Buckhanan v. Shulkin et al
Filing
79
***DISREGARD THIS ENTRY*** DUPLICATE ENTRY*** Memorandum Opinion and Order 68 MOTION for Summary Judgment as to plaintiff's claim of race, gender and age discrimination. The court reserves ruling as to plaintiff's claim for retaliation, a nd orders that defendant, should it choose to supplement its motion to address the specific matters identified by the court herein, shall have 14 days from this date in which to do so. Plaintiff would then have 14 days to respond thereto. Signed by District Judge Tom S. Lee on 2/19/15 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ALICE BUCKHANAN
PLAINTIFF
VS.
CIVIL ACTION NO. 3:13CV278TSL-JCG
ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF THE UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS;
VETERANS ADMINISTRATION MEDICAL
CENTER, JACKSON G.V. “SONNY” MONTGOMERY
MEDICAL CENTER; JOE BATTLE;
CHARLES DONELSON and DOES 1 through 10
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Erik K. Shinseki, in his official capacity as Secretary of the
United States Department of Veterans Affairs, for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff Alice Buckhanan has responded to the motion and the
court, having considered the memoranda of authorities, together
with attachments, submitted by the parties, concludes that the
motion should be granted as to plaintiff’s claim of race, gender
and age discrimination.
The court, however, will reserve ruling
on defendant’s claim for summary judgment as to plaintiff’s claim
for retaliation.
Claims
Plaintiff Alice Buckhanan is an African-American female over
the age of 40.
She became employed as a police officer with the
Jackson VA Medical Center (VAMC) in 2002.
She was terminated from
employment in August 2012, ostensibly because she failed to
maintain qualification in the use of her service firearm, a
condition of her employment.
In the present action, plaintiff
alleges that her termination was the result of unlawful
discrimination on the basis of race, gender, age and retaliation,
in violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 623 et seq.1
Facts
From the time of her employment in 2002 until March 2011,
when she sustained an on-the-job injury and was temporarily
assigned to alternate duty, plaintiff worked as a police officer
with the VAMC.
As a VAMC police officer, plaintiff was required
to qualify with her firearm every six months, which she did up to
the time of her injury.
In March 2012, after more than a year on
alternate non-police duty, plaintiff was cleared by an Office of
1
Originally, in addition to naming Shinseki as a
defendant in his official capacity, plaintiff also named as
defendants Joe Battle, in his individual capacity and his official
capacity as Director of the VAMC, and Charles Donelson, in his
individual capacity and his official capacity as supervising
police sergeant at VAMC, and, in addition to her federal claims,
she asserted a number of state law claims, including claims for
breach of employment contract, negligent and intentional
infliction of emotional distress and workers’ compensation
retaliation. By memorandum opinion and order entered October 3,
2013, the court dismissed all but the federal discrimination and
retaliation claims against Shinseki.
2
Worker’s Compensation physician to resume her normal law
enforcement duties.
However, under VA policy, before she could
return to duty as a police officer, plaintiff was required to pass
physical and psychological examinations and to requalify with her
weapon.
On May 18, 2012, immediately upon receiving notice that
she had passed the physical and psychological exams, plaintiff was
directed to report to the firing range to attempt to requalify
with her weapon, notwithstanding that VA policy required that any
officer separated from normal police duties for more than six
months be offered firearms retraining before attempting to
requalify with her weapon2 and notwithstanding that plaintiff was
not offered such training.
To qualify with a weapon, an officer is given up to three
attempts of fifty rounds each and qualifies if she hits at least
forty of fifty rounds completely inside the target.
During the
testing on May 18, 2012, plaintiff failed in her first attempt to
qualify.
Indeed, according to plaintiff’s own testimony, she shot
so poorly that she stopped after firing only about twenty rounds.
2
On this issue, plaintiff points out that Veteran’s
Affairs Handbook No. 730, Part 4(c), states, “When a VA police
officer has been separated from a VA Police and Security unit for
more than 6 months, the officer will be retrained and recertified
before being issued a VA Form 1396, Weapons Authorization Card.”
Defendant does not dispute this.
3
The firearms instructor overseeing the testing, Conrad Hamp,3
recognized the difficulties plaintiff was having and concluded
that before proceeding with a second or third attempt, plaintiff
would need remedial training.4
According to plaintiff, initially
3
Hamp was not employed at the Jackson VAMC but rather at
the Law Enforcement Training Center (LETC) for the Department of
Veteran Affairs in Little Rock, Arkansas. He was in charge of the
division responsible for firearms training and had been sent to
the Jackson VAMC, along with a number of other LETC instructors,
following an examination that revealed discrepancies in training
records for the Jackson VAMC’s police officers, which indicated a
need for review of the Jackson VAMC’s officers’ firearms training
and certification.
4
In a May 19, 2012 letter to the acting chief of police
at the Jackson VAMC, Hamp wrote the following:
One officer was given only one attempt as the lack of
weapon handling skills, inability to shoot within the
time limits, and total number of valid hits on the
target were so far below the required amount, it was
clear that giving two more attempts would not be helpful
and counterproductive. This officer was given some
remediation to try and correct and hone her shooting
skills. Again, based on the time we had and number of
officers, the remediation was short. Over the many
years training police officers on the range it was clear
to me that this officer needed fundamental training
prior to attempting to qualify.
Consistent with the statements in his letter, Hamp has testified:
I just don’t think the ... second and third attempt
would have benefitted Ms. Buckhanan at all. It was
clear that – that she as well as others there needed
some – some more basic firearms training than weapon
handling.
Even if she were to pass on the second and third –
and again, this is just my opinion – I don’t take any –
any comfort knowing that an officer just gets by with
qualifying after I’ve observed poor weapons management,
the inability to draw the weapon efficiently, holster
up, all the safety things. If she were to pass and then
go on duty with that weapon, in the back of my mind, it
would have been still a very big liability for the
4
the plan was that she would return to the range the following day
and have two more attempts to qualify.
However, it was later
decided that she and two other officers who had failed to qualify
would be sent to the Law Enforcement Training Center (LETC) in
Little Rock, Arkansas for basic firearms retraining.
Accordingly,
plaintiff, along with Officer Gregory Maples and Sergeant Lorraine
Hudson, attended the LETC training course during the week of June
25-29, 2012.
The forty-hour course included classroom instruction
and hands-on skill training designed to teach proper shooting
stances, loading, holstering and unholstering of weapons, and
shooting at various distances.
On the final day of training, the
students performed a practice qualification test and received
feedback before attempting to qualify.
After testing, plaintiff was informed that she had failed to
qualify as the most hits she scored was 39, which she did in two
of her three rounds.
Officer Maples and Sergeant Hudson also
failed to qualify at LETC, and on July 3, 2012, all three
employees were placed on administrative leave and recommended for
termination by acting Police Chief Yolanda Motley on account of
their “[f]ailure to maintain qualification in the use of agency
approved firearms at an armed facility as a condition of
employment.”
As to plaintiff, the charge that she failed to
department itself.
5
qualify contained two specifications, as follows:
(1) that in May
2012, plaintiff “failed on three (3) attempts” to qualify; and
(2) that after remedial training at the LETC during June 2012, she
failed to qualify after three attempts.
Although plaintiff orally
contested the recommendation for termination, Joe Battle, Director
of the Jackson VAMC, accepted the recommendation and, by letter
dated October 15, 2012, advised plaintiff that she was terminated
effective November 2, 2012 based on her failure to qualify, as set
forth in the initial recommendation letter, i.e., on account of
her alleged failures on three attempts to qualify in May and again
in June 2012.5
Her termination came two weeks after the Equal
Employment Opportunity Commission (EEOC) issued a determination in
favor of the VAMC on a charge of race and age discrimination that
plaintiff had filed in August 2010.
On November 16, 2012, plaintiff filed an appeal of her
termination to the Merit Systems Protection Board (MSPB).
Following a March 14, 2013 hearing, the administrative law judge
issued an opinion sustaining the termination and rejecting
plaintiff’s claims of race, gender and age discrimination and
retaliation.
Plaintiff then timely filed the present action.
5
Officer Maples was not terminated because, after
receiving his proposed removal notice, he resigned. In response
to her notice of proposed removal, Sergeant Hudson submitted a
request for reasonable accommodation to the VAMC Reasonable
Accommodation Committee. Ultimately, the committee approved her
request and she was transferred to another department.
6
Race and Age Discrimination
While defendant has moved for summary judgment on all of
plaintiff’s claims, plaintiff has offered a substantive response
in support of only her gender discrimination and retaliation
claims.
She does not address her age discrimination claim at all
and offers no evidence to support such claim.
As to the race
discrimination claim, her memorandum of authorities does include a
section entitled “Proof of race discrimination”, but nothing in
that section – which is a mere two sentences – suggests a valid
factual or evidentiary basis for the claim.6
Accordingly, in view
of plaintiff’s failure to present any evidence in support of her
claims of race and age discrimination, the court concludes that
defendant is entitled to summary judgment on these claims.
Gender Discrimination
Title VII makes it “an unlawful employment practice for an
employer ... to discriminate against any individual with respect
6
While not entirely clear, plaintiff’s position appears
to be that the VA’s negative reaction to her 2010 EEOC charge
alleging race discrimination provides circumstantial evidence that
she was the victim of race discrimination. However, a conclusion
of race discrimination cannot reasonably be inferred merely from
proof – assuming that such proof actually exists - that the VA
treated plaintiff unfavorably after she filed a charge of race
discrimination. Such proof might support a claim of retaliation,
but not of race discrimination. See Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009)(prima facie case of race
discrimination requires proof, inter alia, that the plaintiff was
treated less favorably than an employee outside her protected
class or that she was replaced by someone outside her protected
class).
7
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. § 2000e–2(a)(1).
An
employer's action is unlawful if gender was “a motivating factor”
for terminating an employee.
Leal v. McHugh, 731 F.3d 405, 411
(5th Cir. 2013) (citation omitted).
In adjudicating Title VII
claims of gender discrimination where there is no direct evidence
of discrimination based on gender, the court applies the
burden-shifting framework articulated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).
Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003).
Under this framework, a plaintiff first must make a prima facie
case of unlawful gender discrimination.
Id.
The burden of
production then shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the challenged action.
Id.
If it does, the plaintiff must then prove that the
defendant's stated reason is pretextual.
Id.
See also Khalfani
v. Balfour Beatty Communities, L.L.C., --- Fed. App’x ----, 2014
WL 7229499, at *1 (5th Cir. 2014).
To establish a prima facie case
of gender discrimination, plaintiff must show “(1) [s]he is a
member of a protected class, (2) [s]he was qualified for the
position at issue, (3) [s]he was the subject of an adverse
employment action, and (4) [s]he was treated less favorably
because of h[er] membership in that protected class than were
8
other similarly situated employees who were not members of the
protected class, under nearly identical circumstances.”
Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
In the case at bar, defendant maintains that plaintiff cannot
establish a prima facie case of gender discrimination because
(1) she cannot establish that she was qualified for the position;
and (2) she cannot establish that she was treated differently than
a similarly situated person outside her protected class or
replaced by someone outside her protected class.
It contends that
summary judgment is therefore in order.
On the issue of qualification for a position, the Fifth
Circuit has suggested that an employer’s argument that an employee
is not qualified for a position typically is belied by the fact
that the employee was hired in the first place and retained in
employment.
See Taylor v. Peerless Indus. Inc., 322 Fed. App’x
355, 357 n.1 (5th Cir. 2009).
Thus, it has held that generally,
“performance concerns are more appropriately addressed in
assessing a plaintiff's assertion that an employer's articulated
reason for its action was a pretext” than at the prima facie
stage.
See id.
That is, “a plaintiff challenging his termination
or demotion can ordinarily establish a prima facie case of ...
discrimination by showing that he continued to possess the
necessary qualifications for his job at the time of the adverse
action” and that he “had not suffered physical disability or loss
9
of a necessary professional license or some other occurrence that
rendered him unfit for the position for which he was hired.”
Holliday v. Commonwealth Brands, Inc., 483 F. App'x 917, 921 (5th
Cir. 2012) (internal quotation marks and citation omitted).
“The
lines of battle may then be drawn over the employer's articulated
reason for its action and whether that reason is a pretext for ...
discrimination.”
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503,
1506 (5th Cir. 1988).
However, in the case at bar, defendant
notes that qualifying with an authorized firearm is a condition of
employment with the VAMC Police Department.
Thus, although
plaintiff initially qualified in 2002 and maintained her weapons
qualification up until her injury in 2011, defendant contends that
at the time of her termination, she was no longer qualified for
the position as a result of her failure to qualify with her
service weapon following her May 2012 release to return to normal
law enforcement duties.
More particularly, defendant asserts that
since plaintiff failed to qualify with her firearm following
remediation training at the LETC in June 2012, she cannot
establish that she was qualified for the position.7
7
For her part,
Under Jackson VAMC’s policies, an officer will not be
considered to have failed to qualify unless she is given three
attempts to achieve the minimum score of forty. Consequently,
defendant has acknowledged that while plaintiff did not qualify
with her weapon in May 2012 since her testing was cut short after
only her first attempt to qualify, she could not be deemed to have
failed the qualification testing.
10
plaintiff does not dispute that qualifying with her weapon was a
condition of her employment.
However, she maintains that she has
at least created a genuine issue of material fact as to whether
she was qualified for the position.
Among other things, plaintiff argues that an issue of fact
exists based on evidence that the qualifying test administered by
the VA in May 2012 was “dishonest”.
In this regard, she claims
that documentation from the May 18, 2012 testing was falsified
because she fired only fifty duty rounds on that date and the VA
record reflects that an additional 150 duty rounds were fired, for
a total of 200 rounds.
Further, according to plaintiff, someone
forged her signature on her score sheet which showed that she
failed the first round of the test on May 18.
In the court’s
opinion, even if the evidence did show that these records were
falsified, this would not tend to create a genuine issue of
material fact on plaintiff’s prima facie case because defendant
does not contend that plaintiff was not qualified due to having
failed to qualify during the testing in May but rather because
plaintiff, after receiving remedial training, was tested at the
LETC in June 2012 and failed to qualify.8
8
Plaintiff appears to suggest that her evidence that
defendant falsified the documentation relating to the May 2012
firearms testing supports an inference that defendant contrived a
basis to terminate her, which she claims is further bolstered by
the fact that the termination letter wrongly recited that
plaintiff failed to qualify in three attempts in May 2012 and
11
Plaintiff acknowledges that the LETC testing in June provided
her with the required three attempts to qualify and that she was
recorded as scoring 39, 27 and 39, respectively.
However, she
argues that although the highest score she was credited with
achieving was 39, there is evidence that she actually did score
enough hits in the targets to qualify at the LETC.
In other
words, she claims there is evidence which shows that she actually
scored higher than 39 on her firearms test at the LETC and that
she actually did qualify with her firearm, as a result of which
she was qualified for the position of VAMC police officer.
Having
carefully reviewed the evidence, the court concludes that
plaintiff has failed to create a genuine issue as to whether she
attained a qualifying score during the LETC testing in June.
As support for her position that she did, in fact, score
enough hits to qualify, plaintiff offers her own testimony from
her March 2013 MSPB hearing and from her November 2014 deposition,
along with her January 2015 affidavit prepared in support of her
response to defendant’s motion.
At the MSPB hearing, plaintiff
offered that as a specification for her failure to qualify and
hence as a basis for her termination. However, as defendant has
admitted that plaintiff did not complete the testing in May since
she was given only one attempt to qualify and has admitted that
Police Chief Motley and VAMC Director Battle were thus mistaken in
asserting that she failed to qualify in May after three attempts,
plaintiff’s evidence that the VA’s records relating to the May
testing were falsified does not go to the question whether she was
in fact qualified but rather is relevant, if at all, only on her
pretext argument.
12
testified that she felt good about her shooting during the
qualifying rounds at the LETC and believes she scored over forty
on at least one of her rounds.
It is apparent from this
testimony, however, that her professed belief that she qualified
during the LETC testing was based on nothing more than hearsay and
speculation.
Plaintiff testified:
A. I felt good about my ... shooting. But like I said,
the targets – here in Jackson you could always, in
between courses of fire, you could look at your target
and you could see where your rounds are going.
In Little Rock when you ... stop shooting, the
targets are (indiscernable) away from you. You can’t
see where your rounds are; you can’t make any
adjustments or anything. But I just felt good because I
knew that my sight alignment was good. I felt like
everything was on point.
Q. Basically your experience and training, including
your training that week, you believe that you scored
over 40 on that last round?
A. I do.
Q. And what do you base that on?
A. I base that in part upon the fact that – not just
the last round but the first round – I base it upon the
fact that they came out – the other two guys that came
with me, they immediately put their nonpassing scores up
there. Everyone else, they got either a pass or if you
don’t pass, they put the number of hits that you have on
your target. And I didn’t see them put it on the back
of the target. Maybe I was just tense and didn’t notice
it. But they put it on the front of your target in the
upper left-hand corner.
It took – it was probably four instructors out
there the first time, discussing my target. And the
other two that went with me kept saying, you qualified,
you qualified. I would – I turned my back. I didn’t
look at the target. So they came and said, well, there
was a question about whether you had three rounds
through the same hole or whether it was two hits. And
that’s what we’re doing. So ultimately they put the
number up there afer about ten, no less than ten
minutes, it was 39.
13
When questioned about the LETC testing in her later
deposition, plaintiff acknowledged that she did not personally
count the hits on the target, and yet she undertook to testify
affirmatively that she qualified on both her first and second
attempts at the LETC.
However, the reasoning by which she arrived
at her conclusion was unsound.
Plaintiff claimed that since there
was discussion among the instructors about how many hits she had,
then she qualified because, “where there’s discussion about a
dispute about a hit, it’s always supposed to go to the shooter.”9
Plaintiff’s reasoning does not support her professed
conclusion that she qualified, for while there may have been some
discussion among the instructors about how many hits plaintiff
had, plaintiff does not dispute that the instructors who examined
her targets ultimately agreed that she had only 39 hits in her
first and last attempts.
Raymond Brantis, one of the firearms
instructors who worked with plaintiff at the LETC, explained at
plaintiff’s MSPB hearing that it is standard LETC practice for
9
Plaintiff’s testimony in her deposition was as follows:
Q.
So you’re disputing the counting of the number of
hits on the target?
A. Yes.
Q. Okay. Did you count the hits on the target?
A. I was not allowed to.
Q. So how would you know how many hits you had on the
target?
A. Because in both instances there was a lot of discussion
about whether there was the additional hit on the target
and when there’s discussion about a dispute about a hit,
it’s always supposed to go to the shooter.
14
another instructor to independently score a target if the first
instructor counts less than forty holes inside the target and for
the instructors to then compare their results.
If there is any
disagreement about a student’s score when the instructors compare
their tallies, the student is given the benefit of the doubt on
the disputed shot.
He further testified that for each attempt, a
new cardboard backing is placed on the target which makes it
easier to accurately identify hits.
Thus, regardless of what
plaintiff may believe about the scoring process at LETC, it does
not follow from the mere fact that there was discussion among the
instructors about the scoring of her hits that she qualified with
her weapon.
In her recent affidavit prepared and submitted in response to
defendant’s motion, plaintiff states that she did qualify during
the LETC test, stating,
I know my shooting skills, observed where the bullets
were hitting, and recognized that I actually scored
higher than 39 on at least two of the rounds in Little
Rock. I was not permitted to check the targets as was
standard prior practice.
In the court’s opinion, to the extent plaintiff’s assertion that
she “observed where the bullets were hitting” and “recognized”
that she scored higher than 39 is meant to convey the impression
that she personally observed that each of at least 40 shots hit
within the prescribed target and that she thus knew of her own
personal knowledge that she had more than 39 hits, her affidavit
15
is clearly inconsistent with her prior testimony.
In the hearing,
she was able to state only that she “felt good” about her shooting
because she “knew that [her] sight alignment was good” and “felt
like everything was on point.”
She further testified at the
hearing that in Little Rock, “[y]ou can’t see where your rounds
are; you can’t make any adjustments or anything,” which is
inconsistent with the assertion in her affidavit that she was able
to “observe where the bullets were hitting.”
Plaintiff’s
explanation in her deposition that she was able to deduce that she
scored over 39 from the fact that there was discussion among the
instructors about scoring her hits is similarly at odds with her
recent assertion that she “observed where the bullets were
hitting” and “recognized” that she had more than 39 hits.10
Accordingly, her affidavit testimony is properly disregarded.
See
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.
1996) (“It is well settled that this court does not allow a party
10
The court notes, too, that in light of her prior
testimony, it is apparent that plaintiff’s assertion that she “was
not permitted to check the targets as was standard prior practice”
is accurate, in part, but also misleading. Plaintiff testified
that in Jackson, it was the standard practice that “if you don’t
qualify, you’re allowed to look at your target because that way
you can get an idea of what you’re doing wrong” and make
adjustments. In Little Rock, however, for safety reasons,
shooters were not permitted to go down the range to view their
targets between rounds and it was for this reason only that
plaintiff did not have an opportunity to examine her targets.
There is no evidence to show whether she would have been permitted
to do so had she asked because, according to her own testimony,
she never asked to see her targets.
16
to defeat a motion for summary judgment using an affidavit that
impeaches, without explanation, sworn testimony.”).
Plaintiff has
offered no competent summary judgment evidence to create a genuine
issue of material fact as to whether she did qualify with her
weapon in June 2012.
As further evidence that she is qualified for the position,
plaintiff points out that since her termination, she has been
tested by an independent instructor and qualified to shoot under
circumstances identical to those in which she was tested by the
VA.
However, the testing to which she refers was done in March
2014, nearly two years after her suspension and termination from
the VA.
This test is not relevant to the issue of whether
plaintiff was qualified at the time she was terminated in 2012.
Finally, plaintiff appears to take the position that she
should be deemed qualified for the position since the VA, which
controlled her ability to attempt to qualify with her weapon,
deprived her the full and fair opportunity to do so.
In this
regard, plaintiff argues that even if she failed to qualify during
the LETC firearms proficiency testing, she was not subject to
termination since VA policy required that an officer who fails to
qualify (even after remedial training) must be offered one further
opportunity for remedial training and a retest.
In other words,
she claims that termination is an appropriate penalty only when an
officer has twice failed to qualify.
17
She submits that since she
only failed the firearms test once, in June, then she was entitled
to retraining and a retest, which was denied her.
In addition,
she argues that under the master agreement applicable to union
members such as herself, upon the failure to qualify at the LETC,
she was entitled to be placed on a Performance Improvement Plan,
and yet this did not occur.
In its briefing on the motion, including in its rebuttal,
defendant does not address plaintiff’s contention that she was
entitled under VA policy to further training and a retest after
her failure to qualify during testing at the LETC, which was her
first and only failure to qualify.
Further, while defendant
argues in its rebuttal memorandum that the provision of the master
agreement setting forth the circumstances in which an employee
will be placed on a Performance Improvement Plan did not apply in
plaintiff’s circumstance, this argument fails to account for the
deposition testimony of VAMC Associate Director Tracy Skala,
in
which she indicated that plaintiff “would [have been] entitled to
a performance improvement plan in some form” following her failure
to qualify in June.
In view of these omissions by defendant, the
court at this point will assume for purposes of plaintiff’s prima
facie case that plaintiff could show that at the time of her
termination, she remained qualified for the position as she had
not twice failed to qualify with her weapon.
18
Defendant argues that even if plaintiff could establish an
issue of fact as to whether she was qualified for the position,
she cannot establish a prima facie case of gender discrimination
since she has failed to identify any similarly situated person
outside her protected class that was treated more favorably or
present competent evidence to show that she was replaced by
someone outside her protected class.
assertions.
Plaintiff disputes both
Having carefully considered the evidence on this
issue, the court concludes that plaintiff has failed to create a
genuine issue of material fact on this element of her prima facie
case.
To meet her burden on the fourth element of her prima facie
case, plaintiff must “compare [her] treatment to that of nearly
identical, similarly situated individuals ... [and] must show that
[defendant] gave preferential treatment to another employee under
‘nearly identical’ circumstances.”
Bryant v. Compass Grp. USA
Inc., 413 F.3d 471, 478 (5th Cir. 2005).
To that end, plaintiff
notes in her response to the motion that defendant has stated in
discovery responses that during the last three years, “at least 3,
but fewer than 7 employees” have failed to adequately complete
firearms proficiency testing and that no employee (other than
plaintiff) has been terminated for failing to adequately complete
firearms proficiency testing.
She notes that while the VA
objected to disclosing the identity of the individuals who failed
19
to qualify in firearms proficiency testing, she knows of four male
officers – Dwayne Buie, Gary Patrick, Howard McBound, Claude Wynn
– who failed firearms testing and yet were allowed to remain in
the VA’s employment.
Plaintiff testified at her MSPB hearing that Howard McBound
was unable to qualify in his first three attempts during firearms
testing on May 19, 2012, and thus failed to qualify; and although
he ultimately did pass, he was able to do so only after being
given additional attempts to qualify.
However, plaintiff has
admitted that she was not present during McBound’s firearms
testing and that she based her testimony solely on subsequent
statements by McBound to the effect that “if it had not been for
Conrad [Hamp, instructor], he would not have passed.”
It is thus
clear, as defendant aptly points out, that her testimony is based
not on personal knowledge but rather on hearsay and accordingly is
not competent summary judgment evidence.
See Winding v. Lard,
Civ. Action No. 3:13cv142–DPJ–FKB, 2013 WL 6730097 (S.D. Miss.
Nov. 21, 2013) (hearsay not competent summary judgment evidence).
Plaintiff’s testimony regarding Gary Patrick is not
altogether clear.
In her March 2013 MSPB hearing, she testified
that Patrick, like McBound, was given additional rounds in order
to qualify with his weapon on May 19, 2012.
As with McBound, she
admitted she was not present during Patrick’s alleged
qualification testing and based her testimony on Patrick’s
20
statement that he would not have passed without Conrad’s help.
Plaintiff’s testimony regarding Patrick’s alleged May 2012 testing
is inadmissible for the same reason plaintiff’s testimony
regarding McBound’s May 2012 testing is inadmissible.
However, in
her November 2014 deposition, plaintiff testified that during
testing prior to 2010, Patrick initially failed his firearms
qualification test but his failure was recorded as a pass and he
was then allowed to receive remediation and be retested.
Plaintiff did not contend that Patrick failed the testing after
remediation.
For this reason, as well as the fact that this
alleged failure occurred at least two years prior to plaintiff’s
and was under different supervisors and a different director, the
court concludes that plaintiff has failed to show that she and
Patrick were similarly situated.11
See Arceneaux v. Metro. Life
Ins. Co., 481 Fed. App’x 196, 198-99 (5th Cir. July 18, 2012)
(holding that circumstances were not nearly identical when there
was a span of several years between the events and a change in
supervisors occurred during that time).
11
Plaintiff testified that Patrick’s pre-2010 testing
occurred under former Jackson VAMC Police Chief Lumpkin and/or
former firearms instructor Bennett. Defendant has claimed in its
motion, and has presented supporting evidence which shows that the
Jackson VAMC Police Department under the leadership of Chief
Lumpkin and instructor Bennett came under intense scrutiny in
early 2012 for discrepancies in the training records and firearms
qualifications records and both of those individuals were relieved
of their duties prior to plaintiff’s qualification attempts in May
2012.
21
Plaintiff also testified in her deposition that someone named
Dwayne Buie failed a firearms qualification test sometime in the
three years prior to her termination, but she has offered no
evidence as to the circumstances under which this alleged failure
occurred and thus has failed to show that Buie is a proper
comparator.
Plaintiff last claims that Claude Winn failed a firearms test
and was allowed to remain in the VA’s employment.
However, she
has offered no further information about the circumstances of
Winn’s alleged testing or his alleged failure to qualify.
On the
other hand, defendant has presented an affidavit from Center
Director Battle in which he states after Wynn failed a firearms
qualification test in October 2014 but before a proposed notice of
removal was issued on account of that failure, Winn submitted a
request for reasonable accommodation.
That request was granted by
the VA’s Reasonable Accommodation Committee and Winn was moved to
another department.
While Winn was not terminated, plaintiff has
not shown that his circumstances were “nearly identical” to hers.12
From the foregoing, the court concludes that plaintiff has
failed to identify any similarly situated male employee who was
12
The only other male plaintiff has identified as having
failed his firearms proficiency testing is Gerald Maples, who
failed in Little Rock at the same time as plaintiff. Like
plaintiff, Maples was issued a notice of proposed termination, but
he elected to resign rather than be terminated.
22
treated more favorably than she.
The court also concludes that
she has failed to present evidence sufficient to create an issue
as to whether she was replaced by someone outside the protected
class.
On that issue, plaintiff notes that VAMC Director Battle
testified at the MSPB hearing that a male officer was hired in or
before March 2013.
However, this individual was recommended for
termination in March 2013 on account of his failure to pass his
initial firearm proficiency testing in Little Rock.
Plaintiff
disputes that this individual was in fact terminated, and she
contends that he must have been hired to replace her.
Neither
side has provided the name of this individual or presented
competent evidence as to the outcome of the recommendation for his
termination.
That is, there is nothing in the record to indicate
whether or not he was, in fact, terminated following his failure
to qualify with his weapon in March 2013.13
13
As defendant points
During her deposition in November 2014, plaintiff stated
that in light of Battle’s hearing testimony that a recently-hired
officer had failed his weapons qualification and been recommended
for termination, she “inquired [and] found out” that this
individual’s name was Wynn or Winn. She then asked a former
police officer she knew (someone named Donald Hubbard) if he knew
“a guy named Wynn that went to the academy and failed their
firearms portion of the academy, and they said yes, that person
was at the vet center,” an advocacy agency for veterans that is
operated by the VAMC. On this basis, plaintiff testified she knew
that this Wynn/Winn individual “wasn’t terminated for failing his
firearms as Mr. Battle indicated.” However, plaintiff’s evidence
that the individual hired in 2013 was named Wynn/Winn is patently
hearsay, as is her testimony as to the outcome of the
recommendation for the unidentified officer’s termination. Battle
testified in his deposition that he could not recall what had come
23
out, however, as a result of the termination of plaintiff, the
resignation of Maples and the reassignment of Hudson to another
department, the VAMC police force was down three officers; and
plaintiff has offered no evidence to show that the unidentified
male officer hired in March 2013 was hired to fill the position
vacated as a result of her termination.
Accordingly, she has
failed to present sufficient evidence as to the fourth element of
her prima facie case.
As a result, defendant is entitled to
summary judgment on plaintiff’s gender discrimination claim.
Even if the court were to conclude that plaintiff could
establish a prima facie case of gender discrimination, summary
judgment would still be in order on this claim since plaintiff
cannot demonstrate that defendant’s proffered legitimate,
nondiscriminatory reason for her termination, is pretext for
discrimination.
Once a defendant offers a legitimate,
nondiscriminatory reason for its challenged employment decision,
the plaintiff must show that the reason is pretext for
discrimination.
A plaintiff may show pretext “either through
evidence of disparate treatment or by showing that the employer's
proffered explanation is false or ‘unworthy of credence.’”
Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct.
of the recommendation for this officer’s termination.
24
2097, 147 L. Ed. 2d 105 (2000)).
Plaintiff argues that
defendant’s articulated reason is unworthy of credence as “it is
not believable to think that where males have failed to pass the
firearms test and retain their jobs, that this female was actually
being fired for a firearms condition.”
However, as discussed
supra, plaintiff has offered no evidence of any male officer who
failed weapons qualification and was not terminated, nor has she
offered proof that any male officer was given additional
opportunities to qualify that were not extended to her.
Accordingly, based on all of the foregoing, plaintiff’s claim
for gender discrimination will be granted.
Retaliation
Title VII forbids an employer from discriminating against an
employee “because he has opposed any practice made an unlawful
employment 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.”
U.S.C. § 2000e–3(a)).
42
To prove a retaliation claim, the plaintiff
must make a prima facie case that: “(1) she participated in a
protected activity, (2) her employer took an adverse employment
action against her, and (3) there is a causal connection between
the protected activity and the adverse employment action.”
Roberts v. Lubrizol Corp., 582 Fed. App’x 455, 460 (5th Cir. 2014)
(citing McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th
25
Cir. 2007)).
As with her discrimination claim, if plaintiff
presents a prima facie case, the burden shifts to the defendant to
produce evidence of a legitimate, non-retaliatory reason for the
action.
Id.
If it does so, the burden then shifts back to
plaintiff to prove that the employer's justification is a mere
pretext for retaliation and that she would not have been
terminated “but for” having engaged in protected activity.
Id.
(citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133
S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013)).
A plaintiff may
demonstrate pretext by showing disparate treatment or “by showing
that the employer's explanation is false or unworthy of credence.”
Laxton, 333 F.3d at 578.
Defendant acknowledges that plaintiff engaged in protected
activity in that she filed a charge of discrimination with the
EEOC in August 2010.
It also acknowledges that plaintiff suffered
an adverse employment action, as she was terminated in November
2012.
It contends, though, that plaintiff cannot establish a
causal connection between her EEOC charge and her later
termination.
At the prima facie stage, the showing of causation
is ”much less stringent than a ‘but for’ standard.”
Flanner v.
Chase Inv. Services Corp., No. 13–31132, 2015 WL 408602, at *5 (5th
Cir. Feb. 2, 2015).
Plaintiff submits that proof of causation (as well as of
pretext) exists in the fact that defendant offered to allow her to
26
attempt to qualify with her weapon and return to duty if she would
agree to waive her EEOC claim (as well as any other pending or
future claims).
Specifically, she states that after she returned
from Little Rock, she was told by VAMC Director Battle that she
would be allowed to take the second test to which she was entitled
under applicable VA regulations, but only if she would agree to
waive her EEOC claims.
Defendant responds that plaintiff’s proof
in this regard is inadmissible “as it was all due to settlement
negotiations that occurred between the VAMC and Plaintiff’s
representative.”
See Fed. R. Evid. 408 (precluding admission of
evidence, conduct, or statements made during settlement
negotiations to prove claim).
For her part, plaintiff denies that
the offer was part of any settlement discussions and asserts that
defendant’s purported offer was made in response to her request
that she be afforded the rights and opportunities to which she was
already entitled.
Plaintiff does assert, and has presented evidence which, in
the absence of explanatory evidence from defendant, arguably could
be interpreted as supporting her position that following her
initial failure to qualify at the LETC, she was entitled under
applicable VA policies to additional training and/or a performance
improvement plan, and to be retested.
Further, she has presented
evidence that supports her assertion that defendant refused to
afford plaintiff a further opportunity to qualify – an opportunity
27
to which she claims she was entitled – unless she would drop her
EEOC claim.
While defendant characterizes its “offer” to “allow”
her to retest on the condition that she waive any and all pending,
existing or future claims as part of settlement discussions, it
has offered no evidence to support this position.
It merely cites
a few lines of deposition testimony from VAMC Director Battle’s
affidavit in which he confirmed that such an “offer” was made.
No
evidence is presented as to the timing or context or the full
content of these alleged discussions.
Under the circumstances,
the court is not warranted in merely accepting defendant’s
characterization of the “offer” as a settlement offer.
However,
neither is the court able to conclude from the evidence of record
at this point that the “condition” that was placed in plaintiff’s
retesting was not made in the context of and as part of settlement
discussions.
If the court were to assume for the sake of argument that the
evidence is admissible, the court would conclude that plaintiff
has presented sufficient evidence of causation to satisfy both her
burden at the prima facie stage and her burden to show pretext.
However, without this evidence, her retaliation claim would fail
for, in the court’s opinion, there is no other evidence that would
tend to show causation, or to show pretext.
In this regard, the
evidence shows that plaintiff filed her EEOC charge more than two
years prior to her termination.
Although the charge remained
28
pending during most of that time, as defendant notes, it would
seem to defy reason to find that the VA would wait two years after
plaintiff filed her EEOC complaint to retaliate against her for
doing so.
Moreover, the proposal for plaintiff’s termination came
from Police Chief Motley, who was first detailed to the Jackson VA
in late June 2012 and was unaware of plaintiff’s pending EEO
complaint; all Motley knew was that plaintiff had failed to
qualify with her service weapon.
While VAMC Director Battle, the
ultimate deciding official, was aware of the 2010 EEO claim when
he made the decision to terminate plaintiff, plaintiff’s EEOC
charge did not involve Battle and it related to actions that
occurred years before he became director in April 2012.
In an apparent effort to demonstrate causation and pretext,
plaintiff asserts that after she filed her EEOC complaint,
defendant commenced a campaign to retaliate against her by
contriving reasons – none of them genuine – to terminate her
employment, culminating, ultimately, in the decision to discharge
her for failing to qualify when in fact, she had not twice failed
to qualify, as required for termination under VA regulations.
She
claims, for example, that defendant attempted to remove her by
subverting her psychological exam in March 201214; by accusing her
14
Plaintiff claims that prior to her psychological
interview to determine whether she was qualified to return to duty
as a police officer, Sergeant Charlie Donelson falsely informed
the psychologist who performed the interview - a Dr. Williams 29
of cheating during the written portion of the May 2012 firearms
test15; and by trying to begin disciplinary action against her when
she requested reasonable rest before being sent to the LETC in
June 2012 for firearms testing.16
As there is no competent proof
linking any of these these alleged incidents to Director Battle,
the evidence cannot reasonably be found to demonstrate causation;
nor does it suggest pretext.
that another supervisor, Lisa Bruce, had been critical of
plaintiff. The only evidence plaintiff has offered to support
this assertion is inadmissible hearsay. Moreover, there is
nothing to indicate that Donelson had any involvement in the
termination decision by Battle, or conversely, that Battle was
influenced at all by the controversy surrounding plaintiff’s
initial psychological evaluation. Finally, the evidence
establishes that at plaintiff’s request, the VA disregarded the
partial evaluation submitted by Dr. Williams and permitted
plaintiff’s psychological evaluation to be conducted by an
independent psychologist, who found her to be fit for duty.
15
Plaintiff asserts that on May 17, 2012, during the
written portion of her firearms test, a visiting police chief
observing the test taking, made a comment which indicated he
believed plaintiff was cheating when, in fact, she was not. There
is nothing to show that the individual who made the alleged
comment had any knowledge of plaintiff’s EEOC activity or any
involvement in her termination.
16
Plaintiff claims that after she requested to Sergeant
Donelson that her schedule be changed so that she would have
sufficient rest before travel to Little Rock for firearms testing,
Officer Donelson reported to his superiors that plaintiff had used
profanity when he denied the request and he recommended that
disciplinary action in the form of a written notation of
counseling be placed in her personnel file. However, no action
was taken on his recommendation. Plaintiff denies she used
profanity and claims that Donelson’s report was false.
30
The Fifth Circuit has acknowledged that course of employer
conduct can be relevant on the issue of pretext, explaining that
“the combination of suspicious timing with other significant
evidence of pretext,” such as “proof of a sharp decline in
treatment immediately after the protected conduct occurred”, can
warrant denial of a summary judgment motion.
Khalfani v. Balfour
Beatty Communities, L.L.C., --- Fed. App’x ---, 2014 WL 7229499,
at *1-2 (5th Cir. Dec. 28, 2014) (internal quotation marks and
citation omitted).
Here, however, these various incidents cited
by plaintiff as suggestive of pretext occurred nearly two years
after she filed her charge.
As was the case in Khalfani, there is
no evidence here of “clear temporal proximity between the
complaints and the [alleged] negative [treatment], making it
difficult to find the sharp decline in treatment [the Fifth
Circuit has] previously used to infer causality, and with it,
pretext.”
Id. at *2.17
In light of all of the foregoing, and particularly in view of
the court’s inability to determine on the basis of the present
record the admissibility of plaintiff’s evidence regarding
defendant’s conditioning her ability to retest on dropping her
EEOC claim, the court finds that it cannot grant summary judgment
17
The court notes that plaintiff has not purported to
present evidence of disparate treatment in connection with her
retaliation claim.
31
to defendant on plaintiff’s retaliation claim at this time.
The
court will therefore reserve ruling on the motion as to the
retaliation claim and allow defendant an opportunity to supplement
its motion to address plaintiff’s assertions regarding her
entitlement to further training and retesting and to attempt to
support, with proper proof, its objection to the admissibility of
evidence which it contends constituted part of settlement
discussions.
In conclusion, therefore, it is ordered that defendant’s
motion for summary judgment is granted as to plaintiff’s claims of
race, age and gender discrimination.
The court reserves ruling on
defendant’s motion for summary judgment on the retaliation claim,
and orders that defendant, should it choose to supplement its
motion to address the specific matters identified by the court
herein, shall have fourteen days from this date in which to do so.
Should defendant choose to supplement its motion, plaintiff shall
have fourteen days in which to respond.
SO ORDERED this 19th day of February, 2015.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?