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Shaffer v. Shinseki

February 9, 2009


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing



This matter comes before the Court on the Plaintiff's Motion for Leave to Amend (Document No. 53). For the reasons that follow, the motion will be granted in part and denied in part.


Plaintiff Kim Ronce Shaffer, D.D.S. ("Shaffer"), commenced this action against Secretary of Veterans Affairs R. James Nicholson ("Secretary Nicholson") and the United States of America on March 8, 2007.*fn2 Doc. No. 1. He alleged violations of both Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. § 2000e et seq.] and the Age Discrimination in Employment Act ("ADEA") [29 U.S.C. § 621 et seq.], based on hostile work environment, disparate treatment and retaliation theories. Doc. No. 1, ¶¶ 63-79, 86-99. He also asserted claims for gender and age discrimination under 42 U.S.C. § 1981a. Id., ¶¶ 80-85, 100-104. Under the Federal Tort Claims Act ("FTCA") [28 U.S.C. § 2671 et seq.], he sought redress for the asserted torts of negligent infliction of emotional distress, negligent supervision and negligent damage to property. Id., ¶¶ 105-132. In addition, he sought injunctive and declaratory relief for violations of the Due Process Clause of the Fifth Amendment. Id., ¶¶ 133-147.

On May 10, 2007, the Defendants filed a Partial Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), seeking, inter alia, the dismissal of Shaffer's FTCA claims for failure to exhaust administrative remedies in accordance with 28 U.S.C. § 2675(a). Doc. No. 3, pp. 15-17. Shaffer responded to this motion on May 11, 2007, by filing an administrative tort claim with the Veterans Affairs Department's Office of Regional Counsel, seeking damages in the amount of $12,000,000.00. Doc. No. 24-2, p. 26. The claim was denied on September 6, 2007. Id., pp. 26-27. On September 13, 2007, Shaffer filed a separate action against the Defendants, asserting FTCA claims for negligent infliction of emotional distress, negligent supervision and negligent damage to property. CV-07-1234, Doc. No. 1, ¶¶ 7-34. He also sought leave to withdraw the unexhausted FTCA claims which he had pursued in this action, contending that they had been replaced by the exhausted FTCA claims filed in the second action. Doc. No. 24. The Court granted Shaffer leave to withdraw his unexhausted claims. Doc. No. 25. Shaffer filed a Motion to Consolidate on September 19, 2007, seeking to consolidate this action with the one involving his exhausted FTCA claims. Doc. No. 26. The actions were consolidated on September 27, 2007. Doc. No. 28. This series of procedural maneuvers remedied the lack of exhaustion which had been the Defendants' initial basis for seeking dismissal of Shaffer's FTCA claims. Nevertheless, on December 6, 2007, Defendants filed a Motion to Dismiss Shaffer's FTCA claims on other grounds. Doc. No. 35.

On March 24, 2008, the Court issued an opinion dismissing Shaffer's retaliation claims under the ADEA, his claims under § 1981a, and his FTCA claims. Shaffer v. Peake, Civil Action No. 07-298, 2008 WL 794470, 2008 Dist. LEXIS 22967 (W.D.Pa. March 24, 2008). Because the FTCA claims were dismissed, the United States was dismissed as a party to this action. On July 30, 2008, Shaffer's ADEA retaliation claims were reinstated in accordance with the decision of the United States Supreme Court in Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008). Doc. No. 62.

Shaffer filed the instant Motion for Leave to Amend on June 9, 2008, seeking to reassert FTCA claims for negligent infliction of emotional distress and negligent supervision, and to reinstate the United States as a defendant in this action. Doc. No. 53. This motion and its appropriate resolution are best understood by reference to the allegations already contained in Plaintiff's Complaint.

A. Facts Alleged in the Complaint

Shaffer is an adult male who resides in Butler, Pennsylvania, and is employed by the Veterans Affairs Medical Center ("VAMC") in Butler. Doc. No. 1, ¶ 1. When this action was commenced, he was seventy-four years of age. Id., ¶ 4. Shaffer is a licensed dentist in good standing in the Commonwealth of Pennsylvania, and he has been employed by the Butler VAMC since 1971. Id. He was appointed as a dentist pursuant to 38 U.S.C. § 7401(1), and he completed his probationary period in 1973. Id., ¶ 5. Since his appointment, Shaffer has been consistently rated as "qualified" to perform his duties in his annual performance evaluations. Id., ¶ 6. He has also received awards for his performance.


Since 2000, Linda Thompson ("Thompson") and Tracy Boyle ("Boyle") have been employed as dental assistants to both Shaffer and a younger, female dentist. Id., ¶ 7. Their duties have included preparing operating rooms and patients, passing instruments to the dentists, and ensuring that all rooms, instruments and equipment remain clean. Id. David Wood ("Wood") is also employed by the Department of Veterans Affairs. Id., ¶ 8. At one point, he was the Director of the Butler VAMC. Id. As such, he was responsible for supervising agency personnel on behalf of Charleen R. Szabo ("Szabo"), who was the Director of the Veterans Integrated Services Network ("VISN"). Id. Varsha Mehta ("Mehta") is the Butler VAMC's Chief of Staff. Id., ¶ 9. At all relevant times, she was responsible for supervising agency personnel on behalf of the Director of the Butler VAMC. Id. Although she is not a dentist and holds no qualifications in the field of dentistry, Mehta is Shaffer's immediate supervisor. Id., ¶ 10. The Butler VAMC has not had a Chief of Dental Service to supervise dental employees since 1998. Id., ¶ 11. For this reason, Thompson and Boyle were supervised by a respiratory therapist with no dental background. Id., ¶ 12. In 2004, this respiratory therapist completed all performance evaluations for members of the dental staff, including those for Shaffer, Thompson and Boyle. Id., ¶ 13.

Shaffer alleges that, during the spring of 2005, Thompson and Boyle decided that they no longer wanted to work for him. Id., ¶ 14. They allegedly conspired to engage in a pattern of conduct designed to make Shaffer's work environment hostile and, ultimately, to force the termination of his employment. Id. On March 10, 2005, Thompson and Boyle made false allegations about Shaffer to Wood and Mehta. Id., ¶ 15. These allegations were made both orally and in writing. Id. Thompson and Boyle claimed that Shaffer could not perform his duties as a dentist because of mental confusion, shaky hands, and poor eyesight. Id., ¶ 16. They also contended that he was slow and ineffectual, that he lacked competence, that he did not show enough empathy to his patients, and that he had injured patients without completing required reports about such injuries. Id. The most serious allegations lodged against Shaffer by Thompson and Boyle included statements that he had used dental instruments on patients until they were visibly bloody, and that he had been spreading loathsome diseases to his patients. Id.

Shortly thereafter, Wood and Mehta agreed that Shaffer should be put on an indefinite administrative leave, and barred from the Butler VAMC, until after a non-evidentiary hearing before three agency employees. Id., ¶ 17. They did not consult anyone with expertise in the field of dentistry before taking this action. Id. Despite the allegedly "intolerable" conditions placed on Shaffer, he did not resign. Id., ¶ 18. Shaffer received a hand-delivered summons at his home on March 14, 2005, directing him to appear for a hearing the following day. Id., ¶ 19. He was not informed of the charges against him, nor was he provided with written notification of the summary suspension of his privileges. Id. These omissions constituted violations of agency policies. Id.

A non-evidentiary hearing was held on March 15, 2005, before a panel of three employees, none of whom were dentists. Id., ¶¶ 17, 20. Thompson and Boyle both testified at the hearing, making false accusations against Shaffer. Id., ¶ 20. Because the members of the panel were not dental experts, they took no action after the hearing. Id., ¶ 21. Wood responded in May of 2005 by convening a panel of experts in the field of dental infection control to investigate the allegations against Shaffer. Id., ¶ 22. This panel included an agency infection control physician and three dentists. Id. Two of the dentists were employed by the Department of Veterans Affairs, while the third was employed by the United States Air Force. Id. The expert panel found the allegations against Shaffer to be without merit, determining that they had been motivated by a discriminatory animus and recommending that Shaffer's patients not be notified of the investigation. Id., ¶ 23.

Shaffer returned to work on May 23, 2005. Id., ¶ 24. The Department took no action to remedy the "discrimination" against him. Id. Thompson and Boyle refused to provide Shaffer with assistance. Id. Shaffer informed Mehta about the situation and requested further assistance, but his request was ignored. Id. Notwithstanding the expert panel's recommendation to the contrary, Wood sent letters to 2,086 former patients on June 9, 2005, advising them to call a help-line created for those believed to have contracted loathsome diseases from Shaffer during the previous six years. Id., ¶ 25. A staff meeting was held on June 20, 2005. Id., ¶ 26. At that meeting, Mehta ridiculed and demeaned Shaffer in front of the entire dental staff, referring to him as slow, ineffectual and incompetent. Id. She said this while knowing that Shaffer was both competent and productive, and that his patients were pleased with his services. Id. Throughout the spring and summer of 2005, Wood repeated several false allegations made by Mehta, Thompson and Boyle about Shaffer to numerous individuals. Id., ¶ 27. One such communication was made in the form of an electronic mail message to all employees of the Butler VAMC. Id. Wood also made statements about Shaffer to several dentists and public officials, as well as to the Pennsylvania Department of Health and the Joint Commission on Accreditation of Health Organizations ("JCAHO"). Id.

In August 2005, Mehta withheld Shaffer's application for the renewal of his professional privilege to work as a dentist at the Butler VAMC. Id., ¶ 28. This action allegedly constituted a violation of agency policy. Id. On September 21, 2005, Mehta made statements to the television, radio and newspaper media indicating that a member of the Butler VAMC's dental staff may have caused patients to contract loathsome diseases by using unsterilized equipment. Id., ¶ 29. The next day, Thompson and Boyle submitted to Wood and Mehta a list of false allegations against Shaffer involving sixty new patients. Id., ¶ 30. These allegations were based on notes which had been secretly compiled by Thompson and Boyle over a period of four months. Id. Wood and Mehta responded on September 23, 2005, by placing Shaffer on a directed ...

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