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Roiger v. Veterans Affairs Health Care System

United States District Court, D. Minnesota

May 28, 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 Judge

         Plaintiff Kenneth A. Roiger claims that the September 2008 termination of his employment with the Department of Veterans Affairs Health Care System (“VA”) in Minneapolis violated the Rehabilitation Act, 29 U.S.C. § 701, et seq. Roiger acknowledges he failed to exhaust administrative remedies before the Equal Employment Opportunity Commission with respect to his Rehabilitation-Act claims and that this failure ordinarily would bar him from pursuing these claims. Roiger argues nonetheless that his failure to exhaust should be excused under either the futility or legal question exception to the exhaustion requirement. But the facts and arguments Roiger presents do not establish either exception, warranting the entry of summary judgment on his Rehabilitation-Act claims.


         A brief recap helps in understanding the procedural posture of this case. Roiger asserted three claims against all Defendants stemming from the September 2008 termination of his employment with the VA-one claim under the Federal Tort Claims Act (“FTCA”) and two claims under the Rehabilitation Act. Second Am. Compl. ¶¶ 43-70 [ECF No. 15]. Defendants moved to dismiss all three of Roiger's claims for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) based upon his failure to exhaust administrative remedies. ECF Nos. 21, 24. Defendants' motion was granted as to Roiger's claim under the FTCA because the FTCA's exhaustion requirement is jurisdictional, and Roiger failed to plead that he had exhausted administrative remedies with respect to that claim. Roiger v. Veterans Affairs Health Care Sys., No. 18-cv-591 (ECT/TNL), 2019 WL 572655, at *3-5 (D. Minn. Feb. 12, 2019). Defendants' motion was adjudicated differently with respect to Roiger's two claims under the Rehabilitation Act. Because the Eighth Circuit has said that the requirement to exhaust administrative remedies is not a jurisdictional bar to a claim under the Rehabilitation Act but operates instead like an affirmative defense, Ballard v. Rubin, 284 F.3d 957, 964 n.6 (8th Cir. 2002), and to promote the just, speedy, and inexpensive determination of this action, Fed.R.Civ.P. 1, Defendants' motion was treated as one asserted under Rule 12(b)(6). Roiger, 2019 WL 572655, at *7. Then, because Defendants requested consideration of matter outside the pleadings, the motion was treated as one for summary judgment under Rule 56. Id. at *8. To ensure Roiger had “a reasonable opportunity to present all the material that is pertinent to the motion, ” Fed.R.Civ.P. 12(d), Roiger was ordered to “present and file all the material not already on file, if any, that he deems pertinent to” summary judgment. Roiger, 2019 WL 572655, at *9. Roiger has since done that, ECF Nos. 33, 34, and Defendants have responded, ECF No. 36. Roiger's supplemental submission shows facts that were not on file initially in opposition to Defendants' motion.

         Roiger executed a “last-chance agreement”[1] in late July 2008.[2] Martin Decl. Ex. B [ECF No. 34 at 4-7]. Under the agreement, Roiger accepted a series of conditions in consideration for retaining his VA employment. Id. Some conditions imposed rules on Roiger's workplace conduct. Id. at 2 ¶¶ a-h. For example, Roiger agreed “that there will be no examples of inappropriate comments, gestures, or other behaviors that staff members, visitors, or patients, may reasonably find offensive” and “that there will no [sic] physical posturing, glaring, or inappropriate elevation of my voice.” Id. at 2 ¶¶ d-e. Other conditions waived legal rights. Two paragraphs are noteworthy in this respect:

i. If I fail to adhere to my part of this contract, I understand that I will be removed from the Federal Service. I agree that I have hereby waived all substantive, statutory and procedural rights to appeal, to include appeals to Merit Systems Protection Board (MSPB), Grievance/Arbitration, and to any appeal outside the Medical Center.
j. I am not presently contemplating any allegations of discrimination against the Department of Veterans Affairs or any of its officials. I hereby agree to waive any right to appeal via the agency EEO process, and to the EEOC, regarding any issue(s) or incident(s) that occurred on or before the date of this agreement.

Id. at 3 ¶¶ i-j. The last-chance agreement was to have been effective for two years from the date Roiger signed it. Id. at 4. The agreement also was signed by Roiger's union representative and the Medical Center Director of the Minneapolis VA, Steven Kleinglass. Id.

         Roiger's union, the American Federation of Government Employees Local 1969, submitted a grievance on his behalf on August 21, 2008. Martin Decl. Ex. C [ECF No. 34 at 8-9]. In his supplemental brief, Roiger says this grievance “included the incident that eventually gave rise to [his] termination.” Pl.'s Supp. Mem. at 3 [ECF No. 33]. The grievance alleged that a “former supervisor” of Roiger's violated Roiger's privacy by asking for information explaining why Roiger “was sent to employee health.” Martin Decl. Ex. C at 1. The grievance asserted that the former supervisor's inquiry violated Roiger's privacy and the confidentiality of his health information and “exacerbated pre existing conditions” from which Roiger suffered. Id. The grievance sought assurances that the VA “cease with this behavior of invading any employee's private health information, ” an ethics investigation related to the grievance, “appropriate action” against the former supervisor, and assurances that Roiger would not be subjected to “this or any other type of harassment” again. Id.

         The termination of Roiger's VA employment, and the reasons for the termination, were documented by Medical Center Director Kleinglass in a letter addressed to Roiger dated September 24, 2008. Martin Decl. Ex. D [ECF No. 34 at 10-11]. Regarding the reason for the termination, Kleinglass wrote that he “ha[d] been advised that August [sic] 20, 2008, [Roiger was] referred to the Occupational health [sic] Section for a fitness for duty evaluation by [his] new supervisor. A drug test was completed by chain of custody. A report has been issued that confirms a positive drug test result.” Id. ¶ 3. Because the positive drug test violated Roiger's last-chance agreement, Kleinglass wrote that Roiger would “be removed from the Federal Service, effective immediately.Id. ¶ 5. Kleinglass also wrote: “Via the [last-chance agreement], you have waived all appeals rights related to this action.” Id. ¶ 6. Roiger acknowledged receipt of the letter by signing it on September 25, 2008. Id. at 2.

         Roiger's supplemental submission also includes a letter dated October 14, 2008, regarding a “Step I Grievance for Ken Roiger.” Martin Decl. Ex. E [ECF No. 34 at 12]. Roiger asserts that this letter responds to a grievance he attempted to file with the assistance of his union after his employment was terminated. Pl.'s Supp. Mem. at 3. The letter was authored by the Minneapolis VA's Director, Human Resources Management Service, Richard Erredge. Martin Decl. Ex. E at 1. In the letter, Erredge described how, as the result of a late-September conversation between a VA representative and a representative of the union, the parties agreed that the grievance originally had been filed with the wrong department within the VA, “Imaging, ” and would be re-filed with the correct department, the “Business Office.” Id. ¶ 1. Erredge continued on to explain, however, that the grievance had not been re-filed as agreed and that, as a result, “HR is considering the matter closed.” Id. ¶ 2.

         The remaining three documents Roiger submitted are dated more than nine years after the termination of his employment. The first is a letter to Roiger from a VA Human Resources Officer dated November 27, 2017. Martin Decl. Ex. F [ECF No. 34 at 13]. The letter addressed the status of the VA's response to Roiger's document requests under the Freedom of Information Act, reminded Roiger that he “had previously waived [his] appeal rights per the . . . Last Chance Agreement, ” acknowledged Roiger's interest in applying for a new position with the VA, and instructed him how to begin that process. Id. The remaining ...

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