Bejar v. McDonald

601 F. App'x 628
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 3, 2015
Docket14-3154
StatusUnpublished
Cited by1 cases

This text of 601 F. App'x 628 (Bejar v. McDonald) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bejar v. McDonald, 601 F. App'x 628 (10th Cir. 2015).

Opinion

ORDER AND JUDGMENT *

CAROLYN B. McHUGH, Circuit Judge.

Dr. Jose M. Bejar brought this employment discrimination complaint under Title VII of the Civil Rights of Act 1964, 42 U.S.C. §§ 2000e-2000e-17, alleging that the United States Department of Veterans Affairs (“VA”) had unlawfully discriminated and retaliated against him. The district court dismissed his first amended complaint, finding that it lacked subject matter jurisdiction over his claims because he had failed to exhaust his administrative remedies. It further found that, even if he had exhausted his administrative remedies as to certain claims, the complaint failed to state a claim on which relief could be granted. Dr. Bejar appeals from the judgment of dismissal. We affirm.

BACKGROUND

The VA hired Dr. Bejar as a neurologist in 1988. On July 5, 2011, he filed an EEOC charge alleging that the VA had discriminated against him based on his Hispanic race and his Ecuadorian national origin, and had retaliated against him for his prior EEO activity. 1 The alleged discriminatory and retaliatory actions occurred in May and June 2011, and involved assigning him extra work, harassing him, and attempting to frame him for misconduct with female patients.

After the EEOC issued him a right-to-sue letter, Dr. Bejar filed this action. In his initial, pro se complaint, he alleged that he was the “victim of a well organized conspiracy,” R. at 13, in which the management of the Topeka VA hospital conspired with nurses and clerks at the hospital to frame him for sexual misconduct charges involving a female patient he identified as “W7589” (also referred to as “AW”), and four other female patients. Id. at 10, 12.

The VA moved to dismiss the complaint. Before the district court ruled on the motion, Dr. Bejar filed a counseled motion seeking leave to amend his complaint. The district court denied the pending motion to dismiss as moot and granted the motion to amend. Counsel then filed a first amended complaint for Dr. Bejar, which constitutes the operative complaint in this case.

■In the first amended complaint, Dr. Be-jar alleged that it was the VA’s ordinary policy and procedure at its primary care unit to assign male patients to male doctors and female patients to female doctors. A female neurologist was available at the hospital where Dr. Bejar worked to treat female patients. But in contravention of the VA’s own policy, his immediate supervisor directly assigned female patients, many of whom were “severely psychiat-rically disturbed,” id. at 106, to be treated *630 by Dr. Bejar. These assignments allegedly were made in an effort to elicit a misconduct complaint against Dr. Bejar. Dr, Bejar alleged that his requests that the female patients be reassigned to the female neurologist, or that a nurse be present during his examination of the female patients, were ignored.

The complaint did not specifically mention patient AW, whose allegations against Mr. Bejar were described in his pro se complaint. Instead, it further alleged, upon information and belief, that in September 2011 patient “MH” had reported to the VA that Dr. Bejar had touched her inappropriately during an examination. Dr. Bejar characterized this complaint as “incredible” and stated he could not have engaged in the alleged misconduct. Id. at 108. He further asserted that the VA failed to investigate the matter before suspending his privileges as a physician on October 3, 2011. In his claims for relief Dr. Bejar asserted that the VA had discriminated and retaliated against him by (1) persuading MH to file a false complaint against him; (2) encouraging MH to file a complaint without investigating the legitimacy of the complaint; and (3) assigning MH, a psychiatrieally disturbed female patient, to him in contravention of the VA’s ordinary policy and procedures.

The VA moved to dismiss the amended complaint for, among other reasons, failing to allege an adverse employment action. In response, Dr. Bejar argued that he had alleged an adverse employment action because the VA had suspended his clinical privileges and eventually terminated his employment. In view of this assertion, the district court requested briefing concerning whether Dr. Bejar’s allegations about suspension and termination had been administratively exhausted. Dr. Bejar subsequently admitted that these allegations were unexhausted.

The district court then dismissed all of Dr. Bejar’s claims for lack of jurisdiction. As noted, he had admitted that he had failed to exhaust his claims involving suspension and termination. As to his other claims involving patient MH, he alleged that she complained to the VA on September 30, 2011. But Dr. Bejar’s EEOC charge was filed on July 5, 2011, before patient MH made her complaint and before the VA took any action against him based on that complaint. Accordingly, the remaining claims in his first amended complaint, which related to MH’s allegedly false allegations, were also unexhausted.

Alternatively, the district court dismissed the first amended complaint on the merits. It found that Dr. Bejar had failed to allege an adverse employment action, which was a necessary element of both his discrimination and retaliation claims. He did not plead facts showing that the VA’s alleged attempt to “frame” him for unprofessional conduct itself constituted a significant change in his employment status, and he admitted that he had not exhausted his claims concerning the alleged results of being “framed”: his suspension and termination.

DISCUSSION

We review the district court’s dismissal for lack of jurisdiction de novo. Becker v. Ute Indian Tribe, 770 F.3d 944, 946 (10th Cir.2014). “Federal courts lack jurisdiction to review Title VII claims that are not part of a timely-filed EEOC charge.” McDonald-Cuba v. Santa Fe Prot. Servs., Inc., 644 F.3d 1096, 1101 (10th Cir.2011) (internal quotation marks omitted); see also Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir.2007) (describing jurisdictional nature of exhaustion requirement). “A plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably *631 be expected to follow the charge of discrimination submitted to the EEOC.” Jones, 502 F.3d at 1186 (alteration and internal quotation marks omitted). “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir.2010).

In his briefing to us, Dr.

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Bluebook (online)
601 F. App'x 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bejar-v-mcdonald-ca10-2015.