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Kuriakose v. Veterans Affairs Ann Arbor Healthcare System

United States District Court, E.D. Michigan, Southern Division

October 17, 2017


          Mona K. Majzoub United States Magistrate Judge.



         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 Plaintiff's co-worker, 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 for summary judgment, limited to the issue of whether Plaintiff failed to properly exhaust her administrative remedies, which required that she (1) timely contact an EEO Counselor regarding her claim and (2) timely file a formal Equal Employment Opportunity (EEO) Complaint with the VA, two independent statutory prerequisites to filing her Title VII claim against the VA.[1]Defendant also seeks to exclude the opinion of Plaintiff's medical expert, Dr. Gerald Shiener. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES AS MOOT Defendant's Motion to Exclude Dr. Shiener's opinions.

         I. BACKGROUND

         A. Plaintiff's Position at the VA and Her Allegations of Harassment by Bou-Assaly

         Plaintiff was born in India and is a United States citizen. (ECF No. 40, Pl.'s Resp. Ex. A, February 18, 2016 Deposition of Jean Kuriakose, M.D. 11:16-19.) Plaintiff attended medical school in India, graduated in 1999, did her radiology residency in the United Kingdom, and completed a fellowship in cardiothoracic radiology at the University of Michigan (“UM”) in 2009. (Id. at 13:17-15:9.) Plaintiff began working for the VA in Ann Arbor in 2010 as a staff physician in cardiothoracic radiology interpreting images, including x-rays, MRIs, CT Scans, ultrasounds, principally of the chest area. (Id. at 16:25-17:24.) Plaintiff's job involved identifying many different life threatening conditions such as cancer, heart disease, and collapsed lung. (Id. at 19:15-20:14.)

         In 2013 through 2014, Plaintiff was employed part time at the VA (7/8) and part time at UM (1/8) and her typical “tour of duty” (working hours) at the VA was Tuesday, Wednesday, Thursday 8:00 a.m. - 4:30 p.m. Plaintiff worked at UM once every two weeks and her duties were the same at both the VA and UM. (Id. at 20:22-22:6, 23:13-21.) During 2013 and through the date of her departure from the VA in December, 2014, the time period relevant to this case, Plaintiff's direct supervisor at the VA was Dr. Venkat Krishnamurthy. Dr. Krishnamurthy's direct supervisor was Eric Young, the Chief of Staff of Radiology. Plaintiff's supervisor at UM was Ella Kazerooni and Dr. Kazerooni's supervisor at UM was Reed Dunnick. (Id. at 22:7-15, 23:22-24:6.)

         Plaintiff first met Bou-Assaly, who was a staff radiologist at the VA and was also an assistant professor of radiology at UM, when she started working for the VA in 2010. He was a colleague and Plaintiff did not socialize with him, although she did meet his wife once and found her to be “a very nice lady.” (Id. at 42:2-43:3; Compl. ¶ 12.) According to Plaintiff, Bou-Assaly began to harass her toward the end of 2011 and into 2012. The harassment began just verbally, with Bou-Assaly using “the wrong tone, ” but quickly progressed to his use of profane words and sometime in 2012 he began describing sexual acts and making explicit sexual comments about Plaintiff and other co-workers. (Id. at 43:4-44:8.) The harassment by Bou-Assaly progressed to touching in early 2012. Plaintiff describes incidents such as Bou-Assaly touching her neck and then moving his hand down her back and touching her bra strap. (Id. at 44:8-45:20.)

         In early 2012, Plaintiff reported his sexually profane language and unwanted touching to her supervisor at the VA Dr. Krishnamurthy. Plaintiff reports that Dr. Krishnamurthy asked her if she was just “sensitive, ” but he never followed up with her. Plaintiff suspects that Dr. Krishnamurthy did talk to Bou-Assaly about her complaint because Bou-Assaly began saying things to her, like “why are you speaking to pink nipples, ” which made her think that Dr. Krishnamurthy had told Bou-Assaly what she said and that Bou-Assaly was “jealous.” Plaintiff complained to Dr. Krishnamurthy several times in 2012 but he took no action and he ultimately called her “a complainer.” (Id. at 45:22-47:14, 48:12-22.) Plaintiff testifies that Bou-Assaly was treating a lot of women this way, to the point that people would hide from him “in the stairwells and under desks” - it was “horrendous.” (Id. at 47:15-48:11.)

         Plaintiff states that on December 6, 2013, Bou-Assaly unzipped his pants and exposed his genitals to Plaintiff and grabbed her breast - very hard. (Id. at 50:3-10.) It happened around 4:00 p.m. on Friday at the VA in the radiology reading room. Plaintiff characterized the touching as an assault and she hid in the toilet until Bou-Assaly left and then immediately went looking for her supervisor, Dr. Krishnamurthy, in the IR (interventional radiology) room. Dr. Krishnamurthy wasn't there and did not respond to a page. Plaintiff had radiology reports to finish and paperwork to complete, but she was afraid to return to the room where she worked for fear Bou-Assaly would assault her again. She told a Nurse Practitioner (whose name she can't recall) what had happened and asked her to stand watch at the door while Plaintiff finished her paperwork. Plaintiff was told by Kim Beers that Dr. Krishnamurthy had left for the day but she did not tell Ms. Beers what had happened to her. (Id. at 50:14-53:1.) Plaintiff was “frozen” and just wanted to get out of the VA. She did not think to call the police. She went home and called her sister who lives in Florida to tell her what had happened and also told her husband. They agreed that something had to be done but Plaintiff felt she had to “go up the chain of command” and tell Dr. Krishnamurthy first. (Id. at 53:8-54:25.)

         Plaintiff went to work on Monday, December 9, 2013, and told her colleague, Dr. Perry Pernicano, the details of what had occurred on Friday afternoon with Bou-Assaly. Plaintiff believes that Dr. Pernicano must have known something of Bou-Assaly's conduct because there were multiple people who were very distraught about his conduct toward women generally. (Id. at 55:3-56:7.)

         Between that Monday, December 9, 2013, and Christmas, Plaintiff kept trying to get some time to speak with Dr. Krishnamurthy. She told him several times that she had something serious to discuss with him, but she did not want to go into the graphic details in a corridor, so she never relayed to him the details of what had occurred on Friday, December 6, 2013. Dr. Krishnamurthy never followed up with Plaintiff to learn of the nature of the “serious matter” she had conveyed to him. Plaintiff states that she called human resources but no one answered the phone and she never left a message. She tried to contact several supervisors but people “were on vacation” and she could not make contact with anyone. So she continued reporting to work, and Bou-Assaly kept “pestering” her with text page messages, saying he needed to talk to her. (Id. at 57:19-61:7.)

         On December 27, 2013, Plaintiff accessed the VA's online training program to review the module on workplace sexual harassment. The training logs reveal that Plaintiff took the initiative and visited the training module on Prevention of Workplace Harassment/No Fear. Plaintiff stated that she wanted to determine who she should contact to complain about the incident. Plaintiff acknowledged that the training materials gave several options and also directed an aggrieved employee to contact an Equal Employment Opportunity (“EEO”) counselor to file a complaint within 45 days of the incident. Plaintiff acknowledged that the training materials gave a phone number to call to contact an EEO counselor, but Plaintiff testified that she did not call that number, because she wanted a contact number that would allow her to call a specific person. She thinks she wrote down the number of the EEO but she can't recall. (Id. at 65:22-68:24.) Plaintiff understood the harassment training materials she reviewed to require that she talk to her supervisor before making an EEO complaint. (Id. at 69:9-18.)

         The VA's workplace harassment training program materials that Plaintiff reviewed: (1) describe what constitutes sexual harassment under Title VII; (2) encourage employees experiencing harassment to report the conduct to a supervisor or to contact an EEO counselor at the Agency's Office of Resolution Management (“ORM”); (3) explain that contact with an EEO counselor must be initiated within 45 days of the incident complained of; and (4) contain a link to the ORM website that provides step-by-step instructions for contacting ORM and initiating an informal EEO complaint. (Def.'s Mot. Ex. 6, “Prevention of Workplace Harassment/NO FEAR, ” PgID 1441, 1443, 1446.) The ORM is an independent branch of the VA and has no offices at the Ann Arbor VA. (Def.'s Mot. Ex. 7, March 9, 2016 Deposition of Diana Cass 12:23-25, 13:21-23.)

         Finally, Plaintiff decided to try to report the incident to someone at UM and she arranged to meet with Ella Kazerooni, her supervisor at UM, on January 10, 2014. Plaintiff's VA colleague, Dr. Pernicano, went with Plaintiff to speak to Dr. Kazerooni. (Kuriakose Dep. 61:8-62:1.) Dr. Kazerooni acknowledged that this was very serious and she said she would contact all of the relevant people, including at the VA and UM, and assured Plaintiff that she was going to initiate the process for reporting the assault and suggested that Plaintiff go back to work. (Id. at 62:2-12.) Dr. Kazerooni did report the incident to the appropriate individuals at the VA, who referred the matter to the VA police at the VA hospital in Ann Arbor on January 10, 2014. (Cass Dep. 20:10-21, 22:7-23:25, 25:4-26:8.)

         That same day, January 10, 2014, Plaintiff filed a complaint with the VA police stating that on December 6, 2013, Bou-Assaly sexually assaulted her in the radiology reading room - specifically that he unzipped himself, exposed himself and said “Look at me you idiot, ” and grabbed her breast very hard. (Id. at 62:13-64:14.) The VA police asked her why she waited a month to report it and she said she was not sure why, but told the VA that her “supervisor” was on leave and she was waiting for her return - Plaintiff explained that she was referring to Dr. Kazerooni at UM, not Dr. Krishnamurthy from the VA. (Id. at 64:15-65:8.) Plaintiff also met with the Provost of UM, Anthony Wallesby, the Monday after the weekend of January 10, 2014, and discussed the matter with him. (Id. at 77:2-78:1.) Plaintiff continued to report to work following the incident on December 6, 2013, and through April 30, 2014, but it was hard for her. (Id. at 180:25-181:10.) She decided to utilize the UM Employee Assistance Program (“EAS”), which offered general counseling, not employment counseling. She met with a UM EAS counselor on January 16, 2014, and explained what had occurred and the harassment that followed. (Id. at 86:24-87:21, 91:1-10.) Her VA supervisor, Dr. Krishnamurthy, questioned why Plaintiff was going to UM EAS; Plaintiff considered his questioning her on this point to be harassment. (Id. at 90:2-17.)

         B. Plaintiff's Interactions With the VA's EEO Office and the ORM

         On January 10, 2014, Plaintiff received a page from Diana Cass, who identified herself as the EEO manager at the VA. Cass had learned of Plaintiff's complaints that day via Dr. Kazerooni through Dr. East, the acting chief of staff at the VA. (Cass Dep. 22:17-24). Cass spoke that day with Dr. Krishnamurthy and Dr. East about Plaintiff's complaint and paged Plaintiff to arrange escorting Plaintiff down to Chad Dermyer at the VA Police to make a report. (Cass Dep. 64:19-66:4.) Cass stated in her page to Plaintiff that she would like to speak to Plaintiff about “some concerns that had been brought to her attention.” Cass gave a telephone extension and asked Plaintiff to call back. Cass called Plaintiff again a couple hours later and again asked Plaintiff to call her back. (Kuriakose Dep. 70:3-15.) Subsequently, Cass did speak with Plaintiff and arranged to meet Plaintiff to escort her to the VA Police. (Cass Dep. 65:3-66:4.) Cass met Plaintiff and then introduced her to Officer Dermyer to make her report. Because the issue was a sexual assault, Cass did not stay for the interview with Dermyer; it was not appropriate for Cass to be involved in the police investigation. (Cass Dep. 67:21-68:12.) Plaintiff thought she recalled calling Cass back on January 10th and recalled having seen Cass briefly that day when she made the report to the VA police. (Kuriakose Dep. at 71:25-73:24, 76:16-22.)

         Bou-Assaly also was interviewed by the VA police on January 10, 2014, and was placed on administrative leave on January 10, 2014, pending an investigation of alleged sexual assault. (Def.'s Mot. Ex. 9, Admin. Leave Memorandum PgID 1468; Kuriakose Dep. 78:13-79:25.) As part of their investigation of Plaintiff's complaint, the VA Police interviewed several employees in the radiology department, many of whom reported sexually harassing conduct by Bou-Assaly. (Pl.'s Resp. Ex. C, VA Police Investigative Report, PgID 1698-1707.)

         Bou-Assaly was criminally prosecuted by Washtenaw County and pled no lo contendre to criminal sexual conduct - Fourth Degree - on February 19, 2014. (Def.'s Mot. Ex. 10, Criminal Docket PgID 1469.) Plaintiff testified that she attended two or three of his criminal proceedings and she provided a victim impact statement. (Kuriakose Dep. 80:1-13.) Bou-Assaly never returned to the VA. (Kuriakose Dep. 78:13-79:25.)

         After her report to the VA Police on January 10, 2014, Plaintiff did not make any further attempt to contact the EEO office until February 18, 2014, when Plaintiff emailed Diana Cass. (Cass Dep. 68:24-69:6.) She arranged to meet Cass the next morning in Cass's office. (Cass Dep. 70:12-72:7.) Despite the fact that Plaintiff had only had a brief interaction with Cass on January 10, 2014, when Cass escorted Plaintiff to the VA Police to file her report, Plaintiff explained that she did not contact Cass (or anyone at EEO) sooner because she was under the impression that Cass “knew what was going on” and “was handling things” and would get back to Plaintiff. (Kuriakose Dep. at 75:24-76:21.) Plaintiff believes that she told Cass on January 10, when they met briefly at the VA police office, that she wanted to file an EEO complaint. Plaintiff can't remember if she used those exact words but she assumed that Cass was working on preparing the EEO complaint. Plaintiff acknowledges that she did not try to get in contact again with Cass until February 18, 2014, when she sent her an email asking to meet. (Id. at 91:11-94:16.)

         On February 19, 2014, Plaintiff met with Cass in Cass's office and told her she wanted to file an EEO complaint. At the February 19, 2014, meeting with Cass, Plaintiff explained in great detail all that had occurred and Cass took notes. Plaintiff kept asking “is there paperwork I should sign, ” because she thought Cass was preparing an EEO Complaint. But Cass said “I'll take care of it. I'll give it to you.” All along Plaintiff thought she was dealing with an EEO officer and that Cass was preparing an EEO Complaint. (Id. at 94:15-95:19.) Plaintiff requested a second meeting with Cass on February 25, 2014.

         At a February 26, 2014 meeting with Cass, Plaintiff still believed that Cass was preparing her EEO Complaint. Cass recalls that Plaintiff handed her a list of complaints about Dr. Krishnamurthy, inappropriate questions Plaintiff believed Dr. Krishnamurthy was asking her, and a complaint about a reassignment of her workstation that Plaintiff felt was unfair. (Cass Dep. 75:12-77:5.) Cass could not recall specifically what was discussed regarding the EEO complaint process but Cass does not handle the processing of EEO complaints and she would have given Plaintiff a copy of the brochure that sits on her desk that maps out the process to be followed to file an EEO complaint, a process that must be initiated with a call ORM. Cass would have explained that Plaintiff could not file an EEO complaint with Cass. (Cass Dep. 77:6-78:15.) Cass does not recall asking Plaintiff about the basis of her complaint because that is “personal” and something that would be set forth by the employee through the EEO complaint process. (Cass Dep. 78:16-80:7.) Cass explained that her only role is to provide employees with the EEO brochure - she does not take EEO complaints. The process clearly requires employees to call ORM to initiate the process. (Cass Dep. 80:8-81:1.)

         Plaintiff first spoke with an attorney, a family friend, Harsha Gowda, in February 2014 about her claims. Gowda recommended that Plaintiff contact the Rasor law firm. (Kuriakose Dep. at 80:14-81:17.) Plaintiff testified that she spoke with Gowda after her report to the VA police on January 10, 2014, but she could not recall if she spoke to Gowda before or after she emailed Cass on February 18, 2014. (Id. at 82:10-84:2.) Plaintiff recalled that at the time of her meeting with Cass on February 26, 2014, she had spoken with attorney Gowda because she remembers telling him she was going to meet with the compliance officer. (Id. at 97:11-98:7.) Sometime around February 26, 2014, the VA attempted to change Plaintiff's tour-of-duty hours and her workstation. Plaintiff did not want to move her workstation and was afraid that the new hours would require her to be on duty after 4:30 p.m. ...

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