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BYERS v. PRINCIPI

April 3, 2003

DIANE H. BYERS, PLAINTIFF,
v.
ANTHONY PRINCIPI, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: John W. Darrah, Judge, United States District Court

MEMORANDUM OPINION AND ORDER

Plaintiff, Diane H. Byers ("Plaintiff"), filed a single-count complaint against Defendant, Anthony Principi, Secretaiy of the Department of Veterans Affairs ("the VA"). The VA moves, pursuant to Federal Rule of Civil Procedure, to dismiss the complaint for failure to exhaust administrative remedies. For the reasons that follow, the VA's Motion to Dismiss is granted.

LEGAL STANDARD

When considering a motion to dismiss, the district court must review the complaint liberally, taking as true all well-pled allegations and the inferences that may be drawn from them. See Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999). Any ambiguities in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998). Dismissal is proper only when it appears beyond doubt that Plaintiff can prove no set of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143 F.3d 351, 359 (7th Cir. 1998).

"Although the Federal Rules of Civil Procedure do not require a plaintiff `to set out in detail the facts upon which he bases his claim,' . . . he must `set out sufficient factual matter to outline the elements of his cause of action or claim, proof of which is essential to his recovery.'" Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985) (internal citation omitted). A complaint will not avoid dismissal if it contains "bare legal conclusions" absent facts outlining the bases of the claims. Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).

BACKGROUND

For purposes of this Motion to Dismiss, the following allegations are taken as true.

Plaintiff is a licensed practical nurse ("LPN"). Plaintiff, who is white, is married to an African-American.

Intermittently, from some time in 1987 until September 2000, Plaintiff worked as a LPN at the Edward Hines, Jr. V.A. Medical Center in Hines, Illinois. Plaintiff filed complaints of discrimination and retaliation, alleging that she was treated differently than white employees who were not married to African-Americans and from non-complaining employees. Specifically, in 1999, Plaintiff filed an administrative charge of discrimination based on complaints by her co-workers concerning Plaintiff's posting a photograph of her husband.

After her complaints, Plaintiff continued to be subjected to different terms and conditions of employment than white employees who were not married to African-Americans and non-complaining employees. Additionally, Plaintiff was subjected to harassment, culminating in a proposed removal from her employment.

Plaintiff appealed the proposed removal to the Merit Systems Protection Board ("MSPB"), which ordered her return to work. When Plaintiff attempted to return to work, she was subjected to further harassment and to terms and conditions different than those imposed on whites who were not married to African-Americans and non-complaining employees. This harassment made is impossible for Plaintiff to perform her job, and she resigned.

At around the time that Plaintiff was appealing her proposed removal to the MSPB, she also filed an action in federal court, Case Number 01 C 975. Plaintiff sought to amend her complaint to include her alleged constructive discharge. However, the VA opposed such an amendment. On January 29, 2002, that court barred her constructive discharge claims from the trial.

After the January 29, 2002 ruling, on March 1, 2002, Plaintiff sought and received counseling on a new administrative complaint on that claim. Plaintiff ...


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