Curry v. McDonald
Filing
29
MEMORANDUM OPINION - In sum, Curry has failed to show the requisite temporal proximity between her protected activity and the adverse actions to establish a prima facie case. Currys claim fails also because the VA has put forth sufficient, unrebutted evidence to support its contention that each selected candidate was more qualified than Curry. Thus, the VA has met its burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. The court will issue a separate order consistent with this opinion. Signed by Judge Abdul K Kallon on 10/15/2018. (KEK)
FILED
2018 Oct-15 PM 01:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADRIENNE L. CURRY,
Plaintiff,
vs.
ROBERT WILKIE, UNITED
STATES SECRETARY OF
VETERANS AFFAIRS,
)
)
)
)
)
)
)
)
)
Civil Action Number
2:17-cv-00041-AKK
Defendant.
MEMORANDUM OPINION
Adrienne Curry alleges that her employer, the United States Department of
Veterans Affairs (“VA”), unlawfully retaliated against her in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., by denying her four
nursing positions in 2012. Docs. 1 at 2-4; 27. The court has for consideration the
VA’s motion for summary judgment, which is fully briefed and ripe for
consideration. Docs. 16, 27, 28. After reading the briefs, viewing the evidence,
and considering the relevant law, the court finds that Curry has failed to establish a
prima facie case or to rebut the articulated reasons for the selection decisions at
issue. The VA’s motion is therefore due to be granted.
1
I.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (alteration in original).
The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving
party, who is required to “go beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a
material fact is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
At summary judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,
477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s
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favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002). However, “mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II.
FACTUAL BACKGROUND
Curry is a long term employee of the VA. Doc. 18-12 at 1-4. Curry has had
various issues that resulted in her filing lawsuits and EEOC complaints against the
VA. For example, in January 2009, Curry filed a lawsuit in this court alleging
harassment and retaliation. Curry v. United States Dep’t of Veterans Affairs et al,
No. 2:09-cv-2441-AKK, ECF No. 1. Then, in January 2010, Curry filed an EEOC
complaint against the VA, alleging disability discrimination and retaliation. Doc.
18-11 at 1-2.
Next, in September 2011, Curry filed an EEOC complaint, alleging that the
VA had denied her applications for twenty-three Registered Nurse (RN) positions
on the basis of her disability and in retaliation for her prior EEOC activity. Id. at 13
2. 1 Roughly six months later, Curry filed another lawsuit in this court alleging
disability discrimination and retaliation. Curry v. Wilkie, No. 2:12-cv-608-SLB,
ECF. No. 1.
Relevant to this action, in July 2012, Curry filed another EEOC complaint,
alleging that the VA had denied her applications for five RN positions on the basis
of her disability and in retaliation for her prior EEOC activity. Doc. 17-1 at 4.2
Basically, and relevant here, from about February or March through May 2012,
Curry applied and interviewed for the positions of RN Dialysis Unit, RN Safe
Harbor/Palliative Care Unit, and RN-6B Medical Surgical Unit (two positions).
Docs. 17-1 at 4; 18-13 at 2; 18-14 at 2; 18-15 at 2. By this time, Curry, who had
never been employed as a nurse or RN, had qualified as a RN, had a master’s
degree in nursing, and had gained clinical nursing experience as a nursing student.
Docs. 19-1 at 4, 21; 19-3 at 2, 4. In this lawsuit, Curry maintains that she is more
qualified than the individuals selected for these four positions. Doc. 27 at 3-7.
For the RN Dialysis position, Cynthia Frazier was the selecting official who
made the initial hiring recommendation. Doc. 18-13 at 2-3. This position had nonmandatory “enhanced qualifications” of dialysis experience and two years of
1
Although she initially mentioned these positions in this lawsuit, Curry has
abandoned these claims. See doc. 27 at 3, 9.
2
Curry initially challenged all five positions even though the VA had
selected her for the RN-5 Main Medical Surgical Unit position and she had started
working in this position before she filed her EEOC complaint. Doc. 19-2 at 11-12.
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successful RN medical surgical critical care practice. Docs. 19-3 at 4; 18-13 at 3.
Frazier testified that she also considered previous dialysis experience as a licensed
practical nurse or technician. Doc. 18-13 at 3. Frazier recommended and ultimately
selected Alexis Ray over Curry because Ray “worked in the critical care unit at
another facility from 2007 until time of selection where she did receive experience
in continuous renal replacement therapy or dialysis.” Id. Frazier also cited Ray’s
certification in Advanced Cardiac Life Support as a reason for Ray’s selection. Id.
For the RN Safe Harbor/Palliative Care position, Kimberly Froelich was the
selecting official who made the initial recommendation. This position had
“enhanced qualifications” of one year of successful ambulatory surgery, medical
surgical, critical care, or palliative care experience. Doc. 19-3 at 4. Froelich
recommended and ultimately selected Michelle Walker due to Walker’s clinical
experience as a licensed practical nurse for “about 10, 15 years.” Doc. 18-14 at 3;
see doc. 28-2 at 2. Froelich further testified that it was important that the successful
candidate have “clinical expertise” and “basic experience in clinical assessment
tools” because the position required leading non-RN staff. Doc. 18-14 at 3-4.
For the RN-6B Medical Surgical positions, the selecting official Clement
Wilson recommended and ultimately selected Donna Miller and Lorraine Bester
for these two positions. Doc. 18-15 at 2-3. These positions did not differ
significantly from the RN-5 Main Medical Surgical position for which Curry was
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ultimately selected. Doc. 19-2 at 17, 18. Wilson explained that he chose Miller and
Bester over Curry because Miller and Bester “scored high on the performance
based-interview tool, and both persons had prior nursing experience. [Curry] had
never worked as a registered nurse since she left school.” Doc. 18-15 at 3.
Gregory Eagerton, the Associate Director for Patient Care Service and the
Nurse Executive, approved the recommendations for each of the four positions.
Doc. 18-17 at 3. Eagerton did not interview Curry or any of the candidates for the
positions prior to his decisions. Id.
After unsuccessfully challenging these four selections in her 2012 EEOC
complaint, Curry filed this lawsuit, alleging that the VA unlawfully retaliated
against her in violation of Title VII by denying her these four positions. Doc. 1. 3
III.
ANALYSIS
Title VII makes it unlawful “to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2. Title VII also has a retaliation provision that creates a cause of
action for employees who are discriminated against for “opposing any practice”
3
Curry initially also raised claims under 42 U.S.C. §1981 and 42 U.S.C.
§1983. However, she conceded these claims in her response to the motion for
summary judgment. See doc. 27 at 1.
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that they have a good faith belief to be unlawful. 42 U.S.C. § 2000e-3; Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994).
Where the evidence of retaliation is entirely circumstantial, the burden of
proof shifts between the plaintiff and defendant according to the McDonnell
Douglas Corp. framework. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295,
1310 (11th Cir. 2016) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1972)). Initially, the plaintiff has the burden to establish a prima facie case by
showing: (1) that she engaged in statutorily protected expression; (2) that she
suffered an adverse employment action; and (3) that the adverse employment
action would not have occurred but for the protected activity. Univ. of Texas Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). If the plaintiff establishes a prima
facie case, the burden shifts to the defendant to “proffer a legitimate, nondiscriminatory reason for the adverse employment action,” but this burden is
“exceedingly light.” Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th
Cir. 1994) (quoting Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d
1491, 1495 (11th Cir. 1989)). If the defendant does so, “[t]he plaintiff must then
demonstrate that the employer’s proffered explanations are a pretext for
retaliation.” Id.
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A. Curry’s Prima Facie Case
The VA contends that Curry cannot establish the requisite causal link
between her statutorily protected EEOC activity and lawsuits and the adverse
actions in 2012. Doc. 16 at 22-25. A plaintiff can prove causation through
“sufficient evidence that the decision-maker became aware of the protected
conduct, and that there was a close temporal proximity between this awareness and
the adverse . . . action.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1180 n.30
(11th Cir. 2003). Where, as here, the only evidence of causation is temporal
proximity, the proximity “must be ‘very close.’” Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007) (quoting Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001)).
Unfortunately for Curry, she has failed to make this showing. More
specifically, Curry filed her EEOC complaint in September 2011 and her lawsuit in
February 2012, and the selection decisions at issue occurred in May 2012. Docs.
18-13 at 2; 18-14 at 2; 18-15 at 2. Thus, at best, even assuming all the decisionmakers knew about her protected activities, 4 there is a three-month gap between
4
Only one of the decision makers, Wilson, admitted that he knew about
Curry’s EEOC complaints. Doc. 18-15 at 2. The others denied having such
knowledge. Doc. 18-13 at 2; 18-14 at 2; 18-17 at 3.
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the protected activity and the selection decisions. 5 Such a gap is insufficient under
Eleventh Circuit law to show temporal proximity. See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (finding that “a three-month interval
between the protected expression and the employment action . . . is too long[]” to
sustain plaintiff’s retaliation claim); Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (finding that a three-to-four month gap was
insufficient). Therefore, because Curry is relying solely on temporal proximity, her
prima facie case fails.
B. Curry’s Rebuttal of the VA’s Proffered Reasons
Alternatively, even if Curry can make a prima facie case, her claim fails
because no reasonable factfinder could conclude, based on the record, that the
VA’s proffered explanations for the selection decisions at issue are mere pretext
5
Curry contends that “there is no gap” between the VA’s adverse actions
and her protected activity because of her “ongoing participation” in the EEOC
process and her pending lawsuits against the VA. Doc. 27 at 8. However, temporal
proximity is calculated by reference to the date of a discrete action by the plaintiff
that is protected by Title VII, such as the date of filing an EEOC complaint. See,
e.g., Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (calculating
temporal proximity by reference to the date of the plaintiff’s EEOC complaint, and
rejecting plaintiff’s “utterly implausible suggestion that the EEOC’s issuance of a
right-to-sue letter—an action in which the employee takes no part—is a protected
activity of the employee.” (emphasis in original)); Adams v. City of Montgomery,
569 F. App’x 769, 773 (11th Cir. 2014); Brown v. Huntsville City Bd. of Educ.,
324 F.R.D. 239, 251-52 (N.D. Ala. 2018). Curry’s allegation of “ongoing
participation,” without evidence of a specific protected activity beyond filing her
complaints, does not raise a genuine issue of material fact as to temporal
proximity. See doc. 27 at 8.
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for unlawful retaliation. To show pretext, the evidence produced “must reveal such
weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the
employer’s proffered legitimate reasons for its actions that a reasonable factfinder
could find them unworthy of credence.” See Furcron, 843 F.3d at 1313 (citation
omitted). The plaintiff “must meet each proffered reason ‘head on and rebut it, and
[she] cannot succeed by simply quarreling with the wisdom of that reason.” Id. at
1313-14 (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).
Curry’s unsupported, conclusory allegations that she was more qualified than each
of the selected candidates fail to raise an inference of pretext. See doc. 27 at 4-6;
Furcron, 843 F.3d at 1313 (“Conclusory allegations of discrimination, without
more, are not sufficient to raise an inference of pretext . . .” (citation omitted)).
First, Curry contends that she was more qualified than the selected candidate
for the Dialysis position, Ray, claiming that Ray lacked dialysis experience. Doc.
27 at 5. However, Curry presents no evidence to support this contention, which is
directly contradicted by Frazier’s testimony. See doc. 18-13 at 3. Moreover,
Curry’s testimony that she did not know anything about the successful candidates
for the four positions, including whether they had nursing experience or were more
qualified than her, belies her contention that she is more qualified than Ray. Docs.
19-1 at 18; 19-2 at 10. Finally, Curry failed to address Frazier’s contention
regarding Ray’s professional experience in dialysis nursing, doc. 19-3 at 2, 4,
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which is another reason Frazier articulated for selecting Ray. See id. at 3. In light
of her failure to rebut each reason the VA articulated, Curry’s claim as to the
Dialysis position fails. See Combs v. Plantation Patterns, 106 F.3d 1519, 1538-44
(11th Cir. 1997) (finding that plaintiff failed to produce sufficient evidence to rebut
each of the defendant’s proffered reasons for declining to promote the plaintiff).
Second, with respect to the Palliative Care position, Curry attempts to raise
an inference of pretext by alleging, “The record is devoid of any evidence that
Walker held a RN certification as required by the job announcement.” Doc. 27 at 6.
However, Curry cites no evidence to support this contention, see id., and Walker’s
written application in fact indicates that she was a RN and had been a licensed
practical nurse since at least 1991, see doc. 28-2 at 2. Moreover, Froelich testified
that she selected Walker because of her clinical nursing experience of “about 10,
15 years”, and the position required a RN with “clinical expertise” who could lead
support staff. Doc. 18-14 at 3-4. By contrast, Curry had not yet worked as a RN at
the time of her application. Doc. 19-3 at 2. In other words, Curry has failed to rebut
Froelich’s articulated reason, and her claim for this position also fails.
Finally, Curry cannot point to any evidence that suggests that retaliatory
animus factored into the selections for the two 6B Medical Surgical positions.
Wilson testified that he recommended Miller and Bester for the two positions
because “[t]hey scored high on the performance-based interview tool, and both
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persons had prior nursing experience. [Curry] had never worked as a registered
nurse since she left school.” Doc. 18-15 at 3. There is no evidence that rebuts this
testimony. Therefore, in light of Curry’s failure to “meet each proffered reason
head on and rebut it,” Furcron, 843 F.3d at 1313 (quotation omitted), her claim for
these two positions also fails.
CONCLUSION
In sum, Curry has failed to show the requisite temporal proximity between
her protected activity and the adverse actions to establish a prima facie case.
Curry’s claim fails also because the VA has put forth sufficient, unrebutted
evidence to support its contention that each selected candidate was more qualified
than Curry. Thus, the VA has met its burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. The
court will issue a separate order consistent with this opinion.
DONE the 15th day of October, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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