# Bell v. Wilkie

> District Court, M.D. Florida · June 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10110277

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110277. Public record. Not legal advice.