Reedus v. McDonough

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DESIREE K. REEDUS, MD, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:21-cv-00357-HAB-SLC

) 1:21-cv-00476-HAB-SLC

)

DENIS MCDONOUGH, in his Official Capacity )

as Secretary of the United States Department of )

Veterans Affairs, et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court is a motion filed by Defendants seeking to consolidate this matter

(“Case 1”) filed on September 27, 2021, with Reedus v. Denis McDonough, 1:21-cv-00476-

HAB-SLC (“Case 2”), filed on December 23, 2021. (ECF 24). Plaintiff filed a response in

opposition to the motion on January 31, 2022 (ECF 25), to which Defendants replied on

February 7, 2022 (ECF 26). For the following reasons, Defendants’ motion (ECF 24) will be

GRANTED.

A. Background

Plaintiff filed her complaint in Case 1 on September 17, 2021, asserting employment

discrimination and defamation claims stemming from her work as a licensed physician for the

Department of Veteran Affairs (the “VA”) in Marion, Indiana. (ECF 1). More specifically,

Plaintiff alleges that she was harassed by her immediate supervisor, Dr. Alice Buckley, and that

after complaining about the alleged harassment, she was retaliated against (Count I) and

ultimately wrongfully terminated (Count II) in violation of Title VII of the Civil Rights Act of

1964. (Id. ¶¶ 40-57). Plaintiff also alleges in Count III that another VA employee, Chief of Staff

Dr. Wayne McBride, defamed Plaintiff under Indiana state law by falsely claiming to another

hospital that Plaintiff had been terminated for medical misconduct and malfeasance. (Id. ¶¶ 58-

69). Dr. McBride was initially named as a Defendant in this matter (see ECF 1), but the United

States was automatically substituted for him pursuant to the Federal Torts Claims Act (ECF 14,

21).

Plaintiff further alleges that she has satisfied all conditions precedent to bringing her suit,

including exhausting all administrative remedies, asserting that the complaint was “filed within

90 days after Plaintiff received her Final Agency Decision [from the VA’s Office of Resolution

Management] in case 200J-0610-2019104008.” (ECF 1 ¶¶ 9-10). On November 10, 2021,

though, Defendants filed a motion to dismiss or, in the alternative, a motion for summary

judgment, asserting that Plaintiff failed to exhaust her administrative remedies as to all claims

and that the United States has not waived its sovereign immunity as to the state law defamation

claim. (ECF 17). Plaintiff filed a response on December 1, 2021, opposing the motion to

dismiss, requesting leave to amend her complaint, and challenging the Court’s substitution of the

United States for Dr. McBride. (ECF 22). The United States timely filed a reply brief. (ECF

23). That motion remains pending before District Court Judge Holly Brady.

On December 23, 2021, Plaintiff filed her complaint in Case 2, again alleging that Dr.

Buckley harassed her, and that VA employees, including Dr. McBride, allowed the harassment

to continue. (ECF 1 in 1:21-cv-476; see also ECF 14 in 1:21-cv-476).1 Plaintiff, however,

includes additional factual allegations concerning Dr. McBride’s treatment of Plaintiff—

specifically his denial of Plaintiff’s request to go on leave without pay, his decision to charge

Plaintiff with being absent without leave, and his decision to convene two Professional Standards

1 Plaintiff has amended her complaint in Case 2 twice. (See ECF 3, 10, 11, and 14 in 1:21-cv-476).

Boards against Plaintiff in order to revoke her medical privileges. (ECF 14 ¶¶ 89-98 in 1:21-cv-

476). In Count I of Case 2, Plaintiff alleges the VA violated Title VII by creating a hostile work

environment (by permitting Dr. Buckley’s alleged harassment of Plaintiff), by discriminating

against Plaintiff on account of her race and sex by replacing her with a white doctor while she

was on leave, and by treating her more harshly than similarly situated non-African American

physicians and male physicians. (Id. ¶¶ 99-105). In Count II, Plaintiff alleges she was retaliated

against and terminated for engaging in protected activity—specifically, complaining of Dr.

Buckley’s harassment. (Id. ¶¶ 106-53). Once again, Plaintiff alleges that she exhausted her

administrative remedies, noting she “had timely filed her initial [Equal Employment

Opportunity] Complaints, 200J-0610-2016103719 and 200J-0610-2017103011, respectively,

with the VA Office of Resolution Management which were consolidated by the US [Equal

Employment Opportunity Commission] into one . . . case.” (Id. ¶ 6). Like the instant case, Case

2 is assigned to Judge Brady as the presiding judge, and the Undersigned as the magistrate judge.

Defendants allege that the two cases should be consolidated because they share common

questions of law and fact. (ECF 24 ¶¶ 13-14). In support of their motion, Defendants point out

that Plaintiff’s complaints in the two cases contain multiple overlapping or verbatim factual

allegations. (ECF 24-1). Plaintiff, in response, contends that the motion to consolidate is

premature until the Court rules on Defendants’ motion to dismiss and addresses Plaintiff’s

request to amend her complaint and request to reconsider the substitution of the United States for

Dr. McBride. (ECF 25 at 2; see ECF 22). Plaintiff further alleges that the cases are factually

distinct, asserting that Case 2 is limited to “facts and circumstances of her employment and

termination” in 2016 while Case 1 also concerns Dr. McBride’s alleged defamation in 2019.

(ECF 25 at 3). Plaintiff also argues that she would be prejudiced by consolidation because it

would require her to “split” her discovery tools. (Id.).

Finally, Plaintiff suggests—in a single sentence—that she would be prejudiced because

her allegedly “two distinct cases would be combined under one statutory cap on damages.” (Id.);

see 42 U.S.C. § 1981a(b)(3). Defendants, in response, contend that Plaintiff’s two case are an

impermissible attempt at “double recovery.” (ECF 26 at 2). Neither party, however, cites any

caselaw in support of their respective positions on damages.

B. Legal Standard

Pursuant to Federal Rule of Civil Procedure 42(a)(2), “[i]f actions before the [C]ourt

involve a common question of law or fact, the [C]ourt may . . . consolidate the actions . . . .”

Though Rule 42 does not define a common question of law or fact, “the plain meaning of this

phrase indicates that a common question is one that must be answered identically in each case in

which it is presented.” Van Patten v. Wright, Nos. 07-C-0088, 07-C-0026, 2009 WL 1886010, at

*1 (E.D. Wis. June 30, 2009). “When common questions of law or fact are present, cases should

be consolidated if consolidation will streamline the litigation without causing the parties undue

prejudice.” Id. at *2. That being said, “merger is never so complete in consolidation as to

deprive any party of any substantial rights which [she] may have possessed had the actions

proceeded separately.” Hall v. Hall, 138 S. Ct. 1118, 1130 (2018) (quoting 3 J. Moore & J.

Friedman, Moore’s Federal Practice § 42.01 (1938)). “District courts enjoy substantial

discretion in deciding whether and to what extent to consolidate cases.” Id. at 1131.

C. Analysis

Here, there are common questions of fact in both cases justifying consolidation. As the

Government points out, the factual allegations underlying both cases are largely the same—

focusing on Dr. Buckley’s alleged harassment of Plaintiff and the VA’s response or lack thereof.

(See ECF 25). While it is true that Case 1 also contains allegations relating to Plaintiff’s state

law defamation claim and Case 2 includes allegations of the VA’s refusal to grant Plaintiff leave

without pay, “Federal Rule Civil Procedure 42 [does] not require ‘that actions be identical before

they may be consolidated.’” Wolfe v. Hobson, No. 2:16-cv-00471-JMS-MJD, No. 2:18-cv-

00317-MJS-MJD, 2018 WL 6181404, at *3 (S.D. Ind. Nov. 26, 2018) (quoting In re Cendant

Corp. Litig., 182 F.R.D. 476 (D. N.J. 1998)).

Further, Plaintiff has not shown that she would be prejudiced by consolidation. Despite

Plaintiff’s assertion that the motion to consolidate is premature given the pending motion to

dismiss in Case 1, the Court must still independently address Case 2 regardless of Judge Brady’s

ruling on the motion to dismiss. See Hall, 138 S. Ct. at 1128 (emphasizing “that constituent

cases should end in separate decrees or judgments”). Still more, if Case 1 survives the motion to

dismiss, consolidating the two cases—at least for the purposes of discovery—clearly furthers

judicial economy. While Plaintiff contends that she will have to “split” her discovery, both cases

concern many of the same actors, acting over the same time period. Discovery in the two

matters, then, would likely be duplicative or overlapping. See Wyngaard v. Woodman’s Food

Mkt., Inc., No. 19-CV-493-PP, 2021 WL 5999151, at *6 (E.D. Wis. Dec. 20, 2021) (“The court

perceives little reason to require the discovery in the two cases to proceed on separate tracks . . . .

This seems the antithesis of ‘judicial economy,’ as well as the antithesis of economy for the

litigants.”). To the extent that Plaintiff is concerned about her discovery tools which are limited

by the federal rules—specifically depositions and interrogatories—she remains free to request

the Court’s leave to obtain additional discovery. See Fed. R. Civ. P 26(b)(2); Fed. R. Civ. P.

30(a)(2)(A)(i); Fed. R. Civ. P. 33(a)(1). Further, as both cases are proceeding before District

Court Judge Holly Brady and the Undersigned Magistrate Judge, consolidation negates the need

for potentially redundant motion practice and rulings. See Miller Brewing Co. v. Meal Co., 177

F.R.D. 642, 645 (E.D. Wis. 1998) (“[W]hen both cases are pending in the same district—let

alone with the same judge—consolidation is preferable.”).

Finally, at least at this point, Plaintiff’s conclusory assertion that her potential damages

would be unfairly limited due to Title VII’s statutory cap does not establish that she would be

prejudiced by consolidation. Without commenting on the ultimate merits of Plaintiff’s

argument—or the Government’s response—the Court notes again that consolidation does not

“deprive any party of any substantial rights which he may have possessed had the actions

proceeded separately.” Hall, 138 S. Ct. at 1130; see also Midwest Cmty. Council, Inc. v. Chi.

Park Dist., 98 F.R.D. 491, 499 (N.D. Ill. 1983) (“[C]onsolidation does not merge the two suits

into a single cause or change the rights of the parties, or make those who are parties in one suit

parties in another.”). If Plaintiff believes that her substantive rights would be limited due to

consolidation, she remains free to move to separate the matters at a later date. See Magnavox

Co. v. APF Elecs., Inc., 496 F. Supp. 29, 32 (N.D. Ill. 1980) (“Defendants’ arguments

concerning the right to a jury trial and the possibility of prejudice . . . are precipitous. Should a

need arise to sever certain parties or issues at a later stage of the litigation, Fed. R. Civ. P. 42(b)

provides an appropriate remedy.”). However, on the current record, and considering that the

cases are in the discovery phase of litigation, the two actions are appropriate for consolidation.

D. Conclusion

In summary, the Court finds that there are common questions of fact justifying

consolidation pursuant to Federal Rule of Civil Procedure 42. Accordingly, Defendants’ motion

(ECF 24) is GRANTED. The Court ORDERS that Case No. 1:21-cv-00476 be consolidated into

this earlier-filed case, No. 1:21-cv-00357. While the Clerk is directed to also file a copy of this

Opinion and Order in Case No. 1:21-cv-00476, all filings by the parties going forward are to be

made in Case No. 1:21-cv-00357.

SO ORDERED.

Entered this 3rd day of March 2022.

/s/ Susan Collins

Susan Collins

United States Magistrate Judge