Murphy v. U.S. Dep't of Veterans Affairs

AMBER MURPHY, PLAINTIFF v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, ET AL., DEFENDANTS

CIVIL NO. 1:12-cv-379-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DATED: August 23, 2013

DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS,OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

The issue here is whether the plaintiff has exhausted her administrative remedies, has timely and adequately pleaded a federal Whistleblower Protection Act claim, and has enough evidence to avoid summary judgment. I conclude that she has. I therefore DENY the defendants' motion to dismiss and for summary judgment.

FACTS AND PROCEDURAL HISTORY

First, I state the relevant facts as pleaded in the plaintiff's Complaint (ECF No. 1) and as set forth in the administrative record, matters that do not implicate summary judgment practice.¹ The defendants have a far differentversion of what occurred, but on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I deal with the version of the facts as pleaded. Later I address the summary judgment issues.

The plaintiff, Amber Murphy ("Murphy"), is a registered nurse formerly employed by the defendant United States Department of Veterans Affairs ("VA"). Murphy worked for the VA from February 2010 to October 2011 as a registered nurse in the Mental Health Intensive Case Management Program assigned to the Bangor, Maine office. Compl. ¶ 4.²

On an unidentified date, Murphy's supervisor directed her to begin involuntary commitment proceedings against a veteran with a gambling addiction. The veteran was not an imminent danger to himself or others. Id. ¶ 10. Murphy told her supervisor "that she did not believe the effort to involuntarily commit the veteran was in accordance with Maine laws." Id. ¶ 11. Over Murphy's objection, the supervisor demanded that Murphy nevertheless submit the commitment documents to Maine state court by the end of the day, and Murphy complied. Id. ¶ 12.

Murphy's supervisor then subjected Murphy to disciplinary review before a Performance Review Board. Id. ¶ 13. Murphy defended herself "by demonstrating that her supervisor had acted illegally in giving [Murphy] orders to involuntarily commit a patient." Id. ¶ 14. The Board "determined that[Murphy] had acted properly by following her supervisor's illegal orders and removed [Murphy] from direct supervision by her former supervisor." Id. ¶ 15. Then the former supervisor "pursued another [Performance Review Board] against [Murphy] after [Murphy] provided some information given to her by a co-worker to a patient." Id. ¶ 16. Murphy "was informed that [the second Board] was pursued against her because [Murphy] had successfully defended [against the first]." Id. ¶ 17. The second Board "specifically asked [Murphy] about her involvement in [the first Board] and [Murphy] informed [the second Board] that the [Board] proceedings were being used as retaliation against her following her complaints about her former supervisor's instructions to her to involuntarily commit a patient in violation of State law." Id. ¶ 18. Following the second Board's review, the defendant Brian G. Stiller, Medical Director of the Togus Veteran's Hospital in Augusta, Maine, terminated Murphy effective October 15, 2011. Id. ¶¶ 3, 19. "By terminating [Murphy] following her objections to be[ing] ordered to commit another person in violation of State law, Defendants violated [Murphy]'s rights protected by 5 U.S.C. § 2302(b)(8) [the Whistleblower Protection Act]." Id. ¶ 20. That is the substance of the Whistleblower Protection Act Complaint that Murphy has filed in this court.

But first, on January 27, 2012, Murphy filed a complaint of employment discrimination with the VA Equal Employment Opportunity (EEO) office. See Compl. of Employment Discrimination (ECF Nos. 11-6-8). Although the EEO complaint focused primarily on Murphy's hostile interactions with another coworker, it also described her objections to the involuntary commitment actions against the veteran outlined in Murphy's Complaint in this court. Seeid. at 10 (ECF No. 11-7). Murphy's EEO complaint concluded, "This is an extreme case of sexual harassment, hostile work environment, and retaliation due to reporting illegal activity." Id. at 18 (ECF No. 11-8) (emphasis added). On September 27, 2012, the VA EEO office issued its final decision rejecting Murphy's complaint. See Final Agency Decision (ECF Nos. 11-19-21). The agency concluded that Murphy failed to establish harassment or sex discrimination by a preponderance of the evidence. Id. at 13, 14 (ECF No. 11-21). The agency also dismissed Murphy's claim based on reprisal for "reporting illegal activity" on the reasoning that while federal EEO law protects against reprisal for EEO activities such as opposing discriminatory practices or policies, "[i]t does not protect against reprisal for other reasons, such as whistle blowing . . . ." Id. at 2 (ECF No. 11-19).

On December 13, 2012, Murphy filed her Complaint in this court, suing both the VA and Stiller in his official capacity. (I will refer to the defendants collectively as the VA.) Murphy claimed that by terminating her, the VA violated the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8).³ The VA has moved to dismiss Murphy's Complaint and, in the alternative, requested summary judgment, arguing that Murphy failed to exhaust administrative remedies for her whistleblower claim and that Murphy has in any event failed to establish a prima facie violation of the Whistleblower Protection Act either in her Complaint in this court or on the summary judgment record. I held oralargument on August 20, 2013. Before oral argument, I directed questions to the lawyers via the Clerk's Office. As a result, the VA argued that Murphy's Complaint should be dismissed on the additional ground that she failed to bring suit within the 30-day limitations period beginning on September 27, 2012, the date on which the agency EEO office issued its final decision.

ANALYSIS

I. Exhaustion of Administrative Remedies

The VA has cited several cases that require the administrative exhaustion of Whistleblower Protection Act claims. See, e.g., Hendrix v. Snow, 170 F. App'x 68, 79 (11th Cir. Feb. 8, 2006) (affirming summary judgment where plaintiff "failed to include in any of her EEO complaints what disclosures she made that she now contends were protected under the [Whistleblower Protection Act]" (citation omitted)); see also Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) ("Under no circumstances does the [Whistleblower Protection Act] grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly before it in the first instance."). The VA contended in its motion to dismiss, and again at oral argument, that Murphy did not raise a Whistleblower Protection Act claim in her agency EEO complaint and that she has accordingly failed to exhaust administrative remedies.

But the administrative record in this case reveals that Murphy did raise a whistleblower claim in her EEO complaint and, moreover, that the agency EEO office recognized it as a whistleblower claim. In her EEO complaint, Murphy described the dispute with her supervisor over involuntary commitment, stated that she reported the dispute to the first PerformanceReview Board, and concluded by stating that she had been subjected to "retaliation due to reporting illegal activity." Compl. of Employment Discrimination at 18 (ECF No. 11-8). The EEO office in turn addressed this claim directly in its decision:

The complainant alleged that she was subjected to reprisal for "reporting illegal activity." The complainant indicated that she had not experienced reprisal as a result of participating in prior EEO activity. Rather, she claimed to have exposed management for ordering her to comply with a patient-related issue that she did not agree with. Federal EEO law protects against reprisal for EEO activity such as participating in the EEO process, opposing discriminatory practices or policies, and requesting reasonable accommodation. It does not protect against reprisal for other reasons, such as whistle blowing, union activity, personal animosity, or for other reasons that are beyond the reach of Federal EEO law. Accordingly, we agree with [the Office of Resolution Management's] determination that the complainant's allegation of reprisal fails to state a claim which is cognizable in the EEO process. For these reasons, it is the final decision of the Department to dismiss the complainant's claim based on reprisal.

Final Agency Decision at 2 (ECF No. 11-19) (emphases added). There could not be a clearer case of exhausting administrative remedies with this agency.⁴

I have been given no explanation why the VA EEO office concluded that it could not deal with Murphy's whistleblower claim. Both the VA and Murphy now agree that it could deal with the matter, and they cite cases holding that although an employee cannot file a pure whistleblower claim with an agency EEO office, a "mixed case" containing both a whistleblower claim and a Title VIIdiscrimination claim can be filed with an EEO office. See, e.g., Stoyanov v. Mabus, 2010 WL 4918700, at *3 (D. Md. Nov. 24, 2010) ("If a plaintiff asserts a violation of the [Whistleblower Protection Act] in combination with an employment discrimination claim, however, he can also exhaust his administrative remedies by filing a complaint stating both causes of action with the agency's EEO department." (citations omitted)); Quinn v. West, 140 F. Supp. 2d 725, 733 (W.D. Tex. 2001) ("[I]n a 'mixed case' involving both whistleblower and discrimination claims, an aggrieved federal employee can . . . file a complaint with the employing agency's EEO department." (citations omitted)). Murphy's EEO complaint asserted both a whistleblower claim and a Title VII sex discrimination claim, and was thus a paradigmatic mixed case, although she no longer presses her Title VII claim in this court.⁵

I therefore conclude that Murphy...