Milbury et al v. McDonald et al

Filing 80

Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Defendant's Motion for Summary Judgment. Copy mailed to plaintiff. (Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
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CHRISTINE CARR,
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Plaintiff,
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v.
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ROBERT A. McDONALD,
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Defendant.
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___________________________________________)

Civil No.
15-11483-FDS

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action alleging unlawful employment discrimination, harassment, and
retaliation on the basis of religion. Plaintiff Christine Carr, a former medical support assistant at
the Veterans Affairs Medical Center in West Roxbury, Massachusetts, has filed suit against her
former employer, alleging various forms of religious harassment and discrimination, as well as
retaliation for her complaints regarding that harassment. She is proceeding pro se.
Defendant Robert McDonald, Secretary of Veterans Affairs, has moved for summary
judgment as to all claims. For the reasons described below, that motion will be granted.
I.

Factual Background
Christine Carr was hired in 2010 as a Medical Support Assistant at the VA Medical

Center in West Roxbury, Massachusetts. (Wichers Decl. Ex. C). Prior to her hiring as a medical
support assistant, Carr had been employed at the center as a food service worker from 20032010. (Wichers Decl. Ex. B). Carr is Catholic. (Wichers Decl. Ex. F).

A.

Carr’s Work History

There is no dispute that Carr did not have a good working relationship with many of her
coworkers or supervisors. Numerous colleagues and supervisors complained about her behavior.
(See Def. SMF ¶¶ 8-15). Coworkers complained that Carr refused to do her work, refused to be
trained, was rude and dismissive to patients, and sent lengthy and defensive emails that
disparaged others. (Id.). The record reflects that during her employment as a medical support
assistant, Carr had four different direct supervisors, a second-line supervisor, and three different
third-line supervisors. (Wichers Decl. Exs. F-I). Of those supervisors, six were also Catholic,
including three of her four direct supervisors. (Wichers Decl. Exs. F, J-M). One of Carr’s
supervisors, Alex Paganucci, testified that Carr was “completely unmanageable.” (Wichers
Decl. Ex. J). At least three other supervisors gave similarly negative testimony concerning
Carr’s work performance. (See Wichers Decl. Ex. G, H, K).
The record also contains evidence that Carr was on the receiving end of numerous
disciplinary actions. In 2012, she received an admonishment in March; a letter of counseling in
May; and a second admonishment in September. (Morall Decl. Exs. D, E; Wichers Decl. Ex. Q).
The May 2012 incident led to a mediation between the VA and Carr’s union representatives from
the National Association of Government Employees. (Wichers Decl. Ex. P). Following
mediation, the VA agreed to remove the letter of counseling from Carr’s record and to provide
her with additional job-related training. (Id.). 1
On December 19, 2012, five days after the shooting massacre at Sandy Hook Elementary
School in Newtown, Connecticut, Carr sent her supervisor an e-mail stating: “1ST MARINE

1

Although Carr appears to contend that the mediation was resolved in her favor and should therefore have
preclusive effect over this litigation, a review of the counseling letter and the mediation agreement show that the
mediation did not cover any issues of discrimination or retaliation that Carr has raised here.

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CORP. GUADAL CANAL SNIPER SCOUT’S DAUGHTERS DON’T RUN . . . laugh together
all you want . . . .” (Bediako Decl. Ex. A). She was placed on paid administrative leave while
management and the VA police investigated the incident. (Wichers Decl. Exs. F, R).
In February 2013, Carr received a three-day suspension for the e-mail incident, another
letter of counseling in April, and a fourteen-day suspension in May. (Wichers Decl. Exs. T-V).
In October 2013, supervisor Chris Powers recommended that she be terminated, but the human
resources department downgraded the discipline to a second fourteen-day suspension. (Wichers
Decl. Ex. H).
In February 2014, Carr was placed on paid administrative absence pending an
investigation into an allegation that she had e-mailed the VA’s Office of Resolution Management
confidential personal and medical information for hundreds of veterans (purportedly in support
of a 2013 administrative complaint of discrimination). (Ritter Decl. Exs. A, B). When
management escorted Carr to her lockers for cleanout before the paid leave began, they
discovered printouts of all the confidential records. (Wichers Decl. Ex. FF).
In April 2014, the VA gave Carr a notice of proposed removal, which became final in
June 2014. Def. SMF ¶¶ 38, 42. The four charges listed in the notice were (1) improper
retention of veterans’ records; (2) failure to safeguard confidential matter or access to such; (3)
failure to discharge duties conscientiously and effectively, based on (a) an incident when Carr
went to lunch instead of assisting a disabled veteran, and (b) three incidents when Carr failed to
process all of the Interfacility Consults (“IFCs”) assigned to her; and (4) unreasonable delay in
carrying out instructions, based on a month-and-a-half delay in Carr’s compliance with repeated
directives to submit official requests for prior absences. (Wichers Decl. Ex. HH).
Carr’s employment was terminated effective June 18, 2014. (Wichers Decl. Ex. LL).

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B.

Carr’s Equal Employment Opportunity Complaints

The record indicates that Carr first visited an Equal Employment Opportunity counselor
in December 2012. The counselor was unable to resolve Carr’s complaints and, although the VA
initially agreed to mediate the dispute, no mediation was ever scheduled. (Wichers Decl. Ex.
MM). On March 28, 2013, Carr filed the first of two formal EEO complaints with the VA.
(Wichers Decl. Ex. II). She submitted an amendment to her complaints on November 14, 2013.
(Wichers Decl. Ex. JJ). She identified 39 separate incidents that she alleged constituted religious
harassment, discrimination, and retaliation for her initial meeting with the EEO counselor.
(Wichers Decl. Ex. NN). 2
Carr’s second complaint, which she submitted on May 21, 2014, alleged that her April
2014 notice of proposed removal was based on her religion and was also retaliation for her prior
EEO contacts. (Id.). On January 30, 2015, the VA’s Office of Employment Discrimination
Complaint Adjudication issued a Final Agency Decision, finding no merit to any of Carr’s
claims. (Id.).
II.

Procedural History
Carr filed the present action on March 31, 2015, asserting multiple claims against

Secretary of Veterans Affairs Robert McDonald and ten other individual defendants. 3 On
August 11, 2015, the Court dismissed all claims against all defendants, with the exception of the
claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, against
Secretary McDonald. The Secretary has now moved for summary judgment on those claims.

2
The specifics of each of the 39 incidents are detailed at length in defendant’s statement of material facts
and are discussed further in this memorandum and order only where necessary or relevant to this decision.
3

Carr also filed an “amended complaint,” which she intended to supplement, rather than supersede, the
original complaint. See Am. Compl. at 4.

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III.

Legal Standard
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party 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(a). “Essentially, Rule 56[]
mandates the entry of summary judgment ‘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.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party
may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present
affirmative evidence.” Id. at 256-57.
IV.

Religious Harassment
It is difficult to isolate or identify the specific incidents on which Carr bases her claims.

In her prior administrative proceedings, Carr identified 39 separate incidents that she alleged
constituted harassment, discrimination, or retaliation (or all three). Because Carr may not now
assert new allegations that were not raised in those administrative proceedings, see Thornton v.
UPS, Inc., 587 F.3d 27, 31 (1st Cir. 2009), the Court will assume that Carr intends to incorporate

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all 39 incidents in this action.
A plaintiff alleging a claim for workplace harassment based on religion must show that:
(1) she is a member of a protected class; (2) she was subject to uninvited
harassment; (3) the offending conduct was because of her religion; (4) the
harassment was severe and pervasive; (5) the offending conduct was both
objectively and subjectively offensive and (where employer liability is sought);
(6) there was a basis for such liability.
Rivera v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003). In Rivera,
the First Circuit was careful to highlight the difference between “an environment that is offensive
to a person of strong religious sensibilities and an environment that is offensive because of
hostility to the religion guiding those sensibilities.” Id. at 190.
A review of the record concerning the 39 incidents indicates that only two involve any
plausible connection to Carr’s religion. The first such incident occurred in 2013. According to
the undisputed evidence, Carr’s supervisor, Alex Paganucci, required all his staff to request
annual leave by (1) entering a request in the computer at least a week in advance and (2) letting
him know about the request. Def. SMF ¶ 80. Two days before Good Friday, Carr entered a
request in the computer to take that day off, but did not notify Paganucci. On the morning of
Good Friday she called in sick for four hours. Later that day she called back and reported that
she would be out all afternoon as well, because she had requested the entire day off.
Paganucci—who is Catholic—told Carr that he did not know about her request and was going to
deny it. Carr took the entire day off anyway. She then complained to other management
officials, who approved her request. Id.
The second incident occurred when a co-worker allegedly ripped up a picture of Jesus
that Carr had placed on her desk. Def. SMF ¶ 55. That co-worker, however, was not a
supervisor or manager. Under Title VII, an employer may be held liable for a non-supervisor’s
conduct only where the plaintiff can show “that the employer knew or should have known about
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the harassment, yet failed to take prompt action to stop it.” Noviello v. City of Boston, 398 F.3d
76, 95 (1st Cir. 2005). Carr did not report that incident to management at the time, and there is
no evidence that management was aware of the action at the time. (Carr Dep. 53-54).
Accordingly, Carr may not now seek to hold her employer liable for failing to take proper action
in response. Defendant’s motion to for summary judgment on Carr’s claim for workplace
harassment will therefore be granted.
V.

Retaliatory Harassment and Termination
Carr also alleges that the harassment she experienced and the termination of her

employment were in retaliation for her contacts with an EEO counselor in December 2012. Title
VII makes it an unlawful act for an employer “to discriminate against any individual . . . because
he has opposed any practice made an unlawful employment practice” under Title VII. 42 U.S.C.
§ 2000e–3(a). Where direct evidence of retaliation is lacking, retaliation claims are evaluated
using the three-stage burden-shifting method of proof set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). See, e.g., Mariani-Colon v. Department of Homeland Sec.,
511 F.3d 216, 223 (1st Cir. 2007).
In order to establish a prima facie case of retaliation, a plaintiff must establish three
elements: (1) that the plaintiff engaged in a protected activity; (2) that the plaintiff suffered a
materially adverse action, causing him harm either inside or outside of the workplace; and (3)
that the adverse action was causally linked to her protected activity. See id. (citing Dixon v.
International Bhd. of Police Officers, 504 F.3d 73, 81 & n. 4 (1st Cir. 2007)). If the plaintiff
makes this showing, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its employment decisions and conduct. See McDonough v. City of
Quincy, 452 F.3d 8, 17 (1st Cir. 2006). If the defendant presents such a reason, the plaintiff must

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demonstrate that the defendant's proffered reason is pretext masking illegal retaliation. See id.
For the purposes of this motion, the Court assumes that Carr has established a prima facie
case of retaliation with respect to the 22 incidents that occurred after her first EEO complaint. 4
Even so, defendant has provided numerous legitimate, non-retaliatory reasons for its actions, and
the Court is unable to discern in Carr’s submissions any evidence that those reasons were mere
“pretext” for retaliation. 5 Indeed, the evidence of pretext or retaliatory animus with respect to
the alleged harassment and her termination is essentially non-existent.
The overwhelming weight of the record evidence indicates that the VA’s stated reason
for firing Carr was, in fact, the actual reason behind her firing. “For a plaintiff to ‘impugn the
veracity’ of the employer's proffered reason is insufficient; instead, a plaintiff must proffer
specific facts that would enable a reasonable factfinder to conclude that the employer's reason for
termination was a ‘sham’ intended to cover up the employer's true motive.” Ponte v. Steelcase
Inc., 741 F.3d 310, 323 (1st Cir. 2014) (quoting Mesnick, 950 F.2d 816, 824 (1st Cir. 1991)).
Defendant’s motion for summary judgment will therefore be granted as to Carr’s claim for
retaliatory harassment and termination.
VI.

Unequal Pay Based on Religion
The same burden-shifting framework applies to Carr’s claim that she received unequal

pay based on her religion. To make out a prima facie case of religious discrimination in
compensation under Title VII, “[a plaintiff] must show that (1) he is a member of a protected
class; (2) he met his employer's expectations; (3) he suffered adverse employment action with

4
Because the other incidents occurred before Carr first contacted an EEO counselor, those incidents could
not have constituted retaliation for any protected activity.
5

As defendant notes, “Carr’s history of . . . antagonism toward coworkers and supervisors is powerful
evidence that none of the twenty-two incidents bore any connection to her contact with an EEO counselor.” Def.
Mem. 16.

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respect to compensation; and (4) similarly-situated employees outside the protected class
received more favorable treatment.” Prescott v. Higgins, 538 F.3d 32, 41 (1st Cir. 2008).
Carr testified that a number of co-workers were hired at a higher grade than her, even
though she alleges she had more training and experience. (Carr Dep. at 208). However, Carr has
not specifically identified any similarly-situated non-Catholic employees who were paid more
than her. “[A] plaintiff cannot defeat summary judgment by relying on ‘conclusory allegations,
or rank speculation.’” Mariani-Colon, 511 F.3d at 224 (1st Cir. 2007) (quoting Fontánez–Núñez
v. Janssen Ortho LLC, 447 F.3d 50, 55 (1st Cir. 2006)). As a result, Carr has not made out a
prima facie case of unequal pay under Title VII and defendant’s motion to dismiss that claim
will therefore be granted. See id. at 42.
VII.

Discriminatory Termination Based on Religion
A plaintiff claiming unlawful termination based on discrimination must first establish a

prima facie case of discrimination. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.
2001). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. If the
employer articulates such a reason, the burden shifts back to the plaintiff to show that the
proffered reason was mere pretext, and that the true reason was unlawful discrimination. Id. at
34. Thus, “[a]t the summary judgment stage, the plaintiff must produce evidence to create a
genuine issue of fact with respect to two points: whether the employer's articulated reason for its
adverse action was a pretext and whether the real reason was . . . discrimination.” Quinones v.
Buick, 436 F.3d 284, 289-90 (1st Cir. 2006) (quotation and internal citation omitted).
Defendant does not appear to contest that Carr has made out a prima facie case. See Def.
Mem. 19. And, as noted, the record contains ample evidence of legitimate, non-discriminatory

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reasons for Carr’s termination. Thus, in order to survive summary judgment, Carr must
“elucidate specific facts which would enable a jury to find that the reason given is not only a
sham, but a sham intended to cover up the employer's real motive: [ ] discrimination.” SotoFeliciano v. Villa Confresi Hotels, Inc., 779 F.3d 19, 25 (1st Cir. 2015) (quoting Mesnick, 950
F.2d at 824); cf. Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 452 (1st Cir. 2009) (rational
jury must be able to conclude that unlawful age discrimination was the “actual, but-for cause” of
the discrimination); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)
(the plaintiff must show “colorable evidence to show that the reasons, if pretextual, were pretexts
for age discrimination”) (emphasis in original).
Carr has not done so here. Although she has submitted thousands of pages of documents
into the record, the Court is unable to find any record evidence supporting her claim that she was
fired because of her religion. In contrast, defendant has presented substantial uncontested
evidence that the VA had valid, non-discriminatory reasons for terminating her employment.
Defendant’s motion for summary judgment as to Carr’s claim for wrongful termination will
therefore be granted.
VIII. Conclusion
For the reasons set forth above, defendant’s motion for summary judgment is
GRANTED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: May 26, 2016

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