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Gesinger v. Burwell

United States District Court, D. South Dakota, Northern Division

September 28, 2016



          CHARLES B. KORNMANN, United States District Judge


         Plaintiff, Ruth Gesinger, began working as a registered nurse for the Indian Health Service ("IHS") on February 10, 2010, in Eagle Butte, South Dakota. In July of 2010, plaintiff experienced panic attacks and suffered a mental breakdown. Management at IHS noticed plaintiff was in a depressive mood and advised her to seek treatment. Plaintiff was later treated at an inpatient unit within IHS. Thereafter, plaintiff was referred to Manlove Psychiatric Clinic in Rapid City, South Dakota, where she was diagnosed with Bipolar Type 2 Disorder, depression, and anxiety. On April 1, 2011, plaintiff was fired. Plaintiff filed a complaint with the Equal Employment Opportunity Commission, ("EEOC") claiming she was disabled and was fired as a result of her disability.

         On September 21, 2012, an administrative law judge for the EEOC, Judge Hamilton, determined plaintiff had established disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Judge Hamilton ordered the Department of Health and Human Services ("Agency") to offer plaintiff reinstatement at IHS, or to some other mutually agreeable position or location, within 30 days. The order further directed defendant to give plaintiff a minimum of 30 days from receipt of the offer within which to accept or decline the offer. Defendant was given 60 days to determine and provide plaintiff back pay and benefits, including health insurance. Plaintiff was awarded $10, 000.00 in punitive damages.

         On October 31, 2012, ten days past defendant's deadline, plaintiff received a letter from defendant, informing it would comply with the terms of Judge Hamilton's order. Plaintiff accepted the Agency's offer within 30 days. Plaintiff was given notice on January 11, 2013, to return to work at IHS on January 14, 2013. Plaintiff started working at IHS as a registered nurse for the Emergency Department on January 14, 2013. On May 15, 2013, plaintiff asserted she was subjected to a hostile work environment and was constructively discharged. PL's Compl., at ¶ 33. Plaintiff claims defendant intentionally discriminated and retaliated against her by:

(1) Failing to follow leave and on-call policies;
(2) Failing to consider extenuating circumstances, as required by defendant's employee handbook;
(3) Denying her requests for leave for medical appointments;
(4) Treating other similarly situated employees differently than plaintiff;
(5) Modifying plaintiffs SF50 Form;
(6) Failing to provide plaintiff with reasonable accommodations for her disability;
(7) Discrimination and retaliation for engaging in a protected activity; and
(8) Intentionally creating a hostile work environment.

Id. at ¶ 21.

         On July 15, 2013, Pauline Bruce, the Director of Diversity Management for Indian Health Services, provided a declaration regarding the status of the Agency's implementation of Judge Hamilton's order. Bruce declared that she had reviewed all the elements of the ALJ's decision and the Final Agency Decision, and found that each element had been fully implemented. Plaintiff filed a second administrative complaint with the EEOC on October 1, 2013, claiming she was discriminated and retaliated against based on her disability and prior EEOC activity.

         On February 26, 2014, plaintiff attempted to bring a claim to this Court alleging the Agency violated her rights under the Americans with Disabilities Act ("ADA"). This Court ruled that plaintiff had specifically pleaded claims under the ADA, not the Rehabilitation Act, and, therefore, lacked subject matter jurisdiction. Gesinger v. Sebelius, Civ. No. 13-1004, Doc. 16, p. 4. This Court also found that plaintiff had failed to exhaust her administrative remedies to her claim of discrimination and retaliation in violation of the Rehabilitation Act. Id.

         On March 19, 2014, the Agency issued its Final Administrative Decision on plaintiffs second administrative complaint, dismissing it on procedural grounds because she was simultaneously proceeding with the matter in district court. Plaintiff appealed the decision to the EEOC Office of Federal Operations and, on June 4, 2014, the Agency reversed its position and accepted plaintiffs second administrative complaint. On February 12, 2015, the Agency issued its Final Administrative Decision on plaintiffs second administrative complaint. The Agency found that plaintiff had not been discriminated or retaliated against based on her disability or protected activity.

         Plaintiff filed a complaint with this Court on March 16, 2015, asserting the Agency discriminated against her under the ADA and retaliated and discriminated against her under the Rehabilitation Act. Defendant has filed a partial motion to dismiss and a motion in support of summary judgment.


         1. Subject Matter Jurisdiction

         "Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. U.S., 4 F.3d 643, 646 (8th Cir. 1993), (citing Bender v. Williams-Port Area School Dist., 475 U.S. 534, 541, reh 'g denied 476 U.S. 1132 (1986)), (citing in turn Marbury v. Madison, 5 U.S. (1 Cranch) 137 2 L.Ed. 60 (1803)). "The threshold inquiry in every federal case is whether the court has jurisdiction, " and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir. 1964); Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987).

         Defendant asserts the Court lacks subject matter jurisdiction to hear a claim of discrimination under the ADA. Defendant has moved to dismiss pursuant to Fed.R.Civ.P. 12(h)(3) and under Fed.R.Civ.P. 12(b)(6). Fed.R.Civ.P. 12(h)(3) states: "If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3). A Rule 12(h)(3) motion to dismiss is evaluated under the same standards as a motion to dismiss pursuant to Rule 12(b)(1). Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 879 n.3 (3rd Cir. 1992). A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the complaint. "To avoid dismissal, a complaint must allege facts sufficient to state a claim as a matter of law and not merely legal conclusions." Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001) (citation omitted). Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The burden of establishing that a cause of action lies within the jurisdiction of the federal courts is on the party asserting jurisdiction." Arkansas Blue Cross and Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir. 2009). In this case, plaintiff has the burden of establishing that subject matter jurisdiction exists. It is not the responsibility of defendant to prove otherwise. Titus v. Sullivan, 4 F.3d 590, 593 n.1 (8th Cir. 1993).

         The Court will address defendant's motion to dismiss under Fed.R.Civ.P. 12(h)(3) first because "if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1350, p. 548 (1969). cf. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction).

         The United States and its agents have not waived sovereign immunity to bring a discrimination claim under the ADA. "Sovereign immunity is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475, (1994). To sue the United States or an agency of the United States, plaintiff must "show both waiver of sovereign immunity and a grant of subject matter jurisdiction." VS Ltd. Partnership v. Department of Housing and Urban Development, 235 F.3d 1109, 1112 (8th Cir. 2000). Plaintiff failed to address this issue in her memorandum. The provision of the ADA providing definitions for terms explains: "The term 'employer' does not include the United States, a corporation wholly owned by the government of the United States, or an Indian tribe." 42 U.S.C.A. § 12111 (West). Plaintiff, in her complaint, acknowledges that the "defendant is a federal agency ..." PL's Compl., ¶ 7. Therefore, this Court lacks subject matter jurisdiction to adjudicate plaintiffs claim of discrimination in violation of the ADA.

         2. Exhaustion of Administrative Remedies

         Defendant has filed a motion to dismiss all claims which stem from the period before plaintiff was reinstated on January 14, 2013, because plaintiff has failed to exhaust her administrative remedies. Defendant argues plaintiff could have appealed to the Merit Systems Protection Board ("MSPB") for a determination as to whether the Agency has complied with the terms of Judge Hamilton's order. Plaintiff argues she has exhausted her administrative remedies because the Agency issued its Final Agency Decision, which expressly acknowledges her right to file a civil action in federal district court.

         Plaintiff has exhausted her administrative remedies in regard to her claims of discrimination and retaliation under the Rehabilitation Act. "Administrative remedies must be exhausted before a federal employee may bring an employment discrimination claim against a federal employer." McAlister v. Secretary of Dept. Health and Human Services, 900 F.2d 157, 158 (8th Cir. 1990) (citing Morgan v. United States Postal Service, 798 F.2d 1162 (8th Cir.1986)). Plaintiff, in her second administrative complaint, asserted a discrimination and retaliation violation under the Rehabilitation Act. On February 12, 2015, the Agency issued its Final Agency Decision in response to plaintiffs ...

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