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.
OPINION AND ORDER
C. Tostrud United States District Judge
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.
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'
executed a “last-chance agreement” in late July
2008. 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.
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.
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.
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.
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 ...