United States District Court, D. Colorado
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.
ΒΆΒΆ 71-77); and (3) unlawful retaliation, nominally
for exercising her ADEA and Rehabilitation Act ...