United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR
Gail Dein United States Magistrate Judge
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.
STATEMENT OF FACTS
following facts are undisputed unless otherwise indicated.
Employment with the VA
began working in 2007 as a Certified Nursing Aide for the VA
in Bedford, Massachusetts. (PF ¶ 5; DF ¶
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).
First Request for An Accommodation
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).
about April 2014, the VA granted Plaintiff's
accommodation, which went into effect on March 28, 2014. (DF
¶ 11). 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.).
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 ¶
Plaintiff also contends that some of these same white
coworkers made fun of her accent, food, and disability. (PR
¶ 16). 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).
Second Request for An Accommodation
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 ¶
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
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).
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
EEO Complaints and Termination of Employment
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). 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).
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).
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).
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.).
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).
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).
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).
facts will be provided below where appropriate.
Standard of Review - Summary Judgment
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).
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
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)).
Exhaustion of Administrative
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. This Court agrees in part. While
Plaintiff satisfied the exhaustion ...