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Harden v. Shulkin

United States District Court, N.D. Indiana, Fort Wayne Division

March 13, 2018

HENRY HARDIN, JR. Plaintiff,
v.
DAVID SHULKIN, SECRETARY DEPT. OF VETERAN AFFAIRS, Defendant.

          OPINION AND ORDER

          William C. Lee District Judge

         Before the Court is a Motion for Summary Judgment [DE 27] by Defendant, David Shulkin, Secretary Department of Veterans Affairs, (“the Government” or “the VA”). Although the Plaintiff, proceeding pro se, was advised of his obligation to respond [DE 29], he did not file a response. For the following reasons, the Government's Motion for Summary Judgment will be GRANTED in part and DENIED in part. Additionally, the Court DISMISSES the Plaintiff's Unfair Labor Practices claim for lack of subject matter jurisdiction.

         PROCEDURAL BACKGROUND

         On January 13, 2017, Plaintiff, Henry Harden Jr., (“Harden”) filed a Complaint in the Southern District of Indiana claiming “unfair labor practices” by the VA. These allegations alleged that the VA withheld information from him and tampered with the EEO process. (DE 1). Plaintiff also named two additional defendants. Shortly, thereafter, the Plaintiff supplemented his Complaint by adding allegations that he was “challenging loss employment secondary to what I believe was similar to a constructive discharge … when I felt compelled to resign” for intolerable work conditions.” (DE 7).

         On March 1, 2017, the District Court for the Southern District of Indiana dismissed the two additional defendants and later, upon the Government's motion, transferred venue to this Court. The Government now asserts that this Court lacks jurisdiction over the Unfair Labor Practices Claim and, in addition, the constructive discharge claim must be dismissed for failure to exhaust administrative remedies and/or because there are no genuine issues of material fact regarding the claim.

         APPLICABLE STANDARD

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

         Where as here, a motion for summary judgment is unopposed, the district court may not grant a “motion for summary judgment ... simply because there is no opposition” filed by the nonmovant. Wienco, Inc. v. Katahn Assocs., 965 F.2d 565, 568 (7th Cir. 1992) (quoting Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anomina, 776 F.2d 1277, 1279 (5th Cir. 1985)). Rather, the “ultimate burden of persuasion remains with [the movant] to show that it is entitled to judgment as a matter of law, ” Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006), and a “district court must give its reasons on the merits for granting summary judgment, ” Wineco, 965 F.2d at 568 (emphasis added). Where the evidence in support of the motion for summary judgment does not establish the absence of a genuine issue of material fact, summary judgment must be denied “even if no opposing evidentiary matter is presented.” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)).

         Moreover, where the basis for summary judgment is lack of subject matter jurisdiction, the proper vehicle for challenging jurisdiction is via a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). In that instance, when considering a Rule 12(b)(1) motion asserting lack of subject matter jurisdiction, the Court may consider documents outside the pleadings. “The law is clear that when considering a motion that launches a factual attack against jurisdiction, [t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex Dig., Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (alteration in original) (citations and internal quotation marks omitted); see also Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993). “[T]he district court's ability to consider evidence beyond the pleadings derives from the importance of limiting federal jurisdiction.” Apex Digital, Inc., 572 F.3d at 444. “Because such jurisdiction cannot be conferred by consent of the parties, if the facts place the district court on notice that the jurisdictional allegation probably is false, the court is duty-bound to demand proof of its truth.” Id. (citation and internal quotation marks omitted).

         FACTUAL BACKGROUND

         As set out above, Plaintiff filed his complaint in the Southern District of Indiana claiming “unfair labor practices” by the Department of Veterans Affairs (VA). Specifically, Plaintiff claimed the VA withheld information and “tampered with the EEO process.” Plaintiff later supplemented his Complaint alleging “loss [of] employment secondary to what I believe was similar to a constructive discharge … when I felt compelled to resign” due to intolerable working conditions. [DE 7].

         The relevant facts relating to his claims, as set forth in the Government's brief and affidavits are as follows: Plaintiff began his employment with the VA on May 14, 2006 and has been continuously employed with the VA to the present. (Declaration of William T. Overbey, [1]DE 28-1, ¶3) (“Overbey Dec. ¶__”). Plaintiff was initially hired as a WG-2 Food Service Worker making $12.59/hour at the Marion, IN campus of the VANIHCS. (Overbey Dec. ¶4). On November 11, 2007, plaintiff received a promotion to a GS-5 Psychiatric Nursing Assistant making $28, 954.00 annually. Id. at ¶5. In November, 2014, plaintiff sought and was selected for a GS-5 Nursing Assistant position with the VA Medical Center in Indianapolis, Indiana making $36, 011.00 annually. Id. at ¶6. On January 23, 2016, plaintiff transferred back to the Marion Campus VANIHCS taking on a position in Food Service as a full-time WG-8 cook. Id. at ¶7. Plaintiff made an hourly rate of $22.77 which annualized is roughly $47, 500.00. The VA records show continuous employment by plaintiff with the VA since 2006.

         At all times when plaintiff was an employee of the Marion Campus VANIHCS, plaintiff was a member of a Collective Bargaining Unit and was represented by AFGE Local 1020 (“the Union”). (Overbey Dec. ¶10). On June 23, 2014, Linda Rademaker, a representative from the Union, made several information requests to the VANIHCS concerning a co-worker complaint about plaintiff on May 28, 2014. The complaint alleged that the plaintiff did not respond properly during a “Code Orange” incident when a patient became agitated, violent and needed restrained. Id. at ¶11.

         Rademaker made an additional request for information on July 25, 2014 concerning an VANIHCS investigation of a non-EEO Hostile Work Environment claim previously asserted by the Union on behalf of plaintiff. This claim had been investigated by the VANIHCS with ...


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