Adams v. Department of Veteran Affairs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PHALBA L. ADAMS CIVIL ACTION

VERSUS NO. 22-1577

DENIS MCDONOUGH, SECRETARY SECTION: “J”(2)

OF VETERANS AFFAIRS

ORDER AND REASONS

Before the Court is a Motion to Dismiss for Failure to State a Claim (Rec. Doc.

15) filed by Defendant, Denis Mcdonough, Secretary of Veteran Affairs, an opposition

thereto (Rec. Doc. 16) filed by Plaintiff Phalba Adams, and Defendant’s reply (Rec.

Doc. 22). Having considered the motion and memoranda, the record, and the

applicable law, the Court finds that the motion should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND

Phalba Adams (“Adams”) began her employment with the Department of

Veteran Affairs (“VA”) as the Chief of Pharmacy Services in April 2015. During this

time, Adams asserts Denis McDonough, in his official capacity as head of the VA and

through his agents and supervisors, subjected her to intentional race-based

employment discrimination. Specifically, Adams, an African American female, claims

that VA employees engaged in mistreatment and discriminatory behavior towards

her and began altering the terms and conditions of her employment because of her

race. Adams further alleges that VA employees doubled her workload, accused her of

workplace conflict, forced her to perform duties and responsibilities of other

employees, and ignored her requests for assistance.

Due to the alleged discriminatory behavior, Adams initiated contact with an

equal employment opportunity (“EEO”) counselor on May 13, 2020. Adams and the

VA were unable to resolve her claims during this informal counseling process. On

December 28, 2020, Adams filed an EEO administrative complaint which initiated

the formal administrative process.

On February 11, 2021, the VA emailed Adams and her attorney, Karl Bernard,

a notice of partial acceptance of her administrative EEO complaint. The complaint

stated an EEO investigator would be assigned to investigate Adams’s claims of

employment discrimination. The letter also stated the investigator would be in

contact with Adams and her attorney in order to obtain information or evidence

pertinent to the complaints. On April 9, 2021, the investigator emailed written

interrogatories to Adams’s attorney (with Adams CC’d). The investigator noted

written responses were due on April 16, 2021. After Adams and her attorney failed

to submit interrogatory responses by the April 16, 2021 deadline, the investigator

emailed a notice of non-compliance to Adams and her attorney. The non-compliance

notice also set a new interrogatory response deadline of April 28, 2021.

On April 21, 2021, the investigator and Adams’s attorney exchanged emails

and had a telephone conversation regarding the administrative claim process

schedule. However, both Adams and her attorney failed to submit responses by the

April 28, 2021 deadline. On April 30, 2021, Adams emailed the investigator stating

she was attempting to complete the interrogatories but did not understand what

certain claims were referring to. The investigator responded explaining how each

claim was divided into sub-claims. Neither Adams nor her attorney submitted any

responses to the interrogatories. On May 14, 2021, the investigator completed the

report and closed the investigation. The investigator stated Adams failed to respond

throughout the investigation, failed to provide answers to the interrogatories, and

provided no testimony or evidence to substantiate her claims. Accordingly, the

investigator concluded Adams failed to establish she was subjected to discrimination

or harassment.

On June 22, 2021, Adams and her attorney requested a hearing before an

Equal Employment Opportunity Commission (“EEOC”) and Administrative Law

Judge (“ALJ”). The EEOC issued an acknowledgement order on September 8, 2021.

The order informed the parties of the upcoming administrative process and provided

instructions on filing motions and other correspondence. The ALJ issued an order on

January 10, 2022, scheduling a mandatory initial conference with Judge Nancy

Graham, which was held on February 7, 2022. Adams and her attorney, however,

missed the initial conference despite reminders from the ALJ about the conference

via email and telephone. Adam’s attorney emailed Judge Graham on February 7,

2022, stating that he had switched email addresses and only checked the email

address on file “sparingly,” and as a result, scheduled other matters during the initial

conference period. (Rec. Doc. 15-20, at 1). Judge Graham responded stating that she

and agency counsel waited for Adams and her attorney to enter the conference and

telephoned them both with no answer.

In response to his absence, the ALJ set a February 17, 2022, deadline for

Adams or Bernard to provide a good-cause explanation for their failure to comply

with orders for the mandatory conference and failure to file responsive pleadings to

the pending motion of the Agency. On February 17, 2022, Bernard emailed the ALJ

and Judge Graham stating his client no longer wished to pursue the administrative

process.

On May 31, 2022, Adams filed this complaint against Denis McDonough in his

official capacity as head of the VA, arguing that the Defendant engaged in “race-based

employment discrimination and retaliation.” (Rec. Doc. 1, at 3). In the instant

motion, Defendant asserts that this Court should dismiss the claims against them

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, or

alternatively for summary judgment. (Rec. Doc. 15, at 4-5). Specifically, the

Defendant argues that “Adams failed to engage in good faith participation during the

administrative review of her reemployment discrimination claims, which constitutes

a failure to exhaust her administrative remedies.” Id. at 4-5. In opposition to the

defendant’s motion to dismiss, Adams avers she only had 89 days to complete the

administrative process as opposed to the required 180 days. (Rec. Doc. 16, at 3-4).

Additionally, Adams asserts that after filing her complaint, her counsel contracted

COVID-19, and she underwent emergency oral surgery. Id. at 2-3. In their reply brief,

the Defendant argues Adams and her attorney were available to engage in good faith

for the participation for the critical times of the administrative process, and Adams

and her attorney failed to request extensions during the investigatory phase and after

the ALJ scheduled a hearing. (Rec. Doc. 22).

LEGAL STANDARD

To survive a Rule12(b)(6) motion to dismiss, the plaintiff must plead sufficient

facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible when the plaintiff pleads facts that allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. The

factual allegations in the complaint “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual allegations” are

not required, but the pleading must present “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. The court must

accept all well-pleaded facts as true and must draw all reasonable inferences in favor

of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

However, “conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.” Beavers v. Metro. Life Ins.

Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).

DISCUSSION

Adams alleges Defendant engaged in race-based employment discrimination

and retaliation under Title VII. (Rec. Doc. 1, at 3). Defendant asserts the claims

should be dismissed because Adams failed to participate in the required EEO

administrative process in good faith depriving the VA of an opportunity to evaluate

and resolve her claims. (Rec. Doc. 15, at 1-2).

Title VII plaintiffs must exhaust their administrative remedies before seeking

judicial relief from discriminatory employment practices. See Stroy v. Gibson, 896

F.3d 693, 698 (5th Cir. 2018) (citing Davis v. Ft. Bend Cnty., 893 F.3d 300, 303 (5th

Cir. 2018)); see also Moore v. Napolitano, No. 07-2666, 2009 WL 4723169, at *5 (E.D.

La. Dec. 3, 2009) (Vance, J.) (citations omitted) (finding federal employee did not

exhaust administrative remedies in connection to a Title VII claim). Administrative

exhaustion provides an opportunity for voluntary compliance before a civil action is

instituted. Davis, 893 F.3d at 307. In the Fifth Circuit, “Title VII’s administrative

exhaustion requirement is not a jurisdictional bar to suit but rather a prudential

prerequisite. . . .” Id. at 308; see Stroy, 896 F.3d at 698 (administrative exhaustion

“is only a precondition to filing suit, subject to waiver or estoppel defenses.”).

In determining the scope of the exhaustion requirement, two competing

policies are implicated. Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). On the

one hand “because the provisions of Title VII were not designed for the sophisticated,

and because most complaints are initiated pro se, the scope of an EEOC complaint

should be construed liberally.” Id. On the other hand, “a primary purpose of Title

VII is to trigger the investigatory and conciliatory procedures of the EEOC, in an

attempt to achieve non-judicial resolution of employment discrimination claims.” Id.

at 788-89.

To timely initiate a Title VII employment discrimination claim, the federal

employee must contact an EEO Counselor “within 45 days of the date of the matter

alleged to be discriminatory …” Moore, 2009 WL 4723169, at *4 (citations and

internal quotation marks omitted). If the administrative remedies are properly

exhausted and regardless of their substantive result, a plaintiff is entitled to a civil

trial regarding their discrimination claims. Id.

The exhaustion analysis is “fact-intensive,” examining the substance and not

merely the four corners of the administrative charge. Moore, 2009 WL 4723169, at *

5. Exhaustion also requires a plaintiff asserting such claims against the federal

government to have engaged in “good faith participation” during the administrative

process. See, e.g., Martinez v. Dep’t of U.S. Army, 317 F.3d 511 (5th Cir. 2003); Barnes

v. Levitt, 118 F.3d 404 (5th Cir. 1997); Francis v. Brown, 58 F.3d 191 (5th Cir. 1995);

Munoz v. Aldridge, 894 F.2d 1489 (5th Cir. 1990); Johnson v. Bergland, 614 F.2d 415

(5th Cir. 1980); Thomas v Napolitano, 449 F. App’x 373 (5th Cir. 2011); Farve v.

Potter, 342 F. App’x 3 (5th Cir. 2009); Merriman v. Potter, 251 F. App’x 960 (5th Cir.

2007). Failure to engage in a good faith effort to cooperate with an administrative

agency may preclude exhaustion and judicial review. See Barnes, 118 F.3d at 409

(citing Johnson, 614 F.2d at 418). In determining whether a federal employee has

participated in good faith with the administrative process, the court takes a “common

sense” approach “geared to the functional demands of dispute resolution.” Barnes,

118 F.3d at 409 (citing Munoz, 894 F.2d at 1493). While “[t]here is no precise

definition of good-faith participation,” a finding that a plaintiff failed to participate

in good faith typically requires the plaintiff’s refusal to cooperate, failure to cooperate,

or “some sort of obstruction by the plaintiff.” Thomas, 449 F. App’x at 375; see Barnes,

118 F.3d at 409-10.

In Barnes v. Levitt, the Fifth Circuit directly addressed exhaustion of

administrative remedies, and held the plaintiff failed to engage in good faith

participation. Barnes, 118 F.3d at 409-10. In that case, the plaintiff, an African-

American female, filed an EEO administrative claim asserting gender and racial

discrimination and sexual harassment. Id. at 409-11. After the filing of the EEO

administrative claim, the agency requested specific information from plaintiff. Id. at

407-08. However, she and her attorney failed to provide responses. Id. The agency

continued with the investigation and interviewed agency witnesses and former

employees despite the lack of cooperation from the plaintiff and her attorney. Id.

While investigating the complaint, the agency repeatedly requested plaintiff and her

attorney provide specific information regarding the complaint and warned that

failure to cooperate could cause dismissal of the complaint. Id. at 408-09. Plaintiff

subsequently agreed to provide a deposition; however, shortly thereafter, the plaintiff

informed the agency that she would not attend the deposition because she had a

surgery scheduled. Id. The plaintiff made no attempt to reschedule and refused to

extend the 180-day period for filing suit. Id. Accordingly, after the plaintiff’s

continued non-responsiveness, the agency dismissed the administrative complaint for

her failure to cooperate. Id. The Fifth Circuit concluded “that Barnes did not act in

good faith or make reasonable efforts to provide the necessary relevant information

to the [agency] after filing her formal complaint.” Id. at 409-10. Her lack of good faith

included, in part, repeatedly failing to answer questions from the agency. Id.

Therefore, the Fifth Circuit affirmed the dismissal of the certain claims where

plaintiff failed to exhaust administrative remedies.

In this case, Adams failed to exhaust her administrative remedies and engage

in the EEO administrative process in good faith. Defendant asserts that, because

Adams wholly failed to engage in the EEO administrative process, she failed to

exhaust her administrative remedies, which is a prerequisite to filing a Title VII

lawsuit in federal court. (Rec. Doc. 15, at 1-2). In response, Adams argues she did not

receive the 180-day period to complete the investigation, and instead, only received

89 days to participate in the investigative process. (Rec. Doc. 16, at 3). Additionally,

Adams argues that due to personal circumstances such as her counsel contracting

COVID-19 and undergoing abdominal surgery and her oral surgery, Adams was

deprived of the opportunity to engage in good faith participation. See (Rec. Doc. 16).

Notably, Adams does not argue she engaged in the administrative process after filing

her complaint, but she states personal circumstances prevented her participation.

First, Defendant correctly states that the 180 days for the administrative

complaint is the earliest time at which Adams could have filed a lawsuit in federal

court. See 29 C.F.R. § 1614.407(b) (“A complainant who has filed an individual

complaint… is authorized under title VII … to file a civil action in an appropriate

United States District Court … After 180 days from the date of filing an individual

… complaint if agency final action has not been taken….”). In Munoz v. Aldridge, the

Fifth Circuit described this 180-day time period as the amount of time that the law

requires a plaintiff to spend in the administrative phase. 894 F.2d 1489, 1492 (5th

Cir. 1990). However, the Munoz plaintiffs spent “far longer” than 180 days in the

investigatory phase. Id. In Munoz, the court found that plaintiff could have engaged

in good faith participation in the administrative process beyond 180-days if plaintiff

and her attorney had chosen to do so. In this case, Plaintiff similarly could have

engaged in the administrative process or requested more time but chose not to engage

in the administrative process. In an April 12, 2021 email from the investigative case

manager, the case manager wrote that the agency “has to complete the investigation

within 180 days of the date filed … unless an extension is requested.” (Rec. Doc. 17,

at 7).

Second, in response to Defendant’s argument that Adams failed to exhaust her

administrative remedies, Adams argues that due to personal circumstances she was

deprived of the opportunity to engage in good faith participation. See (Rec. Doc. 15,

16). Barnes is instructive on this issue. As in Barnes, Adams repeatedly failed to

cooperate with the EEO investigation. Here, the investigator notified Adams and her

attorney of the deadline for the interrogatories. After Adams and her attorney failed

to submit any response, the investigator issued a notice of non-compliance. After an

exchange of emails and a telephone conversation between Adams’s attorney and the

investigator, a new interrogatory response deadline was set. Adams and her attorney

again failed to submit responses by this deadline. The investigator completed the

investigation, noting Adams and her attorney failed to respond throughout the

investigation and provided no testimony or evidence to substantiate her claims.

Adams and her attorney also requested a hearing before an EEOC ALJ.

Adams’s attorney missed the mandatory initial conference stating he had switched

email addresses. The ALJ subsequently set a new deadline for Adams and her

attorney to provide a good-cause explanation for their failure to comply with orders

for the mandatory conference and failure to file responsive pleadings to the pending

motion of the agency. However, instead of providing an explanation, Adams’ attorney

emailed the ALJ stating Adams no longer wished to pursue the administrative

process.

Similar to the plaintiff in Barnes, Adams did not ask for extensions during the

investigatory phase or after the ALJ hearing. Rather, Adams and her attorney

repeatedly failed to communicate with investigators or submit responses to the

investigation. If Adams or her attorney felt too rushed or overwhelmed by the

administrative deadlines, whether due to health or other personal reasons, Adams or

her attorney could have requested more time in order to engage in good faith

participation. Rather than engaging in the administrative process after several

requests to do so, Adams, to the contrary, emailed the ALJ and stated that she no

longer wished to pursue a decision but rather desired to file suit in federal court. (Rec.

Doc. 15).

Additionally, while personal circumstances did arise for Adams and her

attorney during the investigation, both had ample time to coordinate responses in the

interrogatory phase which lasted approximately 35 days. Adams does not allege that

she was unable to communicate with her attorney during this time or that her

medical condition prevented her from working on responses to the investigator’s

interrogatories. Again, Adams or her attorney could have requested more time to

engage in the crucial phases during the investigative process but failed to do so. Like

the plaintiff in Barnes, Adams and her attorney here failed to make reasonable efforts

to provide the necessary relevant information to the agency after filing her formal

complaint. Therefore, Adams failed to exhaust her administrative remedies and her

claims must be dismissed.

CONCLUSION

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Failure

to State a Claim (Rec. Doc. 15) is GRANTED, and Plaintiffs claims are

DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 19th day of October, 2022.

CARL J. BAR

UNITED STA DISTRICT JUDGE

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