United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (ECF NO. 4)
PAUL D. BORMAN, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 4.) Plaintiff filed a Response (ECF No. 7) and Defendant filed a Reply (ECF No. 8). The Court held a hearing on February 12, 2015. For the reasons that follow, the Court converts the motion to one for summary judgment and GRANTS the motion.
This action involves Plaintiff's claim that her employer, the Defendant Veterans Affairs Ann Arbor Healthcare System (the "VA"), through its agents and particularly through the acts of Dr. Wessam Bou-Assaly, created and permitted to exist a hostile work environment in which Plaintiff was subject to sexual harassment and retaliated against when she complained about the harassment she alleges she endured. Defendant now moves to dismiss the Complaint, claiming that Plaintiff failed to properly exhaust her administrative remedies which required that she timely file a formal Equal Employment Opportunity (EEO) Complaint with Department of Veterans Affairs and timely contact an EEO Counselor, both statutory prerequisites to filing her Title VII claim against the VA.
A. Plaintiff's Claims of Sexual Harassment
Plaintiff Dr. Jean Kuriakose is a radiologist at the Defendant VA who claims that she was subject to a sexually hostile working environment created by the sexually assaultive conduct of one of her colleagues, Dr. Wessem Bou-Assaly. Plaintiff claims that Dr. Bou-Assaly was known to the VA Hospital as a sexual predator who harassed many other females working at the VA but that the VA turned a blind eye to his conduct.
In addition to her employment at the VA, Plaintiff was a lecturer at the University of Michigan, and Dr. Bou-Assaly was an assistant professor of Radiology at the University of Michigan. Compl. ¶¶ 10, 11. Plaintiff claims that in October, 2012, she met with the chairman of the Radiology Department at the University of Michigan, Dr. N. Reed Dunnick, and told him that women were treated disrespectfully. According to Plaintiff, Dr. Dunnick ignored her concerns and moved to the next topic of discussion. Compl. ¶¶ 16-17. The University of Michigan is not a party in this case.
Plaintiff alleges that Dr. Bou-Assaly became increasingly abusive and, in September, 2013, touched her and other female workers, made sexually suggestive comments on a regular basis, inappropriately texted female workers outside of work hours, and on December 6, 2013, exposed his penis to Plaintiff and touched her breast when she attempted to get up and walk out of the room. Compl. ¶ 19. Plaintiff reported this incident to local police which led to the filing of criminal charges of fourth degree criminal sexual conduct against Dr. Bou-Assaly and an ultimate plea by Dr. Bou-Assaly to indecent exposure. (Pl.'s Resp. Ex. A, Register of Actions.)
Plaintiff claims to have made several complaints to her employer about Dr. Bou-Assaly's conduct but alleges that the VA never took action despite being on notice of his inappropriate and dangerous behavior. Compl. ¶ 21-23. Plaintiff's Complaint alleges that she was treated differently based on unlawful consideration of her sex (Count I), was subject to a hostile work environment (Count II), was retaliated against by the VA for her complaints of sexual harassment (Count IV), and claims that the VA breached duties owed to her by inadequately hiring, training, retaining, supervising and not reprimanding Dr. Bou-Assaly (Count III). Plaintiff claims to have suffered severe depression, Post-Traumatic Stress Disorder and Anxiety, which she alleges has severely affected her personality and ability to cope with her personal and professional life. In support of her claim of psychological trauma, Plaintiff attaches the Affidavit of Dr. Gerald Shiener who conducted a psychiatric examination of Plaintiff on September 4, 2014, and concluded that Dr. Bou-Assaly's assaults on Plaintiff have left her emotionally and psychologically traumatized such that she was unable to report the sexual assault to her employer within the 45 days allowed under the applicable statutory exhaustion requirements. (Pl.'s Resp. Ex. B, October 22, 2014 Affidavit of Dr. Gerald Shiener ¶¶ 1-11.)
B. Plaintiff's Contacts With the Equal Employment Opportunity Office
Defendant moves to dismiss on the basis that Plaintiff failed to timely exhaust her administrative remedies because she failed to file a Formal Complaint with the agency within the statutorily prescribed fifteen (15) day time frame after receiving her Notice of Right to File a Discrimination Complaint. Defendant also claims that as to her claims of gender-based harassment, Plaintiff did not seek EEO counseling with regard to the sexual harassment conduct, the last instance of which occurred on December 6, 2013, within the statutorily required 45-day period for reporting such conduct. Plaintiff does not dispute that she did not file a Formal Complaint within 15 days of receiving her Notice of Right to File and does not deny that she failed to seek counseling within the 45-day window. She attempts to excuse her failure to heed both deadlines, claiming that she "thought" she had filed a timely Formal Complaint based upon communications from the EEO Office and that she was too traumatized by the sexual harassment to understand and appreciate the 45-day limitation on the time within which she was required to seek counseling.
Plaintiff claims that she was "under the impression" that a Formal Complaint had been filed based upon communications she received from her EEO Counselor, Lydia Ward. (Pl.'s Resp. Ex. C, October 23, 2014 Affidavit of Jean Kuriakose.) Plaintiff states that she contacted another EEO Counselor, Diana Cass, on February 18, 2014, with regard to "the degrading and humiliating sexual harassment" she had been subject to while working at the VA Hospital. Kuriakose Aff. ¶ 1. Plaintiff claims she made contact with the Office of Resolution Management for the Department of VA Affairs on March 3, 2014, to alert them of the sexual harassment she had undergone while working at the VA Hospital. Id. ¶ 2. Plaintiff states that she "complied with all requirements to assert her rights" and "actively participated in the complaint process and maintained contact" with her EEO counselor, Lydia Ward, who "failed to tell [Plaintiff] that a formal complaint had not been filed, " and "blatantly disregarded [Plaintiff's] concerns." Id. ¶¶ 2-5. In support of her claims that she participated in the complaint process and was misled by Ms. Ward, Plaintiff attaches to her response to the motion to dismiss a series of emails between herself and Ms. Ward which begins with a March 31, 2014 Email from Ms. Ward to Plaintiff indicating that Plaintiff must respond to the email to indicate whether she wanted to "go forward with this EEO Complaint." (Pl.'s Resp. Ex. D, March 31, 2014 Email.) On April 2, 2014, Plaintiff responds that since she had "complained to the you/ORM [sic], the matter of [her] having to move [her] work station, and changes of tour of duty have not been pursued." Id. April 2, 2014 Email. Plaintiff also mentions in this email that "since there is a criminal persecution [sic], of the matter leading up to these events which I have been called as a witness, I am a little uncertain as to what to do with the ORM paperwork and what needs to be done etc." Id. Ms. Ward's responsive email is somewhat puzzling. First, she indicates that since Plaintiff's work station and tour of duty had not been changed, that issue appears not to have resulted in any work related harm. She further states that: "You are a witness to the criminal persecution; therefore, it does not appear that you were harmed. ORM paperwork should be completed and return unless it is you [sic] decision to withdraw your EEO Complaint." Id. April 2, 2014 Email.
Defendant provides the Declaration of Tami S. Press, Regional EEO Officer for the Department of Veterans Affairs, Office of Resolution Management ("ORM") and the custodian of the EEO administrative records relating to the Great Lakes Region, including the file relating to Plaintiff. (Defs.' Mot. Ex. 1, Sept. 23, 2014 Declaration of Tami S. Press ¶¶ 1-3. Ms. Press explains that all ORM EEO records are kept in an electronic system known as Complaints Automated Tracking System ("CATS") that keeps track of every record received from or sent to an EEO complainant. Press Decl. ¶ 4. The ORM file relating to Plaintiff indicates only that she made initial contact on March 3, 2014, received a Notice of Right to File a Discrimination Complaint dated April 1, 2014 with a UPS Delivery Receipt dated April 3, 2014 and an ORM Counselor Report (content unknown) dated April 9, 2014. Id. ¶ 5. The CATS records do not indicate that Plaintiff ever filed a Formal Complaint. Id. ¶ 7.
Defendant also provides the Initial Contact and Interview Sheet from Plaintiff's March 3, 2014 contact which indicates that Plaintiff complained about a change in duty hours that occurred on February 21, 2014. (Def.'s Mot. Ex. 2.) The Contact Sheet also explains as follows: "The AP stated she was sexually assaulted last year by a co-worker who was firred [sic]. She stated that after that she has been subjected to harassment the latest issue coming in the form of a Tour of duty change." Id. at 2. The Contact Sheet suggests that the current complaint related to the change in Plaintiff's tour of duty which Plaintiff claimed was related to the earlier sexual harassment.
Defendant also attaches the Declaration of Lydia Ward, Plaintiff's EEO Counselor, who confirms that on April 1, 2014, she sent Plaintiff a Notice of Right to File Formal Complaint which explained in bold letters that Plaintiff had 15 days from her receipt of the Notice to submit her Formal Complaint. (Def.'s Mot. Ex. 3, October 14, 2014 Declaration of Lydia Ward ¶ 5.) Ms. Ward further declares that the EEO never received a Formal Complaint from Plaintiff or from her lawyer within the 15-day time frame. Id. ¶¶ 6-7. Ms. Ward states that she did receive a communication from Plaintiff's lawyer on or about April 30, 21, 2014, representing that Plaintiff had filed a Formal Complaint but after confirming that none was ever received from or filed by Plaintiff, Ms. Ward did not respond to the letter because she had closed the file. Nor did Ms. Ward respond to Plaintiff's attorney's July 21, 2014 letter seeking a copy of Plaintiff's file and a status update, because the file was closed and the letter therefore required no response. Id. ¶¶ 7-8; Pl.'s Resp. Exs. D, F, April 30, 2014 and July 21, 2014 Correspondence from Jonathan Marko to Ms. Ward. The Notice of Right to File paperwork, attached to Defendant's motion, clearly explains the process that Plaintiff must go through, and the time frame in which she must complete ...