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Bangura v. Shulkin

United States District Court, D. Massachusetts

September 26, 2018



          Judith Gail Dein United States Magistrate Judge


         The Plaintiff, Rosaline Bangura, has brought this action against her former employer, the Department of Veteran Affairs, through its Secretary (collectively, the “VA”), raising a number of claims of discrimination and retaliation in connection with her work as a Certified Nursing Aide, and contending that she stopped going to work, and was constructively discharged, as a result of a hostile work environment. The VA denies any liability, and asserts that the termination of Ms. Bangura's employment, a year after she stopped reporting to work, was due to her failure to come to work or to follow the VA's leave policy. This matter is before the Court on “Defendant's Motion for Summary Judgment” (Docket No. 56) and on “Plaintiff's Request for Entry of Summary Judgment in Her Favor.” (Docket No. 68). In their motions, each of the parties contends that it is entitled to judgment as a matter of law. For the reasons detailed herein, the Defendant's motion is ALLOWED, and the Plaintiff's Motion is DENIED.


         The following facts are undisputed unless otherwise indicated.

         Plaintiff's Employment with the VA

         Plaintiff began working in 2007 as a Certified Nursing Aide for the VA in Bedford, Massachusetts. (PF ¶ 5; DF ¶ 1).[2] Plaintiff is an African American woman of Sierra Leone origin. (PF ¶ 4). As a Certified Nursing Aide, Plaintiff worked the evening shift of 4:00 p.m. to 12:00 a.m. and Plaintiff's job performance generally met the VA's expectations, with some exceptions. (Id. ¶ 31; DR ¶ 82). While at the VA, Plaintiff's nurse manager and managing official was Barbara Mueller (“Ms. Mueller”), the nurse in charge was Ann Goulet (“Ms. Goulet”), and the director of nursing in 2014 and 2015 was Mary-Ann Petrillo (“Ms. Petrillo”). (DR ¶ 6). Plaintiff suffers from severe arthritis, high blood pressure, and other health ailments that substantially limit her ability to perform major life activities. (PF ¶¶ 25, 73). Plaintiff took leave under the Family and Medical Leave Act from August 14, 2013 to January 14, 2014. (PF ¶ 8; DR ¶ 8).

         Plaintiff's First Request for An Accommodation

         In late March 2014, after Plaintiff returned from leave, she applied for a reasonable accommodation for her disabilities. (DF ¶ 8; PF ¶ 9). Plaintiff submitted two medical letters to support her request. (Pl. Ex. D; Def. Ex. D). The first letter, from Dr. Wen Yee Lee, dated January 7, 2014, stated that Plaintiff “may return to work, working no more than 40 hours/week with no restrictions, on 1/20/2014.” (DF ¶ 9). The second letter from Dr. Wen Yee Lee, dated April 3, 2014, stated that Plaintiff suffered from osteoarthritis of both knees and “[s]he can not work more than 8 hours per day.” (Pl. Ex. D). Plaintiff made the doctor's advice known to Defendant and, specifically, to Ms. Mueller, Ms. Goulet, and Ms. Petrillo. (PF ¶ 11).

         In or about April 2014, the VA granted Plaintiff's accommodation, which went into effect on March 28, 2014. (DF ¶ 11).[3] The parties dispute the level of enforcement of the reasonable accommodation. (PF ¶ 13; DR ¶ 13). Plaintiff asserts that her workplace became difficult because she was forced to work more than forty hours per week or eight hours per shift and had to stay to cover later shifts. (PF ¶¶ 13, 15; Pl. Ex. A at 2-3). She has offered no support for her claim of working additional hours other than her own, generalized, statement. Defendant contends that the VA did not schedule Plaintiff to work more than 40 hours per week after January 14, 2014 and no more than eight hours per shift after April 1, 2014. (DR ¶ 13). The VA's assertion is supported by the Plaintiff's timecards. (Id.).

         Between May 28, 2014 and May 31, 2014, three of Plaintiff's white coworkers filled out separate “Reports of Contact” about an incident on their floor with Plaintiff on May 28, 2014. (See Def. Ex. E). The reports provided that Plaintiff was disruptive, loud, upset the patients, and used her phone in the patient care area. (Id.; DF ¶¶ 13-15). Plaintiff contends that all of these reports were false and that Ms. Mueller and Ms. Goulet convinced her coworkers to write these reports against her. (PR ¶¶ 13-16; PF ¶ 16).[4] Plaintiff also contends that some of these same white coworkers made fun of her accent, food, and disability. (PR ¶ 16).[5] All the coworkers have sworn under oath that they did not ridicule Plaintiff or write false reports against her. (DR ¶ 97). Plaintiff contends that this behavior contributed to creating a hostile work environment, and that the events of May 2014, as well as the hours she worked, would be evidenced on surveillance tapes from cameras on the floor where she worked. (See Pl. Mem. (Docket No. 73) at 19 (“defendants have suppressed the production of the recordings of the surveillance cameras because their conducts are discriminatory and allegations against plaintiff, and their explanations are tissues of lies, untrue and pretextual.”)). However, the VA has attested to the fact that the surveillance cameras were not installed until several years after the events at issue. (DR ¶¶ 57-58; Docket No. 79-1).

         Plaintiff's Second Request for An Accommodation

         Following the reports of the May 28, 2014 incident, nursing leadership recommended that Plaintiff change shifts and Ms. Mueller reassigned Plaintiff to work the day shift, starting on June 3, 2014 at 7:30 a.m. (DF ¶¶ 16-17). The parties dispute the purpose of the shift change. (DF ¶ 18; PR ¶ 18). Plaintiff contends the purpose was retaliatory and discriminatory because Plaintiff complained about bullying and because Ms. Mueller told Plaintiff that her white coworkers did not want to work with her. (PR ¶ 16).[6] Defendant contends that the purpose of the shift change was to place the Plaintiff with more supervisors who could better evaluate and educate her, because there was not enough staff on the evening shift to correct employee behavior. (DF ¶¶ 18-19).

         On June 3, 2014, Plaintiff did not arrive to work her first day shift. (Id. ¶ 21). On June 5, 2014, Plaintiff requested that she be returned to the evening shift and reassigned to another floor. (Id. ¶ 22; PF ¶ 24). Plaintiff alleges that she informed the Defendant that “it would be against her health conditions to work on the morning shifts.” (PF ¶ 30). To support her request, Plaintiff provided a letter from a physician's assistant, dated June 4, 2014, that stated, “the structure during the evening could make her less fatigued and she would be more fully functional that [sic] working during day shift.” (DF ¶ 23; Pl. Ex. E). The VA did not grant Plaintiff's second accommodation request. (Id. ¶ 24). Plaintiff contends that the VA's denial of her request for accommodation was retaliatory and discriminatory. (PF ¶ 51). Plaintiff also asserts that the Defendant threatened Plaintiff that she would be arrested if she came to work on the evening shift. (Id. ¶ 30). Defendant disputes Plaintiff's allegations and contends that the VA did not grant her request because the letter was not sufficient to support the change to the evening shift, and the shift change was intended to be temporary. (DR ¶¶ 51, 55).

         Plaintiff never returned to work after June 3, 2014. (DF ¶ 26). The Plaintiff contends that she was constructively discharged as of June 8, 2014. (PF ¶ 2; PR ¶ 30). The Defendant contends that she never resigned, and was eventually terminated on July 6, 2015, effective June 26, 2015, for failing to come to work or to request leave. (DF ¶ 40).

         Plaintiff's EEO Complaints and Termination of Employment

         On June 11, 2014, Plaintiff met with the Equal Employment Opportunity (“EEO”) Manager at the VA, Deborah Outing (“Ms. Outing”), regarding her discrimination claims. (DF ¶ 27). According to Ms. Outing, she advised Plaintiff that she would need to contact the ORM within forty-five days of the incident to start the EEO complaint procedure. (Id. ¶ 28). Ms. Outing was the appropriate contact for the settlement of non-EEO issues only. (Id. ¶ 4). On June 24, 2014, Ms. Mueller called Plaintiff and told her “she was a VA employee who was expected to report to work unless she was requesting leave.” (Id. ¶ 30). On June 25, 2014, Plaintiff submitted a complaint of discrimination to Ms. Outing at the EEO (the “June 2014 Complaint”) and, according to Ms. Outing, she again explained to the Plaintiff the appropriate process for filing complaints with the ORM. (Id. ¶ 29).[7] On June 27, 2014, Plaintiff also submitted a request to transfer to another ward to Ms. Mueller, copying Ms. Petrillo and a union representative. (Id. ¶ 31). On the same day, the VA deemed Plaintiff to be away without leave (“AWOL”). (Id. ¶ 32).

         In a letter dated July 2, 2014, the VA notified Plaintiff of a proposal to suspend her for five days starting on August 18, 2014 for inappropriate conduct, patient abuse, using a cellphone in a patient area, and being AWOL. (Id. ¶ 33). As part of the proposal for suspension, the VA took into account a prior incident from 2013 with a charge nurse, Wayne Baptiste (“Mr. Baptiste”), who reported Plaintiff for raising her voice to a patient. (Id. ¶ 5; Def. Ex. H at 5). He also reported that Plaintiff resisted attempts to “re-educate her on communication techniques.” (DF ¶ 5). Plaintiff asserts that the incident was falsified and that Mr. Baptiste had taunted her. (PF ¶ 95). As a result of this incident, the VA issued Plaintiff an Admonishment for her behavior. (DF ¶ 7).[8]

         On July 21, 2014, the Plaintiff having failed to return to work, the VA suspended her and notified her of her appeal rights. (Id. ¶ 34). In November 2014, the VA sent a letter to Plaintiff proposing her termination because of her continued AWOL status and failure to follow leave procedures. (Id. ¶ 36).[9]

         On October 16, 2014, Plaintiff had informal counseling with the ORM about her complaints of discrimination based on denied reasonable accommodation, suspension, and hostile work environment. (Id. ¶ 35). At that time she did not allege a constructive discharge, just a suspension on August 18, 2014. (Def. Ex. L). On January 12, 2015, the ORM sent Plaintiff's counsel a letter acknowledging their informal meeting and informing Plaintiff of her option to file a formal complaint of discrimination with the ORM. (Id.; DF ¶ 37). On January 26, 2015, Plaintiff filed a discrimination complaint (the “January 2015 Complaint”) with the ORM. (DR ¶ 53; Def. Ex. M). She alleged discrimination, including “suspension and constructive termination” on August 18, 2014, and claimed that she had been denied reasonable accommodation on June 5, 2014, improperly suspended on August 18, 2014, and subjected to a hostile work environment between May 28, 2014 and May 31, 2014. (Id.).

         On April 9, 2015, the ORM provided Plaintiff, through her counsel, with a Notice of Partial Acceptance of certain claims alleged in the January 2015 Complaint. (DF ¶ 39; Def. Ex. N). The ORM accepted part of Plaintiff's discrimination complaint under a hostile work environment claim pertaining to her allegations against her co-workers and her AWOL status between September 2, 2014 and October 17, 2014. (Id.). The ORM dismissed her accommodation claim (denial of request to remain on an eight hour-evening shift) for failure to properly initiate contact with an EEO counselor within forty-five days of the incident, but agreed to consider the event as part of her overall hostile work environment claim. (Id.). The ORM also noted that Plaintiff's constructive discharge claim was not properly raised with an EEO counselor and that the ORM “will not be framing this matter as a constructive discharge claim.” (DF ¶ 39; Def. Ex. N at 1).

         Once the ORM accepts any feasible claims, it assigns those claims to an impartial investigator to obtain evidence from the complainant and compile an investigative file. (Def. Ex. N at 4). An investigator is only authorized to investigate the claims accepted by ORM. (Id.) On August 13, 2015, the Plaintiff requested leave to amend her Complaint, which was granted, to add additional claims that she was subjected to a hostile work environment based on disability, race, national origin and reprisal. (See DF ¶¶ 42-43; Def. Ex. P at 2-3). Upon completion of its investigation, the ORM issued a Final Agency Decision in February 2016. (Def. Ex. Q). The ORM found in favor of the VA on all claims, specifically finding no disparate treatment (id. at 11-12), no discrimination (id. at 13-14) and that Plaintiff's hostile environment-harassment claim “consists of only her dissatisfaction with job-related events” that did “not rise to the level of harassment as defined under federal EEO law.” (Id. at 14). The Plaintiff was advised of her right to file a case in court. (Id. at 15-16).

         On July 6, 2015, the VA terminated Plaintiff's employment, effective June 26, 2015. (DF ¶ 40). Plaintiff disputes the validity of the termination because she alleges she was constructively discharged on or about June 8, 2014. (PR ¶¶ 30, 40).

         Additional facts will be provided below where appropriate.

         III. ANALYSIS

         A. Standard of Review - Summary Judgment

         “The role of summary judgment is ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” PC Interiors, Ltd. v. J. Tucci Constr. Co., 794 F.Supp.2d 274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)) (additional citation omitted). The burden is upon the moving party to show, based upon the discovery and disclosure materials on file, and any affidavits, “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]n issue is ‘genuine' if it ‘may reasonably be resolved in favor of either party.'” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). “A fact is ‘material' only if it possesses the capacity to sway the outcome of the litigation under the applicable law.” Id. (quotations, punctuation and citations omitted).

         “Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue.” PC Interiors, Ltd., 794 F.Supp.2d at 275. The opposing party can avoid summary judgment only by providing properly supported evidence of disputed material facts. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). Accordingly, “the nonmoving party ‘may not rest upon mere allegation or denials of his pleading[, ]'” but must set forth specific facts showing that there is a genuine issue for trial. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). The court affords “no evidentiary weight to conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.” Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (internal quotations and citation omitted). Rather, “[w]here, as here, the nonmovant bears the burden of proof on the dispositive issue, it must point to ‘competent evidence' and ‘specific facts' to stave off summary judgment.” Id. (citation omitted).

         “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int'l Group, Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). “When facing cross-motions for summary judgment, a court must rule on each motion independently, deciding in each instance whether the moving party has met its burden under Rule 56.” Peck v. City of Boston, 750 F.Supp.2d 308, 312 (D. Mass. 2010) (quoting Dan Barclay, Inc. v. Stewart & Stevenson Servs., Inc., 761 F.Supp. 194, 197-98 (D. Mass. 1991)).

         B. Exhaustion of Administrative Remedies[10]

         Defendant contends that Plaintiff is barred from bringing Counts I, IV, VI, and IX because Plaintiff failed to exhaust her administrative remedies by contacting an EEO counselor within forty-five days after the alleged discriminatory acts.[11] This Court agrees in part. While Plaintiff satisfied the exhaustion ...

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