The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
In August 2007, Plaintiff Medina Dukes was offered the position of registered nurse in the Women's Health Clinic of the Veterans Affairs Medical Center in Washington, D.C., conditioned upon the successful completion of a pre-placement medical examination. During the resulting examination, Ms. Dukes reported that she had a 70% service-connected disability, 10% of which related to her back. Thereafter, Ms. Dukes refused to provide any information about her condition beyond her back. The VA withdrew its job offer because Ms. Dukes did not complete the medical exam process. She has sued Eric K. Shinseki, Secretary, U.S. Department of Veterans Affairs ("VA"), under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., alleging that the VA discriminated against her based upon a perceived physical and mental disability by failing to hire her. Defendant has filed a motion to dismiss or, in the alternative, for summary judgment, which Ms. Dukes opposes. For the reasons set forth below, the Court will grant Defendant's motion.
In mid-2007, Ms. Dukes responded to Vacancy Announcement No. 07-17 issued by the VA Medical Center in Washington, D.C., concerning a position as a registered nurse in the Women's Health Clinic. She was interviewed for the position by Gayle Bell, Women Veterans Program Manager and Clinic Coordinator. Following the interview, Ms. Bell offered the job to Ms. Dukes, conditioned upon the successful completion of a pre-placement medical examination. Such an examination is required for all nurses, see Def.'s Mot. to Dismiss or for Summ. J. ("Def.'s Mot.") [Dkt. # 21], Ex. 3 (VA Handbook 5019) Pt. 2, ¶ 3, and Ms. Dukes does not claim otherwise.
In accord with VA policy, on August 17, 2007, Ms. Dukes went to the VA's Occupational Health Clinic, where she was examined by Nurse Practitioner George Giannakos. As part of the exam, Ms. Dukes filled out Standard Form 93 ("SF93"), Report of Medical History. See Def.'s Mot., Ex. 2. She answered "yes" to the question, "Have you ever received, is there pending, or have you ever applied for pension or compensation for existing disability?" Id. at 2. Mr. Giannakos reviewed Ms. Dukes' medical record with her. In response to a question from Mr. Giannakos, Ms. Dukes reported that she had a 70% service-connected disability, 10% of which related to her back.
Upon request, on August 30, 2007, Ms. Dukes faxed a copy of her VA Compensation and Pension ("C&P") Report to Mr. Giannakos.*fn1 However, the C&P report was "'edited' . . . for privacy reasons," and all information in the report pertaining to Ms. Dukes' 60% disability rating unrelated to her back was redacted. See id., Ex. 3 (faxed copy of redacted C&P report). On September 5, 2007, Mr. Giannakos spoke with Ms. Dukes and told her that Dr. Patrick Joyce, Director, Occupational and Environmental Health, required full disclosure of her C&P report. Def.'s Mot., Giannakos Aff. at 1. Ms. Dukes declined, saying that the edited portions had "no bearing on her back and her employability." Id.
Dr. Joyce interviewed Ms. Dukes by telephone on September 8, 2007. At that time, she declined to answer fully his questions regarding her general health, medications, and past medical history. Based on this interview and his review of her chart, Dr. Joyce found Ms. Dukes to be uncooperative with the pre-placement examination. He informed the Chief of Human Resource Management of his decision not to recommend Ms. Dukes for the registered nurse position:
Applicant declines to provide further medical information relating to medical issues that arose in the course of her pre-placement exam beyond that provided on the SF93. When explained to her again this date, she declared she did not need to answer questions as she was an experienced nurse, knew her duties, and could perform them.
Specifically, applicant indicated use of Wellbutrin; that she was 70% disabled by the VA; that she had chronic back pain, that she was [rated service-connected disabled] for more than just her back but that she would not say for what. She repeatedly objected to the inquiry and questioned the right of an employer to ask medical questions of a pre-placement applicant. She also indicated that if the question was not specifically asked on the SF93 she had no obligation to answer my questions.
Def.'s Mot., Ex. 6 (Memo from Dr. Joyce). By letter dated September 11, 2007, the VA notified Ms. Dukes that she was not selected for the position.
Ms. Dukes remembers her interactions with Nurse Giannakos and Dr. Joyce somewhat differently. She recalls Mr. Giannakos telling her that Dr. Joyce needed the medical records regarding the C&P exam and, when asked what Dr. Joyce was looking for, Mr. Giannakos "appeared evasive stating that they were concerned about the flexion/extension of the back and needed more information." Am. Compl. ¶ 25. Therefore, she submitted information concerning her back. She also recounts a statement by Dr. Joyce that "you just don't get a 70% service connected disability for a broken toe." Id. ¶ 27. Additionally, she alleges that Dr. Joyce made reference to her use of Wellbutrin. When she asked Dr. Joyce "to tell her what exactly he was looking for," "Dr. Joyce did not respond." Id. Ms. Dukes states that she "offered to come in to meet with [Dr. Joyce] for evaluation, submit to any examinations and evaluations, and/or bring the [Department] of Veteran Affairs Board Decision Compensation Packet to clarify her disabilities and Dr. Joyce refused informing her that his Nurse Practitioner was capable of performing the exam." Id.
From these interactions, Ms. Dukes concluded that the VA erroneously regarded or perceived her as physically or mentally disabled due to her 60% service-connected disability and her use of Wellbutrin. She alleges that she "cooperated with all aspects of the pre-placement medical examination conducted by the VA Medical Center," id. ¶ 23, and that Defendant's allegations to the contrary are a pretext for discrimination on the basis of perceived disability. Id. ¶ 31.
Defendant moves to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Where matters outside the pleadings are presented in a motion to dismiss, the court must treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). In this instance, the Court will consider the Complaint and the exhibits submitted by ...