Rogers v. Wilkie

          MEMORANDUM OPINION AND ORDER

          ANDREW L. BRASHER UNITED STATES DISTRICT JUDGE.

         This 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 DENIED.

         BACKGROUND

         Plaintiff 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.

         STANDARD

         For 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 alleged.” Id.

         DISCUSSION

         Defendants 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.

         I. Plaintiff's Exhaustion of Administrative Remedies

         To file 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 complaint.

         The 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.”).

         The 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.

         II. Plaintiff's Discrimination Claims under Title VII and the ADEA

         Defendants next argue that Plaintiff has failed to plausibly state claims for racial harassment and discrimination under Title VII and age ...