ZUZUL v. SHINSEKI, et al
Filing
31
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 3/31/2015; that the United States' motion to dismiss (Doc. 9 ) is GRANTED IN PART and DENIED IN PART, and that Ms. Zuzul's claims for discrimination and hara ssment based on race and gender contained in Counts One and Three of the amended complaint are DISMISSED, her claims for assault and battery contained in Count Four are DISMISSED, and her claim for Defamation contained in Count Five is DISMISSED. The motion to dismiss her remaining claims for retaliation contained in Counts One and Three is DENIED. FURTHER that the United States' alternative motion for summary judgment (Doc. 9 ) is DENIED. FURTHER that Plaintiff's motion for relief pursuant to Federal Rule of Civil Procedure 56(d) (Doc. 19 ) is DENIED as MOOT. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARCIA ZUZUL,
Plaintiff,
v.
ROBERT MCDONALD, Secretary of
Veterans Affairs, and the
UNITED STATES OF AMERICA,
Defendants.
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1:14cv251
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In the remaining claims of this employment discrimination
action, Plaintiff Marcia Zuzul alleges that the Department of
Veterans Affairs (the “VA”) discriminated against her because of
her race and gender, permitted the creation of a gender- and
racially-hostile work environment, and retaliated against her, all
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq.
(Doc. 5.)
Ms. Zuzul also brings claims
of assault, battery, and defamation under North Carolina law
against the United States, substituted for Dr. William F. Pearson.
(Id. ¶¶ 139–60.)
Before the court is the United States’ motion to
dismiss and, alternatively, for summary judgment.
(Doc. 9.)
Also
before the court is Ms. Zuzul’s motion for relief pursuant to
Federal Rule of Civil Procedure 56(d).
(Doc. 19.)
For the reasons
set forth below, the United States’ motion to dismiss will be
granted in part and denied in part; its alternative motion for
summary judgment will be denied; and Ms. Zuzul’s Rule 56(d) motion
will be denied as moot.
I.
BACKGROUND
The allegations of the amended verified complaint, taken in
the light most favorable to Ms. Zuzul, show the following. 1
Ms. Zuzul — a white female — is a certified Nurse Anesthetist
at the W. G. (Bill) Hefner Veterans Affairs Medical Center (“VAMC”)
in Salisbury, North Carolina.
(Doc. 5 ¶ 15.)
She has worked in
anesthesia for nineteen years and in critical care for fifteen
years.
(Id.)
She has worked at the VAMC since 2006 and served as
a staff anesthesiologist since 2011.
(Id. ¶¶ 15, 17.)
During her
time with the VA, she has always received “Outstanding” performance
review ratings.
(Id. ¶ 16.)
At some point, Ms. Zuzul began to work with Dr. William
Pearson —
a
doctor
practicing
anesthesiology
allegedly black — about once or twice a week.
at
VAMC
who
is
(Id. ¶¶ 19, 98.)
Dr. Pearson allegedly treated Ms. Zuzul coldly and in a demeaning
manner, creating “tension” between the two.
(Id. ¶ 19)
On April 5, 2012, Ms. Zuzul worked with Dr. Pearson on a team
to provide a patient with anesthesia.
(Id. ¶ 20.)
During medical
preparations and while at the patient’s bedside, Dr. Pearson told
1
Ms. Zuzul verified her complaint on July 10, 2014.
2
(Doc. 17.)
Ms. Zuzul “we need to use Etomidate on this guy.
He has a heart
history and we could kill him if we do not.” 2 (Id. ¶ 24.) According
to the amended complaint, “[t]he use of Etomidate in the case at
issue was contrary to the plan of care that was in place.”
¶ 25.)
(Id.
Noticing that the patient “seemed concerned” by Dr.
Pearson’s statement, Ms. Zuzul recommended discussing the matter
later.
(Id. ¶ 27.)
A disagreement then occurred between Ms. Zuzul
and Dr. Pearson about the appropriate medications to administer.
(Id. ¶¶ 27–28.) During the disagreement, Dr. Pearson “became irate
and said that they would use whatever drug he recommended for the
case.”
(Id. ¶ 29.)
He then walked to the head of the patient’s
bed, where Ms. Zuzul stood attempting to administer medicine, “and
pushed her out of the way so he could stand where she had been
standing.”
(Id. ¶¶ 30–31.)
In response, Ms. Zuzul stated that
they should discuss the matter outside the patient’s room, but Dr.
Pearson raised his voice saying, “You are not putting my patient
to sleep.
I will do the case.”
(Id. ¶¶ 31–32.)
While both Ms.
Zuzul and Dr. Pearson were alongside the patient as he was moved
to the operating room, Dr. Pearson told another doctor — Chief of
Anesthesia Dr. Robert Blok — that Ms. Zuzul was “not listening” to
him.
(Id. ¶ 35.)
2
“Etomidate is a short acting intravenous anesthetic agent used for the
induction of general anesthesia and for sedation for short procedures.”
(Doc. 5 ¶ 25.)
3
The following day, April 6, 2012, Ms. Zuzul met with Dr. Blok,
Chief of Staff Dr. Paul Lucha, and Union Representative Reggie
Thurmond with the American Federation of Government Employees
(“AFGE”).
(Id. ¶ 39.)
During the meeting, Ms. Zuzul was told
that a fact-finding investigation would be conducted as a result
of her complaint about the altercation with Dr. Pearson.
(Id.)
About a week later, on April 12, 2012, Ms. Zuzul met with Dr.
Lucha, Dr. Blok, Mr. Thurmond, and Union Representatives Sharon
Machovina and Pat Long.
(Id. ¶ 40.)
At the meeting, Dr. Lucha
told Ms. Zuzul that Dr. Pearson disputed that either a physical or
verbal assault occurred on April 5 and that the two should “learn
to work together.”
(Id.)
The same day as that meeting, Ms. Zuzul filed a grievance
(the “First Grievance”) with the VA, “claiming that management
simply told everyone to work together and get along rather than
doing anything about the assault and the comments Pearson made in
front of the patient.”
(Id. ¶ 41.)
The grievance procedure at
the VA requires an employee to proceed through a four-step process.
(See Doc. 10-7.) On May 31, 2012, the AFGE filed a Step 2 Grievance
on Ms. Zuzul’s behalf, asserting that “[o]n or about April 12,
2012, management created a [sic] unhealthy and unsafe environment
for Ms. Zuzul” after she “reported to management an altercation
. . . between herself and another employee.”
(Doc. 10-6.)
On
July 2, 2012, and in response to the Step 2 Grievance, Dr. Lucha
4
granted the First Grievance. 3
10-8.)
(Doc. 5 ¶¶ 41, 49; see also Doc.
She makes no allegation that she completed the last step
of the four-step procedure.
Around April 18, 2012, Drs. Blok and Jean-Mary Breton met
with Ms. Zuzul regarding the medical charts for two patients Ms.
Zuzul had treated.
(Doc. 5 ¶¶ 42–43.)
The meeting was held
because someone had assessed one of Ms. Zuzul’s charts as “below
the standards of anesthesia.”
(Id. ¶ 43.)
Dr. Breton would not
disclose who had made the assessment, but Dr. Blok “stated there
was nothing wrong with the care [Ms. Zuzul] had provided” and that
he had not authorized the review of her charts.
On
April
27,
2012,
Ms.
Zuzul
initiated
an
(Id. ¶¶ 44–45.)
Equal
Employment
Opportunity (“EEO”) Complaint (the “First EEO Complaint”) on the
basis of gender and racial harassment based on the unauthorized
assessment of her charts.
(Id. ¶ 47; see also Doc. 10-10 (noting
filing date as August 15, 2012).)
At a September 2012 mediation
of the complaint, Dr. Lucha acknowledged that Dr. Pearson was the
one who had reviewed and assessed charts of patients treated by
Ms. Zuzul, which she alleges were unauthorized assessments, and
that Dr. Pearson “had problems working well with other nurse
anesthetists at the VA.”
(Doc. 5 ¶¶ 45, 50–51.)
3
Dr. Lucha further
Ms. Zuzul also alleges that an AFGE Representative filed a “Step 3
Grievance” on her behalf.
(Doc. 5 ¶ 62.)
The filing, however, was
meant “to address the fact that the [VA] did not follow the proper chain
of command” as to an entirely different matter, and the complaint
describes the filing as Ms. Zuzul’s “Second Grievance.” (Id.)
5
agreed at the mediation that Dr. Pearson and Ms. Zuzul should not
be assigned to work together and that they should be kept apart as
much as possible. 4
(Id. ¶ 53.)
At some unspecified time, Dr. Pearson also filed an EEO
complaint against Ms. Zuzul, claiming that Ms. Zuzul discriminated
against him because he was “a heterosexual black male” and that
she refused to work with him.
these claims are false.
(Id. ¶ 56.)
(Id.)
According to Ms. Zuzul,
Dr. Pearson also filed EEO
complaints against Dr. Blok, a nurse named Jeanette Burleson, and
Dr. Breton.
(Id. ¶ 57.)
On January 9, 2013, Ms. Zuzul was assigned to work on call
with Dr. Pearson due to the small department size and staff
shortages. 5
(Id. ¶ 63.)
That evening, VAMC paged both Ms. Zuzul
and Dr. Pearson, requesting that they come in for an emergency
procedure.
(Id. ¶¶ 64–65.)
Ms. Zuzul told VAMC’s hospital
administrator that she would arrive in approximately thirty to
4
Ms. Zuzul filed a second EEO complaint (the “Second EEO Complaint”) on
September 27, 2012, after Dr. Lucha informed Ms. Zuzul that Dr. Pearson
would serve as the acting Chief of Anesthesia while Dr. Blok was
deployed, although Dr. Breton — as the most senior person — usually
filled this position. (Id. ¶¶ 54–55.) The Second EEO Complaint alleged
harassment and retaliation on the basis of gender and race. (Id. ¶ 55.)
Ms. Zuzul, however, makes no allegation that she exhausted her
administrative remedies as to this complaint. (See id. ¶¶ 3–10 (alleging
that Ms. Zuzul exhausted her administrative remedies as to two other EEO
complaints).)
5
Ms. Zuzul’s amended complaint also includes an evaluation by VA doctors
of her temperature monitoring of patients.
(Doc. 5 ¶¶ 59–61.)
She
admits, however, that her EEO complaint is still pending as to that
evaluation. (Id. ¶ 61.)
6
forty-five minutes because of rainy conditions.
(Id. ¶ 65.)
Ms.
Zuzul then called Dr. Pearson to confirm with him that she was on
her way.
(Id. ¶ 66.)
Twenty minutes after the phone call, Dr.
Pearson called Ms. Zuzul, telling her that the emergency procedure
was “done” and that she was not needed, which Ms. Zuzul repeated
back to him to confirm.
(Id.)
Ms. Zuzul then called the hospital
administrator to inform them of what Dr. Pearson had said.
(Id.
¶ 68.)
The next morning, Dr. Breton and Wendy Bostian — an anesthesia
tech — informed Ms. Zuzul that Dr. Pearson told others that she
had “refused to come in” the night before and refused to cooperate.
(Id. ¶ 71.)
Sometime after hearing this, Ms. Zuzul met separately
with both Drs. Blok and Lucha.
(Id. ¶¶ 72–73.)
Dr. Pearson also
attended the meeting with Dr. Lucha and continued to claim Ms.
Zuzul refused to come in on January 9.
(Id. ¶ 73.)
Dr. Lucha
agreed to conduct another fact-finding investigation and changed
investigators after Ms. Zuzul’s disagreement with the initial
investigator assignment.
(Id. ¶¶ 74–77.)
The fact finding on the
January 9 incident, however, took at least five weeks to get
underway.
(Id. ¶ 78.)
Since the January 9, 2013 incident, Ms.
Zuzul and Dr. Pearson have not worked together.
(Id. ¶ 79.)
On June 20, 2013, an anesthesia meeting occurred with a number
of individuals in attendance, including Dr. Pearson, Ms. Zuzul,
Drs. Blok, Breton, Steven Leder (a union representative), and Ms.
7
Burleson.
(Id. ¶ 80.)
The meeting concerned Dr. Pearson’s
treatment of another white female nurse anesthetist.
Along with
several others, Ms. Zuzul discussed her strained relationship with
Dr. Pearson.
(Id. ¶ 82.)
After Ms. Zuzul’s recounting of the
January 9 incident, Dr. Pearson repeated his claims that Ms. Zuzul
refused to come in to the hospital that night.
(Id. ¶ 83.)
When
Ms. Zuzul disagreed with his version of incident, Dr. Pearson twice
yelled, “But you didn’t come in, did you?” (Id. ¶ 84.) He repeated
this question at the end of the meeting and “came at” Ms. Zuzul
while pointing his finger at her.
(Id. ¶¶ 85–86.)
Feeling
threatened and “wonder[ing] if he was going to push her again,”
Ms. Zuzul left the meeting room.
Ms.
Zuzul
initiated
Complaint”)
based
her
on
(Id. ¶¶ 86–87.)
fourth
gender,
EEO
sexual
On July 1, 2013,
complaint
(“Fourth
orientation,
and
EEO
race,
concerning the January 9, 2013 incident and the June 20, 2013
meeting. 6
(Id. ¶ 94.)
According to the amended complaint, Dr. Pearson’s “false
allegations” regarding Ms. Zuzul’s charting, monitoring of patient
temperatures,
and
failure
professional reputation.
to
appear
at
work
“damage[d]
her
No other physician ha[d] questioned her
professionalism or her competence prior to [Dr. Pearson.]”
6
(Id.
Ms. Zuzul alleges that the Second EEO Complaint incorrectly noted “age”
as the basis of the claim rather than “race.” (Doc. 5 ¶ 94.) Moreover,
the complaint makes no mention of sexual orientation as the basis for a
cause of action.
8
¶ 88.)
The amended complaint also alleges that Dr. Pearson allows
one black nurse anesthetist to take longer lunches than three white
nurse anesthetists, that he allows one male nurse to question him
and works collaboratively with him but is demeaning toward female
nurses, and that he “does not converse or interact with” the white
female nurses.
(Id. ¶¶ 89–92.)
On March 23, 2014, Ms. Zuzul filed a complaint, which she
amended
on
April
16,
2014,
alleging
both
race
and
gender
discrimination, harassment, and retaliation against the VA, as
well as assault, battery, and defamation against Dr. Pearson. 7
(Docs. 1, 5.)
On May 29, 2014, the United States filed a notice
of substitution as to Ms. Zuzul’s claims against Dr. Pearson based
on the United States Attorney’s certification, pursuant to the
Westfall Act, also known as the Federal Employees Liability Reform
and
Tort
Compensation
§ 2679(d)(1) and (2).
Act
of
1988,
(Doc. 8.)
codified
at
U.S.C.
The United States’ Notice sought
to substitute the United States for Dr. Pearson.
objected to the substitution.
28
Ms. Zuzul
(Doc. 13.) On September 10, 2014,
after the parties had fully brief the issue, this court adopted
the
August
6,
2014
Recommendation
of
the
substituting the United States for Dr. Pearson.
7
Magistrate
Judge,
(Doc. 30.)
Pursuant to Federal Rule of Civil Procedure 41(a), the parties
stipulated to the dismissal of Count Two of the amended complaint,
brought under 42 U.S.C. § 1981, and Ms. Zuzul’s demand for punitive
damages in the Counts One and Three. (Doc. 22.)
9
On May 29, 2014, the United States filed its motion to dismiss
— pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil
Procedure — or, in the alternative, a motion for summary judgment.
(Doc. 9.)
The motion attached a number of documents related to
Ms. Zuzul’s efforts to exhaust her administrative remedies. 8
Docs. 10-1 to 10-23.)
(See
Ms. Zuzul simultaneously responded to the
motion (Doc. 21), attaching her affidavit, and moved for relief
pursuant to Rule 56(d) of the Federal Rules of Civil Procedure
(Doc. 19).
Both motions have been fully briefed (Docs. 23, 26,
28), and the case is thus ripe for consideration.
II.
ANALYSIS
A.
Subject Matter Jurisdiction
A plaintiff bears the burden of establishing this court’s
jurisdiction over the subject matter of a lawsuit.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
See Adams v.
A motion challenging
subject matter jurisdiction should be granted “only if the material
jurisdictional facts are not in dispute and the moving party is
entitled
to
prevail
as
a
matter
of
law.”
See
Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991).
“A defendant may contest subject matter
jurisdiction in one of two ways: by attacking the veracity of the
allegations contained in the complaint or by contending that, even
8
Ms. Zuzul affirmatively alleges that she administratively exhausted
her First and Fourth EEO Complaints. (Doc. 5 ¶¶ 3–10.)
10
assuming that the allegations are true, the complaint fails to set
forth facts upon which jurisdiction is proper.”
States, 736 F.3d 296, 300 (4th Cir. 2013).
defendant
challenges
subject
matter
Durden v. United
“Generally, when a
jurisdiction
via
a
Rule
12(b)(1) motion to dismiss, the district court may regard the
pleadings as mere evidence on the issue and may consider evidence
outside the pleadings without converting the proceeding to one for
summary judgment.”
Velasco v. Gov’t of Indonesia, 370 F.3d 392,
398 (4th Cir. 2004).
Here, the United States moves to dismiss for lack of subject
matter jurisdiction on three grounds.
First, it contends that the
court lacks jurisdiction over Ms. Zuzul’s claims arising out of
her First EEO Complaint because she elected to proceed under the
VA’s negotiated grievance process.
argues
that
the
court
lacks
(Doc. 10 at 11.)
jurisdiction
assault, battery, and defamation.
over
her
(Id. at 13–14.)
Second, it
claims
of
Third, it
contends that Ms. Zuzul failed to exhaust her claim of retaliation
related to the audit of the charts of her patients. 9
(Doc. 24 at
6.)
contentions
None
of
the
United
States’
9
jurisdictional
The United States only raised this exhaustion challenge in its reply
brief. (See Doc. 24 at 6.) This was in violation of Local Rule 7.3(h),
which states that “[a] reply brief is limited to discussion of matters
newly raised in the response.” However, as administrative exhaustion
is jurisdictional, this court must address the United States’ challenge.
See Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014)
(holding that failing to exhaust administrative remedies concerning a
Title VII claim deprives a district court of jurisdiction).
11
challenges the veracity of Ms. Zuzul’s allegations.
Thus, when
addressing the United States’ jurisdictional arguments, the court
assumes the truthfulness of Ms. Zuzul’s allegations and draws all
reasonable inferences in her favor.
See AGI Assocs., LLC v. City
of Hickory, N.C., 773 F.3d 576, 578 (4th Cir. 2014) (“When a
defendant
argues
that
the
complaint
fails
to
allege
facts
establishing subject matter jurisdiction . . . the facts alleged
in the complaint are taken as true, and the motion must be denied
if the complaint alleges sufficient facts to invoke subject matter
jurisdiction.”
(quotation marks omitted) (quoting Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009))); Kerns v. United
States, 585 F.3d 187, 193 (4th Cir. 2009) (“[W]hen a defendant
asserts that the complaint fails to allege sufficient facts to
support subject matter jurisdiction, the trial court must apply a
standard patterned on Rule 12(b)(6) and assume the truthfulness of
the facts alleged.”).
1. Claims Arising out of Ms. Zuzul’s First EEO Complaint
The United States maintains that this court lacks subject
matter jurisdiction over claims arising out of Ms. Zuzul’s First
EEO Complaint because Ms. Zuzul elected to participate in the VA’s
negotiated grievance process concerning the events that underlie
it.
(Doc. 10 at 11.)
Ms. Zuzul responds that the subject of her
First Grievance on April 12, 2012, differs from the subject of her
later-filed First EEO Complaint, and, therefore, this court has
12
jurisdiction over the claims raised in the latter.
9.)
(Doc. 21 at 7–
The court concludes that the matters in the First Grievance
and First EEO Complaint are indeed different, allowing Ms. Zuzul
to bring claims related to the First EEO Complaint, but that Ms.
Zuzul failed to exhaust her administrative remedies as to the First
Grievance, barring claims arising out of it.
The Civil Service Reform Act (“CSRA”) of 1978, Pub. L. No.
95-454, 92 Stat. 1111 (codified as amended in scattered sections
of 5 U.S.C.), requires unions and federal employers to include
procedures for settling grievances in their collective bargaining
agreements.
grievance
With limited exceptions, the CSRA mandates that those
procedures
“shall
resolving
be
procedures
for
coverage.”
5 U.S.C. § 7121(a)(1).
the
grievances
exclusive
which
administrative
fall
within
its
The CSRA defines “grievance”
to include any complaint “by any employee concerning any matter
relating
to
the
employment
of
the
employee.”
5
U.S.C.
§ 7103(a)(9)(A).
One
exception
to
the
CSRA,
however,
permits
employees
aggrieved by discrimination in the workplace to “raise the matter
under
a
statutory
procedure
procedure, but not both.”
or
the
negotiated
[grievance]
5 U.S.C. § 7121(d) (emphasis added).
Thus, an employee who alleges a discriminatory personnel practice
may “elect to pursue his claim under either a statutory procedure
or a union-assisted grievance procedure; [but] he cannot pursue
13
both avenues, and his election is irrevocable.”
Vinieratos v.
U.S. Dep’t of the Air Force, 939 F.2d 762, 768 (9th Cir. 1991);
see also 29 C.F.R. § 1614.301(a) (“A person wishing to file a
complaint
or
discrimination
a
grievance
must
elect
on
a
matter
to
raise
a
of
alleged
matter
under
employment
either
[a
discrimination statute] or the negotiated grievance procedure, but
not both.”).
Ms. Zuzul elected to proceed under the union-
negotiated grievance procedure as to her First Grievance but under
the statutory EEOC process for her First EEO Complaint.
The court
must therefore determine whether Ms. Zuzul raised a “matter” in
her First Grievance on April 12, 2012, that she then also raised
in her First EEO Complaint.
Determining the effect of Ms. Zuzul’s
First Grievance on her First EEO Complaint is a “jurisdictional
inquiry.”
See Wilson v. Hagel, No. 5:13-CV-365, 2014 WL 3738530,
at *2–5 (E.D.N.C. July 29, 2014) (treating this inquiry as a
jurisdictional one); Tucker v. Astrue, 738 F. Supp. 2d 835, 838–
39 (N.D. Ill. 2010) (same); Facha v. Cisneros, 914 F. Supp. 1142,
1146–47 (E.D. Pa. 1996) (same), as amended on reconsideration (Mar.
6, 1996), aff’d, No. 96-1383, 106 F.3d 384 (3d Cir. Dec. 13, 1996).
The term “matter” in 5 U.S.C. § 7121(d) has been interpreted
to mean “the underlying employment action.”
Bonner v. Merit
Systems Protection Bd., 781 F.2d 202, 204–05 (Fed. Cir. 1986);
Macy v. Dalton, 853 F. Supp. 350, 353 (E.D. Cal. 1994); Van Houten
v. Gober, No. Civ. A.9 8–270, 1998 WL 966021, at *5 (E.D. Pa. Nov.
14
10, 1998).
To determine whether a grievance and EEO complaint
cover the same “matter,” many courts apply a test formulated in
Facha v. Cisneros, 914 F. Supp. 1142 (E.D. Pa. 1996).
See, e.g.,
Rosell v. Wood, 357 F. Supp. 2d 123, 129 (D.D.C. 2004); Van Houten,
1998 WL 966021, at *5.
In Facha, the court stated, “If [the
employee] raised a topic in both documents, or if the arbitrators
assigned to handle the grievance would necessarily have needed to
inquire into a topic in discharging their duties, then § 7121(d)
bars her from raising that same topic in her subsequent EEO
complaint.”
Facha, 914 F. Supp. at 1149.
Here, according to Ms. Zuzul’s amended complaint, she and Dr.
Pearson had a physical altercation at the bedside of a patient on
April 5, 2012.
(Doc. 5 ¶¶ 20–38, 139–43.)
A meeting was held
between management and Ms. Zuzul on April 12, 2012, attempting to
resolve the issues arising from the altercation.
(Id. ¶¶ 39–40.)
Ms. Zuzul filed her First Grievance the same day as the meeting on
April 12, 2012.
(Id. ¶ 41.)
The amended complaint states, “The
First Grievance addressed the April 5, 2012 incident with Pearson.”
(Id. ¶ 48.)
According to Ms. Zuzul’s Step 2 Grievance letter sent
by AFGE’s president, the factual matter of the First Grievance
related
to
“management”
creating
an
“unhealthy
and
unsafe
environment for Ms. Zuzul” around April 12, 2012, after Ms. Zuzul’s
reporting of the altercation.
(Doc. 10-6.)
The letter goes on to
mention a violation of a “Master Agreement” for management’s
15
failure to properly resolve “problems” in connection with the
altercation. (Id.) The Step 2 Grievance letter makes no reference
to any incident other than the April 12, 2012 meeting and the
underlying altercation.
In contrast, Ms. Zuzul’s First EEO Complaint makes no mention
of the altercation or April 12, 2012 meeting.
(Doc. 10-10.)
Rather, the EEO complaint states that Ms. Zuzul was discriminated
against “because she was the only Nurse Anesthestist [sic] to have
there [sic] patients [sic] charts audited.”
(Id.)
Moreover, the
complaint describes the “date of occurrence” of the discriminatory
conduct as April 18, 2012.
The
“matter”
of
Ms.
(Id.)
Zuzul’s
First
Grievance,
therefore,
concerned the April 12, 2012 meeting and the underlying altercation
between Ms. Zuzul and Dr. Pearson on April 5, 2012, from which the
claims of assault and battery arose.
The First EEO Complaint,
alternatively, dealt with the April 18 audit of Ms. Zuzul’s charts,
which she alleges Dr. Pearson performed.
As a result, the First
Grievance and First EEO Complaint covered different matters, and,
therefore, § 7121(d) is no jurisdictional bar to matters within
the First EEO Complaint.
See Facha, 914 F. Supp. at 1149–50
(holding that three matters covered in EEO complaints but not
raised in employee’s filed grievances were not jurisdictionally
barred); Van
employee’s
Houten,
1998
reassignment
WL
claim
966021,
“was
16
at
not
*5
(concluding
addressed
during
that
the
grievance procedure” and that “an arbitrator presented with [the
employee’s] grievance would not be obligated to reach the issue of
his reassignment in resolving the merits of his [grievance’s]
claim”).
While
arguing
that
this
court
lacks
subject
matter
jurisdiction over the matter in Ms. Zuzul’s First EEO Complaint,
the United States makes no argument regarding whether Ms. Zuzul
exhausted her administrative remedies as to the matters within her
First Grievance.
(See Doc. 10 at 11.)
A federal employee’s
failure to exhaust administrative remedies, however, is a bar to
this court’s subject matter jurisdiction.
See Wilson v. Hagel,
No. 5:13-CV-365-F, 2014 WL 3738530, at *3–5 (E.D.N.C. July 29,
2014) (holding that failure to exhaust administrative remedies
under 5 U.S.C. § 7121(d) is a jurisdictional inquiry); see also
Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014)
(“[A] failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of subject
matter jurisdiction over the claim.” (quoting Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009))).
But see Adamov
v. U.S. Bank Nat. Ass’n, 726 F.3d 851, 855–56 (6th Cir. 2013).
Under 5 U.S.C. § 7121(d), once an employee elects to proceed
under a negotiated grievance procedure by timely filing a grievance
in writing, she must exhaust her administrative remedies within
that procedure.
See Wilson, 2014 WL 3738530, at *3–5; Frasure v.
17
Principi, 367 F. Supp. 2d 245, 253 (D. Conn. 2005) (“Whichever
route the employee chooses [under § 7121(d)], she must then exhaust
that administrative remedy before pursuing her claim in court.”).
Importantly,
facts
showing
the
existence
of
subject
matter
jurisdiction “must be affirmatively alleged in the complaint.”
Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.
1999).
Here, Ms. Zuzul elected to file her First Grievance as to the
April 12, 2012 meeting and the underlying April 5, 2012 altercation
involving the alleged assault and battery.
(Doc. 5 ¶ 40.)
Once
she chose this route, she was required to follow the negotiated
grievance procedure as to her First Grievance, which entails a
four-step process.
(See Doc. 10-7 at 2–3.)
She fails to allege,
however, that she exhausted her administrative remedies (i.e., the
four-step process).
Ms. Zuzul alleges that she filed a grievance, satisfying “Step
1” of the grievance procedure.
(Doc. 5 ¶ 40.)
But the United
States attaches both her “Step 2 Grievance, Marsha [sic] Zuzul”
letter from May 31, 2012, and Dr. Lucha’s “Response to Grievance
(Step 2) regarding Ms. Marsha [sic] Zuzul” from July 2, 2012.
(Docs. 10-6, 10-8.)
In Dr. Lucha’s response, he concluded, “After
careful consideration of the information available and provided,
we appear to be working towards the same end.
grievance is granted.”
As such, your
(Doc. 10-8 at 2; see also Doc. 5 ¶ 49.)
18
In granting the request, Dr. Lucha stated that “management would
do its best to minimize the amount of scheduled contact between
[Dr. Pearson and Ms. Zuzul].”
(Doc. 10-8 at 1.)
Ms. Zuzul’s amended complaint makes no allegation that she
proceeded any further with or exhausted the remaining grievance
procedure she elected to pursue. 10
If Ms. Zuzul was not satisfied
with Dr. Lucha’s resolution of the matter, which must be the case
because she seeks to proceed in this court, Step 3 of the fourstep grievance process required her or the Union to “submit the
grievance to the Director,” along with grievance’s basis and
desired corrective action desired.
(Doc. 10-7 at 3.)
Then, “if
. . . not satisfactorily resolved in Step 3,” the grievance
proceeds to Step 4, which allows the VA or the Union to refer the
grievance to arbitration.
(stating
that
negotiated
(Id.); see also 5 U.S.C. § 7121(d)
grievance
procedures
must
“include
procedures that . . . provide that any grievance not satisfactorily
settled under the negotiated grievance procedure shall be subject
to binding arbitration which may be invoked by either the exclusive
representative or the agency”). Therefore, because Ms. Zuzul fails
10
The amended complaint states that Ms. Machovina filed a Step 3
Grievance, which was allegedly granted. (Doc. 5 ¶ 62.) The amended
complaint, however, describes the grievance as a “Second Grievance,”
concerning a different matter not properly before the court (i.e., a
Focused Professional Practice Evaluation). (Id.) Even if this Second
Grievance was in fact part of the process of the First Grievance, Ms.
Zuzul still failed to allege affirmatively her exhaustion of “Step 4”
of the negotiated grievance procedure.
19
to allege that she exhausted her administrative remedies under the
negotiated grievance process, this court lacks subject matter
jurisdiction over the alleged April 5, 2012 assault and battery
and the April 12, 2012 meeting concerning the assault and battery.
2.
Claims of Assault, Battery, and Defamation
The United States also argues that this court lacks subject
matter jurisdiction over Ms. Zuzul’s fourth and fifth claims for
assault, battery, and defamation against the United States, which
is now substituted for Dr. Pearson.
(Doc. 10 at 13.)
The United
States specifically contends that the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346 et seq., does not grant the court
jurisdiction over those claims.
this
court
possesses
(Id.)
jurisdiction
Ms. Zuzul responds that
because
Dr.
Pearson
acted
outside the scope of his employment when committing the alleged
assault, battery, and defamation, and, therefore, “the exclusivity
of the FTCA does not apply.”
(Doc. 21.)
In its September 10, 2014 Order, this court adopted the
Magistrate Judge’s August 6, 2014 Recommendation and substituted
the
United
States
§ 2679(d)(1).
for
(Doc. 30.)
Dr.
Pearson
pursuant
to
28
U.S.C.
In doing so, the court overruled Ms.
Zuzul’s objection that Dr. Pearson’s actions were within the scope
of employment.
(Doc. 24.)
With the United States substituted for
Dr. Pearson, Ms. Zuzul’s unresolved claims of assault, battery,
20
and defamation are now subject to the FTCA. 11
See 28 U.S.C.
§
or
2679(d)(4)
(“Upon
certification,
any
action
proceeding
subject to paragraph [(d)](1) . . . shall proceed in the same
manner as any action against the United States filed pursuant to
section
1346(b)
of
this
title
and
shall
be
subject
to
the
limitations and exceptions applicable to those actions.”); Osborn
v. Haley, 549 U.S. 225, 230 (2007) (“Upon the Attorney General’s
certification, the employee is dismissed from the action, and the
United
States
is
substituted
as
defendant
in
place
of
the
employee.”); Sobitan v. Glud, 589 F.3d 379, 383 (7th Cir. 2009)
(“[After the United States Attorney’s certification,] [t]he suit
then proceeds as though it had been filed against the United States
under the FTCA.”).
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”
FDIC v. Meyer, 510 U.S.
471, 475 (1994). “Sovereign immunity is jurisdictional in nature.”
Id.; see also United States v. Sherwood, 312 U.S. 584, 586 (1941)
(“[T]erms of [the United States’] consent to be sued in any court
define that court’s jurisdiction to entertain the suit.”); J.C.
Driskill, Inc. v. Abdnor, 901 F.2d 383, 385 n.4 (4th Cir. 1990)
(“Waiver of sovereign immunity is a jurisdictional prerequisite in
11 The court entered its Order substituting the United States for Dr.
Pearson after the briefing on the current motions was complete. Neither
party has requested supplemental briefing to address any effect the Order
could have on the pending motions.
21
the nature of, but not the same as, subject matter jurisdiction,
in that unless sovereign immunity be waived, there may be no
consideration of the subject matter.”); Rich v. United States, 158
F. Supp. 2d 619, 630 (D. Md. 2001) (“When a plaintiff has failed
to establish a waiver of sovereign immunity, a federal court lacks
jurisdiction to hear the case.” (citing Global Mail Ltd. v. U.S.
Postal Serv., 142 F.3d 208, 210 (4th Cir. 1998))); 14 Charles Alan
Wright et al., Federal Practice and Procedure § 3654 (3d ed. 2004)
(“The natural consequence of the sovereign immunity principle is
that the absence of consent by the United States is a fundamental
defect
that
deprives
the
district
court
of
subject
matter
jurisdiction.”).
The FTCA provides a limited waiver of the United States’
sovereign
immunity
employees.”
“for
certain
torts
by
federal
Ignacio v. United States, 674 F.3d 252, 253 (4th Cir.
2012) (quoting FDIC, 510 U.S. at 475).
relevant
committed
part,
that
district
courts
The FTCA provides, in
shall
have
exclusive
jurisdiction over civil actions on claims against the United States
for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within
the
scope
of
his
office
or
employment,
under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b)(1); see also Kerns, 585 F.3d at 194 (“The FTCA
22
grants jurisdiction to the district courts only with respect to a
‘certain category of claims.’” (quoting FDIC, 510 U.S. at 477)).
The FTCA, however, provides that the United States’ limited waiver
of sovereign immunity as to negligence committed by government
employees shall not apply to “[a]ny claim arising out of assault,
battery, . . . libel, slander” or certain other listed torts.
28
U.S.C. § 2680(h).
Here, Zuzul alleges that the United States, through the
actions of Dr. Pearson, committed three intentional torts against
her under the FTCA — assault, battery, and defamation.
¶¶ 139–60.)
As noted, the FTCA explicitly preserves the sovereign
immunity
of
assault,
battery,
Therefore,
(Doc. 5
the
United
because
States
libel,
and
the
United
for
suits
slander.
States
involving
28
U.S.C.
retained
its
claims
§
of
2680(h).
sovereign
immunity under the FTCA as to those claims, Zuzul’s claims of
assault, battery, and defamation are jurisdictionally barred. 12
Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 316 (4th Cir. 2012)
(observing that the FTCA bars defamation actions against the United
States); Weinraub v. United States, 927 F. Supp. 2d 258, 261–66
(E.D.N.C. 2012) (dismissing claims of assault and battery against
the United States as barred by sovereign immunity); Khatami v.
12
The court therefore need not address the United States’ argument that
Ms. Zuzul failed to exhaust her administrative remedies under the FTCA.
(Doc. 10 at 13–14.) The court notes alternatively, however, that Ms.
Zuzul’s failure to exhaust her administrative remedies as to her First
Grievance would bar her assault and battery claims. See supra.
23
Compton, 844 F. Supp. 2d 654, 664 (D. Md. 2012) (dismissing claim
of defamation against the United States as barred by sovereign
immunity).
Therefore, the United States’ motion to dismiss Counts
Four and Five will be granted.
3.
Retaliation Claim Related to the Chart Audit
The United States argues that Ms. Zuzul has failed to exhaust
her retaliation claim as to the chart audit allegedly authorized
by Dr. Pearson because she did not claim retaliation in her First
EEO
Complaint,
which
mentioned
the
audit.
(Doc.
24
at
6.)
Although the United States raised this issue in its reply brief,
the court must resolve it because administrative exhaustion is a
jurisdictional inquiry.
See Hentosh, 767 F.3d at 416.
“The scope of the plaintiff’s right to file a federal lawsuit
is determined by the charge’s contents.”
Jones v. Calvert Grp.,
Ltd., 551 F.3d 297, 300 (4th Cir. 2009). “An administrative charge
of discrimination does not strictly limit a Title VII suit which
may follow; rather, the scope of the civil action is confined only
by
the
scope
of
the
administrative
investigation
that
can
reasonably be expected to follow the charge of discrimination.”
Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002)
(quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th
Cir. 1981)).
Stated differently, the litigation may encompass
claims “reasonably related to the original complaint, and those
developed by reasonable investigation of the original complaint
24
may be maintained in a subsequent Title VII lawsuit.”
Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
As the Fourth Circuit observed, “[T]he exhaustion requirement
should not become a tripwire for hapless plaintiffs.
While it is
important to stop clever parties from circumventing statutory
commands, we may not erect insurmountable barriers to litigation
out of overly technical concerns.”
Sydnor v. Fairfax Cnty, Va.,
681 F.3d 591, 594 (4th Cir. 2012).
The United States notes that, in her First EEO Complaint
concerning the chart audit, Ms. Zuzul cites only gender and race
discrimination as the basis for her complaint.
(Doc. 23 at 6.)
The United States’ observation is correct in that Ms. Zuzul does
not expressly cite “retaliation” as an additional basis for her
complaint. (See Doc. 10-10.) However, the United States’ argument
is hyper-technical and of the type the Fourth Circuit warned would
create an “insurmountable barrier[] to litigation out of overly
technical
concerns.”
Sydnor,
681
F.3d
at
594.
While
not
explicitly listing “retaliation” as the basis of her complaint,
Ms.
Zuzul’s
First
EEO
Complaint
clearly
states
a
claim
of
retaliation in the section of the form, in fact, titled “Claim(s).”
(Doc. 10-10)
The charge states, “Claim: . . . Alleges she was
discriminated against by the Chief of Surgery . . .
[a]fter
participating in a fact-finding, because she was the only nurse
anesthestist
[sic]
to
have
there
25
[sic]
patients[’]
charts
audited.”
(Id.)
“retaliation,”
Ms.
Although
Zuzul’s
not
First
expressly
EEO
using
Complaint
the
word
sufficiently
claimed retaliation, in the form of the audit, after the factfinding connected to her First Grievance.
Therefore, Ms. Zuzul
exhausted her administrative remedies for her retaliation claim
related to the chart audit, and the motion to dismiss on this
ground will be denied.
B.
Motion to Dismiss for Failure to State a Claim
The United States also moves to dismiss the amended complaint
for failure to state a claim upon which relief can be granted under
Rule 12(b)(6).
It argues that the complaint fails to allege
sufficient facts to make plausible a claim of racial or gender
discrimination, retaliation, or harassment. 13
(Doc. 10.)
Ms.
Zuzul maintains that she has alleged sufficient facts to state all
claims.
(Doc. 21.)
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the plaintiff is entitled to relief.
Under Federal
Rule
must
of
Civil
Procedure
12(b)(6),
“a
complaint
contain
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
13 Ms. Zuzul’s “Count Three” lists claims of gender discrimination and
retaliation but makes no mention of gender harassment. (See Doc. 5 at
21.) At the beginning of the amended complaint, however, the claims
listed related to gender include a harassment claim. (Id. ¶ 1.)
26
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Iqbal,
A Rule 12(b)(6)
motion “challenges the legal sufficiency of a complaint considered
with the assumption that the facts alleged are true.”
Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (internal citations
omitted).
However, pleadings that “are no more than conclusions
are not entitled to the assumption of truth.”
679.
Iqbal, 556 U.S. at
And mere “‘labels and conclusions’ or ‘formulaic recitation
of elements of a causation of action will not do.’”
Id. at 678
(quoting Twombly, 550 U.S. at 555).
While
the
parties
have
submitted
evidence
outside
the
pleadings in connection with the United States’ motion to dismiss
based on subject matter jurisdiction (see Docs. 10-1 to 10-21, 211), none of it should be considered when evaluating Ms. Zuzul’s
claims under Rule 12(b)(6) unless the court elects to treat the
motion as one for summary judgment.
Richmond, 945 F.2d at 768.
See Fed. R. Civ. P. 12(d);
An exception to this rule exists where
the matters outside the pleadings were integral to and explicitly
relied upon in the complaint. See Am. Chiropractic Ass’n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (considering
document
outside
of
the
pleadings
27
that
plaintiff
“explicitly
referred to” in its complaint); Phillips v. LCI Int’l, Inc., 190
F.3d 609, 618 (4th Cir. 1999).
While some of the documents outside
of the complaint meet this exception (e.g., Doc. 10-17 (one of Ms.
Zuzul’s EEO complaints)), the court need not consider them at this
stage
because
they
are
pertinent
only
to
the
United
States’
12(b)(1) motion.
1.
Race and Gender Discrimination Claims
The United States first argues that Ms. Zuzul’s amended
complaint fails to state a claim of race or gender discrimination
because it alleges no adverse employment action. 14
(Doc. 10 at
15.) Ms. Zuzul contends that “there are genuine issues of material
fact
that
preclude
summary
judgment”
on
her
claims
and
that
discovery “may reveal further genuine issues of material fact”
regarding the allegations’ effect on Ms. Zuzul’s “retention and
promotion potential.”
(Doc. 21 at 16.)
To allege racial or gender discrimination, a plaintiff must
allege that her employer discriminated against her “with respect
to
h[er]
compensation,
terms,
conditions,
employment” because of her race or gender.
or
privileges
of
42 U.S.C. § 2000e-
2(a)(1); see also McCleary-Evans v. Md. Dep’t of Transp., State
14
The United States also contends that Ms. Zuzul’s amended complaint
fails to allege that her “race or gender was indeed a motivating factor
behind the [VA’s] actions” (Doc. 10 at 15), but she clearly alleges the
actions were “based on,” “on the basis of,” “because of,” and “as a
result of” her race and gender. (See Doc. 5 ¶¶ 89–92, 99, 100, 104,
135.)
28
Highway Admin., No. 13-2488, ___ F.3d ___, 2015 WL 1088931, at *3
(4th Cir. Mar. 13, 2015).
Even viewed in the light most favorable
to Ms. Zuzul, her factual allegations fail to state a claim of
racial or gender discrimination.
To allege discrimination, a plaintiff must allege that she
suffered an “adverse employment action.” Coleman v. Maryland Court
of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d, sub nom.
Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012); cf.
Gerner v. Cnty. of Chesterfield, Va., 674 F.3d 264, 266 (4th Cir.
2012)
(finding
employment
allegations
action”
at
motion
sufficient
to
to
dismiss
establish
stage).
An
“adverse
adverse
employment action is one in which an employee suffers a “discharge,
demotion, decrease in pay or benefits, loss of job title or
supervisory
promotion.”
responsibility,
or
reduced
opportunities
for
Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999);
see also Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)
(explaining that, under Title VII, an adverse employment action
occurs in “ultimate employment decisions such as hiring, granting
leave, discharging, promoting, and compensating”).
Here, Ms. Zuzul’s amended complaint points to several actions
attempting to plead discriminatory treatment: the April 18, 2012
audit; Dr. Pearson’s allegedly false statement on January 10, 2013,
about Ms. Zuzul’s failure to come to work; and Dr. Pearson’s
yelling at the June 20, 2013 meeting.
29
None of those allegations,
however, constitutes an adverse employment action for purposes of
racial or gender discrimination.
See Boone, 178 F.3d at 255;
Murphy v. Danzig, 64 F. Supp. 2d 519, 523 (E.D.N.C. 1999).
Ms.
Zuzul makes no allegation that any of those actions caused negative
consequences such as demotion, denial of promotion opportunities,
or reduction in salary.
In fact, as to the April 18, 2012 audit,
Ms. Zuzul alleges that Dr. Pearson’s superior, Dr. Blok, told her
that “there was nothing wrong with the care Zuzul provided,” making
no suggestion that she suffered an adverse result from the audit.
(Doc. 5 ¶ 45.)
Although Ms. Zuzul alleges that together these
actions “damage[d] her professional reputation” (Doc. 5 ¶ 88),
that allegation is insufficient to allege an adverse employment
action for purposes of racial or gender discrimination.
See Rock
v. McHugh, 819 F. Supp. 2d 456, 470 (D. Md. 2011) (concluding that
failing to issue a performance appraisal and issuing a personal
improvement plan, a verbal reprimand, and a formal letter of
reprimand
all
failed
to
constitute
sufficient
allegations
of
adverse employment actions); Patterson v. Johnson, 505 F.3d 1296,
1298
(D.C.
Cir.
2007)
(finding
“loss
of
reputation”
not
a
materially adverse consequence of employment action); Cornelius v.
City
of
Columbia,
(concluding
that
663
“an
F.
Supp.
evaluation,
2d
471,
brief
477
period
(D.S.C.
of
2009)
probation,
alleged unwarranted criticism and unfavorable job assignment” did
not
constitute
adverse
employment
30
actions),
aff’d
sub
nom.
Cornelius v. Columbia, City of, S. Carolina, 399 F. App’x 853 (4th
Cir. 2010); McNeil v. Loyola Univ., No. CIV. WDQ-13-1473, 2014 WL
320494, at *6–7 (D. Md. Jan. 27, 2014) (holding that allegations
of employee’s placement on probation not an adverse employment
action); Naughton v. Sears, Roebuck & Co., No. 02–4761, 2003 WL
360085, at *5 n.1 (N.D. Ill. 2003) (criticism, including a negative
performance review or development plan, does not constitute an
adverse employment action); Lewis v. Forest Pharm., Inc., 217 F.
Supp. 2d 638, 648 (D. Md. 2002) (“Reprimands, whether oral or
written, do not per se significantly affect the terms or conditions
of employment.”).
Therefore, Ms. Zuzul’s amended complaint fails
to state claims of race and gender discrimination, and the United
States’ motion to dismiss those claims as alleged in Counts One
and Three will be granted.
2.
Race and Gender Retaliation Claims
The United States contends that Ms. Zuzul’s complaint fails
to sufficiently allege a claim of retaliation.
19.)
(Doc. 10 at 18–
It specifically argues that Ms. Zuzul pleaded no facts
alleging a materially adverse employment action.
counters
that
the
facts
provided
in
her
sufficiently plead claims of retaliation.
(Id.)
Ms. Zuzul
amended
complaint
(Doc. 21 at 13–15.)
The court agrees with Ms. Zuzul.
A sufficient claim of retaliation requires allegations that
an employer discriminated against its employees “because” that
31
employee “opposed any [unlawful employment] practice” or “made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII.
§ 2000e-3(a); see also Coleman, 626 F.3d at 190.
disparate
impact,
however,
the
standard
for
42 U.S.C.
Unlike claims of
what
constitutes
discrimination for a retaliation claim is “less strenuous than the
standard in a discrimination claim.”
Madock v. McHugh, No. ELH–
10–2706, 2011 WL 3654460, at *26 (D. Md. Aug. 18, 2011) (internal
quotation marks omitted).
Instead, a plaintiff must only allege
discrimination that “a reasonable employee would have found . . .
materially adverse, which in this context means it might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,
1219 (D.C. Cir. 2006)) (internal quotation marks omitted); see
also Twisdale v. Paulson, 595 F. Supp. 2d 686, 698 (S.D.W. Va.
2009) (holding that the Burlington standard “applies with equal
force in the federal-employment context”).
As with her claims of race and gender discrimination, Ms.
Zuzul points to several employment actions as negatively affecting
her professional reputation.
(Doc. 5 ¶ 88.)
For one, the April
18, 2012 audit allegedly caused by Dr. Pearson occurred six days
after she filed her First Grievance with the VA.
Opposition
activity
under
Title
32
VII
(Id. ¶ 41.)
encompasses
utilizing
grievance procedures.
See Armstrong v. Index Journal Co., 647
F.2d 441, 448 (4th Cir. 1981). The amended complaint alleges that,
after filing two EEO complaints — in April and September of 2012
— on January 10, 2013, Dr. Pearson falsely told others that Ms.
Zuzul “refused to come in.”
(Id. ¶¶ 63–71.)
same claim to his superior, Dr. Blok.
Dr. Pearson made the
(Id. ¶ 73.)
Finally, the
next time Dr. Pearson and Ms. Zuzul were together, at a meeting in
June 2013, Dr. Pearson yelled at Ms. Zuzul, repeatedly stating
that she refused to come into work when on call. 15
(Id. ¶¶ 80–87.)
She alleges that the combination of Dr. Pearson’s accusations
following
reputation.”
protected
activity
“damaged
her
actions
caused
professional
(Id. ¶ 88.)
Allegations
that
retaliatory
the
loss
of
professional reputation can constitute adverse employment actions
15
Ms. Zuzul also points to her allegation that Dr. Pearson threatened
to sue her, take her house, affect her nursing license, cause her to
lose her job, and report her to both the North Carolina Nursing Board
and the Secretary of the Department of Veteran’s Affairs. (Doc. 21 at
15 (referencing Doc. 5 ¶¶ 152–53).) For one, these allegations arise
in her defamation count and are not incorporated into her counts for
race or gender retaliation.
See Fed. R. Civ. P. 10(c) (permitting
adoption by reference); Hinton v. Trans Union, LLC, 654 F. Supp. 2d 440,
446 (E.D. Va. 2009) (“[I]t is well-settled, as a leading treatise notes,
that incorporation by reference under Rule 10(c) ‘must be direct and
explicit, in order to enable the responding party to ascertain the nature
and extent of the incorporation.’” (quoting 5A Charles Alan Wright et
al., Federal Practice & Procedure § 1326 (3d ed. 2004))), aff’d, 382 F.
App’x 256 (4th Cir. 2010). Moreover, Ms. Zuzul provides no dates for
these allegations, and the court has no way of knowing whether that
alleged conduct occurred after any protected activity.
Thus, this
allegation also fails to state a plausible claim. See Iqbal, 556 U.S.
at 679 (stating that an allegation is insufficient under Rule 8 of the
Federal Rules of Civil Procedure “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct”).
33
for purposes of employment retaliation claims.
See Wanamaker v.
Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (holding, at
the
summary
judgment
stage,
that
actions
“besmirch[ing]”
employee’s reputation could serve as an adverse employment action
in the context of an ADEA retaliation claim); Salami v. N.C. Agric.
& Technical State Univ., 394 F. Supp. 2d 696, 719 (M.D.N.C. 2005)
(“[I]n the retaliation context, the retaliation need not reach the
level of hiring, refusing to promote, or discharging, where the
alleged retaliatory acts alter the terms, conditions, or benefits
of employment.
Adverse employment actions also include actions
‘that would adversely affect one’s professional reputation or
ability to gain future employment, whether or not there was an
ultimate employment decision.’” (quoting Howze v. Va. Polytechnic,
901 F. Supp. 1091, 1098 (W.D. Va. 1995))), aff’d, 191 F. App’x 193
(4th Cir. 2006).
Ms. Zuzul’s amended complaint therefore states
claims for retaliation, and the United States’ motion to dismiss
those claims in Counts One and Three will be denied.
3.
Finally,
Racial and Gender Harassment Claim
the
United
States
argues
that
Ms.
Zuzul’s
allegations of a hostile work environment fail to state a claim as
they fail to plead sufficiently severe or pervasive harassment. 16
16
The United States also argues that the allegations insufficiently
allege that the harassment was based on gender or race. (Doc. 10 at 16–
18.) Again, however, Ms. Zuzul clearly claims the alleged actions were
“based on,” “because of,” “on the basis of,” and “as a result of” her
race and gender. (See Doc. 5 ¶¶ 89–92, 99, 100, 104, 135.)
34
(Doc. 10 at 16–18.) Ms. Zuzul contends that the alleged harassment
was sufficiently severe and pervasive.
(Doc. 21 at 17–20.)
To survive a motion to dismiss, a racial or gender harassment
claim
must
plead
facts
making
plausible
that
an
employee
experienced unwelcome harassment because of race or gender; that
the harassment was “sufficiently severe or pervasive to alter the
conditions of employment and create an abusive atmosphere”; and
that
there
employer.
exists
some
basis
for
imposing
liability
on
her
See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (defining “actionable” harassment under Title VII); see
also 42 U.S.C. § 2000e–2(a)(1); Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
Even with all reasonable
inferences drawn in Ms. Zuzul’s favor, her amended complaint fails
to state a claim because it fails to allege a sufficiently “severe
or pervasive” hostile work environment.
To state an actionable claim, the conduct must meet both an
objective
and
a
subjective
standard:
it
must
be
“severe
or
pervasive enough to create an environment that a reasonable person
would find hostile or abusive and the victim must subjectively
regard
that
environment
as
abusive.”
Conner
v.
Schrader-
Bridgeport Int’l, Inc., 227 F.3d 179, 192 (4th Cir. 2000) (internal
brackets omitted).
examine
the
In making this determination, the court must
totality
of
the
circumstances,
including
“the
frequency of the discriminatory conduct; its severity; whether it
35
is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
it
employee’s work performance.”
unreasonably
interferes
with
an
Spriggs v. Diamond Auto Glass, 242
F.3d 179, 184 (4th Cir. 2001) (quoting Harris, 510 U.S. at 23).
“[P]laintiffs must clear a high bar in order to satisfy the severe
or pervasive test.”
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,
315 (4th Cir. 2008).
Ms. Zuzul’s amended complaint falls demonstrably short.
The
facts alleged here amount to no more than “a story of a workplace
dispute” between Dr. Pearson and Ms. Zuzul.
765.
Bass, 324 F.3d at
The April 18, 2012 audit as well as the January 9 and June
20, 2013 incidents appear to have arisen from a personal dispute
between Dr. Pearson and Ms. Zuzul.
The amended complaint also
shows VA management’s repeated efforts to resolve the differences
between the two following notice of Ms. Zuzul’s complaints.
(See,
e.g., Doc. 5 ¶¶ 39 (conducting fact-finding investigation on April
6, 2012), 40 (meeting about results of fact finding), 73 (Ms.
Zuzul’s
meeting
with
Dr.
Pearson’s
supervisor),
81
(holding
meeting about Dr. Pearson’s behavior with Ms. Zuzul and other
nurses).)
Ms. Zuzul’s allegations demonstrate a conflict of
personalities creating workplace tension but not a gender- or
“racially-charged, offensive environment that courts have found
actionable.”
Signal v. Gonzales, 430 F. Supp. 2d 528, 539 (D.S.C.
2006); see also Bass, 324 F.3d at 765 (“[Plaintiff’s] complaint is
36
full
of
problems
supervisors.
she
experienced
with
her
co-workers
and
These facts, however, do not seem to have anything
to do with gender, race, or age harassment.”); Hawkins v. PepsiCo,
Inc., 203 F.3d 274, 276 (4th Cir. 2000) (holding that complaint
premised on “a routine difference of opinion and personality
conflict with her supervisor” insufficiently stated actionable
facts for a hostile work environment claim); Buchhagen v. ICF
Int’l, Inc., 545 F. App’x 217, 219 (4th Cir. 2013) (holding that
“mockingly”
yelling
plaintiff,
at
“playing
plaintiff,
favorites
making
with
“snide
comments”
employees,”
to
“repeatedly
harping” on plaintiff’s mistake, and “unfairly scrutinizing and
criticizing” plaintiff failed to state hostile work environment
claim) 17; Hoffman v. Baltimore Police Dep’t, 379 F. Supp. 2d 778,
791 (D. Md. 2005) (finding plaintiff’s allegations that he was
forced to relocate his office numerous times, that his work was
subjected to “intense scrutiny,” that he was given an increased
case load and forced to work longer uncompensated hours, and that
his job title was downgraded fell short of stating a hostile work
environment claim); Averette v. Diasorin, Inc., No. 3:11CV203,
2011
WL
3667218,
Plaintiff’s
at
*3
allegations
of
(W.D.N.C.
2011)
‘harassment’
do
(stating
nothing
“[a]ll
more
establish that she did not get along with her co-workers”).
17
Unpublished opinions are not binding precedent in this circuit.
37
of
than
The
facts alleged fall short of the race- or gender-based actions
necessary to state a hostile work environment claim. Cf. Ocheltree
v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (finding
that
male
coworkers’
almost
daily
conduct,
which
included
repeatedly simulating sex with a mannequin, directing vulgar and
sexually explicit songs at plaintiff, and presenting her with
graphic pornography, were sufficiently severe or pervasive to
create an abusive work environment); Spriggs, 242 F.3d at 185 (use
of “odious” racial epithets create conditions for abusive working
environment).
Thus, the United States’ motion to dismiss Ms.
Zuzul’s racial and gender harassment claims contained in Counts
One and Three of the amended complaint will be granted.
C.
Alternative Motion for Summary Judgment and Ms. Zuzul’s
Rule 56(d) Motion
The
United
judgment.
States
(Doc. 9.)
also
moved
alternatively
for
summary
Ms. Zuzul responded with a motion for relief
pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.
(Doc. 19.)
The court will deny the United States’ motion for summary
judgment as to Ms. Zuzul’s retaliation claims, which survived the
United States’ motion to dismiss.
As noted earlier, the United
States’ exhibits submitted in addition to the amended complaint
pertained only to the United States’ Rule 12(b)(1) motion and had
no bearing on the substantive merits of Ms. Zuzul’s claims.
38
(See
Docs.
10-1
to
10-22
(offering
administrative efforts).)
documentation
of
Ms.
Zuzul’s
Consequently, Ms. Zuzul’s motion for
Rule 56(d) relief is moot.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that the United States’ motion to
dismiss (Doc. 9) is GRANTED IN PART and DENIED IN PART, and that
Ms. Zuzul’s claims for discrimination and harassment based on race
and gender contained in Counts One and Three of the amended
complaint
are
DISMISSED,
her
claims
for
assault
and
battery
contained in Count Four are DISMISSED, and her claim for Defamation
contained in Count Five is DISMISSED.
The motion to dismiss her
remaining claims for retaliation contained in Counts One and Three
is DENIED.
IT IS FURTHER ORDERED that the United States’ alternative
motion for summary judgment (Doc. 9) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for relief
pursuant to Federal Rule of Civil Procedure 56(d) (Doc. 19) is
DENIED as MOOT.
/s/
Thomas D. Schroeder
United States District Judge
March 31, 2015
39
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