The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FIRYAL THABATAH CIVIL ACTION
NO. 23-1043
VERSUS
DENIS R. MCDONOUGH, SECRETARY, UNITED SECTION: “G”(2)
STATES DEPARTMENT OF VETERAN AFFAIRS
ORDER AND REASONS
In this case, Plaintiff Firyal Thabatah’s (“Plaintiff”) surviving claim is that she was subject
to race, national origin, and religious discrimination constituting a hostile work environment while
employed at the U.S. Department of Veterans Affairs Southeast Louisiana Veterans Health Care
System.1 Before the Court is Defendant Denis Richard McDonough’s (“Defendant”) second
Motion for Summary Judgment.2 Defendant argues that any hostile work environment claim is
untimely because Plaintiff failed to notify the EEO about the harassment within 45 days of the
alleged discriminatory acts.3 Plaintiff opposes the motion.4 As discussed in more detail below,
even though Events 2-6 occurred more than 45 days before Plaintiff contacted to the EEO, they
1 Rec. Doc. 1.
2 Rec. Doc. 53 at 1.
3 Id.
4 Rec. Doc. 65.
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may be considered as a part of the hostile work environment as a whole.5 Thus, considering the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
denies the Motion for Summary Judgment.
Plaintiff has worked as a Registered Nurse for the U.S. Department of Veterans Affairs
Southeast Louisiana Veterans Health Care System since September 2017.6 Defendant is presently
the Secretary of the U.S. Department of Veteran Affairs (the “VA”).7 Plaintiff is a 46-year-old
Muslim, Middle Eastern, Palestinian female who, at the time of the alleged events in this case,
worked as a nurse in the Emergency Department and later Primary Care Unit of the VA Medical
Center in New Orleans.8
In the complaint, Plaintiff brought individual discrimination claims and hostile work
environment claims based on Plaintiff’s race, religion, national origin, and sex.9 On June 11, 2024,
Defendant filed a Motion for Summary Judgment.10 On June 24, 2024, Plaintiff filed an
Opposition.11 On July 31, 2024,12 this Court granted summary judgment on all sex discrimination
5 See also Rec. Doc. 46 at 22.
6 Rec. Doc. 1 at 1.
7 Id.
8 Id. at 3. Plaintiff still works in the same facility in the “flow” department. Rec. Doc. 32-2 at 1 (Defendant’s
Statement of Undisputed Facts); Rec. Doc. 36-1 at 1 (Plaintiff’s Statement of Undisputed Facts).
9 Rec. Doc. 1.
10 Rec. Doc. 32.
11 Rec. Doc. 36.
12 Rec. Doc. 46.
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claims and all claims related to Events 1, 9, 12, 16, and 17.13 The Court additionally found “there
[were] no material facts in dispute with respect to Plaintiff’s standalone discrimination/retaliation
claims for non-selection (Events 7, 8, and 10) and the denial of leave requests (Events 11, 13, and
14).”14
This Court additionally found that “there are genuine issues of material fact in dispute
regarding Plaintiff’s hostile work environment claims based on [Plaintiff’s] race, national origin
and religion.”15 Accordingly, this Court denied summary judgment on Plaintiff’s hostile work
environment claim and noted there was not enough information to rule on Plaintiff’s religious
accommodation claim regarding her denial of leave for Ramadan.16
Now before the Court is a second Motion for Summary Judgment17 filed by Defendant on
August 7, 2024. Plaintiff filed an Opposition18 on August 9, 2024. In the Motion for Summary
Judgment, Defendant argues that Plaintiff’s hostile work environment claims pre-dating December
2021 should be dismissed because Plaintiff failed to consult with a counselor at the employing
agency’s EEO within 45 days of an alleged discriminatory act.19 Defendant claims the only event
13 Rec. Doc. 46 at 33. For a list of all 18 alleged events, see id. at 5-8.
14 Id. at 33.
15 Id.
16 Id.
17 Rec. Doc. 53.
18 Rec. Doc. 65.
19 Rec. Doc. 53-1 at 1. Plaintiff made initial contact with an EEO counselor on December 6, 2021, with an
initial interview occurring on December 10, 2021. Plaintiff has filed no other EEO claims or complaints. However,
Plaintiff filed two motions to amend her claims, both of which were accepted by the EEO.
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that occurred within the 45-day window was the November 5, 2021 failure of management to select
Plaintiff for an interview for a position.20 Defendant argues that because this Court dismissed the
non-selection claim under an individual discrimination/retaliation theory, it cannot be used to
further Plaintiff’s hostile work environment claim.21
In opposition,22 Plaintiff argues that Defendant waived the right to object under a
timeliness theory based on the fact Defendant did not allege non-compliance with the 45-day rule
until the final Pretrial Order.23 Plaintiff further argues that Defendant explicitly stated in its
Response to Plaintiff’s Motion to Amend filed with the EEO that the amendments made to the
original report were timely.24 Lastly, Plaintiff claims that this Court’s original order granting
partial summary judgment did not dismiss Events 2-6, 11-15 and 18 in the context of a hostile
work environment claim.25
Aside from Event 12, which this Court did grant summary judgment on, Plaintiff is correct.
Summary judgment has not been granted on Events 2-6, 11, 13, 14, 15, and 18 in the context of
Plaintiff’s hostile work environment claim. In this case, when Plaintiff reported to the EEO on
December 6, 2021, the hostile work environment alleged was ongoing due to Events 11, 13, 14,
20 See Rec. Doc. 53-1 at 3.
21 See id. at 2.
22 Rec. Doc. 65.
23 Id. at 6.
24 Id.
25 Id. However, the Court did grant summary judgment as it relates to all claims associated with Event 12
because Plaintiff did not mention Event 12 in their Opposition to Defendant’s first Motion for Summary Judgment.
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15, and 18 all occurring in 2022 and 2023, after Plaintiff approached the EEO.26 Since these events
occurred after Plaintiff filed with the EEO, they are clearly timely.
As far as the Events that occurred more than 45 days before December 6, 2021 (Events 2-
6), in National R.R. Passenger Corp. v. Morgan, the Supreme Court held that “[b]ecause [a hostile
work environment claim] is composed of a series of separate acts that collectively constitute
‘unlawful employment practice,’ it does not matter that some of the component acts fall outside
the statutory time period.”27 The Court further held that “a charge may be filed at a later date and
still encompass the whole.”28 Thus, even though Events 2-6 occurred more than 45 days before
Plaintiff contacted the EEO, they may be considered as a part of the hostile work environment as
a whole. It is for the jury to determine if these events, when considered together, show that that
Plaintiff was subject to a hostile work environment based on her race, religion, and national origin.
Accordingly,
26 See Rec. Doc. 53-1 at 3-4.
27 536 U.S. 101, 103 (2002).
28 Id.
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IT IS HEREBY ORDERED that Defendant’s August 7, 2024 Motion for Summary
Judgment”? is DENIED.
NEW ORLEANS, LOUISIANA this _ 12th day of August, 2024.
NANNETTE JOLI Jos BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
29 Rec. Doc. 53.