Pickens v. U.S. Department of Veterans Affairs

Filing 44

OPINION AND ORDER: Granting in Part and Denying in Part VAMC's Motion for Partial Summary Judgment 33 . Signed on 5/23/2011 by Judge Garr M. King. (pc)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
DARRYL PICKENS, an individual,

Civil Case No. 09-704-KI

Plaintiff,
OPINION AND ORDER
vs.
HON. ERIC K. SHINSEKI, Secretary of
Veterans Affairs; and DOES 1-10,
Defendants.

David H. Madden
Mersenne Law LLC
1500 S.W. First Avenue, Suite 1170
Portland, Oregon 97201
Attorney for Plaintiff
Dwight C. Holton
United States Attorney
District of Oregon

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Sean E. Martin
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Defendant

KING, Judge:
Plaintiff Darryl Pickens alleges harassment, race discrimination, retaliation, and disability
discrimination from 2004 to 2008 while working at the Veteran’s Administration Medical Center
(the “VAMC”). Pending before the court is the VAMC’s Motion for Partial Summary Judgment
[33]. For the foregoing reasons, I grant in part and deny in part the motion.
BACKGROUND
Plaintiff alleges he was the target of a variety of harassing and discriminatory conduct
during his employment with the VAMC. He complained to his supervisor about the conduct.
Plaintiff alleges the VAMC made him undergo a psychiatric evaluation, fabricated the responses,
and terminated him on the basis of the fabricated responses. Plaintiff brings the following
claims: (1) disparate treatment in employment under Title VII; (2) hostile work environment in
violation of Section 1981; (3) retaliation in EEOC proceeding under Title VII; (4) discrimination
under ORS 659A.030(1)(b); and (5) discrimination due to disability under the Rehabilitation Act.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate
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through the production of probative evidence that there remains an issue of fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the
court “must view the evidence on summary judgment in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party.” Nicholson v.
Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).
DISCUSSION
I.

Concessions
As an initial matter, both parties have made several concessions. Plaintiff agrees that

defendant Does 1-10 must be dismissed. Plaintiff also agrees that neither his second cause of
action (violation of § 1981) nor his fourth cause of action (violation of ORS 659A.030) is legally
cognizable. Based on plaintiff’s concessions, the VAMC’s motion for partial summary judgment
is granted as to plaintiff’s second and fourth causes of action and all the Doe defendants are
dismissed.
Additionally, the VAMC concedes its motion for partial summary judgment as to six
issues. Specifically, the VAMC now concedes that plaintiff did timely exhaust the following six
issues: (1) co-worker David Duck received a promotion over plaintiff; (2) plaintiff received a
smaller bonus than a co-worker for a workplace-efficiency idea; (3) a supervisor’s statement that
plaintiff’s mother should die; (4) a statement by plaintiff’s supervisor that plaintiff would never
advance on the supervisor’s watch; (5) an allegation that a co-worker, Troy Wilkendorf,
assaulted and grabbed plaintiff, saying, “Hey boy, let’s spar”; and (6) that another co-worker,
David Deer, chased him and struck him with a cart. Accordingly, the VAMC’s motion for partial
summary judgment is denied as to these issues.
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II.

Remaining Issues
After sorting through the concessions, the following questions remain: whether plaintiff

has stated a claim in his fifth cause of action for a reasonable accommodation violation of the
Rehabilitation Act; and whether he has exhausted five additional issues to support his First and
Third causes of action. Those five issues are: (1) repeatedly being called “boy”; (2) a comment
from a co-worker that “we do things specifically to bother you”; (3) wrongful promotion of
Cortland Weider, a white employee, over him; (4) fabrication and alteration of his responses on a
psychological exam; and (5) that co-worker Rod Winters grabbed him and shoved him into a
wall.
A.

Whether Plaintiff States a Claim in his Fifth Cause of Action

In his fifth cause of action, plaintiff alleges the VAMC “perceived” him as having a
“mental disability that substantially limits his ability to participate in the major life activity of
working.” First Am. Compl. ¶ 49. Additionally, the “VAMC believed plaintiff to be unfit for his
position, and for any other available positions, solely and exclusively by reason of his ‘inability
to work closely with others.’” Id. Plaintiff alleges the VAMC failed to investigate reasonable
accommodations that would have permitted plaintiff to continue to work there. As a result, the
VAMC terminated his employment because of its “perception that plaintiff suffered from a
mental disability.” Id. at ¶ 52.
The problem with plaintiff’s allegations, according to defendant, is that he does not allege
he actually suffered from a disability. An employer is under no obligation to provide reasonable
accommodations to an employee who is not actually disabled, but is merely regarded by his
employer as disabled. Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232 (9th Cir. 2003) (it
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“would be a perverse and troubling result” if an employer could be liable for failing to
accommodate an employee who is impaired but not disabled).
Plaintiff relies on Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), vacated in part
on other grounds by 535 U.S. 391 (2002). In that case, the court instructed that “[i]n
circumstances in which an employee is unable to make [a reasonable accommodation] request, if
the company knows of the existence of the employee’s disability, the employer must assist in
initiating the interactive process.” 228 F.3d at 1114. Plaintiff argues he need not allege he was
disabled, but that where the employer has “reason to know of the employee’s disability,” the
employer must engage the employee in the interactive reasonable accommodation process. Pl.’s
Am. Mem. 7. Plaintiff suggests it is poor policy to allow an employer who suspects an employee
has a disability to allow that employer to discriminate against that person unless the employee
can establish that he is disabled.
Plaintiff’s arguments make sense. The problem is that he is not alleging, or even arguing,
that the VAMC’s suspicion that he had a disability was correct. Instead, the factual allegations
underlying plaintiff’s claim are:
10.

. . . Further, VAMC began a course of vicious retaliation against Plaintiff,
ultimately ordering Plaintiff to undergo an intrusive, baseless and illegal
psychiatric examination, which examination included VAMC fabricating
and altering the MMPI responses given by Plaintiff. VAMC then
terminated him on the basis of the fabricated responses.

and, again:
16.

In February, 2008, VAMC Human Resources Chief Linda Condich
ordered Plaintiff to undergo medical and psychiatric examinations.
VAMC supervisor Jeff Dintelman led Plaintiff to believe that he had no
choice whether to submit to these examinations, and that he would be fired

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if he refused. After an unexceptional physical exam, psychologist Dr.
David Corey interviewed Plaintiff and administered an MMPI-2 test.
17.

Shortly thereafter, Plaintiff was recalled to Dr. Corey’s office and directed
to change some of his answers to the MMPI questions. At this time,
Plaintiff noted that over 100 other answers had already been changed.

18.

Subsequently, Dr. Corey provided a report on a purported “mental disorder” of
Plaintiff. However, Corey noted, “I find no persuasive evidence that Mr. Pickens
poses an imminent risk of substantial harm.”

19.

On the basis of this report, VAMC concluded that Plaintiff was unfit for duty in
his then-present condition.

20.

VAMC never considered the question whether Plaintiff could have continued in
his employment, or filled any other open position, if reasonable accommodations
were made for his alleged disorder.

21.

Plaintiff requested an opportunity to obtain and present a second medical opinion
from an independent doctor. VAMC refused. Rather, VAMC countered with a
“second opinion” based solely on a review of Dr. Corey’s report by another
VAMC doctor.

22.

In November, 2008, VAMC terminated Plaintiff’s employment, determining that
Plaintiff was mentally unfit and unable to work with others[.]

First Am. Compl. 7-8.
The law in the Ninth Circuit is clear. An employer cannot be responsible for
accommodating a disability an employee does not have. Kaplan, 323 F.3d at 1233; see also
Marrazzo v. Leavitt, 719 F. Supp. 2d 1297, 1306 (D. Or. 2010) (the courts of the Ninth Circuit
recognize that there is no duty to provide reasonable accommodation to an employee who fits the
statutory definition of ‘disabled’ by virtue of a history of disability or being regarded as disabled,
but has no actual disability”). Notably, plaintiff does not allege the VAMC knew or should have
known he suffered from a disability, which required accommodation. Instead, he alleges they
regarded him as disabled based on a report containing made-up test results.
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If plaintiff himself is not alleging he has a disability, he cannot argue that his employer
failed to reasonably accommodate him in the Ninth Circuit. The portion of plaintiff’s fifth cause
of action alleging a violation of the Rehabilitation Act for failure to accommodate is dismissed.
Plaintiff may move to amend his complaint to allege the facts necessary for a reasonable
accommodation claim under the Rehabilitation Act, if he wishes to do, within ten days of this
decision.1
B.

Determination as to Whether Plaintiff Administratively Exhausted Five Issues

The VAMC argues that plaintiff includes in his allegations at least five issues that he
failed to exhaust, either by failing to raise them in the EEO process or by failing to appeal them.
Those five issues are: (1) repeatedly being called “boy”; (2) a comment from a co-worker that
“we do things specifically to bother you”; (3) wrongful promotion of Cortland Weider, a white
employee, over him; (4) fabrication and alteration of his responses in a psychological exam; and
(5) that co-worker Rod Winters grabbed him and shoved him into a wall.
The VAMC argues that under Title VII, a federal employee must notify an EEO
counselor of discriminatory conduct within 45 days of the alleged conduct. 29 C.F.R.
§ 1614.105(a)(1). If the issue is not resolved, the employee must submit a signed formal
administrative complaint. 29 C.F.R. § 1614.106. The “failure to comply with this regulation is
fatal to a federal employee’s discrimination claim in federal court.” Kraus v. Presidio Trust

1

The portion of plaintiff’s fifth cause of action alleging a violation of the Rehabilitation
Act because the VAMC terminated him for his perceived disability is not affected by this
decision. See also VAMC Mem. in Supp. of Mot. for Partial Summ. J. 9 n.2; First Am. Compl.
¶ 52.
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Facilities Div./Residential Management Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (internal
changes omitted).
Plaintiff does not argue waiver, estoppel or equitable tolling excuse his failure to comply.
See id. Instead, plaintiff pointed out in oral argument that he must have raised that claim or a
claim that is “like or reasonably related” to it in the administrative action. Yamaguchi v. United
States Department of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (internal quotation
omitted). The EEOC charge must be construed “with the utmost liberality.” Id. (internal
quotation omitted). The court has subject matter jurisdiction over allegations of discrimination
that either “fell within the scope of the EEOC’s actual investigation or an EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.” Id. (internal
quotation omitted, emphasis in the original).
Under these very tolerant and permissive standards, I conclude, at first blush, that I have
subject matter jurisdiction over four of the five allegations identified above. The first four
allegations are sufficiently related on their face to the claims plaintiff brought to the attention of
the EEO counselor and raised in a complaint, making dismissal at this stage improper. Indeed, a
court “should consider a plaintiff’s civil claims to be reasonably related to allegations in the
charge to the extent that those claims are consistent with the plaintiff’s original theory of the
case.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002).
Specifically, in his First Amended Complaint, plaintiff alleges, “VAMC employees
repeatedly bullied, taunted and attempted to goad Plaintiff to violence, through means including
but not limited to racial slights such as derogatory summoning of Plaintiff by the term ‘boy.’
Other non-African-American employees were not addressed as ‘boy.’” First Am. Compl. ¶ 9(a).
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Such a claim is possibly like or reasonably related to the Wilkendorf incident and falls within
plaintiff’s overarching theory of racial harassment/hostile work environment. Similarly,
plaintiff’s allegation that co-worker Bruce Osborne said, “We do things specifically to bother
you,” First Am. Compl. ¶ 9(g), might be sufficiently related to similar comments plaintiff
complained about other co-workers making.
Plaintiff’s allegation that the VAMC promoted Cortland Weider, a white employee, over
him is nearly identical to his exhausted assertion that Duck received a promotion over him. The
question about whether it can be exhausted might come down to timing. Plaintiff’s allegation
that the MMPI test was altered is similar to his complaint that he was harassed on the basis of
race by being scheduled for the exam in the first place.
After discovery is completed, the parties and the court will have a better understanding of
whether the discriminatory conduct alleged above is different from the conduct of which plaintiff
complained; for example, if the conduct concerned completely different people such that an
investigation would not have fairly included discussion of it, I may conclude the court does not
have jurisdiction over the allegation. The VAMC has permission to raise this argument again.
Finally, plaintiff’s allegation that he was “walking down a hallway when another coworker, Rod Winters, grabbed Plaintiff from behind and shoved him into a wall, causing Plaintiff
to strike his nose and teeth,” First Am. Compl. ¶ 9(c), must be dismissed. Although it may be
reasonably related to other allegations of assault which he believes was harassing, such as the one
he levied against Deer, the EEO never investigated it because plaintiff failed to discuss it with an
EEO counselor. See Yamaguchi, 109 F.3d at 1480 (must fall “within the scope of the EEOC’s

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actual investigation or an EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination”). The Court has no jurisdiction over this allegation.
CONCLUSION
Based on the foregoing, the VAMC’s Motion for Partial Summary Judgment [33] is
granted in part and denied in part. All of the Doe defendants are dismissed. Plaintiff’s second
and fourth causes of action are dismissed with prejudice, as is the portion of his fifth cause of
action that is based on the alleged failure of the VAMC to reasonably accommodate his
perceived disability. The allegation that Winters grabbed plaintiff may not be a basis for
recovery. First Am. Compl. ¶ 9(c).
IT IS SO ORDERED.
Dated this

23rd

, day of May, 2011.

/s/ Garr M. King
Garr M. King
United States District Judge

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