Buckhanan v. Shulkin et al

Filing 27

Memorandum Opinion and Order granting 17 MOTION to Dismiss, with the exception of plaintiff's claims for discrimination under Title VII and the ADEA against Secretary Shinseki. Signed by District Judge Tom S. Lee on 10/3/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
ALICE BUCKHANAN
VS.

PLAINTIFF
CIVIL ACTION NO. 3:13CV278TSL-JMR

ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF THE UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS;
VETERANS ADMINISTRATION MEDICAL
CENTER, JACKSON G.V. “SONNY” MONTGOMERY
MEDICAL CENTER; JOE BATTLE;
CHARLES DONELSON and DOES 1 through 10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on a motion to dismiss
pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure filed by defendants Erik K. Shinseki, in his
official capacity as Secretary of the United States Department of
Veterans Affairs; Veterans Administration Medical Center/Jackson
G.V. “Sonny” Montgomery Medical Center (VA Medical Center);1 Joe
Battle, in his individual capacity and his official capacity as
Director of the VA Medical Center; and Charles Donelson, in his
individual capacity and his official capacity as supervising
police sergeant at the VA Medical Center.

Plaintiff Alice

Buckhanan has responded to the motion and the court, having

1

Although plaintiff has purported to sue the Veterans
Administration Medical Center and the G. V. “Sonny” Montgomery
Medical Center as separate defendants, these are the same entity.

considered the memoranda of authorities submitted by the parties,
concludes the motion should be granted.
In November 2012, plaintiff Alice Buckhanan was terminated
from her employment as a police officer with the Jackson VA
Medical Center, for the ostensible reason that she had twice
failed to pass required firearms proficiency testing.

She brought

the present action, asserting causes of action for (1) retaliatory
discharge for filing an EEO complaint; (2) retaliatory discharge
for filing a workers’ compensation action; (3) discrimination
based on race; (4) discrimination based on gender;
(5) discrimination based on age; (6) breach of employment
contract; (7) breach of conditions of employment;

(8) hostile

work environment; and (9) negligent and intentional infliction of
emotional distress.

By their motion, defendants seek dismissal of

all plaintiff’s claims against defendants Battle and Donelson and
for dismissal of her claims for hostile work environment,
retaliation based on filing a workers’ compensation claim, and for
breach of contract, breach of conditions of employment and
intentional and negligent infliction of emotional distress,
against all defendants.2

2

Defendants do not seek dismissal of plaintiff’s Title
VII or ADEA discrimination claims against Secretary Shenseki.
2

Facts and Procedural History
The facts, as alleged in the complaint, are as follows.
Plaintiff became employed as a police officer with the VA Medical
Center in 2002.

In 2010, plaintiff filed an EEO claim for race

and gender discrimination.

Thereafter, in March 2011, she

suffered a compensable work-related injury for which she was
assigned to alternate duty for approximately a year.

In March

2012, she began the process of transitioning back to a law
enforcement position, by which she was required to undergo
physical and psychological evaluations and to be tested in
firearms proficiency.

She passed her physical examination.

She

also passed her psychological evaluation, but only after she
requested an independent evaluation when it became apparent to her
during her initial evaluation by a Dr. Williams that someone (whom
she later determined to be defendant Donelson) had given Dr.
Williams false and negative information about her.
Plaintiff alleges that on May 18, 2012, immediately upon the
VA’s confirming that she had passed her physical and psychological
evaluations, she was required to undergo firearms testing without
reasonable notice and time to prepare.

She claims that under

applicable policy, she was entitled to take a refresher course
prior to testing since she had been out of law enforcement for
more than six months due to her injury, and yet she was not given
this opportunity.

Plaintiff asserts that during the written
3

portion of the firearms test, she was falsely and publicly accused
of cheating without any basis.

She further alleges that although

defendants later claimed when terminating her that she had failed
three attempts at the shooting portion of the test, in fact, she
was given only one attempt, rather than three, as was the standard
training and testing given to all employees.
Plaintiff states that after the incomplete firearms testing
in May, which was done in Jackson, she was required to travel to
the Law Enforcement Training Center in Arkansas for additional
firearms testing; and while she complained that her work and the
travel schedule required her to arrive without adequate time for
rest before commencing training and testing, and further
complained that she believed she was being discriminated against
because of her race and gender, no effort was made to accommodate
her travel and work schedule.

During the testing in late June

2012, plaintiff was required to score a forty out of fifty on at
least one of three qualifying attempts in order to achieve a
passing score.

She failed to qualify, however, as her highest

score was thirty-nine, which she scored on two of the three
targets.

Plaintiff notes that there was extended discussion

between the scoring instructors about the number of hits and
complains that she was not allowed to inspect the targets herself
to ascertain whether she was given the correct scores.

4

In early July, plaintiff was placed on administrative leave,
followed closely by a proposal for her termination, ostensibly for
having twice failed to pass the firearms proficiency testing.
Plaintiff claims this was false, as she had not completed the
first round of testing and thus had failed firearms testing only
once.

She asserts that having failed the test only once, she was

entitled to be placed on a plan of improvement prior to
termination, and yet this did not occur.

She claims that when she

challenged her proposed termination on this basis, defendants
refused to allow her to retest unless she would execute a waiver
of any pending and potential claims, including her then-pending
EEO complaint.
On October 15, 2012, just two weeks after a ruling was issued
denying her EEO complaint, plaintiff was advised by letter that on
account of her failure to qualify with firearms on two occasions,
she would be terminated effective November 2, 2012.

Plaintiff

concludes that defendants had no legitimate basis to terminate her
and that the decision was made in retaliation for having filed an
EEOC claim and because she is a black woman over the age of forty,
and was made in retaliation for her having filed a workers’
compensation claim.

She alleges additionally that even after her

effective termination date, defendants continued their “aggressive
retaliation and discrimination” by falsely informing the
Mississippi Department of Employment Security that she had been
5

terminated for misconduct.

This necessitated an appeal by

plaintiff to secure unemployment compensation benefits.
Following her termination, plaintiff filed an appeal to the
Merit Systems Protection Board (MSPB) alleging she was improperly
terminated because of her age, race and gender and in retaliation
for filing an EEO claim, and in retaliation for filing a workers’
compensation claim.

The MSPB’s decision, issued March 26, 2013,

determined that plaintiff was not improperly removed from her
position, and that her removal was not based on age, race or
gender discrimination and was not in retaliation for filing an EEO
complaint.

Plaintiff filed the present action on May 8, 2013, a

week after the MSPB’s decision became final on April 30, 2013.
Plaintiff’s Claims
Workers’ Compensation Retaliation
Defendants argued in their motion that plaintiff’s claim that
she was terminated in retaliation for filing a workers’
compensation claim must be dismissed for failure to exhaust
administrative remedies.

In response, plaintiff pointed out that

while the ruling issued by the MSPB did not address this claim,
she did properly raise the issue in the administrative proceeding,
as evidenced by her prehearing submission to the MSPB in which she
specifically identified the following as an issue for decision:
“Was the basis for termination claimed the Agency genuine, or was
it a pretext used to retaliate against the Appellant for making a
6

Worker’s Compensation claim?”

In light of plaintiff’s response,

defendants concede in their reply that plaintiff raised before the
MSPB the issue of her termination as retaliation for filing a
workers’ compensation claim.

However, they submit that although

exhaustion may not be a basis for dismissal, plaintiff’s cause of
action for retaliatory discharge based on her workers’
compensation claim must nevertheless be dismissed for another
reason, namely, that plaintiff cannot proceed under Title VII or
the ADEA for retaliation allegedly based on filing a workers’
compensation claim since filing a workers’ compensation claim is
not protected activity under Title VII or the ADEA.

Indeed, it is

evident that filing a workers’ compensation claim is not protected
activity under Title VII or the ADEA.

See Tratree v. BP North

American Pipelines, Inc., 277 Fed. Appx. 390, 396 (5th Cir. 2008)
(ADEA provides protection against retaliation for complaining of
age discrimination); Armstrong v. K & B Louisiana Corp., 488 Fed.
Appx. 779, 781 (5th Cir. 2012) (Title VII protected activities
include opposing any practice deemed an unlawful employment
practice under Title VII or making a charge, testifying,
assisting, or participating in any manner in an investigation,
proceeding, or hearing under Title VII).

However, plaintiff does

not bring this claim based on Title VII or the ADEA, but rather as

7

a state law claim for wrongful termination.3

Aside from the fact

that Mississippi does not recognize retaliatory discharge for
filing a workers’ compensation claim, this claim is not cognizable
in any event as it is preempted by the Civil Service Reform Act
(CSRA), 5 U.S.C. § 1101, et seq.
The CSRA “provides a comprehensive framework for the judicial
and administrative review of prohibited personnel actions taken
against federal employees and applicants for federal employment.”
Crawford v. United States Dept. of Homeland Sec., 245 Fed. App'x
369, 374 (5th Cir. 2007).

The Fifth Circuit has held that in view

of the remedial system set forth in the CSRA, the CSRA provides
the exclusive remedy for claims against federal employers for
conduct constituting “prohibited personnel practices,” and
“preempts any judicial remedy for such claims.”

Schwartz v.

International Federation of Professional and Technical Engineers,
AFL-CIO, 306 Fed. Appx. 168, 172, 2009 WL 62236, 2 (5th Cir. 2009)
(emphasis added).

“In fact, a federal employee's personnel-

related complaints are preempted ‘even if no remedy [is] available
... under the CSRA.’”

Mangano v. U.S., 529 F.3d 1243, 1246 (9th

Cir. 2008) (quoting Collins v. Bender, 195 F.3d 1076, 1079 (9th

3

As the basis for this claim was not clear from the
complaint, the court, by order of September 5, 2013, directed that
plaintiff advise the court and defendants of the statute or law
upon which she bases her cause of action for workers’ compensation
retaliation. Plaintiff responded on September 10 that her claim
is brought under state law for wrongful termination.
8

Cir. 1999)).

In Schwartz, the court determined that the CSRA

completely preempted the plaintiff’s state law intentional
infliction of emotional distress claim since the challenged
actions constituted a prohibited personnel practice.

The court

explained:
[T]he CSRA, which created an “elaborate new framework
for evaluating adverse personnel actions against federal
employees,” United States v. Fausto, 484 U.S. 439, 443,
108 S. Ct. 668, 98 L. Ed. 2d 830 (1988) (alteration and
internal quotation marks omitted), was designed to
provide the exclusive remedies for conduct constituting
“prohibited personnel practices” and that the CSRA
therefore preempts any judicial remedies for such
claims, see, e.g., id. at 444, 454, 108 S. Ct. 668
(1988) (explaining that “[a] leading purpose of the CSRA
was to replace the haphazard arrangements for
administrative and judicial review of personnel action
... that was the civil system” and concluding that
“[t]he CSRA established a comprehensive system for
reviewing personnel action taken against federal
employees”); Montplaisir v. Leighton, 875 F.2d 1, 3, 5
(1st Cir. 1989) (noting “the inescapable conclusion that
Congress intended to preempt state-law tort actions” and
explaining that courts have treated the CSRA as
“establishing the sole mechanism for resolving labor
conflicts in the federal arena”). Indeed, we have
explicitly noted that “[e]very circuit facing this issue
has concluded that the remedies provided by the CSRA
preempt state-law remedies for adverse personnel
actions.” Rollins v. Marsh, 937 F.2d 134, 140 (5th Cir.
1991). Thus, if [the defendants’] actions were
“prohibited personnel practices,” [the plaintiff’s]
claims based on them are completely preempted....
Schwartz, 306 Fed. Appx. at 172.
Just as the Schwartz court found the plaintiff’s state law
claim preempted, the court in American Postal Workers Union v.
United States Postal Serv., 940 F.2d 704 (D.C. Cir. 1991), held

9

that the CSRA preempted the plaintiff’s tort claim under the FTCA
for discharge in retaliation for filing a compensation claim under
the Federal Employees’ Compensation Act (FECA).

Id. at 709.

The

court also held that the FECA does not “afford[] a cause of action
[in federal district court] to an employee who claims he was
discharged in retaliation for filing a FECA claim.”

Id. See also

Bachman v. Donahoe, No. 3–11–CV–1864–M–BD, 2011 WL 4084784, 3
(N.D. Tex. Aug. 24, 2011) (“Plaintiff’s claim that he was
terminated in retaliation for filing a workers’ compensation claim
falls within the scope of the CSRA and is preempted by statute.”);
Brown v. Potter, Civ. Action No. 06-695, 2009 WL 3297295, 4 (E.D.
Pa. Oct. 9, 2009) (quoting Am. Postal Workers Union).
As plaintiff's claim for retaliatory termination obviously
stems from her employment with the VA and is based on personnel
actions involving her termination from employment, the claim is
preempted by the CSRA and as such will be dismissed pursuant to
Rules 12(b)(1) and/or 12(b)(6).4
State Law Claims
Defendants submit that plaintiff’s claims for breach of
employment contract, breach of conditions of employment and

4

Just as plaintiff’s retaliatory termination based on her
workers’ compensation claim would be CSRA-preempted, her separate
state law claims would also be preempted by CSRA to the extent
such claims may be based on her allegation that she was fired in
retaliation for filing a workers’ compensation claim.
10

negligent and intentional infliction of emotional distress must be
dismissed for lack of subject matter jurisdiction and for failure
to state a claim upon which relief can be granted because they are
preempted by Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., and the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq.

Defendants are correct that Title VII

provides the exclusive remedy for employment discrimination claims
raised by federal employees.

Jackson v. Widnall, 99 F.3d 710, 716

(5th Cir. 1996) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820,
835, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976)); see also Hampton v.
Internal Revenue Serv., 913 F.2d 180, 182-83 (5th Cir. 1990)
(holding federal employee’s state tort claim preempted by Title
VII); Ford v. Donley, 485 Fed. Appx. 305, 307 (10th Cir. 2012)
(holding that Title VII is federal employees’ exclusive remedy for
race discrimination and retaliation).

Likewise, the ADEA provides

the exclusive remedy for age discrimination claims by federal
employees.

See Paterson v. Weinberger, 644 F.2d 521, 535 (5th

Cir. 1981) (holding that “by establishing the ADEA's comprehensive
scheme for the resolution of employee complaints of age
discrimination in federal employment, Congress clearly intended
that all such claims of age discrimination be limited to the
rights and procedures authorized by the Act”).

Thus, “when a

complainant against a federal employer relies on the same facts to
establish a Title VII claim [or an ADEA claim] and a non-Title VII
11

claim [or non-ADEA claim], the non-Title VII claim [or non-ADEA
claim] is ‘not sufficiently distinct to avoid’ preemption” by
Title VII or the ADEA.

Pfau v. Reed, 125 F.3d 927, 932 (5th Cir.

1997)(quoting Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir.
1992)), vacated and remanded on other grounds, 525 U.S. 801, 119
S. Ct. 32, 142 L. Ed. 2d 24 (1998), pertinent holding reinstated,
167 F.3d 228, 229 (5th Cir. 1999); see also Gurchensky v. Potter,
Civil Action No. 06–5760 (JLL), 2010 WL 2292171, 6 (D.N.J. May 28,
2010) (stating that “when a federal employee brings an action
alleging violations of both federal antidiscrimination statutes
and state law based on the same set of facts, courts have found
that the state law claims are preempted”) (citations omitted).
In response to defendants’ motion, plaintiff argues that
defendants’ “unsupported presumption” and “speculation” that the
factual allegations for all her claims are identical “is improper
as Plaintiff has clearly articulated claims not only under Title
VII and ADEA but also 42 U.S.C. § 1983.”

She further declares

that “[w]hile it is true that ultimately some of the legal
theories claims [sic] may become redundant, based on the facts
attributable to each issue, until there is sufficient discovery to
differentiate between these factual distinctions then it is
improper to dismiss any of the claims at this time.”

In other

words, plaintiff takes the position that she has asserted a claim
under § 1983 that discovery may show to be separate and distinct
12

from her Title VII claims, which therefore is not preempted, and
which in turn does not preempt her state law claims.

Plaintiff’s

position fails for several reasons.
First, this action could not be brought pursuant to 42 U.S.C.
§ 1983 because there is no state action; the defendants are a
federal agency and federal employees.
254 F.3d 70 (5th Cir. 2001).

See Edwards v. Municipal,

“Bivens5 is the federal counterpart

of § 1983 [and] ... extends the protections afforded by § 1983 to
parties injured by federal actors not liable under § 1983.”

Abate

v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n.14 (5th Cir.
1993).

However, plaintiff cannot state a claim against the VA

Medical Center or Secretary Shinseki under Bivens since Bivens
actions are unavailable against federal agencies.

See Gibson v.

Veteran's Admin., 84 Fed. Appx. 363, 364, 2003 WL 22849810, 1 (5th
Cir. 2003) (finding that district court did not have jurisdiction
over claim that VA violated his constitutional rights because
“actions pursuant to Bivens may not be maintained against a
federal agency”) (citing FDIC v. Meyer, 510 U.S. 471, 486, 114 S.
Ct. 996, 127 L. Ed. 2d 308 (1994)).

And the Fifth Circuit has

held that there is no federal jurisdiction to address a Bivens
claim by a federal employee asserting a claim of employment
discrimination since “Title VII provides both the exclusive cause

5

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
13

of action and the exclusive remedy for federal employees who wish
to assert claims of employment discrimination.”

Perez v. Federal

Bureau of Investigation, 71 F.3d 513, 515 (5th Cir. 1995)
(affirming dismissal of Bivens claim based on alleged employment
discrimination as preempted by Title VII).

Thus, plaintiff has no

cognizable Bivens claim against Battle and Donelson in their
individual capacities, notwithstanding that such claims would not
be cognizable under Title VII or the ADEA.

See Pfau, 125 F.3d at

934 (holding that “Title VII's preemptive effect as to claims
against individual supervisors is coextensive with its preemptive
effect as to claims against federal agencies”); Smith v. Amedisys
Inc., 298 F.3d 434, 448 (5th Cir. 2002)(holding that “there is no
individual liability for employees under Title VII”); Stults v.
Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996) (holding that ADEA
provides no basis for individual liability for supervisory
employees); see also Mathis v. Henderson, 243 F.3d 446, 449 (8th
Cir. 2001) (holding that since Title VII provides exclusive
judicial remedy for claims of discrimination in federal
employment, FTCA claims against the plaintiff’s supervisor at
Postal Service for acts within scope of supervisor’s employment
could not be maintained because they were preempted by the
plaintiff’s Title VII claims against the Postal Service).

From

the foregoing, it follows that plaintiff’s state law claims are

14

not saved from Title VII/ADEA preemption by any putative Bivens
claim.
As to whether plaintiff’s state law claims are based on the
same set of facts as her race, gender and age discrimination
claims, the court rejects plaintiff’s contention that dismissal of
her state law claims would be improper “until there is sufficient
discovery to differentiate” any factual allegations that may be
separate and distinct from her Title VII and ADEA claims.
Defendants have asserted Title VII preemption as a Rule 12(b)(1)
challenge to this court’s subject matter jurisdiction over
plaintiff’s state law claims.

See Smith v. Harvey, 265 Fed. Appx.

197, 200 (5th Cir. 2008) (affirming district court’s dismissal of
federal employee’s state tort claims for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) on basis that such claims
were preempted by Title VII); see also Stamper v. Shinseki, Civ.
Action No. 3:11cv546–DPJ–FKB, 2012 WL 5286953, 7 (S.D. Miss. Oct.
24, 2012) (observing that “Title VII preemption is a matter of
subject-matter jurisdiction) (citing Smith).

“[A]t the Rule

12(b)(1) stage of the proceedings, the [plaintiff's] burden is to
allege a plausible set of facts establishing jurisdiction[,]” and
thus must establish that a basis for subject-matter jurisdiction
exists.

Physician Hosps. of America v. Sebelius, 691 F.3d 649,

652-653 (5th Cir. 2012) (citing Davis v. United States, 597 F.3d
646, 649–50 (5th Cir. 2009)); see also Arena v. Graybar Elec. Co.,
15

669 F.3d 214, 223 (5th Cir. 2012) (observing that “a factual
attack under Rule 12(b)(1) may occur at any stage of the
proceedings, and plaintiff bears the burden of proof that
jurisdiction does in fact exist”) (quoting Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).

From its review

of the complaint in this cause, it certainly appears that
plaintiff’s Title VII and ADEA claims and her state law claims are
based are the very same facts.

Indeed, it is clear that all her

factual allegations relate to the alleged race, sex and age
discrimination and retaliation that form the basis of her Title
VII and ADEA claims.

See Stamper, 2012 WL 5286953, at 7

(determining that the plaintiff’s non-Title VII claims were
insufficiently distinct from her Title VII claims to avoid
preemption as his factual allegations “all relate to the alleged
employment discrimination and retaliation that form the basis of
his Title VII claims”).

“This would include the post-employment

conduct alleged” in the complaint.

Id. (citing Robinson v. Shell

Oil Co., 519 U.S. 337, 339 (1997), which held that Title VII
extended to a terminated employee’s retaliation suit for giving
unfavorable reference following termination); see also Baqir v.
Principi, 288 F. Supp. 2d 706, 708-709 (W.D.N.C. 2003) (finding
that plaintiff’s allegation that defendant blacklisted him
following his termination and thereby prevented him from obtaining
employment with other prospective employers relied on same conduct
16

that formed basis for his Title VII retaliation claim and was
therefore preempted by Title VII).

The court thus concludes that

it lacks jurisdiction over plaintiff’s state law claims against
all the defendants.

See Pfau, 125 F.3d at 932 (dismissing § 1981

and intentional infliction of emotional distress claims as
preempted by Title VII).
Title VII: Hostile Work Environment
Defendants acknowledge that plaintiff’s ADEA claim and her
claims for race and gender discrimination and retaliation against
the VA Medical Center and Secretary Shinseki in his official
capacity are properly before this court, but they contend that her
Title VII claim for hostile work environment is barred for failure
to exhaust administrative remedies since she did not raise such
claim in her MSPB action.

See Taylor v. Books A Million, Inc.,

296 F.3d 376, 379 (5th Cir. 2002) (“Employment discrimination
plaintiffs must exhaust administrative remedies before pursuing
claims in federal court.”).

In response, plaintiff argues that

she “specifically addressed” a hostile work environment in the
underlying MSPB action, as she set forth in her submission to the
MSPB all of the following:
the unfounded accusations made against her for cheating,
false and negative impressions of her by a VA
psychologist, false impressions given on her by Sgt.
Charles Donalson, the fact that the VA falsely reported
that she was given three chances to qualify in May 2012
when she was only given one chance, the threats of loss

17

of her job, the denial of benefits, and ultimately her
termination.
Plaintiff does not contend that she characterized these facts as
creating a hostile work environment; rather she argues that based
on the facts she asserted in the administrative proceeding,
“[d]efendants were properly on notice that the conduct alleged
amounted to a hostile environment.”

The Fifth Circuit has held

that “[w]hen a claim was not formally raised in the administrative
proceedings, the exhaustion requirement may still be satisfied as
long as an administrative investigation of the claim not raised
could ‘reasonably be expected to grow out of’ the charges actually
raised.”

Hill v. Dep’t of Veterans Affairs, No. 08-60532, 2009 WL

348767, 3 (5th Cir. Feb. 12, 2009) (citing Pacheco v. Mineta, 448
F.3d 783, 789 (5th Cir. 2006); Pacheco, 448 F.3d at 788–89
(finding that the scope of an EEOC charge is the charge itself and
the investigation which can “reasonably be expected to grow out of
the charge) (citation omitted)).

The question is whether

plaintiff’s submission to the MSPB setting forth her complaint
“reasonably encompasses [a] claim of a hostile work environment.”
Turner v. Novartis Pharmaceuticals Corp., 442 Fed. Appx. 139, 141
(5th Cir. 2011).

In the court’s opinion, it does not.

To prevail on a claim for hostile work environment, the
harassment must have “affected a ‘term, condition or privilege’ of
his employment (i.e., the harassment was so pervasive or severe as

18

to alter his conditions of employment and create an abusive
working environment).”

Hiner v. McHugh, – Fed. Appx. --, 2013 WL

4034421, 5 (5th Cir. 2013).

“Whether an environment is hostile or

abusive depends on the totality of the circumstances, including
the frequency and severity of the discriminatory conduct; whether
it is physically threatening or humiliating, or ‘a mere offensive
utterance’; and whether it unreasonably interferes with an
employee's ability to perform his job.”

Id. (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

The facts set forth

in plaintiff’s submission to the MSPB would not have reasonably
caused defendants or the MSPB to consider that a potential hostile
work environment claim was at issue.

That is, it would not have

been apparent that she was asserting that she had been subjected
to a hostile work environment.

Accordingly, the court concludes

that she failed to exhaust her administrative remedies as to this
claim and it will therefore be dismissed.

See Walton-Lentz v.

Innophos, Inc., 476 Fed. Appx. 566, 570 (5th Cir. 2012) (affirming
district court’s conclusion that the plaintiff’s “failure to
mention these particular [hostile-work-environment] claims [in her
EEOC charges] ... is not in the nature of a technical charge
deformity, but more in the nature of a failure to allege facts
that require no artful drafting or specialized skill”).6
6

The Fifth Circuit has explained that the rule that the
exhaustion requirement may be satisfied as long as an
administrative investigation of the claim not raised could
19

Title VII
Defendants seek dismissal of plaintiff’s Title VII and ADEA
claims, to the extent such claims may be asserted against Battle
and Donelson, since the only proper defendant as to these claims
is the secretary of the agency for which the plaintiff was
employed.
(5th Cir.

See Menchaca v. Frank, No. 92-5613, 1993 WL 185783, 1
May 25, 1993) (finding that the plaintiff failed to

state claim against individual defendants under Title VII since
“[t]he proper defendant in a Title VII ... claim is the head of
the employing agency....”).

The individual defendants are thus

not proper parties as to these claims and will therefore be
dismissed.
Conclusion
Based on all of the foregoing, it is ordered that defendants’
motion to dismiss is granted, and thus, with the exception of her

reasonably be expected to grow out of the charges actually raised
“serves ‘to trigger the investigatory and conciliatory procedures
of the EEOC’ without keeping unsophisticated complainants out of
court on technicalities.” Walton-Lentz v. Innophos, Inc., 476
Fed. Appx. 566, 569 (5th Cir. 2012) (quoting Pacheco v. Mineta, 448
F.3d 783, 789 (5th Cir. 2006)). However, as defendants note,
unlike most EEOC complainants, whose charges are filed pro se,
this plaintiff was represented by counsel during the MSPB
proceeding, which further supports the court’s conclusion. See
Walton-Lentz v. Innophos, Inc., 476 Fed. Appx. 566, 570 (5th Cir.
2012) (holding that the plaintiff’s “being represented by counsel
in filing her EEOC charges further supports the district court's
ruling” that her failure to mention a hostile work environment
claim in the administrative remedy was not a mere technical
deficiency and constituted a failure to exhaust).
20

claims for discrimination under Title VII and the ADEA against
Secretary Shinseki, are dismissed.
SO ORDERED this 3rd day of October, 2013.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

21