Oakes v. Department Of Veteran Affairs et al

Filing 77

OPINION & ORDER: The Court grants Defendants' Motion to Dismiss or in the Alternative for Summary Judgment 63 . Accordingly, this case is DISMISSED with prejudice. Pending motions, if any, are dismissed as moot. See 14-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JILL RENEE OAKES,
Plaintiff,
No. 3:14-cv-1321-HZ
v.
OPINION & ORDER
SECRETARY, UNITED STATES
DEPARTMENT OF VETERAN AFFAIRS;
PORTLAND VA MEDICAL CENTER;
VA OFFICE OF RESOLUTION
MANAGEMENT; ALICE AVOLIO;
DEREK THIESSEN; DIRECTOR OF
PORTLAND VA MEDICAL CENTER;
Defendants.
Jill Renee Oakes
1800 Evergreen St., #7
Walla Walla, WA 99362
Pro se Plaintiff
Jared Hager
U.S. Attorney’s Office
District of Oregon, Civil Division
1000 SW 3rd Ave., Suite 600
Portland, OR 97204
Attorney for Defendants
1 – OPINION & ORDER

HERNÁNDEZ, District Judge:
Pro se Plaintiff Jill Renee Oakes brings this action against Defendants Secretary of the
United States Department of Veterans Affairs, Portland Veterans Affairs Medical Center, VA
Office of Resolution Management, Alice Avolio, Derek Thiessen, and Director of Portland
Veterans Affairs Medical Center. Plaintiff alleges that Defendants engaged in sexual harassment,
retaliation, and negligence. Defendants move to dismiss Plaintiff’s complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Alternatively, Defendants move
for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that
follow, the Court grants Defendants’ motion.
BACKGROUND
Before the Court is Plaintiff’s second federal lawsuit arising from her work as a Medical
Support Assistant at the Portland Veterans Affairs Medical Center (“Portland VAMC” or “VA”)
under an “excepted appointment” 1 from March 16, 2008 to April 16, 2009. See Oakes v. Sec'y,
U.S. Dep't of Veteran's Affairs, No. 3:11-CV-00671-HZ, 2012 WL 4508000, at *1 (D. Or. Sept.
28, 2012). Toward the end of Plaintiff’s excepted appointment, she applied for two full-time
permanent positions with the VA but was not selected for either. Id.
Plaintiff filed two Equal Employment Opportunity (EEO) complaints in connection with
her non-selection for a permanent position. In February 2009, Plaintiff filed her first EEO
complaint, alleging that she was discriminated against on the basis of disability when she was not
awarded a permanent position. Hager Decl. Ex. 3. While Plaintiff’s first complaint was pending,
she filed a second EEO complaint in July 2009, alleging that she was not selected for a

1

Plaintiff’s excepted appointment meant that her position was temporary and not to exceed 13 months.
Oakes v. Sec'y, U.S. Dep't of Veteran's Affairs, No. 3:11-CV-00671-HZ, 2012 WL 4508000, at *1 (D. Or.
Sept. 28, 2012).

2 – OPINION & ORDER

permanent position because of her disability or in retaliation for her first EEO complaint. Hager
Decl. Ex. 5. In addition, Plaintiff alleged that her supervisor, Alice Avolio, discriminated against,
retaliated against, and harassed Plaintiff by being verbally abusive, refusing to write a letter of
reference, and providing a poor reference. Id. Both of Plaintiff’s EEO complaints resulted in
final agency decisions finding no discrimination and no evidence to substantiate Plaintiff’s
allegations. Hager Decl. Ex. 4.
During the investigation of Plaintiff’s first complaint, an EEO investigator took a
telephonic affidavit of Plaintiff in which Plaintiff referred to alleged conduct by a VA janitor,
Derek Thiessen. Hager Decl. Ex. 6, p. 7. Plaintiff was asked whether her disability ever
hampered her performance at the VA and she responded that her post-traumatic stress disorder
(which formed part of the basis of her allegation of disability) was exacerbated when Mr.
Thiessen sexually harassed her. Id. at 7-8. Plaintiff stated that she reported Mr. Thiessen’s
conduct to her manager, Alice Avolio, but she did not file a sexual harassment complaint against
Mr. Thiessen because she was “under the impression that [the situation] was being worked on”
by Ms. Avolio. Id. at 8-9.
When Plaintiff appealed the denial of her second EEO complaint, she asserted for the
first time a sexual harassment claim based on Mr. Thiessen’s alleged conduct. Hager Decl. Ex. 7,
p. 3. On March 14, 2011, the Equal Employment Opportunity Commission (EEOC) affirmed the
agency’s decision finding no discrimination behind Plaintiff’s failure to obtain permanent
employment. Id. at 4, 8. As to Plaintiff’s allegation of sexual harassment, the EEOC decision
stated:
[W]e note that in her appeal, Complainant raised for the first time an allegation
concerning incidents of sexual harassment. That issue is not before us now, and
Complainant is advised to contact an EEO Counselor with regard to that allegation, if
Complainant wishes to pursue it further.
3 – OPINION & ORDER

Id. at 3. Plaintiff did not contact an EEO counselor about the sexual harassment allegations.
Instead, Plaintiff filed a complaint in this Court on June 1, 2011. She alleged retaliation
and disability discrimination based on her failure to be selected for a permanent position, sexual
harassment by Mr. Thiessen, hostile work environment based on Ms. Avolio’s conduct, and
negligence. In a September 28, 2012 Opinion, this Court granted the defendants’ motion to
dismiss or in the alternative, motion for summary judgment. Oakes, 2012 WL 4508000. This
Court found that Plaintiff’s retaliation claim failed because there was no causal link between
Plaintiff’s EEO activity and her non-selection for a permanent job. Plaintiff’s disability
discrimination claim failed because there was no genuine issue of material fact as to whether the
selection officials chose not to hire her because she was disabled. Plaintiff’s hostile work
environment claim failed because there was no genuine issue of material fact as to whether the
defendants’ alleged conduct created an objectively hostile or abusive work environment. Id. at
*7-10. Finally, this Court dismissed Plaintiff’s sexual harassment and negligence 2 claims
because Plaintiff failed to exhaust administrative remedies. Id. at *10-11.
On November 15, 2012, Plaintiff brought her claim regarding Mr. Thiessen’s alleged
sexual harassment to an EEO counselor for the first time, by filing another complaint of
employment discrimination. Hager Decl. Ex. 8. Because Plaintiff was far outside the time limit
requiring a party to file a complaint within 45 days of the conduct complained of, Plaintiff filled
out a “Timeliness Statement” in which she attempted to justify not contacting an EEO counselor
sooner. Hager Decl. Ex. 9. Plaintiff indicated that she had received training in the EEO
Complaint Process and had participated in the EEO process before. Id. However, Plaintiff wrote

2

The Court also dismissed Plaintiff’s negligence claim because it was only supported by a one-word
allegation in her complaint stating “negligence.” Oakes, 2012 WL 4508000 at *11.

4 – OPINION & ORDER

that she “really [didn’t] remember [her] orientation due to nerves and ex[c]itement.” Id. at 1.
Plaintiff explained that her complaint was untimely due to a series of interactions with her
manager, Ms. Avolio, and other supervisors and EEO counselors, who gave her wrong
information or who erroneously told her they would report her complaint for her. Id. at 2-6.
Specifically, Plaintiff alleged that her sexual harassment complaints “sat in the office[s]” of
Alice Avolio, Mel Metosky, “former HR chief who I mediated with”; Trent Stewart, Portland
VAMC EEO office; and the Director of Portland VAMC. Id. at 5.
On January 29, 2013, the VA issued a final decision dismissing Plaintiff’s complaint
because she failed to contact an EEO counselor within 45 days of the alleged discriminatory act.
Hager Decl. Ex. 2, p. 3. The decision noted that “the harassment complaint was filed over a
thousand days past the 45 day deadline without adequate reason.” Id. The EEOC rejected
Plaintiff’s explanation that she filed her complaint so late because she was under the impression
that her supervisor or human resources and EEO employees would handle the complaint. Id.
Plaintiff requested reconsideration of the EEOC’s opinion. Compl. Ex. 1. The EEOC denied
Plaintiff’s request and issued her a letter informing her of her right to file a civil action. Id.
On August 18, 2014, Plaintiff filed the present lawsuit. Plaintiff’s allegations repeat those
raised in her last federal complaint and in her most recent EEO complaint. Specifically, she
alleges sexual harassment based on Mr. Thiessen’s conduct, negligence based on the VA’s actual
or constructive knowledge of the sexual harassment and failure to stop it, retaliation based on her
termination after engaging in protected EEO activity, and hostile work environment based on
Ms. Avolio’s refusal to provide a written reference. In addition, Plaintiff filed a “Motion for
Amendment” where she added allegations of negligence on the part of the VA. Pl.’s Mot.

5 – OPINION & ORDER

Amend. Plaintiff seeks “full reinstatement plus financial compensation” and a written reference.
Compl. 5.
STANDARDS
I.

Motion to Dismiss—Rule 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “All allegations of material
fact are taken as true and construed in the light most favorable to the nonmoving party.” Am.
Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the
court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide,
Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true conclusory
allegations which are contradicted by documents referred to in the complaint, and we do not
necessarily assume the truth of legal conclusions merely because they are cast in the form of
factual allegations.”) (internal quotation marks, citation, and alterations omitted). Rather, to state
a plausible claim for relief, the complaint “must contain sufficient allegations of underlying
facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the
“grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact)[.]" Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "when the
6 – OPINION & ORDER

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). A complaint must contain "well-pleaded facts" which "permit
the court to infer more than the mere possibility of misconduct[.]" Id. at 679.
“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)) (citations omitted).
II.

Motion to Dismiss—Rule 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) tests the subject-matter jurisdiction of the

court. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Rule 12(b)(1) jurisdictional
attacks can be either facial or factual.” Id. “[I]n a factual attack, the challenger disputes the truth
of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Where a
defendant raises a factual challenge to federal jurisdiction, as here, “the district court may review
evidence beyond the complaint without converting the motion to dismiss into a motion for
summary judgment” and “need not presume the truthfulness of the plaintiff's allegations.” Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations omitted).
III.

Summary Judgment—Rule 56
Summary judgment is appropriate if there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
7 – OPINION & ORDER

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
I.

Issue Preclusion
This Court previously considered and dismissed with prejudice several of the allegations

Plaintiff repeats in this action. See Oakes v. Sec'y, U.S. Dep't of Veteran's Affairs, No. 3:11-CV00671-HZ, 2012 WL 4508000, at *1 (D. Or. Sept. 28, 2012). Plaintiff is precluded from raising
those allegations again.

8 – OPINION & ORDER

As the United States Supreme Court recently reiterated, “[o]nce a court has decided an
issue, it is ‘forever settled as between the parties[.]’” B & B Hardware, Inc. v. Hargis Indus.,
Inc., 135 S. Ct. 1293, 1302-03, 191 L. Ed. 2d 222 (2015) (quoting Baldwin v. Iowa State
Traveling Men's Assn., 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). “To preclude
parties from contesting matters that they have had a full and fair opportunity to litigate protects
their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent
decisions.” Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74, 59 L. Ed. 2d
210 (1979). The general rule is that “[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the parties, whether on the same or a
different claim.” B&B Hardware, Inc., 135 S. Ct. at 1302-03 (quoting Restatement (Second) of
Judgments § 27, p. 250 (1980)). A district court may consider the affirmative defense of issue
preclusion on a Rule 12(b)(6) motion to dismiss. Fairbank v. Underwood, 986 F. Supp. 2d 1222,
1231 n.5 (D. Or. 2013).
Plaintiff already litigated her allegations that she was not selected for a permanent
position in retaliation for her EEO activity or her disability, and her allegations that the VA, in
general, and Ms. Avolio, in particular, created a hostile work environment. Oakes, 2012 WL
4508000. This Court already entered a valid and final judgment, dismissing Plaintiff’s claims
with prejudice. Plaintiff does not argue, and this Court does not find, that any exception to the
general rule of issue preclusion applies in this case. Accordingly, Plaintiff is precluded from
raising these issues again.

9 – OPINION & ORDER

II.

Failure to Exhaust Administrative Remedies
a. Sexual Harassment Claim
Plaintiff’s previous case before this Court raised the same allegations of sexual

harassment that Plaintiff repeats in the present complaint. Specifically, Plaintiff alleged that Mr.
Thiessen sexually harassed her while the VA and Ms. Avolio failed to prevent or respond to the
harassment. In the present complaint, Plaintiff adds allegations that other employees, such as the
VA Chief and “all charge nurses” knew or should have known about the sexual harassment and
that the VAMC failed to follow its own sexual harassment policy. Compl. 3; Pl.’s Mot. Amend
2.
In order to bring a claim of sexual harassment under Title VII, a “plaintiff must exhaust
her administrative remedies by filing a timely charge with the EEOC, or the appropriate state
agency, thereby affording the agency an opportunity to investigate the charge.” B.K.B. v. Maui
Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002) (citing 42 U.S.C. § 2000e–5(b)). In Plaintiff’s
first case before this Court, Plaintiff’s sexual harassment claims were dismissed because Plaintiff
failed to exhaust her administrative remedies by filing a timely charge with the EEOC. This
Court rejected Plaintiff’s argument that her failure to exhaust her claims was excusable because
she erroneously assumed that Ms. Avolio would file a formal sexual harassment complaint on
her behalf. Oakes, 2012 WL 4508000, at *11 (“Plaintiff's erroneous assumption that Avolio was
supposed to file a “formal sexual harassment complaint for [her]” by itself is insufficient to
remedy Plaintiff's failure to exhaust administrative remedies.”).
After this Court dismissed Plaintiff’s prior case in September of 2012, Plaintiff filed a
formal discrimination complaint with the VA regarding the alleged sexual harassment. Hager
Decl. Ex. 2, p. 1. On January 29, 2013, the agency issued a final decision dismissing Plaintiff’s
10 – OPINION & ORDER

complaint for failure to comply with regulatory time limits. Id. at 3. The decision letter
explained:
[T]he harassment complaint was filed over a thousand days past the 45 day deadline
without adequate reason despite your having received [EEO] training on 3 separate
occasions within 18 months and having filed 4 previous EEO actions since 2009. To
reiterate, you stated you did not meet the deadline because you did not remember your
orientation due to nerves and excitement but that you did make your complaint known to
your supervisor, the former facility HR Chief, the facility EEO Liason officer and the
director of the facility. In this case, contact with these parties does not satisfy the EEO
requirement to contact an EEO counselor within 45 days. With regard to your harassment
claim therefore, we have determined that the reasons you provide in explanation of your
untimeliness do not rise to the level akin to circumstances being beyond your control.
Id. (emphasis in original).
Plaintiff does not dispute the VA’s findings that she failed to comply with the regulatory
time period to raise her sexual harassment claims. Instead, she repeats the argument she made
previously to this Court that she should be excused from the timely filing requirement because
she was under the impression that Ms. Avolio and other VAMC employees would handle her
complaint. This Court previously rejected Plaintiff’s excuse and does so again in this Opinion.
As the VA final decision explained, Plaintiff had received EEO training and had experience
filing EEO actions. Furthermore, even if Plaintiff was initially unaware of the need to contact an
EEO counselor regarding her sexual harassment claims, she was made aware by the EEOC on
March 2, 2011 and this Court on September 28, 2012. Plaintiff failed to contact an EEO
counselor within 45 days of either of those rulings.
Summary judgment on the issue of exhaustion is appropriate where there are no disputed
questions of material fact. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.) cert. denied sub nom.
Scott v. Albino, 135 S. Ct. 403, 190 L. Ed. 2d 307 (2014). This is such a case. Accordingly, the
Court grants summary judgment to Defendants on Plaintiff’s sexual harassment claim because
Plaintiff failed to exhaust her administrative remedies.
11 – OPINION & ORDER

b. Negligence Claim
“The doctrine of sovereign immunity is an important limitation on the subject matter
jurisdiction of federal courts.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087 (9th
Cir. 2007) (citation omitted). The Supreme Court has frequently held “that a waiver of sovereign
immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.” Id. (quoting
Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). The Federal Tort Claims Act
(FTCA) sets out the limited circumstances in which the government waives its sovereign
immunity for tort suits:
An action shall not be instituted upon a claim against the United States for money
damages 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, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail. The failure of an agency to
make final disposition of a claim within six months after it is filed shall, at the option of
the claimant any time thereafter, be deemed a final denial of the claim for purposes of
this section.
28 U.S.C. § 2675(a).
Federal regulations dictate that a tort claim is deemed to have been presented when: “a
Federal agency receives from a claimant, his duly authorized agent or legal representative, an
executed Standard Form 95 or other written notification of an incident, accompanied by a claim
for money damages in a sum certain for injury to or loss of property, personal injury, or death
alleged to have occurred by reason of the incident....” 28 C.F.R. § 14.2. The requirement to file
an administrative claim is jurisdictional. Brady v. United States, 211 F.3d 499, 503 (9th Cir.
2000).
Once a moving party has converted a motion to dismiss for lack of subject matter
jurisdiction into a factual motion by presenting affidavits or other evidence properly brought
12 – OPINION & ORDER

before the court, the party opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject matter jurisdiction. Savage v. Glendale
Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing
St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
Defendants submit the affidavit of Michael D. Hughes, Assistant Regional Counsel with
the Portland VA Regional Counsel’s Office, to assert that Plaintiff never filed a Standard Form
95 or any other writing which makes a claim for damages against the VA pursuant to the Federal
Tort Claims Act. Hughes Decl. 2. Plaintiff does not submit any evidence to refute Defendants’
assertion. Instead, Plaintiff states, without any evidentiary support, that “all negligence claims
has [sic] been written and submitted to the VA, ORM, EEOC as well as Federal Court lawsuit 6
years ago. Plaintiff has been algeging [sic] negligence since 2009 and has NEVER wavered.”
Pl.’s Mot. Amend 3.
The Court finds, based on the evidence, that Plaintiff did not exhaust her administrative
remedies under the FTCA. Accordingly, this Court lacks subject matter jurisdiction over
Plaintiff’s negligence claims. 3 Therefore, the Court dismisses Plaintiff’s negligence claims. 4
///

///

3

Because this Court lacks subject matter jurisdiction over Plaintiff’s negligence claims due to her failure
to exhaust administrative remedies, the Court declines to address Defendant’s alternative argument that
Plaintiff’s negligence claims are preempted by Title VII.
4
Furthermore, Plaintiff’s negligence claims are time-barred because she brings them outside of the two
year statute of limitations. See 28 U.S.C. § 2401 (b) (“A tort claim against the United States shall be
forever barred unless it is presented in writing to the appropriate Federal agency within two years after
such claim accrues.”). The conduct underlying Plaintiff’s claim occurred in 2008 and 2009, which places
her August 18, 2014 filing of this complaint far outside of the two-year statute of limitations for tort
claims against the United States.

13 – OPINION & ORDER

CONCLUSION
The Court grants Defendants’ Motion to Dismiss or in the Alternative for Summary
Judgment [63]. Accordingly, this case is DISMISSED with prejudice. Pending motions, if any,
are dismissed as moot.
IT IS SO ORDERED.

Dated this ___________ day of _________________________________, 2015.

__________________________________________
MARCO A. HERNÁNDEZ
United States District Judge

14 – OPINION & ORDER