Buckhanan v. Shulkin et al

Filing 97

ORDER denying 90 Motion to Compel; denying 91 Motion to Strike; granting defendant's motion for summary judgment on plaintiff's claim for retaliation. A separate judgment will be entered as set out herein. Signed by District Judge Tom S. Lee on 6/25/15 (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

ORDER
In its February 19, 2015 opinion, the court reserved ruling
on the motion of Eric K. Shinseki, Secretary of the United States
Department of Veterans Affairs, for summary judgment as to
plaintiff Alice Buckhanan’s claim for retaliation under Title VII.
At that time, the court offered defendant an opportunity to
respond for the purpose of addressing (1) plaintiff’s assertion
that she was entitled to further firearms training and to be
retested following her initial failure to qualify with her
firearm, and (2) the admissibility of evidence regarding Jackson
VA Medical Center (VAMC) Director Joe Battle’s alleged refusal to
allow plaintiff to retest with her service weapon unless she
dismissed her pending EEOC claim.

Both parties have now filed

their responses to the court’s opinion, and in addition, plaintiff
has filed a number of related motions/objections, including (1) an

objection to defendant’s Exhibit 88-4, an August 22, 2012 email
from the VA’s legal representative, Johnson Walker; (2) a motion
to compel certain emails between Walker and Battle; and (3) a
motion to strike defendant’s answer for alleged discovery
violations.

The court herein addresses each of these filings and

resolves the remaining issue related to defendant’s motion for
summary judgment.
Plaintiff’s Motion to Strike Answer or for Other Sanctions
Contending that defendant failed to disclose and produce
relevant documents that plaintiff requested in discovery,
plaintiff has moved the court to strike defendant’s answer and to
enter a default against it, or alternatively, to vacate the
court’s prior order granting summary judgment for defendant on her
gender discrimination claim.

In support of her request for this

relief, plaintiff complains of defendant’s failure to disclose the
VA’s Model Standard Operating Procedures which defendant states in
its supplemental submission to the court were adopted by the
Jackson VAMC Police Department and also complains of defendant’s
failure to disclose and produce an August 22, 2012 email from VA
attorney Johnson Walker to plaintiff and her legal representative,
Vaughan Simms, despite requests for production that should have
elicited these materials.

She also argues, more generally, that

in hindsight, it is evident that some of defendant’s other
discovery responses were less than candid; and she suggests that
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this alleged lack of candor has prejudiced her.

She cites, in

particular, defendant’s discovery responses (or lack thereof)
regarding employee disciplinary and termination records.

Finally,

she contends that she has come across new proof which shows that
defendant may have misled the court regarding Claude Winn, one of
the individuals that plaintiff argued during summary judgment
briefing on her gender discrimination claim was a comparator but
who the court found was not a proper comparator.

To the point,

plaintiff claims that she recently learned (in May 2015) that
Claude Winn, contrary to defendant’s earlier representation to her
and to the court, remains employed as an officer with the Jackson
VAMC Police Department.
Federal Rule of Civil Procedure 37 provides for various forms
of sanctions against a party for misconduct related to discovery.
However, the Fifth Circuit has held that “usually, ... a finding
of bad faith or willful misconduct [is required] to support the
severest remedies under Rule 37(b)— striking pleadings or
dismissal of a case.”

Pressey v. Patterson, 898 F.2d 1018, 1021

(5th Cir. 1990); see also Smith & Fuller, P.A. v. Cooper Tire &
Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012) (holding that for
severe sanctions, such as “striking pleadings or dismissal of a
case,” “a finding of bad faith or willful misconduct [is
required].”) (citing Pressey, 898 F.2d at 1021).

In the case at

bar, it is apparent that the relief requested by plaintiff is not
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warranted, nor for that matter, is any lesser form of sanctions.
In its response to this motion, defendant takes the position
– and in the court’s opinion, correctly so – that the failure to
disclose the Model Standard Operating Procedures was not a
discovery violation, as the Model Standard Operating Procedures
became relevant only to the preliminary issue of the admissibility
of plaintiff’s Exhibit J.

See infra at 7.

Defendant acknowledges that it did not produce the August 22,
2012 Walker email and that such email would have been responsive
to plaintiff’s discovery request; but it asserts that its failure
to produce this document was entirely inadvertent and certainly
not a proper basis for sanctions, particularly since plaintiff and
her legal representative were the recipients of the email and
hence were or should have been aware both of its existence and of
the fact that it had not been produced by defendant in discovery.
The court agrees.
Defendant points out that plaintiff’s objection regarding its
failure to produce employee disciplinary records cannot be a
discovery violation since defendant objected to plaintiff’s
request for such records, and the court ruled that the objection
was valid.

Regarding termination records, plaintiff argues that

the fact that defendant’s response to a certain request for
admission regarding other officers who failed the firearms test
but were not terminated (in which response defendant stated there
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were two such officers) was inconsistent with what defendant
claimed in its summary judgment motion, i.e., that at least three
but fewer than seven officers failed the firearms test.

Defendant

takes the position that any inaccuracy in its response to the
request for admission does not warrant sanctions.

In the court’s

opinion, while defendant’s discovery response may have been
inaccurate, plaintiff was not prejudiced as a result.

She learned

through other discovery the identity of every other officer that
defendant claimed in its summary judgment motion had failed the
firearms test and yet not been terminated.

Moreover, the fact

that defendant’s answer to this request for admission was
inaccurate does not suggest that defendant’s discovery responses
were generally marked by a “lack of candor”, as plaintiff
contends.
Lastly, defendant explains that the evidence it presented to
the court relating to Claude Winn at the time of its summary
judgment motion was true and accurate:

Claude Winn did fail to

qualify with his weapon but, unlike plaintiff, was not terminated
only because he requested and was granted a reasonable
accommodation, claiming he could no longer perform his duties as a
police officer due to a medical condition.

Defendant states, and

has presented supporting evidence, that since the time of the
summary judgment motion, Winn was released by his medical provider
to return to the police department.
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It thus appears that

defendant did not mislead the court and, in the court’s opinion,
this recent change in Winn’s circumstances does not change the
fact that Winn was (and is) not a proper comparator.
Supplemental Submissions on Plaintiff’s Retaliation Claim
As the court explained in its earlier opinion, plaintiff was
terminated from her employment as a VA police officer for the
ostensible reason that she had failed to qualify with her service
weapon and thus failed to satisfy an indisputable condition of her
continued employment.

Plaintiff claimed that under applicable VA

policy, she was entitled to additional training and to be retested
with her weapon and yet defendant refused to allow her to be
retested unless she would agree to dismiss a pending EEOC claim
she had filed two years earlier.

Defendant contended the offer to

allow plaintiff to retest on the condition that she waive any and
all pending, existing or future claims, was part of settlement
discussions and as such, evidence of that offer was inadmissible
under Federal Rule of Civil Procedure 408.

The court indicated in

its opinion that the potential viability of plaintiff’s claim for
retaliation depended on competent, admissible proof both that she
was entitled under applicable VA policy to retest with her weapon
and that the VA denied her request to be retested unless she
dismissed her then-pending EEOC claim.
Plaintiff’s evidence that she had a right to further training
and to then retest following her initial failure to qualify is
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based primarily on a single document, which plaintiff offered as
Exhibit J to her response to defendant’s summary judgment motion.
The document consists of one page.

At the top appears the

heading, “Firearm Program Requirements”, and the document states,
inter alia, as follows:
Standard Operation Procedures (SOP) for the Sonny
Montgomery Veteran Affairs, Station 586, Jackson, MS 39216
5.11. Remedial Firearms Training: This is in-depth
training to emphasize shooting fundamentals. Remedial
training sessions are kept small or individualized to
focus on specific problems and afford the SHOOTER
shooter an opportunity to improve.
...
5.11.3. Shooters are permitted one re-fire during the
remedial training session(s), with training ammunition.
If they fail, the shooter will be scheduled for a second
and final remedial class.
Defendant not only objects that this document has not been
authenticated by plaintiff and thus may not be considered by the
court, see Frazier v. Cinemark USA Inc., 348 Fed. App’x 6, 8 (5th
Cir. 2009) (holding that evidence which was not properly
authenticated did not constitute competent summary judgment
evidence), but it has also presented evidence which it contends
affirmatively establishes that this document was not part of VA
policy in 2012.

Specifically, defendant has presented an

affidavit from Captain Charlie Donelson, supervisor/sergeant with
the VA Police Department since 2008 and Operations Captain since
2014, in which he states, inter alia, that he does not recognize
the document and does not know where it came from but he does know

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that it was not part of the VAMC’s Standard Operating Procedures
that were in effect in 2012.

Donelson goes on to explain that the

Department of Veterans Affairs has Model Standard Operating
Procedures which the Jackson VAMC has adopted and followed since
its implementation in 2005.

According to Donelson’s declaration,

there is nothing in the Model Standard Operating Procedures that
deals with firearms remediation.

Finally, Donelson states that at

all relevant times, the Jackson VAMC Police Department has
followed the Law Enforcement Training Center’s guideline regarding
firearms remediation, which provides for remediation between the
second and third attempt of any qualification effort.
To defendant’s objection to the admissibility of Exhibit J,
plaintiff first responds that “this local policy was provided to
[her] in discovery from the VA, under their Bates Stamp Number
Buchanan-VA-000283.”

However, as the VA explains in its reply,

the document was produced in discovery only as part of the
administrative record compiled during plaintiff’s hearing before
the Merit Systems Protection Board (MSPB); and it was in the MSPB
record because plaintiff produced it in support of her MSPB
appeal.

Thus, in the context of the litigation between the

parties, it appears that plaintiff is the one who first produced
the document.

As for where the document came from in the first

place, plaintiff states in her declaration that the document was
provided to her and all officers at the Jackson VAMC “prior to the
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incidents alleged within this cause and was represented to me by
then Lt. Henry Bennett, the training instructor, that this was
part of the local standard operating procedures.”1

And she states

that “all local SOP’s, including Exhibit ‘J’, were maintained in a
black three-ring binder in the Jackson VA Police Department
Operations Room, so that they could be inspected by all officers.”
However, even assuming this is true, plaintiff still has not
established that her Exhibit J represented Jackson VAMC Police
Department policy at the time she failed to qualify in 2012.
Accordingly, she has not come forward with competent summary
judgment evidence to support her claim that she was entitled under
applicable VA policy to receive additional training and to be
retested after she failed to qualify with her service weapon
during testing at the Law Enforcement Training Center in June
2012.2

For this reason, the court concludes that her retaliation

claim fails as a matter of law.

1

It is noted that Bennett was terminated prior to
plaintiff’s 2012 qualification attempts due to discrepancies in
training and qualifications/certification records. Moreover,
defendant has indicated that particularly due to the
irregularities in the training program under Bennett and former
Jackson VAMC Police Chief Lumpkin (who was also terminated), it is
unclear what the practices were under their administration and
instruction.
2

The court acknowledges plaintiff’s argument that
Donelson’s declaration is unreliable. The court need not address
her argument in this regard, however, since plaintiff has no
evidence to show that Exhibit J was VAMC policy during the
relevant time period.
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The court would further note, though, that after considering
all the parties’ submissions and arguments on the issue, it is
persuaded that the VA’s alleged offer to allow plaintiff to retest
was in the nature of a settlement offer.

As is now clear from the

materials submitted by the parties, it is undisputed that there
were settlement discussions between the parties, which included
the VA’s offering plaintiff the opportunity to retest with her
weapon on condition that she waive any and all claims, including
her pending EEOC claim.
and was terminated.

Ultimately, plaintiff rejected this offer

It appears from the affidavits of both

plaintiff and Battle that these settlement discussions were
proposed and/or began during the informal meeting/hearing with
Battle on August 16, 2012 in which plaintiff was given the
opportunity to respond to her supervisor’s recommendation that her
employment be terminated.

Battle states that during the meeting

on August 16, 2012, which was attended by plaintiff and her legal
representative, the possibility of settlement was discussed.

He

told plaintiff’s legal representative, Vaughn Simms, that if they
wanted to talk settlement, they would need to contact agency
counsel Johnson Walker.

Battle indicates that although he did not

participate in the discussions which followed that meeting, he did
“express[] [during the meeting] the idea that the Agency was
willing to discuss a resolution.”

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The evidence shows that several days later, on August 22,
2012, VA counsel Walker communicated with plaintiff and her
attorney via email asking that Simms contact him “regarding a
possible resolution to a matter involving Ms. Buckhanan.”3
According to Walker’s declaration, during the discussions which
ensued over the next few days, he expressed to plaintiff and her
representative that any settlement was to be a global settlement
that would resolve all outstanding or potentially outstanding
cases.

Walker states that the primary terms of the settlement

offer included allowing plaintiff to retest with her firearm in
exchange for a waiver of all pending or future claims and
plaintiff’s agreement to resign if she did not pass the agreed-

3

Johnson Walker, Counsel for the VA, has presented a
declaration in which he explains that he obtained authority to
conduct these negotiations shortly after the August 16, 2012
hearing/meeting between plaintiff and her counsel and Battle,
following which he promptly contacted plaintiff and her counsel
via email to discuss a potential settlement. Plaintiff has
objected to the court’s consideration of this Walker email, dated
August 22, 2012, on the bases that (1) it is hearsay; (2) it lacks
authentication; (3) it is not relevant; (4) the date of the email
contradicts Walker’s prior declaration in which he stated he was
given authority to negotiate on or about August 23, 2012; (5)
plaintiff was not a party to the email, as it was sent to her work
email address at a time when she was already separated from
service; and (6) the document was not properly disclosed in
discovery. Defendant has responded to plaintiff’s objection and
addressed fully and to the court’s satisfaction each basis for her
objection. The email may properly be considered by the court.
The court notes that plaintiff has also moved to compel
production of certain emails between Walker and the VA. However,
while plaintiff insists otherwise, it is clear these emails are
covered by the attorney/client privilege. Her motion to compel
will be denied.
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upon retest.

He says that although Simms informed him during a

phone conversation on August 24, 2012 that he thought plaintiff
was agreeable, Simms called back the following Monday, August 27,
2012, to say that plaintiff would not accept the proposed
settlement.4
In her declaration in support of her response to the court’s
opinion, plaintiff acknowledges that Battle expressed to her and
her representative at the hearing/meeting on August 16, 2012 that
the VA was “willing to discuss a resolution”; and although she
states that Battle’s proposed “resolution” included the condition
that she waive her EEOC claim, she states that she did not
consider this to be an offer of settlement.

In the court’s view,

however, irrespective of how she may have interpreted it, and even
if the proposal did initially come from Battle, the discussion
appears to have been directed toward a compromise resolution of
plaintiff’s request to be retested.

Accordingly, evidence that

the VA offered to allow plaintiff to be retested on condition that
she waive any and all claims, is inadmissible under Rule 408.
And, as the court explained in its previous opinion, without this
evidence, plaintiff’s retaliation claim fails as a matter of law.
Therefore, defendant’s motion for summary judgment on plaintiff’s
retaliation claim will be granted.
4

Plaintiff has submitted a declaration in which she
denies that the settlement discussions with Walker occurred in
August 2012 and claims that they occurred in October 2012.
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Based on the foregoing, it is ordered that plaintiff’s motion
to compel is denied; her motion to strike defendant’s answer or in
the alternative for relief under Rule 60 is denied; and
defendant’s motion for summary judgment on plaintiff’s claim for
retaliation is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 25th day of June, 2015.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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