United States District Court, D. Minnesota
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.
M. Martin, Trautmann Martin Law PLLC, Minneapolis, MN, for
plaintiff Kenneth A. Roiger.
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.
MEMORANDUM OPINION AND ORDER
C. Tostrud United States District Court
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.
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
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.
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.
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.
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.
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.
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].