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Buckhanan v. Shinseki

United States District Court, Fifth Circuit

October 3, 2013



TOM S. LEE, District Judge.

This cause is before the court on a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure filed by defendants Erik K. Shinseki, in his official capacity as Secretary of the United States Department of Veterans Affairs; Veterans Administration Medical Center/Jackson G.V. "Sonny" Montgomery Medical Center (VA Medical Center);[1] Joe Battle, in his individual capacity and his official capacity as Director of the VA Medical Center; and Charles Donelson, in his individual capacity and his official capacity as supervising police sergeant at the VA Medical Center. Plaintiff Alice Buckhanan has responded to the motion and the court, having considered the memoranda of authorities submitted by the parties, concludes the motion should be granted.

In November 2012, plaintiff Alice Buckhanan was terminated from her employment as a police officer with the Jackson VA Medical Center, for the ostensible reason that she had twice failed to pass required firearms proficiency testing. She brought the present action, asserting causes of action for (1) retaliatory discharge for filing an EEO complaint; (2) retaliatory discharge for filing a workers' compensation action; (3) discrimination based on race; (4) discrimination based on gender; (5) discrimination based on age; (6) breach of employment contract; (7) breach of conditions of employment; (8) hostile work environment; and (9) negligent and intentional infliction of emotional distress. By their motion, defendants seek dismissal of all plaintiff's claims against defendants Battle and Donelson and for dismissal of her claims for hostile work environment, retaliation based on filing a workers' compensation claim, and for breach of contract, breach of conditions of employment and intentional and negligent infliction of emotional distress, against all defendants.[2]

Facts and Procedural History

The facts, as alleged in the complaint, are as follows. Plaintiff became employed as a police officer with the VA Medical Center in 2002. In 2010, plaintiff filed an EEO claim for race and gender discrimination. Thereafter, in March 2011, she suffered a compensable work-related injury for which she was assigned to alternate duty for approximately a year. In March 2012, she began the process of transitioning back to a law enforcement position, by which she was required to undergo physical and psychological evaluations and to be tested in firearms proficiency. She passed her physical examination. She also passed her psychological evaluation, but only after she requested an independent evaluation when it became apparent to her during her initial evaluation by a Dr. Williams that someone (whom she later determined to be defendant Donelson) had given Dr. Williams false and negative information about her.

Plaintiff alleges that on May 18, 2012, immediately upon the VA's confirming that she had passed her physical and psychological evaluations, she was required to undergo firearms testing without reasonable notice and time to prepare. She claims that under applicable policy, she was entitled to take a refresher course prior to testing since she had been out of law enforcement for more than six months due to her injury, and yet she was not given this opportunity. Plaintiff asserts that during the written portion of the firearms test, she was falsely and publicly accused of cheating without any basis. She further alleges that although defendants later claimed when terminating her that she had failed three attempts at the shooting portion of the test, in fact, she was given only one attempt, rather than three, as was the standard training and testing given to all employees.

Plaintiff states that after the incomplete firearms testing in May, which was done in Jackson, she was required to travel to the Law Enforcement Training Center in Arkansas for additional firearms testing; and while she complained that her work and the travel schedule required her to arrive without adequate time for rest before commencing training and testing, and further complained that she believed she was being discriminated against because of her race and gender, no effort was made to accommodate her travel and work schedule. During the testing in late June 2012, plaintiff was required to score a forty out of fifty on at least one of three qualifying attempts in order to achieve a passing score. She failed to qualify, however, as her highest score was thirty-nine, which she scored on two of the three targets. Plaintiff notes that there was extended discussion between the scoring instructors about the number of hits and complains that she was not allowed to inspect the targets herself to ascertain whether she was given the correct scores.

In early July, plaintiff was placed on administrative leave, followed closely by a proposal for her termination, ostensibly for having twice failed to pass the firearms proficiency testing. Plaintiff claims this was false, as she had not completed the first round of testing and thus had failed firearms testing only once. She asserts that having failed the test only once, she was entitled to be placed on a plan of improvement prior to termination, and yet this did not occur. She claims that when she challenged her proposed termination on this basis, defendants refused to allow her to retest unless she would execute a waiver of any pending and potential claims, including her then-pending EEO complaint.

On October 15, 2012, just two weeks after a ruling was issued denying her EEO complaint, plaintiff was advised by letter that on account of her failure to qualify with firearms on two occasions, she would be terminated effective November 2, 2012. Plaintiff concludes that defendants had no legitimate basis to terminate her and that the decision was made in retaliation for having filed an EEOC claim and because she is a black woman over the age of forty, and was made in retaliation for her having filed a workers' compensation claim. She alleges additionally that even after her effective termination date, defendants continued their "aggressive retaliation and discrimination" by falsely informing the Mississippi Department of Employment Security that she had been terminated for misconduct. This necessitated an appeal by plaintiff to secure unemployment compensation benefits.

Following her termination, plaintiff filed an appeal to the Merit Systems Protection Board (MSPB) alleging she was improperly terminated because of her age, race and gender and in retaliation for filing an EEO claim, and in retaliation for filing a workers' compensation claim. The MSPB's decision, issued March 26, 2013, determined that plaintiff was not improperly removed from her position, and that her removal was not based on age, race or gender discrimination and was not in retaliation for filing an EEO complaint. Plaintiff filed the present action on May 8, 2013, a week after the MSPB's decision became final on April 30, 2013.

Plaintiff's Claims

Workers' Compensation Retaliation

Defendants argued in their motion that plaintiff's claim that she was terminated in retaliation for filing a workers' compensation claim must be dismissed for failure to exhaust administrative remedies. In response, plaintiff pointed out that while the ruling issued by the MSPB did not address this claim, she did properly raise the issue in the administrative proceeding, as evidenced by her prehearing submission to the MSPB in which she specifically identified the following as an issue for decision: "Was the basis for termination claimed the Agency genuine, or was it a pretext used to retaliate against the Appellant for making a Worker's Compensation claim?" In light of plaintiff's response, defendants concede in their reply that plaintiff raised before the MSPB the issue of her termination as retaliation for filing a workers' compensation claim. However, they submit that although exhaustion may not be a basis for dismissal, plaintiff's cause of action for retaliatory discharge based on her workers' compensation claim must nevertheless be dismissed for another reason, namely, that plaintiff cannot proceed under Title VII or the ADEA for retaliation allegedly based on filing a workers' compensation claim since filing a workers' compensation claim is not protected activity under Title VII or the ADEA. Indeed, it is evident that filing a workers' compensation claim is not protected activity under Title VII or the ADEA. See Tratree v. BP North American Pipelines, Inc. , 277 Fed.Appx. 390, 396 (5th Cir. 2008) (ADEA provides protection against retaliation for complaining of age discrimination); Armstrong v. K & B Louisiana Corp., 488 Fed.Appx. 779, 781 (5th Cir. 2012) (Title VII protected activities include opposing any practice deemed an unlawful employment practice under Title VII or making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII). However, plaintiff does not bring this claim based on Title VII or the ADEA, but rather as a state law claim for wrongful termination.[3] Aside from the fact that Mississippi does not recognize retaliatory discharge for filing a workers' compensation claim, this claim is not cognizable in any event as it is preempted by the Civil Service Reform Act (CSRA), 5 U.S.C. ยง 1101, et seq.

The CSRA "provides a comprehensive framework for the judicial and administrative review of prohibited personnel actions taken against federal employees and applicants for federal employment." Crawford v. United States Dept. of Homeland Sec. , 245 Fed.App'x 369, 374 (5th Cir. 2007). The Fifth Circuit has held that in view of the remedial system set forth in the CSRA, the CSRA provides the exclusive remedy for claims against federal employers for conduct constituting "prohibited personnel practices, " and "preempts any judicial remedy for such claims." Schwartz v. International Federation of Professional and Technical Engineers, AFL-CIO , 306 Fed.Appx. 168, 172, 2009 WL 62236, 2 (5th Cir. 2009) (emphasis added). "In fact, a federal employee's personnel-related complaints are preempted even if no remedy [is] available... under the CSRA.'" Mangano v. U.S. , 529 F.3d 1243, 1246 (9th Cir. 2008) (quoting Collins v. Bender , 195 F.3d 1076, 1079 (9th Cir. ...

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