Barnwell v. McDonald
Filing
97
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENTgranting 65 Motion for Summary Judgment. Closing Case. Motions Terminated: 65 Defendant's MOTION for Summary Judgment With Supporting Memorandum of Law filed by Robe rt McDonald. Signed by Judge Marcia G. Cooke on 10/25/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-23194-Civ-COOKE/TORRES
ANITA BARNWELL,
Plaintiff,
vs.
DAVID J. SHULKIN,
Defendant.
_________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Anita Barnwell (“Plaintiff”) brings this action against Defendant David J.
Shulkin, Secretary, United States Department of Veterans Affairs (“Defendant”) under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 45 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”) to recover damages
for alleged discrimination due to her age and race, as well as retaliation. See Am. Compl.,
ECF No. 9, ¶ 1. Defendant filed a Motion for Summary Judgment (“Defendant’s Motion”)
(ECF No. 65), which contained within it a supporting Statement of Undisputed Material
Facts. Plaintiff did not timely file a response and the time to do so has passed.1 Therefore,
Defendant’s Motion for Summary Judgment is ripe for adjudication. I have reviewed
Defendant’s Motion for Summary Judgment, Defendant’s Statement of Undisputed Material
Facts and attached exhibits, the record, and the relevant legal authorities. For the reasons
provided herein, Defendant’s Motion for Summary Judgment is granted.
1
The day before Plaintiff’s response was due, Plaintiff filed a Motion to Stay Proceedings, or
in the Alternative, Motion for Extension of Time to File Response to Defendant’s Motion for
Summary Judgment (“Motion to Stay”) (ECF No. 67). Plaintiff’s Motion to Stay was denied
because counsel had not complied with Local Rule 7.1(a)(3) and because Plaintiff did not
show good cause for the requested extension of time. See ECF No. 70. Plaintiff later filed a
Notice re Defendant’s Motion for Summary Judgment (ECF No. 72) which consisted only of
exhibits; however, Defendant filed a Motion to Strike Plaintiff’s Notice (ECF No. 73).
Plaintiff never responded to the motion to strike, which was subsequently granted on October
13, 2017. See ECF No. 83. That same day, Plaintiff filed a Response to Defendant’s Motion
(ECF No. 84), seventy-one days after the deadline and seventeen days before trial. Defendant
again moved to strike Plaintiff’s response (ECF No. 89), and again, Plaintiff failed to respond
to the motion. Plaintiff’s response was stricken on October 24, 2017. See ECF No. 96.
I.
BACKGROUND
Plaintiff is an African American woman over the age of forty who began working at
the Department of Veteran Affairs (“VA”) in 1980 as a food service worker. Def.’s Statement
of Undisputed Material Facts (“SMF”), ECF No. 65, ¶¶ 1–2.2 In 1986, she moved to Medical
Administration Services (“MAS”) as a file clerk. Id., at ¶ 3. She stayed in that position until
1989, when she became a medical support assistant. Id., at ¶¶ 3–4. Around 5 years later,
Plaintiff was promoted to a Medical Support Assistant Supervisor. Id., at ¶ 4. In 2000,
Plaintiff became a Supervisory Program Support Assistant, where she remained for
approximately six years. Id. In 2006, Plaintiff was promoted to Assistant Chief, Ambulatory
Care. Id., at ¶ 5. She maintained that position through 2014. Id. During her time as Assistant
Chief in 2009, Plaintiff performed two details of assistant chief for 120 days each. Id., at ¶ 6;
Pl.’s Depo., ECF No. 66-1, 10:22–12:3. For both details she was paid at a GS-9 level, which
was higher than her current grade level. SMF, ¶ 6. Around that time, Roberta Watson served
as Plaintiff’s second-line supervisor. Pl.’s Depo., at 25:9–13. In June 2010, Ms. Watson spoke
with Plaintiff about doing a detail in the Broward County Outpatient Clinic (“Clinic”). SMF,
at ¶ 8. According to Ms. Watson, the Clinic was “exploding” and she needed someone to
help bring it up to standards. Id. Sometime in May 2011, Plaintiff was in a meeting where she
heard Ms. Watson say she wanted to get rid of the “dead wood.” Id., at ¶ 9; Pl.’s Depo., at
65:13–67:1. Plaintiff interpreted this as a reference to getting rid of people based on their
advanced age, as many of the people in the meeting were getting ready to retire. Pl.’s Depo.,
at 65:13–67:1. In June 2011, Plaintiff received a pay increase, going from a GS-8 to a GS-9.
SMF, ¶ 7.
Plaintiff did not actually go on the detail at the Clinic until November 2011. SMF, at
¶¶ 10, 12. A few days before she started the detail, she was given a memorandum that stated
she would be detailed to the Clinic for ninety days to improve administrative processes at the
Clinic. Id., at ¶ 10; Pl.’s Depo., at 29:19–17. Plaintiff was also given a Request for Personnel
Action indicating Plaintiff would be paid at the GS-11 level beginning November 21, 2011.
2
Pursuant to subsection (b) of Local Rule 56.1 regarding Motions for Summary Judgment, all
material facts set forth in the movant’s statement will be deemed admitted unless
controverted by the opposing party’s statement, provided that the movant’s statement is
supported by evidence in the record. Defendant’s statement of material facts is
uncontroverted and is supported by evidence in the record; therefore, Defendant’s statement
of material facts are deemed admitted.
2
SMF, at ¶ 12. However, while the form listed the pay level as GS-11, the actual rate of pay
listed on the form was the GS-9 salary, Plaintiff’s existing pay grade. Id., at ¶ 13. The form
does not appear to have been approved by anyone in Human Resources at the VA and
Plaintiff is unaware whether the form was ever approved. Id., at ¶ 12; Ex. 3 to Pl.’s Depo.
Plaintiff stayed on the detail at the Clinic well past the initial ninety-day time frame because
she was gaining experience and was helping the VA with improving administrative processes.
SMF, at ¶ 14. From 2011 to 2016, Plaintiff is not aware of anyone who went on a detail and
was paid at a higher grade level, although she states it is not something that would be readily
known. Id., at ¶ 15; Pl. Depo., at 61:10–14.
In 2013, Plaintiff applied for the position of Chief of MAS in Miami, for which she
interviewed, as well as the position of Clinic Coordinator in Fort Lauderdale, for which did
not interview. SMF, at ¶ 16; Pl. Depo., at 97:4–99:25. Plaintiff was not selected for either
position. SMF, at ¶ 16. The person selected to be the Chief of Medical Administrative
Services was a white man, possibly in his thirties, and the person selected to be the Clinic
Coordinator was a man in his thirties. Pl. Depo., at 64:11–19, 98:14–99:19. After Plaintiff
was not selected for the position of Clinic Coordinator, she returned to the Miami VA office
in August 2013. SMF, at ¶ 18; Pl. Depo., at 63:24–64:24.
On January 23, 2014, Plaintiff submitted a formal Complaint of Employment
Discrimination with the VA, alleging that she was not properly paid at the GS-11 rate while
on her detail at the Clinic in Broward because of discrimination on the basis of age and race.
SMF, at ¶ 19; Ex. A, ECF No. 65-1, p. 3. In 2014, after filing her formal discrimination
complaint, Jean Brooks, the Acting Chief of MAS, moved Plaintiff from an office to a cubicle
to work on projects. SMF, at ¶ 21. According to Plaintiff, her office was then given to an
intern. Pl. Depo. 73:18–25. In 2016, Plaintiff was reassigned to the Data Unit within MAS.
SMF, at ¶ 22. Although her title changed to Program Analyst, she remained at the GS-9 level
but was still assigned to a cubicle. Id. Ms. Brooks told Plaintiff she was reassigned because her
current position, Assistant Chief, Ambulatory Care, was being eliminated or reclassified. Id.,
at ¶ 23. The position was eliminated in 2016. Id. Plaintiff ultimately retired in 2016 as a
Program Analyst after 36 years with the VA. Id., at 25.
II.
LEGAL STANDARD
Summary judgment “shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
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no genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) (quoting Fed. R.
Civ. P. 56(c)) (internal quotations omitted); Damon v. Fleming Supermarkets of Florida, Inc., 196
F.3d 1354, 1358 (11th Cir. 1999). Thus, the entry of summary judgment is appropriate
“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).
“By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). “As to
materiality, the substantive law will identify which facts are material. Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248. “For factual issues to be considered genuine, they must have a real basis
in the record . . . 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)
(citations omitted).
“Even in an unopposed motion, the moving party still bears the burden of identifying
[the evidence] which it believes demonstrates the absence of a genuine issue of material fact.”
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Further, the “district court need not sua sponte review all of the
evidentiary materials on file at the time the motion is granted, but must ensure that the
motion itself is supported by evidentiary materials.” United States v. 5800 SW 74th Ave., 363
F.3d 1099, 1101 (11th Cir. 2004). After review of the evidence, summary judgment is proper
“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, 477 U.S. at 322. In those cases, there is no genuine issue of material fact “since
a complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323.
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III.
DISCUSSION
In her Amended Complaint (ECF No. 9), Plaintiff alleges discrimination in Violation
of Title VII of the Federal Civil Rights Act (Count I), Retaliation in Violation of Title VII of
the Federal Civil Rights Act (Count II), and Discrimination in Violation of the Age
Discrimination in Employment Act of 1967 (Count III). My Order on Defendant’s Motion to
Dismiss (ECF No. 76) limited Plaintiff’s claims to the issue of whether Plaintiff’s pay at the
GS-9 level instead of the GS-11 level was discriminatory and whether the VA retaliated
against Plaintiff for filing her EEOC complaint.
A. Race and Age Discrimination
Defendant argues that Plaintiff has not established a prima facie case of race or age
discrimination. I agree. “Under Title VII, it is unlawful for an employer to discharge any
individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of [her] race.” Archie
v. Frank Cockrell Body Shop, Inc., 581 F. App’x 795, 798 (11th Cir. 2014) (citing 42 U.S.C. §
2000e–2(a)(1)). “A plaintiff establishes a prima facie case of discrimination by showing (1)
[s]he belongs to a protected class; (2) [s]he was subjected to an adverse employment action;
(3) [her] employer treated similarly situated employees outside of [her] class more favorably;
and (4) [s]he was qualified to do the job.” Id. (citing McCann v. Tillman, 526 F.3d 1370, 1373
(11th Cir. 2008). Courts generally apply the Title VII framework to determine if a plaintiff has
established a prima facie case of discrimination under the ADEA. See Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 141 (2000); Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267
(11th Cir. 2001). “The methods of presenting a prima facie case are not fixed; they are flexible
and depend to a large degree upon the employment situation.” Thomas v. Miami Veterans Med.
Ctr., 290 F. App’x 317, 319 (11th Cir. 2008).
As Defendant points out, Plaintiff has not brought forward any evidence to show that
the VA treated similarly situated employees outside of her protected classes more favorably.
The only comparison that can be drawn from evidence in the record involves two promotions
for which Plaintiff applied but was not hired. SMF, at ¶ 16; Pl. Depo., at 97:4–99:25. The
hired individuals were both in their thirties and one was white. Pl. Depo., at 64:11–19, 98:14–
99:19. However, there is no indication that either individual was similarly situated to Plaintiff
in terms of experience or qualifications, nor is there any connection between those
individuals and Plaintiff’s claim that she was paid at the GS-9 level rather than the GS-11
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level. Plaintiff has not identified any other employees who went on a similar detail,
performed substantially the same work, and were paid more than her, either within or
without her protected class. The fact that Plaintiff had previously gone on details and received
higher pay at the GS-9 level does not create an inference that the VA discriminated against
Plaintiff by paying her at the GS-9 level while she was on the Broward detail. The failure to
show similarly situated comparators is fatal to establishing a prima facie case of disparate
treatment under the ADEA and Title VII. As such, Defendant is entitled to summary
judgment on Counts I and III.
B. Retaliation
Defendant also argues that Plaintiff has failed to establish a prima facie case of
retaliation because Plaintiff cannot show an adverse action, nor can Plaintiff show a hostile
work environment. Again, I agree with Defendant. Title VII prohibits retaliation against an
employee “because [s]he has opposed any practice made an unlawful employment practice by
[Title VII], or because [s]he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing [thereunder].” Crawford v. Carroll, 529 F.3d
961, 970 (11th Cir. 2008) (quoting 42 U.S.C. § 2000e–3(a)). There is no dispute that Plaintiff’s
filing of the EEOC complaint was protected activity under Title VII.
a. Adverse Action
To establish a prima facie case of retaliation under Title VII, the employee must
demonstrate “the following essential elements: (1) the employee was engaged in statutorily
protected activity; (2) the employee suffered an adverse employment action; and (3) a causal
link exists between the protected activity and the adverse employment action.” Furcron v. Mail
Centers Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016). To show an adverse action, an
employee must establish an “ultimate employment decision,” such as termination, failure to
hire, or demotion, “or make some other showing of substantiality in the employment context
. . . .” Crawford, 529 F.3d at 970. “[C]onduct falling short of an ultimate employment decision
must, in some substantial way, ‘alter[ ] the employee’s compensation, terms, conditions, or
privileges
of
employment,
deprive
him
or
her
of
employment
opportunities,
or adversely affect [ ] his or her status as an employee.” Id. (quoting Gupta v. Florida Board of
Regents, 212 F.3d 571, 587 (11th Cir.2000)). The alteration must be “‘a serious and
material change in the terms, conditions, or privileges of employment’ to show
an adverse employment action.” Id., at 970–71 (11th Cir. 2008) (quoting Davis v. Town of Lake
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Park, Fla., 245 F.3d 1232, 1239 (11th Cir.2001)). “[T]he antiretaliation provision . . . [does
not] immunize that employee from those petty slights or minor annoyances that often take
place at work and that all employees experience.” Palmer v. McDonald, 624 F. App’x 699, 702
(11th Cir. 2015) (internal quotations omitted). “The actions must be likely to deter victims
from complaining, [a]nd normally petty slights, minor annoyances, and simple lack of good
manners will not create such deterrence.” Id. (internal quotations omitted).
After filing her EEOC complaint in 2014, Plaintiff was moved from her office to a
cubicle and was assigned to work on projects. SMF, at ¶ 21. In 2016, she was reassigned to
the Data Unit as a Program Analyst. Id., at ¶ 22. Plaintiff’s pay remained at the GS-9 level
throughout. Id. Ms. Brooks, the Acting Chief, told Plaintiff her former position was being
eliminated or reclassified. Id., at ¶ 23. The VA did in fact eliminate the position in 2016. Id.
These actions do not rise to the level of a serious and material change. Moving from an office
to a cubicle is clearly the type of petty slight or minor annoyance that all employees
experience. Additionally, “the removal of [Plaintiff’s] supervisory responsibilities and the
shift of her post-reorganization duties to those more clerical are not the type of serious and
material changes contemplated by Davis.” Byrne v. Alabama Alcoholic Beverage Control Bd., 635
F. Supp. 2d 1281, 1292 (M.D. Ala. 2009) (citing Davis, 245 F.3d at 1239). Especially where
Plaintiff did not suffer a reduction in pay, such a change in responsibility is not a serious and
material change in the terms, conditions, or privileges of employment.3
b. Hostile Work Environment4
Defendant also moves for summary judgment on Plaintiff’s claim of hostile work
environment. “[T]his circuit recognizes a cause of action for retaliatory hostile work
environment.” Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012).
[T]o be actionable, this behavior must result in both
an environment that a reasonable person would find hostile or abusive and
an environment that the victim subjectively perceive[s] . . . to be abusive. In
evaluating the objective severity of the harassment, this court looks at the
totality of the circumstances and considers, among other things: (1) the
3
Because I find that Plaintiff has not suffered an adverse action, I do not reach Defendant’s
argument that there is no causal link between Plaintiff’s protected activity and Defendant’s
actions.
4
In her Amended Complaint, Plaintiff alleged a hostile work environment claim under Title
VII on the basis of race discrimination, as well as retaliatory hostile work environment. The
only claim that remains is Plaintiff’s retaliatory hostile work environment claim. See ECF
No. 76.
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frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive utterance;
and (4) whether the conduct unreasonably interferes with the employee’s job
performance. [W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances.
Id. (internal quotations omitted). “[C]onduct must be extreme to amount to a change in the
terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998).
Plaintiff has not brought forward any facts to show a hostile work environment other
than the actions discussed above—Plaintiff being moved from an office to a cubicle, being
reassigned to the Data Unit, and being reclassified to a Program Analyst after her former
position was terminated. The only other possible action that could constitute retaliation or
discrimination is the comment from Plaintiff’s supervisor, Ms. Watson, where she said she
wanted to get rid of all the “dead wood.” SMF, ¶ 9; Pl.’s Depo., at 65:13–67:1. Plaintiff
interpreted this comment to be discriminatory based on her age, since other people in the
department were getting ready to retire. Pl.’s Depo., at 65:13–67:1. However, this statement
was made prior to Plaintiff filing her EEOC charge and cannot be part of her retaliation
claim. Taken separately, these acts do not constitute adverse action. Taken collectively, they
do not amount to a “workplace . . . permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.” Gowski v. Peake, 682 F.3d 1299,
1311 (11th Cir. 2012). Defendant is entitled to summary judgment on Count II of Plaintiff’s
Amended Complaint.
IV.
CONCLUSION
Having reviewed the arguments and the record, Plaintiff has failed to establish a prima
facie case of race discrimination or retaliation under Title VII of the Civil Rights Act of 1964,
nor has Plaintiff established a prima facie case under the ADEA. Therefore, as explained
above, summary judgment in favor of Defendant is appropriate.
Accordingly, it is ORDERED and ADJUDGED that Defendant’s Motion for
Summary Judgment (ECF No. 65) is GRANTED. Plaintiff’s Complaint is DISMISSED. A
separate judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure shall issue
concurrently.
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DONE AND ORDERED in chambers at Miami, Florida, this 25th day of October
2017.
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
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