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Hatton v. Shulkin

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

May 10, 2018

DAVID J. SHULKIN, M.D., Secretary of Veterans Affairs, Defendant.



         Plaintiff Janette Hatton filed a Complaint [ECF No. 1] on November 28, 2017, against Defendant David J. Shulkin, M.D., Secretary of Veterans Affairs, alleging various discriminatory and retaliatory acts on the part of individuals employed by the Defendant. On March 2, 2018, the Defendant file a Motion to Dismiss [ECF No. 10] for failure to state a claim on which relief can be granted. The Plaintiff filed a Motion to Amend [ECF No. 19] her Complaint on April 2, 2018, which the Magistrate Judge deemed to be a Response to the Defendant's Motion to Dismiss. On April 9, 2018, the Plaintiff filed a Revised Motion [ECF No. 21] to amend her Complaint. The Defendant responded [ECF No. 22] on April 16, 2018, and the Plaintiff replied [ECF No. 24] on April 27, 2018. The Defendant's Motion to Dismiss and the Plaintiff's Revised Motion to Amend are not practically separable, as the Plaintiff's argument is limited to the submission of a proposed amended complaint, and the Defendant's argument in its Motion to Dismiss and its Response to the Plaintiff's Motion to Amend are substantially the same. Thus, the Court will address both Motions in tandem and will not perform separate analyses.


         The Plaintiff worked for the Department of Veteran Affairs (DVA) from March 4, 2007, through April 29, 2017. She alleges that “she was discriminated against, made to work in a hostile work environment and was harassed in the workplace on account of her age-and that she was retaliated against after complaining about such harassment/discrimination/hostile work environment-in violation of the Age Discrimination Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., as amended.” She alleges that she was assigned work and training that her younger and similarly situated co-workers were not assigned.

         The Plaintiff also details several instances of misconduct by her Lead, Patricia Allison, such as preventing the Plaintiff from speaking with her coworkers, shouting “I don't like you” in front of others in the office, lying to the Plaintiff about the amount of leave time the Plaintiff had, and disseminating false information about the Plaintiff. According to the Plaintiff, no similarly situated, younger employee was treated in this manner.

         Additionally, the Plaintiff alleges that she was discriminated against on the basis of her disability when the DVA failed to engage in an interactive process to reasonably accommodate her, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as amended, as well as the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12111 et seq., as amended. In support, the Plaintiff states that around June 20, 2016, she was moved to a copy room and assigned duties that included lifting heavy mail, which, in combination with the chair she was provided, caused back pain. Around October 20, 2016, the Plaintiff requested that she be moved to a different office, but this request was denied.

         The Plaintiff alleges that she “constantly reported a hostile work environment, discrimination, and harassment . . . but not only did the Defendant fail to correct the situation and provide any remedial or corrective action, but the Defendant made it worse and actually ‘stepped up' the hostile work environment/harassment/discrimination.” The Plaintiff states that in response to her complaints, the DVA engaged in several retaliatory actions, including: moving her from her office into the copy room; issuing a “No Contact Order, ” which prevented her from contacting Allison, though the order was never enforced against Allison; preventing other employees from speaking with the Plaintiff; allowing Allison to spread false information about the Plaintiff, because this was never investigated as the Plaintiff was assured it would be; allowing the Plaintiff's supervisor, Trynette Thomas, to release the Plaintiff from work10-20 minutes early on four occasions, but allowing similarly situated employees to leave 3-4 hours early; moving the Plaintiff to a different campus to work customer service, a job that the Plaintiff was never trained to perform; and allowing Allison to leave “work” for the Plaintiff in a locked drawer while the Plaintiff was away and not tell the Plaintiff that the “work” was there to intentionally cause the Plaintiff to fail to complete her assigned tasks. The Plaintiff points out that Allison was eventually demoted for treating co-workers inappropriately.

         The Plaintiff filed formal EEO complaints with the DVA on May 16, 2016, August 25, 2016, and February 6, 2017. The Defendant's Office of Employment Discrimination Complaint Adjudication (OEDCA) issued a final agency decision on August 28, 2017.[2] In its decision, the OEDCA indicated that three of the events that the Plaintiff described in her complaints were discrete acts that were “independently actionable claims of age discrimination.” (OEDCA Decision 2 n.1, ECF No. 21-4.)

         The OEDCA reviewed the Plaintiff's claim for age discrimination, harassment, and failure to reasonably accommodate. (Id. 8-17.) The OEDCA found that the Plaintiff had not proved discriminatory harassment based on her age and had not proved that the DVA's legitimate, nondiscriminatory responses were a pretext for age discrimination. The OEDCA also found that the DVA had reasonably accommodated the Plaintiff's alleged disabilities.


         Federal Rule of Civil Procedure 15(a) provides that, after the time has expired to file an amendment as a matter of course, a party “may amend its pleading only with the opposing party's written consent or the court's leave” and that “[t]he Court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court should not deny leave to file an amended complaint in the absence of any apparent reasons “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). The decision whether to grant or deny a motion to amend lies within the sound discretion of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). The relevant question here is whether it would be futile for the Plaintiff to amend her Complaint as she proposes as there appears to be no undue delay, bad faith, repeated failure to cure deficiencies, undue prejudice to the Defendant, or any other apparent reasons to deny her request.

         The standard for futility is the same standard of legal sufficiency that applies under Federal Rule of Civil Procedure 12(b)(6). See Townsel v. DISH Network LLC, 668 F.3d 967, 969 (7th Cir. 2012); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). “To survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a claim to relief that is plausible on its face.'” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Factual allegations are accepted as true at the pleading stage, but “allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.” Adams, 742 F.3d at 728 (internal citations omitted).


         A. Failure to Exhaust ...

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