Harris v. Wilkie

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S EARLY MOTION FOR PARTIAL SUMMARY JUDGMENT

          William J. Martinez, United States District Judge

         Plaintiff Patricia Harris (“Harris”) sues the Honorable Robert Wilkie, Secretary of the Department of Veterans Affairs, in his official capacity (“the VA”), alleging disability discrimination under the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 791 et seq., age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and retaliation for exercising her rights under those statutes. (ECF No. 28.)

         Currently before the Court is the VA's Motion for Early Partial Summary Judgment. (ECF No. 30.) See also WJM Revised Practice Standard III.E.2 (governing early summary judgment motions). This motion argues that Harris failed to exhaust her administrative remedies as to her claims for disability discrimination and retaliation (her first and third claims for relief). For the reasons explained below, the Court will grant this motion as to Harris's first claim for relief, and grant it in part and deny it in part as to her third claim for relief.

         I. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         II. FACTUAL BACKGROUND

         Summary judgment motions turn on undisputed facts. However, the VA's summary judgment motion turns on a subset of facts that make little sense out of context. Accordingly, the Court will first summarize Harris's allegations. The Court derives the following from Harris's Second Amended Complaint. (ECF No. 28.) The Court's summary of Harris's allegations is not meant to imply approval of them, nor that the allegations are uncontested.

         Harris was born either in 1948 or 1953-the Second Amended Complaint alleges both. (Id. ¶¶ 10, 72.) In September 2015, Harris became a “Nurse Manager” at a VA “Community Living Center” in Denver. (Id. ¶ 11.) In May 2016, non-party Piper Knight became “Chief Nurse” at that facility. (Id. ¶ 12.) “[S]hortly after [Knight's] arrival, [she] told the Plaintiff that she wanted to, ‘build a new team' and that the Plaintiff, ‘didn't have the ability to move in the fast paced environment that she was creating,' plainly evincing an age and disability bias.” (Id. ¶ 13.)

         This claim of immediate age discrimination is comprehensible because Harris was 63 or 68 at the time, either of which meets the 40-or-older threshold for age discrimination under the ADEA. See 29 U.S.C. § 631(a) (“The prohibitions in [the ADEA] shall be limited to individuals who are at least 40 years of age.”). The claim of immediate disability discrimination is less comprehensible. The only disability Harris claims arose from medical symptoms she developed because of her relationship with Knight, not symptoms that preexisted that relationship. (Id. ¶¶ 41, 45-47, 49, 64, 67.)

         As to that relationship, Knight at times complained to others about Harris's job performance, criticized Harris personally, micromanaged her, and intentionally assigned her an overwhelming amount of work. (Id. ¶¶ 15-17, 20-24, 27, 38-39, 42-43.) On one occasion, she “belittled [Harris] by directing a younger male manager to instruct [Harris] on duties she had been successfully performing for over 9 years.” (Id. ¶ 18.)

         Harris highlights a particular incident, shortly after Knight arrived, when one of Harris's subordinates was accused of coming to work intoxicated. Harris investigated and provided a “suggested level of discipline” to Knight and “Eric Winters, Human Resource Employee/Labor Relations Specialist.” (Id. ¶ 19.) Knight and Winters “overturned” Harris's recommendation and imposed “harsher discipline. Thus, deliberately undermining [Harris] as a supervisor in the eyes of the employees reporting to her . . . .” (Id.)

         Apparently Harris and many of her subordinates were unionized and Harris had some official role with the union. Knight and Winters took steps to ensure that union-related matters bypassed Harris and went to them instead. (Id. ¶ 27.)

         In August 2016, Harris filed an unfair labor practice charge against Winters “on behalf of [the] employee [that had been accused of coming to work intoxicated], alleging the absence of facts to support the harsher punishment [Knight and Winters imposed].” (Id. ¶ 28.) That same month, Harris met with Knight and Winters to discuss “how intolerable it had become for [Harris] to work with Knight.” (Id. ¶ 30.) Harris asked Winters for assistance in finding another position, and “Winters offered to demote [Harris] to a Floor Nurse position, [but Harris] did not accept as she was not willing to take two steps down and face further humiliation.” (Id. ¶¶ 30-31.) Around this time, Harris began to seek medical care because the way Knight had been treating her caused “cardiac episodes.” (Id. ¶ 32.)

         In September 2016, Harris and Knight had another confrontation, this one over a hiring decision. Harris was considering candidates, in the midst of which, “Knight abruptly came into [Harris's] office and took the worksheet and everything else [Harris] had been working on regarding the possibility of hiring the daughter of one of the [facility's current nurses].” (Id. ¶ 35.) Then Knight “fabricat[ed] a lie regarding [Harris]

         choosing to hire the daughter of a [current nurse] . . . which was completely false, as the Chief Nurse sends its recommendation to Human Resources for selection since [Harris] is not able to make a selection.” (Id. ¶ 36.) Harris was soon formally accused of a potential “Prohibited Personnel Practice.” (Id. ¶ 37.)

         In November 2016, Winters interrogated Harris about whether she had filed the unfair labor practice charge (referring back to the employee accused of showing up intoxicated). (Id. ¶ 40.) Harris suspected that Winters was acting from a retaliatory motive. (Id.)

         Also in November 2016, Harris obtained

a doctor's note . . . which she provided to the VA while requesting a work accommodation due to the stress and hostility she was experiencing from Knight which was resulting in her severe health deterioration and cardiac issues; which request set forth that [Harris] be provided a less stressful environment or a change in position which request was a reasonable accommodation. The Disability was described as [Harris's] inability to sleep, nocturnal teeth grinding, high blood pressure, symptoms of which had been ongoing for 6 months resulting in depression and ultimately leading to a more debilitating condition.

(Id. ¶ 41.) The VA denied this request, as explained below.

         In early December 2016, Harris had a “cardiac episode” in the middle of a staff meeting and “had to be taken to the hospital.” (Id. ¶ 45.) On December 21, 2016, she “requested that her Reasonable Accommodation (‘RA') be resumed” or “renewed.” (Id. ¶ 46.) On December 27, 2016, a VA employee informed Harris that the VA had denied her reasonable accommodation request back on December 13, 2016, “because RA does not cover ‘preventative' actions.” (Id. ¶ 47.)

         In early January 2017, Winters called Harris to inform her “that there would be charges against [her] for the [Prohibited Personnel Practice, i.e., the alleged choice to hire a nurse's daughter], ” as well as charges for “‘a couple of issues of misconduct, '” all of which “could lead up to removal.” (Id. ¶ 48.)

         On January 18, 2017, Harris provided the VA with another doctor's note “concerning her need for the reasonable accommodation requested.” (Id. ¶ 49.) On January 24, 2017, Harris's attorney sent a demand letter to the VA. (Id. ¶ 50.) As will become clear in Part IV, below, Harris initiated formal grievance procedures the following month, February 2017. The Court will reserve the details of those grievance procedures for that Part.

         While Harris was pursuing grievance procedures, the VA continued to investigate the supposed “Prohibited Personnel Practice.” On July 12, 2017, Harris received “a Memorandum for ‘Proposed Removal' wherein it list[ed] 4 manufactured and pretextual charges against [Harris], regarding incidents dating back to September 2016.” (Id. ¶ 54.) The VA terminated Harris on August 3, 2017. (Id. ¶ 57.)

         Harris filed this lawsuit on January 10, 2018. (ECF No. 1.) She has since amended her complaint twice. (ECF Nos. 21, 28.) Under the Second Amended Complaint (the currently operative complaint) she alleges three claims for relief: (1) disability discrimination in violation of the Rehabilitation Act, based on the VA's refusal to provide a reasonable accommodation (ECF No. 28 ¶¶ 63-70); (2) age discrimination in violation of the ADEA (id. ¶¶ 71-77); and (3) unlawful retaliation, nominally for exercising her ADEA and Rehabilitation Act ...