Roiger v. Veterans Affairs Health Care System

Background

Kenneth A. Roiger alleged that the September 2008 termination of his employment with the Department of Veterans Affairs Health Care System in Minneapolis violated the Rehabilitation Act. He asserted two Rehabilitation Act claims: one alleging termination because of a disability and another alleging retaliation for complaints to his union connected to his alcoholism diagnosis. He also asserted a claim under the Federal Tort Claims Act.

Roiger acknowledged that he had not exhausted administrative remedies before the Equal Employment Opportunity Commission for the Rehabilitation Act claims. The defendants presented evidence that he had not exhausted those remedies, and Roiger did not provide evidence showing that he had done so.

Last-chance agreement and termination

In late July 2008, Roiger signed a last-chance agreement that imposed workplace-conduct conditions and provided that he would be removed from federal service if he failed to comply. The agreement waived certain appeal rights, including rights to appeal through the Merit Systems Protection Board, grievance or arbitration procedures, and the agency Equal Employment Opportunity process or the Equal Employment Opportunity Commission for issues or incidents occurring on or before the agreement’s date.

Roiger’s union submitted a grievance on August 21, 2008, concerning alleged violations of his privacy and confidentiality of health information. The VA later terminated his employment effective September 24, 2008, stating that a positive drug-test result violated the last-chance agreement. Roiger alleged that the positive alcohol test supporting his termination was contrived.

Procedural history

The defendants initially moved under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, to dismiss all three claims for failure to exhaust administrative remedies. The court previously granted that motion as to the Federal Tort Claims Act claim because exhaustion under that statute is jurisdictional and Roiger had not pleaded that he exhausted the required remedies.

The court treated the motion differently as to the Rehabilitation Act claims because, under Eighth Circuit precedent, exhaustion for those claims is not jurisdictional but operates like an affirmative defense. The court treated the motion as one under Rule 12(b)(6), which addresses whether a complaint states a legally sufficient claim. Because the defendants asked the court to consider material outside the pleadings, the court converted the motion into one for summary judgment under Rule 56.

Analysis

Roiger argued that the last-chance agreement should be enforced as a complete prohibition on appeals and that pursuing Equal Employment Opportunity Commission remedies therefore would have been futile. He also argued that any dispute over the agreement’s validity presented a legal question that the Equal Employment Opportunity Commission could not decide.

The defendants did not challenge the validity of the last-chance agreement. The court therefore addressed only whether the futility exception excused Roiger’s failure to exhaust. An administrative remedy is considered futile when there is doubt that the agency could provide effective relief.

The court rejected Roiger’s futility argument. It interpreted paragraph (j) of the agreement as waiving Equal Employment Opportunity Commission remedies only for issues or incidents occurring on or before the agreement’s effective date in late July 2008. The events Roiger identified as supporting his Rehabilitation Act claims—including the assertedly contrived positive test and his union grievance—occurred in August and September 2008. The court therefore found that the agreement did not prohibit Roiger from pursuing Equal Employment Opportunity Commission remedies for those events.

The court also concluded that the agreement’s separate waiver of appeals to the Merit Systems Protection Board and grievance or arbitration procedures could not reasonably be read to waive Equal Employment Opportunity Commission rights, because paragraph (j) specifically addressed those rights. Roiger provided no argument explaining why paragraph (j) did not apply to his Rehabilitation Act claims.

Disposition

Judge Eric C. Tostrud ordered that Roiger’s Rehabilitation Act claims, Counts II and III, were dismissed with prejudice. The court also ordered that the defendants’ motion to dismiss was granted. The order stated that the motion had previously been granted in part as to Roiger’s Federal Tort Claims Act claim, and had been converted to a Rule 56 summary-judgment motion as to the Rehabilitation Act claims. The court directed that judgment be entered accordingly.