Opinion
Case No. 02-4083-JAR
February 4, 2004
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT
In this action, Plaintiff Yolanda Taylor raises eight claims of race discrimination and seven claims of retaliation under Title VII, as well as a claim of constructive discharge, against Defendant Anthony J. Principi, Secretary of Veterans Affairs, arising from Taylor's employment at the Veterans Administration Medical Center (VA) in Topeka, Kansas. This comes before the Court on Defendant's Motion for Summary Judgment, (Doc. 26) on all claims. Because there is a material issue of fact concerning Defendant's reason for denying Plaintiff's request to be relieved of temporary duties in the Urgent Care unit, the Court denies summary judgment on Plaintiff's claims of discrimination and retaliation, arising from that act.
The other claims of constructive discharge, discrimination and/or retaliation relate to Defendant failing to promote Plaintiff to three different positions, Defendant denying Plaintiff's request for 240 hours of advance paid sick leave, Defendant filing a charge that Plaintiff was absent without leave, Defendant issuing a Sick Leave Certification, and Defendant issuing a Notice of Proposed Eviction of Plaintiff from VA housing. The Court grants summary judgment to Defendant on these claims, because Plaintiff either fails to establish a prima facie case, or fails to demonstrate genuine issues of material fact concerning Defendant's reasons for these various acts.
Standards for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Anderson, 477 U.S. at 256.
Id.
Id.
Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214 (1985).
Procedural Requirements of Summary Judgment Motions and Responses
Pursuant to Rule 56.1(b) of the Rules of Practice and Procedure, a Memorandum in Opposition to a Motion for Summary Judgment should begin with a section that contains a concise statement of material facts as to which the non-moving party contends a genuine issue of fact exists. Each fact shall be numbered by paragraph and shall refer with particularity to those portions of the record upon which the opposing party relies.
As the party opposing this summary judgment motion, Plaintiff has attempted to controvert a number of material statements of fact, primarily with her own lengthy affidavit and a number of documents attached to her affidavit. The Court disregards most of Plaintiff's statements in the affidavit for a number of reasons.
Plaintiff's affidavit recites facts that mirror the facts asserted in Section II of Plaintiff's Response titled "Response and Objection to the Statement of Material Facts" and Section III of Plaintiff's Response titled "Plaintiff's Additional Statement of Material Facts."
First, the affidavit contradicts, or is inconsistent with Plaintiff's earlier deposition testimony, particularly with respect to Plaintiff's qualifications relative to other job candidates' qualifications and with respect to the authority of management to limit the applicant pool to certain employees in the VA. The affidavit alleges that Plaintiff has knowledge of other candidates' qualifications after she had testified that she had no such knowledge. While "[a]n affidavit may not be disregarded [by the Court] because it conflicts with the affiant's prior sworn statements. . . .;" courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue. "Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during [her] earlier testimony, whether the affiant had access to the pertinent evidence at the time of [her] earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." None of these contradictory or inconsistent statements in the affidavit appear to be based on newly discovered evidence or a clarification of testimony not fully explored during Plaintiff's deposition. Thus, the Court disregards all such inconsistent or contradictory statements in the affidavit.
Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986) (citations omitted); Burton v. R.J. Reynolds Tobacco Co., 181 F. Supp.2d 1256, 1269 (D. Kan. 2002).
Id.
Moreover, Plaintiff's affidavit fails to comply with Rule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e) requires that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Plaintiff's affidavit states opinions or beliefs that lack evidentiary support and asserts facts about matters outside of Plaintiff's personal knowledge. Many of these statements are based on statements in documents attached to the affidavit, or are based on Plaintiff's interpretation of these attached documents. These attached documents are comprised of Exhibits 1-20; the Affidavit of Yolanda Taylor; and transcripts of portions or all of the EEOC testimony of William Dunlop, Sharon Heath, Dr. Kalavar, Deborah Kearney, Yolanda Taylor, Judy Wade, John Wolski, and Dr. Urdanetta.
See Denmon v. Runyon, No. 92-2144-EEO, 1993 WL 441970 (D. Kan. Oct. 25, 1993) (an affidavit must be based on personal knowledge rather than hearsay).
Plaintiff has failed to comply with Rule 56(e)'s requirement that documents must be authenticated by and attached to the affidavit. Plaintiff neither identifies the attached documents nor swears that the documents are true and correct copies of what they purport to be. In fact, it appears from the substance of many documents, that Plaintiff is not competent to authenticate them, as she lacks the requisite personal knowledge. Documents filed are inadmissible when they are not accompanied by affidavits attesting to the validity of the documents. When such documents are offered without proper authentication, the Court should not consider them in its ruling. Thus the Court disregards Exhibits 1-3, 5-17, and 20 attached to Plaintiff's affidavit. The transcripts of EEOC testimony are not authenticated either; but the Court has considered these transcripts, to the extent that the Court can make sense of those that are mere excerpts of testimony.
Federal Rule of Civil Procedure 56(e) provides that "sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith."
See Boilermaker-Blacksmith Nat'l Pension Fund, et al., v. Gendron, 96 F. Supp.2d 1202, 1205 n. 2 (D. Kan. 2000) (citations omitted).
Exhibits 1-3, 5-17, and 20 are documents that Plaintiff did not create, did not receive, or record meetings which Plaintiff did not attend. Exhibits 11, 12 and 14 purportedly are letters received by Plaintiff, but are disregarded as Plaintiff has failed to authenticate them in her affidavit.
Boilermaker, 96 F. Supp.2d at 1205 n. 2 (citing Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980)).
Id. (citing Jarrett v. Sprint/United Mgt. Co., 37 F. Supp.2d 1283, 1285 n. 2 (D. Kan. 1999)).
Demonstrating knowledge of the procedural and evidentiary requisites for affidavits, Plaintiff asks the Court to strike the affidavits Defendant relies on to support its summary judgment motion. As Plaintiff posits, affidavits must be made on the basis of personal knowledge; an affidavit based merely on information and belief is insufficient. While it is preferable that affidavits expressly state they are being issued upon personal knowledge, the Court need not strike them if it is evident that they are based on personal knowledge. In this instance, the Court is able to divine from the language in the affidavits that they were issued upon personal knowledge. The affidavits consistently use the word "I" coupled with other action words indicating actions that affiants themselves did or were ordered to do in the course of their employment. Where an affiant was party to an action and is describing something that the affiant actually did or is describing the duties and scope of his/her employment, the basis must necessarily be upon personal knowledge. Therefore, Defendant's affidavits substantially comply with the Federal Rules of Civil Procedure.
Tavery v. United States, 32 F.3d 1423, 1427 n. 4 (10th Cir. 1994); Fed.R.Civ.P. 56(e).
Uncontroverted Facts
The Court's decision is based on: (1) uncontroverted facts; (2) genuinely controverted facts construed in the light most favorable to Plaintiff, the non-moving party; and (3) facts that Plaintiff failed to genuinely controvert as addressed above. Any immaterial facts and factual averments not properly supported by the record are omitted.Plaintiff, Yolanda Taylor, an African American female, was employed at the Colmery-O'Neil VA Medical Center in Topeka, KS from 1993 through May of 2000. Plaintiff was a Program Support Clerk in social work services from 1995 to November 1997. From November 1998 through May 2000, Plaintiff was a Patient Services Assistant on the "Red Team," one of three teams that worked in the primary care outpatient clinics.
In November 1998, the VA posted a vacancy announcement for a Budget Analyst position in the VA's Business Functional Line (BFL). The BFL was comprised of various management groups, including a fiscal and human resources management group that handled financial operations among other responsibilities. During this period, the VA was integrating and downsizing its operations, merging its medical centers in Topeka and Leavenworth, and several community based outpatient clinics that comprise the VA's Eastern Kansas Health Care System. To meet " . . . the challenges imposed by employment downsizing and functional integration," the Budget Analyst position was multi-functional, a composite of budget, employee travel and payroll work assigned to other positions in the BFL. And, only applicants already working in the BFL were considered for this Budget Analyst position. This limitation of the eligible applicant pool was done in accordance with the Merit Promotion Plan of August 11, 1998, which allowed management to fill positions from any appropriate source, and was done to help avoid layoffs of BFL employees.
The Court, by its Order entered on March 11, 2003, dismissed any claim of the Plaintiff concerning an earlier December 1997 Budget Analyst position.
Plaintiff, who was not a BFL employee, applied for the Budget Analyst position, and was not selected. Sandy Staebell, a white female transportation assistant within the BFL, was selected. No one was hired to fill the position vacated by Staebell. Plaintiff filed an EEOC complaint on December 23, 1998, alleging that she was more qualified than Ms. Staebell and that limitation of the position to BFL employees was improper.
On December 16, 1998, a week before Plaintiff filed the EEOC complaint about the Budget Analyst position, Plaintiff requested 240 hours of advance paid sick leave because she had no sick leave time remaining. On December 18, 1998, following the recommendation of Plaintiff's supervisor, the leave request was denied by Karyn Waters in the VA Human Resources office. Plaintiff's supervisor, Dr. Kalavar, testified that granting Plaintiff's leave request would have placed too much strain on the other members of the Patient Services work teams. No one had ever requested nor been granted such a large advance sick leave request. After her leave request was denied, Plaintiff requested and received 240 hours of Leave Without Pay. On January 29, 1999, Plaintiff filed an EEOC complaint based on the denial of advance paid sick leave.
About a week later, on February 8, 1999, the VA posted an announcement for a Teller position. In October 1998, VA management had decided to limit this position to existing BFL employees for the same reasons it limited the Budget Analyst position to BFL employees. As part of the downsizing and merger of operations, there was a centralization of payroll functions; and there was a need to reduce the number of employees in the payroll functions of the BFL. Although Plaintiff was not a BFL employee, she applied; she was not selected. Judy Wade, a white female BFL employee who had been working as backup teller for two years was selected. The position Wade vacated was not filled. Plaintiff filed an EEOC complaint on April 26, 1999 concerning not being selected for the Teller position.
Meanwhile, Plaintiff had applied for an Employment System Technician position that was posted on February 17, 1999. This position was located in the Shared Service Center, a separate entity located on the VA grounds. The Shared Service Center handled data entry of Human Resources and payroll information; and in 1999 it was preparing to handle such data entry functions for over 170 VA medical centers and regional offices. This position was not limited to BFL employees, but the expansion of the center's work required a number of technicians with payroll and coding experience.
Plaintiff applied for the Employment System Technician position and was interviewed by Sharon Heath. During the interview, Plaintiff told Heath that she had low attendance in her current position because of stress. Heath checked Plaintiff's leave records through the VA's personnel computer system and determined that just two months into this calendar year, Plaintiff had already accrued more than two leave periods of Leave Without Pay (LWOP). On Heath's recommendation, Diana Perkins did not select Plaintiff for the position. Perkins considered Plaintiff only minimally qualified because of her lack of payroll experience. Plaintiff's chronic attendance problem was another reason she was not selected. Perkins was unaware of Plaintiff's race or EEOC activity. Heath was unaware of Plaintiff's EEOC activity. Christelle Williams, an African-American female with eight years of payroll technician experience was selected. Plaintiff filed an EEOC complaint on May 18, 1999.
On May 14, 1999, Plaintiff requested to be relieved of her duties in Urgent Care because the duties were stressful to her. The three PSA teams assigned to primary outpatient care did not ordinarily work in the Urgent Care unit. But, two PSAs who primarily worked in Urgent Care were absent: one for maternity leave; one for surgery. This created a staffing shortage in Urgent Care, which was addressed by temporarily assigning members of the three primary care PSA teams, including Plaintiff, to work in Urgent Care, on a rotational basis. This temporary work in Urgent Care was in addition to their regular work in primary outpatient care.
The supervisor, Dr. Kalavar, empowered the teams to develop their own schedule to provide full rotational coverage of the Urgent Care Unit. The Blue Team developed their own schedule, which fulfilled their team's responsibility to cover Urgent Care without all members of the Blue Team having to work in Urgent Care. The Red Team chose not to do this, so Dr. Kalavar scheduled every member of the Red Team, including Plaintiff, to work in Urgent Care on a rotational basis.
On May 17, 1999, three days after Plaintiff requested to be relieved of these temporary duties in Urgent Care, Dr. Kalavar and Terry Harbert, the Associate Director of Primary Care, met with Plaintiff. Dr. Kalavar denied Plaintiff's request because it would amount to giving Plaintiff preferential treatment, but told her she was free to make alternate coverage arrangements with the members of her team. Plaintiff stated that she was not comfortable with this suggestion. Dr. Kalavar suggested that Plaintiff apply for another position in Primary Care that would involve less patient contact and less stress. Plaintiff chose not to pursue this alternative. Plaintiff filed an EEOC complaint on May 20, 1999.
On August 23 and 24, 1999, Plaintiff had her son call the VA to report that Plaintiff was sick. Her son's voice mail message was not clear and did not state the reason for her absence. Because VA policy dictated that unless incapacitated, the employee make such a telephonic request herself, the VA placed Plaintiff on absent without leave (AWOL) status. But, after Plaintiff's union representative and other VA personnel gathered more information about the incident, the VA changed Plaintiff's status from AWOL to leave without pay. Plaintiff did not face any disciplinary action nor did she receive a reduction in pay or benefits as a result of the AWOL charge that was later changed to LWOP. She still had the same job, the same benefits, and the same pay. Plaintiff filed an EEOC complaint on October 12, 1999.
On January 20, 2000, the VA sent a Proposed Eviction Notice to Plaintiff advising that she had 14 days to bring current a $1944.41 delinquency in rent on a residence she had been leasing from the VA since 1996. This delinquency arose in late 1999 through Spring 2000, while Plaintiff was on LWOP status at work. In early 1999, Plaintiff had been on LWOP status (240 hours referenced above), but at that time, the VA had allowed Plaintiff to make up missed rent payments after she returned to work.
After Plaintiff failed to cure the delinquency in the January 2000 notice, she voluntarily vacated the premises before eviction proceedings were concluded. Plaintiff's receipt of the Eviction Notice did not affect her employment. She still had the same job, the same pay, and the same benefits. Around the same time, the VA also issued an eviction notice to Dr. Hansing, a white male physician, for failure to maintain his quarters. Dr. Hansing also voluntarily vacated the premises. Plaintiff filed an EEOC complaint about the eviction notice on March 7, 2000.
After being on LWOP from late 1999, Plaintiff returned to work in late March 2000 and was assigned to work in the file room away from patients. Plaintiff considered her work in the file room to be an improvement over her previous assignment in Urgent Care. Plaintiff came to work the first week; after that her attendance was sporadic. At this point, Plaintiff had a history of significant use of LWOP. Plaintiff had taken 53 hours LWOP in 1998 and 944.75 hours of LWOP in 1999.
On March 26, 2000, Judy Wade became Plaintiff's supervisor. Wade's supervisor, Deborah Kearney, twice scheduled appointments to meet with Plaintiff about her attendance. Plaintiff admits that her discussions with Deborah Kearney were "OK" and not intolerable. Plaintiff failed to attend either scheduled meeting because she called in sick. Kearney decided to issue Plaintiff a Sick Leave Certification letter. At the time Kearney issued the letter, she had never seen or met Plaintiff, as Plaintiff had rarely been at work during the short time that Kearney had been in that position. Kearney did not know Plaintiff's race and was unaware of her EEOC activity.
The Sick Leave Certification letter stated that from April 5 to April 28, 2000, Plaintiff took 84.5 hours of sick leave. This letter was not a disciplinary action, and Plaintiff did not receive a reduction in pay or benefits as a result. Rather, the purpose of such a letter is to make the employee aware of her use of leave and of her supervisor's concern about her usage of leave. The letter is also intended to motivate the employee to reduce her leave usage and come to work. The letter remains in the employee's file for approximately six months and is then removed if the employee shows improvement in leave usage. Kearney has issued Sick Leave Certification letters in the past to other employees, including white employees.
At Kearney's direction, Wade presented the Sick Leave Certification letter to Plaintiff. Wade advised Plaintiff that she was not being fired or demoted, and that neither her pay nor job benefits were being reduced. Wade asked Plaintiff to sign the letter to acknowledge receiving it. Plaintiff refused, stating that she "did not feel like fighting it." Plaintiff stated that she resigned; and Wade asked if Plaintiff was sure, if Plaintiff wanted to think about it. Plaintiff declined. Plaintiff admits that her working relationship with her day to day supervisor was also not intolerable. At no time from 1998 to 2000, did Plaintiff ever suffer a demotion, loss in pay, or loss in benefits.
In a memorandum dated May 1, 2000, Plaintiff's initial stated reason for resigning was "due to illness." By the time Plaintiff resigned, she had taken a total of 508.50 hours of LWOP in the year 2000. On May 8, 2000, Plaintiff amended her original resignation letter, adding that she was also resigning because of the Sick Leave Certification letter. Plaintiff filed an EEOC complaint on June 9, 2000.
Discussion and Analysis
Plaintiff brings numerous claims of race discrimination and/or retaliation relating to her not being selected for three different positions, her being denied advance paid sick leave, her being denied relief from duties in Urgent Care, issuance of an AWOL charge, and issuance of a Proposed Eviction Notice. Plaintiff also claims race discrimination and retaliation in the issuance of a Sick Leave Certification Notice, causing a constructive discharge. All of these claims fail, with the exception of her claims for discrimination and retaliation relating to the denial of her request for relief from duties in Urgent Care.
Failure to Promote
To prove a Title VII discrimination claim, Plaintiff must utilize the burden shifting framework set forth in McDonnell Douglas Corp v. Green. The Tenth Circuit has further articulated the elements of a prima facie case of discrimination. Plaintiff must show that: 1) she belongs to a minority group; 2) she was qualified for the promotion; 3) she was not promoted; and 4) the position for which she was not hired was filled or remained open. Once a prima facie case has been established, the burden then shifts to the employer to show a valid non-pretextual reason for the challenged action. If the employer is able to do so, the burden then shifts back to the employee to show that the employer's reason is not valid.
411 U.S. 792, 802(1973).
Amro v. Boeing Co., 232 F.3d 790 (10th Cir. 2000).
Discrimination: Budget Analyst and Teller positions
Defendant acknowledges that Plaintiff has made out a prima facie case of race discrimination in failing to promote her to Budget Analyst and in failing to promote her to Teller. As the familiar McDonnell Douglas framework requires, the Court employs a three-step, burden-shifting process in evaluating such disparate treatment claims. Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant, who must offer a legitimate reason for the adverse action.
411 U.S. 792 (1973). Plaintiff's claims of age, race and national origin discrimination and retaliation under the ADEA, Title VII and 42 U.S.C. § 1981 are all analyzed under the McDonnell Douglas framework. See Amro v. Boeing Co., 232 F.3d 790 (10th Cir. 2000) (Title VII, sec. 1981 discrimination and retaliation); Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998) (ADEA, Title VII); Shinwari v. Raytheon Aircraft Co., 16 F. Supp.2d 1308 (D. Kan. 1998) (ADEA and Title VII retaliation).
See McDonnell Douglas, 411 U.S. at 802.
See id.
Defendant has articulated a legitimate business reason for not hiring Plaintiff for the Budget Analyst and Teller positions. Only current BFL employees were considered for these two positions, in the interest of downsizing and consolidating departments and functions in the VA. Defendant having articulated a legitimate business reason, the burden returns to the plaintiff, who must establish "a genuine dispute of material fact as to whether [defendant's] proffered reason for the challenged action is pretextual-i.e. unworthy of belief." The Tenth Circuit has held that a defendant cannot defeat a plaintiff's prima facie case by articulating the reasons for the adverse employment action because the plaintiff in such a situation would be denied the opportunity to show that the reasons advanced by the defendant were pretextual.
Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000) (citing MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991)).
A plaintiff typically makes a showing of pretext in one of three ways: (1) with evidence that the defendant's stated reason for the adverse employment action was false . . .; (2) with evidence that the defendant acted contrary to written company policy prescribing the action to be taken by the defendant under the circumstances . . .; or (3) with evidence that the defendant acted contrary to company practice when making the adverse employment decision affecting the plaintiff.
Campbell v. Meredith Corp., 260 F. Supp.2d 1087, 1105 (D. Kan. 2003); Kendrick v. Penske Tramp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).
Plaintiff has not presented any material issue of fact showing that Defendant's articulated reason is false, or that Defendant took actions contrary to its stated reasons. Indeed, the persons selected for these positions were BFL employees, whose vacated positions were not filled. This is consistent with Defendant's stated reason for not selecting Plaintiff, the positions were available only to BFL employees, in the interest of downsizing and consolidating departments and functions in the VA. Plaintiff attempts to demonstrate a fact issue by reference to unauthenticated documents that Plaintiff asserts show that she was more qualified than the persons selected. But Defendant's reasons for not selecting Plaintiff were not based on comparative analysis of her qualifications. She simply was not eligible, because she was not a BFL employee. In any event, Plaintiff testified that she has no personal knowledge of the qualifications of those selected, and is in no position to offer a comparative analysis.
Further, Plaintiff has not raised any material issue of fact showing that Defendant acted contrary to its written policy concerning this reorganization. Plaintiff relies on unauthenticated documents, and documents of which she has no personal knowledge. She has thus failed to properly controvert the affidavits of Wanda Lyon and Edgar Tucker that the Budget Analyst position was properly submitted to the Resource Committee for consideration and properly approved through Defendant's established process outlined in the August 11, 1998 Merit Promotion Plan. Moreover, Plaintiff's assertions, all unsupported or not properly supported, that this position was limited to BFL employees only after she applied for the same position in 1997, raises no genuine issue about Defendant's motivation in limiting the position to BFL employees in 1998. In the same vein, Plaintiff simply has not properly controverted the statements and/or testimony of Dunlop, Tucker, and Lyons that the Teller position, although first opened to employees in eastern Kansas, was later limited to BFL employees in the interests of the reorganization.
Retaliation — Teller position
Plaintiff does not claim retaliation with respect to the Budget Analyst position, perhaps because her first EEOC complaint was filed after she was not selected for the position. Plaintiff does raise retaliation with respect to the Teller position; but, Plaintiff has not demonstrated a prima facie case of retaliation concerning the Teller position. Plaintiff must prove that: 1) she engaged in a protected activity; 2) she suffered an adverse employment action; and 3) a causal connection between the protected activity and the employment action. Here, the VA director decided to limit the Teller applicant pool to BFL employees two months before Plaintiff engaged in protected activity. The decision to limit this position to BFL employees was made on October 29, 1998. Plaintiff filed her first EEOC complaint on December 23, 1998. While filing an EEOC report is a protected activity, Plaintiff fails to show a causal connection, where the protected activity occurred after the decision was made to limit the applicant pool which effectively excluded Plaintiff from consideration.
Perry v. Woodward, 199 F.3d 1126, 1141 (10th Cir. 1999).
Toth v. Gates Rubber Co., 2000 WL 796068, at *9 (10th Cir. June 21, 2000) (unpublished opinion).
Failure to Promote Discrimination and Retaliation — Employment System Technician
To make out a prima facie case of race discrimination, Plaintiff must show that she was a member of a protected class, that she experienced adverse employment action, and that similarly situated non-minorities were treated more favorably. Defendant argues that Plaintiff has not shown a prima facie case because Plaintiff has not shown more favorable treatment of similarly situated non-minorities. In fact, an African-American woman was selected for the position.
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999); Watson v. Lucent Technologies, Inc., 92 F. Supp.2d 1129, 1135 (D. Kan. 2000).
Although, a plaintiff is not required to show that a position was filled by someone outside of the plaintiff's protected class to prove a prima facie case of discrimination. See Amro v. Boeing Co., 232 F.3d 790, 797 (10th Cir. 2000) (the district court committed error when it suggested that a Lebanese plaintiff must show that the position he wanted was filled by a non-Lebanese).
As Plaintiff points out, Defendant is focusing on but one of multiple Employment System Technician positions being filled. Plaintiff failed to cite to the record to support her assertion that Defendant was filling more than one of these positions; but this cannot be genuinely disputed by Defendant. Defendant admits in paragraph 36 of its Memorandum in Support of its summary judgment motion that:
In 1999, the Shared Service Center was gearing up to take over data entry functions for over 170 VA medical centers and regional offices across the country. For that reason, a number of technicians who already had payroll and coding experience were needed. The Center did not have the time to train a lot of applicants who had no previous experience.
Moreover, although Diana Perkins did not know Plaintiff's race, it is undisputed that Sharon Heath, who interviewed Plaintiff and was aware of her race, recommended to Perkins that Plaintiff not be hired. Heath discussed Plaintiff's attendance with Plaintiff, then checked Plaintiff's leave records after the interview. Plaintiff has raised an issue of fact, albeit slight, that Perkins either knew, or that the person(s) who discussed Plaintiff's application with Perkins, were motivated by discrimination or retaliation, even if Perkins was not. The burden imposed on a plaintiff at the prima facie stage is "not onerous." At the prima facie stage of the McDonnell Douglas analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons subsequently proffered by the defendant.
Watson v. Lucent Technologies, Inc., 92 F. Supp.2d at 1137 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
See MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119 (10th Cir. 1991).
The burden then shifts to Defendant to articulate a legitimate reason for not hiring Plaintiff. Defendant has articulated a legitimate reason, Plaintiff had poor attendance and was minimally qualified, having neither coding nor payroll experience. Defendant needed to fill a number of positions for an expanding operation, and wanted experienced technicians who did not need much training.
The burden then returns to Plaintiff to show that there is a material issue of fact that Defendant's proffered reason for the challenged action is pretextual, that is, unworthy of belief. Plaintiff has not shown a material issue of fact about the truth or falsity of Defendant's proffered reasons. It is clear that at the time Plaintiff applied for this position, in February 1999, Plaintiff in fact had poor work attendance. She had incurred 53 hours of LWOP in 1998, and already in the second month of February 1999 had incurred more than two pay periods of LWOP. Her request for 240 hours of advance paid sick leave had been denied and she had been granted LWOP instead. In fact, during the interview, Plaintiff advised Heath that her current position was causing her stress, which accounted for her admitted low attendance.
Plaintiff asserts that she had 18 hours of graduate accounting course work and a B.S. in Business Administration, assertions that are not supported by citation to the record. Even assuming the truth of those assertions, however, Plaintiff does not controvert Defendant's statement that Plaintiff lacked coding and payroll experience. Defendant was seeking applicants who would require little or no training; Plaintiff has not raised a material issue of fact as to whether she could have performed this position without training, even with her college degree. And, at least with respect to the position Defendant focuses on, the person selected had eight years of payroll technician experience in another VA medical center. There simply is no material issue of fact concerning the truth of Defendant's articulated reason for not hiring Plaintiff. Nor has Plaintiff raised a material issue of fact showing that Defendant acted contrary to written policy or practice in not hiring Plaintiff.
With respect to her claim of retaliation concerning not being selected for this position, Plaintiff fails to make a prima facie showing of retaliation. Plaintiff suffered an adverse employment action in February 1999. Before this adverse employment action, Plaintiff had engaged in protected activity on December 23, 1998, and January 29, 1999 when she filed EEOC complaints. But, Plaintiff makes no showing of a causal connection. Plaintiff does not controvert the statements of Heath and Perkins that they were not aware of Plaintiff's EEOC activity. Without their knowledge that Plaintiff had prior EEOC activity, there is no causal link between the protected activity and the employment action as required by Perry.
Perry v. Woodward, 199 F.3d 1126, 1141 (10th Cir. 1999).
Other Claimed Adverse Employment Actions
Discrimination and Retaliation — Denial of Request for 240 hours of paid advance sick leave
Plaintiff fails to make out a prima facie case of race discrimination based on Defendant's denial of her December 16, 1998 request for 240 hours of advance paid sick leave. Plaintiff has shown she is a member of a protected class; but she must also show that she experienced an adverse employment action, and that similarly situated non-minorities were treated more favorably. Defendant argues that Plaintiff has failed to make out a prima facie claim concerning the denial of advance sick leave, for this is not an "adverse employment decision or action" addressed by Title VII. Plaintiff did not suffer monetary losses, demotion or termination, and this decision did not affect her job status, compensation, or terms or conditions of employment in a manner significant enough to rise to the level of adverse employment action.
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999); Watson v. Lucent Technologies, Inc., 92 F. Supp.2d 1129, 1135 (D. Kan. 2000).
Plaintiff cites no authority for its position that denial of paid advance sick leave is a qualifying adverse employment action. In fact, in her responsive memorandum, Plaintiff fails to cite to any authority in support of any of her claims. The lone case is cited in support of Plaintiff's contention that Defendant's affidavits should be stricken.
D. Kan. Rule 7.6(a)(4) requires that the argument section of a brief or memorandum refer to "all statutes, rules and authorities relied upon." Plaintiff's failure to cite to any authority that goes to the merits of Plaintiff's case is an oversight that is not acceptable to the Court. It causes the Court to do research in an attempt to fully understand Plaintiff's position, which would otherwise be unnecessary had Plaintiff's counsel been more diligent, and is a waste of judicial resources.
Even if this is a qualifying adverse employment action, Plaintiff fails to show that similarly situated non-minority employees were treated more favorably with regard to a leave request of this length. In fact, it is uncontroverted that no one had ever asked for such a lengthy period of paid advance sick leave. Nor has Plaintiff demonstrated a prima facie case of retaliation. Her request for 240 hours of advance paid sick leave was denied on December 18, 1998, before Plaintiff's first protected activity, the filing of an EEOC complaint on December 23, 1998. Plaintiff testified that the union representative had spoken to Dr. Kalavar in 1998 about a performance appraisal done by another of Plaintiff's supervisors and whether that affected her application for Budget Analyst. But, Plaintiff fails to cite to authority that the incident was a protected activity under Title VII. Plaintiff also fails to show any nexus or causal connection between that incident, or between the December 23, 1998 EEOC charge, and the denial of her request for advance paid sick leave.
Discrimination and Retaliation — Filing of AWOL claim
Plaintiff also claims that Defendant discriminated and retaliated against her in placing her on AWOL status, when her son had left a voice mail message reporting that she was sick. Again, Plaintiff fails to show a prima facie case. First, Plaintiff has not shown, nor cited to authority that the filing of this claim, later withdrawn when she was placed on LWOP status, constitutes an adverse employment action protected by Title VII. Plaintiff admits she lost no compensation or benefits; and that her terms and conditions of employment did not change. Because Plaintiff has not shown an adverse employment action, she fails to make out a prima facie claim of retaliation as well.
Second, with respect to the discrimination claim, Plaintiff has not shown that similarly situated non-minority employees were treated differently as required by Trujillo. It is uncontroverted that Defendant's policy requires employees to self report sick leave, unless they are incapacitated, and it is uncontroverted that Plaintiff's son's voice mail messages did not report that Plaintiff was incapacitated. It is uncontroverted that the voice mail messages were partially unintelligible. And, it is uncontroverted that other employees who have failed to self report have been placed on AWOL status.
157 F.3d at 1215.
Discrimination and Retaliation — Issuance of Proposed Notice of Eviction
Title VII does not address claims of racial discrimination in housing, and provides no jurisdictional basis for the Plaintiff to assert claims of racial discrimination in housing leased by Defendant to Plaintiff. Such claims may be asserted under the Fair Housing Act. If there is support for Plaintiff's argument that Title VII protects Plaintiff because the residential lease was "part and parcel of her employment," Plaintiff fails to cite to any such authority. These claims for discrimination and retaliation will therefore be dismissed for lack of subject matter jurisdiction. Even if there were jurisdiction, Plaintiff fails to show a prima facie case. Among other deficiencies, is her failure to controvert evidence that a similarly situated white resident, Dr. Hansing, received an eviction notice for defaulting on a term of the lease, and her failure to show that the person(s) who issued the eviction notice were aware of her protected EEOC activity.
42 U.S.C. § 3604, et seq.
Discrimination, Retaliation and Constructive Discharge-Issuance of Sick Leave Certification Letter
Based on the May 2000 Sick Leave Certification Letter, Plaintiff claims that Defendant discriminated against her, retaliated against her and caused a constructive discharge. Plaintiff again fails to cite to any authority that issuance of this letter, which was not a disciplinary action and which did not effect a change in her pay or benefits, was a qualifying adverse employment action. For this reason, Plaintiff's claims of discrimination and retaliation fail. Plaintiff also fails to controvert evidence that Deborah Kearney had issued these same letters to other similarly situated employees whose usage of sick leave was excessive. Thus Plaintiff fails to show another element of a prima facie case of discrimination. Even if Plaintiff established a prima facie case of discrimination, Plaintiff does not demonstrate a material issue of fact concerning Defendant's articulated reason for issuing the letter. It is uncontroverted that Plaintiff had taken over 944 hours of LWOP in 1999, and in February 2000 was still taking extended periods of LWOP or sick leave.
Plaintiff's claim of constructive discharge is also deficient. Plaintiff has not demonstrated that: (1) Defendant committed any illegal discriminatory acts; and (2) that these acts had made "working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." There are no facts supporting an assertion that issuance of the Sick Leave Certification was an illegal discriminatory act. And, Plaintiff admits that in March 2000, she found her new position an improvement over her last position, that her relationship with her supervisor was not intolerable and that her discussions with Deborah Kearney were not intolerable either.
Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir. 1998).
Discrimination Retaliation — Denial of Request to Be Relieved of Duties in Urgent Care
In May 1999, Dr. Kalavar denied Plaintiff's request to be relieved of additional and temporary duties in the Urgent Care Unit. Plaintiff has shown she is a member of a protected class; but she must also show that she experienced an adverse employment action, and that similarly situated non-minorities were treated more favorably. Again, Plaintiff offers no authority that this action was a qualifying adverse employment action under Title VII. Because Plaintiff was seeking to be relieved from additional duties outside of her normal job responsibilities, however, the Court will assume that this is a qualifying adverse employment action. Plaintiff's additional duties in the Urgent Care Unit involved greater patient contact and stress and were more than "a mere inconvenience, or an alteration of job responsibilities," which are insufficient to support an adverse employment action; rather the additional duties were more akin to a "reassignment with significantly different responsibilities," a qualifying adverse employment action.
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315-16 (10th Cir. 1999); Watson v. Lucent Technologies, Inc., 92 F. Supp.2d 1129, 1135 (D. Kan. 2000).
Plaintiff's additional duties in the urgent care unit were more than "a mere inconvenience, or an alteration of job responsibilities," insufficient to support an adverse employment action.
Tran v. Trustees of State Colleges in Colorado, No. 02-048, 2004 WL 119850, at *2 (10th Cir. Jan 27, 2004).
Plaintiff must also show that similarly situated non-minorities were treated more favorably. This Plaintiff has shown. One or more non-minority members of the Blue Team were allowed to refrain from the temporary rotation in Urgent Care. While this was occasioned by the Blue Team's cooperative and autonomous scheduling of their rotational responsibilities, nevertheless, the effect was that one or more members did not have to work in Urgent Care. In this respect, similarly situated non-minority employees were treated more favorably. Even though these employees benefitted from a cooperative team and Plaintiff apparently did not, these employees were still similarly situated to Plaintiff. Like Plaintiff, these employees were members of PSA teams that were assigned to cover Urgent Care on a temporary, rotational basis.
Given this showing, the burden shifts to Defendant to show a legitimate, nondiscriminatory reason for the challenged employment action. Defendant's articulated reason is the same offered by Dr. Kalavar when he denied her request, that granting her request would give Plaintiff preferential treatment and would be unfair to other members of the Red Team.
The burden then shifts to Plaintiff to raise material issues of fact about Defendant's proffered reason. This Plaintiff has done. Plaintiff raises material issues of fact concerning the truthfulness and validity of Defendant's proffered reason. If Defendant denied Plaintiff's request out of concerns for parity and fairness, why did Defendant allow one or more of the members of the Blue Team to opt out of the rotation. And, although Dr. Kalavar suggested that Plaintiff try to work it out with her team, Plaintiff told him that she was not comfortable with this. There is a material issue of fact as to whether Dr. Kalavar knew that this was not a viable option. There is a question as to why Dr. Kalavar did not intervene, or intercede on Plaintiff's behalf with the Red Team. The record does not reveal why the member(s) of the Blue Team sought to opt out; but, in Plaintiff's case, her request was based on her job related stress. In light of Plaintiff's repeated complaints about job related stress, there is a material issue of fact as to Defendant's real motivation in denying her request to be relieved of additional duties in Urgent Care, a place with intense and undoubtedly stressful contact with patients. Dr. Kalavar's suggestion to Plaintiff that she apply for another position in Primary Care also raises material issues of fact. On the one hand, this suggestion might be viewed as evidence that Dr. Kalavar was concerned about Plaintiff, and not motivated by discrimination in denying her request. On the other hand, this might be viewed as evidence that Dr. Kalavar was trying to force Plaintiff out of the PSA position, in light of her attendance problems.
Defendant argues that the retaliation claim fails for lack of an adverse employment action. Given that the denial of Plaintiff's request was an adverse employment action, the Court denies summary judgment on Plaintiff's claim of retaliation, as well. Defendant apparently does not dispute that as Plaintiff's immediate supervisor, when Dr. Kalavar denied this request on May 18, 1999, he was aware of her prior EEOC complaints, filed on December 23, 1998, January 29, 1999 and April 26, 1999. Given the close proximity in time between the denial of her request and the protected activity, particularly the April 26 EEOC complaint, the Court finds that Plaintiff has shown sufficient evidence of a causal connection to make out a prima facie case of retaliation.
Conclusion
Thus, the Court denies summary judgment on the claims of discrimination and retaliation arising from denial of Plaintiff's request for relief from temporary duties in Urgent Care.
The Court grants summary judgment on the claims of: constructive discharge; discrimination in failure to promote to Budget Analyst, Teller and Employment System Technician; and retaliation in failure to promote to Teller and Employment System Technician. The Court further grants summary judgment on the claims of discrimination and retaliation in: denial of request for 240 hours of advance paid sick leave; issuance of sick leave certification letter; issuance of proposed eviction notice; and issuance of AWOL charge.
IT IS THEREFORE BY THIS COURT ORDERED that the defendants' Motion for Summary Judgment (Doc. 26) is granted in part and denied in part as set out above.