Rogers v. Shinseki, No. 1:2012cv00194 - Document 56 (S.D. Ga. 2014)
Court Description: ORDER granting 46 Motion to Dismiss as to all remaining claims in the Amended Complaint; directing the Clerk to close this case. Signed by Judge J. Randal Hall on 11/04/2014. (thb)
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Rogers v. Shinseki Doc. 56 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION JOSEPHINE D. ROGERS, Plaintiff, CV 112-194 v. ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant. ORDER This matter Dismiss. (Doc. is before 46.) In the this Court on action, Defendant's to Josephine Plaintiff Motion D. Rogers, a former registered dietician at the Department of Veterans Affairs (MVA") Medical Center in Augusta, Georgia, alleges her supervisors harassed her and retaliated against her on the basis of race in violation of Title VII of the Civil Rights Act of 1964, U.S.C. § 2000e et seq. On March 18, 2014, an 42 amended complaint. complaint on April 25, the Court granted Ms. Rogers leave to file Ms. Rogers 2014 (Doc. 41), timely filed her amended to which Defendant filed a Motion to Dismiss in lieu of an answer (Doc. 46). Ms. Rogers did not respond to Defendant's motion within fourteen days and thus, pursuant to this Court's Local Rules, the motion unopposed. L.R. 7.5, SDGa. the Court could have deemed Recognizing, however, that Ms. Rogers is proceeding pro se and did file a Motion for Default Dockets.Justia.com Judgment within the fourteen-day window, on October 8, the Court issued an Order 2014 granting Ms. Rogers ten additional days in which to respond to the instant motion to dismiss.1 filing, Ms. Rogers has responded that w[a]11 parties are aware that Plaintiff has Dismiss," and she published in July, not been cites complaints across cites In a timely, one-page no Amended other two that the to the articles report on content from the The of relevant and no to prevalence the legal the Augusta country at VA facilities. facts Complaint privy (Doc. claims authority of set in Motion to Chronicle, retaliation 54.) forth She in opposition her to Defendant's motion. The Court again finds Ms. Rogers' filing fails to address the merits of the motion presently before the Court, not inclined opportunities to continue granting given her persistent Ms. Rogers confusion but the Court is second about the and third duties of litigants before this Court and Defendant's consistent flexibility in response.2 1 Indeed, although plaintiffs who act pro se are "held The Court denied Ms. Rogers' 52.) Further, as the default belief that Defendant did not Motion for Default Judgment. (Docs. 47, motion only addressed Ms. Rogers' erroneous answer or otherwise respond to her Amended Complaint, the Court did not interpret it as being responsive to the Motion to Dismiss currently under the Court's consideration. (See Doc. 53.) 2 (Doc. Ms. Rogers responded similarly to Defendant's first motion to dismiss 15) . In two lines, she remarked, "Plaintiff is responding to the motion by the defendant to dismiss the case. Plaintiff opposes this motion. Also, on July 26, 2013 Plaintiff received the Order from Judge Brian K. Epps to proceed with the case." (Doc. 17.) Ms. Rogers' ultimately filed a substantive response (Doc. 19) and sur-reply (Doc. 22) after Defendant advised Ms. Rogers in its Reply that "she ha[d] misconstrued the [Magistrate Judge's] grounds] July 26, 2013 Order" and that she "must address [the substantive if she does not agree that her case must be dismissed for the reasons asserted by Defendant" (Doc. 18). On account of Ms. Rogers' apparent ability to produce substantive argument in response to Defendant's first dispositive motion, which she obtained electronically through the Court's filing system, the Court expects no different at this stage. Additionally, Defendant represents to the Court that he served the motion to dismiss and 2 to a less "will, stringent therefore, standard" be than attorneys liberally construed," have "no license to harass others, meritless litigation, Tannenbaum v. Patterson v. those same plaintiffs clog the judicial machinery with and abuse already overloaded court dockets." United States, Aiken, and their pleadings 841 148 F.3d 1262, F.2d quotation marks omitted). 386, 387 1263 (11th (11th Cir. Cir. 1988) But in consideration of Ms. se status and this Court's 1998); (internal Rogers' pro strong policy of determining cases on the Court proceeds to evaluate Defendant's motion for the merits, dismissal in the context of Ms. Rogers' two claims: retaliation and constructive discharge. I. LEGAL STANDARD The Court must construe the pleadings of and in the light most motion to dismiss. (11th Cir. favorable Watts v. 2007) . At Fla. this to the plaintiff Int'l Univ., stage, a complaint broadly the in reviewing a 495 F.3d 1289, Court tests for 1295 legal sufficiency, not whether the plaintiff will ultimately prevail on the merits. Scheuer v. a plaintiff is allegations" provide not Rhodes, 416 U.S. required provide of his 'entitle[ment] more than labels and conclusions, of 236 to survive a motion to dismiss, the 'grounds' elements to 232, a cause of action (1974). "detailed Although factual the "obligation to to relief requires and a formulaic recitation of the will not do." Bell Atl. Corp. v. brief on Ms. Rogers twice at her address of record, and has not received any correspondence from Ms. Rogers requesting an additional copy. (Def.'s Reply, Doc. 55, at 1-2.) Twombly, accept 550 U.S. 544, the complaint's pled facts. 555 (2007) . legal Simply put, conclusions as the court need not true, only its well- Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). As the Court previously noted, when plaintiffs act pro se, the pleadings are "held to a less stringent drafted by attorneys and will, Tannenbaum v. "This leniency, rewrite action." 637 United States, an however, otherwise Thomas v. (11th Cir. 148 does 1263 require pleading Pentagon Fed. in (11th Cir. or allow order Credit Union, 1998). courts sustain to to an 3 93 F. App'x 635, of this 2010) . Court previously DISCUSSION outlined thorough form in its March 18, liberal be liberally construed." F.3d 1262, not deficient II. The therefore, standard than pleadings the facts 2014 Order. (Doc. case in 38 at 1-6.) A reading of the Amended Complaint reveals two claims: retaliation and (2) constructive discharge. The Court (1) addresses each in turn. A. To Ms. Rogers' Direct Retaliation Claims state a claim for retaliation under Title plaintiff must first establish a prima facie case. Taco Bell Corp., 141 F.3d 1457, prima facie case is met, 1460 (11th Cir. VII, the Olmstead v. 1998). If this a presumption of retaliation arises and the burden shifts to the defendant to "proffer a legitimate, retaliatory reason for the adverse employment action." the defendant sets forth such a reason, 4 Id. non- If the presumption disappears and the plaintiff must show that the reasons stated were merely a pretext. Id.; Masso v. Miami-Dade Cnty., (S.D. Fla. 465 F. Supp. 2d 1260, 1265 2006). "A prima facie case of retaliation contains three elements: 1first, the second, the plaintiff suffered an adverse employment action; finally, plaintiff engaged in statutorily Williams (11th Cir. 2002) v. Motorola, is statutorily protected, recognized and two unlawful assisted, clause) or proceeding, clause)." 303 1284, employment or 1291 Co., 197 the Supreme Court and Eleventh Circuit categories (2) participated of activity: has employee is xhe has opposed any practice practice *he "An by made in any manner this Clover v. Total Sys. Servs., subchapter' a charge, in an or hearing under this subchapter' (11th Cir. 1999) F.3d In determining whether activity protected from discrimination if (1) opposition Inc., (quoting Farley v. Nationwide Mut. Ins. F.3d 1322, 1336 (11th Cir. 1999)). made an conduct; the adverse action was causally related to the protected expression. "' have protected Inc., (the testified, investigation, (the participation 176 F.3d 1346, 1350 (quoting 42 U.S.C. § 2000e-3(a)). When proceeding under the opposition clause, a plaintiff need not prove the underlying discrimination claim, but must demonstrate "a good faith, reasonable belief that the employer was engaged in unlawful employment practices." F.3d 1307, omitted). 1311 (11th Cir. Weeks v. 2002) Harden Mfg. (internal Corp., quotation 291 marks It is critical under this to emphasize standard has that both a a plaintiff's subjective burden and an objective component. A plaintiff must not only show that [s]he subjectively (that is, in good faith) believed that [her] employer was engaged in unlawful employment practices, but also that [her] belief was objectively reasonable in light of the facts and record presented. Id. at 1312 (quoting Little v. Div., 103 F.3d 956, 960 Ms. when she Rogers Opportunity ("EEO") when she Carrier Transicold (11th Cir. 1997)). alleges initiated United Tech., she participated in opposition activity informal counseling with an Equal representative on October 5, Employment 2010 and again filed a formal administrative complaint with the December 30, 2010. (Am. Compl., Doc. 41, at 1.) EEO on She premises her direct retaliation claim on the assertions that she received (1) a "Fully Successful" performance rating on October 20, 2010, which was lower than the previous year and notice on December 17, context or details, Ms. 2010. (2) Further, a ten-day suspension without any additional Rogers states that on November 19, 2010, she "became aware that [her] supervisor, Sheri Loflin, was aware of [her] contact with the agency's EEO Officer." 1. (Id. 1 7.) October 20, 2010 Performance Evaluation Ms. Rogers has failed to allege sufficient facts to make out a prima facie case of retaliation on the ground of a deficient performance evaluation. not constitute performance an adverse evaluations, consequences,' are First, a rating of "Fully Successful" does not employment which xdo sufficient not to action. lead to form the "[E]mployee tangible basis of job a retaliation claim under Title VII." Batch v. Jefferson Cnty. Dev. Council, 183 F. App'x 861, 863 (11th Cir. 2006) v. Town of Lake Park, 245 F.3d 1232, 1241 Child (quoting Davis (11th Cir. 2001)). Ms. Rogers merely asserts that the rating should have been higher, and that she "did not [receive] credit for the work that [she] did throughout the year." 27; Compl., Doc. consequences highest she 1, rating (11th Cir. 2006) 212 which . . . action."), She available: amount has no alleged of receiving tangible the no termination, second demotion, or loss Id. ; Brown v. Snow, 440 F.3d 1259, 1265-66 (internal citation omitted); Gupta v. Fla. Bd. of F.3d had of (Am. Compl. at 20; id. H ineligibility for promotional opportunities, of salary or benefits. Regents, 7.) suffered as a result performance reassignment, at tremendous no 571, 588 effect on (11th an Cir. employee 2000) is not ("An an action, *adverse' abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also Cain v. Geren, 261 F. App'x 215, 217 (11th Cir. 2008) (affirming the district court's finding that an employee's receipt of a "2" instead of a "1" was not an adverse employment action, as she did not present any evidence that the "2" rating had an adverse impact on her ability to receive a promotion, raise, or any other type of employment benefit); Odom v. Holder, No. 2:11-CV-3086-SLB, 2014 WL 1233709, at *22 (N.D. Ala. Mar. 25, 2014) (finding employee's "Excellent" rather than "Outstanding" performance review was not a materially adverse action that would dissuade a reasonable employee from filing an EEO complaint). Moreover, to satisfy the causal connection requirement of the prima facie case, at a minimum, Ms. Rogers must allege sufficient facts to show that her supervisors were actually aware of the protected expression at the time they allegedly took the adverse employment action. Cir. 1997). Holifield v. Reno, Although such awareness circumstantial evidence, an employer's awareness 115 F.3d 1555, may be 1566 established (11th with this Circuit requires plaintiffs to show "with more evidence timing coupled with speculative theories." that mere curious Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). Ms. Rogers' on November 19, in time - sole allegation that she personally became aware 2010 that Ms. Loflin - at some unidentified point learned of her indescript and unavailing. contact with the EEO counselor is It is improper for the Court to make any assumptions about the proximity of events, and it will not retroactively impart awareness upon Ms. Loflin so as to satisfy Ms. Rogers' burden at the pleading stage. See Williams v. Cleaver- Brooks , Inc., No. 7:11-CV-144 HL, 2012 WL 6151141, at *14 (M.D. Ga. Dec. 11, 2012), aff'd, 529 F. App'x 979 (11th Cir. 2013). 2. December 17, 2010 Suspension Notice As a second basis for her retaliation claim, Ms. Rogers points to the ten-day suspension imposed on December 17, 2010 by Jean Yarsawich, Chief of Food and Nutrition Services, for her "deliberate refusal to carry out a proper order" on four occasions during the period of November 9 through November 22, 2010. Compl. §§ 13, allege 16; Doc. 34 at 30.) sufficient retaliation. facts There to is no Here, make out question too, Ms. a that Rogers fails to prima Ms. facie Rogers' Wal-Mart (holding that constituted retaliation 913, 920 without Dep't Stores, Inc., 141 written adverse Hairston Cir. 1993) an adverse pay was of Corr., (finding 418 patrol F. 1453, reprimands employment claim); (11th F.3d that employment Supp. for 2d a Sun 1369, 1381 (S.D. Ga. 1998) 1998) suspensions purposes Pub. of Co., thirty-day 9 v. 1276-77 (M.D. Ala. suspension (holding the a F.3d suspension Evans without "clearly" an adverse-employment action); Naia v. Deal, 2d Cir. action); 1271, ten-day (11th the of See Wideman one-day Gainesville (holding officer's and actions v. 1455 case suspension without pay constitutes an adverse employment action. v. (Am. Alabama pay 2005) was 13 F. Supp. plaintiff's two-week suspension without pay, written reprimand, and six-month probation term constituted adverse employment actions for Title VII purposes); see also Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 80 n.ll (D.D.C. disciplinary 2002) ("[C]ourts have almost uniformly held that a suspension for which the employee is not compensated . . . amounts to an adverse employment action."). Again, connection however, Ms. requirement Rogers has failed to satisfy the causal in her pleadings. Ms. Rogers' only allegation setting forth supervisory awareness states that Ms. Rogers became aware on November 19, 2010 that Ms. Loflin — at some unidentified point in time — learned of her EEO counseling. The Court does retaliatory not negate suspension that the claim: timeline resolving is all right as to the inferences in Ms. Rogers' favor, Ms. Loflin was aware of Ms. Rogers' EEO activity at some point on or before November 19, 2010 and the VA suspended Ms. Rogers on December 17, 2010. her own awareness, substantiating however, facts, Beyond the vague assertion addressing Ms. Rogers' does not allege any other especially those which would implicate Ms. Yarsawich, who appears to have been ultimately responsible for her suspension. (Doc. 34 at 30-34.) Inc. , No. 108-CV-3551-TW, 2010) See Enadeghe v. Ryla Teleservs., 2010 WL 481210, at *9 (N.D. Ga. Feb. 3, (dismissing retaliation claim because plaintiff "d[id] not identify the individual who made the decision to terminate her in her Complaint, and she d[id] not allege that the decisionmaker was aware that she complained about any discriminatory conduct"). Just as the Court will not strain to impart awareness upon Ms. Loflin, it will not extrapolate the pleadings to impart such knowledge on Ms. Yarsawich, who is not even named. Furthermore, Ms. Rogers' pleading overall fails to support the proposition that her protected October expression and the December suspension were related in any tangible way. 1337 Farley, 197 F.3d at (reciting that plaintiffs are required to demonstrate only that the protected activity and the adverse action were "not wholly 10 unrelated" in a retaliation quotation marks omitted). action) (citations and internal Although "close temporal proximity" — in this case, approximately ten weeks — may be sufficient to state a claim in some cases, it is not dispositive standing alone. Id. The facts pled indicate that Ms. Rogers sought EEO counseling on October Over 5, 2010. (Am. Compl. at 1.) one month later on November 9, 2010, she refused to attend a meeting scheduled for the next day, and in fact did not attend. of behavior recurred three times, twice on November 22, 2010. "continued to schedule me Doc. 34 at 30.) (Id. at 17.) once (See id. on The same cycle November 16, 2010 and (noting that the supervisor to attend this meeting"; id. §§ 9, 28; These glaring facts do not suggest in the least that it was Ms. Rogers' EEO counseling, about which her supervisors questionably were aware, that precipitated suspension. As Ms. Rogers has failed to allege sufficient facts to make out a prima facie case, the Court DISMISSES her direct retaliation claims. B. Ms. Rogers' Claim Based on Retaliatory Hostile Work Environment Ms. Rogers also alleges she suffered a series of twelve incidents of hostile work environment prior to her resignation on January 31, 2Oil.3 3 In Gowski v. Peake, the Eleventh Circuit Court The EEOC identified twenty-four incidents in its comprehensive review of Ms. Rogers' claims, but only twelve occurred after Ms. Rogers' initial contact with the EEO counselor. (See Am. Compl. at 24-26.) As the protected conduct must precede the retaliatory action, the Court will not consider any conduct by Defendant that took place before October 5, 2010 in addressing Ms. Rogers' retaliatory hostile work environment claim. 11 of Appeals recognized work environment. Court to find a cause 682 F.3d 1299, that the "the pervasive 1312 for retaliatory (11th Cir. of the 2012). Department Ms. Yarsawich, hostile For this of Veterans and/or Albert Ward — Rogers to a hostile work environment in retaliation for her EEO activity, that action Secretary Affairs — through Ms. Loflin, subjected Ms. of actions she must allege sufficient facts to establish complained to alter of were sufficiently the terms and conditions constituting an adverse employment action." of Id. severe employment, or thus The requirement that the harassment be "severe or pervasive" contains an objective and a subjective component. 277 F.3d 1269, behavior 1276 must Miller v. (11th Cir. result in both 2002). an Kenworth of Dothan, Inc./ " [T]o be actionable, environment that a this reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] ... to (internal quotation marks omitted). be abusive." Id. In evaluating the objective severity of the harassment, courts consider "(1) the frequency of the conduct; conduct offensive is (2) the severity of physically utterance; threatening and (4) the conduct; or whether (3) humiliating, the conduct interferes with the employee's job performance." Id. whether or a the mere unreasonably "[W]hether an environment is *hostile' or 'abusive' can be determined only by looking at all the circumstances." 510 U.S. 17, 23 Harris v. Forklift Sys., Inc., (1993). Among other incidents, Ms. Rogers alleges: 12 (1) On November 9, Ms. Loflin ordered Ms. Rogers to attend a meeting that began thirty minutes before her scheduled tour of duty, which she refused to attend (Am. Compl. at 17) ; (2) Between November 9 and November 22, Ms. Rogers' supervisor continued to order her to attend the abovementioned, regularly-scheduled interdisciplinary meeting and "formed her 'posse'" on e-mails as to this matter (Id.); (3) On November 17, a co-worker slid patient profiles under Ms. Rogers' door for an upcoming meeting, and Ms. Rogers' called the VA Police "to handle" the documents and escort her to see Ms. Yarsawich because she "did not feel safe in her work environment" (Doc. 34 at 19); (4) On the same day, Ms. Loflin advised the entire staff that Ms. Rogers would cover a co-worker's assignment (Am. Compl. at 20, 25); (5) On November 23, 2010, Ms. Loflin slid an e-mail under Ms. Rogers' office door that gave her a direct attend a meeting for a co-worker (Id. H 9); (6) order to On the same day, and then again on November 29 and 30, 2010, Ms. Loflin "confronted [Ms. Rogers] several times in the hallways" and insisted that Ms. Rogers meet with her and Ms. Yarsawich about potential disciplinary action (Id. 1| 10) ; (7) On November 30, 2010, Ms. Loflin sent Ms. Rogers five e-mails with the subject matter "Proposed Disciplinary Action," which she did not open (Id. H 11; Doc. 34 at 17); (8) Ms. Yarsawich ignored Ms. Rogers' December 10, 2010 request to be reassigned to a new supervisor (Am. Compl. 11 12); (9) On December 17, 2010, "with the assistance of the VA Police," Ms. Rogers' supervisor placed a "suspicious package" on her desk (Id. at 15) ; (10) Ms. Loflin called Ms. Rogers on January 6, while she voicemail was "out on "requesting" sick leave" and 2011 at home left a brief that her call be returned; Ms. Rogers and her husband subsequently reported the voicemail message to the VA Police (Id. at 15; id. H 15; Doc. 34 at 50, 51); and 13 (11) During her suspension without pay from January 19 to January 28, 2011, "illegal entries were made on [her] time card" to charge her with annual leave, which were later corrected (Am. Compl. H 17; id. at 35). The Court assumes that Ms. Rogers subjectively believed the actions described above amounted to severe and pervasive her penchant to involve the police supports that. belief is not objectively reasonable. Title VII prohibits harassment, and But Ms. Rogers' It is not even close. discrimination; it "is not a shield against harsh treatment" or the "petty slights or minor annoyances that often take place at work and that all employees experience." Burlington, 548 U.S. at 68; McCollum v. (11th Cir. 1986) 1186 (5th Cir. those 610 (citing Jackson v. City of Killeen, 654 F.2d 1181, 1981)). abusive intimidation, Bolger, 794 F.2d 602, Instead, workplaces ridicule, Title VII "permeated and insult." is meant with Harris, Rogers' own pleadings make clear (1) to address discriminatory 510 U.S. at 21. Ms. that she disagreed with her superiors as to how her job should be performed and how her co workers should be managed, and (2) in response, she chose to disregard her supervisors' orders and attempts to communicate with her. Non-threatening, non-humiliating e-mails and requests limited to Ms. Rogers' apparent failure to cooperate and to fulfill work assignments do not objectively constitute severe conduct for which Title VII's anti-retaliation provision provides a remedy. Gowski, 682 retaliated F.3d against at two 1313-14 (finding doctors 14 who hospital filed EEO Cf. administration complaints by operating a targeted "campaign" over a period of years in which the they spread rumors about the doctors, front of doctors their to peers, build solicited cases for attempted to malign them in negative information termination, about removed them the from committees and projects, prohibited them from conducting research, limited their privileges and access to positions within the hospital, and gave them low proficiency ratings). Accordingly, Ms. Rogers' claim retaliatory hostile work environment must be DISMISSED. C. To Ms. Rogers' Constructive Discharge Claim sustain a constructive discharge claim, Ms. Rogers must sufficiently allege that Defendant imposed working conditions so onerous that a reasonable person in her position would have been compelled to resign. F.3d 1432, 1434 Thomas v. Dillard Dep't Stores, (11th Cir. 1997) . Inc., 116 The Court cannot consider Ms. Rogers' subjective feelings in evaluating such a claim, but rather employs a wholly objective standard. Dist., 145 F.3d 1441, 1450 (11th Doe v. Cir. Dekalb Cnty. 1998). Further, Sch. the threshold for a constructive discharge claim is higher than that for a hostile work environment claim. Ins. Co., 252 F.3d 1208, 1231 Hipp v. Liberty Nat'l Life (11th Cir. 2001). A plaintiff claiming constructive discharge must show "a greater severity or pervasiveness of harassment" reasonable response. (11th Cir. such that resignation is the only See Bryant v. 2009). 15 Jones, 575 F.3d 1281, 1298 Here, as Ms. Rogers' plausible claim for state a Amended Complaint retaliatory harassment, claim constructive discharge. fails it to likewise state fails a to Notwithstanding that there is a substantial question as to whether Ms. Rogers retired rather than resigned,4 the conduct about which Ms. Rogers complains - that Defendant assigned her to cover meetings for co-workers, made frequent attempts to communicate with her, and ultimately suspended her on a temporary basis in response — does not suggest or indicate such objectively intolerable working conditions that would compel a reasonable person to resign. find that an employer Courts in this circuit have failed to constructively discharged plaintiffs situations far more egregious than those alleged in this case. Wingfield v. S. Univ. 2010 WL 2465189, at *9 of Fla., (M.D. Inc., Fla. No. June 15, in See 8:09-cv-01090-T-24-TBM, 2010) (listing cases) ; see also Dale v. Wynne, 497 F. Supp. 2d 1337, 1344 (M.D. Ala. 2007) (concluding supervisor that no only constructive communicated with discharge employee occurred by where email, told employee's peers that he needed to approve anything she did, and would not allow her to manage her subordinates). Ms. Rogers' 4 Ms. Rogers' Amended Complaint avers that she "resigned from the agency, effective January 31, 2011." (U 18.) In her prayer for relief, however, Ms. Rogers appears to seek damages for delayed retirement payments, and notes that "upon retirement, my salary was at the GS-11, Step 8 level." (Id^ at 6 (emphasis added).) During the administrative process, moreover, the ALJ found that Ms. Rogers' retired. (Id^ at 35.) To the extent Ms. Rogers asserts the delay in payment of her retirement benefits was another retaliatory act, the Court finds she has not stated a claim. She appears to allege the delay was unintentional - due to "technicalities in the system" and fails to allege that anyone involved in processing her paperwork at the VA or Office Personnel Management was aware of her protected expression. (See Am. Compl. at 6.) 16 constructive discharge allegations, therefore, are due to be DISMISSED. III. For Motion the to reasons Dismiss Amended Complaint. ORDER November, ENTERED stated (Doc. 46) CONCLUSION herein, as to the Court GRANTS all remaining Defendant's claims in the The Clerk is DIRECTED to CLOSE this case. at Augusta, Georgia, this / 2 014. HONORHBfE^J. RANDAL HALL UNITE© STATES DISTRICT JUDGE 50UTJJERN DISTRICT OF GEORGIA 17 day of
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