Shen v. Secretary United States Department of Veterans Affairs
MEMORANDUM OPINION AND ORDER GRANTING 29 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 30 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Chief Judge Gina M. Groh on 6/8/2017. (cmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:16-CV-1
ROBERT A. MCDONALD, Secretary,
U.S. DEPARTMENT OF VETERANS AFFAIRS,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Currently before the Court are the Defendant’s Motion for Summary Judgment
[ECF No. 29] and the Plaintiff’s Motion for Partial Summary Judgement [ECF No. 30],
both filed on March 31, 2017. Thereafter, both parties filed responses [ECF Nos. 32 &
33] and replies [ECF Nos. 35 & 36].
Doctor Ning Shen (“Dr. Shen”) brings this action against the Department of
Veterans Affairs (“VA”) pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”).
Specifically, in her amended four-count complaint, Dr. Shen alleges wrongful termination;
deliberate idling; hostile work environment and breach of settlement agreement. The
United States Department of Veterans Affairs (“Defendant”), argues that Dr. Shen was
terminated for doing clinical work without privileges. The Defendant further argues that
Dr. Shen’s other claims are also without merit, and therefore, it is entitled to summary
judgment as a matter of law.
Early in 2008, Dr. Shen became a full-time employee at the Veterans
Administration Medical Center (“VAMC”) located in Martinsburg, West Virginia. In 2009,
she began pursuing an equal employment opportunity (“EEO”) complaint against the
The 2009 EEO claim resulted in Dr. Shen and the VAMC entering into a
settlement agreement before an administrative law judge on April 17, 2013.
agreement provided that Dr. Shen would be reassigned to the compensation and pension
(“C&P”) department of the VAMC to work as a C&P physician reviewer—a new, unique
position created specifically for Dr. Shen as a result of the settlement. The agreement
further specified that Dr. Shen’s new position “grants [her] credentials as a physician at
the VA Medical Center in Martinsburg, West Virginia, but not privileges.” ECF No. 29-24
at 7; see also ECF No. 30-1 at 3. The agreement also stipulated that “[a]s a physician,
[Dr. Shen] will have $1,000 education pay annually.” ECF No. 29-24 at 7.
On August 22, 2013, Dr. Shen alleged that the settlement agreement was not
enforceable, and in the event it was enforceable, the VA had breached it. The VA’s Office
of Resolution Management issued a final agency decision on October 30, 2013, finding
that the agreement was enforceable and “that the agency has complied with all of the
terms contained” therein. ECF No. 29-27 at 7. Dr. Shen timely appealed the decision to
the Equal Employment Opportunity Commission (“EEOC”). The EEOC found that “the
crux of [Dr. Shen’s] claim of breach is her dissatisfaction with the position she agreed to
in the settlement agreement while she was represented by [an] Attorney.” ECF No. 29-
28 at 4. On April 9, 2014, the EEOC concluded that the VA did not breach the settlement
agreement. Id. at 4–5.
Before the EEOC’s decision, Dr. Shen’s direct supervisor, Deborah Bennett, D.O.,
authored a memorandum memorializing conversations with Dr. Shen and Dr. Veronice
Gardner regarding whether Dr. Shen was performing Acceptable Clinical Evidence
(“ACE”) “exams.” 1 The essence of Dr. Bennett’s April 3, 2014 memorandum is that both
doctors told Dr. Bennett that Dr. Shen was performing ACE reviews that Dr. Gardner
would then review and sign. See ECF No. 29-29.
On June 23, 2014, Dr. Shen received a proposed discharge letter, signed by her
supervisor, Dr. Bennett. The letter charged Dr. Shen with “performing ACE clinical
reviews without clinical privileges.” See ECF Nos. 29-30; 30-22. The letter further
specified, “[b]eginning in or about October 2013 you have performed Acceptable Clinical
Evidence (ACE) clinical review examinations for the Compensation and Pension Clinic.
This is a patient-related duty that is assigned to a credentialed and privileged physician.
You lack privileges at this facility and performing ACE clinical review examinations is
outside of the scope of your functional statement.” On July 7, 2014, Dr. Shen, by counsel,
replied to the proposed discharge letter in writing. ECF No. 30-19.
On August 5, 2014, Dr. Shen contacted the VA’s ORM for equal employment
opportunity (“EEO”) counseling. See ECF No. 30-21. The VA ORM informed the VAMC’s
Director, Timothy Cooke, of Dr. Shen’s EEO counseling by email sent on August 15, 2014.
Id. On August 19, 2014, Mr. Cooke issued Dr. Shen a last chance agreement (“LCA”).
ECF No. 30-22. The LCA explained that Mr. Cooke determined the misconduct charged
The evidence in this case is clear that “exam” is a misnomer; given the actual work performed, review is
a more appropriate term.
in the proposed termination letter should be sustained. Further, he explained termination
is the appropriate traditional penalty for the sustained charge. However, Mr. Cooke
offered Dr. Shen a chance to avoid termination, if she agreed to the terms contained
within the LCA. Specifically, the VAMC and Dr. Shen would agree that Dr. Shen admitted
to the sustained charge; the traditional discipline would be removal; Dr. Shen would
voluntarily withdraw all complaints, grievances, and other causes of action against the
VA; the LCA would stay in Dr. Shen’s personnel folder for two years; Dr. Shen would
serve a thirty-day suspension; any future misconduct by Dr. Shen within the two-year
period could result in her termination and Dr. Shen understood and voluntarily agreed to
the LCA. Id. Dr. Shen declined to accept the LCA.
By letter dated September 9, 2014, Mr. Cooke informed Dr. Shen that she was
being discharged from federal employment effective September 11, 2014, which was the
same date Dr. Shen signed and received the letter. ECF No. 30-18.
On September 18, 2014, Dr. Shen filed a second formal EEO complaint with the
Department of Veterans Affairs Office of Resolution Management; however, a final
agency decision never issued because Dr. Shen filed the instant action on January 4,
2016. ECF No. 29-31 at 3; ECF No. 1.
III. STANDARDS OF REVIEW
Pursuant to Rule 56, summary judgment is appropriate when 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the
Court must conduct “the threshold inquiry of determining whether there is the need for a
trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its
burden to show an absence of material fact, the party opposing summary judgment must
then come forward with affidavits or other evidence demonstrating there is indeed a
genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323–35; Anderson, 477
U.S. at 248. “Conclusory or speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving party’s] case.” Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quotations omitted). “If the evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249 (citations omitted).
“A plaintiff lacking direct evidence of retaliation may utilize the McDonnell Douglas
Corp v. Green, 411 U.S. 792 . . . (1973), framework to prove a claim of retaliation. Price
v. Thompson, 380 F.3d 209 (4th Cir. 2004) (citing Williams v. Cerebronics, Inc., 871 F.2d
452, 457 (4th Cir. 1989)). To avoid summary judgment under the McDonnell Douglas
framework, a Title VII plaintiff “after establishing a prima facie case of discrimination,
demonstrates that the employer’s proffered permissible reason for taking an adverse
employment action is actually a pretext for discrimination.” Diamond v. Colonial Life and
Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (quoting Hill v. Lockheed Martin Logistics
Management, Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)).
“The McDonnell Douglas framework is a three-step burden-shifting framework
used by Title VII plaintiffs who lack direct evidence of retaliatory discrimination.” Foster
v. University of Maryland-Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015) (citing
Diamond, 416 F.3d at 318). To prevail under McDonnell Douglas, a plaintiff “must first
establish a prima facie case by showing: (i) that [she] engaged in protected activity, (ii)
that [her employer] took adverse action against [her], and (iii) that a causal relationship
existed between the protected activity and the adverse employment activity.” Foster, 787
F.3d at 250 (internal quotation marks omitted) (quoting Price v. Thompson, 380 F.3d 209,
212); see also King v. Rumsfeld, 328 F.3d 145, 150–51 (4th Cir.), cert. denied, 540 U.S.
1073 (2003). However, “once an employer rebuts the prima facie case with a legitimate,
nondiscriminatory reason for the employment action, ‘the McDonnell Douglas
framework—with its presumptions and burdens—disappear[s], and the sole remaining
issue [is] discrimination vel non.” Diamond, 416 F.3d at 318 (alterations in original)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43 (2000)).
Upon satisfying the first two prongs of the McDonnell Douglas framework, the
inquiry focuses on causation. Specifically, a plaintiff must show that a causal relationship
existed between the protected activity and the adverse employment action. Id. Further,
a plaintiff “must establish causation at two different stages of the McDonnell Douglas
framework: first, in making a prima facie case, and second, in proving pretext and
satisfying her ultimate burden of persuasion.” Foster, 787 F.3d at 250.
In Foster, the Fourth Circuit considered how the Supreme Court of the United
States’ decision in Nassar impacted the causation requirements under McDonnell
Douglas. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013). In Nassar,
the Supreme Court concluded that “Title VII retaliation claims must be proved according
to traditional principles of but-for causation[, which require] proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.” 133 S.Ct. at 2533.
Upon examining the Supreme Court’s analysis in Nassar, the Foster Court
declined to “apply a heightened ‘but-for’ standard to the causation prong of a prima facie
case of retaliation.” Mohammed v. Central Driving Mini Storage, Inc., 128 F. Supp. 3d
932 (4th Cir. 2015) (citing Foster, 787 F.3d at 250–51). The Foster Court reasoned that
if the Supreme Court “intended to retire McDonnell Douglas and set aside 40 years of
precedent, it would have spoken plainly and clearly to that effect.” 787 F.3d at 251.
Accordingly, the Fourth Circuit holds “that Nassar does not alter the causation prong of a
prima facie case of retaliation.” 787 F.3d at 251. Therefore, it remains that “the burden
for establishing causation at the prima facie stage is ‘less onerous.’” Id. (quoting Williams,
871 F.2d at 457).
“Generally speaking, temporal evidence alone cannot establish causation for a
prima facie case of retaliation, unless the ‘temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action’ was ‘very close.’”
Shields v. Fed. Express Corp., 120 F. App’x 956 (4th Cir. 2005) (quoting Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (finding district court’s summary
judgment order in favor of employer appropriate where plaintiff failed to establish any
causal connection); see also Lyons v. Shinseki, 454 F. App’x 181 (4th Cir. 2011). Indeed,
“a causal connection for purposes of demonstrating a prima facie case exists where the
employer takes adverse employment action against an employee shortly after learning of
the protected activity.” Price, 380 F.3d at 213 (emphasis added).
Once a plaintiff establishes a prima facie case of retaliation, she “bears the ultimate
burden of persuading the court that [she] has been the victim of intentional [retaliation].”
Foster, 787 F.3d 243, 252 (quoting Hill, 354 F.3d at 285). Thus, to carry her burden, “a
plaintiff must establish ‘both that the [employer’s] reason was false and that [retaliation]
was the real reason for the challenged conduct.’” Id. (alterations in original) (quoting
Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995). McDonnell
Douglas “has long demanded proof at the pretext stage that retaliation was a but-for
cause of a challenged adverse employment action[,]” and Nassar has not altered how a
retaliation claim is adjudicated under McDonnell Douglas. 787 F.3d at 252.
IV. CONTENTIONS OF THE PARTIES
In her motion for partial summary judgment, Dr. Shen avers that she is entitled to
judgment as a matter of law as to count one of her amended complaint. In the alternative,
the Plaintiff argues that this Court should find she has established a prima facie case of
retaliation. Conversely, the Defendant filed a motion for summary judgment, contending
that all four of the Plaintiff’s claims necessarily fail as a matter of law. Both parties’
arguments are outlined below.
a. Dr. Shen’s Motion for Partial Summary Judgment
According to Dr. Shen, this “Court should grant partial summary judgment because
the undisputed facts establish that (1) Dr. Shen engaged in protected activity, (2) Dr. Shen
suffered an adverse action, (3) the evidence raises an inference of unlawful causation,
and (4) no reasonable person could conclude that the charge stated in the June 23, 2014
proposed termination was the actual reason Mr. Cooke terminated Dr. Shen’s
employment.” ECF No. 30-1 at 17.
Dr. Shen asserts it is uncontroverted she engaged in protected activity and
suffered a materially adverse action. Turning then to causation, Dr. Shen argues it is
established by the “very close temporal proximity” between when Mr. Cooke learned of
her protected activity and when he decided to terminate her employment and his “knowing
violation of his duty to ensure the termination was not motivated by retaliatory animus.”
Id. at 18.
Moreover, Dr. Shen argues that no reasonable person could believe that Mr.
Cooke terminated her because she performed ACE reviews without privileges.
Specifically, Dr. Shen claims that she did not perform any duty that required privileges,
and regardless, none of the evidence Mr. Cooke considered in making the termination
decision indicated that Dr. Shen had performed any function requiring privileges.
In response to Dr. Shen’s motion for partial summary judgment, the Defendant
contends that causation has not been established because the VAMC issued her
proposed removal prior to the EEO activity she claims was the cause for retaliation. The
Defendant also asserts that Mr. Cooke upheld his duty to ensure Dr. Shen’s termination
was not retaliatory, and a reasonable jury could find that Dr. Shen was terminated for
conducting ACE reviews without privileges.
Dr. Shen first notes that the Defendant does not dispute that she satisfied the first
two prongs in making a prima facie case, and then, Dr. Shen argues that the Defendant
has failed to raise a genuine dispute of material fact regarding causation. Specifically,
she avers that “the undisputed facts still show” very close temporal proximity, Mr. Cooke
breached his duty to Dr. Shen and no reasonable jury could believe that Mr. Cooke
terminated Dr. Shen based on the allegations charged against her.
b. The Defendant’s Motion for Summary Judgment
In its motion for summary judgment, the Defendant argues that all four of Dr.
Shen’s claims are without merit: Dr. Shen’s (1) retaliatory termination claim fails because
she cannot establish that her EEO activity was the but-for cause of her termination; (2)
deliberate idling claim fails because she agreed to accept her position as a term of her
settlement agreement and the Defendant, or anyone else for that matter, had no control
over the amount of work available to her each day; (3) retaliatory hostile work environment
claim fails because the conduct she alleges does not meet the standard of being severe
and pervasive; and (4) breach of settlement agreement claim fails because this Court
lacks subject matter jurisdiction, as this argument has not been administratively
exhausted, and, in the alternative, the VAMC has not breached the agreement.
Elaborating on the first claim, the Defendant concedes that Dr. Shen engaged in
protected EEO activity, beginning in August 2009, and that her termination meets the
definition of an adverse action. However, the Defendant argues that “Plaintiff cannot
establish that her EEO activity was a but-for cause of her termination.” ECF No. 29-1 at
10. The Defendant acknowledges that Dr. Shen can offer temporal proximity to support
a prima facie case of retaliation, but insists that no such temporal proximity exists in this
case. Further, the Defendant avers that the VAMC had a legitimate nondiscriminatory
basis for Dr. Shen’s termination. Namely, that she admitted she was providing ACE
clinical reviews without the required privileges.
As to Dr. Shen’s deliberate idling claim, the Defendant asserts that neither the
VAMC nor any person “had any control over how many 2507[ forms] were laying on the
fax machine each day.” 2 ECF No. 29-1 at 13. Accordingly, the amount of work available
to Dr. Shen would vary from day to day, and the VAMC acknowledges that she “did not
have a lot of work to do.” Id. However, this was the first time the VAMC had to find work
for a physician who lacked privileges. Regardless, Dr. Shen entered into a settlement
agreement specifying that she would not have privileges, she would take on this new role
and continue to receive a physician’s salary.
Next, the Defendant states that the retaliatory hostile work environment claim must
fail because the conduct Dr. Shen claims created a hostile work environment falls short
of being severe and persuasive. Further, the Defendant contends that none of the actions
or conditions cited by Dr. Shen were physically threatening, humiliating or frequent.
Finally, the Defendant argues that this Court lacks subject matter jurisdiction to
consider Dr. Shen’s fourth claim—that the VAMC breached the settlement agreement—
because Dr. Shen has not yet exhausted her administrative remedies. Specifically, the
Defendant contends that Dr. Shen failed to include this count in any of the administrative
proceedings during her second EEO case. Alternatively, the Defendant asserts that this
Court should still dismiss count four because the VAMC did not breach the settlement
Dr. Shen’s job at the VAMC was to review 2507 forms, determine how much time was needed for various
exams, and provide that information to the clerks who scheduled the exams. See ECF No. 30-1 at 5.
At the outset of her response, Dr. Shen notes that causation is the only issue in
dispute regarding her wrongful termination claim. She argues that a prima facie case of
retaliatory discrimination has been established solely by the “very close temporal
proximity between Mr. Cooke’s knowledge of Dr. Shen’s EEO activity and his decision to
sustain the charges.” ECF No. 33 at 20. For the first time, Dr. Shen advances causation
under Staub. See Staub v. Proctor, 562 U.S. 411 (2011). Namely, Dr. Fierer had a
retaliatory motive, and he influenced Mr. Cooke’s decision. Additionally, or alternatively,
Dr. Shen avers that management at the VAMC violated various policies, which also
establishes a prima facie case of retaliatory discrimination.
Responding to the Defendant’s arguments regarding the deliberate idling claim,
Dr. Shen contends that the settlement agreement permitted the VAMC to assign her more
than one clerical task; however, the VAMC chose to assign her only one task.
As to the breach of settlement agreement claim, Dr. Shen avers that this Court has
jurisdiction. Specifically, Dr. Shen contends that she appropriately followed the statutorily
proscribed procedure, and her claim is properly before this Court. Moreover, she claims
the VAMC breached the agreement by failing to place her in a physician’s position, pay
her $1,000 in education pay and provide her credentials as a physician.
Finally, Dr. Shen argues that genuine issues of material fact exist concerning her
hostile work environment claim. Based upon the lack of work provided to her, office
gossip, being omitted from an organizational statement and being told she was not a
doctor, Dr. Shen asserts that a jury could find she was subjected to humiliating and
pervasive treatment, which created a hostile work environment.
In its reply, the Defendant only addressed Dr. Shen’s argument that the VAMC
breached the settlement agreement between the parties. The Defendant avers that it has
complied with the terms of the settlement agreement, and Dr. Shen is simply “mincing
words.” ECF No. 36 at 2.
The first issue before the Court is whether Dr. Shen has adequately presented a
prima facie case of retaliatory discrimination. To establish her prima facie case, Dr. Shen
must satisfy the three-prong test laid out in McDonnell Douglas. Specifically, Dr. Shen
must establish that she engaged in protected activity, her employer took adverse action
against her and a causal relationship existed between the protected activity and the
adverse employment action. Here, both parties acknowledge that the first two prongs
have been satisfied, and upon a review of the record, this Court finds that Dr. Shen did
engage in protected activity and the VAMC took adverse action against her.
The sole issue before this Court regarding Dr. Shen’s retaliation claim is whether
causation exists. 3 The parties generally agree on the timeline of events and the facts
surrounding Dr. Shen’s EEO activity and termination; however, they disagree on what
time period the Court should consider in determining whether temporal proximity gives
rise to causation. Dr. Shen urges the Court to consider the period between when Mr.
Cooke received an email from the VA’s ORM and when he gave Dr. Shen the LCA—one
To be clear, the Defendant incorrectly states Dr. Shen’s burden for establishing a prima facie case of
causation. Specifically, the Defendant argues, “Plaintiff cannot establish that her EEO activity was a ‘butfor’ cause of her termination, that ‘but-or’ her protected activity she would not have been removed from
employment. She thus fails to meet her burden of establishing a causal connection between her termination
and her EEO activity. Without the requisite causal connection she fails to establish a prima facie case of
retaliatory termination.” ECF No. 29-1 at 10. As explained more fully above, the Fourth Circuit explicitly
rejected applying the but for standard at the prima facie phase. See Foster v. University of MarylandEastern Shore, 787 F.3d 243 (4th Cir. 2015); Section III supra.
day. Conversely, the Defendant, without giving a specific timeframe, argues that the
Court should determine that the period is insufficient to find very close temporal proximity
because one of Dr. Shen’s EEO complaints had been filed five years prior and the second
complaint had yet to be filed when the proposed termination letter issued. See ECF Nos.
29-1 at 11; 32 at 10.
Given the history of Dr. Shen’s EEO activity and the VAMC’s procedures for
terminating an employee, determining the appropriate dates from which to ascertain the
correct period for this Court to consider hardly presents a clear calculation. Indeed, the
relevant period to the Court’s inquiry could conceivably be calculated different ways.
However, the Supreme Court’s decision in Breeden is instructive in this instance.
The Breeden Court explained that the court of appeals relied upon two facts when
it reversed the district court’s summary judgment award in favor the employer. 532 U.S.
268, 272 (2001). One of those facts was that the adverse action “occurred one month
after [her supervisor] learned of [the] suit. Id. (citation omitted). However, that “fact is
immaterial in light of the fact that [her employer] concededly was contemplating the
[adverse action] before it learned of the suit.” Id. To be clear, “proceeding along lines
previously contemplated, though not yet definitely determined, is no evidence whatever
of causality.” Id.
Here, the VAMC, by Dr. Bennett’s letter, proposed Dr. Shen’s termination on June
19, 2014, for conducting ACE clinical reviews without clinical privileges. Mr. Cooke’s
decision to issue the LCA and ultimately to terminate Dr. Shen proceeded along lines
previously contemplated, though not yet definitively determined, which is no evidence
whatever of causality. Accordingly, this Court finds that Dr. Shen has failed to establish
causation by temporal proximity alone.
Dr. Shen argues that policy violations committed by management at the VAMC
also establish causation. Specifically, Dr. Shen contends that Mr. Cooke participated as
both a proposing official and the deciding official, and he failed to investigate whether the
proposed termination was retaliatory in nature.
In support of her argument, Dr. Shen cites Martin v. Mecklenburg County, 151 F.
App’x 275 (4th Cir. 2005), an unpublished case, in which the Fourth Circuit considered
cross appeals after a jury found in favor of a plaintiff-employee’s Title VII retaliation claim.
It is under this procedural posture that the Martin Court stated, “[a] decisionmaker’s
inconsistent action in violation of well-established policy, rendered at the first opportunity
after becoming aware of protected conduct, provides sufficient evidence for a reasonable
jury to conclude at the very least that some consideration of this protected conduct played
a role in the contested employment decision.” Id. at 281.
Not only was the procedural posture of Martin significantly different than the case
sub judice, but also the “decisionmaker’s inconsistent action in violation of wellestablished policy” in Martin was reversing an employee review panel’s decision not to
terminate the employee even though the employer’s policies provided that the panel’s
decisions would be final and binding. See Id. at 278. Further, it is well established in this
circuit that unpublished decisions are not binding precedent. Rather, such opinions are
“entitled only the weight they generate by the persuasiveness of their reasoning.” Collins
v. Pond Creek Mining, Co., 468 F.3d 213, 219 (4th Cir. 2006) (quoting Hupman v. Cook,
640 F.2d 497, 501 n.7 (4th Cir. 1981)).
The Court finds that any policy Mr. Cooke allegedly may have violated does not
rise to the level of creating a prima facie case of causation. In his affidavit and deposition,
Mr. Cooke testified that he consulted human resources regarding the proposal and
ultimate decision to terminate, which were also authored by human resources, and he did
not consider Dr. Shen’s prior EEO activity at any time as part of his decision to terminate
her employment. See ECF Nos. 32-15 & 33-47.
Thus, Because Dr. Shen’s theories of temporal proximity and VA policy violations
by Mr. Cooke are insufficient for establishing prima facie causation, Dr. Shen has failed
to meet her burden under McDonnell Douglas, and her claim for retaliatory termination
fails as a matter of law.
Dr. Shen’s next claim is for deliberate idling—that the VAMC intentionally did not
provide her with sufficient work. The Defendant “does not dispute that Dr. Shen did not
have a lot of work to do.” ECF No. 29-1 at 13. However, the Defendant avers that it had
no control over the amount of work Dr. Shen received each day. Dr. Shen’s position
required her to review forms that were faxed to the VAMC in Martinsburg. No one at the
C&P department, VAMC or VA had any control over how many forms were received each
Moreover, the settlement agreement provided that Dr. Shen’s “position includes a
workshare or alternative work site at the DC VA Medical Center. [Dr. Shen] will work one
day a week to preform research duties.” ECF No. 29-24 at 65. Indeed, Dr. Fierer testified
that Dr. Shen “was given time to go down to the DC VA to participate in research,” but Dr.
Fierer believed that Dr. Shen “went once or twice . . . and never followed up again.” ECF
No. 33-6 at 18. Dr. Shen has not made any claim or argument that the VA precluded her
from conducting research at the DC VA, as provided in the settlement agreement, yet she
claims deliberate idling.
In short, the position Dr. Shen held is one that she, while represented by an
attorney, bargained for and agreed to as part of the settlement agreement with the VAMC,
which had no control over the volume of work she would receive any given day. Under
the circumstances, the VA had to create a unique position for this situation. The VAMC
acted reasonably and without retaliation.
In her third claim, Dr. Shen alleges that she was subjected to a retaliatory hostile
workplace. The Defendant rejects Dr. Shen’s allegation on the basis that the conduct
cited falls below the required legal standard. In response, Dr. Shen contends that she
was the subject of office gossip, once told she was not a doctor, omitted from an
organizational statement and not assigned enough work.
To adequately establish a hostile work environment claim, Dr. Shen must show
that the alleged conduct “1) was unwelcome; 2) resulted because of her gender, disability,
or prior protected activity; 3) was sufficiently severe or pervasive to alter the conditions of
her employment; and 4) was imputable to her employer.” Mullen v. Harvey, No. 3:080107, 2010 WL 454489, at *8 (S.D. W. Va. Feb. 2, 2010) (quoting Pueschel v. Peters,
577 F.3d 558, 564–65 (4th Cir. 2009).
Assuming arguendo that all of the alleged conduct was unwelcomed by Dr. Shen
and that it was a result of her prior protected activity, the Court does not find the
allegations Dr. Shen advances are sufficiently severe or pervasive enough to alter the
conditions of her employment. Surely, office gossip, a lighter work load, being omitted
from an organizational statement and being told she was not a doctor, under the
circumstances as presented in the record before this Court, do not rise to the level of
sufficiently severe and pervasive as to alter Dr. Shen’s conditions of employment.
Indeed, the allegations present infrequent incidents, which are rather mild in
nature. Further, there are no allegations of physically threatening or humiliating behavior
against Dr. Shen. Finally, it does not appear that any of the conduct alleged ever
unreasonably interfered with Dr. Shen’s work performance. Dr. Shen’s retaliatory hostile
work environment claim is without merit.
Finally, Dr. Shen avers that the Defendant breached the settlement agreement
reached in her first EEO claim by failing to reassign her to a position with duties to perform
and a place in the organizational chart; to place her in a physician’s position; failing to
provide her credentials; and failing to pay her $1,000 in education pay. As an initial
matter, the Court finds that it does have subject matter jurisdiction over this claim because
Dr. Shen has exhausted her administrative remedies.
Upon reviewing the EEOC’s decision that the VAMC did not breach the settlement
agreement, the Court finds its reasoning persuasive. See ECF No. 29-28. Similarly, the
Court finds that the EEOC correctly summarized “the crux of [Dr. Shen’s] claim of breach”
as “her dissatisfaction with the position she agreed to in the settlement agreement while
she was represented by [an a]ttorney.” Id. at 4. Indeed, as the EEOC concluded, this
Court also “cannot find that [Dr. Shen’s] subsequent displeasure with the position should
constitute breach.” Id.
Therefore, it is hereby ORDERED that the Defendant’s Motion for Summary
Judgment [ECF No. 29] is GRANTED. Dr. Shen’s Motion for Partial Summary Judgment
[ECF No. 30] is DENIED, and her complaint [ECF No. 1] is DISMISSED WITH
PREJUDICE. Accordingly, the Plaintiff’s Motion in Limine is DENIED AS MOOT. ECF
This matter is ORDERED STRICKEN from the active docket of this Court. The
Clerk of Court is DIRECTED, pursuant to Federal Rule of Civil Procedure 58, to enter a
separate Order of judgment in favor of the Defendant.
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
DATED: June 8, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?