FINIZIE v. MCDONALD
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/30/17. 6/30/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHARON A. FINIZIE,
ROBERT A. MCDONALD,
SECRETARY, DEPARTMENT OF
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
June 30, 2017
Plaintiff Sharon Finizie (“Plaintiff”) brings this
action under Title VII of the Civil Rights Act of 1964 (“Title
VII”) against Robert A. McDonald, the Secretary of the
Department of Veterans Affairs, alleging two counts of
retaliation in connection with protected activity under Title
VII. Defendant moved for summary judgment, and Plaintiff opposed
the motion. For the reasons that follow, the Court will grant
the motion and enter judgment in favor of Defendant on all
claims in this case.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a registered nurse who has been employed
for over 35 years by the United States Department of Veterans
Affairs (the “VA”) at the Philadelphia VA Medical Center (the
“Philadelphia VAMC”). Compl. ¶ 7, ECF No. 1. She has an
extensive history of prior activity with the Equal Employment
Opportunity Commission (“EEOC”). Def.’s Statement of Material
Facts Supporting Mot. Summ. J. 2 ¶ 3, ECF No. 29; Pl.’s Resp. to
Statement of Material Facts Supporting Mot. Summ. J. 1 ¶ 3, ECF
In February 2010, in response to Vacancy Announcement
No. 95-2010, Plaintiff applied at the VA for the position of
“RN-Infection Control.” Compl. ¶¶ 8-9. Vacancy Announcement No.
95-2010 stated that it was to remain “Open Until Filled.” Id.
¶ 10. Plaintiff alleges that she met all of the basic and
preferred qualifications for the position and was interviewed on
March 17, 2010. Id. ¶ 11. In August 2010, Plaintiff was notified
that the vacancy had been cancelled. Id. ¶ 12.
The VA then posted another vacancy announcement for
the position “Registered Nurse, Infection Control Nurse” under
Job Announcement No. 305-10. Id. ¶ 14. This posting designated
its open period from “8/27/10 until the position is filled.” Id.
Plaintiff submitted her application for this position on
September 10, 2010. Id. ¶¶ 14-16. In October 2010, Plaintiff was
notified in writing that she had not been selected to fill the
vacancy. Id. ¶ 17.
On September 27, 2010, Plaintiff filed a formal
complaint of discrimination with the EEOC, alleging that she had
been discriminated against based on her prior Title VII
protected activity when the VA cancelled the vacancy
announcement of the first position. Id. ¶ 18. Without holding a
hearing, the EEOC administrative judge rendered a finding of no
discrimination. Id. ¶ 20. Plaintiff administratively appealed
the decision, and the EEOC issued a final decision against her
on February 3, 2015. Id. ¶ 23.
On December 6, 2010, Plaintiff filed a second formal
complaint of discrimination with the EEOC, alleging that she had
been discriminated against in retaliation for her prior Title
VII protected activity when she was not selected for the second
vacancy to which she applied. Id. ¶ 19. This second complaint
was assigned to a different EEOC administrative judge, who,
after holding an administrative hearing on the merits, rendered
a finding of no discrimination. Id. ¶ 21. Plaintiff
administratively appealed the decision, and the EEOC issued a
final decision against her on January 22, 2015. Id. ¶ 24.
Based on the foregoing facts, Plaintiff filed a
complaint in this Court on April 20, 2015, alleging two counts
of retaliation in connection with protected activity under Title
VII. See id. ¶¶ 25-28. The first count relates to the
cancellation of Vacancy Announcement No. 95-2010. Id. ¶¶ 18, 25.
The second count relates to Plaintiff’s non-selection for the
position listed in Job Announcement No. 305-10. Id. ¶¶ 19, 27.
Defendant answered Plaintiff’s complaint on July 16,
2015. ECF No. 4. Following discovery, Defendant filed a motion
for summary judgment on November 4, 2016. ECF No. 29. Plaintiff
responded on December 19, 2016, ECF No. 32, and Defendant moved
for leave to file a reply brief on February 21, 2017, ECF No.
36. 1 The motion is now ripe for disposition.
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
genuine issue of material fact.” Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A fact is
“material” if proof of its existence or nonexistence might
affect the outcome of the litigation; a dispute is “genuine” if
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court has considered the contents of the attached
reply brief, filed as an exhibit to the motion for leave, in
reaching its decision to grant Defendant’s summary judgment
In considering a motion for summary judgment, the
Court views the facts in the light most favorable to the
nonmoving party. “After making all reasonable inferences in the
nonmoving party’s favor, there is a genuine issue of material
fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d
Cir. 2010). The moving party bears the initial burden of showing
the absence of a genuine issue of material fact, but meeting
this obligation shifts the burden to the nonmoving party, who
then must “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting
Fed. R. Civ. P. 56(e)).
Title VII prohibits an employer from discriminating
against an employee on the basis that the employee has opposed
any employment practice made unlawful by Title VII, or because
the employee has made a charge, testified, assisted, or
participated in any manner in any investigation, proceeding, or
hearing under Title VII. See 42 U.S.C. § 2000e-3(a); Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001). This type of
discrimination constitutes unlawful retaliation. Thompson v. N.
Am. Stainless, LP, 131 S. Ct. 863, 867-68 (2011).
In the absence of direct evidence of retaliation, the
Court considers retaliation claims under the burden-shifting
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005).
Under this framework, the plaintiff bears the initial burden of
proving a prima facie case of retaliation by a preponderance of
the evidence. McDonnell Douglas, 411 U.S. at 802. To prove a
prima facie case of retaliation, the plaintiff must show that
(1) she engaged in activity protected by Title VII, (2) her
employer took an adverse employment action against her, and (3)
there was a causal connection between her protected activity and
the adverse employment action. Moore v. City of Phila., 461 F.3d
331, 340-41 (3d Cir. 2006).
If the plaintiff employee succeeds in proving a prima
facie case, then the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its
actions. McDonnell Douglas, 411 U.S. at 802. An employer may
meet its burden to articulate a legitimate, non-discriminatory
reason by offering any legitimate business reason for its
actions. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
“The employer need not prove that the tendered reason actually
motivated its behavior, as throughout this burden-shifting
paradigm the ultimate burden of proving intentional
discrimination always rests with the plaintiff.” Id. (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
If the employer meets this “relatively light burden,”
then the burden shifts back to the plaintiff to prove by a
preponderance of the evidence “both that the reason was false,
and that discrimination was the real reason” for the adverse
employment action. Id. (quoting St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 515 (1993)); see also McDonnell Douglas,
411 U.S. at 804-05 (explaining that plaintiff must be given an
opportunity to demonstrate pretext). “To discredit the
employer’s proffered reason, . . . the plaintiff cannot simply
show that the employer’s decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765.
Instead, the plaintiff must demonstrate “weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its action,” such that “a reasonable factfinder could
rationally find them ‘unworthy of credence.’” Id. (emphasis
omitted) (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen,
983 F.2d 509, 531 (3d Cir. 1992)).
Here, Defendant presents a twofold argument as to why
there is no genuinely triable dispute regarding Plaintiff’s
retaliation claims. First, he argues that Plaintiff cannot
establish a prima facie causal connection between her nonselection for her desired position and her history of filing
EEOC complaints. See Def.’s Mot. Summ J. at 7-9, ECF No. 29.
Second, he argues that, even if Plaintiff could establish a
prima facie case of retaliation, no evidence suggests that the
VA’s legitimate, non-retaliatory justification for its decision
was pretextual. See id. at 9-12. The Court agrees with Defendant
on both points.
Plaintiff has failed to establish a prima facie case
of retaliation because she cannot establish a causal connection
between her non-selection for the infection control nurse
positions and her long history of filing EEOC complaints. The
evidence on the record establishes--and the parties do not
dispute--that (1) Plaintiff engaged in activity protected by
Title VII, i.e., filing numerous EEO complaints; and
(2) Plaintiff suffered an adverse employment action, i.e., not
being selected for the positions she sought. See Moore, 461 F.3d
at 340-41. Aside from her own personal belief, however,
Plaintiff has offered no evidence to causally connect those
facts. In other words, nothing in the record supports
Plaintiff’s belief that the cancellation of Vacancy Announcement
No. 95-2010 or her non-selection for the position posted in Job
Announcement No. 305-10 resulted from her prior EEO activity.
Even if Plaintiff could make out a prima facie case of
retaliation, the Court finds that Defendant has satisfied its
burden to articulate legitimate, non-discriminatory reasons for
its actions. See McDonnell Douglas, 411 U.S. at 802. Relying on
testimony from the approving official, Defendant explains that
“the [first] vacancy was cancelled because [the chief nurse
executive] learned [that] the employee in the infection control
position at that time was not retiring, as originally expected
when position 95-2010 was opened.” Def.’s Mot. Summ. J. at 8
(citing Affidavit of Kathryn G. Sapnas, M.D., at 14:18-17:6;
18:11-19:12, Def.’s Mot. Summ. J. Ex. 6, ECF No. 29-2). As to
the second vacancy, Defendant offers the following legitimate,
non-discriminatory reasons why the selection panel unanimously
chose Susan Blake for the Registered Nurse-Infection Control
Ms. Blake “had leadership experience, and had
surpassed all of the other candidates”;
Prior to being selected for this position, Ms.
Blake held the position of Associate Chief, Nursing
Service for Operations, in the Louisville, Kentucky
VAMC, where she “was responsible for the infection
Def.’s Mot. Summ. J. at 8-9. 2
In response to Defendant’s motion for summary
judgment, Plaintiff points to four “material facts” that she
claims are in dispute:
“[T]he first vacancy announcement was to be ‘open
until filled,’” Pl.’s Resp. to Def.’s Mot. Summ. J. at
2, ECF No. 32-1;
“[I]n the 34 years of employment as a Registered
Nurse at [the Agency], this was the first time that
announcement had been cancelled,” id.;
“[F]or 20 days after [Vacancy Announcement No.
95-2010] had been cancelled, the selecting official
had no knowledge that the announcement had been
cancelled,” id.; and
“[The VA] was to have made the selection for the
Announcement No. 305-10] by August 6, 2010, prior to
the retirement in October, 2010, of . . . the then
current incumbent of the position to be filled.” Id.
None of these “material facts,” however, casts doubt upon the
VA’s legitimate, non-discriminatory reasons for cancelling the
first vacancy and hiring someone other than Plaintiff to fill
the second. Plaintiff’s speculation and subjective assessment of
Plaintiff, in contrast, “received the lowest interview
score among all candidates interviewed for the position,” and,
“[a]t the time [she] applied for both Registered Nurse-Infection
Control positions, . . . she did not have any infection control
job responsibilities, nor did she have any supervisory
responsibilities.” Id. at 9.
her own qualifications do not suffice as evidence suggesting
that any of the VA’s actions were grounded in unlawful
retaliation rather than the reasons they proffered. Accordingly,
even accepting as true Plaintiff’s version of all of these
facts, Plaintiff has not met her burden to show “both that the
reason[s] [were] false, and that discrimination was the real
reason” that she was not selected for the positions she sought.
Fuentes, 32 F.3d at 763 (emphasis omitted) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
Insofar as Plaintiff takes issue with the selection
panel’s evaluation of her qualifications for the Registered
Nurse-Infection control position listed in Job Announcement No.
305-10, 3 these contentions are wholly unsupported by any evidence
on the record, and, in any event, do not carry Plaintiff’s
burden to prove pretext. Plaintiff does not contend that Susan
Blake was unqualified for the infection control nurse positions,
nor that Plaintiff’s qualifications were superior to Ms.
Blake’s. Moreover, even assuming arguendo that Plaintiff’s
In her counterstatement of material facts, Plaintiff
suggests that “[D]efendant produced no evidence that Finizie’s
lack of current infection control experience in any way impacted
on her ability to perform the function,” that “the interview
questions upon which the rating[s] [of candidates] were based
were not performance-based questions,” and that “Ms. Bla[k]e was
not certified in infection control when she assumed the interim
position as infection control coordinator.” Pl.’s Resp. to
Statement of Material Facts Supporting Mot. Summ. J. ¶¶ 14, 18,
criticisms of the selection panel’s methodology are valid, these
criticisms do not reveal “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in
Defendant’s proffered legitimate reasons for its actions, such
that “a reasonable factfinder could rationally find [those
reasons] ‘unworthy of credence.’” Fuentes, 32 F.3d at 765
(emphasis omitted) (quoting Ezold, 983 F.2d at 531). The same
holds true for Plaintiff’s criticisms of the VA’s decision to
cancel Vacancy Announcement No. 95-2010; Plaintiff’s opinion
that this cancellation was unusual--let alone “wrong or
mistaken,” id.--does not discredit the VA’s proffered reason for
For the foregoing reasons, the Court will grant
Defendant’s motion for summary judgment, dismiss both counts of
Plaintiff’s complaint, and enter judgment in favor of Defendant
in this case. An appropriate order and judgment follow.
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