. Gerald
Shiener ¶¶ 1-11.)
B.
Plaintiff’s Contacts With the Equal Employment Opportunity Office
Defendant moves to dismiss on the basis that Plaintiff failed to timely exhaust her
administrative remedies because she failed to file a Formal Complaint with the agency within the
statutorily prescribed fifteen (15) day time frame after receiving her Notice of Right to File a
Discrimination Complaint. Defendant also claims that as to her claims of gender-based harassment,
Plaintiff did not seek EEO counseling with regard to the sexual harassment conduct, the last instance
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of which occurred on December 6, 2013, within the statutorily required 45-day period for reporting
such conduct. Plaintiff does not dispute that she did not file a Formal Complaint within 15 days of
receiving her Notice of Right to File and does not deny that she failed to seek counseling within the
45-day window. She attempts to excuse her failure to heed both deadlines, claiming that she
“thought” she had filed a timely Formal Complaint based upon communications from the EEO
Office and that she was too traumatized by the sexual harassment to understand and appreciate the
45-day limitation on the time within which she was required to seek counseling.
Plaintiff claims that she was “under the impression” that a Formal Complaint had been filed
based upon communications she received from her EEO Counselor, Lydia Ward. (Pl.’s Resp. Ex.
C, October 23, 2014 Affidavit of Jean Kuriakose.) Plaintiff states that she contacted another EEO
Counselor, Diana Cass, on February 18, 2014, with regard to “the degrading and humiliating sexual
harassment” she had been subject to while working at the VA Hospital. Kuriakose Aff. ¶ 1.
Plaintiff claims she made contact with the Office of Resolution Management for the Department of
VA Affairs on March 3, 2014, to alert them of the sexual harassment she had undergone while
working at the VA Hospital. Id. ¶ 2. Plaintiff states that she “complied with all requirements to
assert her rights” and “actively participated in the complaint process and maintained contact” with
her EEO counselor, Lydia Ward, who “failed to tell [Plaintiff] that a formal complaint had not been
filed,” and “blatantly disregarded [Plaintiff’s] concerns.” Id. ¶¶ 2-5. In support of her claims that
she participated in the complaint process and was misled by Ms. Ward, Plaintiff attaches to her
response to the motion to dismiss a series of emails between herself and Ms. Ward which begins
with a March 31, 2014 Email from Ms. Ward to Plaintiff indicating that Plaintiff must respond to
the email to indicate whether she wanted to “go forward with this EEO Complaint.” (Pl.’s Resp. Ex.
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D, March 31, 2014 Email.) On April 2, 2014, Plaintiff responds that since she had “complained to
the you/ORM [sic], the matter of [her] having to move [her] work station, and changes of tour of
duty have not been pursued.” Id. April 2, 2014 Email. Plaintiff also mentions in this email that
“since there is a criminal persecution [sic], of the matter leading up to these events which I have
been called as a witness, I am a little uncertain as to what to do with the ORM paperwork and what
needs to be done etc.” Id. Ms. Ward’s responsive email is somewhat puzzling. First, she indicates
that since Plaintiff’s work station and tour of duty had not been changed, that issue appears not to
have resulted in any work related harm. She further states that: “You are a witness to the criminal
persecution; therefore, it does not appear that you were harmed.
ORM paperwork should be
completed and return unless it is you [sic] decision to withdraw your EEO Complaint.” Id. April
2, 2014 Email.
Defendant provides the Declaration of Tami S. Press, Regional EEO Officer for the
Department of Veterans Affairs, Office of Resolution Management (“ORM”) and the custodian of
the EEO administrative records relating to the Great Lakes Region, including the file relating to
Plaintiff. (Defs.’ Mot. Ex. 1, Sept. 23, 2014 Declaration of Tami S. Press ¶¶ 1-3. Ms. Press explains
that all ORM EEO records are kept in an electronic system known as Complaints Automated
Tracking System (“CATS”) that keeps track of every record received from or sent to an EEO
complainant. Press Decl. ¶ 4. The ORM file relating to Plaintiff indicates only that she made initial
contact on March 3, 2014, received a Notice of Right to File a Discrimination Complaint dated April
1, 2014 with a UPS Delivery Receipt dated April 3, 2014 and an ORM Counselor Report (content
unknown) dated April 9, 2014. Id. ¶ 5. The CATS records do not indicate that Plaintiff ever filed
a Formal Complaint. Id. ¶ 7.
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Defendant also provides the Initial Contact and Interview Sheet from Plaintiff’s March 3,
2014 contact which indicates that Plaintiff complained about a change in duty hours that occurred
on February 21, 2014. (Def.’s Mot. Ex. 2.) The Contact Sheet also explains as follows: “The AP
stated she was sexually assaulted last year by a co-worker who was firred [sic]. She stated that after
that she has been subjected to harassment the latest issue coming in the form of a Tour of duty
change.” Id. at 2. The Contact Sheet suggests that the current complaint related to the change in
Plaintiff’s tour of duty which Plaintiff claimed was related to the earlier sexual harassment.
Defendant also attaches the Declaration of Lydia Ward, Plaintiff’s EEO Counselor, who
confirms that on April 1, 2014, she sent Plaintiff a Notice of Right to File Formal Complaint which
explained in bold letters that Plaintiff had 15 days from her receipt of the Notice to submit her
Formal Complaint. (Def.’s Mot. Ex. 3, October 14, 2014 Declaration of Lydia Ward ¶ 5.) Ms. Ward
further declares that the EEO never received a Formal Complaint from Plaintiff or from her lawyer
within the 15-day time frame. Id. ¶¶ 6-7. Ms. Ward states that she did receive a communication
from Plaintiff’s lawyer on or about April 30, 21, 2014, representing that Plaintiff had filed a Formal
Complaint but after confirming that none was ever received from or filed by Plaintiff, Ms. Ward did
not respond to the letter because she had closed the file. Nor did Ms. Ward respond to Plaintiff’s
attorney’s July 21, 2014 letter seeking a copy of Plaintiff’s file and a status update, because the file
was closed and the letter therefore required no response. Id. ¶¶ 7-8; Pl.’s Resp. Exs. D, F, April 30,
2014 and July 21, 2014 Correspondence from Jonathan Marko to Ms. Ward. The Notice of Right
to File paperwork, attached to Defendant’s motion, clearly explains the process that Plaintiff must
go through, and the time frame in which she must complete the process, and explains exactly where
and to whom a Formal Complaint should be sent. (Def.’s Mot. Ex. 4.) Defendants also attach the
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UPS shipping information which indicates that an adult signature was required and that the package
was delivered to Plaintiff’s address on April 3, 2014 and signed for by “Jean.” (Def.’s Mot. Ex. 5.)2
Defendant attaches Ms. Ward’s Counselor Report which verifies the dates on which she was
contacted by Plaintiff and the date on which she sent the Notice of Right to File. (Def.’s Mot. Ex.
6.) The Counselor Report states that although Plaintiff indicated that she was not forced to change
her tour duty, “she did not withdraw her complaint” and was informed during a “final interview” that
any Formal Complaint of Discrimination would have to be based on the claim listed in her complaint
regarding change of tour of duty and or a claim that is “like or related to” that claim. Id. at 2-3.
Finally, Defendant attaches the Declaration of Diana Cass, the EEO Manager for the
Department of Veterans Affairs, Ann Arbor VA Healthcare System, who handled the initial
complaint from Plaintiff and first met with Plaintiff around February 19, 2014. (Def.’s Mot. Ex. 7,
October 9, 2014 Declaration of Diana Cass ¶¶ 1-4.) Ms. Cass referred Plaintiff to Ms. Ward, her
EEO Counselor, for the informal stage of the complaint process. Id. ¶¶ 4-6. Ms. Cass never
received a Formal Complaint from Plaintiff and has no knowledge that a timely Formal Complaint
was ever filed as required by law. Id. ¶ 6.
II.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim,
or cross-claim is asserted may file a motion for summary judgment “at any time until 30 days after
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Plaintiff’s counsel asserted at the hearing on Defendant’s motion that he never saw the April 3,
2014 Right to File Notice in the file he received from Plaintiff. This does not excuse Plaintiff’s
failure to have timely filed her Formal Complaint after receiving that Notice. Notably, Plaintiff’s
Affidavit does not deny receipt of the April 3, 2014 package and Plaintiff provides no evidence to
rebut the UPS Delivery Notification receipt that demonstrates receipt by “Jane” on April 3, 2014 at
1:17 p.m. The documentation submitted by Defendant is sufficient to charge Plaintiff with receipt
of the April 3, 2014 Notice of Right to File.
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the close of all discovery,” unless a different time is set by local rule or court order. Fed. R. Civ.
P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no
genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.
R. Civ. P. 56(a). “Of course, [the moving party] always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).
A fact is “material” for purposes of a motion for summary judgment where proof of that fact
“would have [the] effect of establishing or refuting one of the essential elements of a cause of action
or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)
(quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material
fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely,
where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material
fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this
evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the
non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). “‘The
central issue is whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.’” Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558
(6th Cir. 2005)).
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If this burden is met by the moving party, the non-moving party’s failure to make a showing
that is “sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial,” will mandate the entry of summary judgment.
Celotex, 477 U.S. at 322-23. “[A] complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id.at 324. “The test is
whether the party bearing the burden of proof has presented a jury question as to each element in
the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her
position, he or she must present evidence on which the trier of fact could find for the plaintiff.”
Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations
omitted). In doing so, the non-moving party may not rest upon the mere allegations or denials of
his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth
specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The
rule requires the non-moving party to introduce “evidence of evidentiary quality” demonstrating
the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.
1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce more than
a scintilla of evidence to survive summary judgment). “A party asserting that a fact . . . is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record.” Fed.
R. Civ. P. 56(c)(1)(A).
“Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to
make [his] case with a showing of facts that can be established by evidence that will be admissible
at trial. . . . In fact, ‘[t]he failure to present any evidence to counter a well-supported motion for
summary judgment alone is grounds for granting the motion.’ Rule 56(e) identifies affidavits,
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depositions, and answers to interrogatories as appropriate items that may be used to support or
oppose summary judgment.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting
Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)). “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it
should be interpreted in a way that allows it to accomplish this purpose.” Celotex, 477 U.S. at 32334.
III.
ANALYSIS
Plaintiff does not deny the facts presented in the various affidavits and declarations submitted
by the Defendant. In fact, she also relies on the March 31, 2014 to April 2, 2014 Email exchanges
to support her claim that she was “under the impression” that a Formal Complaint had been timely
filed. Plaintiff alleges that she interpreted Ms. Ward’s statement in the March 31, 2014 Email that
Plaintiff should respond if she “wish[ed] to go forward with this EEO Complaint,” to mean that a
Formal Complaint in fact had already been filed. Also, Plaintiff claims that she interpreted Ms.
Ward’s statement in her April 2, 2014 Email that Plaintiff should return her ORM paperwork “unless
it is you[r] decision to withdraw your EEO Complaint,” to mean that Plaintiff already had a Formal
Complaint on file. Plaintiff argues that, based upon these statements by Ms. Ward, Plaintiff was
“under the impression” that a Formal Complaint had already been filed, and therefore Defendant
should be estopped from claiming that Plaintiff failed to timely file a Formal Complaint. Plaintiff
further acknowledges that she did not complain of the December 6, 2013 sexual harassment by Dr.
Bou-Assaly until 67 days later, outside the 45 day time period required under the statute. She claims
that this delay is excused by the fact that she was too traumatized by Dr. Bou-Assaly’s conduct to
report the harassment in a timely fashion.
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A.
Plaintiff’s Estoppel-Based Argument
Title VII “provides the exclusive remedy for claims of discrimination in federal
employment.” Brown v. General Servs. Admin., 425 U.S. 820, 834 (1976). “The right to bring an
action under Title VII regarding equal employment [opportunity] in the federal government is
predicated upon the timely exhaustion of remedies, as set forth in [the EEOC regulations].” Hunter
v. Sec’y of the United States Army, 565 F.3d 986, 993 (6th Cir. 2009) (internal quotation marks and
citation omitted) (alterations in original). Under the EEOC regulations, an employee seeking to
assert a claim under Title VII must timely complete a two-step process. First, “[a]n aggrieved
person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be
discriminatory.” 29 C.F.R. § 1614.105(a)(1). Second, “[i]f the matter has not been resolved [after
counseling], the aggrieved person shall be informed in writing by the Counselor . . . of the right to
file a discrimination complaint,” 29 C.F.R. § 1614.105(d), and “[an EEO discrimination] complaint
must be filed [with the agency] within 15 days of receipt of the notice required by § 1614.105(d).”
29 C.F.R. § 1614.106(b). It is well established that a Title VII claim against a governmental agency
cannot be maintained unless the administrative steps outlined in these EEOC regulations have been
exhausted. See, e.g., Brown, 425 U.S. at 832 (noting that an aggrieved federal employee must meet
administrative preconditions before filing a claim of employment discrimination); Hunter, 565 F.3d
at 993 (“‘The right to bring an action under Title VII regarding equal employment [opportunity] in
the federal government is predicated upon the timely exhaustion of administrative remedies, as set
forth in [the EEOC regulations].’”) (Quoting Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991)
and Brown, 425 U.S. at 829–32).
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Plaintiff does not dispute that she was required to administratively exhaust her claims by
filing a Formal Complaint within 15 days of having received her Notice of Right to File. It is
undisputed Plaintiff never filed, and to this day still has not filed, a conforming Formal Complaint
with the EEO. Notwithstanding these undisputed facts, Plaintiff claims that Defendant should be
estopped from claiming that Plaintiff failed to file a Formal Complaint because of statements made
by Ms. Ward in her role as Plaintiff’s EEO counselor. Plaintiff alleges that Ms. Ward’s remarks in
an email gave Plaintiff “the impression” that she had filed a Formal Complaint. (ECF No. 7, Ex.
C, Kuriakose Aff. ¶ 5.)
The Sixth Circuit has held that a claim of estoppel against the government requires a greater
degree of misconduct than will sustain a typical estoppel-based claim:
“Estoppel is an equitable doctrine which a court may invoke to avoid injustice in
particular cases.” Fisher v. Peters, 249 F.3d 433, 444 (6th Cir. 2001). “[T]he
traditional elements of equitable estoppel are: (1) misrepresentation by the party
against whom estoppel is asserted; (2) reasonable reliance on the misrepresentation
by the party asserting estoppel; and (3) detriment to the party asserting estoppel.”
LaBonte v. United States, 233 F.3d 1049, 1053 (7th Cir. 2000). The government,
however, “may not be estopped on the same terms as any other litigant.” Heckler v.
Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 81
L.Ed.2d 42 (1984). Instead, “[a] party attempting to estop the government bears a
very heavy burden” in sustaining its argument. Fisher, 249 F.3d at 444. At a
minimum, the party must demonstrate some “affirmative misconduct” by the
government in addition to the other estoppel elements. Ibid.
Our Court has never announced the definition of “affirmative misconduct.” Although
we have cases applying the rule, see, e.g., In re Gardner, 360 F.3d 551, 559 (6th Cir.
2004), we have not set the bounds of the concept. A review of our sister circuits,
however, reflects a general consensus on the definition.
The Ninth Circuit defines “affirmative misconduct” as a deliberate lie or a pattern
of false promises. Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir.2001) (en
banc). In an earlier case it gave a more developed definition, explaining that
“[n]either the failure to inform an individual of his or her legal rights nor the
negligent provision of misinformation constitute affirmative misconduct.” Sulit v.
Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000). The Seventh Circuit defines
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“affirmative misconduct” as “more than mere negligence. . . . It requires an
affirmative act to misrepresent or mislead.” LaBonte, 233 F.3d at 1053. The Fifth
Circuit, in almost identical language, defines “affirmative misconduct” as
“something more than merely negligent conduct.” United States v. Marine Shale
Processors, 81 F.3d 1329, 1350 n. 12 (5th Cir. 1996). Instead, “the [government]
official must intentionally or recklessly mislead the estoppel claimant.” Id. at 1350.
Lastly, the Fourth Circuit defines “affirmative misconduct” as lying rather than
misleading and as malicious, not negligent, conduct. Keener v. E. Associated Coal
Corp., 954 F.2d 209, 214 n. 6 (4th Cir.1992).
Finding the common approach of sister circuits prudential, we hold that “affirmative
misconduct” is more than mere negligence. It is an act by the government that either
intentionally or recklessly misleads the claimant. The party asserting estoppel against
the government bears the burden of proving an intentional act by an agent of the
government and the agent's requisite intent.
Michigan Express, Inc. v. United States, 374 F.3d 424, 427 (6th Cir. 2004).
In response to Defendant’s motion, Plaintiff has failed to submit evidence of such intentional
or reckless deception sufficient to create a genuine issue of material fact on her claim of estoppel
based on Ms. Ward’s conduct. At most, Ms. Ward’s March 31, 2014 and April 2, 2014 Emails were
ambiguous and potentially confusing. Any suggestion that Ms. Ward intended to mislead Plaintiff
is belied by the fact that she followed up by sending the April 2, 2013 Email and, the very next day,
sending Plaintiff the unequivocal Notice of Right to File paperwork.3
3
Additionally, any
The Notice provided in pertinent part:
I have enclosed two copies of the Notice of Right to File a Discrimination Complaint
(including VA Form 4939). At this point you have three options available to you.
To help you make your decision, I have also enclosed a copy of EEOC’s Guidelines
for what it takes to prove discrimination. Please read these documents carefully and
make your decision based on the options below:
Option 1: You can choose to file a formal complaint of discrimination on some or
all of the issues. If you wish to file a formal complaint, please sign and date the
Notice of Right to File a Discrimination Complaint and VA Form 4939; retain one
copy for your records, and return a copy to one of the addresses listed on the Notice
of Right to File Discrimination Complaint.
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misconception on Plaintiff’s part that she had done everything necessary to file a Formal Complaint
should have been questioned, if not completely corrected, when she thereafter received the Notice
of Right to File on April 3, 2014, which clearly stated in bold print what had to be done and by what
date in order to file a Formal Complaint and continue with her claim of discrimination. At the very
least, this paperwork should have prompted an inquiry on Plaintiff’s part regarding the import of
those documents which clearly explained that further action was absolutely necessary in order for
Plaintiff to proceed with any discrimination claim and file a Formal Complaint.4
Plaintiff, as the party seeking to assert a claim of estoppel against a government agent, bears
the burden of proving an intentional act by that government agent and that agent’s intent. Michigan
Express, 374 F.3d at 427. Defendant’s motion demonstrated exactly the steps taken by Ms. Ward
If you decide to file a formal complaint, you have 15 calendar days from receipt
of this notice in which to do so. Please do not mail the VA Form 4939 to me; your
formal complaint must be mailed to one of the addressees listed on the first page of
the enclosed Notice of Right to File Discrimination Complaint.
Option 2: If after reviewing the EEOC guidelines for what it takes to prove
discrimination, you no longer wish to pursue your claims, you can end the process
by signing and dating the enclosed withdrawal form, which will indicate your desire
not to pursue the claims you discussed with the counselor any further. . . .
Option 3: If you take no further action, it will also indicate your wish not to pursue
the allegations discussed with the counselor any further.
4
Plaintiff asks the Court to grant her special indulgence in these matters because she was not “aided
by counsel with regard to the EEO process.” ECF No. 7, Pl.’s Resp. 10. In fact, however, her
present counsel, Mr. Marko, was assisting her in these matters during this 15-day period of time, as
demonstrated by a March 21, 2014 Freedom of Information Act request that Mr. Marko sent on
Plaintiff’s behalf seeking information relating to a “December 6, 2014 incident” and Dr. BouAssaly. ECF No. 8, Def.’s Reply Ex. A, March 21, 2014 Correspondence to the FOIA Officers at
Veterans Affairs Police. Also during this period of time, as Mr. Marko explained at the hearing on
Defendant’s motion, at least by early March, he was representing Plaintiff with regard to her
criminal proceedings although he did not formally appear at those proceedings to avoid the
indication to the criminal defense attorney that Plaintiff may be seeking damages in civil suit.
15
to inform Plaintiff of her rights and obligations with regard to further action on her charge of
discrimination. Plaintiff has presented insufficient evidence in response to create a genuine issue
of fact that Ms. Ward either intentionally or recklessly misled Plaintiff as to the time frame for filing
a Formal Complaint. Michigan Express, 374 F.3d at 427. Accordingly, even viewing the facts in
the light most favorable to the Plaintiff, there is no genuine issue of material fact that Plaintiff failed
to file a Formal Complaint within 15 days of receiving her Notice of Right to File and her Complaint
is DISMISSED on this basis alone for failure to properly exhaust her administrative remedies.
B.
Plaintiff’s Equitable Tolling Argument
As an alternative, or in addition to her equitable estoppel argument, Plaintiff asserts that she
is entitled to equitable tolling of the applicable time frames for pursuing her administrative remedies.
Plaintiff does not dispute that she was statutorily required to administratively exhaust her claims by
first complaining informally of the alleged discriminatory conduct within 45 days of its occurrence
but that she failed to do so within that 45-day time period. She admits that she did not seek EEO
counseling regarding Dr. Bou-Assaly’s sexual harassment until March 3, 2014, more than 60 days
after the latest date (December 6, 2013) on which she claims such conduct occurred. Although
Plaintiff acknowledges that she was actively cooperating in the prosecution of criminal charges
against Dr. Bou-Assaly in the months of February and March, 2014, she claims that she was too
emotionally distraught by Dr. Bou-Assaly’s conduct to report the incidents to her employer in early
February, 2014. She argues that due to her emotional distress during this period of time, her failure
to comply with the 45-day administrative reporting requirement should be excused and the reporting
period equitably tolled.
16
The administrative time requirements set forth in the EEOC regulations are subject to
equitable tolling in a very narrow set of circumstances. Irwin v. Dep’t of Veteran Affairs, 498 U.S.
89, 95-96 (1990) (recognizing that equitable tolling may apply “in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading during the statutory period, or
where the complainant has been induced or tricked by his adversary's misconduct into allowing the
filing dealing to pass”). See also Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003) (noting
that “the forty-five day filing period is not a jurisdictional prerequisite, and can be tolled where
principles of equity demand it”). “‘At the same time, the Supreme Court has made clear that tolling
in a Title VII context should be allowed ‘only sparingly.’” Steiner, 354 F.3d at 435 (quoting Irwin,
498 U.S. at 95). The Sixth Circuit similarly has noted that equitable tolling in the Title VII context
is “‘available only in compelling cases which justify a departure from established procedures.’” 354
F.3d at 435 (quoting Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th Cir. 1989)).
The decision whether to allow equitable tolling is fact specific and considers several factors.
These factors are not exhaustive and none is controlling:
In considering whether equitable tolling should apply, we generally look at five
factors: (1) whether the plaintiff had actual notice of the time restraint; (2) whether
she had constructive notice of the time restraint; (3) the degree of diligence exerted
in pursuing her rights; (4) the degree of prejudice to the defendant; and (5) the
reasonableness of plaintiff’s ignorance of the time constraint.
Steiner, 354 F.3d at 435 (citing EEOC v. Ky. State Police Dep't, 80 F.3d 1086, 1094 (6th Cir. 1996);
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)).
Plaintiff claims that her failure to timely report the alleged discrimination within the required
45-day period should be excused by her distressed mental state following the alleged assault by Dr.
Bou-Assaly.
While “[t]he Supreme Court has admonished against broadening equitable
17
modification of the Title VII limitations periods, [n]onetheless, some federal courts have adopted
narrow rules allowing for equitable tolling for mental incompetency.” Moody v. Bayliner Marine
Corp., 664 F. Supp. 232, 234 (E.D.N.C. 1987) (citing Baldwin County Welcome Center v. Brown,
466 U.S. 147 (1984) and Lopez v. Citibank, N.A., 808 F.2d 905 (1st Cir. 1987)) (alteration added).
Plaintiff relies on Stanciel v. Potter, No. 11-11512, 2012 WL 4513612, at *4 (E.D. Mich.
Oct. 1, 2012). In Stanciel, the court observed that “[m]ost Circuits, including the Sixth Circuit, have
allowed equitable tolling based on plaintiff’s mental illness.” 2012 WL 4513612, at *4 (citing
Barrett v. Principi, 363 F.3d 1316, 1319-20 (Fed. Cir. 2004) (collecting cases) and Cantrell v.
Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1180 (6th Cir. 1995)). However Cantrell, also a Title
VII case, actually involved a claim that plaintiff’s lawyer’s mental disabilities amounted to
abandonment of his client and caused plaintiff to miss the statutory deadline. Specifically, the Sixth
Circuit reasoned that: “ If Cantrell pursued his claim diligently, yet was abandoned by his attorney
due to his attorney's mental illness, equitable tolling may be appropriate.” 60 F.3d at 1181. In
reaching this conclusion, the Sixth Circuit relied on Burton v. United States Postal Service, 612 F.
Supp. 1057, 1059 (N.D. Ohio 1985) (equitable tolling based on attorney's abandonment of client
who pursued his claim as diligently as possible) and Moody, supra, 664 F. Supp. at 236 (mental
incapacity of plaintiff may warrant equitable tolling of statute of limitations requirements in Title
VII action). Thus, although Cantrell did not expressly hold that a plaintiff’s mental disability can
serve to toll the Title VII time requirements, it did suggest agreement with such a proposition
through citation to Moody, a case in which the court did expressly hold that Title VII actions may
be tolled by mental incapacity of the plaintiff. 664 F. Supp. 2d at 236. The court in Moody noted
how narrow such an exception would be and held that tolling in such a situation would be
18
appropriate only in a “rare circumstance.” Id. at 235. In Moody, the court in fact found that tolling
was not appropriate given the circumstances in that case. Id. at 236.
Thus, Plaintiff bears a heavy burden in establishing a claim of equitable tolling due to mental
incapacity and any claimed mental illness must be shown specifically to have affected the claimant’s
ability to understand her legal rights and comply with the applicable deadlines:
A plaintiff invoking the doctrine of equitable tolling bears the burden of
demonstrating that the doctrine should apply in his or her case. See Kellum v.
Comm'r of Soc. Security, 295 F. App'x 47, 49 (6th Cir. 2008); see also, Jessie v.
Potter, 516 F.3d 709, 715 (8th Cir. 2008); Hardy v. Potter, 191 F. Supp. 2d 873, 879
(E.D. Mich. 2002) (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). To
warrant equitable tolling, a plaintiff must do more than show that he or she suffers
from a disability. Nunnally v. MacCausland, 996 F.2d 1, 5 (1st Cir. 1993) (indicating
that cases applying equitable tolling based on mental illness “eschew reliance solely
on a diagnosis”). The plaintiff must show that a mental disability interfered with his
or her compliance with the deadline sought to be tolled. See, e.g., Boos, 201 F.3d at
185 (finding the plaintiff's conclusory and vague claim that she suffers from
“paranoia, panic attacks, and depression” insufficient to invoke equitable tolling,
“without a particularized description of how her condition adversely affected her
capacity to function generally or in relationship to the pursuit of her rights”);
Smith–Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)
(indicating that to warrant equitable tolling, the plaintiff's disability “must be ‘of
such a nature as to show she is unable to manager her business affairs or estate, or
to comprehend her legal rights or liabilities.”); Miller v. Runyon, 77 F.3d 189, 191
(7th Cir. 1996) (recognizing equitable tolling based on the plaintiff's mental illness
“only if the illness in fact prevents the sufferer from managing his affairs and thus
from understanding his legal rights and acting upon them.”); Nunnally, 996 F.2d at
5 (stating that “[e]quitable relief is denied if the plaintiff was able to engage in
rational thought and deliberate decision making sufficient to pursue his claim alone
or through counsel.”); see also Barrett, 363 F.3d at 1321 (adopting Nunnally’s
standard to assess whether the plaintiff's mental incompetence warrants tolling).
Stanciel, 2012 WL 4513612, at *5.
In support of her equitable tolling claim, Plaintiff attaches the Affidavit of Dr. Shiener, which
indicates that Plaintiff was “distraught” following the incidents with Dr. Bou-Assaly and suffered
“depression and PTSD” and was “withdrawn and anxious.” Shiener Aff. ¶¶ 3-6. Dr. Shiener opines
19
that people who suffer sexual assault are often ashamed of reporting abuse and “incapable of coming
to terms with what happened to them.” Id. ¶ 8. Dr. Shiener concludes that this occurred in
Plaintiff’s case and rendered her unable to report the incident within the 45-day time period. Id. ¶
9.5
Plaintiff’s claim that she failed to contact an EEO counselor within 45 days of December 6,
2013, due to her emotional instability during that time period, also fails to create a genuine issue of
material fact with respect to tolling. The observations contained in Dr. Shiener’s Affidavit are just
the type of “conclusory and vague claim[s] . . . [of] paranoia, panic attacks, and depression [that are]
insufficient to invoke equitable tolling, without a particularized description of how her condition
adversely affected her capacity to function generally or in relationship to the pursuit of her rights.”
Stanciel, 2012 WL 4513612, at *5 (internal quotation marks and citations omitted). Dr. Shiener
does not explain how Plaintiff’s condition “adversely affected her capacity to function generally or
in relationship to the pursuit of her rights.” Id. Indeed, Defendants have attached Plaintiff’s work
time sheets for the period of time from December 6, 2013 to the present, which demonstrate that she
has worked a full schedule as a radiologist without significant aberration throughout this claimed
period of intense emotional disturbance. Interestingly, Plaintiff does not claim in her Affidavit that
she was suffering from extreme emotional distress that prevented her from engaging in the process
to secure her legal rights. In fact, at least as of February 18, 2014, Plaintiff claims that she was very
5
Interestingly, at least as early as February 19, 2014, Plaintiff was able to report the incident to the
police and to cooperate in a criminal prosecution against Dr. Bou-Assaly for criminal sexual conduct
and indecent exposure. (ECF No. 7, Pl.’s Resp. Ex. A, Register of Actions.) Also notable is the fact
that Plaintiff’s counsel, as he explained at the hearing on Defendant’s motion and as discussed
supra, was representing Plaintiff during the time of the criminal prosecution. Having retained
counsel was recognized by the court in Moody, supra, as a basis for denying plaintiff equitable
tolling based on mental incapacity. 664 F. Supp. at 236.
20
involved in the process and complied with “all requirements to assert her rights.” (Kuriakose Aff.
¶¶ 1-4.) How Plaintiff came to recover so abruptly from her disabling mental instability which
prevented her from complying with the 45-day reporting deadline which expired on or about
February 6, 2014 so that she was able on February 18, 2014 to being to vigorously pursue her rights
and actively participate in the EEO complaint process, goes unexplained. Dr. Shiener opines that
Plaintiff continues to suffer from the same conditions that disabled her from reporting the alleged
assault to her employer within the 45-day period. Shiener Aff. ¶ 10. Yet, while still suffering from
these emotional disturbances, Plaintiff has been able to assert her rights, both at the EEO level and
in this Court. The court in Moody, supra, observed that such inconsistent behavior led to the
inescapable conclusion that plaintiff could have timely complied with the statutory deadlines,
although then suffering under the same allegedly disabling mental instability. “Despite the fact that
her condition has not improved, plaintiff has pursued an EEOC claim and subsequently filed this
lawsuit. Therefore, the court can only conclude that plaintiff was capable of filing the claim during
the filing period.” Moody, 664 F. Supp. at 236. So too here.
Plaintiff has not created a
genuine issue of material fact that mental disability prevented her from understanding her legal
rights and specifically from contacting and EEO counselor within 45 days of Dr. Bou-Assaly’s
alleged sexual harassment.
Importantly, Shiener’s Affidavit very specifically speaks only to Plaintiff’s mental instability
during the 45-day period within which Plaintiff was required to begin the informal complaint
process. Shiener Aff. ¶ 9. Nothing in Shiener’s Affidavit speaks to the 15-day period between April
3, 2014 and April 18, 2014, when Plaintiff was required to file her Formal Complaint. Nothing in
the Shiener Affidavit creates a genuine issue of fact regarding Plaintiff ‘s mental state and ability
21
to understand the legal significance of the deadlines set for in the Notice of Right to File that she
received on April 3, 2014. Her claimed “mental instability,” even if it did absolve her failure to
timely act within 45 days of the alleged assault, which the Court concludes it did not, cannot justify
missing this later deadline. Dr. Shiener’s Affidavit does not purport to speak to Plaintiff’s mental
state in this subsequent time period and the facts, including Plaintiff’s own affidavit, indicate that
she was vigorously pursuing her rights during this time period. Accordingly, Plaintiff has failed to
establish the existence of a genuine issue of material fact on the issue of equitable tolling as to either
the 45-day or the 15-day statutory periods and Defendants are entitled to summary judgment based
on Plaintiff’s failure to exhaust her administrative remedies.
IV.
CONCLUSION
The Court concludes that Plaintiff failed to timely file a Formal Complaint within 15 days
of receiving her Notice of Right to File paperwork and has failed to create a genuine issue of
material fact that equitable estoppel or equitable tolling applies to excuse this failure. Accordingly,
the Court DISMISSES her Complaint for failure to exhaust her administrative remedies.
Although the Court need not reach the issue, the Court also concludes that Plaintiff failed
to timely contact an EEO counselor within the 45-day statutory period and has failed to create a
genuine issue of material fact that mental instability specifically precluded her from acting timely
to contact an EEO counselor. Accordingly, her Complaint is subject to dismissal for this separate
and independent failure to exhaust her administrative remedies.
22
For the foregoing reasons, the Court GRANTS Defendant’s Motion (ECF No. 4) and
DISMISSES Plaintiff’s Complaint WITH PREJUDICE.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 21, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on May 21, 2015.
s/Deborah Tofil
Case Manager
23
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