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Sarwal v. Shulkin

United States District Court, S.D. Texas, Houston Division

July 14, 2017

LAXMI DEVI SARWAL, Plaintiff,
v.
DAVID SHULKIN, Secretary, U.S. Department of Veterans Affairs, Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge.

         Laxmi Devi Sarwal alleges that her former employer, the United States Veterans Affairs Medical Center, discriminated against her on the basis of her race (Asian Indian), her gender (female), her age (70), her color, and her Hindu religion, and in retaliation for her complaints. The Department of Veterans Affairs has moved to dismiss some of Sarwal's claims for failure to exhaust administrative remedies and has moved for summary judgment on her remaining claims. (Docket Entry Nos. 26, 27). Sarwal has not responded to either motion. Based on a careful review of the pleadings, motions, the record, and the relevant law, the court grants the VA's motions to dismiss and for summary judgment. (Docket Entry No. 26, 27). An order of dismissal is separately entered. The reasons for the rulings are set out below.

         I. Background

         Sarwal has worked as a staff assistant for the VA at the VA Medical Center in Houston, Texas since January 1996. (Docket Entry No. 25, Ex. 2 at 4). In February 2011, Sarwal filed a formal complaint with the VA's Office of Resolution Management. (Id., Ex. 1 at 264). She alleged race, gender, age, and religious discrimination after she was denied a pay increase and received a performance rating of “fully successful” rather than “exceptional.” (Id. at 265). (The VA uses performance ratings of “exceptional, ” “fully successful, ” and “unacceptable.”) (Id. at 220). In May 2014, the EEOC Administrative Law Judge granted the VA's motion for summary judgment on all the claims, and the Office of Employment Discrimination Complaint and Adjudication affirmed the ruling. (Id. at 258-71).

         In January 2013, Sarwal filed another formal complaint. (Id. at 587). She alleged that she was discriminated against because of her age and retaliated against for her complaints when she received a performance rating of “excellent” instead of “outstanding.” (Id. at 588). (The VA performance ratings on this form were “unacceptable, ” “minimally satisfactory, ” “fully sucessful, ” “excellent, ” and “outstanding.”) (Id. at 254). In May 2014, the EEOC Administrative Law Judge granted the VA's motion for summary judgment on these claims, and the Office of Employment Discrimination Complaint and Adjudication affirmed. (Id. at 581- 96).

         In December 2013, Sarwal filed another complaint. She had received a rating of “fully successful” rather than “outstanding” for her communication skills and performance. (Docket Entry No. 25, Ex. 1 at 1-8). She alleged this action was caused by discrimination on the basis of her race, gender, age, and national origin, and was in retaliation for her prior complaints. In June 2014, Sarwal filed another complaint alleging discrimination on the basis of race, gender, age, national origin, and color, and retaliation for her prior complaints. This complaint was based on the VA's downgrading her position from a GS-9 to a GS-5, lowering her performance ratings, removing some of her job duties, reprimanding and suspending her, and other behavior. (Id.). The Office of Employment Discrimination Complaint and Adjudication found that as a matter of law Sarwal had not shown discrimination, retaliation, or a hostile work environment. (Id. at 30). A notice of final agency action dismissing her complaint was issued on November 2, 2015. (Id. at 1-32).

         Sarwal filed this suit against the VA in January 2016. (Docket Entry No. 1). She reurged all the discrimination and retaliation complaints made in her EEOC and other agency filings, asserting claims under Title VII and the ADEA. She also alleged that she was subjected to a hostile work environment, in violation of Title VII and the ADEA. The VA moves to dismiss some of the claims for lack of subject-matter jurisdiction and moves for summary judgment on the remaining claims. (Docket Entry Nos. 26, 27). Sarwal has not responded to either motion. The parties' arguments and the record evidence are analyzed under the applicable legal standards.

         II. The Legal Standards

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. “A case is properly dismissed, for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Masidon, 143 F.3d 1006, 1010 (5th Cir. 1998). “Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

         The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff's cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. When a party challenges the allegations supporting subject-matter jurisdiction, the court has wide discretion to allow affidavits or other documents and to hold a limited evidentiary hearing to resolve disputed jurisdictional facts. See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015). The court may consider matters outside the pleadings to resolve factual challenges to subject-matter jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia, 104 F.3d at 1261.

         B. Summary Judgment

         “Summary judgment is required when ‘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.'” Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.'” Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         “Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Id. (quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is ‘material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response.” United States v. $92, 203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

         “Once the moving party [meets its initial burden], the non-moving party must ‘go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'” Nola Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d at 694). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary-judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice, 783 F.3d at 536.

         III. Analysis

         A. The Rule 12(b)(1) Motion to Dismiss

         The VA moves to dismiss Sarwal's claims arising from the events she alleged in her February 2011 and January 2013 administrative complaints. The VA contends that this court lacks subject-matter jurisdiction because Sarwal did not appeal the dismissals to the EEOC and because she filed suit too late.

         “There are two requirements for filing a Title VII action in federal court: 1) the complaint must be filed within the time allotted by Title VII, and 2) the complainant must first have exhausted her administrative remedies.” Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990). “There is disagreement in this circuit on whether a Title-VII prerequisite, such as exhaustion, is merely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject matter jurisdiction.”[1]Ruiz v. Brennan, 851 F.3d 464, 472 (5th Cir. 2017) (quoting Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006)). In Ruiz, the Fifth Circuit considered whether the judge erred dismissing the plaintiff's claims under Rule 12(b)(6) for failure to exhaust. Id. Because neither party argued waiver or estoppel, and “because the outcome would remain the same whether [the court] consider[ed] exhaustion to be a condition precedent or a jurisdictional prerequisite, ” the court did not need to “take sides in this dispute.” Id. The Fifth Circuit has affirmed dismissals under both Rules 12(b)(1) and 12(b)(6) when a plaintiff has failed to exhaust administrative remedies and does not argue waiver or estoppel as a defense to dismissal. Id. (affirming dismissal under ...


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