Hoang v. McDonough

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01755-RM-KLM
DAI HOANG, M.D.,
Plaintiff,
v.
ROBERT WILKIE, Secretary, Department of Veterans Affairs,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s 1 Motion to Dismiss Title VII Claims
[#13] 2 (the “Motion”). Plaintiff filed a Response [#17] in opposition to the Motion, Defendant
filed a Reply [#30], and Plaintiff filed a Surreply [#41] to respond to additional arguments
raised 	by 	Defendant. 	The 	Motion 	has 	been 	referred 	to 	the 	undersigned 	for 	a
recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. See [#29]. The
Court has reviewed the Motion, Response, Reply, Surreply, the entire case file, and the
applicable law, and is sufficiently advised in the premises. For the reasons set forth below,
1 Plaintiff initiated this action against Peter O’Rourke in his official capacity who, at the time,
was the Acting Secretary of the Department of Veterans Affairs. Pursuant to Fed. R. Civ. P. 25 (d),
Robert Wilkie was automatically substituted for Peter O’Rourke as the named Defendant in this
case when he succeeded Mr. O’Rourke as the current Secretary of the Department of Veterans
Affairs. 	At the conclusion of this Recommendation, the Court directs the Clerk of the Court to
update the case caption on the electronic docket accordingly.
2 “[#13]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.
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the Court respectfully RECOMMENDS that the Motion [#13] be GRANTED.
I. Background
Plaintiff alleges the following facts as the basis for her claims, which the Court takes
as true and views in a light most favorable to Plaintiff. 	See Barnes v. Harris, 783 F.3d
1185, 1191-92 (10th Cir. 2015). 	The Court notes, however, that Plaintiff’s factual
allegations are somewhat difficult to follow. 	The section in the Complaint [#1] titled
“General Allegations” is often disjointed and interrupted by tangential assertions that do not
appear directly related to Plaintiff’s claims. 	Additionally, Plaintiff does not set forth her
factual allegations in chronological order, provides a confusing time line of events, and
often summarizes one set of facts early in the Complaint only to re-summarize or add
additional detail to the same set of facts later in the Complaint. Nevertheless, the Court
construes the facts in Plaintiff’s favor and attempts to recite those facts as accurately and
concisely as possible.
A. 	Plaintiff’s Prior Employment and 2008 EEO Complaint
Plaintiff is a female physician of Vietnamese descent who is board certified by the
American Board of Radiology and holds a certification in the subspecialty of abdominal
imaging. 	Compl. [#1] ¶ 7. 	From 2004 to 2008, Plaintiff was a staff radiologist in the
Radiology Services Department at the Eastern Colorado Health Care System (“ECHCS”),
which is a Veterans Administration (“VA”) hospital in Denver, Colorado (the “Denver VA”).
Id. ¶ 3. 	During her tenure at the Denver VA, Plaintiff was the only female and Asian
radiologist among the seven to ten radiologists working in her department. Id. ¶¶ 3, 8. Dr.
Elliot Sandberg (“Sandberg”), a white male, served as Plaintiff’s “first level supervisor.” Id.
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¶ 3.
Plaintiff alleges that in 2008 she “suffered reprisal and was subject to harassment
and a hostile work environment by Sandberg[.]” 	Id. ¶ 8. 	According to the Complaint,
another radiologist at the Denver VA filed an Equal Employment Opportunity (“EEO”)
complaint against Dr. Sandberg around this time who, in response, “demanded that the
Plaintiff support him and corroborate him.” Id. ¶ 8. When Plaintiff refused, Dr. Sandberg
began harassing her until sometime between 2007 and 2008. 	Id. 	“After multiple and
escalating acts in 2007-2008,” Plaintiff filed her own “informal” EEO claim against the
Denver VA on April 8, 2008, based on race, gender, reprisal, and hostile work environment,
naming Dr. Sandberg as a “primary responsible management official.” Id.
Subsequently, on May 23, 2008, “Plaintiff filed a formal EEO complaint, Agency
Case No. 2003-0554-2008102523, against the Denver VA regarding the discriminatory and
retaliatory conduct of Sandberg, and others.” 	Id. ¶ 9. 	Plaintiff alleges that, on May 30,
2008, she was “forced to resign” from the Denver VA apparently because of her EEO
complaint. Id. On June 27, 2008, Plaintiff received a Notice of Acceptance of her EEO
complaint from the VA’s Office of Resolution Management (“ORM”). 3 Id. ¶ 10. However,
“[a]fter further investigation of her claims, the Denver VA offered to settle her case . . . in
exchange for her withdrawal of her complaint[,]” which Plaintiff did withdraw two years later
on October 30, 2010, pursuant to a settlement agreement. Id. ¶ 11.
On January 17, 2012, approximately two years after Plaintiff’s settlement, Plaintiff
3 Although Plaintiff does not explain this in her Complaint [#1], the VA describes ORM as
the office “responsible for providing equal employment opportunity (EEO) complaint processing
services within the [VA].” https://www.va.gov/ORM/EEOcomplaint.asp.
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received a letter, dated December 27, 2011, and a memorandum, dated January 3, 2012,
informing her of a medical malpractice lawsuit against the Denver VA pertaining to an
alleged incident in which Plaintiff was identified as a participating physician. Id. ¶ 12. The
letter and/or memorandum further advised Plaintiff of the possibility that, because of the
lawsuit, her name would be reported to the National Practitioner’s Data Bank (“NPDB”).
Id. Plaintiff states that she was never made aware of this lawsuit prior to January 17, 2012.
Id. This notice and the eventual reporting of Plaintiff’s name to the NPDB serves as the
factual basis for Plaintiff’s present lawsuit.
B. 	The Medical Malpractice Lawsuit
On August 30, 2005, a patient at the Denver VA received a three vessel coronary
artery bypass. Id. ¶ 14. After the surgery, the surgeon and medical staff discovered that
a metal surgical clamp was missing but did not inform the patient of this before he was
discharged. 	Id. 	After the surgery, numerous radiologists, including Plaintiff and Dr.
Sandberg, reviewed different chest x-rays of the patient over multiple months. Id. Plaintiff,
in particular, viewed a single portable x-ray on August 30, 2005, the day of the surgery. Id.
In conducting this review, she had not been told that a clamp was missing. Id. 	Rather,
Plaintiff was simply asked to “see if there was a foreign body” present in the patient. Id.
In total, seven different radiologists were asked to report on chest x-rays of the patient that
were taken on different dates and were of variable quality. 	Id. 	None of the radiologists
identified a metal clamp and all of the radiologists, except for Plaintiff, were white males.
Id.
In March of 2006, the patient received an MRI from his private physician for reasons
unrelated to the 2005 surgery. Id. ¶ 15. Due to complications with his MRI, the patient first
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“learned that there was a foreign metal object lodged just a fraction of an inch behind his
heart.” 	Id. 	After being admitted to the emergency room at the Denver VA, a different
radiologist evaluated a CT scan of the patient, taken on April 19, 2006, from which the
vascular clamp was first identified. 	Id. ¶¶ 14-15. 	The patient’s original surgeon then
informed the patient that a metal surgical clamp had been left in his body. Id. ¶ 15.
The patient sued the Denver VA on August 26, 2006, received a judgment in his
favor, and was ultimately paid $131,416.03 on January 14, 2011. Id. ¶ 13. Plaintiff was
not named in the federal suit. 	Id. ¶ 13. 	However, Dr. Sandberg was allegedly directly
involved, along with the Denver VA’s Medical Facility Director, Lynette Roff (“Roff”). Id. ¶¶
13-14.
C. 	The OMLA Review and 2015 EEO Complaint
Following the conclusion of the malpractice lawsuit, Plaintiff states that “a report had
to be made to the VA’s Office of Medical Legal Affairs (‘OMLA’) for reporting a responsible
physician to the [NPDB].” Id. ¶ 16 (internal quotation marks added). Plaintiff states that,
despite Dr. Sandberg’s knowledge of this requirement, “Plaintiff was not contacted or made
aware of this.” Id.
In approximately January of 2011, a report was sent to the OMLA which,
unbeknownst to Plaintiff, identified her and the patient’s surgical team as medical
practitioners involved in the underlying incident. Id. While Plaintiff does not identify who
prepared or sent this January 2011 “report” to the OMLA, the Court presumes it was
someone at the Denver VA. 	Apparently in response to this report, the OMLA issued a
checklist, dated November 25, 2011, which the Denver VA “was instructed to complete,
sign and return . . . with a package of materials responsive to the checklist.” 	Id. 	The
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checklist was signed by the Denver VA’s Risk Manager, Ron Wilkins (“Wilkins”), on
November 25, 2011, and by the Denver VA’s Chief of Staff, Dr. Ellen Mangione
(“Mangione”), on November 28, 2011. Id. The checklist contained a list of medical records
and named Plaintiff as the only radiologist involved in the underlying incident. Id. Without
further explanation, Plaintiff alleges that “Dr. Sandberg was involved in this reporting [and
that] [t]he document admits Plaintiff’s statement 4 was not enclosed and that she had not
been notified.” Id. Plaintiff also alleges that she was named as a practitioner involved in
the underlying incident in a letter from the Director of the OMLA, Dr. John Grippi (“Grippi”),5
to Medical Facility Director Roff, dated December 13, 2011. Id. ¶ 17.
Shortly thereafter, on January 17, 2012, Plaintiff received the previously referenced
letter and memorandum regarding the malpractice lawsuit which mentioned the possibility
that her name would be reported to the NPDB. Id. ¶ 12. This constituted the first notice
Plaintiff received of the malpractice lawsuit “or any related litigation matters or issues.” Id.
¶ 18.
The letter, dated December 27, 2011, notified Plaintiff that she had sixty days within
receipt to “provide a written statement and comment on her involvement in the patient’s
care” for “the review panel at the Denver VA.” 6 Id. ¶ 19. The letter further “stated that she
4 It is not clear to the Court what “statement” Plaintiff is referring to given that, in this section
of the Complaint [#1], she appears to be discussing the checklist that was dated November of 2011,
prior to Plaintiff allegedly learning of the malpractice lawsuit and the OMLA review.
5 At this point in the Complaint, Plaintiff refers to “John Grippa” which the Court construes
as a typographical error given that Plaintiff repeatedly refers to “John Grippi” later in the Complaint.
[#1] ¶¶ 36, 39, 40. Additionally, the Court notes that Plaintiff refers to Dr. Grippi as the “Director”
of the OMLA and a “member” of the OMLA at different points. Id. ¶¶ 17, 36.
6 The Court presumes that “the review panel at the Denver VA” is the “OMLA Review Panel”
described on page 9 of this Recommendation.
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and her authorized representative could review the patient’s medical records and the Tort
Claim Information System forms and form SD-95 that instituted the tort claim [and that] .
. . she could arrange to see these files by contacting [Risk Manager] Wilkins.” 	Id. 	The
memorandum, dated January 3, 2012 and written by Risk Manager Wilkins as a follow-up
to the letter, informed Plaintiff that the patient’s medical file was available for review for the
purpose of providing her statement. Id. ¶ 20.
On January 18, 2012, Plaintiff contacted Wilkins, who told her that she “was not
included for review during the [malpractice lawsuit], [but that] someone from the Denver VA
[had] requested that her name be included in the review of the case in January 2011 after
[the lawsuit] had . . . settled.” Id. ¶ 21. Although the meaning of this language is unclear,
the Court concludes from the context of the Complaint that, here, Plaintiff is alleging that
she was singled-out by “someone from the Denver VA” when the “report,” identifying
Plaintiff as a medical practitioner involved in the underlying incident, was sent to the OMLA
in January of 2011. See id. ¶ 16. Plaintiff asked Wilkins for the names of other radiologists
and physicians who had cared for the patient and were under review, but was told that “no
other radiologists were being reviewed or considered, and the review panel was limiting the
scope of the investigation to her exclusively.” Id. ¶ 22. Plaintiff also requested that Wilkins
provide her with numerous documents and medical records related to the malpractice
lawsuit and that Plaintiff be allowed to personally appear before the review panel to defend
herself. Id. ¶ 23.
On April 4, 2012, after numerous delays which Plaintiff alleges were “contrary to
VHA Handbook 1000.17, B.C. (2 h)[,]” Plaintiff received only partial medical records from
the Denver VA. Id. ¶¶ 25-28. Based on this limited and untimely record, Plaintiff hand-
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delivered her written statement, dated April 17, 2012, to Medical Facility Director Roff in
response to the December 27, 2011 letter. Id. ¶ 30. The response contained Plaintiff’s
explanation for why she did not provide substandard care, including how she was never
specifically told to look for a metal surgical clamp, the x-ray was of poor quality, and that
no other radiologist with better views identified a clamp. Id. ¶¶ 30-34. Around this time, in
April of 2012, Plaintiff contacted OMLA Director Dr. Grippi to inquire about the time line for
this review process. 	Id. ¶ 36. 	According to Plaintiff, Dr. Grippi stated that the review
process would last approximately six months. 	Id. 	On May 1, 2012, Plaintiff received
notification from a staff member acting on Wilkins’ behalf that Plaintiff’s response had been
received and would be submitted to the OMLA. Id. ¶ 35.
Also on May 1, 2012, a second checklist was submitted to the OMLA by the Denver
VA’s Acting Risk Manager Ann Jodway (“Jodway”) and Chief of Staff Mangione. 	This
second checklist “contained a list of medical records submitted to the OMLA” and named
Plaintiff along with the patient’s surgeon as involved practitioners, indicating that statements
from both were included. Id. ¶ 37.
A year later, on June 5, 2013, a third checklist was submitted to the OMLA from
Jodway and Mangione which indicated that four other radiologists had provided information
to the OMLA. 	Id. ¶ 38. 	Plaintiff notes that, “unlike the 2012 checklists reporting the
Plaintiff, none of the radiologists [identified in the third checklist] were listed to [sic] having
been given a notification of the ‘payment letter.’” 7 Id. Plaintiff further notes that one of the
7 It is not clear from the Complaint to what “payment letter” Plaintiff is referring. While the
Court presumes that this refers to a letter memorializing the settlement of the malpractice lawsuit,
it is unclear how the other radiologists’ knowledge of the malpractice settlement, or lack thereof,
is material to Plaintiff’s claims.
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radiologists named in the third checklist raised arguments similar to those she had raised
in her April 2012 response, but that this radiologist “was not found to have been negligent,
[while] the Plaintiff was.” Id.
The following year, on October 6, 2014, a four-member review panel “under the
aegis of Dr. Grippi” (the “OMLA Review Panel” or “Panel”), issued its findings and
conclusions which required reporting Plaintiff and the patient’s surgeon to the NPDB as the
“responsible practitioners.” 	Id. ¶ 39. 	The OMLA Review Panel was comprised of Dr.
Norbert Kuberka, Dr. Joseph Ralabate, Dr. Tatum Johnson, and Dr. Dale Mueller. Id. That
same day, Dr. Grippi sent a letter to Medical Facility Director Roff on behalf of the OMLA
Review Panel, stating the decision to report Plaintiff to the NPDB. Id. ¶ 40. The OMLA
Review Panel provided its findings in a report, concluding 	that Plaintiff “should have
communicated more effectively with the Cardiothoracic team” to request additional x-ray
views, two of which are “required to confirm or exclude the presence of a foreign body.”
Id.
Plaintiff alleges that she was never timely sent the OMLA Review Panel’s report.
Id. ¶ 41. However, it is unclear when Plaintiff was notified that she had been reported to
the NPDB. 	Plaintiff first states that she received a memorandum, dated December 11,
2014, from the Denver VA notifying her that she would be reported to the NPDB and
advising her to contact the Denver VA’s new Risk Manager Catherine Anderson
(“Anderson”) with any questions. Id. Plaintiff then states that she spoke with Anderson on
December 11, 2014, who “forwarded to [Plaintiff] the letter from the OMLA.” Id. Plaintiff
later states, as one of the underlying bases for her discrimination claims, that on December
9, 2014, she received a telephone message from Risk Manager Anderson, informing her
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that she was being reported to the NPDB. Id. ¶ 46.
Addressing the report, Plaintiff outlines numerous alleged deficiencies with the
OMLA Review Panel’s conclusions, notes the apparent lack of consideration given to her
April 2012 written statement and, in summation, argues that she “was falsely and
erroneously accused of substandard care by the VA[.]” Id. ¶¶ 41-45.
On January 9, 2015, Plaintiff filed her “informal” EEO complaint, presumably with the
VA. Id. ¶ 47. As of that date, Plaintiff appears to have worked for hospitals in Illinois and
Florida since her resignation from the Denver VA in 2008. See id. ¶¶ 54, 57, 66. Sixteen
days after Plaintiff filed this “informal” EEO complaint, on January 25, 2015, Plaintiff alleges
that “someone from the [Denver VA] sent a call to [her] voicemail . . . but left no message.”8
Id. ¶ 48. 	Plaintiff found the call suspicious because she did not know anyone from the
Denver VA who would have reason to contact her. Id. This call reminded Plaintiff of one
made by Dr. Sandberg after she had filed her 2008 EEO complaint, where he allegedly
berated her for ten minutes about her complaint and her work. Id. On January 28, 2015,
a similar “phone call was sent to Plaintiff’s voice mail [sic] from the Denver VA, [with] no
message [being] left on her voicemail.” Id. ¶ 49
On March 31, 2015, Plaintiff filed a “formal” EEO complaint which she states was
“formally accepted” on April 24, 2015. 	Id. ¶ 5. 	Again, it appears that this “formal” EEO
complaint was filed with and accepted by the ORM at the VA. 9
8 The Court presumes this to mean that a call was missed and subsequently directed to
Plaintiff’s voicemail but that no message was left.
9 Defendant attaches to the instant Motion [#13] a letter, dated April 24, 2015, from the
ORM which appears to represent the “formal acceptance” of the 2015 EEO complaint to which
Plaintiff refers. See Def.’s Ex. 4 [#13-4].
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D. 	The NPDB Report
On August 6, 2015, the NPDB issued a “Medical Malpractice” report which “stated
that the basis for the Initial Action was ‘Surgical or other Foreign Body Retained’ [and
indicated that the report] was authorized to be used by the Colorado Medical Board.” Id.
¶ 51. 10 That same day, the NPDB “also sent sensitive information to Plaintiff” in the form
of a memorandum which explained the NPDB’s review process. Id. ¶ 52. Although Plaintiff
indicates that she received this “memorandum” on August 6, 2015, Plaintiff then states that
she “initially learned about this NPDB report when she received a letter from the Colorado
Board of Medicine, dated August 12, 2015.” Id. ¶¶ 52-53.
This letter from the Colorado Board of Medicine explained that Plaintiff’s “‘liability
insurance carrier’ had settled a malpractice claim related to her conduct” and that “the
information regarding the settlement had been forwarded to the NPDB in the report
submitted by the Denver VA.” 	Id. ¶ 53. 	The letter directed Plaintiff to send information
regarding her care of the patient within thirty days. Id. Plaintiff apparently followed this
directive because on September 22, 2015, the NPDB confirmed receipt of a letter in which
Plaintiff contested the factual accuracy of the NPDB report. Id. ¶ 54.
Shortly thereafter, Plaintiff “attempted to resolve this dispute with the Denver VA” by
submitting a letter, dated September 30, 2015, requesting that the NPDB report be voided
as erroneous. Id. ¶ 55. However, Plaintiff did not receive any response from the Denver
VA regarding this letter. Id.
On October 29, 2015, after a review of the malpractice claim against Plaintiff, the
10 Plaintiff does not define “Initial Action” or explain the significance of this finding in the
“Medical Malpractice” report.
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Colorado Board of Medicine dismissed the case against Plaintiff and “found that there was
no basis for taking action against [her].” 	Id. ¶ 56. 	According to Plaintiff, “the Colorado
Board of Medicine determined that there was no basis for discipline and this showed that
the OMLA improperly targeted [her].” Id.
Approximately six months later, on April 27, 2016, “the NPDB issued a ‘Self-Query
Response’ to [ ] Plaintiff” which “included material about the history of the case she filed
with the NPDB” and identified the hospitals in Illinois and Florida (where Plaintiff had been
employed) that had been notified of the NPDB’s investigation. Id. ¶ 57.
Also on April 27, 2016, Plaintiff submitted a request for dispute resolution to the
Department of Health and Human Services (“HHS”) given that she had not received any
response from the Denver VA to her September 30, 2015 letter. Id. ¶ 58. In this request,
Plaintiff again contested the factual accuracy of the NPDB report and raised seven different
disputes about the matter. 	Id. 	On June 14, 2016, the NPDB notified the Denver VA of
Plaintiff’s dispute regarding the “Medical Malpractice Patient Report,” 11 to which the Denver
VA responded by submitting information regarding the malpractice lawsuit on July 13, 2016.
Id. ¶¶ 59-60.
On August 22, 2016, HHS denied Plaintiff’s request for dispute resolution but stated
that she could seek reconsideration of the decision and “submit a brief statement to be
included in the report.” Id. ¶ 61. Accordingly, on January 12, 2017, Plaintiff sent a letter
to the Deputy Director of the NPDB, Judy Rogers (“Rogers”), requesting reconsideration
of the HHS decision regarding the NPDB “Medical Malpractice” report. 	Id. ¶ 62. 	In
11 The Court presumes that this “Medical Malpractice Patient Report” is the same as the
NPDB’s August 6, 2015 “Medical Malpractice” report.
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response, Rogers sent Plaintiff a letter, dated August 22, 2016, stating that HHS “do[es]
not have authority to review the OMLA Review Panel’s findings” without advising Plaintiff
of any other administrative means to challenge the merits of the NPDB report. Id. ¶¶ 64-65
(brackets in original).
E. 	Plaintiff’s Claims
As referenced above, Plaintiff apparently filed a “formal” EEO complaint with the
ORM at the VA on March 31, 2015, which was “formally accepted” on April 24, 2015. Id.
¶ 5. Referring to the matter before the ORM, Plaintiff states that “she has fully participated
in this case through discovery [and that] [m]ore than 360 days have passed since she
formally filed her formal complaint thus satisfying the jurisdictional requirements of 42
U.S.C. Sec. 2000e-16(c).” Id. 12 Plaintiff further states:
During the VA’s ORM investigation of the Plaintiff’s claims, the ORM
investigator asked for various documentation from the Denver VA, which the
Denver VA did not provide. 	During the initial stages of her administrative
hearing process during which the Plaintiff can take discovery before the VA’s
EEO judge, Plaintiff, inter alia, specifically requested discovery and various
documents and other evidence relating to this process. 	The VA moved to
dismiss the action and refused to produce any documents. The VA’s judge
issued an order stating discovery was not stayed. Plaintiff filed a motion to
compel, and raised issues concerning spoliation but the VA’s EEO judge has
failed to rule on any motions.
Id. ¶ 67. 	Pursuant to the above, it appears that Plaintiff’s 2015 EEO complaint was still
pending before the ORM at the time she filed her Complaint [#1] in this action on July 10,
12 Pursuant to 42 U.S.C. Sec. 2000e-16(c), an employee may file a civil action after 180
days from the filing of her formal complaint of discrimination with the federal agency if no final action
is taken by the agency on her complaint. 	See Davis v. United States, 973 F. Supp. 2d 23, 29
(D.D.C. 2014) (discussing the administrative steps necessary to file a Title VII lawsuit against a
federal agency pursuant to 42 U.S.C. § 2000e-16(c)).
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2018. However, the current status of the ORM proceeding is unclear.
In her Complaint, Plaintiff asserts five claims for relief: (1) Title VII retaliation, id. ¶¶
68-77 (“Count One”); (2) Title VII race and sex discrimination, id. ¶¶ 78-84 (“Count Two”);
(3) Title VII harassment and hostile work environment, id. ¶¶ 85-90 (“Count Three”); (4)
“injunctive relief,” id. ¶¶ 91-95 (“Count Four”); and (5) violation of the Administrative
Procedures Act (“APA”), id. ¶¶ 96-104 (“Count Five”). 	Plaintiff contends that she “was
falsely and erroneously accused of substandard care” by the Denver VA. Id. ¶ 42. Plaintiff
also claims that she was not provided appropriate documents to review for her statement
to the OMLA, id. ¶ 43, a statement which was allegedly not considered by the OMLA
Review Panel. Id. ¶ 44. Plaintiff further asserts that she suffered from discrimination and
a hostile work environment when she received a December 9, 2014 phone call and the
December 11, 2014 correspondence informing her that she would be reported to the
NPDB. Id. ¶ 46. Moreover, Plaintiff alleges that the Denver VA intentionally ignored her
request to void the NPDB report because she was no longer in Colorado to defend herself.
Id. ¶¶ 23, 55, 56. 	As a result of the actions taken by Dr. Sandberg, the OMLA, and the
Denver VA, Plaintiff claims to have suffered from a myriad of employment issues, such as
having to defend her medical license which has resulted in “loss of pay; loss of benefits;
payment of attorneys’ fees and legal costs; loss of amicable work environment; loss of
career and professional opportunities; harm to professional reputation; and humiliation,
anxiety, degradation, embarrassment, and severe emotional distress.” Id. ¶¶ 66, 76, 83,
89.
In the instant Motion [#13], Defendant seeks to dismiss only Plaintiff’s Title VII claims
under Fed. R. 	Civ. P. Rule 12(b)(1) and Rule 12(b)(6). 	Motion [#13] at 2-3, 9 n.5. 	If
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Defendant’s Motion is granted in full, this case would proceed only on Plaintiff’s APA claim
(“Count Five”). Defendant first asserts that Plaintiff has failed to exhaust her administrative
remedies with respect to her Title VII claims, except for her claim relating to the December
2014 correspondences informing her that she would be reported to the NPDB. With regard
to Plaintiff’s employment discrimination and hostile work environment claims, Defendant
generally argues that Plaintiff cannot assert those claims against the VA because she was
no longer employed at the Denver VA when the alleged discrimination or harassment
occurred. 	Id. at 10, 11. 	Defendant then avers that Plaintiff cannot claim that the VA
retaliated against her because she has failed to allege sufficient facts showing a materially
adverse action and a causal link between any act and Plaintiff’s 2008 EEO complaint. Id.
at 12-13.
II. Standard of Review
A. 	Federal Rule of Civil Procedure 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the
Court has jurisdiction to properly hear the case before it. 	Because “federal courts are
courts of limited jurisdiction,” the Court must have a statutory basis to exercise its
jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1).
Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed.
F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). 	“The burden of
establishing subject-matter jurisdiction is on the party asserting jurisdiction.” 	Id. (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
B. 	Federal Rule of Civil Procedure 12(b)(6)
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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted”). 	“The court’s function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact to state a claim for relief that is plausible
on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true,
to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s
allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.” Christy
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Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader
is entitled to relief,” as required by Fed. R. Civ. P. 8(a). 	Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks omitted).
III. Analysis
A. 	Administrative Exhaustion
As an initial matter, Defendant argues that only Plaintiff’s claims regarding the
December 9, 2014 phone call and the December 11, 2014 written correspondence
informing Plaintiff that she would be reported to the NPDB have been administratively
exhausted. Motion [#13] at 9. Plaintiff never addresses this argument as it pertains to her
being singled out, only contending that her claims based on her subsequent reporting to
the NPDB have also been administratively exhausted. Response [#17] at 1-2. However,
neither party has filed with the Court Plaintiff’s 2015 EEO complaint, instead filing a notice
of acceptance of that complaint and an “Order Following Initial Case Conference” issued
by the administrative judge apparently presiding over the ORM proceeding. Def.’s Ex. 4
[#13-4]; Pl.’s Ex. 1 [#17-1]. 	These are not documents courts typically consider when
answering the question of administrative exhaustion, see Robinson v. Bd. of Regents of U.
Of Colo., 390 F. Supp. 2d 1011, 1017 (D. Colo. 2005), and Plaintiff’s Complaint [#1] does
not specifically allege which claims were included in her most recent EEO complaint.13
13 When considering a motion to dismiss, the Court must usually disregard facts supported
by documents other than the complaint unless the Court first converts the motion to dismiss into
a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). The
Court may consider documents outside of the complaint on a motion to dismiss in three instances,
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Moreover, administrative exhaustion is an affirmative defense, see Fort Bend Cty.,
Texas v. Davis, 139 S. Ct. 1843, 1850 (2019), on which a complaint may be dismissed
“only when the complaint itself admits all the elements of the affirmative defense by alleging
the factual basis for those elements.” 	Ingle v. Ieros, No. 18-cv-02759-LTB, 2019 WL
2471152, at *3 (D. Colo. Jun. 13, 2019) (quoting Fernandez v. Clean House, LLC, 883 F.3d
1296, 1299 (10th Cir. 2018)). The Complaint [#1] is not a model of conciseness, but it does
not appear to admit that Plaintiff failed to exhaust the remedies available for allegedly being
singled out for review or reported to the NPDB. 	Given the lack of an EEO complaint to
guide the Court’s analysis of this issue, coupled with the Complaint’s [#1] general
allegations, the Court assumes, without deciding, that Plaintiff has exhausted her
administrative remedies with respect to four alleged acts: (1) Plaintiff being intentionally
singled out as the only non-white female radiologist reported to the OMLA for investigation
(approximately January, 2011); 14 (2) the phone call Plaintiff received informing her that she
might be reported to the NPDB (December 9, 2014); (3) the letter correspondence
however. First, the Court may consider outside documents pertinent to ruling on a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1). Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000).
Second, the Court may consider outside documents subject to judicial notice, including court
documents and matters of public record. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006).
Third, the Court may consider outside documents that are both central to the plaintiff's claims and
to which the plaintiff refers in her complaint. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d
1381, 1384 (10th Cir.1997).
14 In the Reply, Defendant argues that Plaintiff has affirmatively waived any claim for
retaliation prior to December 2014, including Plaintiff being singled out. 	[#30] at 12. 	Thus,
according to Defendant, Plaintiff agreed to waive “any and all claims against the VA based on facts
in existence as of [October 2010],” pursuant to her prior settlement. Id. at 13. However, as Plaintiff
points out in her Surreply [#41], this is a Rule 12(b)(6) motion to dismiss and that reviewing
settlement agreements, while referred to in the Complaint [#1] but hardly central to her claims,
would be improper at this stage. Surreply [#41] at 1-2; Cf. GFF Corp. v. Associated Wholesale
Grocers, Inc., 120 F.3d 1281, 1384-85 (10th Cir. 1997). Thus, the Court does not address the issue
of waiver at this time.
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informing Plaintiff of the same (December 11, 2014); and (4) Plaintiff being reported to the
NPDB (August 6, 2015). Compl. [#1] ¶¶ 21-22, 46, 51.
B. 	Employment Discrimination (“Count Two")
The dispute over whether Plaintiff states a viable claim for race and gender based
employment discrimination centers around whether discrimination that occurs after
cessation of employment is actionable under Title VII. Defendant argues that the statute
governing Plaintiff’s claim, 42 U.S.C.§ 2000e-16, requires that she be an employee when
the alleged discrimination occurs. Motion [#13] at 10. In the alternative, if Plaintiff need not
have been employed by the Denver VA to make her claim, Defendant asserts that the
discriminatory acts were not “adverse personnel actions” as required by Section 2000e-16.
Response [#30] at 5. 	In response, Plaintiff attempts to rebut Defendant by generally
claiming that “[a]rtificial limits on a former employee’s rights to redress discrimination or
retaliation do not exist.” Response [#17] at 7. To support this uncited principle, Plaintiff
argues that (1) “‘Title VII prohibits unlawful employment discrimination against “any
individual,” which could arguably include a former employee,’” and (2) courts have long held
that post-employment retaliation is actionable and that “[t]here is no reason to find post-
employment adverse actions which can be tied to discrimination in a different fashion.” Id.
at 7, 9 (quoting Persichitte v. U. of N. Colo., No. 05-cv-01508-PSF-PAC, 2006 WL
2790407, at *5 (D. Colo. Sept. 27, 2006). Both of these points are unconvincing and fail
to support Plaintiff’s position.
The relevant language from Title VII provides that “[a]ll personnel actions affecting
employees or applicants for employment . . . in executive agencies . . . shall be made free
from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
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§ 2000e-16(a) (emphasis added). 	Notably, this section “provides the exclusive judicial
remedy for claims of discrimination in federal employment.” 	See Brown v. Gen. Servs.
Admin., 	425 	U.S. 	820, 	835 	(1976). 	The 	words 	“employees” 	and 	“applicants 	for
employment” are markedly restricted as compared to the non-federal Title VII equivalent,
which covers “any individual.” 	42 U.S.C. § 2000e-2(a). The more precise language of
Section 2000e-16 was an intentional limitation added by Congress when it amended the
statute in 1972. See Sprides v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979) (discussing
Congress’ intent to limit Title VII protection to federal employees). 	Accordingly, as a
threshold matter, before individuals may seek redress from alleged discrimination on behalf
of a federal employer, they must show that they are or were an employee of that agency
when the discrimination took place. King v. Dalton, 895 F. Supp. 831, 836 (E.D. Va. 1995).
The earliest alleged act of discrimination, Plaintiff being singled out, occurred when Plaintiff
was no longer an employee of the Denver VA, having resigned three years earlier. Compl.
[#1] ¶ 5. 	Hence, Plaintiff does not meet the threshold requirement of employment to
sustain her discrimination claim against Defendant.
Even if the Court were to assume that discrimination against “any individual” is
actionable under the circumstances presented in this case, that term has not been
extended beyond employees with regard to discrimination claims, unlike retaliation claims.
See Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 67 (2006). Persichitte, which
Defendant cites to argue the opposite conclusion, also explicitly finds that the term “any
individual” has not been expanded beyond employees with regard to discrimination claims.
2006 WL 2790407, at *5. Despite this, Plaintiff repeatedly relies on decisions regarding
retaliation claims to support her opposition to the Motion [#13]. See Response [#17] at 6-
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10. In doing so, she has ignored the holding in Burlington Northern, in which the Supreme
Court discussed at length the differences between discrimination and retaliation claims,
finally determining that Title VII’s retaliation provision “extends beyond workplace-related
or employment-related retaliatory acts and harm.” 	548 U.S. at 67. 	Because of those
differences, 	Title 	VII’s 	general 	discrimination 	provision 	does 	not 	protect 	against
discrimination that stems from acts occurring after employment. Plaintiff’s abundant case
law, reviewing post-employment retaliation claims, does not provide otherwise.
Accordingly, for the reasons stated above, the Court recommends that Plaintiff’s
Title VII employment discrimination claim (“Counter Two”) be dismissed with prejudice.
See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal
with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6)
and granting leave to amend would be futile.”).
C. 	Hostile Work Environment (“Count Three")
Defendant also moves to dismiss Plaintiff’s hostile work environment claim. Motion
[#13] at 2, 11. 	Defendant’s principal argument is simple: Plaintiff cannot claim to have
suffered from a hostile work environment when she no longer worked in that environment.
Id. at 11. The Court agrees. A hostile work environment claim that is brought pursuant to
Title VII is viable when “the workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’” Harris v. Forklift Sys.,
510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67
(1986)). 	A hostile work environment claim must be evaluated based on all of the
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circumstances at issue, which may include “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Id. at 23.
Plaintiff’s hostile work environment claim, like her employment discrimination claim,
stems from the two communications informing her that she was being reported to the
NPDB, that she was subsequently reported, and/or that she was singled out to be included
in the OMLA’s investigation. See Compl. [#1] ¶¶ 16-17, 21, 46, 54. Even assuming that
Plaintiff’s claim stems from the alleged harassment of being singled out for investigation
because she was the only Asian and female radiologist (the earliest alleged incident),
Plaintiff had already resigned from her employment with the Denver VA and was employed
elsewhere. 	Id. ¶ 6. 	If the workplace was “permeated with discriminatory intimidation,
ridicule, and insult,” Plaintiff was not there to experience it.
To contest this point, Plaintiff argues that the cases Defendant relies on are
“applicable in some circumstances,” but “factually distinguishable from this case.” 	See
Response [#17] at 11. 	This is unconvincing for three reasons. 	First, Plaintiff does not
actually distinguish her case from those cited by Defendant, instead choosing to simply
recite the facts predicating her claim without any reference to those that are particularly
distinguishable. 	Id. 	Second, the mere factual differences between Plaintiff’s case and
those cited by Defendant do not make the legal conclusions in those cases inapplicable
here. 	Harris, to which the Court refers for the same proposition as Defendant, simply
expounds on a generalized principal of the law, independent from its set of facts. Pueschel
v. Peters, 577 F.3d 558 (4th Cir. 2009), and Abdullah v. Ross, No. H-16-1411, 2018 WL
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1867093 (S.D. Tex. Jan. 26, 2018), are not used by Defendant to assert a legal argument
but simply support the conclusion that this Court’s decision would not be an isolated one.
Any material factual differences are irrelevant, as the legal basis on which Defendant
supports its Motion [#13] does not rely on factual analogy.
Finally, even if the cases Defendant relies on are distinguishable, Plaintiff’s legal
argument fails for the same reason. She cites to no authority indicating that a hostile work
environment claim is viable for harassment that occurred, exclusively, post-employment.
See Response [#17] at 11-12 (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3rd Cir.
1999) (allowing a Title VII hostile work environment claim to proceed because, in addition
to post-employment discrimination, there was discrimination at the time of employment);
Anderson v. Davila, 125 F.3d 148 (3rd Cir. 1997) (discussing a First Amendment retaliation
claim, not a Title VII hostile work environment claim); Charlton v. Paramus Bd. of Educ.,
15 F.3d 194 (3rd Cir. 1994) (discussing post-employment retaliation, not hostile work
environment)).
Therefore, for the reasons stated above, the Court recommends that Plaintiff’s Title
VII hostile work environment claim (“Count Three”) be dismissed with prejudice. See
Brereton, 434 F.3d at 1219.
D. 	Retaliation (“Count One”)
Defendant additionally asserts that Plaintiff has failed to allege an actionable
retaliation claim. Motion [#13] at 12. “To state a prima facie case for retaliation under Title
VII, a plaintiff must show (1) that she engaged in protected opposition to discrimination, (2)
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that a reasonable employee would have found the challenged action materially adverse, 15
and (3) that a causal connection existed between the protected activity and the materially
adverse action.” Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012) (quoting
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)) (internal quotation
marks, alterations omitted). A challenged action is materially adverse when it “might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N., 548 U.S. at 54 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.
2006)) (internal quotation marks omitted). Further, the Tenth Circuit plainly requires that
“the standard of causation for a Title VII retaliation claim is ‘but for’ causation.” Doe v. Bd.
of Cty. Comm’rs of Payne Cty., Okla., 613 F. App’x 743, 747 (10th Cir. 2015). Defendant
does not contest that Plaintiff engaged in a protected activity. Instead, Defendant contends
that Plaintiff’s retaliation claim fails to establish that the alleged acts were materially
adverse or that they were causally connected to her 2008 EEO complaint against the
Denver VA. See Motion [#13] at 12-13.
On the matter of whether there was a materially adverse action, Plaintiff and
Defendant, in essence, disagree over the level of generality the phrase “reasonable
employee” includes—Defendant wanting more detail, Plaintiff wanting less. Plaintiff asserts
that the acts alleged would obviously deter a physician working for the VA from filing a
complaint. 	Response [#17] at 12-13. 	In turn, Defendant encourages the Court to
15 There is some dispute between the parties over whether the second element should be
viewed as requiring an “adverse personnel action” when alleging retaliation by the federal
government. 	Motion [#13] at 13 n.7; Response [#17] at 12 n.6. 	However, the Court need not
address this contention, as Plaintiff’s claim fails for lack of adequate causation allegations. Still,
in the interest of completeness, the Court addresses the parties’ arguments regarding whether
Plaintiff alleges a “materially adverse” action on pages 24 and 25 of this Recommendation.
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remember that “context matters,” and that a reasonable employee in Plaintiff’s position, i.e.,
one who is no longer employed by the Denver VA, could not file an EEO complaint against
it and thus, could not be dissuaded from doing so. Motion [#13] at 13-14.
While Defendant is correct that context is important under the reasonable employee
analysis, the purpose of considering that context is to determine the impact of any alleged
discriminatory act, so as to avoid overgeneralizing beyond a particular plaintiff’s unique
circumstances. See Burlington N., 548 U.S. at 69. Here, as a currently working physician,
any of the alleged retaliatory acts taken against Plaintiff could have a potentially
devastating impact on her career. The same is likely true for any other physician who faces
being reported to the NPDB, or actually is, and Defendant does not argue to the contrary.
In light of Plaintiff’s continued employment as a radiologist, Defendant’s argument that a
reasonable worker in Plaintiff’s position could no longer file an EEO complaint is unavailing.
This is especially so, considering that such an argument would effectively bar post-
employment retaliation claims, which are expressly permitted. See Robinson v. Shell Oil
Co., 519 U.S. 337 (1997). 	Thus, the Court finds that Plaintiff has plausibly alleged a
materially adverse action with respect to her retaliation claim.
However, even when construing the Complaint [#1] in Plaintiff’s favor, none of the
alleged acts of retaliation are sufficiently linked to Plaintiff’s protected activity—filing an
EEO complaint against the Denver VA in 2008. Defendant correctly notes in the Motion
[#13] that nowhere in the Complaint [#1] does Plaintiff allege that the members of the
OMLA Review Panel knew of her EEO complaint and thus could have retaliated because
of it. 	See Motion [#13] at 16. 	Plaintiff asserts, unpersuasively and without sufficient
support, that her “allegations are sufficient at this stage of this case.” Response [#17] at
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5. Specifically, she has four arguments: (1) large gaps in time between her EEO complaint
and later alleged retaliation are not dispositive, but a three month gap between the
settlement of her EEO complaint and her being singled out serves to establish causation;
(2) other factors such as “a pattern of antagonism” and “evidence gleaned from the record
as a whole,” establish causation; (3) causation is established under a “cat’s paw” theory;
and (4) if all else fails, a motivating factor test can establish causation instead of a “but for”
test. Response [#17] at 13-17. The Court addresses each in turn.
Unless the adverse action takes place soon after a plaintiff’s protected activity, the
passage of time in general, even by a few months, is insufficient to establish causation
alone. Meiners v. U. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (stating that a period
of two to three months between plaintiff’s protected activity and the alleged retaliation was
“under our precedents, probably too far apart . . . to establish causation by temporal
proximity alone”). 	Even if the Court considers the earliest alleged act of retaliation,
Plaintiff’s protected activity is removed by a period of at least three months, which is too far
removed to establish causation by temporal proximity alone. Accordingly, Plaintiff must
allege other facts supporting an inference of causation. Id. In an attempt to do so, Plaintiff
asserts that there has been a pattern of discrimination at VA hopitals generally. Compl.
[#1] ¶ 72; Response [#17] at 16. 	However, she has not made any allegations in her
Complaint [#1] allowing the Court to infer a pattern of animus toward her. Indeed, Plaintiff
never attempts to claim that anyone other than Dr. Sandberg knew of her EEO complaint.16
16 Although Plaintiff asserts in her Response [#17] at 16 that “[t]he OMLA referred a cherry-
picked Asian woman who they knew engaged in EEO activity to the NPDB,” there are no allegations
in the Complaint [#1] making such an assertion. See Perkins v. Silverstein, 939 F.2d 463, 470 n.6
(7th Cir. 1991) (“[A] complaint may not be amended by briefs in opposition to a motion to dismiss.”);
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For instance, the numerous letters sent to Plaintiff occurred as a result of the OMLA
malpractice investigation and were sent by people who are not alleged to have known of
Plaintiff’s prior EEO complaint. See, e.g., Compl. [#1] ¶¶ 19, 20, 27, 35, 41. No member
of the OMLA Review Panel, all of whom are named in the Complaint [#1] at paragraph 39,
is alleged to have any knowledge of Plaintiff’s EEO complaint, nor is alleged to have had
a personal relationship with Dr. Sandberg, nor is alleged to have even worked with him and
Plaintiff at the Denver VA. 	Absent the OMLA Review Panel members’ knowledge of
Plaintiff’s EEO complaint, there is no link between any alleged retaliatory acts and Plaintiff’s
protected activity, even if Plaintiff’s Complaint is construed to allege that Dr. Sandberg,
acting as an agent or employee of the Denver VA, retaliated against her by orchestrating
inclusion of her actions in the OMLA review. The necessary focus of Plaintiff’s retaliation
claim must be on the purported adverse action—the negative findings of the OMLA Review
Panel regarding Plaintiff’s review of the x-ray. Plaintiff has provided no allegations which
suggest that the OMLA’s ultimate finding, after an approximately three year review process,
was in any way linked to unlawful retaliation, as the Panel members had no knowledge of
Plaintiff’s previous EEO complaint against Dr. Sandberg. Ostler v. Anderson, 200 F. App'x
750, 752 (10th Cir. 2006) (“To establish a causal connection, plaintiff must show that the
individual who took adverse action against [her] knew of the employee’s protected
activity.”); see also Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (To establish a
causal connection, a plaintiff must “present evidence of circumstances that justify an
inference of retaliatory motive.”) (internal quotation marks omitted); Hinds v. Sprint/United
accord Kearney v. Dimanna, 195 F. App’x 717, 721 n.2 (10th Cir. 2006).
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Mgmt. Co., 523 F.3d 1187, 1202-03 (10th Cir. 2008) (acts beginning pattern of retaliation
must share close temporal proximity with protected activity); Davis v. BAE Sys. Tech. Sols.
& Servs., Inc., No. 17-cv-00322-LTB-STV, 2017 WL 4548282, at *4 (D. Colo. Oct. 12,
2017), aff’d, 764 F. App’x 741 (10th Cir. 2019) (finding plaintiff’s factual allegations
insufficient “to raise or infer a plausible claim of retaliation because they d[id] not reveal a
causal connection when viewed alone, together in context, or as a pattern of retaliation.”
(citing Meiners v. U. of Kan., 239 F.Supp.2d 1175, 1194 (D. Kan. 2002), aff’d, 359 F.3d
1222 (10th Cir. 2004) (ruling that an isolated decision does not evidence a pattern of
retaliatory conduct))). Moreover, the Court presumes, absent allegations to the contrary,
that an agency’s review process, such as the Panel’s determination and the HHS’s
rejection of Plaintiff’s request for consideration, was fairly done. See U.S.P.S. v. Gregory,
534 U.S. 1, 10 (2001). 	Thus, even considering all the allegations together, there is no
pattern of antagonism against Plaintiff sufficient to establish causation.
Plaintiff’s “cat’s paw” 17 argument fails for the same reasons. In the Tenth Circuit,
such an argument may only establish causation when a plaintiff shows that the final
decisionmaker adopted a supervisor’s biased recommendation without an independent
investigation. Ward, 772 F.3d at 1205. Again, Plaintiff never alleges that the OMLA, the
decisionmaker ultimately responsible for reporting Plaintiff to the NPDB, ever knew of her
protected activity. 	Moreover, based on the October 6, 2014 report sent to Plaintiff, it
appears that the OMLA conducted a three-year investigation, which Plaintiff never contends
17 “In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a
biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe
in a deliberate scheme to trigger a discriminatory employment action.” E.E.O.C. v. BCI Coca-Cola
Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006).
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was influenced or tainted so severely by Dr. Sandberg as to cause OMLA to retaliate
against her. In fact, according to Plaintiff’s allegations, OMLA eventually investigated five
other radiologists, including Dr. Sandberg. 	Compl. [#1] ¶ 38. 	Defendant also correctly
notes that, in the absence of allegations that the OMLA Review Panel was biased or that
it acted because of Plaintiff’s EEO complaint, Plaintiff fails to raise a reasonable inference
that the Panel’s decision to report her was an act of retaliation given that the Panel was
mandated by regulation to issue the report. 45 C.F.R. § 60.16(a); 45 C.F.R. § 60.3. The
Court might be missing a rather well-orchestrated ruse to cover up deep retaliation, but
from the allegations it appears that OMLA conducted an independent investigation, which
resulted in actions required by law. See Simmons v. Sykes Enters., Inc., 647 F.3d 943, 950
(10th Cir. 2011) (holding that the “cat’s paw” theory did not apply when the decisionmakers
conducted their own investigation and personally interviewed the employee before firing
her).
Plaintiff also argues that she should be allowed to proceed to discovery to remedy
her lack of allegations regarding OMLA’s knowledge. Response [#17] at 16. However, as
Defendant correctly states, discovery is not a tool that parties may use to cure pleading
deficiencies. Twombly, 550 U.S. at 559 (“It is no answer to say that a claim just shy of a
plausible entitlement to relief can, if groundless, be weeded out early in the discovery
process . . . .”).
Lastly, Plaintiff’s assertion that the Court need not consider her protected activity as
the “but for” cause, but as a motivating factor of the adverse actions taken by a federal
agency, does not comport with Tenth Circuit precedent and has been rejected by other
courts. Ward, 772 F.3d at 1203; see Laul v. Los Alamos National Labs., 765 F. App’x 434,
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442 (10th Cir. 2019) (holding that the plaintiff failed to provide sufficient evidence showing
that “his protected activity caused” the adverse action).
The time difference between Plaintiff’s protected activity and her being singled out
is not sufficiently close to allow for a causal inference alone. Meiners, 359 F.3d at 1231.
The wide swath of time between the protected activity and later alleged retaliatory acts
certainly does not do so. Plaintiff has also failed to allege any facts in her Complaint [#1]
separate from the time period to allow the Court to assume any causal connection. See
Ward, 772 F.3d at 1203 (“The evidence of but-for causation must be based on more than
mere speculation, conjecture, or surmise.”). 	Accordingly, the Court recommends that
Plaintiff’s retaliation claim under Title VII (“Count One”) be dismissed without prejudice.
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that prejudice should
attach to a dismissal if the plaintiff has not made allegations “which, upon further
investigation and development, could raise substantial issues”).
E. 	Injunctive Relief (“Count Four”)
As a final note, Defendant has moved to dismiss Plaintiff's fourth claim for injunctive
relief. Motion [#13] at 17. The Court construes this count as a request for relief pursuant
to Plaintiff’s Title VII claims, rather than a separate cause of action. See Response [#17]
at 20 (“Because the Plaintiff has viable claims for discrimination and retaliation, injunctive
relief may be still available.”). Accordingly, given that the Court recommends that Plaintiff’s
Title VII claims be dismissed, injunctive relief is no longer available as a remedy for the
alleged Title VII violations.
IV. Conclusion
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For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motion [#13] be GRANTED and that
Plaintiff’s Title VII claims be DISMISSED with prejudice (“Counts Two and Three”) and
DISMISSED without prejudice (“Count One”), as outlined above.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have
fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. 	A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions, Makin v. Colo Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 	91 	F.3d 	1411, 	1412-13 	(10th 	Cir. 	1996). 	A 	party’s 	objections 	to 	this
Recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review. United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
IT IS FURTHER ORDERED that the Clerk of the Court is directed to update the
case caption on the electronic docket to reflect that “Robert Wilkie, Secretary, Department
of Veterans Affairs” is substituted as the named Defendant in this case.
Dated: August 21, 2019
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