Volochayev v. Sebelius
Filing
19
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 10/5/11. (cms, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
SERGEI VOLOCHAYEV,
Plaintiff,
v.
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Civil Action No. 11-cv-00230-AW
KATHLEEN SEBELIUS, SECRETARY,
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES
Defendant.
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Memorandum Opinion
Plaintiff Sergei Volochayev (“Volochayev”) brings this action against Defendant
Kathleen Sebelius, Secretary of the United States Department of Health and Human Services
(“the Agency”) alleging discrimination on the basis of national origin in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) (Count I), and retaliation
under Title VII (Count II). This case has already been litigated by an Administrative Law Judge
(“ALJ”) before the EEOC. On November 23, 2010, the ALJ issued a bench decision in favor of
the Agency, finding that Volochayev failed to establish by a preponderance of the evidence that
the Agency discriminated against him on the bases of national origin and retaliation. See Doc.
No. 8 Ex. 4. Plaintiff is entitled to de novo review of these claims. See Chandler v. Roudebush,
425 U.S. 840, 845-46 (1976).
Currently pending before the Court is Defendant’s motion for summary judgment. See
Doc. No. 8. The Court has reviewed the entire record, as well as the pleadings and exhibits, and
finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2010). For the reasons set forth
below, the Court GRANTS Defendant’s motion for summary judgment.
I.
FACTUAL & PROCEDURAL BACKGROUND
The following facts are taken from the extensive administrative record attached to
Defendant’s motion for summary judgment and referenced by both parties in their briefings to
the Court. Plaintiff Volochayev is a male of Russian ancestry who was employed in the ICU of
the NIH Clinical Center from April 16, 2006 until April 2, 2008. Doc. No. 8 Ex. B at 10.
Throughout his time at the NIH Clinical Center, Volochayev was employed as a Clinical
Research Nurse, AD-0610-1. Doc. No. 8 Ex. H:8 at 1.1 Volochayev’s first-line supervisor was
ICU Nurse Manager Deborah Kolakowski (“Kolakowski”). Doc. No. 8 Ex. B at 13.
Volochayev’s second-line supervisor was Tannia Cartledge (“Cartledge”), the Clinical Center’s
Deputy Chief Nurse Officer, and his third-line supervisor was the Clinical Center’s Chief Nurse
Officer, Clare Hastings (“Hastings”). Doc. No. 8 Ex. C at 467, 471; Ex. H: 21.
A.
Allegations of Discrimination and Prior EEO Activity
In regard to national origin discrimination, Volochayev alleges that a fellow nurse,
Emmanuel Samedi, told him at one point that Cartledge had made derogatory comments about
Russians, stating that Russians could not be trusted and did not belong in Federal service. Doc.
No. 8 Ex. 1 at 26-27. At the administrative hearing, Samedi denied making these comments to
Volochayev, and Cartledge testified that she never made these comments. Doc. No. 8 Ex. D at
809-10; Ex. F at 1054-55. Volochayev also alleges that on one occasion in February or March of
2007, he had just returned from Russia and brought some vodka for a co-worker as a gift, and
1
Many of the exhibits provided by Defendant constitute exhibits within exhibits. For example, the exhibit referred to
here is Exhibit 8 within Exhibit H. For ease of reference, the Court will cite to such exhibits consistent with the cite
above.
2
Kolakowski walked by him and said “Well, you Russians always talking about vodka.” Doc. No.
8 Ex. B at 206. Volochayev also alleges that Kolakowski made a general comment around the
time of his yearly evaluation in February 2007 that Russians were not “subordinate to superior.”
Doc. No. 8 Ex. H:22 at 1, Ex. I at 22, 23, 33, 35-36.
Additionally, an incident occurred in February 2007 where Connie Kotefka, a clinical
educator, e-mailed Volochayev, copying Kolakowski, with respect to certain tasks she believed
Volochayev had failed to do. Volochayev responded by e-mail, taking issue with Kotefka’s
conclusions and telling Kotefka to “next time be more professional” and to operate on the basis
of facts “and not baseless assumptions.” Doc. No. 8 Ex. M:1. Volochayev subsequently talked to
Kotefka about the incident, and Volochayev alleges that he threatened to sue at that point. Doc.
No. 8 Ex. H:14.
Kotefka, allegedly believing that the issues raised in Volochayev’s e-mail had been
resolved by their discussion, followed up her conversation with Volochayev with an e-mail
spelling out her account of what had been said in the conversation with Volochayev. Doc. No. 8
Ex. F at 1060-63, 1067, 1070. The e-mail does not mention Volochayev’s statement that he
intended to sue or that Volochayev had complained of discrimination. Id. Volochayev then sent a
second e-mail in which he told Kolakowski and Kotefka of his intent to contact an attorney or
otherwise invoke the EEO process. Doc. No. 8 Ex. I at 42-43, 46; Ex. B at 120-21, 160-61. Both
Kolakowski and Kotefka state that they never received the e-mail, and Volochayev was unable to
produce the e-mail in response to the Agency’s discovery request. Doc. No. 8 Ex. C at 478, 480;
Ex. F at 1060-61, 1064-65, 1070.
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B.
Events of September 29-October 1, 2007
On the evenings of September 29 through October 1, 2007, Volochayev was working the
night-time shift in the ICU, and was responsible for a patient who will be referred to as Patient
X. Doc. No. 8 Ex. I at 49-50. The physicians treating Patient X had given orders for Patient X to
receive a continuous intravenous drip of fentanyl, a controlled substance, for pain management.
Doc. No. 8 Ex. B at 31-32, Ex. H:17 at 12-17. The fentanyl, which comes in IV bags of 60ml,
was to be dispensed at a rate of 6ml per hour. Id. Accordingly, it should have taken each bag
about 10 hours to run out. Prior to beginning Volochayev’s shift at 7:00 p.m. on September 29,
the first bag of fentanyl was hung at 2:25 p.m. Volochayev reported that the bag had run out at
8:00 p.m., about 5 ½ hours after it was hung, and hung a second bag. Doc. No. 8 Ex. H:17 at 12,
13; Ex. I at 51-52, 56; Ex. B at 32-33. The Controlled Substance Infusion Record indicates that
this bag ran out five hours later at 1:00 a.m. on Sunday, September 30. Volochayev hung a third
bag at this point, but realized about three hours later that that bag was also running out and was
almost empty. Doc. No. 8 Ex. H:17 at 14, Ex. B at 34.
At this point, Volochayev reported the incident to the charge nurse on duty, Danielle
Gawlick. Doc. No. 8 Ex. B at 241-43. Kolakowski later testified that had Volochayev not
reported the fentanyl incident, she would not have found out about it. Doc. No. 8 Ex. C at 575.
Gawlick, Volochayev, and another nurse, Jacqueline Cooper, checked the patient’s vital signs
and found the patient was stable and showed no symptoms of overdose such as depressed blood
pressure or heart rate. Doc. No. 8 Ex. I at 60, 63, 68, 76. They then checked the bed and the area
around the pump and IV line to determine whether there was a leak in the line or a problem with
the pump. Doc. No. 8 Ex. I at 57-58; Ex. B at 36, 40, 129-31, 240-41. Nothing seemed to be out
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of the ordinary except for the missing fentanyl. Id. Gawlick replaced the pump and contacted the
pharmacy to confirm that the right amount of fentanyl had been dispensed (it had). Doc. No. 8
Ex. B at 240-41. Cooper later described how Volochayev would have looked had he infused
fentanyl on himself and said that Volochayev never displayed any of those symptoms. Doc. No.
8 Ex. B at 135.
Volochayev hung another bag at 6:00 a.m. on Sunday, which remained in use for the next
fourteen hours until Volochayev came back for his shift that evening. Doc. No. 8 Ex. H:17 at 9,
15. Later that evening, another bag ran dry in half the time it should have. Doc. No. 8 Ex. B at
188-89. Volochayev then hung another bag, which ran dry after only 1 ½ hours. Doc. No. 8 Ex.
B at 158-59. At that point, Volochayev contacted Parvin Safavi, the charge nurse on duty that
evening to report the problem. Id. Again, they checked the patient, who was stable and showed
no signs of overdose, and the tubing and floor to determine if there was any leakage (there was
none), and contacted the pharmacy to confirm that it had dispensed the proper amount of
fentanyl (it had). Doc. No. 8 Ex. B at 43, 277, 290, 299.
C.
Investigation of Volochayev’s Conduct
Because of questions surrounding the fentanyl incident and because Safavi had reported
that Volochayev delayed reporting the incident, Volochayev was questioned by Pamela Horwitz,
the assistant nurse manager. Doc. No. 8 Ex. H:17 at 1; Ex. C at 384-85. Volochayev did not
know why the fentanyl discrepancy occurred. Id. He stated that the patient’s mother may have
been in the room the first night, although he was not sure about the exact time. After Volochayev
had been questioned, Kolakowski instructed Horwitz to investigate the matter by running tests on
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the pump, looking over Controlled Substance Infusion Records, and looking into how
Volochayev had handled the administration of controlled substances over the prior month. Doc.
No. 8 Ex. L at 40-43; Ex. H:17; Ex. C at 386-87, 672-75, 496-99. Specifically, Kolakowski
alleges he was looking for whether Volochayev had a pattern of failing to document the
administration of controlled substances. Id.
As a result of the investigation, Horwitz found that Volochayev had removed doses of
controlled substances from PYXIS, the pharmacy’s computerized record system, on twenty-one
occasions over the past month but had provided no documentation in the system as to the
administration of those doses. Doc. No. 8 Ex. M:7; Ex. M:8; Ex. C at 388-91, 394-96, 402-03,
404. Volochayev contends that four of these occasions relate to the fentanyl incident, on the
grounds that Volochayev failed to document waste related to the unused fentanyl. Volochayev
alleges it would have been improper for him to do so when he didn’t know what had happened to
the fentanyl. In addition to the twenty-one violations, Horwitz found eleven instances in which
Volochayev had removed controlled substances and failed to document how much of the dosage
was given. Id. Eight of these instances involved range dosages while the other three involved
situations in which Volochayev took out more of the controlled substance than had been ordered.
Volochayev argues that he was not required to document the amount of medication administered
in the three instances not involving range doses because he is only required to report the amount
of medication administered in cases where the physician prescribed a range dose. Doc. No. 8 Ex.
F at 119-1222.
Additionally, the investigation revealed that on at least five occasions Volochayev had
inputted into the system that he had administered controlled substances before he had actually
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removed the drugs from PYXIS. Id. However, Volochayev notes that on one of those occasions
the discrepancy was a mere three minutes. Doc. No. 8 Ex. M:7; Ex. M:8. Cooper, one of the
nurses who helped with the fentanyl incident on September 29, states that a failure to document
happens to her and others all the time and that following protocol completely is sometimes an
impossibility. Doc. No. 8 Ex. B at 137. However, Cooper testified that 20 failures to document in
a single month is “not common.” Doc. No. 8 Ex. B at 155. Horwitz testified that she has
“[a]bsolutely not” ever seen a situation with this many failures to document controlled
substances within a month. Doc. No. 8 Ex. C at 414. Kolakowski similarly stated that she had
“never seen a situation” like this. Doc. No. 8 Ex. C at 524. Cartledge stated that she considered
the problems to be “very significant” and that “[i]n all [her] years of experience in this position
and with employees,” she had never seen such discrepancies. Volochayev contends that the
charge nurse did not see the initial fentanyl incident as a crisis and questions why his supervisors
undertook such an investigation in the first place. Doc. No. 8 Ex. H:18.
As a result of the investigation, Kolakowski and Horwitz met with Volochayev on
October 3 to discuss their findings. Doc. No. 8 Ex. H:17 at 3-4; Ex. C at 411, 508. Volochayev
explained the discrepancies by stating that he was distracted and failed to document
appropriately. Id. Kolakowski asked Volochayev to provide an explanation in writing. Id. Later
that day, Volochayev responded in an e-mail and provided an account of what had happened
with the fentanyl bags over the weekend (basically the account illustrated above); and stated that
he may have been distracted in instances in which he failed to document properly. Doc. No. 8
Ex. M:9.
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Regarding another instance of removal of fentanyl on September 14, Volochayev stated
that he may have removed the fentanyl at the request of another nurse for use by another patient.
Doc. No. 8 Ex. H:17 at 4, Ex. C at 408, 412, 417, 508, 510, 512-14, 580. Volochayev did not
remember the nurse or patient who may have requested the fentanyl. Volochayev also later stated
that someone may have taken his PYXIS code and removed the drugs. However, Volochayev’s
key-card was used for entry, so someone would have had to have stolen his key-card. Id.
D.
Proposal to Remove Volochayev and Resulting Removal
After the investigation was completed, Kolakowski informed Cartledge that she was very
concerned about Volochayev returning to the ICU unit. As Volochayev’s second-level
supervisor, Cartledge was the decision-maker in the formal recommendation to remove
Volochayev. In reaching her decision, Cartledge consulted with NIH Human Resources
specialist Erica Smith, Clinical Center Deputy Director for Workforce Relations Hillary Fitilis,
and Kolakowski. Cartledge alleges that her final decision to remove Volochayev was based on:
(1) the pervasiveness of the conduct, given the number of discrepancies within a one-month
period, Doc. No. 8 Ex. D at 779-780, 801; (2) Volochayev’s lack of explanation for how the
conduct occurred, id. at 803; (3) concern about potential risks to patients, although there is no
contention Volochayev endangered patients through his prior violations, id. at 780, 802; (4)
impact of Volochayev’s violations on the Agency’s accreditation and research, id. at 802; (5)
Volochayev’s knowledge of the procedures in question, id. at 803; (6) Volochayev’s prior
performance rating, which was “Minimally Successful” on a scale of Exceptional, Fully
Successful, Minimally Successful, and Unacceptable, id. at 802, Doc. No. 8 Ex. H:22 at 1, 4, 7;
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and (7) given all the above factors, Cartledge contends she found removal to be the appropriate
course of action considering the “Table of Penalties”, which lists different possible penalties for
Volochayev’s violations from reprimand to removal, Doc. No. 8 Ex. D at 802, 804, 854 Ex. H:27
at 11.
On December 7, 2007, Cartledge issued a Notice of proposed Removal to Plaintiff. Doc.
No. 8 Ex. H:18 at 1-6. The charges stating the bases for removal relate to the findings from the
Agency’s investigation. Id. On January 11, 2008, Volochayev filed a reply to Cartledge’s
proposal stating that the Agency was retaliating against him for disagreeing with management
and that preferential treatment had been given to certain employees. Doc. No. 8 Ex. H:19.
Volochayev contended that there were other nurses who had engaged in worse misconduct
without being disciplined. Id. The Agency investigated Volochayev’s claims. See Doc. No. 8 Ex.
M:17, Ex. E at 998-99, 1001-02, 1007, 1023-24. However, after reviewing the record, on March
24, 2008 Deciding Official Clare Hastings issued a decision to remove Volochayev from Federal
service. Doc. No. 8 Ex. H:20 at 1-2. Hastings found that Volochayev had failed to explain his
failures to document, and that such failures potentially threaten the Clinical Center’s
accreditation. Id. Hastings also noted that she did not find merit in Volochayev’s claim that the
Agency was retaliating against him for reporting unlawful preferential treatment of staff because
Volochayev had never filed a grievance or complaint to that effect. Id.
On July 3, 2008, Volochayev filed a formal complaint before the EEOC. The parties
engaged in discovery from late January through August 2009. Doc. No. 8 Ex. O. The parties then
held six days of hearings that occurred between October 14, 2009 and September 21, 2010. Id.
On September 24, 2010, ALJ David Norken issued a verbal bench decision over the telephone
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finding in the Agency’s favor. Doc. No. 8 Ex. A. Specifically, Judge Norken found that: (1)
Volochayev had failed to make a prima facie showing of national origin or retaliation
discrimination; (2) the Agency had given legitimate, non-discriminatory reasons for its
termination of Volochayev; and (3) Volochayev had failed to demonstrate that the Agency’s
reasons were a pretext for national origin discrimination or retaliation. Id. at 35-37. This Court is
not reviewing the ALJ’s decision but is reviewing the record de novo in this case.
On January 26, 2011, Volochayev filed suit in this Court for discrimination based on
national origin and retaliation for protected activity in violation of Title VII. Now pending before
the Court is the Agency’s motion to dismiss Volochayev’s Complaint.
II.
STANDARD OF REVIEW
Summary judgment is only appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The Court must “draw all justifiable inferences in
favor of the nonmoving party, including questions of credibility and of the weight to be accorded
to particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
To defeat a motion for summary judgment, the nonmoving party must come forward with
affidavits or other similar evidence to show that a genuine issue of material fact exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact
presents a genuine issue “if the evidence is such that a reasonable jury could return a verdict for
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the non-moving party.” Anderson, 477 U.S. at 248. Although the Court should believe the
evidence of the nonmoving party and draw all justifiable inferences in his or her favor, a party
cannot create a genuine dispute of material fact “through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
III.
ANALYSIS
Volochayev asserts claims under Title VII for retaliation and discrimination based on
national origin. After reviewing the record, the Court does not believe Volochayev’s claims can
survive summary judgment. The extensive record in this case shows that Volochayev’s failure to
follow proper documentation procedures with regard to controlled substances, rather than a
discriminatory or retaliatory intent, led to Volochayev’s removal from his Clinical Research
Nurse position.
A.
Request for Additional Discovery
As a preliminary matter, the Court will consider Volochayev’s request for additional
discovery in this case. Rule 56(d) of the Federal Rules of Civil procedure provides that a Federal
district court may allow a non-moving party additional time to take discovery if the non-movant
“shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition.” Here, Volochayev’s counsel submitted an affidavit contending that
additional discovery is appropriate so that Volochayev can obtain: (1) a review of all PYXIS
records for a one-year period from all nurses supervised by Kolakowski and other nurses under
the supervision of those involved in disciplining Volochayev; (2) the experience level of each
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nurse; (3) Volochayev’s patient charts; (4) a deposition regarding other instances in which a drug
was unaccounted for at NIH; (5) the national origin of the individual who replaced Volochayev,
if any; and (6) discovery with respect to Volochayev’s performance between the time of his
complaints until the fentanyl incident. See Doc. No 13 Ex. 4.
Denial of a Rule 56(d) motion is appropriate where: (1) the materials sought in the Rule
56(d) motion “could have been sought during the discovery period”; and (2) the non-movant has
“been diligent in pursuit of their discovery rights.” CBRE Realty Fin. TRS, LLC v. McCormick,
414 Fed. Appx. 547, 551 (4th Cir. 2011). Additionally, this Court has found denial of a Rule
56(d) motion appropriate when “the administrative record pertaining to these claims is
substantial.” Murchison v. Astrue, 689 F. Supp. 2d 781, 798 (D. Md. 2010);2 see also Palmer v.
Barnhart, No. WDQ-04-323, 2005 WL 6138318, at *2 (D. Md. Aug. 25, 2005) (denying Rule
56(f) motion where plaintiff had ample opportunity to develop her case during EEOC hearing).
As in Murchison, the Court in this case is presented with a voluminous administrative
record that is the product of seven months of discovery and a five-day hearing. The Court was
surprised to find that Volochayev did not seek information during discovery at the administrative
level regarding the national origin of the individual who replaced Volochayev, since this is
central to a prima facie showing of discrimination. However, Volochayev has not alleged that
this information could not have been sought during the discovery period. The Court finds that
Volochayev had a full opportunity to develop discovery at the administrative level, and thus the
interests of justice and judicial expediency weigh against re-opening the discovery record at this
stage. Moreover, for the reasons discussed below the Court would grant the Agency’s motion for
2
Murchison dealt with a Rule 56(f) motion. Rule 56(f) was recodified on December 1, 2010 and is presently
identified as Rule 56(d).
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summary judgment even if discovery were to reveal that Volochayev was in fact replaced by a
non-Russian. Accordingly, Volochayev’s request to re-open the record for additional discovery
is denied.
B.
Discrimination on the Basis of National Origin
The Court now moves to Volochayev’s claim that his rights under Title VII were violated
when he was removed from his position as Clinical Research Nurse because of national origin
discrimination. Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 200e-2(a)(1). Volochayev, who is Russian,
argues that the Agency removed him because of his national origin. Volochayev may prove this
alleged violation of Title VII in either of two ways: (1) by “using any direct or indirect evidence
relevant to and sufficiently probative” of discriminatory purpose, or (2) by using the burdenshifting approach outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Volochayev contends that his claim succeeds under the McDonnell Douglas burdenshifting approach. Under this scheme, the plaintiff must first must establish a prima facie case of
discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. To establish a prima facie case,
Volochayev must show that: (1) he is in a protected class; (2) he suffered an adverse employment
action; (3) he was performing his job duties at a level that met his employer’s legitimate
expectations at the time of the adverse employment action; and (4) the position remained open or
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was filled by similarly qualified applicants outside the protected class. Bonds v. Leavitt, 629 F.3d
369, 386 (4th Cir. 2011).
If the plaintiff meets this burden, the defendant must present a legitimate,
nondiscriminatory reason for the challenged conduct. See Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 142 (2000) (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)). If the defendant succeeds in doing so, that will rebut the presumption of discrimination
raised by the plaintiff=s prima facie case. See Stokes v. Westinghouse Savannah River Co., 206
F.3d 420, 429 (4th Cir. 2000) (citing Burdine, 450 U.S. at 255 n.10). The plaintiff then must
Aprove by a preponderance of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.@ Burdine, 450 U.S. at 253. In the
end, A[t]he plaintiff always bears the ultimate burden of proving that the employer intentionally
discriminated against her.@ Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.
1996) (citing Burdine, 450 U.S. at 253).
The Agency argues that Volochayev cannot establish a prima facie case because
Volochayev failed to perform his duties at a level that met the Agency’s legitimate expectations
at the time of his removal. The Agency contends that even if Volochayev established a prima
facie case, it has established legitimate, nondiscriminatory reasons for removing Volochayev: the
pervasiveness of Volochayev’s documentation issues, his awareness of the procedures in
question, the institutional risks raised by his conduct in regard to the Agency’s accreditation, and
his prior performance ratings. The Agency asserts that Volochayev has not offered any evidence
to show that either Cartledge’s reasons for proposing removal or Hastings’ reasons for removing
Volochayev were pretext for a discriminatory purpose.
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Volochayev contends that his failures to document controlled substances impacted no
one, caused no injury to any patient, and did not damage the hospital in any tangible way.
Volochayev contends that the charges against him are without merit and a product of
Kolakowski’s discriminatory animus. Volochayev argues that he should have received
counseling or otherwise have been given a chance to improve, like other employees, before being
removed. Although Volochayev is correct that his documentation issues did not hurt any
patients, Volochayev fails to show that his failures to document controlled substances did not
risk damaging the Agency’s accreditation, research, and funding. Furthermore, Volochayev was
rated as “minimally successful” in a performance rating that dates back to the period of June 30December 31, 2006, based in part on the fact that Volochayev needed to “[i]mprove
documentation” and “[a]dhere to NPCS policies, procedures and SOPs that guide clinical
practice.” Doc. No. 8 Ex. H:22 at 1, 4, 7. This suggests that Volochayev’s documentation issues
have been an issue throughout his employment.
Volochayev contends that he was treated differently from similarly situated employees
Mark Pavlick and Carol Wingfield. Specifically, Volochayev contends that Wingfield had nine
reports of discrepancies for medication and documentation errors but was given verbal
counseling instead of being removed. However, Volochayev has not refuted the Agency’s
contention that Wingfield was not in fact similarly situated because she had not yet completed
her competencies and was not fully trained at the time of her violations, whereas Volochayev had
worked several years as a trauma nurse before being hired by the Agency. Moreover,
Wingfield’s violations were far less pervasive than Volochayev’s, where she had committed only
a few violations each month.
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Additionally, Volochayev contends that Pavlick, a similarly situated employee, was given
five separate counseling sessions before being removed for seven violations, one which could
have been life-threatening to a patient. Doc. No. 8 Ex. C at 558. Pavlick’s violations occurred
over a period of nine months, and each dealt with a breach of a different rule. Although
Volochayev’s conduct did not threaten any patients, the Court finds that Volochayev was not
similarly situated to Pavlick where Volochayev engaged in multiple violations of the same rule,
suggesting disregard for Agency practices and rules rather than mere negligence on isolated
occasions.
Taken as a whole, Volochayev’s numerous violations relating to the documentation of
controlled substances suggest that Volochayev was struggling to adhere to the Agency’s policies
and procedures. Given the Agency’s concern that Volochayev “[i]mprove documentation” in
order to “meet[] the performance expectations in the ICU,” demonstrated from the beginning of
Volochayev’s employment, the Court finds that Volochayev was not satisfying the Agency’s
legitimate expectations at the time he was removed.
Accordingly, the Court finds that Volochayev has not established a prima facie case of
national origin discrimination. Even if Volochayev had established a prima facie case, Verizon
has presented legitimate, non-discriminatory reasons for terminating Volochayev: his pervasive
documentation violations relating to controlled substances. The Court does not find that
Volochayev presented any evidence to show that the Agency’s legitimate, non-discriminatory
reasons were pretextual. Volochayev has not shown or even suggested that Hastings, the final
decision-maker in the decision to remove Volochayev, did not reasonably believe that
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Volochayev had engaged in pervasive violations of a kind that jeopardized the integrity of the
Clinical Center’s procedures and potentially threatened its accreditation.
Moreover, Volochayev has not shown that his nationality played any role in either
Cartledge’s decision to recommend Volochayev for removal or Hastings’ decision to remove
Volochayev. Rather, the most Volochayev can show is that Kolakowski, who Cartledge
consulted in making her recommendation to remove, made at most two isolated comments about
Volochayev’s nationality, the most recent occurring more than six months before the initial
investigation that prompted Volochayev’s removal. Volochayev has also not shown that his
nationality was ever discussed at any point throughout the investigation or in discussions
regarding his removal. For these reasons, the award of summary judgment to the Agency is
appropriate on Volochayev’s discrimination claim.
B.
Retaliation
In count two, Volochayev alleges that the Agency retaliated against him in violation of
Title VII when, in response to his complaints to his supervisor Kolakowski about discriminatory
treatment, the Agency removed Volochayev. The Agency contends that Volochayev cannot
establish a prima facie case under these facts.
Title VII makes it unlawful for “an employer to discriminate against any of [its]
employees . . . because he has opposed any practice made an unlawful practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 200e-3(a). The
Court analyzes a retaliation claim using the McDonnell Douglas framework. Causey v. Balog,
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162 F.3d 795, 803 (4th Cir. 1998). A prima facie case for retaliation exists where: (1) the plaintiff
engages in protected activity; (2) an adverse employment action occurs against the plaintiff; and
(3) there is a causal connection between the protected activity and the employment action.
Causey, 162 F.3d at 803. The plaintiff’s burden in this regard is “not onerous”; it requires only
that he prove each element by a preponderance of the evidence. See Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981).
The protected activity cited by Volochayev is his sending an e-mail to Kolakowski in
April 2007 threatening to go to the EEO or his lawyer if management continued what
Volochayev believed were discriminatory practices against him. Complaining about
discriminatory treatment relating to a protected class is protected under the opposition clause of §
2000e-3(a). See Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981) (“The
opposition clause has been held to encompass informal protests, such as voicing complaints to
employers or using an employer’s grievance procedures.”). However, there is no evidence that
the discriminatory conduct of which Volochayev was referring had anything to do with his
national origin. Indeed, at no point in the incident leading up to Volochayev’s e-mail did he
mention his national origin or anything else that would imply his complaints related to prohibited
discrimination. Thus, Volochayev has not shown that he engaged in a protected activity as
necessary to satisfy the first element of the prima facie case.
However, even if Volochayev had shown that he engaged in a protected activity,
Volochayev has not alleged a sufficient nexus between his internal complaints and his removal.
While Volochayev asserts that he complained about discrimination in an e-mail, Kolakowski and
Kotefka, the intended e-mail recipients, both testified that they never received the e-mail, and
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Volochayev has not presented any evidence suggesting that they did. Given that Kolakowski was
not aware of the complaint, Volochayev cannot show a causal connection between his
complaints and his removal. Furthermore, Volochayev has presented no evidence other than his
subjective belief to show that he was removed because he complained to Kolakowski.
Volochayev’s retaliation claim also fails because, for the reasons stated in the discrimination
section above, the Court finds that the Agency presented legitimate reasons for removing
Volochayev that Volochayev has not shown to be pretextual. Accordingly, Volochayev’s
retaliation claim must also be dismissed.
IV.
CONCLUSION
For the foregoing reasons, the Agency’s motion for summary judgment is GRANTED. A
separate order will follow.
October 5, 2011
Date
/s/
Alexander Williams, Jr.
United States District Judge
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