Quashie v. Department of Veterans Affairs Durham VA Medical Center, et al
ORDER denying 17 Motion for Entry of Default; granting 21 Motion to Dismiss. Plaintiff's complaint is DISMISSED for failure to state a claim and for lack of subject matter jurisdiction. The clerk is DIRECTED to close this case. Signed by District Judge Louise Wood Flanagan on 6/3/2021. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
DAWN V. QUASHIE,
DEPARTMET OF VETERANS AFFAIRS
DURHAM VA HOSPITAL CENTER and
KENNETH C. GOLDBERG, individually
and in his official capacity, the Chief of Staff
for the Durham VA Healthcare System,
This matter is before the court upon plaintiff’s motion for entry of default (DE 17) and
defendants’ motion to dismiss (DE 21). The issues raised have been briefed fully, and in this posture,
are ripe for ruling. For the following reasons, plaintiff’s motion is denied, and defendants’ motion is
STATEMENT OF THE CASE
Plaintiff commenced this action on July 31, 2020, alleging retaliatory discharge in violation
of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).
Plaintiff seeks declaratory relief, reinstatement, compensatory and punitive damages, and attorneys’
fees and costs. On December 16, 2020, plaintiff filed motion for entry of default, relying upon an
affidavit of counsel and purported proof of service on defendants. Defendants filed the instant motion
to dismiss on January 6, 2021, seeking dismissal of plaintiff’s complaint for insufficient service of
process, lack of subject matter jurisdiction, and failure to state a claim. That same day, defendants
responded in opposition to plaintiff’s motion for entry of default.
STATEMENT OF FACTS
The facts alleged in plaintiff’s complaint may be summarized as follows.
physician, began her employment with defendant Department of Veterans Affairs Durham VA
Medical Center (“VA”) April 10, 2011, and successfully completed a period of probation February
2, 2013. (Compl. (DE 7) ¶¶ 7-8). Prior to her employment with defendant VA, plaintiff had years of
experience practicing medicine in a variety of public and private settings, and she was accustomed to
efficient management of medical facilities. (Id. ¶¶ 4, 10). Plaintiff alleges that she provided the
highest level of care to her patients. (Id. ¶ 10).
While working at defendant VA, plaintiff believed that the administrators of ambulatory care
demonstrated incompetence, and she documented her concerns in an email to the associate chief of
staff for ambulatory care. (Id. ¶ 11). In response, plaintiff was allegedly admonished for “conduct
(Id.). Because plaintiff wanted to improve the working conditions of healthcare
providers, she escalated her concerns to the President of the United States, and worked actively to
establish union representation for physicians employed by defendant VA. (Id.).
As a result of plaintiff’s efforts, defendant Kenneth C. Goldberg and other administrators
within defendant VA allegedly embarked on a scheme to undermine plaintiff’s effectiveness as a
physician, retaliate against her, and terminate her employment. (Id. ¶ 12). Allegedly in furtherance
of this goal, plaintiff was issued a charge of “failure in the performance of assigned duties” for
“clinical concerns in: (i) documentation completion within 24 hours of encounters, (ii) diagnostic
studies communicated within 14 days of receipt to patients, (iii) View alerts/unsigned notes, (iv)
Colorectal cancer screening being completed, and (v) Evaluation of Positive Depression Screen
scores.” (Id. ¶ 13).
Motion to Dismiss
Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated, “ [the] court accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff,” but does not consider “
legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (quotations omitted).
A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.
Such motion may either 1) assert the complaint fails to state facts upon which subject matter
jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from
the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a
“facial challenge[ ] to standing that do[es] not dispute the jurisdictional facts alleged in the
complaint,” the court accepts “the facts of the complaint as true as [the court] would in context of a
Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). When a defendant
challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings’
allegations as mere evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party in such case “must set
forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.
Title VII provides a time limit for suits brought by federal employees aggrieved by
discriminatory adverse employment actions: “Within 90 days of receipt of notice of final action taken
by [the employing government department, agency, or unit], . . . on a complaint of discrimination” an
employee “aggrieved by the final disposition of his complaint, or by the failure to take final action on
his complaint, may file a civil action.” 42 U.S.C. § 2000e-16(c). A claim is time barred if it is not
filed within this time limit. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93 (1990). “Title VII’s
timely filing requirements are not jurisdictional.” Davis v. N. Carolina Dep’t of Correction, 48 F.3d
134, 140 (4th Cir. 1995) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)); see
Irwin, 498 U.S. at 95.
Here, plaintiff’s action is time barred because it was not brought within 90 days of receipt of
notice of final action taken by defendant. The Equal Employment Opportunity Commission issued
plaintiff a notice of right to sue letter November 16, 2018. (See Compl., ex. 1 (DE 7-1) at 4). Yet,
plaintiff did not file the instant action until July 31, 2020, well after the 90-day deadline expired.
In a prior, related action, Quashie v. Department of Veteran Affairs Durham VA Medical
Center, Durham, et al, No. 5:19-CV-49-FL, on February 20, 2018, plaintiff filed complaint against
defendants, asserting a Title VII claim, which the court dismissed without prejudice for failure to
effect service of process. Although the United States Court of Appeals for the Fourth Circuit has not
addressed this precise issue in a published opinion, several other circuits, as well as the Fourth Circuit
in an unpublished opinion, have held that dismissal of a claim without prejudice does not toll the
statute of limitations. See Angles v. Dollar Tree Stores, Inc., 494 F. App’x 326, 329 (4th Cir. 2012);
Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992) (“If a Title VII complaint is timely
filed pursuant to an EEOC right-to-sue letter and is later dismissed [without prejudice], the timely
filing of the complaint does not toll the ninety-day limitations period.” (citations omitted)); Wilson v.
Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (same); O’Donnell v. Vencor Inc., 466 F.3d
1104, 1111 (9th Cir. 2006) (“In instances where a complaint is timely filed and later dismissed, the
timely filing of the complaint does not toll or suspend the 90–day limitations period.” (internal
quotations omitted)); Simons v. Sw. Petro–Chem, Inc., 28 F.3d 1029, 1030–31 (10th Cir.
Finding the reasoning of these cases persuasive, the court concludes that plaintiff’s complaint
is time barred. Accordingly, defendants’ motion to dismiss is granted, and plaintiff’s complaint is
dismissed for failure to state a claim upon which relief can be granted.
In addition, and in the alternative, defendants seek dismissal of plaintiff’s complaint on the
ground that plaintiff failed to name the proper party as a defendant. As relevant here, Title VII
provides that a federal employee “aggrieved by the final disposition of his complaint, or by the failure
to take final action on his complaint, may file a civil action . . . in which civil action the head of the
department, agency, or unit, as appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c)
(emphasis added). Plaintiff alleges that the “Department of Veterans Affairs Durham VA Medical
Center” is the employing government department. (Compl. (DE 7) ¶ 5). Plaintiff appears to have
combined the names of two separate entities: the Department of Veterans Affairs and the Durham VA
Health Care System. Nevertheless, the Secretary of Veterans Affairs is the head of both entities, and
therefore, is the proper defendant for plaintiff’s Title VII claim. See 42 U.S.C. § 2000e-16(c);
Gardner v. Gartman, 880 F.2d 797, 798 (4th Cir. 1989) (“[U]nder the terms of [§ 2000e-16(c)],
Gardner had to file suit against the head of the United States department for which she worked. Since
she worked for the Navy, she was required to name the Secretary of the Navy.”). Because plaintiff
failed to name the Secretary of Veterans Affairs as a defendant, her complaint must be dismissed for
lack of subject matter jurisdiction.1
Possibility of Amendment
“Although Rule 15(c) of the Federal Rules of Civil Procedure provides that an amendment to
a complaint may relate back to the filing date of the original complaint, a strict test applies when a
plaintiff seeks to relate back the joinder of a party.” Gardner, 880 F.2d at 798. The four elements of
the test are as follows:
(1) The basic claim must have arisen out of the conduct set forth in the original
pleading; (2) The party to be brought in must have received such notice that it will
not be prejudiced in maintaining its defense; (3)That party must or should have known
that, but for a mistake concerning identity, the action would have been brought against
it; and (4) The second and third requirements must have been fulfilled within the
prescribed limitations period.
Schiavone v. Fortune, 477 U.S. 21, 30 (1986). Regarding the second and third elements, the Fourth
Circuit has held that the naming of the wrong government party or official does not place the proper
government party or official on notice of the suit. Gardner, 880 F.2d at 799.
In the present case, the Secretary of Veterans Affairs is the proper party, and notice was not
given to the Secretary within the requisite time period. See 42 U.S.C. § 2000e–16(c). As a result,
there can be no relation back for purposes of amending the complaint to join the Secretary of Veterans
Affairs as a party. Gardner, 880 F.2d at 799 (“Since Gardner works for the Department of the Navy,
Where the court grants defendants’ motion to dismiss for failure to state a claim and for lack of subject matter
jurisdiction, the court does not reach the additional ground for dismissal based upon untimely service.
the Secretary of the Navy is the proper party. Notice was not given to the Secretary during the
applicable time period and there can be no relation back for purposes of amending Gardner’s
complaint to join the Secretary as a party.”).
Accordingly, where the instant complaint is time barred, and where there is no basis for
relation back of an amended complaint, dismissal in this case is without provision of leave to file an
Motion for Entry of Default
Where the court lacks subject matter jurisdiction, plaintiff’s motion for entry of default is
denied. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the
court cannot proceed at all in any cause.” (citations omitted)); cf. Koehler v. Dodwell, 152 F.3d 304,
308 (4th Cir. 1998) (“A judgment entered by a court that lacks subject-matter jurisdiction is void.”);
see also Wright & Miller, Fed. Prac. & Proc. § 2682 (3d ed.) (“Before a default can be entered, the
court must have jurisdiction over the party against whom the judgment is sought.”).
Based on the foregoing, plaintiff’s motion for entry of default (DE 17) is DENIED, and
defendants’ motion to dismiss (DE 21) is GRANTED. Plaintiff’s complaint is DISMISSED for
failure to state a claim and for lack of subject matter jurisdiction. The clerk is DIRECTED to close
SO ORDERED, this the 3rd day of June, 2021.
LOUISE W. FLANAGAN
United States District Judge
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