Brown v. Shulkin et al

Filing 112

///ORDER granting 83 Motion for Summary Judgment. Accordingly, I grant the defendant's motion for summary judgment (Doc. No. 83) on all claims. The clerk of court is directed to enter judgment and close the case. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Deana Brown
v.
Denis McDonough, Secretary,
U.S. Department of Veterans Affairs

Case No. 18-cv-54-PB
Opinion No. 2021 DNH 109

MEMORANDUM AND ORDER
Pro se plaintiff Deana Brown has sued her former employer,
the Secretary of the United States Department of Veterans
Affairs (the “VA”), for wrongful termination under Title VII of
the Civil Rights Act of 1964.

Brown claims that she was

discharged from her position as a registered nurse and not hired
for three other positions within the VA on account of her race
and in retaliation for her complaints about harassment.

The

defendant has filed a motion for summary judgment, to which
Brown has objected.

The defendant’s principal argument is that

Brown has failed to produce evidence from which a factfinder
could conclude that the stated reason for her termination – a
peer review board’s finding that Brown had repeatedly engaged in
improper conduct – was a pretext for either discrimination or
retaliation.

For the following reasons, I grant the defendant’s

motion for summary judgment on all claims.

I.

BACKGROUND1

Brown, an African American woman, was hired in May 2014 to
fill a permanent position as a registered nurse at the VA
Medical Center in Manchester, New Hampshire (“Manchester VA”).
Her appointment was subject to a two-year probationary period.
She was terminated in November 2014, less than seven months into
her employment, based on a peer review board’s finding that she
had engaged in a series of violations of workplace rules and
policies.
A.

Probationary Period Review Process
Permanent appointments of registered nurses in the VA

system are made under 38 U.S.C. § 7401(1).

The appointments are

subject to a two-year probationary period set forth in 38 U.S.C.
§ 7403(b)(1).

During that two-year period, a Nurse Professional

Standards Board (“NPSB” or “Board”), which consists of three or
five voting members who are registered nurses, periodically
reviews a probationary nurse’s work records.

If the Board

determines that a probationary nurse is not “fully qualified and
satisfactory,” the nurse is terminated.

38 U.S.C. § 7403(b)(4);

see Doc. No. 110-2.

I summarize only those facts that are relevant to my resolution
of the defendant’s motion. Consistent with the summary judgment
standard, the facts are presented in the light most favorable to
Brown as the non-moving party. See Theriault v. Genesis
HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018).
1

2

In addition to periodic reviews, a nurse on probationary
status may be subject to “a summary review” by the Board in
situations where swift separation from service may be justified.
A supervisor may initiate a request for summary review at any
time during the probationary period.

The Board’s purpose in

conducting a summary review is to obtain the facts and determine
whether the probationary employee should be retained or
separated.

In addition to reviewing records submitted by the

supervisor and any countervailing evidence submitted by the
employee, the Board may call persons to answer questions that
may assist its fact-finding.

Upon completion of its summary

review, the Board issues findings and recommends the employee’s
retention or separation.

The Board’s findings and

recommendation are forwarded to the director of the employing
facility, who may approve, disapprove, or modify the Board’s
recommendation.

See Doc. No. 110-2.

In October 2014, approximately six months into Brown’s
employment at the Manchester VA, Brown’s direct supervisor,
Donna Primera, requested that a summary review Board be convened
to determine whether Brown should be terminated.

Primera’s

request listed multiple instances of improper conduct that had
caused her to lose confidence in Brown as an employee.

The

events that led to this summary review, detailed below, started
shortly after Brown’s employment began.
3

B.

The June Incident
On June 25, 2014, Brown and Lee Bowley, a health technician

at the Manchester VA, had a verbal altercation within earshot of
other staff and patients.

It began after a supervisor who could

not locate Brown asked Bowley to find her so that Brown could
assist with a task.

Another colleague told Bowley that earlier

that day Brown had “announced . . . that she is not to be
notified about patients . . . [and] that she is in training and
does not ‘work’ [in that particular department] so there is no
reason for anyone to try and contact her.”

Doc. No. 83-8 at 1.

When Bowley found Brown a short time later, a heated exchange
ensued.

According to Brown, Bowley ordered her to give an

injection to a patient in an inappropriate setting.

When Brown

refused, Bowley began yelling and demanding that Brown follow
her instruction.

Brown responded by walking out of the office

where the two of them were standing and into a hallway where
they could be overheard by patients and other staff.

Bowley

then escalated the situation, pointing her finger at Brown and
demanding that Brown return to the office so that they could
have a “[p]ow wow” and “duke it out” behind closed doors.
No. 83-11 at 3.
physical assault.

Doc.

Brown perceived those comments as a threat of
Brown admits that her own voice became

“elevated” at some point.

Doc. No. 66-14 at 57.

The exchange

ended when а physician, who described Brown and Bowley as
4

“screaming at each other” and using “angry voices,” told them to
take their argument elsewhere.

Doc. No. 83-7; Doc. No. 110-4 at

8.
Brown immediately reported the incident to her supervisors,
complaining that Bowley had verbally and physically threatened
her.

Brown also filed a report with the Manchester VA police,

reporting Bowley for threatening and harassing her.

After the

police investigated the matter, Brown was advised that the
matter was not criminal and that she should contact the Equal
Employment Opportunity (“EEO”) office.

Brown promptly contacted

the EEO manager at the Manchester VA in early July, who directed
her to the facility’s Threat Committee.
With the assistance of a union representative, Brown
subsequently filed multiple grievances between July and
September, both with Primera and Tammy Krueger, the Manchester
VA’s Director.

Brown complained about a hostile work

environment stemming from the June incident and a subsequent
run-in when Bowley had briefly entered an office where Brown was
training.

Brown also complained to Director Krueger in

September about the management’s inaction in responding to her
grievances, accusing Primera of failing to provide her with safe
working conditions.

Brown’s principal demand was that Bowley

not be allowed within 100 feet of her, which Director Krueger
declined to accommodate.

Instead, Brown was told that she would
5

not be assigned to work with Bowley, but that patient care
issues may require them to interact at times.
In response to Brown’s grievances, Director Krueger asked
Primera to conduct an inquiry into the June incident.

Primera

presented her fact-findings in September, concluding that both
Bowley and Brown should face disciplinary action for
unprofessional conduct during that episode.

According to

Primera, Brown and Bowley had given conflicting versions of the
encounter, with each accusing the other of inappropriate
behavior and describing her own behavior as professional.
Primera placed most weight on the witnessing physician’s
statement that both women spoke in “angry voices in an
inappropriate setting.”

Doc. No. 110-4 at 8.

A letter of

reprimand was placed in each woman’s personnel file, and Primera
decided to give both of them training materials on workplace
civility.
As Primera tried to give the materials to Brown on October
8, Brown asked to record the meeting with her cell phone camera.
When Primera refused, Brown declined to accept the materials.
Two days later, Primera tried to meet with Brown to give her an
interim proficiency report, but Brown refused to meet.
C.

July Travel Issues
Meanwhile, Primera arranged for Brown to attend training in

Coatesville, Pennsylvania from July 7 until July 11, 2014.
6

Brown’s round-trip flight and ground transportation were prearranged, and she was given a government credit card to use for
travel expenses.

Prior to the trip, Brown completed training

involving use of a government credit card and signed a statement
certifying that she would use the card “only for those necessary
and reasonable expenses incurred . . . for official travel,” and
that cash withdrawals would “not exceed the allowable per diem
amounts.”

Doc. No. 83-23.

At that time, the per diem amount

for meals and incidentals in the Coatesville area was $51.2

The

statement Brown signed warned her that “failure . . . to abide
by these rules or other misuse of the [government card] may
result in disciplinary and/or administrative action.”
83-23.

Doc. No.

Brown also received the VA Travelers’ Information

instructions, which specified that travelers “must call the
Manchester Travel staff for approval” before altering travel
plans and included a phone number to call in case of a flight
change or problems with travel.

See Doc. No. 83-24.

On July 10, the day before Brown was scheduled to return
home, there was a storm in the Coatesville area that led to a
24-hour power outage at Brown’s hotel and the cancellation of a

U.S. General Service Administration, “FY 2014 Per Diem for
Pennsylvania,” https://www.gsa.gov/travel/plan-book/per-diemrates/per-diem-rateslookup/?action=perdiems_report&state=PA&fiscal_year=2014&zip=&ci
ty= (last visited July 12, 2021).
2

7

shuttle that was scheduled to take Brown to the airport.
result, Brown missed her flight.

As a

Instead of contacting the VA

travel number for assistance, Brown called her childcare
provider in Augusta, Maine and arranged for him to drive to
Pennsylvania with her two children to pick her up.

Brown

withdrew $200 in cash from her government credit card at an ATM
machine, after two attempts for larger amounts were declined.
She did not seek prior authorization for that withdrawal, as
required by the VA’s policies.

She used the cash to pay for gas

and other travel expenses.
When she returned to the Manchester VA the following
Monday, Brown emailed her hotel receipt to a travel clerk and
mentioned in that email that she had “found [her] own
transportation back” due to a storm.

Doc. No. 66-22.

She did

not explain that she had missed her flight and had arranged for
someone to drive her home.

A few days later, Brown submitted a

request for four hours of compensatory time credit due to her
travel, again without disclosing the circumstances of her return
trip.

The same travel clerk filled out the request form on

Brown’s behalf, and Brown signed it before submission.
Several weeks after Brown’s trip, fiscal staff brought to
Brown’s and Primera’s attention three issues with respect to
charges on Brown’s government credit card: (1) the $200 cash
withdrawal; (2) a $25 charge for gas purchased on July 14 (three
8

days after Brown’s travel ended); and (3) a meal charge on July
12 (one day after her travel ended).

In response, Brown

explained to Primera the situation with the storm that led to
the cash withdrawal, informing Primera for the first time that
she had missed her flight and traveled home by car.

When

Primera asked why Brown did not call anyone at the Manchester VA
or the VA travel number when she missed her flight, Brown said
that she did not have access to a phone.

Brown acknowledged,

however, that she had managed to call her childcare worker to
pick her up.

With respect to the meal charge, Brown stated that

it was made on July 11, during her drive home, and that the
reported transaction date must have been wrong.
charge, Brown chalked it up to a mistake.

As for the gas

She did not know

exactly what had happened, but she believed that either she or
her childcare worker accidentally used the wrong card after her
trip because all her cards looked alike.

Brown took the

responsibility for that mistake and paid the gas charge herself.
As part of her inquiry into Brown’s credit card usage,
Primera called the hotel where Brown had lodged while in
Pennsylvania.

A manager verified that a storm had caused a

power loss during Brown’s stay but explained that the hotel had
an emergency generator and that the guest phones and internet
had worked.

He also noted that the guests were given the option

to go to other hotels that had power.
9

Primera ultimately concluded that Brown had misused her
government credit card by withdrawing the cash without prior
approval and failing to prevent the gas purchase.

She gave

Brown the benefit of the doubt on the meal purchase.

Primera

also concluded that Brown had violated the VA’s policies when
she submitted her request for compensatory travel time without
informing fiscal staff or Primera that she had traveled home by
car instead of flying.

These findings, together with the issues

arising from the June incident, formed the core of Primera’s
request for summary review of Brown’s employment.
D.

Summary Board Review and Termination
On October 21, 2014, the NPSB informed Brown that it was

conducting a summary review of her probationary employment in
order to make a recommendation concerning her retention or
separation from service, and that a hearing would be held on
November 4 and 6.

The notice listed nine alleged deficiencies

in Brown’s conduct or performance that the Board would review:
(1) inappropriate conduct during the June incident with Bowley;
(2) inappropriate ATM cash withdrawal from her government credit
card; (3) failure to prevent misuse of her government credit
card in connection with the gas purchase; (4) failure to provide
information about her changed travel plans with the submission
of her request for compensatory travel time; (5) failure to
follow the chain of command when calling out or requesting
10

assistance; (6) difficulty in interpersonal relationships at
work; (7) failure to complete orientation within three months of
hire; (8) refusal to accept training materials on workplace
civility from her supervisor; and (9) refusal to meet with her
supervisor to receive her interim proficiency report.
Prior to the summary review hearing, Brown submitted
written responses and countervailing evidence to the Board,
including fourteen letters from colleagues attesting to her
satisfactory job performance and interpersonal skills.

Brown

also testified before the Board, accompanied by a union
representative.
At the conclusion of the hearing, the Board, which
consisted of five registered nurses, unanimously recommended
Brown’s termination.

The Board sustained all charges except for

the alleged failures to follow the chain of command and to
complete orientation.

The Board noted that the evidence and

testimony “included factual discrepancies and raised concerns
regarding Ms. Brown’s judgment and interpersonal effectiveness.”
Doc. No. 83-49 at 2.

The Board added that Brown “did not accept

responsibility for many of her actions and that she lacked
insight into the impact of her behavior.”

Doc. No. 83-49 at 2.

Director Krueger approved the Board’s recommendation that
Brown be separated from service during her probationary period.
Brown’s last day of employment was November 28, 2014.
11

E.

Failure to Hire for Other Positions
Shortly before the Board’s summary review hearing, Brown

applied for two positions within the Manchester VA.

In October

2014, she was offered the position of a Caregiver Support Nurse.
The offer was made contingent upon the results of the Board’s
summary review and the approval of Director Krueger.

That offer

was rescinded after the Board recommended Brown’s termination.
Brown also had an interview scheduled in mid-November for a
Business Service Line Nurse Manager position.

Once Brown shared

the results of the Board’s summary review with the hiring
official, she was told that she would not be a good candidate
for the position and the interview was cancelled.
After her termination from the Manchester VA, Brown applied
for a registered nurse position at the VA Central Massachusetts
Healthcare System (“Massachusetts VA”) in February 2015.

She

was interviewed by telephone and received the lowest score of
the six candidates who were interviewed.

The interviewing

committee included Dr. Jeffrey McCarthy, the program manager at
the Massachusetts VA, who had recently issued a fact-finding
report to the Manchester VA following an investigation into
allegations of bullying and abusive behavior made against
Primera.

Brown was not interviewed as part of Dr. McCarthy’s

investigation, and nothing in his report suggests that he was
aware of her complaints against the Manchester VA.
12

F.

Procedural History
On November 20, 2014, approximately a week before her

effective date of termination, Brown filed a formal complaint of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging that she was subjected to a hostile work
environment and discrimination based on her race during her
employment at the Manchester VA.

An EEOC administrative law

judge dismissed her claims at summary judgment, concluding that
the record contained no evidence that could lead to a reasonable
inference that the allegedly harassing conduct was based on
Brown’s race or that her termination was motivated by
discriminatory animus.

Brown then filed the instant complaint

in this court.
Brown filed a separate complaint with the EEOC concerning
her non-selection for the position at the Massachusetts VA.
That complaint was also dismissed on summary judgment due to a
lack of evidence that she was denied the position based on her
race.

After the EEOC upheld the dismissal on appeal, Brown

amended her complaint in this action to include a claim
concerning that position.
II.

STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
13

Fed. R. Civ. P.

56(a); Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016).

In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.”

Cherkaoui v.

City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sanchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).

A “genuine

dispute” exists if a factfinder could resolve the disputed fact
in the nonmovant’s favor.

Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d

1, 7 (1st Cir. 2018).
The movant bears the initial burden of presenting evidence
that “it believes demonstrates the absence of a genuine issue of
material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); accord Irobe v. U.S. Dep’t of Agric., 890 F.3d 371, 377
(1st Cir. 2018).

Once the movant has properly presented such

evidence, the burden shifts to the nonmovant to designate
“specific facts showing that there is a genuine issue for
trial,” Celotex, 477 U.S. at 324, and to “demonstrate that a
trier of fact could reasonably resolve that issue in [her]
favor.”

Irobe, 890 F.3d at 377 (quoting Borges ex rel. S.M.B.W.

v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010)).

If the

nonmovant fails to adduce such evidence on which a reasonable
factfinder could base a favorable verdict, the motion must be
granted.

Celotex, 477 U.S. at 324.

In considering the

evidence, the court must draw all reasonable inferences in the
nonmoving party’s favor.

Theriault v. Genesis HealthCare LLC,
14

890 F.3d 342, 348 (1st Cir. 2018).

“Even in employment

discrimination cases where elusive concepts such as motive or
intent are at issue, this standard compels summary judgment if
the non-moving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation.”

Brandt v.

Fitzpatrick, 957 F.3d 67, 75 (1st Cir. 2020) (quoting Ray v.
Ropes & Gray LLP, 799 F.3d 99, 116–17 (1st Cir. 2015)).
III. ANALYSIS
Brown claims that she was terminated from her probationary
employment at the Manchester VA because of her race and in
retaliation for her complaints of harassment.

She also alleges

that she was not hired for three other positions within the VA
for the same impermissible reasons.

I address the claims in

turn and conclude that the defendant is entitled to summary
judgment on all claims.
A.

Discriminatory Termination Claim
Title VII prohibits discharging an individual “because of

such individual’s race.”

42 U.S.C. § 2000e-2(a)(1).

Where, as

here, there is no direct evidence of discrimination, courts
utilize the indirect, burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under

that framework, a plaintiff must initially establish a prima
facie case of discrimination by showing that (1) she was a
member of a protected class, (2) she was qualified for and doing
15

the job well enough to meet her employer’s legitimate
expectation, (3) she was discharged, and (4) her position was
subsequently filled by someone with similar qualifications.
Bonilla-Ramirez v. MVM, Inc., 904 F.3d 88, 94 (1st Cir. 2018).
If the plaintiff succeeds in establishing a prima facie case, a
rebuttable presumption of discrimination is created, and the
burden of production shifts to the employer to articulate a
legitimate reason for the termination.
Douglas, 411 U.S. at 802–03.

Id.; see McDonnell

If the employer is successful, the

presumption of discrimination dissipates, and the burden shifts
back to the plaintiff to show that the employer’s proffered
reason was a pretext for discrimination.

Bonilla-Ramirez, 904

F.3d at 94; see McDonnell Douglas, 411 U.S. at 804–05.
To satisfy this burden, the plaintiff “must elucidate
specific facts which would enable [a trier of fact] to find that
the reason given is not only а sham, but а sham intended to
cover up the employer’s real and unlawful motive of
discrimination.”

Theidon v. Harvard Univ., 948 F.3d 477, 497

(1st Cir. 2020) (quoting Vélez v. Thermo King de P.R., Inc., 585
F.3d 441, 452 (1st Cir. 2009)).

There is no “mechanical

formula” for establishing pretext, which is heavily fact
specific.
Cir. 2021).

Alston v. Town of Brookline, 997 F.3d 23, 45 (1st
One way the plaintiff may show pretext is by

exposing “such weaknesses, implausibilities, inconsistencies,
16

incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence.”

Billings v.

Town of Grafton, 515 F.3d 39, 55–56 (1st Cir. 2008) (quoting
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir.
1998)); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 143 (2000).

Another way to establish pretext is to produce

evidence that the plaintiff was treated differently than other
similarly situated employees.

Kosereis v. Rhode Island, 331

F.3d 207, 214 (1st Cir. 2003).
The defendant does not dispute that Brown has satisfied the
prima facie burden, and Brown does not dispute that the VA has
articulated a legitimate reason for firing her.

The parties’

primary focus is on whether the VA’s grounds for terminating
Brown – the Board’s findings of misconduct – were pretextual.
Under these circumstances, it is appropriate to “dispense with
strict attention to the burden-shifting framework, focusing
instead on whether the evidence as a whole is sufficient to make
out a [triable] question as to pretext and discriminatory
animus.”

Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d

654, 662 (1st Cir. 2010) (quoting Fennell v. First Step Designs,
Ltd., 83 F.3d 526, 535 (1st Cir. 1996)).

Accordingly, I turn to

Brown’s evidence that the VA’s reasons for terminating her
probationary employment were a mere pretext for discrimination.
17

Brown does not contest that she engaged in conduct that
gave rise to most of the violations that the Board sustained.
Instead, her principal argument is that there were mitigating
circumstances that she presented to Primera and the Board and
that their failure to accept her explanations is sufficient to
establish pretext.

I examine each violation that the Board

sustained in turn and conclude that Brown’s evidence does not
give rise to a triable claim that her termination was
pretextual.
1.

Inappropriate conduct during the June incident

The Board found that Brown had engaged in inappropriate
conduct during the verbal altercation she had with Bowley in
June.

Brown argues that the Board should have accepted her

account that Bowley was the only one responsible for the heated
exchange.

Brown, however, has conceded that her own voice was

“elevated” during the exchange, which occurred within earshot of
patients and other staff.

In addition, she has not disputed the

evidence that a physician witnessing the encounter perceived
both women as “screaming at each other” and using “angry voices
in an inappropriate setting.”

Accordingly, Brown has not

established that the Board’s finding that she had acted
inappropriately during that incident was mistaken, let alone
that it was a pretext for discrimination.

18

Brown next contends that she was treated less favorably
than Bowley, who is white and was likewise found by Primera to
have acted inappropriately.

Bowley, like Brown, had a reprimand

letter placed in her file and was asked to review training
materials on workplace civility, but she was not fired.

Brown

is correct that differential treatment based on a violation of
the same work rule can show pretext when an employee outside the
protected class is not similarly treated.

See, e.g., Mariani-

Colon v. Dep’t of Homeland Sec., 511 F.3d 216, 222 (1st Cir.
2007); Kosereis, 331 F.3d at 214.

But in order to show pretext

in this manner, Brown must demonstrate that Bowley was
“similarly situated to [her] in all relevant respects.”
Kosereis, 331 F.3d at 214 (quoting Conward v. Cambridge Sch.
Comm., 171 F.3d 12, 20 (1st Cir. 1999)).
that showing.

She has failed to make

First, there is no evidence that Bowley was a

probationary employee against whom summary review proceedings
could even be initiated.

A VA employee who has successfully

completed the probationary period has substantially more job
protection than one who is still on probation.

Cf. Durr v.

Shinseki, 638 F.3d 1342, 1344-45 (11th Cir. 2011).

Second,

Brown has not shown that Bowley had engaged in a pattern of
conduct similar to her own, which included multiple violations
over a short period.

Because Brown has not presented a suitable

19

comparator, I cannot infer that the Board’s finding was a
pretext for discrimination.
2.

Cash withdrawal from government credit card

The Board found next that Brown had inappropriately
withdrawn $200 in cash from her government credit card, after
two attempts for larger amounts failed, in violation of the VA’s
policies requiring prior approval for such withdrawals.

Brown

admits that she made the unauthorized cash withdrawal.

Further,

she does not dispute that, prior to her trip, she signed a
statement acknowledging that cash withdrawals must be limited to
the per diem amount, which was significantly lower than the
amount she withdrew.

Therefore, the factual underpinnings of

the Board’s finding that Brown acted inappropriately in this
instance are uncontested.
In her attempt to impugn the Board’s conclusion, Brown
argues that the Board should have considered the exigent
circumstances that led to the cash withdrawal, namely that she
had missed her flight due to a storm, had no way of contacting
the VA travel staff for prior approval, and needed the money to
arrange her transportation home.

That the Board found Brown in

violation of the VA’s policies despite those mitigating
circumstances is not indicative of a discriminatory motive.

As

the Board noted, there were factual discrepancies in Brown’s
testimony.

Although the Board did not elaborate, it is apparent
20

from the record that one such discrepancy stems from Brown’s
admission that she managed to call her childcare provider at the
same time she claimed she had no access to a phone to contact
the VA, as well as the hotel manager’s statement that guest
phones were working despite the power outage.

Therefore, Brown

has not presented evidence that could lead a reasonable
factfinder to conclude that this proffered reason for her firing
is “unworthy of credence.”

See Reeves, 530 U.S. at 143;

Billings, 515 F.3d at 55–56.
3.

Personal gas purchase on government card

The Board also found that Brown had failed to prevent the
misuse of her government credit card when a $25 gas purchase was
charged to the card three days after Brown’s official trip had
ended.

Brown admitted to the Board that either she or her

childcare provider made this purchase, but she maintained that
it was a mistake owing to the similarity of her credit cards and
that she had promptly paid the charge after fiscal staff
notified her of the issue.
Brown first argues that, because she remedied the error by
settling the charge and the Board had no reason to disbelieve
her explanation, the Board’s finding that she was accountable
must have been pretextual.

Brown misses the mark.

It is

uncontested that she failed to prevent the misuse of her card in
this instance.

Whether the card was used by mistake or not is
21

irrelevant to that finding.

That the Board did not accept

Brown’s payment of the charge as sufficient mitigation does not
impugn the Board’s motives in recommending Brown’s termination
based in part on this violation.

Importantly, the unauthorized

purchase was not an isolated violation but came within days of
another unauthorized use of Brown’s government credit card (the
cash withdrawal).
To the extent Brown argues that similarly situated
employees were treated differently for similar rule violations,
she has not presented competent evidence to support her claim.
Brown’s only evidence of comparators is her own deposition
testimony that several unidentified VA employees told her that
they had made mistaken personal purchases on their government
credit cards and that they were allowed to pay the charges
without further consequences.
two reasons.

This evidence is deficient for

First, Brown’s discussion of her coworker’s out-

of-court statements constitutes inadmissible hearsay.

See

Dávila v. Corporación de P.R. para la Difusión Pública, 498 F.3d
9, 17 (1st Cir. 2007).

Brown has not identified an exception to

the hearsay rule that might apply to those statements.

“‘It is

black-letter law that hearsay evidence cannot be considered on
summary judgment’ for the truth of the matter asserted.”

Hannon

v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (quoting Dávila, 498
F.3d at 17).

Second, without information about the unnamed
22

coworkers’ employment status (probationary or not probationary)
and the circumstances of their violations (whether theirs were
isolated occurrences or involved a similar constellation of
incidents), a factfinder could not conclude that they were
similarly situated such that Brown’s disparate treatment is
indicative of pretext.
4.

Lack of disclosure in compensatory travel time request

The Board sustained the charge that Brown had violated the
VA’s policies when she failed to inform fiscal staff that she
had traveled home by car instead of flying in connection with
her request for compensatory travel time credit.

Brown does not

dispute that the VA’s policies required disclosure in these
circumstances.

Instead, she argues that she made a sufficient

disclosure, pointing to evidence that in an earlier
communication concerning her hotel receipt she had informed a
travel clerk that she had “found [her] own transportation back.”
Doc. No. 66-22.

Since that same clerk later submitted the

request for compensatory time on Brown’s behalf, Brown contends
that the onus was on that clerk to make further inquiries about
Brown’s mode of transportation and that Brown was not
accountable for the error.
Brown’s evidence does not lend itself to a plausible
inference that the Board’s finding that she had failed to make
the required disclosure rested on such weak grounds as to be
23

“unworthy of credence.”
515 F.3d at 55–56.

See Reeves, 530 U.S. at 143; Billings,

On the contrary, all she points to is a

vague and incomplete disclosure about her transportation, made
in a different context than her request for compensatory travel
time.

Brown’s attempt to use that statement to deflect blame

from herself is likely one of the reasons the Board castigated
her for failing to take responsibility for her conduct.

In

these circumstances, it cannot be inferred that the Board’s
decision not to accept Brown’s explanation demonstrates pretext.
5.

Refusal to accept training materials

Another undisputed charge the Board sustained was that
Brown had refused to accept training materials on workplace
civility from Primera in October 2014, as part of her discipline
for the June incident with Bowley.

Brown appears to argue that

she should not have been required to review the training
materials because she was faultless in her exchange in Bowley.
As discussed above, however, the Board was not required to
accept that narrative.
To the extent Brown claims that she had properly
conditioned her acceptance of those materials on recording the
meeting, which Primera refused, her claim is meritless.

As a

general matter, an employee does not have a right to record a
meeting without the employer’s consent.

See, e.g., Perkovich v.

Roadway Exp. Inc., 106 F.3d 401 (6th Cir. 1997) (table) (holding
24

that employer had legitimate reason to terminate employee “for
attempting to tape-record her performance review after having
been requested not to bring the recorder to her review”).
Accordingly, Brown has presented no evidence that the Board’s
finding of insubordination in this instance was pretextual.
6.

Refusal to accept interim proficiency report

Brown has likewise failed to call into question the Board’s
finding that she had refused to meet with Primera to receive her
interim proficiency report.

Although Brown argues that this

interaction did not occur, she has not pointed to any evidence
to that effect.

She merely cites her own deposition testimony

that she did not receive her interim proficiency report from
Primera.

See Doc. No. 66-14 at 79.

Those statements, however,

are not inconsistent with the Board’s finding that the reason
Brown did not receive the proficiency report was her refusal to
meet with Primera when Primera sought to give it to her.
But even if Brown had supported her denial with competent
evidence, that alone would not enable a factfinder to conclude
that the stated reason was a pretext for discrimination.

Brown

cannot just “impugn the veracity” of the Board’s finding but
must point to “specific facts” from which a factfinder could
infer that the Board’s finding was “intended to cover up the
employer’s real and unlawful motive of discrimination.”

25

Theidon, 948 F.3d at 497 (quoting Vélez, 585 F.3d at 452).
Brown has not made that showing here.
7.

Difficulty in interpersonal relationships

Lastly, the Board found that Brown had difficulty in her
interpersonal relationships at work.

The evidence in support of

that finding included statements from several coworkers and a
supervisor concerning Brown’s unprofessionalism, inappropriate
communications, or strained relations with others.

For example,

one provider refused to work with Brown because she did not
“work collaboratively” or “take responsibility for patients.”
Doc. No. 110-4 at 254.

But the evidence was not one-sided.

Brown supplied the Board with multiple letters of support from
colleagues that praised her professional demeanor, skills, and
teamwork.

She argues that the Board unfairly disregarded those

letters in favor of evidence from coworkers with whom she hardly
ever worked or who had other reasons to speak ill of her.
The evidence favoring Brown on this issue does not render
the Board’s finding “unworthy of credence” or otherwise allow an
inference that the finding was pretextual.
at 143; Billings, 515 F.3d at 55–56.

See Reeves, 530 U.S.

At most, a factfinder

could conclude that the Board wrongly found that Brown had
difficulty in interpersonal relationships in the workplace.

But

“evidence contesting the factual underpinnings of the reasons
for the [employment decision] proffered by the employer is
26

insufficient, without more, to present a jury question.”

Morgan

v. Mass. Gen. Hosp., 901 F.2d 186, 191 (1st Cir. 1990)
(alteration in original) (quoting Dea v. Look, 810 F.2d 12, 15
(1st Cir. 1987)); see Theriault, 890 F.3d at 353.

Even if Brown

were able to demonstrate that the Board was mistaken in its
finding, that alone would not tend to show that the finding was
pretextual and that race was a motivating factor in her
discharge.

See Morgan, 901 F.2d at 191; see also Dávila, 498

F.3d at 17 (explaining that “proof of a mistaken judgment” as to
the reason for discharge does not give rise to an inference of
discriminatory discharge); Hawkins v. Mary Hitchcock Mem’l
Hosp., 22 F. App’x 21, 23 (1st Cir. 2001) (similar).

There is

simply nothing in the record that would allow a factfinder to
infer that the Board’s finding was a “sham intended to cover up”
discriminatory animus.

Theidon, 948 F.3d at 497 (quoting Vélez,

585 F.3d at 452).
***
Brown’s alternative attempts to establish pretext fare no
better.

First, Brown offers her subjective belief that both

Primera and the members of the Board had a discriminatory
motive.

“Proof of more than [a plaintiff’s] subjective belief

that [she] was the target of discrimination, however, is
required” to survive summary judgment.
at 222.

Mariani-Colon, 511 F.3d

Equally unpersuasive is Brown’s argument that the Board
27

was racist because its members were all white women.

See

Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 35 & n.19
(1st Cir. 2020) (all white composition of a hiring committee
does not create an inference of racial discrimination).

Lastly,

Brown’s deposition testimony that Primera once described another
minority nurse as “not a good nurse,” “[not] professional,” and
“always whiny,” see Doc. No. 100-6 at 39, does not support
Brown’s claim that Primera bore discriminatory animus towards
minorities.

Nothing in this ambiguous statement supports an

inference that Primera’s disapproval was based on that nurse’s
race.

See Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323,

329 (1st Cir. 1996) (“Isolated, ambiguous remarks are
insufficient, by themselves, to prove discriminatory intent.”).
In sum, Brown has failed to raise a triable issue of
material fact as to whether the reasons given for her
termination were pretextual.

She has presented no evidence that

the incidents upon which the Board recommended her termination
occurred in a manner substantially different than as the Board
described them.

Nor has she offered any evidence that other

employees who were similarly situated to herself engaged in
similar conduct and were treated more favorably.

In short, the

undisputed evidence shows that Brown engaged in unprofessional
conduct and violated multiple policies during her probationary
period and was therefore terminated.
28

There is no evidence from

which a reasonable factfinder could conclude that the stated
reasons for her termination were a mere pretext for
discrimination.

Accordingly, I grant the defendant’s motion for

summary judgment on the discriminatory termination claim.
B.

Retaliatory Termination Claim
Brown’s next claim is that she was terminated in

retaliation for her complaints about harassment.3

Title VII

retaliation claims also proceed under the McDonnell Douglas
burden-shifting framework outlined above.

To establish a prima

facie case of retaliation, a plaintiff must show that (1) she
engaged in protected conduct; (2) she experienced an adverse
employment action; and (3) there was a causal connection between
the protected conduct and the adverse employment action.
Hernandez v. Wilkinson, 986 F.3d 98, 103 (1st Cir. 2021).

“A

report of conduct that allegedly violates Title VII is protected
if the employee who reported the conduct had a ‘good faith,
reasonable belief that the underlying challenged actions of the

Brown contends that her termination was also in retaliation for
her complaint of discrimination at another VA facility four
earlier. Brown has not pointed to any evidence that the
decision-makers at the Manchester VA knew about that earlier
complaint, which precludes a finding that they were motivated to
retaliate as a result of it. See Medina-Rivera v. MVM, Inc.,
713 F.3d 132, 139 (1st Cir. 2013). In any event, because I
assume that Brown engaged in protected conduct by complaining
about harassment at the Manchester VA, her prior protected
activity is neither relevant to my analysis nor does it
otherwise bolster her claim.
3

29

employer violated [Title VII].’”

Id. (quoting Fantini v. Salem

State Coll., 557 F.3d 22, 32 (1st Cir. 2009)).

With respect to

causation, the plaintiff must show that her employer’s “desire
to retaliate was the but-for cause of the challenged employment
action.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

352 (2013).
Assuming Brown has met her prima facie burden, she has not
produced evidence from which a factfinder could conclude that
the legitimate, non-retaliatory reasons offered for her
termination – the Board’s findings of misconduct – were a
pretext for retaliation.

Brown principally relies on the same

evidence and arguments she advanced in her discrimination claim
to show pretext.

Those arguments fail for the same reasons I

discussed above.
All that is left is the temporal proximity between Brown’s
protected conduct and her termination.

Specifically, Primera

requested the summary review of Brown’s employment less than two
months after Brown complained that she was being subjected to a
hostile work environment and that Primera had failed to provide
her with safe working conditions.

“Although such close temporal

proximity ‘may suffice for a prima facie case of retaliation,’
it ‘does not, standing alone, satisfy [the plaintiff’s] ultimate
burden to establish that the true explanation for her firing was
retaliation for engaging in protected conduct rather than’ the
30

reasons articulated by [the employer].”

Echevarría v.

AstraZeneca Pharm. LP, 856 F.3d 119, 138 (1st Cir. 2017)
(alterations omitted) (quoting Carreras v. Sajo, Garcia &
Partners, 596 F.3d 25, 38 (1st Cir. 2010)); see SanchezRodriguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15 (1st
Cir. 2012) (affirming grant of summary judgment on retaliation
claim where plaintiff’s only evidence of pretext was temporal
proximity between protected conduct and adverse employment
action); Mariani-Colon, 511 F.3d at 224 (same); Calero-Cerezo v.
U.S. Dep’t of Just., 355 F.3d 6, 25-26 (1st Cir. 2004) (same);
Hodgens, 144 F.3d at 170-71 (same); see also Holloway v.
Thompson Island Outward Bound Educ. Ctr., Inc., 275 F. App’x 25,
26-27 (1st Cir. 2008) (“suspicions” raised by temporal proximity
“can be authoritatively dispelled . . . by an employer’s
convincing account of the legitimate reasons for the firing”).
The Board’s largely uncontested findings that Brown engaged
in a repeated pattern of improper conduct during her relatively
short employment constitute legitimate reasons for her firing.
Brown has not overcome this barrier by presenting evidence from
which a factfinder could reasonably infer that the reasons given
for her discharge were pretextual and that she would not have
been terminated but for her protected conduct.

Therefore, the

defendant is entitled to summary judgment on the retaliatory
discharge claim.
31

C.

Failure to Hire Claims
Brown alleges that the VA failed to hire her for three

other positions due to racial discrimination and retaliation.
These claims are likewise not triable.
The stated reason why Brown failed to secure the two
additional positions at the Manchester VA was because she was
discharged from her then-current position at the same facility.
There is no evidence that this legitimate reason was pretextual
or that the hiring officials for the new positions were
motivated by either Brown’s race or retaliatory animus.

Thus,

her claims with respect to those two positions must fail.
With respect to the Massachusetts VA position, the given
reason for not hiring Brown was that she received the lowest
interview score of the six candidates interviewed by telephone.
There is no evidence that the interviewing committee knew about
Brown’s race or her prior protected activities.4

As a result,

she has failed to make out a prima facie case that she was
denied that position because of racial discrimination or
retaliation.

See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139

Brown speculates that one of the interviewers, Dr. McCarthy,
knew about her administrative complaint against the Manchester
VA because, after Brown’s departure, he had investigated
allegations of bullying made against Primera. Improbable
inferences and rank speculation, however, cannot preclude
summary judgment. Dennis v. Osram Sylvania, Inc., 549 F.3d 851,
855-56 (1st Cir. 2008).
4

32

(1st Cir. 2013) (“[T]he employee must show that the retaliator
knew about her protected activity – after all, one cannot have
been motivated to retaliate by something he was unaware of.”);
O’Connor v. Northshore Int’l Ins. Servs., 61 F. App’x 722, 724
(1st Cir. 2003) (affirming the dismissal of a discrimination
claim where the plaintiff admitted the decision-makers were not
aware of her protected status).

But even if Brown had met her

prima facie burden, there is no evidence from which a factfinder
could infer that the legitimate reason for her non-selection was
pretextual.

Accordingly, these claims as deficient as well.
IV.

CONCLUSION

Brown has failed to come forward with evidence from which a
reasonable factfinder could conclude that her termination was a
pretext for discrimination or retaliation.
claims falter for the same reason.

Her failure to hire

Accordingly, I grant the

defendant’s motion for summary judgment (Doc. No. 83) on all
claims.

The clerk of court is directed to enter judgment and

close the case.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
July 14, 2021
cc:

Deana Brown, pro se
Terry Ollila, Esq.

33