Ryan v. McDonald

191 F.Supp.3d 729

Annette RYAN, now known as Katz, Plaintiff,

v.Robert A. MCDONALD, Secretary, United States Department of Veterans Affairs, Defendant.

CASE NO. 1:15-cv-02384-DAP

United States District Court, N.D. Ohio, Eastern Division.

Signed June 13, 2016

Pamela D. Kurt, Wickliffe, OH, Gina A. Kuhlman, Bratenahl, OH, for Plaintiff.

David Augustin Ruiz, Renee A. Bacchus, Office of the U.S. Attorney, Cleveland, OH, for Defendant.

OPINION AND ORDER

DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant's Partial Motion to Dismiss (the "Motion"), Doc #: 8. For the reasons discussed herein, the Motion is granted in part.

I. Background

A. Factual Allegations

According to the Amended Complaint, Plaintiff Annette Ryan was employed by the U.S. Department of Veterans Affairs (the "VA") as a Licensed Practical Nurse from November 2011 through November 2014. Am. Compl. ¶¶ 1, 3, 12, 13, Doc #: 5.

Ryan alleges that during her employment, from Summer 2012 to March 2013, Ryan's coworker, MD Garrett, sexually harassed and assaulted her. Id. ¶¶ 16–21. This harassment and assault included statements made by Garrett, such as "I want to Fuck you," "I want to stick my big dick in your pussy," "Trust me, I know how to make you smile," and "I love you and you will say yes one of these days and we will be together so stop fighting it," among other statements. Id. ¶ 20. This harassment and assault also included physical acts by Garrett, such as "try[ing] to kiss Ms. Ryan against her will," "[r]epeatedly grabbing Ms. Ryan, mauling her, touching her breast, touching her butt, rubbing his penis on her, and making licking sounds while physically accosting her," and "[g]rabbing Ms. Ryan from behind and physically forcing her into a linen closet on a number of occasions, forcing himself on Ms. Ryan, and forcing his tongue in her mouth, while restraining her from getting to the door," among other acts. Id. ¶¶ 17, 21. Garrett also told Ryan that he had a concealed carry permit and sometimes kept a weapon in his car. Id. ¶ 23.

Ryan repeatedly asked Garrett to stop and was afraid of Garrett. Id. ¶¶ 22, 24.

On March 28, 2013, Ryan sought help from her union. Id. ¶ 26. Thereafter, Ryan "was harassed and threatened by co-workers," but other female employees complained that Garrett had harassed them, as well. Id. ¶¶ 27, 28.¹

Ryan requested transfer to another location, and her doctor recommended she be transferred. Id. ¶¶ 29, 31–33. Ryan's requests for transfer and for accommodation were denied and she exhausted her leave time while seeking transfer and accommodation. Am. Compl. ¶¶ 30, 34–35.

Ryan alleges constructive discharge from the VA in November 2014. Id. ¶ 13.

B. Administrative History

Ryan's co-worker, Garrett, allegedly began harassing Ryan in the Summer of 2012. Id. ¶16. Ryan first sought help from her union representative and the Equal Employment Opportunity ("EEO") office on March 28, 2013, when she reported employment discrimination, emotional distress, assault, and battery to the VA's Office of Resolution Management. Id. ¶¶ 10, 26. On that same day, Ryan filed a police report with the VA's law enforcement officials including an OIG federal agent and a VA detective. Id. Ryan also told her supervisor that she feared for her safety at the VA facility. First FAD 3. Ryan's supervisor placed Ryan on authorized absence from March 28, 2013, until April 2, 2013. Id. 2–3.

On March 29, 2013, Ryan requested a transfer to an alternative work site from her supervisor. Id. 2. Ryan was granted, at her request, twelve consecutive weeks of Family and Medical Leave Act-related ("FMLA") leave for April 9, 2013 through July 1, 2013. Id. 3. Ryan also requested and was granted 240 hours of advanced sick leave. Id.

On May 10, 2013, Ryan initiated contact with an EEO counselor. EEO Compl. Acceptance Letter 1, Doc #: 8-2. By July 17, 2013, Ryan exhausted the maximum amount of advanced sick leave and authorized absences allotted in a calendar year, and she was placed on Leave Without Pay ("LWOP"). First FAD 3. As of August 7, 2013, Ryan's EEO counseling was complete, and she was notified of her right to file an official discrimination complaint. EEO Compl. Acceptance Letter 1. On August 14, 2013, Ryan filed a formal complaint of discrimination (VA Form 4939) to the Equal Employment Opportunity Commission ("EEOC") which included allegations of sex discrimination, hostile work environment, and reprisal for her initial harassment complaint. Id. 1–2. Ryan's formal complaint to the EEOC included five claims that were divided into two complaints—a "mixed case complaint" consisting of one claim and a "non-mixed case complaint" consisting of the other four claims. Id. The "mixed case complaint" consisted of Ryan's allegation that she was constructively suspended. Id. 2. The "non-mixed case complaint" included allegations of reprisal, hostile work environment, and discrimination on the basis of sex. Id. 1–2.

On August 28, 2013, Ryan requested to return to work at the VA facility. First FAD 3. On September 30, 2013, Ryan was approved for 480 additional hours of LWOP, at her supervisor's request, for September 3, 2013 through December 2, 2013, based on documentation Ryan submitted regarding her emotional distress symptoms. Id. On November 27, 2013, Ryan's doctor provided, "Unless reassigned to work on a different unit, her time off needs to continue indefinitely." Am. Compl. ¶ 32. On December 20, 2013, Ryan submitted a Written Confirmation of Request for Accommodation. Id. ¶ 33.

On May 29, 2014, Ryan received her first Final Agency Decision ("FAD") for her "mixed case complaint" (issued May 23, 2014) from the VA's Office of Employment Discrimination Complaint Adjudication ("OEDCA"). First FAD 1; Long Decl. ¶ 2A, Doc #: 8-4. The OEDCA found that Ryan failed to prove discrimination and informed Ryan of her right to appeal the decision to the MSPB. First FAD 9–10. There is no record indicating Ryan pursued an appeal to the MSPB. Robinson Decl., Doc #: 8-10.

On June 26, 2014, Ryan received a second FAD on the "non-mixed case complaint" (issued June 20, 2014) from the OEDCA finding Ryan's formal complaint failed to prove reprisal, hostile work environment and discrimination on the basis of sex and informed her of her right to appeal to the EEOC. Second Final Agency Decision 18, Doc #: 8-5 [hereinafter Second FAD]; Am. Compl. ¶ 11. On July 14, 2014, Ryan submitted an appeal on her "non-mixed" claims to the EEOC. Am. Compl. ¶ 11.

C. Case History

On October 14, 2015, Ryan filed the instant case in Cuyahoga County Court of Common Pleas, alleging eight claims against Robert A. McDonald, Secretary of the VA. Summons and Compl., Doc #: 1-1. On November 20, 2015, the VA removed the case to federal court. Notice of Removal, Doc #: 1.

On January 13, 2016, the VA moved for dismissal, and on February 3, Ryan filed an Amended Complaint. Doc #: 5. In the Amended Complaint, Ryan alleges nine claims: 1) sexual harassment / hostile work environment, 2) gender discrimination, 3) retaliation, 4a)² disability discrimination, 4b) negligent hiring, retention, supervision, 5) assault, 6) battery, 7) intentional infliction of emotional distress, and 8) violations of due process and substantive rights.

The instant Partial Motion to Dismiss, Doc #: 8, was filed on March 18, 2016, and became ripe on May 2. This Opinion and Order follows.

II. Legal Standard

Pursuant to the Federal Rules of Civil Procedure, a court may dismiss claims filed in a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth. , 895 F.2d 266, 269 (6th Cir.1990).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally fall under one of two categories: facial attacks or factual attacks. Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir.1990). A facial attack tests the sufficiency of the pleading. Id. at 324. When reviewing a facial attack, the court must take the material allegations of the pleading as true and construe them in the light most favorable to the non-moving party. United States v. Ritchie , 15 F.3d 592, 598 (6th Cir.1994). In contrast, a factual attack is a challenge to the factual existence of subject matter jurisdiction. Ohio Nat'l , 922 F.2d at 325. If a Rule 12(b)(1) motion makes a factual attack, a court is free to consider and weigh extrinsic evidence of its own jurisdiction, without granting the plaintiff's allegations any presumption of truthfulness, until the court is satisfied of the existence of its power to hear the case. Id.

Lack of subject matter jurisdiction is a non-waivable, fatal defect. Watson v. Cartee , 817 F.3d 299, 302–03 (6th Cir.2016).

III. Discussion

The VA moves for dismissal on the basis of subject matter jurisdiction.³ The motion makes a factual attack on the Amended Complaint, insofar as the VA seeks to introduce evidence outside the pleadings to demonstrate the absence of jurisdiction. However, none of the facts underlying the Court's evaluation of jurisdiction appear to be in dispute, rather the parties disagree about which claims may proceed, as a matter of law.

For the reasons discussed below, Counts 1, 2, and 3 are dismissed in part and Counts 4b, 5, 6, 7, and 8 are dismissed in their entirety.

A. Sovereign Immunity

The VA has moved to dismiss several of Ryan's claims for lack of subject matter jurisdiction on the basis—either directly or indirectly—of the VA's sovereign immunity. A brief discussion of sovereign immunity will thus be beneficial.

Under modern law, the United States generally enjoys sovereign immunity against lawsuits.⁴ The Sixth Circuit Court of Appeals has recently summarized,

It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a

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