Nance v. McDonough
1:22-cv-00447
W.D.N.Y.Mar 11, 2025Background
- Dwayne H. Nance, a former Medical Supply Technician at a VA hospital, sued Denis R. McDonough (VA Secretary) and Frank Riggi (VA supervisor) alleging racial discrimination, retaliation, and whistleblower violations.
- The initial complaint was based on Title VII, the Whistleblower Protection Act (WPA), and the New York State Human Rights Law (NYSHRL) after Nance was fired in November 2017 following disputes over work assignments and cleaning procedures.
- The court previously allowed Nance’s Title VII racial discrimination claims against McDonough to proceed but dismissed other claims, giving Nance leave to amend on some.
- Nance filed an amended complaint focusing on retaliation and workplace complaints, omitting explicit claims of race discrimination.
- The court reviewed whether the amended complaint raised viable claims under Title VII (discrimination and retaliation), WPA, and, liberally construed, the FTCA, considering exhaustion of administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title VII Racial Discrimination | Nance was harassed, given negative evaluations, and fired after workplace complaints, originally including claims of discrimination. | Nance fails to allege facts or assert discrimination based on race in the amended complaint. | Dismissed; amended complaint provides no basis for race discrimination claim. |
| Title VII Retaliation | He was fired for raising concerns about job assignment rotations and safety procedures, which he labels as protected activity. | Complaints were about non-Title VII practices and not protected activity; Nance did not exhaust administrative remedies on retaliation. | Dismissed; not protected activity under Title VII and no exhaustion. |
| WPA Claims | Termination was in retaliation for reporting threats to patient safety (whistleblower protection). | No exhaustion of administrative remedies; court lacks jurisdiction. | Dismissed without prejudice for lack of subject matter jurisdiction. |
| FTCA Claim | VA employees' false statements hurt him during the EEOC investigation. | Did not exhaust administrative remedies and FTCA excludes such claims. | Dismissed without prejudice for lack of subject matter jurisdiction. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for facial plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (requirements for surviving a motion to dismiss)
- McNeil v. United States, 508 U.S. 106 (FTCA administrative exhaustion requirement)
- Triestman v. Fed. Bur. of Prisons, 470 F.3d 471 (liberal construction of pro se pleadings)
- Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76 (FTCA exhaustion is jurisdictional)
- Lore v. City of Syracuse, 670 F.3d 127 (Title VII retaliation prima facie elements)