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Boyte v. Shulkin

United States District Court, M.D. Tennessee, Nashville Division

February 14, 2018



          ALETA A. TRAUGER United States District Judge.

         Pending before the court is a Motion to Dismiss or, in the Alternative, for Summary Judgment, (Docket No. 46) filed by the defendant, David J. Shulkin, M.D., Secretary, Department of Veteran Affairs (“DVA”), to which the plaintiff, Barbara Boyte, has filed a Response in opposition (Docket No. 51), and DVA has filed a Reply (Docket No. 52). For the reasons discussed herein, the motion will be granted in part and denied in part.


         Boyte was employed at a DVA medical center in Nashville as an RN II, Step 12 level nurse. She suffers from a hearing impairment that increases her susceptibility to MRSA. In 2015, Boyte requested accommodations due to her disability. She provided medical documentation delineating her limitations: specifically, she needed a position that did not require direct contact with patients. Because Boyte was no longer able to perform the essential functions of her job, DVA offered to seek a suitable position for her. The parties engaged in the interactive process, with DVA requesting that Boyte attain medical assurance from her doctor that certain positions would comport with her limitations. When Boyte did not provide such assurance, DVA notified her that it would consider her for positions consistent with her original medical documentation. Boyte thereafter informed DVA that she would not consider positions at locations besides the Nashville medical center, where she was employed, unless she received travel relocation expenses. Because DVA does not authorize such expenses as a matter of course, it limited its search to medically suitable positions at its Nashville medical center.

         On September 18, 2015, DVA emailed Boyte an offer of reassignment to a GS4 Step 10 position, file clerk/scanning specialist. Boyte responded on September 21, 2015, stating that the offer of reassignment was unacceptable and threatening legal action if DVA did not provide a more favorable offer. DVA responded the following day, reminding Plaintiff that she “ha[d] 45 calendar days from the date [she] became aware of the discriminatory action or the date it occurred to contact an Equal Employment Opportunity (“EEO”) counselor with the Office of Resolution Management (“ORM”).” DVA included with its response an ORM chart describing the EEO complaint process, a toll free telecommunications-device-for-the-deaf phone number, and a web address for initiating ORM contact.

         On October 2, 2015, Boyte accepted the offer of reassignment, writing on the acceptance form that she was accepting under protest. The reassignment became effective October 4, 2015. On October 8, 2015, Boyte requested to be reassigned to Nursing Coordinator for Performance Measurements, a position comparable in level to her previous role. DVA informed Boyte that she would have to apply for the position competitively, as she was not eligible for another medical accommodation. On November 20, 2015, 47 days after her reassignment became effective, Boyte initiated contact with an EEO counselor.

         On February 26, 2016, Boyte filed a formal Complaint of Employment Discrimination.

         ORM granted a Notice of Partial Acceptance on April 14, 2016. ORM found that independent claims based on the following events were time-barred under agency regulations:

(Event 3) on July 27, 2015, [Plaintiff] was temporarily detailed to the Patient Safety Program, Nashville campus;
(Event 5) on September 23, 2015, [Plaintiff's] detail was extended until October 1, 2015;
(Event 6) on October 2, 2015, [Plaintiff] was denied [the] opportunity to remain as a nurse, or be reassigned to identified, comparable positions when she signed the [OR] under protest; and
(Event 7) on October 4, 2015, [Plaintiff] was reassigned from a Registered Nurse [RN] position to a Scanning Specialist position.

         On October 26, 2016, Boyte brought suit in this court, alleging failure to accommodate, retaliation, and hostile work environment under the Rehabilitation Act, 29 U.S.C. § 791 (“RHA”), [2] disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (“ADA”), retaliation under Title VII, 42 U.S.C. § 2000e, violation of her due process rights under 42 U.S.C. § 1981, and “[v]iolations of the Equal Pay Act, 42 U.S.C. 2000-a, 42. U.S.C. 2000e-5 as amended.” (Docket No. 43.)

         LEGAL ...

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