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Roiger v. Veterans Affairs Health Care System

United States District Court, D. Minnesota

February 12, 2019

Kenneth A. Roiger, Plaintiff,
Veterans Affairs Health Care System; Robert Wilke, Director, Department of Veterans Affairs; Patrick Kelly, Director, Veterans Affairs Medical Center Minneapolis; Darwin G. Goodspeed, Acting Director, Veterans Affairs Medical Center Minneapolis; Kent Crossley, Chief of Staff, Veterans Affairs Medical Center Minneapolis; and Jon Power, Privacy Officer, Veterans Affairs Medical Center Minneapolis, Defendants.

          Graham M. Martin, Trautmann Martin Law PLLC, Minneapolis, MN, for plaintiff Kenneth A. Roiger.

          Bahram Samie, Ana Voss, and Erica H. MacDonald, United States Attorney's Office, Minneapolis, MN, for defendants Veterans Affairs Health Care System, Robert Wilke, Patrick Kelly, Darwin G. Goodspeed, Kent Crossley, and Jon Power.


          Eric C. Tostrud United States District Court

         Plaintiff Kenneth A. Roiger (“Roiger”) worked for the Department of Veterans Affairs Health Care System (“VA”) in Minneapolis from July 2002 until September 2008, when his employment was terminated. Roiger has several grievances concerning his VA employment and his ultimate termination, and he asserts three claims against Defendants in this case. First, Roiger brings a Federal Tort Claims Act (“FTCA”) claim, alleging he was wrongfully terminated because his termination was “without basis.” Second, Roiger says his termination violated the federal Rehabilitation Act because it was based on his disability. Third, Roiger alleges that his termination-and perhaps other adverse employment activities predating his termination-violated the Rehabilitation Act because they occurred in retaliation for complaints Roiger made to his union. Defendants seek dismissal of all three claims under Federal Rule of Civil Procedure (“Rule”) 12(b)(1). Essentially, Defendants contend Roiger failed to commence or exhaust necessary administrative procedures with respect to each claim and those failures deprive the Court of subject-matter jurisdiction to adjudicate his claims. Defendants alternatively seek dismissal of Roiger's third claim (for retaliation) pursuant to Rule 12(b)(6) on the ground that Roiger fails to plead facts to establish an essential element of this claim.

         Depending on the claim asserted, a plaintiff's failure to exhaust administrative remedies may establish either a bar to federal-court jurisdiction or an affirmative defense. If it is the former, then the plaintiff bears the burden to plead and prove exhaustion; if the latter, the defendant bears that burden. The Eighth Circuit has made clear that a failure to exhaust administrative remedies with respect to claims brought under the FTCA is jurisdictional, but that a failure to exhaust with respect to claims under the Rehabilitation Act is an affirmative defense and is not jurisdictional. Here, Roiger failed to-and it appears he cannot-plead that he exhausted administrative remedies with respect to his FTCA claim. That claim therefore must be dismissed for lack of subject-matter jurisdiction.

         Defendants' motion to dismiss Roiger's Rehabilitation-Act claims should not have been brought under Rule 12(b)(1) because Roiger's alleged failure to exhaust is not a jurisdictional defect with respect to these claims. For practical reasons benefitting all the Parties, however, Defendants' motion to dismiss these claims should be understood as having been brought pursuant to Rule 12(b)(6). With respect to this issue Defendants have produced evidence showing that Roiger did not exhaust administrative remedies. Because Defendants' evidence is outside the pleadings, it cannot be considered without treating the motion as one for summary judgment, and because that step makes both legal and practical sense, the better procedure is to afford Roiger further opportunity to respond and to submit his own evidence. A decision on Defendants' motion to dismiss Roiger's Rehabilitation-Act claims will occur after Roiger has filed his response.


         Roiger is a veteran of the armed forces. Second Am. Compl. ¶ 10 [ECF No. 15]. He began working at the Minneapolis VA in July 2002. Id. ¶ 11. Roiger alleges that he worked in four areas during his VA employment. “He began in the file room, and nine months later was promoted to Release of Information.” Id. He was reassigned to the Urgent Care Department in the fall of 2004. Id. ¶ 12. At some point during the summer of 2008, Roiger was transferred to work in the file room of the Radiology Department. Id. ¶¶ 28-29.

         Roiger alleges several complaints regarding his VA employment. In December 2004, Roiger “was given a Last Chance Agreement” that was not supposed to last for more than one year. Id. ¶ 13. According to Roiger, if he made it twelve months without further incident, then the misconduct giving rise to the Last Chance Agreement could no longer form the basis for a termination of his employment, and allegations subsequent to the expiration of the agreement were to be treated as “new and separate actions.” Id. ¶ 14. Roiger alleges that his supervisors unilaterally extended the duration of the agreement beyond its original expiration date. Id. ¶ 16. Roiger also alleges that his title and salary were at the “GS-3” level, but that he was assigned-and expected to meet-job duties corresponding to a “GS-6.” Id. Roiger asked for a review of his situation and demanded additional “back pay” for working above his pay grade, but his requests were ignored. Id. ¶¶ 17-18, 20.

         In response to these issues, Roiger contacted his union for help, and he alleges that several adverse actions ensued. Id. ¶¶ 17, 22. Roiger alleges that, at the same time he was contacting his union representatives, other VA employees “were improperly accessing [his] medical records.” Id. ¶ 22. Roiger also alleges that in the summer of 2008, one of his supervisors, “after being informed of [Roiger's] continued contact with his Union representatives, ” filed a false police report concerning Roiger. Id. ¶ 26. According to Roiger, the supervisor improperly accessed his medical records “to provide a basis for his unsubstantiated police report.” Id. ¶ 27. Roiger further alleges that in August 2008, his supervisor referred him for evaluation by a certified nurse practitioner and a blood-alcohol test, and he says these tests came back negative. Id. ¶¶ 29-31.

         Since the spring of 2007, in addition to working at the VA, Roiger had been receiving treatment there for alcoholism and other conditions. Id. ¶¶ 20-21. In September 2008, one of Roiger's treating physicians placed Roiger on emergency medical leave in response to an adverse reaction the physician believed Roiger was having to a prescribed medication. Id. ¶ 35. While Roiger was home on medical leave, his VA employment was terminated, purportedly because Roiger had tested positive for alcohol use. Id. ¶ 36. Roiger denies ever testing positive for alcohol use and alleges that he has not used alcohol or drugs at any time relevant to his claims in this case. Id. ¶¶ 55, 58. He also alleges that “Defendants have provided no records of a positive test for alcohol consumption or drug use from the autumn of 2008.” Id. ¶ 37.

         Roiger alleges that he retained counsel to pursue his remedies in early February 2009. Id. ¶ 38. In an effort to obtain background documents from the VA, Roiger's counsel filed eleven requests under the Freedom of Information Act (“FOIA”) beginning in January 2011 and ending in February 2018. Id. ¶ 39. Roiger alleges that defendants were “hiding the ball” in response to some of his counsel's requests and that it was only after making an appeal with the office of then-United States Representative Keith Ellison that responsive information was produced. Id. ¶¶ 40-41. Roiger commenced this action in March 2018, more than nine years after he retained counsel to pursue his legal rights in connection with the termination of his VA employment. See Id. ¶ 38; Compl. [ECF No. 1].



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