# Laguerre v. McDonough

> District Court, D. Massachusetts · December 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10199904

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** December 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199904

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199904. Public record. Not legal advice.