Harris v. McDonough et al

Filing 55

MEMORANDUM OPINION: The Court will GRANT IN PART McDonough's motion for summary judgment and DENIES AS MOOT McDonough's motion for summary 46 . The Court will enter a separate order that carries out this ruling. Signed by Judge Corey L Maze on 9/3/2024. Associated Cases: 2:22-cv-00193-CLM, 2:22-cv-00194-CLM(LCB)

FILED
2024 Sep-03 AM 09:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIFFANY HARRIS,
Plaintiff,
v.

Case No. 2:22-cv-193-CLM

DENIS MCDONOUGH,
Secretary, Department of
Veterans Affairs
Defendant.

and consolidated case no.:
2:22-cv-194-CLM.

MEMORANDUM OPINION
Pro se Plaintiff Tiffany Harris sues Denis McDonough, Secretary of
the Department of Veterans Affairs, for workplace mistreatment under
Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq.
McDonough moves for summary judgment, arguing that Harris failed to
exhaust her administrative remedies and failed to show a causal
connection between her removal and her protected activity. (Doc. 46).
For the reasons stated below, the court GRANTS summary
judgment for McDonough on Harris’s retaliation claim based on the
removal of Harris’s employment. The court DENIES McDonough
summary judgment on Harris’s claim that she suffered a retaliatory
hostile-work-environment in response to her participation in protected
activity. The court will try that claim to a jury.
BACKGROUND
A. Factual Background
1. The workplace allegations: Tiffany Harris worked for the
Department of Veterans Affairs (“VA”) as an Advanced Medical Support
Assistant. Harris says that from February 2020 to July 2021, she
experienced discrimination, retaliation, discriminatory harassment, and
a hostile work environment.

Harris submitted a 13-page letter with her complaint, specifying the
conduct she endured at the VA. In this letter, Harris alleges that
management and her co-workers often placed white and orange particles
in her work area which affected her breathing because she was allergic. 1
Harris says this behavior began after her supervisor demanded her Social
Security number, accessed her medical records, and discovered her
allergies. According to Harris, her co-workers would place the particles in
the carpet underneath her desk and drop particles on her desk as they
walked by, which made her struggle to breathe. She said she was told to
sit in an assigned seat in the file room where her desk was trashed daily.
Harris also alleges a generally poor working environment with coworkers: she says they would not acknowledge her presence, encourage
others not to interact with her, and yell at her. According to Harris, her
co-workers fabricated reports to destroy her character, procured her
unjustified suspension, and later her removal.
Harris said Supervisor Joyce Gilbert gave her written counselings
for doing things other employees did not get in trouble for, called VA police
on her to escort her out of the building several times, denied her telework
but allowed others to telework, and gave her work assignments with
impossible deadlines to meet. Management also charged Harris with
absence without leave (AWOL) when she was sent home and revoked her
leave under the Family Medical Leave Act. Harris also says she was
denied mandatory Medical Support Assistant training and that Gilbert
canceled her mid-year evaluation.
2. The EEOC claim, investigation, and removal: According to her
complaint, Harris initiated and participated in an internal harassment
investigation with VA’s facility detective, John Moore, in February 2020.
Harris says that her supervisor Joyce Gilbert and Team Lead Porsha
Oakes derailed the investigation. She says when the investigator came to
In her deposition, Harris says these particles are iodine and that she is allergic to
iodine. But Harris never refers to the particles as iodine in her complaint. (See Doc. 4315, p. 46).
1

2

the office, Gilbert and Oakes would cover up the particles on the floor and
lie to the investigator.
In December 2020, Harris filed an EEOC charge.
Harris was ultimately terminated in July 2021. First, Debbie Litton
created a notice of proposed removal that cited six instances Litton said
supported Harris’s removal. Next, Dr. Kokoyi sent Harris a notice of
removal that sustained Litton’s charges and gave these reasons for
removing Harris’s employment:
•
•
•
•

Inappropriate Conduct in the Workplace;
Failure to Follow Supervisory Instructions;
Failure to Report to Assigned Work Area; and
Absent Without Leave (AWOL).

(Id., p. 1). In sum, here is the relevant timeline of events surrounding
Harris’s protected activity and removal:
• February 2020: Harris participated in a harassment
investigation and filed an internal claim with the VA’s EEO
office. 2
• March 2020: Harris received a written counseling for taking
photos and videos of the particles and employees in her
workspace.
• June 2020: Harris received a proposed notice of suspension and
later a five-day suspension.
• July 2020: Harris was suspended for failure to follow supervisory
instruction.
• December 15, 2020: Harris filed a complaint of discrimination
with the EEOC.
• January 2021: Gilbert provided Harris a poor performance
review.
• June 2, 2021: Harris received a notice of proposed removal. (Doc.
43-18).
2

Harris says she received her right to sue letter in February 2022.
3

• June 29, 2021: Harris received a notice of removal from Dr.
Olapido Kokoyi, Interim Medical Center Director. (Doc. 43-14).
3. MSPB hearing: Harris says Dr. Kokoyi and the VA removed her
because she filed the December 2020 EEOC complaint. So she appealed
the removal to the Merit Systems Protection Board (“MSPB”). (Doc. 4316). The MSPB held a hearing and heard testimony from Harris, her
supervisors, and some co-workers. After hearing testimony from both
sides, the MSPB affirmed the VA’s decision to terminate Harris,
sustaining the specifications and charges that the VA had lodged against
Harris. (Doc. 43-17). The MSPB also found that Harris failed to meet her
burden of establishing that retaliation was a motivating factor in the
decision to terminate her. (Id.).
At the same time, Harris continued to pursue her EEOC charge,
including amendments and appeals. Here’s the relevant timeline:
• July 12, 2021: Harris amended her December EEOC complaint
for the 15th time. (Doc. 43-4).
• February 8, 2022: The EEOC issued a decision and order in the
VA’s favor. (Doc. 43-7).
• February 10, 2022: Harris appealed the EEOC’s final decision
and order. (Doc. 43-9).
• February 11, 2022: The VA adopted the EEOC administrative
judge’s decision and issued a final order. (Doc. 43-8).
• February 14, 2022: Harris filed two suits in this federal court
against Denis McDonough (as Secretary of the Department of
Veterans Affairs); the Department of Veterans Affairs; Joyce
Gilbert; Porsha Oakes; and Dr. Oladipo Kukoyi. (Harris v.
McDonough et al., 2:22-cv-193-CLM; Harris v. McDonough et al.,
2:22-cv-194-CLM).
• September 25, 2023: The EEOC’s Office of Federal Operations
affirmed the agency’s final order adopting the administrative
judge’s decision. (Doc. 43-11).

4

• September 27, 2023: Harris requested reconsideration of her
appeal. (Doc. 43-12).
• December 11, 2023: The Office of Federal Operations affirmed its
decision. (Doc. 43-13).
B. Procedural Background
Harris filed two complaints in this federal court against McDonough
to challenge her workplace mistreatment. (Case No. 2:22-cv-193, Doc. 1;
Case No. 2:22-cv-194, Doc. 1). Harris also moved for leave to proceed in
forma pauperis. (Doc. 2). The magistrate judge consolidated Harris’s cases
(doc. 4), screened her complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), and
ordered Harris to file a consolidated amended complaint to correct
pleading deficiencies. (Doc. 5).
Harris filed a consolidated amended complaint, bringing claims
under Title VII of the Civil Rights Act of 1964 against McDonough, the
Department of Veterans Affairs, Joyce Gilbert, Porsha Oakes, and Dr.
Oladipo A. Kukoyi. Harris described her claims as based on termination
of employment, failure to promote, unequal terms and conditions of
employment, retaliation, bullying, and harassment. (Doc. 7, p. 4). This
court then screened Harris’s amended complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii) and found that Harris plausibly alleged a violation of
the participation clause of Title VII’s antiretaliation provision against
Denis McDonough, Secretary of the Department of Veterans Affairs. (Doc.
12). So Harris’s participation clause retaliation claims are the only claims
here at the summary judgment stage.
STANDARD OF REVIEW
In reviewing a motion for summary judgment, this court views the
facts and draws all reasonable inferences in the light most favorable to
the non-moving party. See Cuesta v. Sch. Bd. of Miami-Dade Cty., 285
F.3d 962, 966 (11th Cir. 2002). Summary judgment is appropriate when
there is no genuine dispute of material fact, and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine

5

dispute of material fact exists when “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).
HARRIS’S RESPONSE
After McDonough moved for summary judgment, the court provided
Harris with a notice and explanation of how Rule 56 works. (See Doc. 47).
The court also reminded Harris that her response to McDonough’s motion
was due on March 20, 2024. (Id., p. 2). Harris did not file a response brief.
Instead, she filed a notice of evidentiary submission that provided a
timeline of events and asked the court to refer to the evidence she
submitted along with her complaint in ruling on McDonough’s motion.
(Doc. 44). The court has reviewed both Harris’s and McDonough’s
evidentiary submissions and considered them in the light most favorable
to Harris. In reviewing McDonough’s motion, the court has also kept in
mind that it cannot base its entry of summary judgment on the mere fact
that Harris did not file a response brief but “must consider the merits of
the motion.” See United States v. One Piece of Real Prop. Located at 5800
SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004).
DISCUSSION
Harris alleges two distinct claims: (a) retaliation that resulted in
her removal from employment, and (b) retaliation that resulted in a
hostile work environment. The court addresses the claims in this order.
I.

Removal Retaliation Claim

Harris claims that McDonough removed her from employment in
retaliation for filing an EEOC complaint. McDonough argues that he is
entitled to judgment on this claim for two reasons: (1) Harris failed to
exhaust her removal-based claim; and, (2) Harris cannot show a causal
connection between her removal and her EEOC complaint. The court
agrees with both reasons.

6

A.

Failure to Exhaust: Removal Retaliation Claim

A federal employee bringing a Title VII claim must exhaust her
administrative remedies before suing her employer in federal court. See
Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). When a federal
employee “complains of a personnel action serious enough to appeal to the
MSPB and alleges that the action was based on discrimination, she is said
(by pertinent regulation) to have brought a ‘mixed case.’” Kloeckner v.
Solis, 568 U.S. 41, 45 (2012).
A federal employee presenting a mixed case has two options. She
may either file a discrimination complaint with the EEOC or file an appeal
with the MSPB, but she may not do both. Fleck v. Sec’y of U.S. Dep’t of
Transp., 826 F. App’x 782, 784 (11th Cir. 2020). (citing 29 C.F.R. §
1614.302(b)). If an employee files “both a mixed case complaint and appeal
on the same matter[,] . . . whichever is filed first shall be considered an
election to proceed in that forum.” 29 C.F.R. § 1614.302(b). When “the
MSPB rejects an employee’s claims in a mixed case, the employee may: (1)
seek the EEOC’s review of his discrimination claims; (2) file a civil action
in federal district court raising both his discrimination and termination
claims; or (3) petition the Federal Circuit for review of the termination
decision.” Lee v. United States, 544 F. App’x 898, 900 (11th Cir. 2013)
(citing 5 U.S.C. §§ 7702(b)(1), 7703(b)(1)-(2)). “For those who take the
[second] option, ‘a final decision from the MSPB exhausts an employee’s
administrative remedies and allows him to seek judicial review.’” Council
v. Am. Fed’n of Gov’t Emps. (AFGE) Union, 477 F. App’x 648, 653 (11th
Cir. 2012) (quoting Chappell v. Chao, 388 F.3d 1373, 1375 (11th Cir.
2004)).
The record shows that Harris appealed her removal to the MSPB on
July 9, 2021. (Doc. 43-16). Three days later, Harris amended her EEO
complaint to include a claim that her removal was in retaliation for
engaging in protected activity. (Doc. 43-4, pp. 6-7). Because Harris
appealed to the MSPB before amending her EEO complaint, she made a
binding election to proceed before the MSPB instead of the EEOC. See 29

7

C.F.R. § 1614.302(b). So Harris was required to wait for a final decision
from the MSPB before challenging her removal in federal district court.
Council, 477 F. App’x at 653. Harris, however, filed suit in this court about
a month before the MSPB issued its decision affirming the VA’s removal
of Harris. (See Docs. 1; 43-17). Because Harris filed her original
complaints before the MSPB issued its final decision, Harris failed to
exhaust her administrative remedies. See Stoll v. Principi, 449 F.3d 263,
267 (1st Cir. 2006) (affirming dismissal for failure to exhaust
administrative remedies when plaintiff filed original complaint 9 months
before MSPB issued its final decision).
B.

Merits: Removal Retaliation Claim

Even if Harris adequately exhausted her administrative remedies,
she has failed to present evidence that would permit a reasonable juror to
find that the VA terminated her because she filed an EEOC complaint.
Under Title VII’s federal-sector provision, federal employers must
make “[a]ll personnel actions . . . free from any discrimination,” including
retaliation. See 42 U.S.C. § 2000e-16(a). “[I]f retaliation for engaging in a
protected activity under Title VII taints the decision-making process for
any personnel action, that violates the federal-sector provision—even if
the employer would have made the same decision absent retaliation.”
Buckley v. Sec’y of Army, 97 F.4th 784, 798 (11th Cir. 2024). So a federal
employee bringing a Title VII retaliation claim needn’t establish “but-for”
causation, and the traditional McDonnell Douglas framework does not
apply at summary judgment. See id. Instead, Harris’s removal retaliation
claim will survive summary judgment if she “has submitted evidence that
would allow a reasonable jury to find that retaliation played any part” in
the decision to remove her from federal service. Id. (cleaned up).
It is undisputed that Dr. Kukoyi removed Harris from federal
employment. Harris argues that Dr. Kukoyi had an impermissible conflict
of interest because he was practicing sorcery against her, called her crazy
when she was responding to what happened to her, and knew about the
situation before deciding to terminate her. (Doc. 43-16, pp. 5–6). But when
8

Harris was asked in her deposition about how her removal was connected
to her EEO activity, Harris provided only speculative responses. For
example, Harris testified that she believed Dr. Kukoyi removed her
employment in retaliation for her protected activity to cover up what was
happening to her at the VA and because Dr. Kukoyi had begun to
participate in the dropping of particles in Harris’s work area. Harris,
however, struggled to explain how she knew Dr. Kukoyi was retaliating
against her:
Q.

What other reasons do you have for believing that Dr.
Kukoyi’s decision to remove you was in retaliation for
your protected activity?

A:

I’m not exactly sure. I just know I was retaliated
against. So I’m not exactly sure. I know he played a part
in the retaliation. So the only thing that I can think of
is to cover up on what was being done at the VA. So I
don’t really know.

Q:

Okay. I’m going to restate what I understood was your
testimony. And let me know if I’m describing it
accurately.

A:

Okay.

Q:

You believe that Dr. Kukoyi decided to remove you in
retaliation for your protected activity because it makes
sense as part of a cover-up of the truth of what was
actually going on?

A.

Part of it, yes.

Q:

What is the other part of it?

A.

Once again, he played a role in my retaliation. He
allowed the supervisor—supervisors and the director,
Debbie Litton, as far as to make decisions on my behalf
which was falsified. Pretty much—like I said,

9

everything was falsified. So it was covered up.
I can’t—I don’t really know. As far as—I don’t know, I
guess, how to answer that. But the only thing that I can
say was that everything was covered up on what was
being done to me because I was in protected activity.
(Doc. 43-15, pp. 9–10).
Because Harris is the non-movant, the court will assume that Dr.
Kukoyi knew about Harris’s protected activity when he removed her from
federal employment. But Dr. Kukoyi’s knowledge of Harris’s protected
activity, standing alone, isn’t “evidence that would allow a reasonable jury
to find that retaliation played any part” in the decision to remove Harris
from federal service. See Buckley, 97 F.4th at 798 (emphasis omitted). And
“inferences in favor of a plaintiff can be based only on evidence—not on
speculation.” Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1058
(11th Cir. 2020). So Harris’s speculation that her protected activity played
a role in Dr. Kukoyi’s decision fails to create a genuine dispute of material
fact.
As a result, Harris’s only evidence linking her removal from federal
employment to her protected activity is the temporal proximity between
Harris’s protected activity and Dr. Kukoyi’s decision to fire her. Five
months passed between Harris’s last EEO complaint and the issuance of
Harris’s notice of proposed removal. (Docs. 43-2, 43-18). And another
month passed before Dr. Kukoyi made the final decision to remove Harris.
(Doc. 43-14). “That is far too long to allow for the inference that retaliation
infected the decision-making process that resulted in [Harris’s]
dismissal.” Buckley, 97 F.4th at 799 (holding that 7-8-month gap is too
long and citing with approval cases that have held that a 3-4-month gap
is too long). Because Harris presents no evidence that would allow a juror
to connect her EEOC complaint and her termination, McDonough is
entitled to judgment on Harris’s removal-related retaliation claim. For
this reason, plus Harris’s failure to exhaust, the court will GRANT
McDonough’s motion for summary judgment.
10

II.

Retaliatory Hostile-Work-Environment Claim

Harris claims that her work environment was hostile because she
participated in a harassment prevention program and filed EEOC
complaints. As detailed below, McDonough makes only one argument for
judgment on this claim (failure to exhaust) but acknowledges that
argument is foreclosed by Eleventh Circuit precedent. McDonough does
not seek judgment on the merits, meaning this claim will go to trial.
A.

Failure to Exhaust:
Environment

Retaliatory

Hostile-Work-

Like Harris’s removal retaliation claim, McDonough contends that
Harris failed to exhaust her retaliatory hostile-work-environment claims
because Harris didn’t wait long enough to file this lawsuit.
Harris appealed the EEOC’s final order in favor of the VA to the
Office of Federal Operations. A complainant who files an appeal may only
file a civil action in federal district court “[a]fter 180 days from the date of
filing [the] appeal with the Commission if there has been no final decision
by the Commission.” 29 C.F.R. § 1614.407(d). But Harris filed these
actions only four days after she appealed to the Office of Federal
Operations. (See Docs. 43-9; 43-10).
That said, McDonough concedes that binding Eleventh Circuit
precedent prevents this court from dismissing Harris’s claims for failure
to exhaust if Harris “cooperated in good faith with the EEOC, and [her]
early filing did not prevent the EEOC from investigating [her] complaint
for the full 180 days.” See Brown v. Snow, 440 F.3d 1259, 1264 (11th Cir.
2006), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006). McDonough says that he cannot establish that
Harris acted in bad faith or that this lawsuit prevented the investigation
of Harris’s claims. McDonough is instead raising this issue to preserve it
for appeal. The court will thus DENY McDonough’s motion to dismiss
Harris’s retaliatory hostile-work-environment claims for failure to
exhaust her administrative remedies. See Brown, supra.

11

B.

Merits: Retaliatory Hostile-Work-Environment Claim

“[T]o state a claim for retaliatory hostile-work-environment, a
federal-sector plaintiff must establish that, to retaliate against her for
engaging in protected Title VII activity, her employer created or tolerated
a work environment that might well have dissuaded a reasonable worker
from making or supporting a charge of discrimination and that
environment rose to the level of a personnel action [ ].” Buckley, 97 F.4th
at 799.
In its screening order, the court found that Harris had plausibly
alleged retaliatory hostile-work-environment. (Doc. 12, pp. 7–9). As the
court explained, Harris’s complaint adequately alleged that Harris
engaged in statutorily protected activity when she participated in a
harassment prevention program and when she filed EEOC complaints.
(Doc. 12, pp. 7-8). Harris’s complaint detailed mistreatment “that might
well have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” (Id.). For example, Harris alleged that her
supervisors and co-workers often placed allergens in her workspaces,
made her work in a file room, disciplined her, unjustifiably procured her
suspension, and falsified reports about her. (Id.). And Harris’s allegations
suggested that her harassment could be causally connected to one or both
of the protected activities. (Id., p. 9).
McDonough has not moved for summary judgment on the merits of
Harris’s retaliatory hostile-work-environment claim. So this court will try
Harris’s claim that her employer created or tolerated a hostile work
environment in retaliation for Harris’s participation in activity protected
under Title VII.

12

CONCLUSION
For the reasons stated within, the court GRANTS IN PART
McDonough’s motion for summary judgment. (Case No. 2:22-cv-193, Doc.
45; Case No. 2:22-cv-194, Doc. 47). In the consolidated case, Case No. 2:22cv-194, Docs. 46 and 47 are duplicate filings. So the court DENIES AS
MOOT McDonough’s initial motion for summary judgment in that case.
(Case No. 2:22-cv-194, Doc. 46).
The court will enter a separate order that carries out this ruling.
DONE and ORDERED on September 3, 2024.

_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE

13