BARNES v. VETERANS AFFAIRS, DEPARTMENT OF
Filing
42
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 1/22/2017. For the reasons stated, ORDERED that Defendant's motion for summary judgment (Doc. 18 ) is GRANTED and this action is DISMISSED WITH PREJUDICE. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERESE BARNES,
Plaintiff,
v.
DAVID J. SHULKIN, M.D.,
SECRETARY, U.S. DEPARTMENT OF
VETERANS AFFAIRS,1
Defendant.
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1:16cv940
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an employment discrimination action by Plaintiff
Derese Barnes arising out of his hiring and subsequent failure to
be promoted at the Fulton Veterans Affairs Medical Center in
Durham, North Carolina (the “Durham VA”).
Barnes claims racial
discrimination in the setting of his position and pay at hiring;
retaliation for having engaged in protected activity, and failure
to promote based on racial discrimination.
Before the court is
Defendant’s motion for summary judgment on all claims.
(Doc. 18.)
The motion has been fully briefed (Docs. 19 through 28) and is
ready for decision.
For the reasons set forth below, the motion
will be granted and the action will be dismissed.
1
David J. Shulkin became the Acting Secretary of Veterans Affairs on
February 14, 2017, resulting in his substitution as Defendant, pursuant
to Federal Rule of Civil Procedure 25(d).
I.
BACKGROUND
The facts, viewed in the light most favorable to Barnes as
the non-moving party, demonstrate the following:
A.
The Durham VA’S Hiring and Promotion Policies
Candidates who wish to apply for a nursing position at the
Durham VA must do so electronically.
(Doc. 20-2 at 23.)
A
collection of Durham VA nurse recruiters and others from human
resources review the applications for minimum qualifications and
forward them to the selecting individuals, who then begin the
interview
process.
(Id.
at
24.)
Once
the
interviews
are
completed, a nurse recruiter will work with the candidates to
ensure that they have submitted as much relevant information about
themselves as possible.
(Id.)
That information is then passed on
to the Durham VA’s Nursing Professional Standards Board (“NPSB”)
for its review.
(Id.)
The NPSB is a group of thirty to forty nurses, all appointed
by
the
Nurse
Executive,
and
is
responsible
for
making
recommendations as to the grade, level, step, and salary for every
nurse at the Durham VA.
24.)
(Doc. 19-4 at 14, 18–20; Doc. 20-2 at
Published standards delineate the classification of various
healthcare professionals.
A Nurse I (nurse grade I) is someone
whose nursing practice benefits only his own patients, while a
Nurse II (nurse grade II) is one whose nursing practice benefits
the entire nursing unit.
(Doc. 19-4 at 21; Doc. 19-5 at 14.)
2
A
Nurse III (nurse grade III) is one who influences a whole facility.
(Doc. 19-4 at 21-22.)
The NPSB’s recommendation as to a nurse’s
starting grade is made by a three-member panel of the NPSB that
evaluates
unanimous.
36, 41.)
objective
and
subjective
criteria,
and
must
be
(Doc. 19-4 at 18–21; Doc. 19-6 at 20–24; Doc. 20-1 at
Once the nurse’s grade has been decided, there is a
formula to determine the level, step, and salary for the nurse
based on his education and experience.
(Doc. 19-6 at 22–23; Doc.
20-1 at 39–41.)
The NPSB examines four dimensions of nursing, as well as a
set of published NPSB guidelines, when making a recommendation as
to a nurse’s grade.
(Doc. 19-4 at 21, 38).
These dimensions are
(1) Practice,2 (2) Professional Development,3 (3) Collaboration,4
and (4) Scientific Inquiry.5
(Id. at 15.)
Once the NPSB makes
its recommendation, the Nurse Executive must approve it before it
becomes final.
(Doc. 19-5 at 45–46.)
2
Practice is defined as how nurses take care of their patients.
19-4 at 16; Doc. 20-1 at 35.)
(Doc.
3
Professional Development is defined as how nurses seek to develop
their
nursing
practices,
such
as
by
seeking
certifications,
opportunities for education, and keeping their licenses and credentials
current. (Doc. 19-4 at 16; Doc. 20-1 at 36.)
4
Collaboration is defined as how well nurses works
individuals. (Doc. 19-4 at 16; Doc. 20-1 at 36–37.)
5
with
other
Scientific Inquiry is defined as how nurses apply research in their
nursing practice and research projects that they have worked on. (Doc.
19-4 at 16; Doc. 20-1 at 37.)
3
After the Nurse Executive approves the recommendation, a
nurse recruiter will extend the candidate a formal job offer that
includes the starting level and salary.
(Doc. 20-2 at 24–26.)
If
the applicant believes his starting level or salary is too low, he
can work with the nurse recruiter to ensure that the NPSB had all
his relevant information.
(Id. at 24.)
does not negotiate salaries.
However, the Durham VA
(Id. at 24–26.)
Once a candidate
has accepted an offer, there is no reconsideration process, and
the salary should deviate from the salary quoted only if the NPSB
committed
an
error,
such
as
failing
to
take
into
information that was provided to it, and corrects it.
account
(Id. at 30–
32.)
Promotions are handled differently.
When the NPSB meets to
make promotion recommendations, it meets in a panel of five members
who review a proficiency report written by a supervisor of the
nurse in question.
(Doc. 24 at 104–08.)
The proficiency report
is read aloud by the chairperson, and the board will vote on
whether the candidate meets each of nine elements required for
promotion.
(Id. at 106–08).6
In order to be promoted, a candidate
must receive at least three of the five board members’ favorable
vote as to each of the nine required elements.
6
(Id. at 106-08,
These nine elements are Practice, Ethics, Resource Utilization,
Education/Career Development, Performance, Collaboration, Collegiality,
Quality of Care, and Research. (Doc. 25 at 84.)
4
124.)
The NPSB takes precautions to ensure that the NPSB members
who are considering a candidate for promotion do not know the
candidate’s identity.
For example, NPSB members do not take part
in promotion considerations for nurses with whom they work.
Doc. 25 at 48.)
(See
Further, only two of the five members actually
know the name of the candidate in question — the chairperson and
the secretary. (Doc. 24 at 107.) Otherwise, the chairperson omits
all identifying information about the candidate when reading the
proficiency report.
B.
(Id. at 106.)
Barnes’s Hiring
In June of 2013, Barnes, an African American male, applied to
work at the Durham VA in response to the Durham VA’s vacancy
announcement for a Temporary Registered Nurse for its Psychiatry
Unit.
(Docs. 1-1 through 1-3.)
successful
applicant’s
determined by the NPSB.
The announcement stated that a
starting
level
(Doc. 1-1 at 2.)7
and
salary
would
be
It further explained
that to be hired as a Nurse II, a candidate would need a Bachelor’s
of Science degree in Nursing and at least two years of nursing
experience.
(Id. at 3).
Barnes submitted his resume and application to the Durham VA
7
The announcement contained an error in its posted salary range. It
stated that the salary range for the position was $70,429 to $103,224.
(Doc. 1-1 at 1.)
The correct salary range was $50,669 to $103,224.
(Doc. 19-5 at 83.)
5
on April 6, 2013.
(Docs. 1-2, 1–3).8
Barnes’s resume stated that
he had a Bachelor of Science in Nursing and five years of nursing
experience, four of which as a charge nurse.
(Doc. 1-2 at 1.)9
Barnes did not specify his race on his application or resume, but
he claims that his application materials included a form on which
he identified his race as African American.
46.)10
(Doc. 19-2 at 45–
On June 4, Barnes received a call from Nurse Recruiter
Kenneth Hodges, who told Barnes that he had been selected for the
position but did not mention Barnes’s starting level or salary.
(Doc. 19-2 at 47–49; Doc. 23-3 at 20–21.)
On
June
5,
Barnes
claims,
he
sent
Hodges
a
letter
of
recommendation and a PowerPoint document, noting his professional
accomplishments with reference to each of the dimensions of nursing
and with the expectation that Hodges would forward the documents
to the NPSB.
(Doc. 23-3 at 23; Doc. 23-8.)11
On June 7, the NPSB
8
In his complaint, Barnes alleges he applied specifically for the Nurse
II position, but the application itself does not allow application for
a specific level. (Doc. 1 ¶ 22; Doc. 1-3.) Instead, an applicant simply
applies, and his level and salary are determined by the NPSB.
9
A charge nurse is a nurse that assigns staff to patients based on
patient needs and staff availability. (Doc. 19-4 at 27–28).
10
The only support for this claim is Barnes’s testimony. (Doc. 19-2
at 46.) No copy of any form has been filed, and Barnes cannot cite the
name, contents, or purpose of the form. (Id. at 46–47.)
11
The parties do not agree that Barnes sent the PowerPoint to Hodges
for the NPSB’s review. Barnes claims he did. (Doc. 1 ¶ 26; Doc. 19-2
at 40.) However, Hodges, Dr. Gregory Eagerton, and Marguerite Summey,
all of whom were involved in Barnes’s hiring decision, have no
recollection of ever having seen the PowerPoint. (Doc. 19-5 at 44; Doc.
20-2 at 36; Doc. 20-4 at 22.)
Moreover, the PowerPoint that Barnes
6
(composed
of
Marguerite
Burgess-Brown14)
Summey,12
reviewed
Donna
Barnes’s
Kovalick,13
application
and
materials
Kathy
and
recommended that he start as a Nurse I, Level III, Step 9, and
that his salary should be $62,829.
((Doc. 19-5 at 37; Doc. 19-6
at 23–24; Doc. 20-6 at 10; Doc. 21-3 ¶¶ 4–6; Doc. 21-4 at 1–2.)
The NPSB found that Barnes’s nursing experience benefitted only
his
own
patients
and
that
Barnes
did
not
demonstrated outcomes to start as a Nurse II.
76; Doc. 21-19 at 15–23.)
have
sufficient
(Doc. 20-2 at 74–
Subsequently, the Nurse Executive, Dr.
Gregory Eagerton, approved the NPSB’s recommendation.
(Doc. 20-2
at 18, 72–73.)
On June 13, Hodges informed Barnes of the starting level and
salary of the position he was being offered.
Doc. 23-3 at 24.)
(Doc. 19-2 at 51;
Upon receiving this information, Barnes told
Hodges that there was a mistake and that he should have been hired
as a Nurse II, based on his education and experience.
at 1–2; Doc. 19-2 at 51; Doc. 23–3 at 24.)
(Doc. 1-5
That same day, Barnes
claims to have sent to Hodges on June 5, 2013, is dated November 3, 2015.
(Doc. 23-8 at 2.)
12
Summey is a Nurse III at the Durham VA who works as a nurse educator.
(Doc. 19-5 at 12.) At all relevant times, Summey was a co-chair of the
NPSB. (Id. at 37; Doc. 25 at 85.)
13
Kovalick is a Nurse III at the Durham VA who works as a nurse manager.
(Doc. 19-4 at 10.) At all relevant times, Kovalick was a co-chair of
the NPSB. (Doc. 19-5 at 37; Doc. 25 at 86.)
14
Burgess-Brown is a Nurse III at the Durham VA who works as the Safe
Patient Handling and Mobility Coordinator. (Doc. 19-6 at 15-17.)
7
sent Hodges an email repeating this belief and inquiring as to
whether the NPSB would reconsider his starting grade and salary.
(See Doc. 1-5.)
On June 14, Hodges responded by email to confirm
that Barnes had declined the offer and advised him that if he asked
the NPSB to reconsider, it might choose to “move forward with
another candidate.”
(Id. at 1.)
Barnes took the language in Hodge’s email to mean that he had
to accept the position immediately or it would be given to another
candidate.
(Doc. 23–3 at 26.)
As a result, Barnes explains, he
accepted the Nurse I position “against [his] will” because he
“needed a job.”
(Doc. 19-2 at 49–51, 84; Doc. 23-3 at 26–29.)
However, when he accepted the position, Barnes was still under the
impression that the NPSB would reconsider his starting grade and
salary.
(Doc. 19-2 at 50–51; Doc. 23-3 at 28.)
Barnes began working at the Durham VA on July 14, 2013, and,
around that time, attended an orientation for new employees. (Doc.
23-3 at 29.)
While giving a presentation at the orientation,
Summey mentioned that a Nurse II typically has two to three years
of experience.
(Id.)
Upon hearing this, Barnes told Summey that
he felt he should have been hired as a Nurse II.
(Id.)
In
response, Barnes says, Summey “apologized and told [Barnes] that
nurses are supposed to have a chance to negotiate their salaries.”
8
(Id. at 30.)15
During the orientation, Barnes claims, he met other African
American nurses who complained that their salary did not reflect
their experience or education level.
at 30.)
from
(Doc. 19-2 at 55; Doc. 23-3
However, the only admissible evidence on this front is
nurse
Regina
unsuccessfully
McNeil,
about
her
who
confirmed
salary,
and
that
she
complained
from
Eagerton,
who
acknowledged that nurse manager Lisa Lowe did complain about her
salary.
(Doc. 20-3 at 15–17; Doc. 23-4 at 10.)16
During Barnes’s first few weeks working at the Durham VA, he
15
Summey denies she said this.
(Doc. 22-1 at 26.)
16
Barnes also contends that Osie Brigman complained about her salary.
But the record contains no admissible evidence as to Brigman, and the
testimony as to Lowe is hearsay. Barnes also claims he spoke with Daniel
Harrison, a Caucasian Emergency Room nurse, at the same orientation, who
allegedly said he had negotiated his salary.
(Doc. 23-3 at 30–31.)
Here, too, there is no admissible evidence from Harrison, only Barnes’s
and McNeil’s own statements about what Harrison allegedly said. (Doc.
23-4 at 15–16; Doc. 19-2 at 29–30.) Barnes cites McNeil’s claim that
he “vividly” remembers speaking to a Caucasian female nurse who worked
in the catheter laboratory, had six years of experience, and claimed to
have negotiated her own salary. (Doc. 23-4 at 15–16). This, too, is
inadmissible hearsay.
Defendants deny that Harrison was able to negotiate his salary but
acknowledge that the salary from his initial quote was increased because
the NPSB noticed an error in the quote it recommended and corrected it
on its own initiative.
(Doc. 19 at 17–18; Doc. 21-19 at 23–25.)
Specifically, the NPSB noticed that the level and step it recommended
for Harrison did not take into account Harrison’s year of experience as
a nurse. (Doc. 21-19 at 23–25). As a result, his recommendation, the
NPSB determined, was too low.
Defendants also note that Harrison is dissimilar to Barnes in a
number of ways: (1) while Barnes is a nurse in the Psychiatry Unit,
Harrison is nurse for the Emergency Room; (2) the NPSB panel that made
the recommendation for Barnes was composed of different members than the
panel that made the recommendation for Harrison; and (3) Harrison was
paid less than Barnes. (Doc. 19-2 at 56–57; Doc. 21-3 ¶ 8; Doc. 21-4
at 2; Doc. 21-5 at 2.)
9
met with Susan Collin,17 Kerri Wilhoite,18 McNeil, and Ossie Brigman
to discuss nurses’ salaries.
(Doc. 19-2 at 28.)
At the meeting,
Wilhoite told the three nurses “in a very threatening manner” that
they should not “rock the boat” and complain about their salaries
because the same group of people who made their initial salary
recommendations could consider them when they were up for promotion
or advancement every year.
(Id.; Doc. 23-3 at 32.)19
It was at
this meeting that Barnes first suspected his non-promotion “could
be about race.”
(Doc. 19-2 at 65–66; Doc. 23-3 at 32.)
The
meeting concluded with Wilhoite stating that she would meet with
Eagerton to discuss their situations and “whether or not [they]
would qualify for a promotion or raises.”
Barnes never heard back from Wilhoite.
(Doc. 23-3 at 33.)
(Id. at 34.)
In response to hearing about Barnes’s complaints, Eagerton
had several discussions with Kovalick, “may have” spoken with
Summey, and confirmed that he agreed with the NPSB’s recommendation
for Barnes.
(Doc. 20-2 at 35, 38–43.)
On October 17, 2013, Barnes contacted an Equal Employment
Opportunity Commission (“EEOC”) counselor at the Agency’s Office
17
Collin was the Nurse Manager for the Psychiatric Unit at the VA from
June 2013 until early August 2013. (Doc. 19-3 at 7–8).
18
Wilhoite was the Associate Chief of Nursing at the time of this
conversation. (Doc. 19-2 at 28.) She is now the Nurse Executive at a
VA facility in Prescott, Arizona. (Doc. 20-7 at 3.)
19
Barnes says he received a similar warning from Summey.
at 74.)
10
(Doc. 19-2
of Resolution Management to discuss his concerns. (Doc. 21-6 ¶ 5.)
Barnes filed a formal complaint with that office on January 19,
2014.
(Id.)
A hearing for the case took place on November 17,
2015.
(Doc. 1-8 at 1–2.)
On May 4, 2016, the Agency issued a
Final Order finding that the Durham VA’s actions were not the
product of racial discrimination.
(Doc. 21-8 at 10; Doc. 21-9 at
1.)
C.
Barnes’s Non-Promotion
On August 20, 2015, five members of the NPSB (Kovalick and
four others) considered Barnes for promotion.
83.)20
(See Doc. 25 at
They reviewed his proficiency report (id. at 74–79) and
recommended that he not be promoted because he met none of the
nine elements.
(Id. at 82–84.)
this recommendation.
On September 9, Eagerton approved
(Id. at 83).
Barnes was found not to have
the kind of performance that contributed to the nursing unit as a
whole, and neither his teaching experience nor working as a
preceptor21 or charge nurse qualified him as a Nurse II, as Barnes
contended. (Doc. 24 at 110-20, 147-155.)22 On September 30, Barnes
20
Starting in 2015, and continuing into the present, Barnes has worked
in an outpatient clinic in Raleigh that is part of the Durham VA network.
(Doc. 19-2 at 15–21.) He transferred to Raleigh because it was closer
to his home. (Id. at 20.)
21
A preceptor is a nurse who helps to orient new nurses to their units
and to working according to the Durham VA’s policies and procedures.
(Doc. 19-2 at 60.)
22
Though neither has a specific memory of their actions in Barnes’s nonpromotion, Eagerton and Kovalick reviewed Barnes’s proficiency report
11
was informed of his non-promotion (Doc. 23–3 at 8; Doc. 25 at 85)
but did not appeal (Doc. 24 at 123).
On November 6, 2015, Barnes contacted an EEOC counselor
regarding his non-promotion.
(Doc. 21-11 at 3.)
On December 3,
2015, Barnes filed a second EEOC complaint, claiming that his nonpromotion was the result of racial discrimination and retaliation.
(Doc. 21-10 at 1.)23
After conducting an investigation, the EEOC
informed Barnes on June 24, 2016, of his right to have a hearing
or an immediate final decision.
(Doc. 21-11 at 1).
Barnes did
not respond to this notice. (Id.)
Instead, he filed his complaint
in this court on July 12, 2016, alleging discrimination based on
his race and retaliation based on his EEOC complaint, both under
as part of the telephonic examination for Barnes’s second EEOC complaint
and testified that they agree with their initial assessment that Barnes
met none of the nine required elements at the time that he was being
considered for promotion. (Doc. 24 at 110–20, 147–55.) In substance,
Kovalick explained that in order to meet any of the elements, a Nurse
II has to be able to show that his actions contributed to the nursing
unit as a whole, and that Barnes’s proficiency report did not show this
kind of unit level contribution as to any of the elements. (Id. at 110–
20.) Kovalick also mentioned that none of Barnes’s experience teaching
or working as a preceptor demonstrated the kind of positive outcomes on
the nursing unit to qualify him as a Nurse II. (Id. at 116–20.) Eagerton
also noted that neither Barnes’s teaching nor service as a preceptor
qualified him to be a Nurse II (id. at 152–54) and that, based on his
review of Barnes’s proficiency report, he agrees that Barnes met none
of the nine criteria (id. at 151).
23
Specifically, Barnes filed this claim against “the NPSB board
consisting of Marguerite Summey and Donna Kovlick [sic].” (Doc. 23-7
at 1.) However, Summey did not serve on Barnes’s promotion board, and
there is no evidence that Kovalick was aware of Barnes’s first EEOC
complaint until a few weeks before the November 17, 2015 hearing, which
was after the NPSB recommended that Barnes not be promoted. (See Doc.
24 at 134.)
12
Title VII of the Civil Rights act of 1964 and 42 U.S.C. § 2000(e)
et seq.
(Doc. 1.)
Then, on September, 26, 2016, the EEOC rendered
a final decision finding no discrimination or retaliation.
(Doc.
21-11 at 1, 8.)
Defendants now move for summary judgment on the grounds that
there is insufficient evidence that the Durham VA discriminated
based on race and because Barnes was not qualified to have been
hired at, or promoted to, Nurse II.
II.
(Docs. 18–19.)24
ANALYSIS
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a). A genuine issue of material fact is present if the evidence
shows that a reasonable jury could return a verdict for the
nonmoving party.
Foster v. Univ. of Maryland-E. Shore, 787 F.3d
243, 248 (4th Cir. 2015).
In determining a motion for summary
judgment, the court views the evidence in the light most favorable
to the non-moving party and resolves all reasonable inferences in
their favor.
Id.
In evaluating documents submitted in support or
opposition of a motion for summary judgment, the court may reject
inadmissible evidence, such as hearsay. See Fed. R. Civ. P. 56(c);
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th
24
In July of 2017, Barnes was promoted to Nurse II level.
8.)
13
(Doc. 35 at
Cir. 1996).
Barnes has two distinct claims: (1) that his being hired as
a Nurse I was the result of racial discrimination, and (2) that
his non-promotion in 2015 was the result of racial discrimination
and retaliation for having filed an EEOC complaint.
Each claim
will be addressed in turn.
A.
Hiring as a Nurse I
Defendant argues that Barnes’s first claim is not properly
before
the
court
because
Barnes
failed
to
exhaust
his
administrative remedies when he did not contact an EEOC counselor
within forty-five days of suspecting that his hiring was the result
of
racial
discrimination,
§ 1614.105(a)(1).
as
required
(Doc. 19 at 10–12.)
by
29
C.F.R.
In response, Barnes argues
that Defendant waived this argument when it stipulated at the EEOC
hearing
that
timeliness
“there
initiating
are
no
contact
procedural
and/or
defenses
filing
anything that brought us to this point.”
the
regarding
Complaint
or
(Doc. 1-8 at 1–2.)
The forty-five day limit is not jurisdictional and “is subject
to equitable doctrines such as tolling or estoppel.”
Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Barnes points
to those courts that hold that an agency must raise a defense of
timeliness in the administrative record, see Johnson v. Vilsack,
No. CA 3:10-3254-MBS-SVH, 2013 WL 1316494, at *8–9 (D.S.C. Mar.
28, 2013), and that “whenever an agency issues a decision on the
14
merits of an [EEOC] complaint without addressing timeliness,” as
it did here, “the agency waives its defense of untimely exhaustion
of administrative remedies,” Fletcher v. Carter, No. CV PX 153897, 2017 WL 876485, at *6–7 (D. Md. 2017) (quoting Johnson, 2013
WL 1316494, at *9 (citing Ester v. Principi, 250 F.3d 1068, 1072
(7th Cir. 2001))).
However, the Fourth Circuit appears not to
have resolved the issue of when an agency can be deemed to have
waived
a
defense
of
untimely
exhaustion
of
administrative
remedies, but has urged trial courts to apply a “flexible rule
which requires a case-by-case examination to determine if an
equitable tolling of the filing period is appropriate.”
New
Bern
Police
Dep’t,
813
F.2d
652,
654
(4th
Harvey v.
Cir.
1987).
Moreover, at least one court has concluded that there is no waiver
unless the agency specifically finds that the plaintiff timely
exhausted her remedies.
Cir. 1992).
Rowe v. Sullivan, 967 F.2d 186, 191 (5th
In light of this uncertainty and given that Barnes’s
claims fail on other grounds, the court will assume, without
deciding,
that
Defendant
has
waived
its
right
to
raise
its
timeliness challenge now.
Barnes first argues that this claim should survive summary
judgment because Defendant is making a different argument now than
it did during the first EEOC proceedings.
In a pre-hearing
statement for Barnes’s first EEOC claim, Defendant argued that the
case turned on whether nurses are allowed to negotiate their
15
salaries at the Durham VA.
(Doc. 1-9 at 1.)
Barnes claims that
Defendant is now arguing that, regardless of salary negotiations,
Barnes was not qualified to be hired as a Nurse II.
21–23.)
(Doc. 23 at
While Barnes initially suggests but then concedes that
Defendant’s
actions
do
not
constitute
judicial
estoppel,25
he
argues that this shift in argument should at least create an
inference that Defendant’s stated reasons for hiring him as a Nurse
I were pretext for racial discrimination.
(Id.)
Defendant
contends that it has not changed its position, that it argued
Barnes was not qualified to be hired as a Nurse II during the first
EEOC hearing, and that its position that Barnes was not qualified
to be a Nurse II is not inconsistent with arguing that nurses at
the Durham VA cannot negotiate their salaries.
(Doc. 28 at 1–3.)26
It is true that “[t]he fact that an employer ‘has offered
different
justifications
at
different
times
for
[an
adverse
employment action] is, in and of itself, probative of pretext.’”
25
Judicial estoppel requires three elements: (1) that the party to be
estopped must be advocating a position inconsistent with one taken in
prior litigation; (2) that the prior inconsistent position must have
been accepted by the court; and (3) the party against whom judicial
estoppel asserted must have intentionally misled the court in order to
gain an unfair advantage. Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir.
2007). Barnes “concedes that the third prong would be very difficult
to satisfy.” (Doc. 23 at 22.) The court agrees, seeing no evidence to
satisfy the third element.
26
Defendant also argues that because this court is hearing Barnes’s
case de novo, any inconsistencies in its past statements are not
relevant. (Doc. 33 at 25.) Because the court finds that Defendant has
not presented inconsistent factual arguments as to its actions towards
Barnes, this argument need not be further addressed.
16
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 576 (4th
Cir. 2015) (citing Sears v. Roebuck & CO., 243 F.3d 846, 852–53
(4th Cir. 2015.))
However, this generally involves the proffering
of different factual reasons for the employer taking an adverse
employment action (post-hoc rationalizations), not different legal
arguments as to why the act that the employer took was not an act
of illegal discrimination.
See id.; Sears, 243 F.3d at 852–53;
Holley v. N. Carolina Dep't of Admin., N.C., 846 F. Supp. 2d 416,
436–37.
(E.D.N.C. 2012); Dennis v. Columbia Collection Med. Ctr.,
Inc., 290 F.3d 639, 648 n. 4 (4th Cir. 2002).
discrepancies
pretext
—
in
the
a
defendant’s
plaintiff
explanations
must
point
to
Further, minor
do
not
actual
establish
conflicting
explanations which related to the core substance of the employer’s
articulated justification.
Propst v. HWS Co., Inc., 148 F. Supp.
3d 506, 528 (W.D.N.C. 2015).
Even if Defendant has shifted the focus of its legal argument,
it has not changed its factual statements surrounding Barnes’s
qualification
salaries.
as
Nurse
II
or
its
policy
against
negotiating
Further, Defendant did argue that Barnes was not
qualified to be a Nurse II during the first EEOC hearing;27 thus,
it does not appear that Defendant has changed its argument.
21-19 at 45–49.)
27
(Doc.
As such, Defendant has not offered inconsistent
Barnes even includes this fact in his complaint.
17
(Doc. 1 ¶¶ 82–83.)
explanations for Barnes being hired as a Nurse I, and Barnes’s
argument fails.
On the merits, Barnes argues that that his hiring as a Nurse
I is evidence of racial discrimination because he was qualified to
be hired as a Nurse II.
(Doc. 23 at 18–21.)
Barnes also argues
that his inability to negotiate his salary, while he claims at
least two Caucasian nurses were permitted to do so, is further
evidence of racial discrimination.
(Id. at 15–18.)
Defendant
argues that Barnes was not qualified to be hired as a Nurse II, no
nurses at the Durham VA negotiated their salaries, and Barnes
cannot
point
to
a
similarly-situated
comparator
protected class who was treated more favorably.
from
a
non-
(Doc. 19 at 14–
26.)
Barnes has no direct evidence of discrimination and therefore
proceeds under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell Douglas, to
state a prima facie case of unlawful discrimination a plaintiff
must show that (1) he is a member of a protected class, (2) he has
suffered an adverse employment action, and (3) other employees who
are not members of the protected class were treated more favorably.
See Bryant v. Bell Atl. Md. Inc., 288 F.3d 124, 133 (4th Cir.
2002).
However, a plaintiff is not required to point to a
similarly-situated
claim.
comparator
to
succeed
on
a
discrimination
Bryant v. Aiken Reg'l Med. Centers Inc., 333 F.3d 536,
18
545–47 (4th Cir. 2003).
Instead, a plaintiff can succeed on a
race discrimination claim if the circumstantial evidence suggests
discrimination.
Dennis, 290 F.3d at 648 n.4.
If a prima facie case has been made, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for
its actions.
McDonnell Douglas, 411 U.S. at 802.
the employer at this stage is one of production.
V. Hicks, 509 U.S. 502, 509–11 (1993).
The burden on
St. Mary’s Ctr.
If the employer sets forth
legitimate, nondiscriminatory reasons for its actions, then the
burden shifts back to the plaintiff to prove by a preponderance of
the evidence that the employer’s given reasons “were not its true
reasons, but were
a
pretext for discrimination.”
Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000).
A
plaintiff can demonstrate pretext by showing that the employer’s
explanation
is
discrimination
not
through
credible
or
by
circumstantial
demonstrating
evidence.
illegal
Mereish
v.
Walker, 359 F.3d 330, 336 (4th Cir. 2004).
Barnes’s argument that he was not allowed to negotiate his
salary, while Caucasian nurses were, fails because it is not
supported by admissible evidence.
Evid. 801(c).
Fed. R. Civ. P. 56(c); Fed. R.
His claim as to the unnamed nurse is supported only
by the hearsay statements of McNeil and his recollection of them.
(Doc. 23-4 at 15–16; Doc. 19-2 at 29–30.)
Moreover, not only does
Barnes not have any admissible evidence to support his claim that
19
Harrison was able to negotiate his salary, Barnes also has not
rebutted Defendant’s argument that Harrison merely had his salary
corrected due to an error.
(Doc. 21–3 ¶¶ 8–10; Doc. 21-5 at 2.)28
In contrast to Barnes’s hearsay evidence, there is record evidence
that the Durham VA has a policy that nurses cannot negotiate their
salaries.
(Doc. 19-3 at 18; 20-2 at 25–26; Doc. 20-7 at 11, 19–
20.)
Barnes’s argument that his hiring at Nurse I, when he was
qualified to be hired as a Nurse II, is evidence of unlawful racial
discrimination also fails.
The decision to hire Barnes as a Nurse
I was subjective based on published qualifications not alleged to
be discriminatory, was made unanimously by the NPSB, and was
28
Barnes claims that he was asking the NPSB to correct his salary to
be that of a Nurse II, just as they corrected Harrison’s salary to
reflect his experience.
(Doc. 23 at 17–18.)
However, Barnes
misperceives the objective nature of the correction that the NPSB made
in contrast to the subjective nature of the change he requested. The
two are categorically different.
In addition to these evidentiary
problems, Harrison is too dissimilar to serve as a comparator because
he did not work in the same nursing unit as Barnes and because the NPSB
that recommended Harrison’s starting level was composed of different
members than the NPSB that recommended Barnes’s starting level.
See
Haywood, 387 F. App’x at 359 (citing Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (6th Cir. 1992)) (noting that a plaintiff is required to show
that he is similar in all respects to a comparator and that, among other
things “[s]uch a showing would include evidence that the employees dealt
with the same supervisor.”); Laing v. Fed. Exp. Corp., 703 F.3d 713,
719–20 (4th Cir. 2013) (explaining that comparators must be similarly
situated to the plaintiff, “but for the protected characteristic”); Hurst
v. D.C., 681 F. App'x 186, 193 (4th Cir. 2017) (noting that when different
decision makers are involved two plaintiffs are rarely similarly situated
in all relevant respects); Merrill v. McCarthy, 184 F. Supp. 3d 221,
245–46 (E.D.N.C. 2016) (quoting Roberts v. Lubrizol Corp., 582 F. App’x
455, 459 (5th Cir. 2014)) (noting that comparators should share the same
supervisor). (Doc. 21-4; Doc. 21-5.)
20
confirmed by Eagerton.
See Evans, 80 F.3d at 960 (stating that
job
relative
performance
and
employee
qualifications
are
legitimate, nondiscriminatory reasons for any adverse employment
decision); Page v. Bolger, 645 F.2d 227, 230–32 (4th Cir. 1981)
(holding that the testimony of a promotion board that they did not
discriminate against a candidate of the basis of their race was
enough to overcome a plaintiff’s prima facie case of racial
discrimination).
(Doc.
20-2
at
62–63.)
Further,
from
the
beginning of the first EEOC investigation until the present, the
members of the NPSB who recommended that Barnes start as a Nurse
I have been consistent in their explanations of that decision.
(Doc. 19-6 at 19–37; Doc. 19-5 at 82–93; Doc. 21-19 at 18–23.)
See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980) (noting
that it is the perception of the decision maker, not the selfassessment of the plaintiff which is relevant to determining a
plaintiff’s qualifications).
This court’s determination is not
whether the decision to hire Barnes as a Nurse I was prudent, but
rather
whether
discrimination.
it
was
the
product
of
unlawful
racial
DeJarnette v. Corning Inc., 133 F.3d 293, 298–99
(4th Cir. 1998) (citing Giannopoulus v. Branch & Brock Confections,
Inc. 109 F.3d 406, 410–11 (7th Cir. 1997.)
There is no admissible
evidence that it was the latter.
Thus, Barnes fails to provide sufficient evidence to set out
a prima facie case that his hiring as a Nurse I resulted from
21
unlawful discrimination based on race, and his claim cannot survive
summary judgment.29
B.
Barnes’s Non-Promotion Claims
1.
Exhaustion
Defendant first argues that Barnes’s non-promotion claims are
not properly before the court because Barnes failed to exhaust his
administrative remedies on his second EEOC claim before filing
suit in this court.
Defendant emphasizes that Barnes failed to
respond to the EEOC’s letter advising of his right to a hearing or
an immediate decision but instead filed this action before awaiting
the EEOC’s final decision.
(Doc. 28 at 4.)
Barnes argues that he
properly brought suit on his non-promotion claims because he needed
only to wait 180 days after filing his EEOC claim to file his
federal suit.
(Doc. 23 at 4.)
29
Even if Barnes could state a prima facie case, his claim would still
fail because Defendant has given legitimate, nondiscriminatory reasons
for his being hired at the Nurse I level. Specifically, Defendant has
offered evidence that the NPSB and Eagerton reviewed Barnes’s application
according to its legitimate criteria and found Nurse I to be the
appropriate starting position.
See Page, 645 F.2d at 230–32.
This
shifts the burden to Barnes to show that these reasons were simply a
pretext for racial discrimination. Evans, 80 F.3d at 960. Barnes has
not done so. Perry v. Mail Contractors of Am., Inc., 589 F. App'x 617,
619 (4th Cir. 2014) (absent evidence that the allegedly discriminatory
decision maker knew of the aggrieved employee's race, no reasonable jury
could conclude that the stated legitimate reason for the challenged
employment action was a pretext for discrimination); Matthews v. Waukesha
Cty., 759 F.3d 821, 827–29 (7th Cir. 2014) (noting the need to show that
a decision maker knew of the plaintiffs race in a racial discrimination
claim); Pearson v. Massachusetts Bay Transp. Auth., 723 F.3d 36, 41–42
(1st Cir. 2013) (affirming summary judgment on a claim of racial
discrimination in employment where the record did not show that the
decision makers knew plaintiff’s race).
22
In the Fourth Circuit, “[i]t is entitlement to a ‘right to
sue’ notice, rather than its actual issuance or receipt, which is
a prerequisite to the jurisdiction of the federal courts under
Sec. 2000e-5(f)(1).”
Davis v. North Carolina Dept. of Correction,
48 F.3d 134, 140 (4th Cir. 1995.)
“Entitlement to an EEOC right
to sue letter is triggered 180 days after the date on which the
EEOC
charge
is
filed.”
Craft
v.
Fairfax
Cnty,
Gov’t,
No.
1:16CV86(JCC/MSN), 2016 WL 1643433, at *3 (E.D. Va. Apr. 26, 2016)
(citing Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093
(4th Cir. 1982)).
This is an exception to the general rule, under
which Defendant argues, that a plaintiff must file suit in a
federal court within 90 days of receiving notice of the EEOC’s
final decision in order to have exhausted his administrative
remedies.
42. U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407; Harvey
v. City of New Bern Police Dep’t, 813 F.2d 652, 653 (4th Cir.
1987).
Barnes waited more than 180 days after filing his second
EEOC complaint to file his complaint with this court, and the EEOC
had not made a final decision on Barnes’s complaint at that time.
Thus, it appears as though Barnes exhausted his remedies and the
issues presented in his second EEOC complaint are properly before
this court.
As with Defendant’s procedural challenge to Barnes’s
first EEOC claim, however, because his non-promotion claims fail
on other grounds, the court can likewise assume, without deciding,
that Barnes has exhausted his administrative remedies and proceed
23
to address the merits of his claim.
2.
Retaliation Claim
Barnes argues that he was qualified for promotion to Nurse II
in 2015, even more so than when he was hired,30 and that he was not
promoted in retaliation for having filed his December 3, 2015 EEOC
complaint.
He stresses Wilhoite’s admonition to the group of
complaining nurses, including himself, in the summer of 2013 that
they “shouldn’t be making complaints about [their] salaries” and
“complain too much” because it would “upset” the NSPB, who “are
the people that review [their] salaries every two years and decide
whether [they] get promoted.”
Doc. 23-4 at 12.)
(Doc. 23 at 28; Doc. 23-3 at 32;
Similarly, he claims that Summey told him that
“if [he] complained about [his] salary that the nursing board
members were there for a long time and that they would pretty much
not promote [him].”
(Doc. 19-2 at 74.)31
Barnes further claims
that Kovalick was informed that she would have to testify at the
November 17, 2015 hearing for Barnes’s first EEOC complaint, and
30
Barnes argues that he was qualified to be promoted to Nurse II because:
(1) he teaches a prevention and management of disruptive behavior class
at the Durham VA; (2) he is a preceptor and a recruiter at the Durham
VA; (3) he is a charge nurse; (4) he worked to create a reward system
to reduce the use of restraint utilization; and (5) he worked in a
bedside shift reporting project that resulted in reduced bedside sores
in patients. (Doc. 23 at 10–11; Doc. 24 at 82–83.)
31
While this is the only reference to Summey making this threat, and
Barnes may have meant to refer to Wilhoite, the court accepts his
statement at face value in light of the summary judgment standard.
24
was thus reminded of it, just before she served on the NPSB that
recommended against the promotion.
argues,
but
without
(Id. at 29.)32
elaboration,
that
his
Lastly, Barnes
non-promotion
another act of unlawful discrimination based on race.
was
Defendant
responds that Barnes cannot show a causal connection between his
protected EEOC activity and his non-promotion and that his nonpromotion was unrelated to his race.
(Doc. 28 at 14.)
In order to establish a claim of retaliation under Title VII,
a plaintiff must show that (1) he engaged in a protected activity
that was known to the decision-maker; (2) his employer took adverse
action against him; and (3) a causal relationship existed between
the
protected
activity
and
the
adverse
Foster, 787 F.3d at 250 (4th Cir. 2015).
employment
activity.
However, “[m]erely
complaining in general terms of discrimination or harassment,
without indicating a connection to the protected class or providing
facts sufficient to create that inference” is not enough to survive
summary judgment.
Young v. HP Enterprise Servs., LLC, No. 1:10-
CV-1096, 2011 WL 3901881, at *5 (E.D. Va. Sept. 5, 2011) (internal
citation and quotation marks omitted).
32
If a plaintiff succeeds in
Barnes also argues that Summey, who knew about Barnes’s first EEOC
complaint, was a part of Barnes’s non-promotion. However, Summey did
not serve on, nor is there any evidence he provided any input into, the
NPSB members who considered Barnes’s promotion. Thus, Barnes’s argument
that Summey was a part of a retaliatory act against him fails. Barnes
does not argue, nor is there any evidence, that Summey’s knowledge of
the EEOC complaint can be imputed to Kovalick, her co-chair of the NPSB.
On this record, any such contention would be purely speculative.
25
making a prima facie retaliation claim, the burden shifts to the
defendant
to
retaliatory.
produce
evidence
that
Foster, 787 F.3d at 250.
its
actions
were
not
If the defendant does so,
then the plaintiff must show by a preponderance of the evidence
that the defendant’s asserted grounds for taking its action were
a pretext for retaliation.
Id. at 250; Guessous v. Fairview Prop.
Investments, LLC, 828 F.3d 208, 216–17 (4th Cir. 2016).
To
establish pretext in a Title VII retaliation claim, a plaintiff
must show that his protected activity was a “but-for” cause of the
adverse employment action.
Univ. of Tex. Sw. Med. Ctr. V. Nassar,
133 S. Ct. 2517, 2532–34 (2013).
When proceeding under the burden
shifting framework, however, this is met by showing pretext and
that
discrimination
conduct.”
was
the
“real
reason
for
the
challenged
Foster, 787 F.3d at 252.
Here, Barnes fails to state a prima facie case because he
cannot
demonstrate
that
when
the
NPSB
recommended
his
non-
promotion, any member had any knowledge he had filed an EEOC
complaint.
His claim that Kovalick knew because she had been
informed before the vote that she would be needed to provide
testimony for the EEOC regarding his first complaint is unsupported
by any admissible evidence.
(Doc. 23 at 29.)
Barnes relies on
the EEOC’s Report of Investigation from his second EEOC claim.
(Id.; Doc. 24 at 8.)
However, the portion of the report he cites
merely repeats his own contention that Kovalick and Summey were
26
“asked to provide testimony to an EEOC investigator sometime prior
to the August 2015 Board decision and in an EEOC hearing in
November 2015.”
this claim.
(Doc. 24 at 8.)
There is no evidence to support
Further, Kovalick testified that she did not know
anything about Barnes’s first EEOC complaint until “approximately
[two] weeks before” November 17, 2015.
(Doc. 24 at 134.)33
Thus,
Barnes has not proffered any evidence that Kovalick was aware of
his protected EEOC activity at the time she voted on August 20,
2015, to recommend against his promotion.
(Doc. 24 at 134.)
Further, apart from Kovalick, Barnes has not addressed the
fact that the other four members of his five-member NPSB promotion
board – at least two of whose votes he had to receive for a
recommendation of promotion - had no knowledge of his prior EEOC
complaint.
(Doc. 24 at 165; Doc. 25 at 14, 27, 44.)
Nor has he
argued, or provided any evidence, that Eagerton - who was the
ultimate decisionmaker - knew of Barnes’s EEOC activity or approved
of the non-promotion in any retaliatory fashion.
Given the subjective nature of a candidate’s qualification
for Nurse II and the unrebutted efforts by the NPSB to ensure that
its voting members not know the candidate under consideration,
33
Summey was aware of Barnes’s EEOC activity prior to Barnes’s nonpromotion because she spoke with Barnes’s EEOC investigator, as part of
a series of telephonic examinations, on May 22, 2014.
(Doc. 22-1.)
However, Summey was not involved in Barnes’s promotion decision, and her
knowledge is therefore not relevant.
27
Barnes has failed to state a claim for retaliation.
3.
34
Discrimination Claim
Lastly, in order for a plaintiff to state a prima facie claim
of unlawful discrimination based in a failure to promote, he must
show that he (1) is a member of a protected class, (2) applied for
the position in question, (3) was qualified for the position in
question, and (4) was rejected for the position under circumstances
giving rise to an inference of unlawful discrimination.
Bryant,
333 F.3d at 544–45. Barnes’s claim for non-promotion fails because
he cannot show that he in 2015 was qualified to be a Nurse II or
that his non-promotion was under circumstances that give rise to
an inference of unlawful discrimination.
The NPSB that considered Barnes for promotion concluded he
was not qualified for promotion to Nurse II under the applicable
standards, which is a legitimate reason for his non-promotion.
Evans, 80 F.3d at 960; Smith, 618 F.2d at 1067; Page, 645 F.2d at
230–32.
(Doc. 24 at 110–20.)
As noted previously, note 22 supra,
the NPSB panel found that he met none of the nine required
elements.
(Doc. 25 at 82–84.)
It rejected Barnes’s contentions
34
Even if Barnes could make out a prima facie retaliation claim,
Defendant offers a legitimate, nondiscriminatory reason for his nonpromotion — that he was not qualified for the Nurse II position. While
Barnes claims that he was, the NPSB panel that considered his promotion
disagreed.
Each member also testified that they were not aware of
Barnes’s prior EEOC activity.
This is enough to satisfy Defendant’s
burden. Page, 645 F.2d 227, 230–32. Given that Barnes has no evidence
of pretext and the court cannot say that the NPSB’s decision is facially
incorrect, this claim could not survive summary judgment.
28
that
his
experience
teaching
and
working
as
a
preceptor
demonstrated the kind of positive outcomes on the nursing unit to
qualify him as a Nurse II.
In
addition
to
(Doc. 24 at 110-20, 147-155.)
Barnes’s
failure
to
meet
the
Nurse
II
standards, four of the five members of the NPSB have testified
that they were not aware of his race at the time they recommended
he not be promoted.
Perry v. Mail Contractors of Am., Inc., 589
F. App’x 617, 619 (4th Cir. 2014).35
13–14, 27, 44.)
(Doc. 24 at 165; Doc. 25 at
Barnes has put forward no evidence that his non-
promotion was related to his race.
As such, he cannot make a prima
facie case of unlawful racial discrimination.
Defendant’s motion
for summary judgment on this claim will therefore be granted as
well.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Defendant’s motion for summary
judgment (Doc. 18) is GRANTED and this action is DISMISSED WITH
PREJUDICE.
/s/
Thomas D. Schroeder
United States District Judge
January 22, 2018
35
Unpublished
but are cited
they generate
v. Pond Creek
opinions of the Fourth Circuit are not binding precedent
in this opinion because they are entitled “to the weight
by the persuasiveness of their reasoning.” See Collins
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).
29
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