Bejar v. Gibson (Summary)

EMPLOYMENT DISCRIMINATION/EXHAUSTION OF REMEDIES

Bejar v. Gibson
No. 13-2222-DDC-GLR (D. Kan. July 18, 2014)

The U.S. District Court for the District of Kansas dismissed a neurologist’s claims of discrimination and retaliation against the Veterans Administration (“V.A.”) due to lack of jurisdiction and failure to state a claim.

The plaintiff Ecuadorian neurologist began his work at the hospital in 1988. By 2010, he had filed seven Equal Employment Opportunity (“EEO”) complaints against the hospital, alleging discrimination and retaliation for prior complaints. In 2011, the neurosurgeon again filed an EEO complaint, arguing that hospital supervisors were engaging in discriminatory activity against him. He alleged that he was assigned extra work due to his nationality and in retaliation for his previous EEO claims. He also claimed that he was continually assigned to female patients, in violation of a hospital policy to assign patients and doctors of the same gender. The neurosurgeon expressed his belief that this was an attempt to elicit complaints from the female patients, giving the hospital a reason to take adverse action against him. Soon after his complaint was filed, a female patient alleged that the neurosurgeon had touched her inappropriately during an examination. Rather than investigate this complaint, the hospital suspended the neurosurgeon’s privileges. The neurosurgeon alleged that the defendant persuaded the woman to file a false complaint in order to have a reason to suspend his privileges. Even if there was no persuasion, the neurosurgeon claimed that the V.A. violated its normal hospital policy by assigning him to the female patient, which allowed the false complaint to occur. He maintains that the actions of the defendant were due to his race, national origin, and prior EEO complaints.

Because discrimination and retaliation claims are federal in nature, the court found that it had no jurisdiction over the case. However, the court dismissed the neurosurgeon’s claims based on the fact that he did not exhaust all administrative remedies before filing suit. Additionally, the court found that the neurosurgeon failed to show that he suffered a materially adverse employment action, rather than an inconvenient alteration of job responsibility. Due to this failure to state a claim, the court granted the defendant’s motion to dismiss.