McGill v. McDonald

SHOLANDA MCGILL, Plaintiff, v. ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant.

2:14-cv-00137-RCJ-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

May 7, 2015

ORDER

This case arises from the Department of Veterans Affairs's ("the VA") alleged violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), as well as various state tort laws. Pending before the Court is a Motion for Partial Dismissal (ECF No. 18) filed by Defendant Robert A. McDonald, Secretary of Veterans Affairs. The Court has considered the Motion along with Plaintiff's Response (ECF No. 20) and Defendant's Reply (ECF No. 24). For the reasons contained herein, the Motion is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Sholanda McGill is a homosexual African-American woman who began employment with the VA on November 22, 2008. (Compl. ¶ 16, ECF No. 1). Plaintiff suffers from fibromyalgia and IBS. (Id. ¶ 23). She worked as a respiratory therapist at the VA's hospital in Clark County, Nevada. (Id. ¶ 17). In 2010, Plaintiff filed two Equal Employment Opportunity ("EEO") complaints with the VA claiming that she was suffering harassment by twomale coworkers based on her sex and her sexual orientation. (Id. ¶¶ 21-22). The VA opened an investigation of Plaintiff's claims and temporarily moved Plaintiff to an outpatient facility away from the coworkers who were allegedly harassing her. (Id. ¶ 25). Once the investigation was complete, the VA made this temporary position permanent along with an allegedly lower pay grade in order to provide Plaintiff with a non-hostile working environment. (Id. ¶ 26).

In July 2012, Plaintiff received an email informing her that she was required to attend a walk-through of a new VA facility where the respiratory therapists would be relocated. (Id.¶ 29). Presumably, this meant that Plaintiff and her past harassers would be working in the same building. Plaintiff informed her supervisors and the VA's local human resources office about her fear that the move would return her to a hostile working environment. (Id. ¶ 31). Plaintiff claims that here concerns were unaddressed. (Id. ¶ 32). Despite three separate attempts to report to the new facility, Plaintiff could not overcome the "physical[] and mental[] afflict[ion]" that she allegedly experienced at the thought of working in the same building with her former harassers. (Id. ¶ 34). This distress allegedly caused her existing conditions to worsen and also resulted in Plaintiff's treatment for depression.

Plaintiff filed another EEO complaint and requested that she be allowed to work at a facility apart from the other respiratory therapist. The parties failed to reach a mutually agreeable solution, and on December 13, 2012, Plaintiff resigned. (Id. ¶¶ 41-42). Plaintiff believes that the VA's failure to accommodate her request to work elsewhere at her same pay grade was based on the EEO complaints she filed in 2010. She also claims that she was disparately treated because of her sex, sexual orientation, and disability. (Id. ¶ 46).

Plaintiff's Complaint contains ten causes of action: (1) discrimination based on sex; (2) discrimination based on sexual orientation; (3) discrimination based on disability; (4) publicpolicy tort; (5) respondeat superior; (6) negligent hiring, supervision, and training of employees; (7) retaliation; (8) constructive discharge; (9) discrimination pursuant to state law; and (10) intentional infliction of emotional distress. Plaintiff has voluntarily agreed to withdraw the causes of action for the public policy tort, respondeat superior, and discrimination arising under state law. (Resp. 16, ECF No. 20).

Defendant moves for dismissal pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction claiming that Plaintiff failed to exhaust administrative remedies prior to filing this lawsuit. Alternatively, Defendant moves for dismissal under Rule 12(b)(6) for failure to state a claim for which relief can be granted. Defendant's Motion does not seek dismissal of the retaliation or constructive discharge causes of action.

II. LEGAL STANDARD

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim based on the lack of subject-matter jurisdiction. While the defendant is the moving party in a motion to dismiss, the plaintiff is the party invoking the court's jurisdiction. Consequently, "the plaintiff bears the burden of proving that the case is properly in federal court." Wright v. Incline Vill. Gen. Imp. Dist., 597 F. Supp. 2d 1191, 1198 (D. Nev. 2009) (citing McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001)). A motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) may take one of two forms. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It may be a "facial" challenge or it may be a "factual" challenge. Id. "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v.Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.

If the movant's challenge is a facial one, then the "court must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff." Nevada ex rel. Colo. River Comm'n of Nev. v. Pioneer Cos., 245 F. Supp. 2d 1120, 1124 (D. Nev. 2003) (citing Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989)). If the attack is factual, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trail court from evaluating for itself the merits of jurisdictional claims." Thornhill Publ'g Co., 594 F.2d at 733 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). The plaintiff has the "burden of establishing that the court, in fact, possesses subject-matter jurisdiction" by present[ing] affidavits or any other evidence necessary." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). Indeed, the district court is "free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill Publ'g Co., 594 F.2d at 733).

B. Rule 12(b)(6)

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quotations omitted). To avoid a Rule 12(b)(6) dismissal, a complaint does not need detailed factual allegations, but it must plead "enough facts to state a claim to relief that is plausible on its face." Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged").

Even though a complaint does not need "detailed factual allegations" to pass Rule 12(b)(6) muster, the 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)." Twombly, 550 U.S. at 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678. "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancements.'" Id. (quoting Twombly, 550 U.S. at 557).

III. DISCUSSION

A. First & Second Causes of Action - Sex & Sexual-Orientation Discrimination

Defendant's challenge to the Court's subject-matter jurisdiction in this case is a factual one. Defendant claims that Plaintiff failed to exhaust administrative remedies prior to filing this action and that even if her claims were properly exhausted, she failed to timely sue. Plaintiff argues that her filing of the 2010 EEO complaints together with the 2012 complaint demonstrates that she complied with the statutory requirements.

Federal employees, like private employees, are to be "free from any discrimination based on race, color, religion, sex, or national origin" pursuant to Title VII. 42 U.S.C. § 2000e-16(a). To establish subject-matter jurisdiction over a Title VII claim, the plaintiff must "exhaust her administrative remedies." B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). Federal regulation requires that federal employees "who believe they have been discriminatedagainst" must consult with a counselor within forty-five days of the alleged discrimination "in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a). If counseling does not resolve the issue, the "aggrieved person" is informed of her "right to file a discrimination complaint." Id. § 1614.105(d).

The EEO complaint must be filed with the agency that allegedly discriminated against the "complainant." Id. § 1614.106(a). The agency then has the responsibility to "acknowledge receipt of [the] complaint" and advise the complainant that she "has the right to appeal the final action on or dismissal of a complaint" and that an investigation must be conducted within 180 days of the filing of the complaint. Id. § 1614.106(e). Final agency action may occur following the decision of an administrative judge, or it may be the result of the...