Opinion
Civil Action No. 98-2001-GTV
February 14, 2001
MEMORANDUM AND ORDER
Plaintiff Darryl J. Brazill is an African-American woman and a former employee of the Veterans Affairs Medical Center in Leavenworth, Kansas ("LVAMC"). While Plaintiff was employed by LVAMC, she filed several equal employment opportunity complaints. Plaintiff claims that in retaliation for filing the complaints and because of her race, she was denied several promotions, was subjected to intolerable conditions of employment, and was terminated. After her termination, Plaintiff filed the instant case, alleging that LVAMC's conduct violated provisions of Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq.) prohibiting race discrimination and retaliation. The case is before the court on Defendant's Motion for Summary Judgment (Doc. 103). For the reasons stated below, the court grants Defendant's motion.
I. Summary Judgment Standard
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." Fed.R.Civ.P. 56(c). 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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." 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 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. See Anderson, 477 U.S. at 256. "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." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. Statement of Facts
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff, an African-American, was hired as a staff nurse for LVAMC in March of 1995. At that time, she had between one and two years of experience as a staff nurse. She completed a two-week orientation, as all nurses do. A Caucasian nurse who started on the same date as Plaintiff went through the orientation at the same time. Plaintiff then received almost two months of assistance from preceptors. Again, Plaintiff received the same assistance that all nurses receive, if not more.
Soon after Plaintiff completed orientation and began work, Mary Gonzalez, Plaintiff's supervisor, began receiving numerous complaints about Plaintiff's work. Plaintiff's co-workers who made the complaints alleged the following: (1) Plaintiff used a demanding tone with a secretary; (2) Plaintiff assigned a patient to a room far from the nurse's station when the patient was having "command hallucinations to hurt himself"; (3) Plaintiff made a mistake when ordering lab work; (4) Plaintiff made several errors with regard to patients' medications; (5) Plaintiff frequently left orders for the next shift to complete; (6) Plaintiff used poor nursing judgment; and (7) Plaintiff gave incorrect information about a patient to a family member. Mary Gonzalez counseled Plaintiff about the complaints. At one point, Plaintiff was issued a notice of proposed suspension for an alleged breach of computer security, but the Board of Investigation who reviewed the facts concluded that the verbal counseling given by Mary Gonzalez was sufficient discipline. Plaintiff was never suspended. The counseling and proposed suspension were the only "discipline" the record reveals that Plaintiff received while an employee of LVAMC.
Plaintiff maintains that she did not breach computer security.
Plaintiff did not have a good relationship with Mary Gonzalez. In January of 1996, Plaintiff sent Mary Gonzalez an e-mail which stated that Plaintiff expected Mary Gonzalez to communicate with her only in writing from that point forward. That same day, Plaintiff told Earl Hatcher, an employee who worked in the equal employment opportunity office, that she wanted to be transferred from Mary Gonzalez's ward immediately. A meeting was scheduled to discuss Plaintiff's transfer request. During the meeting, Plaintiff made several comments to David Roesler, Chief of Nursing, and Lyman Rate, an equal employment opportunity counselor, which they interpreted to be an indication that Plaintiff might be homicidal. When David Roesler and Lyman Rate gave Plaintiff an opportunity to quell their concerns, Plaintiff stated that if required to continue working under Mary Gonzalez, she "[could not] assure [them] that [she would] not become violent." Although David Roesler told Plaintiff that the conversation would be confidential, Mary Gonzalez was told of Plaintiff's comments.
Plaintiff maintains that she was not, in fact, homicidal.
Shortly after Plaintiff's meeting with David Roesler and Lyman Rate, Plaintiff was reassigned to another medical ward. The reassignment was not a demotion — in fact, Plaintiff had requested it. Plaintiff never reported to her new ward. In early February of 1996, she produced a doctor's slip indicating that she should not work until certain stressors were resolved. When Plaintiff returned to work in early March, her doctor said she could only work in a non-stressful environment. David Roesler told Plaintiff she could sit in the library because he had no nursing positions that would be devoid of stress. Furthermore, a formal review of Plaintiff's performance, competence, conduct, and professional judgment was being conducted at that time. Plaintiff views this decision as a decision to place her in "administrative isolation."
Plaintiff contends that she was discriminated against because of her race while she was working for LVAMC. She cites a conversation between Mary Gonzalez and Brenda Little, a co-worker, as evidence of racism. Brenda Little had written Plaintiff a letter which recounted a conversation between Brenda Little and Randy Lewis, another co-worker. Randy Lewis allegedly told Brenda Little that Plaintiff had not been fired yet only because "they have to keep their quota of blacks and whites." Mary Gonzalez asked Brenda Little about the letter, and indicated that she wished Brenda Little had told her first, because "now she would have to handle the matter differently." Furthermore, Mary Gonzalez told other employees and supervisors to "keep an eye on" Plaintiff. She informed them that Plaintiff was looking for another job, and instructed them to refer any inquiries by prospective employers to her.
Plaintiff also alleges that she was assigned to work more weekends and holidays than other nurses, and that she was unfairly denied military leave. However, the record indicates that Plaintiff had as many weekends and holidays off as her nurse peers. Furthermore, the record shows that Plaintiff used 196 hours of military leave in less than a year, when generally, a reservist is only entitled to be paid for 120 hours a year.
Plaintiff appeared before the Nursing Professional Standards Board for review in February of 1996. A three-member panel of the board conducted an evidentiary hearing concerning Plaintiff's performance, competence, conduct, and professional judgment. The panel unanimously recommended Plaintiff's termination. The panel gave the following reasons for its recommendation:
a) difficulty following directions; b) excessive leave usage in the first year of employment; c) impaired judgment; d) failure to use proper channels of communication; e) not assessing her own actions, planning, organizing and evaluating potential impact on others; f) failure to establish and maintain positive work environment; g) failure to accept criticism in a positive manner; h) failure to promote mutual respect among colleagues and co-workers; i) ineffective, inefficient and non-productive time management and prioritizing skills; j) unwillingness to proceed without constantly referring to books for nursing assessment, practice and documentation, refusal to use facility's Standards of Practice and Care, repeated requests for other staff to proofread her work, creating time management problem[s] for other staff; k) episodes of untruthfulness to [the Nursing Professional Standards Board] and other employees at Leavenworth-VA; l) substandard proficiency reports; and m) threats regarding her supervisor.
Plaintiff was terminated on March 19, 1996.
While she worked for LVAMC, Plaintiff filed three equal employment opportunity complaints. She filed the first complaint on January 11, 1996, protesting duty hours, harassment, a proficiency report, a proposed suspension, time and attendance, working conditions, and unprofessional conduct. On February 29, 1996, Plaintiff filed a second complaint. This time, she grieved many of the same issues, and also claimed that she was unfairly denied a promotion to the position of Telephone Triage Nurse — a position where at least five years of experience was preferred. The position was awarded to a nurse with over twenty years of nursing experience. Finally, Plaintiff filed a third complaint on June 13, 1996 regarding her termination.
The above-summarized facts are not comprehensive. Other relevant facts will appear as necessary throughout this opinion.
III. Discussion A. Failure to Promote
Plaintiff claims that, in violation of Title VII, Defendant discriminated against her by failing to promote her several times. She also alleges that she was denied the promotions in retaliation for her complaints about acts which she perceived to be discriminatory. Plaintiff names three specific positions for which she applied, but was rejected. However, she only filed an equal employment opportunity complaint regarding one of those three positions, the Telephone Triage Nurse position.
Before bringing a Title VII action, a plaintiff must exhaust his or her administrative remedies. See Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997) (citing Jones v. Runyon, 91 F.3d 1398, 1409 (10th Cir. 1996)). Specifically, a plaintiff must file an administrative charge with the Equal Employment Opportunity Commission. The purpose of this prerequisite is to ensure that employers have notice of the charges and to provide employers with an opportunity to voluntarily alter any illegal behavior. See Aguirre v. McCaw RCC Communications, Inc., 923 F. Supp. 1431, 1433 (D.Kan. 1996). After a plaintiff has complied with this administrative requirement, he or she may file suit. "The suit may include allegations of discrimination reasonably related to the allegations listed in the administrative charge, including new acts occurring during the pendency of the administrative charge." Aramburu, 112 F.3d at 1411 (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988)). However, courts will disregard allegations not "reasonably related" to the listed allegations; to allow consideration "`would circumvent the administrative agency's investigatory and conciliatory role as well as deprive the charged party [of] notice of the charge.'" Smith v. Bd. of Pub. Utils., 38 F. Supp.2d 1272, 1284 (D.Kan. 1999) (quoting Harrell v. Spangler, Inc., 957 F. Supp. 1215, 1219 (D.Kan. 1997)) (internal quotation marks and citation omitted).
In the instant case, Plaintiff filed three equal employment opportunity complaints. She only mentioned a failure to promote claim once, and in that claim, she specifically listed "1/9/96" as the date of the denied promotion. January 9, 1996 is the date that Plaintiff applied for the Telephone Triage Nurse position. Plaintiff now claims that she applied for and was denied at least two other positions at LVAMC.
The sole claim over which this court has jurisdiction is Plaintiff's failure to promote claim for the Telephone Triage Nurse position. Plaintiff's other failure to promote claims are not "reasonably related" to the allegations made in her three formal complaints such that LVAMC could anticipate that Plaintiff might bring suit regarding those claims. Because Plaintiff only exhausted her administrative remedies with respect to her Telephone Triage Nurse claim, the court will not consider any of Plaintiff's other failure to promote claims.
With respect to her Telephone Triage Nurse claim, Plaintiff first must establish a prima facie case of race discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). She must show that (1) she is a minority; (2) she was qualified for the promotion; (3) she did not receive the promotion; and (4) the position remained open or was filled. See Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000). If Plaintiff successfully establishes a prima facie case, the burden shifts to Defendant. Defendant must offer a legitimate reason for the adverse action. See McCue v. Kan., Dep't of Human Res., 165 F.3d 784, 789 (10th Cir. 1999). Finally, if Defendant offers a legitimate reason, the burden returns to Plaintiff. Plaintiff 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." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
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 a 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 an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff. A plaintiff who wishes to show that the company acted contrary to an unwritten policy or to company practice often does so by providing evidence that [she] was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (internal citations omitted) (citing Aramburu, 112 F.3d at 1404). This burden-shifting analysis, known as the McDonnell Douglas burden-shifting test, applies not only to Plaintiff's remaining failure to promote claim, but also to all of Plaintiff's other claims in this case.
Plaintiff has not established a prima facie case for her Telephone Triage Nurse failure to promote claim. Specifically, she has presented no evidence that she was qualified for the promotion. The Position Vacancy Announcement for the Telephone Triage Nurse position requested that applicants have at least five years of experience. Plaintiff had less than three. Moreover, even if the court were to conclude that Plaintiff has established a prima facie case, summary judgment is still appropriate. Defendant has offered a legitimate reason for the decision to promote someone other than Plaintiff: the successful candidate was much more qualified for the position — she had over twenty years of nursing experience. Plaintiff, on the other hand, has failed to offer evidence such that a reasonable jury could find that Defendant's reason was pretextual. The only refutation that Plaintiff has offered for the overwhelming evidence that she was less qualified for the position than the successful candidate is her own affidavit and deposition testimony. "[A]n employee's `own opinions about [her] . . . qualifications [do not] give rise to a material factual dispute.'" Simms v. Okla. ex rel. Dep't of Mental Health Substance Abuse, 165 F.3d 1321, 1329 (10th Cir. 1999) (quoting Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996)). Furthermore, a conclusory, self-serving affidavit is not enough to survive summary judgment. See Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000). Even if Plaintiff had successfully presented a prima facie case, she has not demonstrated sufficient evidence of pretext.
Plaintiff's claim that her promotion denial was in retaliation for her equal employment opportunity complaints also fails. A prima facie retaliation case requires, among other things, proof of causation. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993). Plaintiff has offered no evidence that the selecting officials for the Telephone Triage Nurse position even knew of Plaintiff's complaints of racism. Absent proof of knowledge, Plaintiff cannot establish causation. See id. Accordingly, the court grants summary judgment on all of Plaintiff's failure to promote claims.
Plaintiff filed her first equal employment opportunity complaint on January 11, 1996. She applied for the Telephone Triage Nurse position on January 9, 1996. The record does not reveal when she was denied the position. The court cannot assume a causal connection between the two events.
B. Conditions of Employment
Plaintiff next alleges that she was discriminated and retaliated against in the terms and conditions of her employment. To establish a prima facie case of either discrimination or retaliation under Title VII, Plaintiff must show, among other things, that an "adverse employment action" was taken against her. See, e.g., Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998); Trujillo v. N.M. Dep't of Corrections, No. 98-2143, 1999 WL 194151, at *2 (10th Cir. Apr. 8, 1999). The Tenth Circuit takes a case-by-case approach in considering whether certain actions constitute adverse employment actions. See Trujillo, 1999 WL 194151, at *2. Generally, conduct qualifies as an adverse employment action if it "constitutes a significant change in [the plaintiff's] employment status." Hertenstein v. Kimberly Home Health Care, Inc., 58 F. Supp.2d 1250, 1260 (D.Kan. 1999). In Trujillo, the Tenth Circuit summarized several cases where it has found an adverse employment action to exist:
[I]n Corneveaux v. Cuna Mutual Insurance Group, 76 F.3d 1498, 1502 (10th Cir. 1996), we found adverse employment action based on the fact that the employee had to "go through several hoops" in order to obtain her severance benefits. In Jeffries [v. Kansas, 147 F.3d 1220 (10th Cir. 1998)], we held that verbal interrogation and reprimand, threats to withdraw supervision and not renew the employee's contract were sufficient to constitute adverse employment actions even though the actions did not actually have an adverse impact on the terms and conditions of the employee's employment. . . .
Trujillo, 1999 WL 194151, at *3.
While the Tenth Circuit approach is liberal, it is not so liberal as to include "`mere inconvenience[s] or . . . alteration[s] of job responsibilities'" as adverse actions. Sanchez, 164 F.3d at 532 (quoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.3d 132, 136 (7th Cir. 1993)). "`[T]here are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions . . . of Title VII.'" Fortner v. Kansas, 934 F. Supp. 1252, 1268 (D.Kan. 1996) (quoting Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)).
In the instant case, Plaintiff cites a litany of complaints that she contends constitute adverse employment actions: (1) inadequate job training; (2) improper and unwarranted discipline; (3) unfair scheduling; (4) denial or misclassification of leaves; (5) job reassignment; (6) breach of confidentiality; (7) initiation of the Nursing Professional Standards Board review; and (8) placement in "administrative isolation."
The court has reviewed the record regarding each of Plaintiff's complaints. Plaintiff has not established a genuine issue of material fact with regard to her first four complaints. The only evidence Plaintiff offers to the court that she was inadequately trained, improperly disciplined, unfairly scheduled, and denied leave is her own conclusory affidavit and deposition testimony. Plaintiff's affidavit and deposition testimony are insufficient to overcome Defendant's substantial contrary evidence. See Wells, 228 F.3d at 1133. Furthermore, even if Plaintiff had presented evidence sufficient to create a genuine issue of material fact, her allegations do not constitute cognizable adverse employment actions because they do not rise above the level of "mere inconveniences." See Sanchez, 164 F.3d at 532 (quoting Crady, 993 F.3d at 136).
As for Plaintiff's remaining four allegations, they also do not qualify as adverse employment actions because they only amount to "mere inconveniences." See id. The job reassignment and placement in "administrative isolation" were "interlocutory or mediate" employment decisions. See Fortner, 934 F. Supp. at 1268. The breach of confidentiality did not constitute a "significant change in employment status." See Hertenstein, 58 F. Supp.2d at 1260. And, finally, the initiation of the Nursing Professional Standards Board review was merely standard procedure. Karyn Waters, the Labor and Employee Relations Officer for the Department of Veterans Affairs, testified by affidavit that Veterans Administration regulations provide that "supervisors and [the] Standards Board [here, the Nursing Professional Standards Board (NPSB)] have the responsibility for periodically reviewing the services of probationary employees." Plaintiff was a probationary employee, and she had not yet been reviewed by the board although she had worked for LVAMC for nearly a year. The review was nothing unusual. Plaintiff fails to offer evidence showing that other similarly-situated probationary employees were not similarly reviewed. Consequently, the court concludes that the initiation of the board review was not an adverse employment action.
Even if the board review were held to be an adverse employment action, and the court were to apply the rest of the McDonnell Douglas burden-shifting test, Plaintiff's claim still fails. Defendant has supplied the court with a legitimate reason for initiating the review, and Plaintiff has failed to present sufficient evidence of pretext. The overwhelming evidence indicates that a board review of Plaintiff's employment was justified. First, the regulations provide that all probationary nurses should be reviewed at some point. Second, Mary Gonzalez had received numerous complaints about Plaintiff's performance, and David Roesler and Lyman Rate were concerned that Plaintiff might be homicidal. Plaintiff has failed to present any evidence that other probationary employees who had a similar record were not reviewed by the board. See Unrein v. Payless Shoesource, Inc., 51 F. Supp.2d 1195, 1211 (D.Kan. 1999). Simply stated, Plaintiff has presented no evidence which would convince a reasonable jury that Defendant's legitimate reasons for initiating a board review were "unworthy of belief." See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
Without deciding whether complaints akin to Plaintiff's complaints could ever constitute adverse employment actions, the court concludes that in this case, none of Plaintiff's complaints regarding the conditions of her employment rise above the level of "mere inconveniences." See Sanchez, 164 F.3d at 532 (quoting Crady, 993 F.3d at 136). Plaintiff has not established a prima facie case, and Defendant is entitled to summary judgment on Plaintiff's claims regarding her conditions of employment.
C. Termination
Lastly, Plaintiff contends that her termination was discriminatory and retaliatory in violation of Title VII. To establish a prima facie case of discriminatory discharge, Plaintiff must demonstrate, among other things, that her job performance was satisfactory. See Rawlins-Roa v. United Way, 977 F. Supp. 1101, 1105 (D.Kan. 1997). Again, the only evidence which Plaintiff has presented to establish that she was a competent employee is her own conclusory affidavit and deposition testimony. "It is the manager's perception of the employee's performance that is relevant, not [the] plaintiff's subjective evaluation of [her] own relative performance." Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996). Plaintiff's evidence is insufficient against Defendant's substantial evidence of her poor performance. See Wells, 228 F.3d at 1133. Defendant is entitled to summary judgment regarding Plaintiff's discriminatory discharge claim.
To establish a prima facie case of retaliatory discharge, Plaintiff must demonstrate "(1) that she engaged in a protected activity, (2) that she was subjected to adverse employment action by her employer, and (3) that a causal connection exists between the protected activity and the adverse employment action." McCue, 165 F.3d at 789. Even assuming, without deciding, that Plaintiff can establish a prima facie case of retaliatory discharge, summary judgment is still appropriate on this claim. Defendant has offered a legitimate reason for Plaintiff's discharge, and Plaintiff has failed to present sufficient evidence of pretext.
Defendant terminated Plaintiff's employment based on the recommendation of the Nursing Professional Standards Board. A panel of the board interviewed nineteen witnesses during its review, including all the witnesses that Plaintiff requested. The panel clearly articulated the reasons it was recommending termination. Plaintiff has presented insufficient evidence to prove that the proffered reasons for Plaintiff's recommended termination — namely that the board believed Plaintiff had poor work performance and had made threats regarding her supervisor — were pretextual. Plaintiff has produced no evidence that "[she] was treated differently from other similarly-situated employees" who the board believed had a similar record. Kendrick, 220 F.3d at 1230.
In an attempt to establish pretext, Plaintiff directs the court to a statement that Mary Gonzalez made in Plaintiff's proficiency report. Mary Gonzalez commented that Plaintiff "has made it known on the unit that she is filing an [equal employment opportunity complaint] and has on several occasions left the unit to meet with her counselor without prior notice to the Nurse Manager when assignments are made out and leaving work for others to pick-up at a moments notice." Plaintiff contends that this statement indicates that Mary Gonzalez "was angry, upset, or disappointed that Plaintiff was pursuing her lawful rights and remedies under federal discrimination statutes." This evidence does not establish what Plaintiff argues it establishes. First, Mary Gonzalez's comment does not imply retaliatory motive, as Plaintiff suggests. Second, Mary Gonzalez did not make the decision to terminate Plaintiff. The termination was recommended by a panel of three nurses, one of whom was African-American. Even if Mary Gonzalez's comment implied that she was upset because Plaintiff was exercising her equal employment opportunity rights, there is no evidence that the board members who recommended Plaintiff's termination shared Mary Gonzalez's misgivings. More importantly, there is no evidence suggesting that their decision was based upon such misgivings.
For the foregoing reasons, the court concludes that no reasonable jury could find that Defendant's stated reasons for terminating Plaintiff's employment were pretextual. Defendant is entitled to summary judgment on Plaintiff's retaliatory discharge claim.
In sum, Plaintiff has failed to establish a prima facie case with respect to her failure to promote claims, her conditions of employment claims, and her discriminatory discharge claim. She has failed to establish pretext with respect to her allegations of retaliatory discharge. Accordingly, the court grants summary judgment as to all of Plaintiff's claims.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's summary judgment motion (Doc. 103) is granted.
The case is closed.
IT IS SO ORDERED.