Bell v. Wilkie

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARECIA S. BELL,

Plaintiff,

v. Case No. 8:20-cv-1274-VMC-CPT

DENIS McDONOUGH, Secretary,

DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant’s “Motion to Dismiss Remaining Claims.” (Doc. #

65). Plaintiff has responded. (Doc. # 75). For the reasons

explained below, the Motion is granted.

I. Background

This case was filed in June 2020 by Plaintiff Marecia

Bell against the Department of Veterans Affairs (the VA).

(Doc. # 1). In the Complaint, Bell asserted claims for racial

discrimination under Title VII (Count One); retaliation under

Title VII (Count Two); and a hostile work environment under

Title VII (Count Three). (Id.). The VA thereafter filed an

answer. (Doc. # 24). On February 17, 2022, this Court entered

an order granting in part and denying in part the VA’s Motion

for Summary Judgment. (Doc. # 58). As to the racial

discrimination claim, the Court granted summary judgment to

the VA with respect to Bell’s claim of racial discrimination

pertaining to personnel decisions in connection with her

employment with the Spinal Cord Injury (“SCI”) unit and her

request for leave without pay, but it allowed Bell’s claim of

racial discrimination with respect to her employment with the

VA’s Home Based Primary Care (“HBPC”) program to continue.

(Id. at 25). The Court also granted summary judgment to the

VA on Bell’s claims for retaliation and a retaliatory hostile

work environment. (Id. at 32, 34). Thus, only Count One

survived summary judgment and only to the limited extent it

was based on the VA’s treatment of Bell regarding the HBPC

program.

Now, the VA requests that the Court dismiss Bell’s

remaining claim – the limited portion of Count One pertaining

to Bell’s tenure with the HBPC program – for failure to

exhaust administrative remedies and for mootness. (Doc. #

65). During summary judgment, the parties did not present and

the Court did not consider any arguments pertaining to

administrative exhaustion. It appears that, prior to the

summary judgment Order being issued, the VA believed that

Bell had accepted its defense that the incidents at issue in

this order were untimely as discrete incidents of racial

discrimination, and the parties understood these incidents

only to be background facts supportive of Bell’s hostile work

environment claim. At summary judgment, the parties did not

present the Court with Bell’s complete 2019 EEOC documents

and, in reliance on certain of Bell’s allegations in the

complaint, see (Doc. # 1 at ¶¶ 38-41), it treated two of the

incidents described by Bell as discrete incidents of racial

discrimination.

The VA now argues that the remaining adverse actions

underlying Count One are not actionable as discrete acts

because Bell waited more than a year after the alleged acts

to contact an EEOC counselor regarding two of the remaining

trial claims, and that she never raised the third remaining

trial claim at the administrative level at all. (Doc. # 65).

As such, the VA argues that Plaintiff failed to exhaust her

administrative remedies and that the remaining adverse

actions in Count One should be dismissed.

Bell counters that she attempted to administratively

raise her complaints vis-à-vis her tenure with the VA’s HBPC

program but that, essentially, she mistakenly failed to

follow the formal process. (Doc. # 75). Bell therefore argues

that the Court should modify or alter the administrative

exhaustion requirement on equitable grounds. (Id. at 5-6).

The documents that the parties attach to their pleadings

demonstrate the following facts. On March 22, 2018, Bell filed

a formal EEOC complaint, raising allegations of racial

discrimination and reprisal that occurred in February and

March of 2018 (Case No. 200I-0673-2018102629 (hereafter, the

“102629 Case”)). (Doc. # 65-2 at 2-3). All of the complained-

of incidents in the March 22, 2018, formal complaint pertained

to Bell’s time with the SCI unit. (Id. at 5-9, 17). Per the

evidence submitted at summary judgment, Bell did not move to

the HBPC unit until late March 2018. (Doc. # 46-2 at 34

(131:1-3), 640-43). The EEOC issued its report in the 102629

Case on August 28, 2018. (Doc. # 65-2 at 20-31).

On November 12, 2019, Bell filed a second formal EEOC

complaint (Case No. 200I-0573-2019105279 (hereafter, the

“105279 Case”)). (Doc. # 65-3 at 3). Bell initiated contact

with a counselor in that case on August 22, 2019. (Id. at 2).

In her submission in the 105279 Case, Bell wrote that the

racial discrimination, harassment, and retaliation that she

experienced while on the SCI unit had “escalate[d]” – she

wrote that Chief Nurse Raina Rochon and Dr. June Leland, the

medical director of the Tampa VA’s HBPC program, had tried to

block her from joining the HBPC program and, once she was

accepted into the program, continued to “harass” her and

subject her to disparate treatment and racial discrimination.

(Id. at 4). As Bell explained it in her submission, she was

the only Black nurse assigned to drive to patients’ home

across two counties. (Id.).

In January 2020, the EEOC accepted Bell’s claim in the

105279 Case as follows: It accepted her hostile work

environment claim based on events from “March 2019” to the

present. (Id. at 13). The EEOC letter identified an allegation

that “[i]n April 2019,1 Dr. Leland assigned [Bell] an unfair

workload requiring her to conduct patient visits between two

counties, the farthest travel distance.” (Id.). However, the

EEOC explicitly stated in its letter that this event “is a

discrete act that was not raised within 45 days of occurrence

and is DISMISSED as an independently actionable claim[.]”

(Id.). The letter also identified an allegation that “[i]n

March 2019, [Bell’s] release date to her new staff nursing

position was delayed,” but this was only accepted as part of

the hostile work environment claim. (Id.).

Bell argues that, on September 19, 2018, she advised

LaWanda Spencer, a counselor with the VA’s Office of

1 The dates of this incident and the “March 2019” release date

incident should have been reported as March 2018 and April

2018. (Doc. # 65-3 at 23, nn. 1 & 2).

Resolution Management, that she wanted to file a complaint

based on race discrimination and reprisal against Dr. Leland

based on Dr. Leland’s efforts to block Bell from joining the

HBPC program. (Doc. # 75-1 at 1-11). On September 21, 2018,

Spencer sent Bell an acknowledgement letter and the matter

was assigned Case No. 200I-0673-2018106354 (hereafter, the

“106354 Case”). (Id. at 12).

The record reflects that in December 2018 Bell emailed

Spencer to follow up on her complaint. (Id. at 15). Spencer

responded that the “Notice of Right to File Formal EEO

complaint” was issued to Bell and received on October 29,

2018. (Id.). When Bell did not timely file her formal

complaint, the matter was closed out on November 23, 2018.

(Id.). According to Bell, she believed these new allegations

would be folded into an existing EEOC complaint and did not

realize what steps needed to be taken to preserve her claim

in the 106354 Case. (Id. at 19-20).

II. Analysis

The VA has styled its request as a “motion to dismiss”

but it is more properly considered a motion for

reconsideration of the Court’s prior summary judgment Order.

See Akkasha v. Bloomingdale’s, Inc., No. 17-CV-22376, 2019 WL

7480652, at *6 (S.D. Fla. Dec. 18, 2019) (considering a post-

summary judgment motion on failure to exhaust administrative

remedies as a motion for reconsideration). A court has the

power to revisit its own prior decisions. Tristar Lodging,

Inc. v. Arch Specialty Ins. Co., 434 F. Supp. 2d 1286, 1301

(M.D. Fla. 2006). There are three major grounds justifying

reconsideration: (1) an intervening change in controlling

law; (2) the availability of new evidence; and (3) the need

to correct clear error or manifest injustice. Instituto de

Prevision Militar v. Lehman Bros., Inc., 485 F. Supp. 2d 1340,

1343 (S.D. Fla. 2007). If a court’s prior ruling was clearly

erroneous, it would be “wasteful and unjust to require the

court to adhere to its earlier ruling.” Id.

In response to the Motion, Bell argues that she was

confused about the EEOC process and was given incorrect

information by the counselor, and she therefore asks that

this Court grant her equitable relief from the typical

administrative exhaustion requirements.

“Under Title VII and the Rehabilitation Act, Federal

employees are required to initiate administrative review of

any alleged discriminatory or retaliatory conduct with the

appropriate agency within 45 days of the alleged

discriminatory act.” Shiver v. Chertoff, 549 F.3d 1342, 1344

(11th Cir. 2008). “Generally, when the claimant does not

initiate contact within the 45–day charging period, the claim

is barred for failure to exhaust administrative remedies.”

Id. However, there are exceptions for equitable tolling,

waiver, and estoppel. Morrison v. Brennan, No. 8:17-cv-2850-

TPB-AEP, 2019 WL 5722122, at *2 (M.D. Fla. Nov. 5, 2019). But

the Eleventh Circuit has cautioned that courts should only

apply the tolling rules sparingly, “such as when a plaintiff

has actively pursued remedies but filed a defective timely

pleading or when she was induced or tricked by her employer’s

misconduct into allowing the deadline to pass.” Hunter v.

U.S. Postal Serv., 535 F. App’x 869, 872 (11th Cir. 2013).

The purpose of the exhaustion requirement is “to give the

agency the information it needs to investigate and resolve

the dispute between the employee and the employer.” Brown v.

Snow, 440 F.3d 1259, 1263 (11th Cir. 2006).

Here, with the benefit of the parties’ additional

documents and briefing, it is apparent that Bell’s remaining

claim is untimely. First, on her claim that Dr. Leland and

others within the HBPC tried to block her transfer to that

program on the basis of her race and/or as reprisal for her

former EEOC activity, the actions Bell complained off took

place in March 2018. It is undisputed that Bell did not bring

these allegations to the EEOC and did not initiate the 106354

Case until September 2018 – well after the 45-day limit had

run. Bell does not allege that the VA induced or tricked her

into allowing the deadline to pass or that she otherwise tried

to initiate contact with the EEOC in this timeframe.

While Bell states that Spencer incorrectly told her that

the September 2018 allegations would be added to an existing

EEOC complaint and/or misled Bell that she should wait to be

contacted by the investigator, this discrepancy is

unpersuasive because it is undisputed that Bell did not raise

her concerns pertaining to the events of March and April 2018

with Spencer until September 2018. Thus, the claims were

already outside of the 45-day period when Bell first raised

them to Spencer.

Second, as to her claim that Dr. Leland actively assigned

her to routes and patients that unfairly required Bell to

drive longer distances than other nurses, there is no

indication that this claim was ever raised in the 106354 Case.

It was raised as part of the 105279 Case, but the EEOC

explicitly identified that allegation as an untimely discrete

claim and dismissed it. Therefore, the record is clear that

the EEOC never substantively investigated or addressed either

of these claims.

Finally, the VA argues that Bell “never raised the third

Claim at the administrative level at all,” (Doc. # 65 at 1),

referring to Bell’s allegations that the VA unfairly blocked

her from taking advantage of certain parking privileges while

she worked for the HBPC program. To be clear, the Court

referenced this by way of background and did not view it as

a discrete claim. See (Doc. # 58 at 24 (referencing certain

deposition testimony that Dr. Leland allegedly treated Black

staff members unfairly, including unfairly blocking Bell and

another Black nurse from taking advantage of certain parking

privileges)). And in any event, the Court agrees with the VA

that this allegation was not raised at all by Bell before the

EEOC.

Although cognizant that courts are “extremely reluctant

to allow procedural technicalities to bar claims” brought

under Title VII, see Gregory v. Ga. Dep’t of Human Res., 355

F.3d 1277, 1280 (11th Cir. 2004), the Court also bears in

mind that the ultimate purpose of exhaustion is to give the

agency the information it needs to investigate and resolve

the dispute between the employer and the employee. Brown v.

Snow, 440 F.3d at 1263. Here, because Bell never properly

brought these two discrete claims to the agency’s attention

and the agency therefore never had the opportunity to

investigate those claims except as part of her hostile work

environment claim, that requirement has not been met.

Nor has Bell shown that she is entitled to be one of the

rare cases granted equitable relief from the administrative-

exhaustion requirements. While administrative exhaustion

deadlines under Title VII are not jurisdictional requirements

and are therefore subject to equitable modification, the

Supreme Court has warned that equitable modification should

not be liberally construed; rather, only under certain

circumstances should the doctrine be applied. See Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“Federal

courts have typically extended equitable relief only

sparingly.”); Mohasco Corp. v. Silver, 447 U.S. 807, 826

(1980) (“[E]xperience teaches that strict adherence to the

procedural requirements specified by the legislature is the

best guarantee of evenhanded administration of the law.”).

“As a general rule, ‘equitable tolling’ may be appropriate if

(1) the defendant has actively misled the plaintiff, (2) if

the plaintiff has ‘in some extraordinary way’ been prevented

from asserting his rights, or (3) if the plaintiff has timely

asserted his rights mistakenly in the wrong forum.” Baker v.

Peters, 145 F. Supp. 2d 1251, 1257 (M.D. Ala. 2000)

(enunciating the limited circumstances recognized by the

Eleventh Circuit as grounds for equitable modification of the

administrative exhaustion requirements in employment

discrimination cases).

There is no evidence here that the VA actively misled

Bell, that she was thwarted in some “extraordinary way” from

asserting her rights, or that she mistakenly asserted her

rights in the wrong forum. If anything, the record

demonstrates that Bell not only had been through the EEOC

process twice before these claims surfaced, but ORM counselor

Spencer specifically told Bell about the time limits for

filing her formal complaint. Under these circumstances, the

Court cannot say that this is an extraordinary case in which

equitable relief is appropriate.

Thus, reconsideration is warranted to prevent manifest

injustice. Upon reconsideration, the Court determines that

Bell’s racial discrimination claim with respect to her time

at the HBPC program was not administratively exhausted. Thus,

Bell may not pursue it further. Accordingly, the VA’s Motion

for Summary Judgment is granted on all counts.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant’s “Motion to Dismiss Remaining Claims” (Doc.

# 65), which the Court construes as a motion for

reconsideration of its prior summary judgment order, is

GRANTED.

(2) Upon reconsideration, Defendant’s Motion for Summary

Judgment (Doc. # 46) is GRANTED as to all counts for the

reasons stated herein and in the Court’s February 1/7,

2022, Order.

(3) The Clerk shall enter judgment in favor of Defendant the

Secretary of the Department of Veterans Affairs and

against Plaintiff Marecia Bell.

(4) Once judgment has been entered, the Clerk shall

terminate all deadlines and pending motions, and close

this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

i5th day of June, 2022.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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