Laguerre v. McDonough

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

GERALDINE LAGUERRE, )

)

Plaintiff, ) CIVIL ACTION NO.

) 19-12464-DPW

v. )

)

DENNIS MCDONOUGH, Secretary )

Of Department of Veterans )

Affairs, )

)

Defendant.1 )

MEMORANDUM AND ORDER

REGARDING MOTION TO DISMISS

December 2, 2021

Geraldine Laguerre commenced this litigation with a

complaint contending that she was discriminated against by her

employer, the United States Department of Veterans Affairs,

under federal and state law. I will dismiss the complaint’s

Title VII claim because Ms. Laguerre failed to exhaust her

administrative remedies by pursuing to conclusion her earlier

asserted collective bargaining agreement grievance. I will

1 In Title VII litigation brought by federal employees of cabinet

departments, the cabinet secretary of the department complained

against is the properly named defendant. Bulluck v. Hagel, 130

F. Supp. 3d 167, 168 (D.D.C. 2015) (citing 42 U.S.C. § 2000e-

16(c)). Consequently, Dennis McDonough, the current Secretary

of the United States Department of Veterans Affairs, has

automatically been substituted for the former Secretary Robert

Wilkie, pursuant to FED. R. CIV. P. 25(d). I note that the

plaintiff misspelled the former secretary’s name in the caption

of her complaint and that as a consequence until this notice of

automatic substitution of Secretary McDonough under Rule 25(d),

the docket in this case reflected that misspelling.

dismiss the complaint’s state law claim because it is preempted

by Title VII.

When Congress in 1972 brought federal employees, such as

Ms. Laguerre, within the scope of Title VII of the Civil Rights

Act of 1964, it established a particularized administrative and

judicial enforcement mechanism. The Civil Service Reform Act of

1978 then integrated federal collective bargaining grievance

procedures into this administrative and judicial enforcement

regime. By terms, the Civil Service Reform Act of 1978, as

codified in 5 U.S.C. §§ 7101, et seq. provides that an employee

alleging that she has been discriminated against on the basis of

race or sex through a practice which also falls under the

coverage of a negotiated collective bargaining grievance

procedure may “raise the matter under a statutory procedure or

the negotiated procedure, but not both.” 5 U.S.C. § 7121(d).

Failure to exhaust the specified administrative remedies through

the chosen procedure will be fatal to later asserted claims

regarding the same matter. This federal administrative and

judicial enforcement regime preempts application of state

antidiscrimination procedures to federal employees.

I. BACKGROUND

All factual allegations are taken from the complaint.2

2 Dkt. No. 1.

Plaintiff Geraldine Laguerre is a health technician with

the VA Boston Healthcare System in Boston, Massachusetts.3 She

alleges that she was harassed, discriminated against for being a

black woman, and bullied by her supervisor, Marsha Hopkins, for

approximately five years.4 She further alleges Ms. Hopkins also

treated other black employees differently than similarly

situated white employees.5

The incidents of discrimination alleged became focused for

Ms. Laguerre when Ms. Hopkins handed her two written

“admonishments” that stated Ms. Laguerre had yelled at Ms.

Hopkins and that Ms. Laguerre’s coworker had switched vacation

weeks with Ms. Laguerre because, if she had not, “Ms. Laguerre

would make her life ‘a living hell.’”6

When Ms. Laguerre refused to sign and thereby acknowledge

these admonishments, Ms. Hopkins allegedly screamed at her.7 The

VA at the insistence of Ms. Hopkins then temporarily transferred

Ms. Laguerre from the West Roxbury facility where she had been

working to the VA facility in Jamaica Plain pending an

investigation into Ms. Laguerre’s purported threats against the

woman with whom she had switched vacation days.8 The allegedly

3 Dkt. No. 1 at ¶12.

4 Id. at ¶¶13-15.

5 Id. at ¶18.

6 Id. at ¶52.

7 Id. at ¶56.

8 Id. at ¶57.

threatened woman never made a complaint against Ms. Laguerre,

however, and the VA never in fact conducted an investigation

into this alleged incident.9 Ms. Laguerre alleges that after she

was transferred, Ms. Hopkins told her not to return to West

Roxbury and that no one wanted her there.10

II. PROCEDURAL HISTORY

On May 15, 2015, Ms. Laguerre filed a collective bargaining

agreement grievance challenging her admonishments and removal to

the Jamaica Plain campus.11 Ms. Laguerre, a union member, was

covered by the 2003 Master Agreement Between the Department of

Veterans Affairs and the National Association of Government

9 Id. at ¶¶58-60.

10 Id. at ¶64

11 Dkt. No. 17-2, Declaration of Sandra Petkus at ¶¶3-4. As

indicated, support for this allegation is found in a declaration

with Exhibits appended to the VA’s Memorandum [Dkt. No. 17] in

Support of its Motion to Dismiss. Two such declarations were

submitted as appendices to the VA’s Motion to Dismiss. Dkt. No.

17-1 (Declaration of Edwin C. Muller) and Dkt. No. 17—2

(Declaration of Sandra Petkus). At the June 1, 2020 hearing in

this matter, I denied Ms. Laguerre’s motion to strike reference

to the declarations of Mr. Muller and Ms. Petkus and all of the

exhibits appended to these declarations. The VA also directed

my attention in that Memorandum [Dkt. No. 17 at 3 n.3.] to the

publicly available MASTER AGREEMENT BETWEEN THE DEPARTMENT OF VETERANS

AFFAIRS AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, (Nov. 2003),

available at

va.gov/LMR/docs/Agreements/NAGE_Contract_Nov2003.pdf in its

Memorandum in support of dismissal. These documents, the

authenticity and accuracy of which are not contested, are

central to Ms. Laguerre’s claim, Watterson v. Page, 987 F.2d 1,

3 (1st Cir. 1993), and specifically to whether she exhausted her

administrative remedies. Accordingly, I consider them in

addressing the motion to dismiss presented here.

Employees and was therefore able to raise her employment

discrimination claim through that collective bargaining

agreement’s grievance procedure.12 There are circumscribed paths

to judicial enforcement and review following arbitration of a

grievance. See generally Nat’l Treasury Emps. Union v. Fed.

Lab. Rels. Auth., 392 F.3d 498, 499 (D.C. Cir. 2004)

(enforcement); Int’l Ass’n of Fed. Firefighters, Loc. F-263 v.

Sec’y of the Navy, No. CV 15-00526 LEK-KSC, 2016 WL 843252, at

*6 (D. Haw. Feb. 29, 2016) (enforcement); Johnson v. Peterson,

996 F.2d 397 (D.C. Cir. 1993) (review). Although she advanced to

Step 2 of the grievance process, Ms. Laguerre did not advance

her grievance to Step 3.13

Nevertheless, between May 26, 2015 and July 15, 2015, Ms.

Laguerre engaged in informal counseling with an Equal Employment

12 The negotiated grievance procedure applicable to Ms. Laguerre

is set forth in Article 44, Section 6 of the MASTER AGREEMENT BETWEEN

THE DEPARTMENT OF VETERANS AFFAIRS AND THE NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES. See supra note 11 at 126-32. Under Article 45 of the

Master Agreement, id. at 129, 132, an unresolved grievance may

lead to arbitration.

13 Dkt. No. 17-2. Declaration of Sandra Petkus at ¶¶5-8,

(Declaration of Sandra Petkus, Exhibit 3 at 9-10). Step 3

requires the employee to submit her written grievance to “the

Director.” The parties have not identified the Director to whom

Ms. Laguerre was required to submit her grievance in Step 3,

pursuant to the Master Agreement. See supra note 11 at 128.

The VA’s Notice of Partial Acceptance of Ms. Laguerre’s EEO

Complaint, however, makes reference to Director of the VA Boston

Healthcare System, Vincent Ng. Dkt. No. 17-1 (Declaration of

Edwin C. Muller, Exhibit 3 at 30). I infer that the Director

specified in the Master Agreement’s grievance procedure would be

Mr. Ng.

Opportunity counselor through the VA’s Office of Resolution

Management.14 This initiated the VA’s Title VII procedure, of

which Ms. Laguerre then attempted to make use. The path to

judicial review in federal court following the Title VII

procedure is different from that for contested collective

bargaining agreement arbitration procedures. See generally Al-

Saffy v. Vilsack, 827 F.3d 85, 87-89 (D.C. Cir. 2016) (outlining

the procedures for resolution of statutory discrimination

complaints); see also Nielsen v. Hagel, 666 F.App’x. 225, 228

(4th Cir. 2016) (citing 42 U.S.C. § 2000e-16; 29 C.F.R. §§

1614.110, 1614.401).

Ms. Laguerre filed a formal Complaint of Employment

Discrimination (EEO Complaint) with the VA’s Office of

Resolution Management on or about July 24, 2015, alleging that

she had been discriminated against “because of Ms. Hopkins’

creation of a hostile work environment, her discriminatory

admonishments of Plaintiff, and her discriminatory and

unwarranted reassignment of Plaintiff to the Jamaica Plain

facility.”15

On September 30, 2015, the VA’s Office of Resolution

Management assigned an EEO investigator to Ms. Laguerre’s EEO

14 Dkt. No. 17-1, Declaration of Edwin C. Muller at ¶¶2-4,

(Declaration of Edwin C. Muller, Exhibit 1 at 4).

15 Dkt. No. 1 at ¶67.

Complaint.16 The investigation was completed on February 4,

2016.17 Following such an internal EEO investigation, Ms.

Laguerre had two options as to how her EEO Complaint could be

adjudicated: she could obtain a Final Agency Decision from the

VA’s Office of Employment Discrimination Complaint Adjudication,

or she could elect an EEOC hearing held before an Administrative

Judge.18 On February 23, 2016, Ms. Laguerre purported to elect a

hearing before an EEOC Administrative Law Judge.19 On September

17, 2019, Ms. Laguerre withdrew her complaint from the EEOC to

proceed in federal court.20 Ms. Laguerre then filed on December

5, 2019 the operative complaint in this case now before me.

III. ANALYSIS

When ruling on a motion to dismiss, I “must accept as true

the factual allegations of the complaint, construe all

reasonable inferences therefrom in favor of the plaintiffs, and

determine whether the complaint, so read, limns facts sufficient

to justify recovery on any cognizable theory of the

case.” Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 16

(1st Cir. 1998).

16 Dkt. No. 17-1 (Declaration of Edwin C. Muller, Exhibit 4 at

29).

17 Dkt. No. 17-1. Declaration of Edwin C. Muller at ¶8.

18 Dkt. No. 17-1 (Declaration of Edwin C. Muller, Exhibit 4 at

31).

19 Dkt. No. 17-1. Declaration of Edwin C. Muller at ¶9.

20 Id. at ¶10.

A. Ms. Laguerre Failed to Exhaust Her Administrative Remedies

(Count I)

Ms. Laguerre asserts in Count I a Title VII claim alleging

unlawful discrimination on the basis of race. “Title VII of the

Civil Rights Act of 1964 forbids employment discrimination based

on race, color, religion, sex, or national origin." Brown v.

General Services Administration, 425 U.S. 820, 825 (1976). It

was amended in 1972 by the Equal Employment Opportunity Act,

id., in order to “create an exclusive, pre-emptive

administrative and judicial scheme for the redress of federal

employment discrimination.” Id. at 829. Under this specific

Title VII statutory scheme, “an aggrieved employee [could] file

a civil action in a federal district court to review [her] claim

of employment discrimination” only after seeking “relief in the

agency that has allegedly discriminated against [her].” Id. at

832.

The VA contends that because Ms. Laguerre first filed a

collective bargaining agreement grievance, she was required to

pursue that negotiated remedy procedure as far as it was

possible to take it, before appealing an unfavorable decision to

the district court. As a general proposition, exhaustion of

remedies is required under the federal employee statutory anti-

discrimination enforcement regime. Cf. Rodriguez v. United

States, 852 F.3d 67, 78 (1st Cir. 2017) (“It is settled that a

federal court will not entertain employment discrimination

claims brought under Title VII unless administrative remedies

have first been exhausted.”). While the exhaustion of

administrative remedies “is not a jurisdictional prerequisite to

filing a Title VII claim in federal court,” the characterization

as such means that a failure to exhaust administrative remedies

may be subject to equitable defenses, even with respect to

collective bargaining grievance procedures. Romero-Perez v.

U.S. Dep't of Justice, 780 F. Supp. 2d 162, 168 (D.P.R. 2011).

Thus, a plaintiff “must adequately show why exhaustion should be

waived,” id. at 169, by demonstrating that “full exhaustion

would have caused undue prejudice, irreparable harm, or unusual

hardship” to the plaintiff or that the agency proceeding was

futile. Id. at 170 (“all reasonable possibilities of adequate

administrative relief [must] have been effectively

foreclosed.”). Ms. Laguerre has not attempted to make such a

demonstration; consequently, she was required to exhaust her

administrative remedies before proceeding to district court.

The federal employee statutory anti-discrimination

enforcement regime has been established under an overreaching

statutory direction providing that

[a]n employee shall be deemed to have exercised [her]

option under this subsection to raise the matter under

either a statutory procedure or the negotiated procedure

at such time as the employee timely initiates an action

under the applicable statutory procedure or timely files

a grievance in writing, in accordance with the

provisions of the parties’ negotiated procedure,

whichever event occurs first.

5 U.S.C. § 7121(d).

The employee’s decision to proceed by negotiated grievance

procedure as opposed to statutory Title VII procedure “is

irrevocable.” Vinieratos v. United States Dep’t of Air Force,

939 F.2d 762, 768 (9th Cir. 1991). Because Ms. Laguerre filed a

timely written grievance, she could not thereafter file an EEO

Complaint seeking a Title VII route to relief on the same matter

and was required instead to “exhaust [her] administrative

remedies in dealing with [her] grievance.” Rosell v. Wood, 357

F. Supp. 2d 123, 128-29 (D.D.C. 2004).

Ms. Laguerre argues that her EEO Complaint did not concern

the same matter as her grievance, and that accordingly, she was

permitted to file an EEO Complaint even though she had

previously filed a grievance. The scope of the term “matter”

may be subject to further refined definitions; however, courts

have “tended” to construe the word to denote more than a legal

claim “and instead to encompass the ‘underlying action’ or the

‘topics raised.’” Guerra v. Cuomo, 176 F.3d 547, 550 (D.C. Cir.

1999) (per curiam) (first quoting Bonner v. Merit Systems

Protection Board, 781 F.2d 202, 204.05 (Fed. Cir. 1986); then

quoting Facha v. Cisneros, 914 F. Supp. 1142, 1149 (E.D. Pa.

1996), aff’d, 106 F.3d 384 (3d Cir. 1996)). Under this

approach, where both the grievance and the EEO proceeding

involved an employee’s termination, they both involved the same

“matter” for the purposes of § 7121. Heimrich v. Dep't of the

Army, 947 F.3d 574, 578 (9th Cir. 2020); Giove v. U.S. Dep't of

Transp., 178 F. App'x 814, 818 (10th Cir. 2006).

The district court in Facha v. Cisneros crafted a

straightforward test: “If [the plaintiff] raised a topic in both

documents, or if the arbitrators assigned to handle the

grievance would necessarily have needed to inquire into a topic

in discharging their duties, then § 7121(d) bars her from

raising that same topic in her subsequent EEO complaint.”

Facha, 914 F. Supp. at 1149.

Facha’s “topical” test has been widely accepted. See

Heimrich, 947 F.3d at 578 (citing cases from “a number of

courts” that have “relied on the approach set forth in Bonner

and Facha”); Redmon v. Mineta, 243 F. App'x 920, 925 (6th Cir.

2007) (finding “union grievance and EEO Complaint involved the

same matters within the meaning of section 7121(d)” when they

arose from the same employer conduct (internal quotations

omitted)); Penalver v. Soc. Sec. Admin., 2020 WL 32465, at **2-5

(E.D.N.Y. Jan. 2, 2020) (applying Facha test). I find the Facha

“topical” test to be both a reasonable and a practical way to

identify the scope of the “matter” in issue in this case.

Ms. Laguerre’s grievance form21 stated the following:

Nature of Complaint: Inappropriate Work Behavior, I have

been accused by a Co-worker Ms. Jessica who reported

that I said to her: I will make her life a living hell.

I disputed that I made a statement as such. The Nurse

Manager did not treat me equal because she took only one

side of story. Base on that unsubstantiated gossip, My

Manager who was constantly harassed me and humiliate me,

wrote me up with a Proposed Admonishment. While the

disciplinary action on the Proposed level, I gave my

side story. My Nurse Manager just turned the proposed

admonishment to an Admonishment which was based on

gossip. Also Ms. Marsha B Hopkins, my Nurse Manger miss-

interpreted my word, I did not try to disrespect her but

my expression was Dude was taken out of context. I always

being nice to everybody. I am not type of person who

disrespects people.

Resolution Desired: Ms. Geraldine Laguerre is requesting

that unfair Admonishment to be removed from her file.

Ms. Geraldine has suffered a lot from this unequal

treatment; her Nurse Manager has detailed her to another

Campus which is not convenient to her and to her family.

Ms. Laguerre requests to be back at West Roxbury Campus.

Ms. Laguerre would like to treat equal and want that all

harassment to stop. She needs to be treated with respect

and dignity. This Grievance bases on The Articles the

following articles: Article six (6) section one (1 b)

and section seven (7) and all others Articles related to

this matter.

Ms. Laguerre’s later EEO Complaint stated the following:

“Discrimination based on race/color; causing hostile/unsafe work

environment; causing to be reassign duty location; disciplinary

action  admonishment; loss of pay due to no call.”22 There are

some additional handwritten words in parentheses in the

21 Dkt. No. 17-2 (Declaration of Sandra Petkus, Exhibit 1 at 4).

22 Dkt. No. 17-1 (Declaration of Edwin C. Muller, Exhibit 3 at

26).

complaint that are difficult to discern, but appear to say

“humiliation,” “health issues,” and “pager.” In any event,

whether I have correctly read these three words is immaterial

because the crux of the complaint is clear. The EEO Complaint

further says that the topic of the relief Ms. Laguerre sought

was “[t]o be made whole for loss of past and future income due

to improper disciplinary admonishment.” Id. Specifically, Ms.

Laguerre’s EEO Complaint alleges that she was subjected to a

hostile work environment based on national origin, color, and

race, as evidenced by an admonishment and reassignment to the

Jamaica Plain campus.23

Both Ms. Laguerre’s grievance and her EEO Complaint are

based on the same topic: the admonishment she received from Ms.

Hopkins and her detail to a different campus. While her EEO

Complaint specifically alleges racial discrimination and her

grievance complaint does not, that difference is not sufficient

to distinguish the two complaints as separate matters; both

complaints are based on the same underlying incidents, and those

assigned to evaluate either complaint would need to investigate

the admonishment and the detailing to Jamaica Plain in order to

resolve the issue. Facha, 914 F. Supp. at 1149.

23 Dkt. No. 17-1 (Declaration of Edwin C. Muller, Exhibit 4 at

28).

I conclude, therefore, that Ms. Laguerre could not properly

file an EEO Complaint after filing her grievance. By filing her

grievance, she waived her EEOC procedural avenue and needed to

exhaust her remedies with respect to her grievance before the

matter could be presented for judicial review in federal court.

Ms. Laguerre argues in her Reply Memorandum24 regarding her

motion to dismiss that her grievance remedy was somehow void

because she did not contact an EEO counselor prior to filing her

grievance, as she says was required to do under 29 C.F.R. §

1614.105. There is no reason to conclude that this regulation

applies to grievances. “By invoking the negotiated procedure,

the employee commits to resolving [her] grievance in accordance

with the procedures prescribed in the collective bargaining

agreement,” not those outlined in 29 C.F.R. § 1614.105.

Fernandez v. Chertoff, 471 F.3d 45, 52 (2d Cir. 2006). It would

be both counterintuitive and the height of irony to conclude

that someone filing a grievance under the negotiated grievance

procedure, which does not involve EEO procedures, would

thereafter need to be counseled by an EEO counselor. The

regulation plainly applies to EEO Complaints, not negotiated

grievances. See generally Johnson, 996 F.2d at 398-99

(contrasting the “statutory path,” requiring consultation with

24 Dkt. No. 18 at 7.

an EEO counselor and the negotiated procedure which has its own

distinct procedural requirements).

Ms. Laguerre, having begun the negotiated collective

bargaining remedy, could not properly attempt to return to a

path not initially taken as the avenue to this court. She was

obligated to exhaust the negotiated remedy to conclusion on her

journey to judicial review. She did not do so. Consequently,

she is barred from judicial review in federal court.

B. Title VII Preempts Ms. Laguerre’s State Law Claims

(Count II)

Based on the same alleged facts Ms. Laguerre unsuccessfully

asserts to invoke the particularized administrative and judicial

enforcement mechanism for federal employees, she also seeks to

pursue in Count II a claim for discrimination under

Massachusetts law. However, the federal anti-discrimination

enforcement mechanism under Title VII of the Civil Rights Act of

1964, as refined by the procedural mechanisms of Title VII of

the Civil Service Reform Act of 1978, “provides the exclusive

judicial remedy for claims of discrimination in federal

employment.” Cf. Brown, 425 U.S. at 835 (explaining that “[t]he

balance, completeness, and structural integrity of § 717 [of

Title VII of the Civil Service Reform Act] are inconsistent with

the petitioner’s contention that the judicial remedy afforded by

§ 717(c) was designed merely to supplement other putative

judicial relief”). Put another way, “where the gravamen of the

claim is Title VII [of the Civil Rights Act of 1964]

discrimination, the only remedy available is under Title VII [of

the Civil Rights Act of 1964].” Rivera-Rosario v. U.S. Dep't of

Agric., 151 F.3d 34, 38 (1st Cir. 1998) (per curiam); see also

Gonzalez v. Otero, 172 F. Supp. 3d 477, 505 (D.P.R. 2016), aff'd

sub nom. Gonzalez v. Velez, 864 F.3d 45 (1st Cir. 2017) (Title

VII “is an exclusive and pre-emptive avenue for cases involving

federal employment discrimination.”). Accordingly, because Ms.

Laguerre’s claim under MASS. GEN. LAWS ch. 151B § 4 is based on the

same underlying facts as her Title VII claim, “Title VII is her

sole remedy.” Burns v. Johnson, 18 F. Supp. 3d 67, 76 (D. Mass.

2014) (citing Bush v. Lucas, 462 U.S. 367, 385-86 (1983),

Berrios v. Dep’t of Army, 884 F.2d 28, 30-31 (1st Cir. 1989)).

IV. CONCLUSION

For the reasons set forth more fully above, I GRANT

Defendants’ Motion [Dkt. No. 16] to Dismiss.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE