United States District Court, M.D. Tennessee, Nashville Division
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
before the Court are Defendant's Motion to Dismiss
Plaintiff's Second Amended Complaint (Doc. No. 65);
Plaintiff's Response (Doc. No. 70); and Defendant's
Reply (Doc. No. 84). For the reasons set forth herein,
Defendant's Motion (Doc. No. 65) is
GRANTED, in part, and
DENIED, in part.
Factual and Procedural Background
filed the Complaint (Doc. No. 1) in this case, which was
originally assigned to Judge Aleta A. Trauger, on September
11, 2015, and filed an Amended Complaint (Doc. No. 17) on
February 9, 2016. Through the Amended Complaint, Plaintiff
alleged the Secretary of the United State Department of
Veterans Affairs (“the VA”), in his official
capacity, violated her rights under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621;
Title VII of the Civil Rights Act of 1964, 41 U.S.C.
§§ 2000, et seq.; and the Tennessee Public
Protection Act, Tenn. Code Ann. § 50-1-304. Defendant
subsequently filed a motion to dismiss the Amended Complaint,
which was granted in part and denied in part by Judge
Trauger. (Doc. Nos. 31, 32). Judge Trauger granted the motion
with regard to Plaintiff's Tennessee Public Protection
Act claim, and with regard to Plaintiff's Title VII claim
based on national origin discrimination. Judge Trauger denied
the motion to dismiss Plaintiff's ADEA claim on
exhaustion grounds. Judge Trauger also granted permission for
Plaintiff to file an amended complaint, and on June 29, 2016,
Plaintiff filed the Second Amended Complaint (Doc. No. 36).
The case was subsequently transferred to the undersigned
Judge. (Doc. No. 51). After the case was transferred,
Defendant filed the pending motion seeking to dismiss the
Second Amended Complaint.
Second Amended Complaint mirrors the Amended Complaint,
except that it deletes the allegations about the Tennessee
Public Protection Act, the reference to national origin
discrimination in connection with the Title VII claim, and
the request for prejudgment interest, and it adds a Title VII
The Standards Governing Motions To Dismiss
considering a motion to dismiss, a court must determine
whether the plaintiff has sufficiently alleged “a claim
to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). Well-pleaded factual allegations are accepted as
true and are construed in the light most favorable to the
nonmoving party. 129 U.S. at 1950: Mills v. Barnard,
869 F.3d 473, 479 (6th Cir. 2017).
the pending motion, Defendant seeks, once again, to dismiss
Plaintiff's ADEA claim on exhaustion grounds. Plaintiff
contends the exhaustion argument was already considered and
rejected by Judge Trauger, and alternatively, that her
attempts to timely exhaust were thwarted by the VA.
Memorandum opinion, Judge Trauger concluded Plaintiff's
ADEA claim was timely exhausted based on a letter submitted
by Plaintiff in response to Defendant's motion (Doc. No.
28-2), which showed that Plaintiff attempted to contact the
Equal Employment Opportunity Commission (“EEOC”)
within 45 days of her adverse employment action. (Doc. No.
31, at 6). Defendant now argues the letter relied on by Judge
Trauger was insufficient to establish timely exhaustion
because it was not addressed to the EEO counselor within the
VA, as required by 29 C.F.R. § 1614.105(a)(1).
Trauger's decision was issued on May 19, 2016. In the 22
months between the time the decision was issued and the case
was transferred to the undersigned, Defendant did not seek
reconsideration of the exhaustion ruling from Judge Trauger.
In addition, Defendant has not cited any language added in
the Second Amended Complaint that would necessitate
reconsideration of Judge Trauger's
decision. The Court notes the time limits upon which
Defendant relies in seeking dismissal are not jurisdictional.
See, e.g., 29 C.F.R. § 1614.604(c) (“The
time limits in this part are subject to waiver, estoppel and
equitable tolling.”); Steiner v. Henderson,354 F.3d 432, 435 (6th Cir. 2003) (“Indeed,
the forty-five day filing period is not a jurisdictional
prerequisite, and can be tolled where ...