United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
L. BRASHER UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Robert Wilkie,
Secretary of Veteran Affairs, the Department of Veterans
Affairs, and Central Alabama Veteran Affairs Healthcare
System's (collectively, “Defendants”) Motion
to Dismiss. (Doc. 16). Upon consideration, the motion is
Tammy Rogers, a 53-year-old white female, filed a complaint
against Defendants on October 1, 2018, alleging (1) race
discrimination, a racially hostile work environment, and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e et
seq. (“Title VII”), and (2) age
discrimination and retaliation in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621 et seq. (“ADEA”).
Rogers is a Registered Nurse (“RN”) and was
employed by the Central Alabama Veteran Affairs Healthcare
System (“VA”) as a Staff Nurse until December 29,
2016, at which time she alleges she was forced to transfer to
the VA's call center because of the harassment and
retaliation she suffered as a Staff Nurse. Rogers was one of
two white nurses and the only white RN of twelve nurses
employed by the VA. While employed as a Staff Nurse, Rogers
claims that she was subjected to harassment and discriminated
against by two African-American supervisors: Acting Nurse
Manager Delana Flowers and Acting Nurse Manager Dorothy
Chambliss. Rogers also alleges that she was harassed by her
African-American co-workers. After Rogers transferred to the
call center, Rogers claims that she was replaced by a
younger, African-American RN.
purposes of a motion to dismiss, the Court assumes the
factual allegations are true and construes them in the light
most favorable to Plaintiff. Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); Duke v.
Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). To survive
a motion to dismiss based on a challenge to the sufficiency
of the pleadings, Plaintiff need not plead her claims with
“detailed factual allegations.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Rather, Plaintiff need
only plead sufficient factual matter, accepted as true, that
would allow the court “to draw the reasonable inference
that [D]efendant[s] [are] liable for the misconduct
argue that Plaintiff's claims should be dismissed because
Plaintiff (1) failed to exhaust her administrative remedies
and (2) failed to plausibly state a claim for relief under
Fed.R.Civ.P. 8(a). The Court rejects each of these arguments.
Plaintiff's Exhaustion of Administrative
an action under Title VII or the ADEA, a federal employee
must first exhaust her administrative remedies. Crawford
v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999).
“Good faith effort by the employee to cooperate with
the agency . . . and to provide all relevant, available
information is all that exhaustion requires.”
Id. Defendants argue that Plaintiff failed to
exhaust her remedies because the Final Agency Decision issued
by the Department of Veterans Affairs
(“Department”) notes that Plaintiff “did
not participate in the investigation of her complaint.”
(Doc. 1-6 at 4). But Plaintiff argues that she exhausted her
administrative remedies because the Department issued a
decision on the merits of her claims. She also disputes that
she did not participate in the investigation of her
Eleventh Circuit has not expressly addressed whether a
plaintiff fails to exhaust her administrative remedies such
that she is barred from filing suit in federal court when she
fails to comply with an agency's request for information
but the agency still adjudicates her claim. However, courts
in the Eleventh Circuit, as well as other courts of appeal
and district courts, have unanimously held that an
employee's failure to cooperate in the administrative
process only precludes exhaustion “when it prevents the
agency from making a determination on the merits.”
Melendez v. Sebelius, 611 Fed.Appx. 762, 764 (4th
Cir. 2015); see, e.g., Jasch v. Potter, 302
DF.3d 1092, 1095-96 (9th Cir. 2002) (“[I]f an agency
reaches the merits of a claim, despite a claimant's
failure to comply with requests for information,
administrative remedies should be presumed sufficiently
exhausted to permit suit in federal court.”);
Wilson v. Pena, 79 F.3d 154, 165 (D.C. Cir. 1996)
(“Where the agency has taken final action based on an
evaluation of the merits, it cannot later contend that the
complainant failed to exhaust his remedies.”);
Johnson v. Bergland, 614 F.2d 415, 418 (5th Cir.
1980) (“[I]f the agency does not reach the merits of
the complaint because the complainant fails to comply with
the administrative procedures the Court should not reach the
merits either.”); Arledge v. Potter, No.
CV405-161, 2006 WL 1687756, at *3 (S.D. Ga. June 14, 2006)
(“Where the federal agency reaches a decision on the
merits, a plaintiff's failure to exhaust administrative
remedies will not bar her suit in federal court.”).
question then is whether the Department issued a final
decision on the merits of Plaintiff's claims. The Court
concludes that it did. Tellingly, in most, if not all, of the
cases cited by Defendants, the agency dismissed or cancelled
the plaintiff's complaint for failure to prosecute or
failure to provide sufficient information to reach a decision
on the merits. But in this case and unlike the cases cited by
Defendants, the Department did not cancel Plaintiff's
claim because she failed to cooperate in the investigation-it
made a determination on the merits of Plaintiff's claims.
Specifically, the Department issued a final decision finding
that Plaintiff “failed to establish a prima facie case
of hostile environment [sic] harassment based on race, age,
or reprisal.” (Doc. 1-6 at 5). Defendants acknowledge
the agency's decision on the merits in their own brief.
(Doc. 17 at 4). Accordingly, Defendants' motion to
dismiss on the grounds that Plaintiff failed to exhaust her
administrative remedies is due to be denied.
Plaintiff's Discrimination Claims under Title VII and the
next argue that Plaintiff has failed to plausibly state
claims for racial harassment and discrimination under Title
VII and age ...