Hairston v. Department of Veterans Affairs, et al

Filing 9

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VINCENT HAIRSTON,
Case No. 1:15-CV-660
Plaintiff,
v.

HON. GORDON J. QUIST

DEPARTMENT OF VETERANS AFFAIRS
and SECRETARY ROBERT A.
MCDONALD, in his official capacity,
Defendants.
/
OPINION
Plaintiff, Vincent Hairston, has sued Defendants, alleging a claim of hostile work
environment based on race and sex in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq. (Title VII). Defendants have filed a motion to dismiss
Hairston’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants contend that
dismissal is required because Hairston’s allegations fail to satisfy three elements of a hostile work
environment claim under Title VII and that amendment would be futile because Hairston may not
plead facts that he did not raise in the administrative proceeding. The motion is now fully briefed
and ready for decision.
For the following reasons, the Court will grant Defendants’ motion and dismiss Hairston’s
complaint.
I. BACKGROUND 1
Hairston was employed by the United States Department of Veterans Affairs (VA) as a
Medical Support Clerk in the Medical Support Assistant Area (MSA) at the Battle Creek VA

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The following facts are taken from Hairston’s allegations in his complaint as well as Hairston’s administrative
claim documents attached to Defendants’ brief in support of the instant motion, which Hairston references in his
complaint.

Medical Center’s Community Based Outpatient Clinic in Lansing, Michigan from January 27, 2013
until approximately July 11, 2014, when Hairston transferred to another VA facility in Georgia.
(Dkt. # 1, ¶¶ 7–8, 44–45; dkt. # 6-3 at Page ID##47–48.) Hairston alleges that during his
employment at the Lansing facility, he was subjected to a hostile work environment by three
individuals—Janette Shaw, a nurse who was the leader of Hairston’s Patient Aligned Care Team (id.
at Page ID#48); James Rios, a Health Technician (dkt. # 1, ¶ 25); and Wendy Hamlin, the
Program/Nurse Manager at the Battle Creek facility and Hamlin’s first-line supervisor (Id. ¶ 14; dkt.
# 6-3 at Page ID#48).
Hairston alleges that Shaw routinely harassed, embarrassed, and criticized him “to try to get
him terminated out of a sense of personal animosity.” (Dkt. # 1, ¶¶ 11, 55.) Hairston alleges six
specific instances of harassment by Shaw:
•

Around January or February of 2013, Shaw accused Hairston of scheduling an
appointment. After Hairston stated that he had done so as instructed by another
nurse and a social worker, Shaw continued to berate Hairston in front of everyone
who was present. (Id. ¶¶ 8, 9.)

•

On or about October 16, 2013, Shaw attempted to discuss a work incident with
Hairston, but Hairston refused to engage Shaw. (Id. ¶ 11.)

•

On or about October 28, 2013, Shaw accused Hairston of putting a patient’s labs in
the VISTA System. The same day, Shaw went to MSA to complain about an
unaddressed alert. Hairston responded that MSA was short staffed, but Shaw blamed
Hairston in front his colleagues without asking for any details. (Id. ¶¶ 12, 13.)

•

On or about October 30, 2013, Shaw told nurse Sarah Jones that she should “be
careful” about how she deals with Hairston. (Id. ¶ 17.)

•

On or about November 7, 2013, Shaw went to Hairston’s desk and inquired about a
lab sign that had been put up on the clinic areas. Hairston asked Shaw why she was
asking him about the sign and Shaw stated that she wanted to know whether a lab
technician had told Hairston to put up the lab signs because she had to report it to the
“higher ups.” Hairston told Shaw that he did not want to be bothered, and Shaw
responded, “‘You don’t have to write it down in your little book (in reference to
Plaintiff’s journal). I am not going to do anything to you.’” (Id. ¶¶ 19–21.)

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•

On or about February 20, 2014, Shaw called Hairston into her office to discuss a
message received from MYHEALTH-E-VET about a patient. Shaw asked Hairston
why she hadn’t received the message, and Hairston explained what had happened
and reviewed the reassignment message process for Shaw. Shaw wouldn’t accept
Hairston’s explanation of the process and continued to badger Hairston. (Id. ¶¶
27–30.)

Hairston alleges that Rios harassed Hairston on two occasions:
•

On or about January 28, 2014, Rios approached Hairston about a lab order and
claimed that Hairston had not checked the correct one. Rios said he was being held
responsible and that Hairston had to answer for it. Hairston admitted his mistake and
promised to do better in the future. Rios also erroneously attributed a GS7 status to
Hairston, who in fact was a GS6 at the time. Rios left the room in anger after a
verbal exchange regarding Rios’s mistake. (Id. ¶¶ 25–26.)

•

On or about February 21, 2014, Rios was very rude and abrasive to Hairston
regarding a part order. Rios ignored Hairston’s response and told Hairston to “do his
damn job.” Hairston told Rios that Hairston would contact his supervisor and the
Office of Resolution Management (ORM) if Rios persisted in his harassment, and
Rios asked if Hairston was making a threat. Hairston confirmed that he was stating
the course of action he would take. (Id. ¶¶ 31–34.)

Hairston alleges that Hamlin harassed him as follows:
•

On or about March 4, 2014, Hamlin forcefully attempted to get Hairston to discuss
the recent incident with Rios, but Hairston refused to do so and told her to contact
his attorney. (Id. ¶¶ 36–40.)

•

On or about March 12, 2014, Hairston’s co-workers told him that Hamlin was
monitoring his work activities through the Microsoft Lynx Instant Messaging
System. (Id. ¶ 43.)

Hairston notified Barbara Williams, the Administrative Officer of the Battle Creek VA
Center about the incident in which Shaw accused Hairston of scheduling an appointment, and
requested permission to use his leave to go home and deal with his anger about the incident.
Williams told Hairston it wouldn’t do him any good and denied his request. (Id. ¶ 10.) At some
point, apparently in October 2013, Hairston contacted Susan Honaker, the Acting Administrative
Officer, about Shaw’s harassment. Hairston requested to take some time off to de-stress. Honaker
said that she and Hamlin were going to talk to Hairston about the incidents. Hairston decided to not
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take time off. Honaker ended up addressing the issue by sending an email to the department as a
whole detailing the VA Harassment Policy. (Id. ¶¶ 14–15.)
On or about November 5, 2013, VA management initiated a fact-finding investigation into
Hairston’s reports of harassment by Shaw. The management recommended mediation between
Shaw and Hairston and promised to explore a possible transfer. The management also advised Shaw
of their expectations of civility in the proposed mediation. (Id. ¶ 18.) On or about December 31,
2013, Hairston emailed Hamlin about a transfer due to discrimination and the hostile work
environment. Hairston gave Hamlin permission to speak to human resources about a transfer. A
few days later, on January 2, 2014, human resources denied Hairston’s request because it lacked
authority to authorize a transfer. (Id. ¶¶ 23–24.)
Following the second incident with Rios, Hairston filed a complaint with ORM and
contacted Hamlin. On March 4, 2014, ORM sent Hairston an email stating that it was investigating
his complaint. The same day, Hamlin attempted to follow up with Hairston to obtain details about
the incident with Rios, but Hairston refused to discuss it with her and told her to contact his attorney.
(Id. ¶¶ 36–38.)
On October 25, 2013, Hairston presented his informal complaint to an Equal Employment
Opportunity Counselor. (Dkt. # 6-1 at Page ID#42.) Hairston alleged that he suffered a hostile work
environment on the basis of race and sex resulting solely from harassment by Shaw. Hairston
alleged that Shaw approached him on October 16, 2013 about an incident in the clinic, and that from
January 2013 through the present, Shaw scrutinized Hairston on everything he had done,
embarrassed him and ridiculed his work, asked him, “‘[a]re you really here to help?’” and “made
it known she does not want him in the clinic.” (Id.) Hairston filed a formal complaint with ORM
on November 26, 2013. (Dkt. # 6-4.) On December 11, 2014, the Office of Employment

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Discrimination Complaint Adjudication issued a final agency decision finding no discrimination.
(Dkt. # 6-3.) The issues pertaining to the hostile work environment claim were limited to: (1)
Shaw’s general scrutiny and ridicule of Hairston from January 2013 to the present; (2) Shaw’s
negative comments on October 15, 2013; (3) Shaw’s attempt to discuss an issue with Hairston on
October 16, 2015; and (4) management’s denial of Hairston’s transfer request on January 2, 2014.
(Id. at Page ID#48.)
II. MOTION STANDARD
Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are
not required, but “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)). The court must accept all of
the plaintiff’s factual allegations as true and construe the complaint in the light most favorable to
the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The court must determine
whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009). Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556, 127 S. Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not

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‘show[n]’—that the pleader is entitled to relief.” Id. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ.
P. 8(a)(2)).
In addressing a motion to dismiss, as a general rule, a district court may not consider matters
outside the pleadings unless the motion is converted to a motion for summary judgment. Fed. R.
Civ. P. 12(d); Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). However, the Sixth Circuit
has held that, without converting a motion to dismiss for a motion for summary judgment, a district
court may “consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long
as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v.
NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citation omitted). Because Hairston refers to his
administrative claim documents in his complaint, the Court may consider the administrative process
documents attached to Defendants’ brief in deciding the instant motion to dismiss.
III. DISCUSSION
Defendants move for dismissal of Hairston’s complaint because Hairston fails to allege three
elements of a hostile work environment claim—harassment based on race or sex, creation of a
hostile work environment, and employer liability. Defendants further argue that the facts supporting
Hairston’s claim must be limited to the facts he asserted in his administrative complaint. Defendants
argue that such facts are insufficient to establish a hostile work environment claim, but the same is
true even if all of the facts Hairston alleges in his complaint in this case are considered. Finally,
Defendants argue that amendment is futile because Hairston cannot now allege additional facts that
he did not allege in the administrative proceeding.
Hairston concedes that his complaint in this case includes facts that he did not raise in the
administrative proceeding, but he argues that he is not precluded from asserting those facts in this
case because they relate to or grow out of the facts he asserted in the administrative proceeding.
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Hairston further argues that, considering these facts, his allegations suffice to state a hostile work
environment claim. Hairston does not request an opportunity to amend to cure any pleading
deficiency, nor does he claim to have additional facts to add to his claim.
The Court need not decide whether Hairston’s factual allegations concerning the October 28,
2013, October 30, 2013, November 7, 2013, and February 20, 2014 incidents involving Shaw and
Harrison’s factual allegations regarding Rios and Hamlin—which were not raised during the
administrative process—may be deemed exhausted, because Hairston fails to allege a hostile work
environment claim even when all of his factual allegations are considered.
To state a claim for hostile work environment discrimination under Title VII, a plaintiff must
allege that: (1) he was a member of a protected class; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on race or sex; (4) the harassment created a hostile work
environment; and (5) employer liability. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733
(6th Cir. 2006). Hairston fails to state a hostile work environment claim because none of his
allegations indicates that the harassment of which he complains was based on or motivated by race
or sex. In addition, Hairston’s allegations are insufficient to show a hostile work environment.
Finally, Hairston fails to allege employer liability.
Harassment Based on Sex or Race
Title VII prohibits employers from discrimination in employment based on an “individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Harassment based on sex
or race that creates a hostile work environment is one form of discrimination that Title VII prohibits.
See Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404 (1986). Before a
court inquires “as to whether the degree of ‘harassment’ was sufficient to violate Title VII, it is
important to determine whether there was any discriminatory ‘harassment’ in the first place.”
Schramm v. Slater, 105 F. App’x 34, 39 (6th Cir. 2004). The Supreme Court has noted that “Title
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VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002 (1998). Rather, Title VII pertains only
to harassment based on a protected status, such as sex or race. Id. Thus, “the conduct of jerks,
bullies, and persecutors is simply not actionable under Title VII unless they are acting because of
the victim’s [protected status].” Wasek v. Arrow Energy Servs., 682 F.3d 463, 467 (6th Cir. 2012).
The Court has scoured Hairston’s complaint for some hint that the incidents of harassment
of which he complains were motivated by sex- or race-based animus, but has found none. While
Hairston uses the terms “race” and “gender”2 in the title of his claim and in one paragraph describes
himself as an “African-American, Male.” (dkt. # 1 at Page ID#8), he fails to allege a single incident
that can arguably be considered of a sexual or racial nature. In fact, Hairston admits that Shaw—the
primary harasser—tried “to get him terminated out of a sense of personal animosity,” rather than
because of his race or sex. (Id. ¶ 11.) Moreover, Hairston does not allege that Shaw, Rios, or
Hamlin ever told a racially- or sexually-tinged joke, used a racial slur or epithet, or made sexuallyor racially- suggestive comments to him or to others. Hairston’s legal theory seems to be that Title
VII was violated because he was criticized and/or harassed by other employees about his job
performance and he happens to be an African-American male. However, the fact of a protected
status is not enough; Hairston must allege harassment based on that protected status, and he has
failed to do so. See Watts v. Lyon Cnty. Ambulance Serv., 597 F. App’x 858, 860 (6th Cir. 2015)
(noting that “the statute does not insulate men from any and all adverse employment actions”). Each
of the incidents that Hairston describes in his complaint involve sex- and race-neutral disagreements
or criticism regarding work incidents. Hairston argues that his allegations that Ms. Dotts—a white

2

Although Hairston references gender, the Court understands that Hairston is actually asserting a claim based
on sex discrimination, i.e., “the biological differences between men and women,” verses gender discrimination, or
“discrimination based on a failure to conform to stereotypical norms.” Smith v. City of Salem, 378 F.3d 566, 573 (6th
Cir. 2004).

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female coworker—was given favorable treatment for dress code violations and that Hamlin
monitored his work activities through the MSLynx Message System suffice to show racial or sexual
animus. This argument is without merit. Hairston does not allege that he was harassed for, or
accused of, dress code violations, and nothing about Hamlin’s monitoring activities suggest racial
or sexual animus. Thus, Hairston’s allegations fail to raise an inference of discrimination based on
sex or race.
Hostile Environment
Even if the alleged harassment could be considered sexually or racially motivated rather than
based solely on personal conflict and criticism, Hairston has failed to allege a hostile work
environment. Such an environment exists “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (internal quotation marks and citation omitted). In Harris,
the Court observed:
mere utterance of an . . . epithet which engenders offensive feelings in a employee
does not sufficiently affect the conditions of employment to implicate Title VII.
Conduct that is not severe or pervasive enough to create an objectively hostile or
abusive work environment – an environment that a reasonable person would find
hostile or abusive – is beyond Title VII’s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim’s employment, and there is no Title VII violation.
Id. at 21-22, 114 S. Ct. at 370 (internal citations omitted). A court must consider the totality of the
circumstances in determining whether an environment is “hostile” or “abusive,” including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. at 23, 114 S. Ct. at 371. “A mere unfriendly work environment

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is insufficient to establish liability.” Mast v. IMCO Recycling of Ohio, Inc., 58 F. App’x 116, 118
(6th Cir. 2003).
Considering the totality of the circumstances, Hairston’s allegations fail to show an
objectively hostile or offensive work environment. Hairston identifies a total of nine incidents
involving three individuals that occurred over approximately fourteen months. All of the incidents
were relatively minor and did not affect or interfere with Hairston’s ability to do his job. Hairston
alleges a total of six incidents involving Shaw, but only three in which she allegedly berated,
badgered or criticized Hairston about his work performance. During those incidents, Shaw never
made any sexually-or racially-derogatory comments to Hairston and she did not physically threaten
or touch him. Similarly, in the two incidents involving Rios, Hairston alleges that Rios was angry
and rude and abrasive to Hairston, but Rios did not make any sexually- or racially-tinged comments
and did not physically threaten or intimidate Hairston. Finally, the single instance of interaction
with Hamlin that Hairston claims was harassment—in which Hamlin “made a more forceful attempt
to get” Hairston to discuss the recent incident involving Rios—and Hamlin’s alleged monitoring of
Hairston’s work activities through the Microsoft Lynx Messaging System fall short of a hostile or
offensive work environment. While all of these incidents may have been stressful or unpleasant for
Hairston, they were not, from an objective standpoint, sufficiently severe to create a workplace
permeated with “discriminatory intimidation, ridicule, and insult” that altered the terms or
conditions of Hairston’s employment. Harris, 510 U.S. at 21, 114 S. Ct. at 370 (internal quotation
marks omitted). In short, Hairston’s allegations reveal no more than “the ordinary tribulations of
the workplace, such as the sporadic use of abusive language,” that is not actionable under Title VII.
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2284 (1998); see Hale v. ABF
Freight Sys., 503 F. App’x 323, 337–38 (6th Cir. 2012) (holding that a “spate” of emails from the

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plaintiff’s supervisor to the plaintiff criticizing the plaintiff for his job performance did “not rise to
the level of severity or frequency required to sustain a hostile work environment claim”).
Employer Liability
Even if Hairston had sufficiently alleged circumstances constituting a sex-or race-based
hostile work environment, his claim would still be subject to dismissal because Hairston fails to
allege employer liability. An employer is liable for coworker harassment if the employer “knew or
should have known of the harassment, yet failed to take prompt and appropriate corrective action.”
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008). The employer may be held
liable if its response “manifests indifference or unreasonableness.” Id. (internal quotation marks
omitted). “Generally, a response is adequate if it is reasonably calculated to end the harassment.”
Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (internal quotation marks
omitted). Reasonable corrective steps “may include promptly initiating an investigation to
determine the factual basis for the complaint, speaking with the specific individuals identified by
[the complainant], following up with [the complainant] regarding whether the harassment was
continuing, and reporting the harassment to others in management.” Id. (internal quotation marks
omitted).
Hairston only alleges that he reported a few of the incidents to a supervisor, and he does not
allege that he told the supervisors that he viewed any of the incidents as involving race or sex
discrimination. As set forth above, none of the details that Hairston relates in his complaint suggests
that any of the incidents were motivated by race or sex discrimination. Moreover, Hairston’s own
allegations demonstrate that VA supervisors took appropriate steps that were reasonably calculated
to end the harassment. Hairston alleges that after he complained about Shaw to Susan Honaker, she
and Hamlin met with Hairston to talk about his concerns. (Dkt. # ¶ 14.) Honaker sent an email to
the department as a whole reminding them of the VA’s harassment policy. (Id. ¶ 15.) Hairston also
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alleges that VA management initiated a fact-finding investigation, recommended mediation between
Hairston and Shaw, and reminded Shaw that they expected her to be civil during the mediation. (Id.
¶ 18.) In addition, when Hairston requested a transfer, Hamlin contacted human resources to
determine whether the Lansing facility could transfer Hairston to another facility. Hamlin learned
that the Lansing facility had no authority to transfer Hairston. (Id. ¶ 24.) Finally, Hairston
complained to ORM and Hamlin about the February 21, 2014 incident with Rios, and ORM
investigated his complaint. When Hamlin attempted to discuss the incident with Hairston, Hairston
refused to discuss it, thus preventing her from further pursuing the complaint. (Id. ¶¶ 34, 37–38.)
Hairston argues that the VA’s response was inadequate because it refused to facilitate
Hairston’s requested transfer and took insufficient action to end the harassment. However, as
Hairston admits in his complaint, the agency was not authorized to transfer Hairston. Moreover,
given the apparent nature of Hairston’s reported complaints—a dispute between coworkers
(Hairston and Shaw) regarding work performance, lacking any indicia of sexual or racial
harassment—the agency’s response was adequate. Thus, Hairston’s arguments lack merit.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ motion to dismiss.
An Order consistent with this Opinion will enter.

Dated: December 21, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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