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Burnette v. Wilkie

United States District Court, N.D. Ohio, Eastern Division

September 17, 2019

DONNA BURNETTE, Plaintiff,
v.
ROBERT WILKIE, Acting Secretary of Veterans Affairs, Defendant.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT JUDGE

         This matter is before the Court upon a Motion for summary Judgment filed by Defendant, Robert Wilkie, Acting Secretary of Veterans Affairs ("Acting Secretary Wilkie" or "Defendant"). (ECF #26).[1]Plaintiff, Donna Burnette ("Ms. Burnette" or "Plaintiff') timely filed a Memorandum in Opposition (ECF #27) and Acting Secretary Wilkie filed a Reply (ECF #30). After careful consideration of the issues and a full review of the filings and all relevant authority, Defendant's Motion for Summary Judgment is GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY[2]

         Plaintiff Donna Burnette brings this action against her former employer Defendant Robert Wilkie alleging race discrimination, retaliation and hostile work environment in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000 et seq. Plaintiff asserts Defendant discriminated and retaliated against her on the basis of race by subjecting her to unfair and inequitable discipline and a hostile work environment (Compl. ECF #1, ¶ 30-41).

         A. Plaintiffs Employment with the Veteran's Administration Medical Center

         Ms. Burnette is an African-American woman who was employed by the Department of Veterans Affairs (the "VA") for over twenty-six years. (Burnette Depo. at 7-8). She began her career as a Pharmacy Technician in September of 1990, later working as a procurement technician and controlled substance technician in or around February 2012, where she worked in that capacity until 2017. (Id. at 8). At the time of the allegations raised in the Complaint, Plaintiff worked as a procurement and controlled substances technician at a Community-Based Outpatient Clinic ("CBOC") pharmacy in Parma, Ohio. Plaintiff held this position since February 2012 and worked as a pharmacy technician since September 1990 in Brecksville. (Burnette Depo. at 12-13). When the Brecksville facility closed, Plaintiff chose to transfer to Parma as the location was closer to her home than Defendant's main campus in Wade Park. (Id.).

         As a procurement and controlled substances technician, Plaintiff was responsible for directing inventory management, ordering medications and supplies for the pharmacy, and filling prescriptions for narcotics and other controlled substances. (Burnette Depo. at 9-10). Additionally, Plaintiff performed tasks required of an outpatient or "filling" pharmacy technician, such as prescription processing under the supervision of a registered pharmacist and staffing the pharmacy intake or pick-up window as assigned. (Shihadeh Decl. ¶ 9, 10). Such tasks included filling prescriptions, assisting customers, filling the ScriptPro robot, which dispensed medication, and assisting the pharmacists when necessary. (Burnette Depo. at 11).

         Plaintiffs first-line supervisor, Joseph Severinski ("Mr. Severinski") also served as supervisor at the Parma location to two filling technicians, Sybil Carrion ("Ms. Carrion") and Brandy Spring ("Ms. Spring"), and three pharmacists, Mary Montani, Jennifer Stircula, and Michelle Stutler. (Severinski Depo. at 9). Mr. Severinski also supervised the pharmacy in Lorain in 2012 and 2013. (Id.). Plaintiffs second-line supervisor was Edward Maurer ("Mr. Maurer"), Assistant Chief of Pharmacy, who reported to Scott Ober ("Mr. Ober"). Mr. Ober reported directly to Director Susan Fuehrer ("Ms. Fuehrer"). (Burnette Depo. at 15). With respect to the day-to-day atmosphere of the pharmacy, Plaintiffs functional statement describes the environment as "subject to frequent, abrupt, and unexpected changes in work assignments due to shifting demands, priorities, and deadlines, which require the employee to constantly adjust operations under the pressure of continuously changing and unpredictable conditions." (Shihadeh Decl. ¶ 9).

         B. Plaintiffs Disciplinary History and Complaints

         In 2004, Plaintiff received a 5-day suspension for "unauthorized personal use of the Government mail distribution system" and "Conduct Unbecoming a Federal Employee" when she used pharmacy equipment to mail a personal package without permission. (Shihadeh Deck ¶ 11, Exhibits 9 and 10). In 2007, she received a 10-day suspension for "Disrespectful Conduct Towards Coworkers" and "Conduct Unbecoming a Federal Employee" when she failed to assist another fellow technician, raised her voice at the technician, and told her she "can go to hell." (Id., ¶ 11).

         1. Plaintiffs History of Complaints to Supervisors

         Beginning in 2012, Plaintiff alleges that she was subjected to a series of unfair, harassing and discriminatory acts constituting a hostile work environment based on her race, prior EEO activity, and opposition to her colleagues' discriminatory conduct. (Compl. ¶ 12). In August of 2012, Plaintiff first complained to Mr. Severinksi alleging that Ms. Carrion caused "rifts" between staff, slammed prescriptions down on Plaintiffs computer, and "went on facebook" about her. (Email 8-31-2012). In January of 2013, Plaintiff told Mr. Severinski that Ms. Carrion used up medications without "placing it on the book" for her to re-order, and that Ms. Carrion was uncomfortable using the medications with different expiration dates in the same bottle. (Email 1-10-2013).

         On April 10, 2013, Plaintiff emailed her supervisor again, stating: "Joe we have a problem at the Parma site with staff in Pharmacy.. .1 refuse to keep putting up with the trickle-down effects of pharmacist to tech disrespect." (Email 4-10-2013). The following morning, Plaintiff requested a transfer to the Akron facility because she felt that some of the same colleagues who were hostile in Brecksville continued to be hostile at the Parma facility. (Burnette Depo. at 97). Mr. Severinski discussed the request with Mr. Maurer, and Plaintiff was offered a position at the Canton facility, which she declined. (Severinski Depo. at 14).

         On May 23, 2013, Plaintiff emailed Mr. Severenski that other technicians did not need to cover the pharmacy window after 12:30 pm, but Plaintiff had to at noon. (Email 5-23-2013). On June 26, 2013, Plaintiff emailed Mr. Severinski again regarding an issue involving batching oxycodone and apologized for being upset (Email 6-26-2013). Plaintiff expressed she believed the incident was a set-up. Mr. Severinski discussed the episode with the individuals involved and no further action was taken. (Severinski Depo. at 17).

         2. August 2013 Robot Incident

         In August of 2013, Plaintiff and Ms. Carrion had an argument regarding the ScriptPro "robot." The robot is a machine utilized by Defendant with capabilities to read a barcode and automatically dispense medication into a vial held by the robot hand gripper. (Severinski Depo. at 22-23). The vial is then set on a conveyer belt to be dispensed to a patient. (Id.). On August 15, 2013, Plaintiff was using the robot when Ms. Carrion heard a "ding" sound, indicating that a cell in the robot was depleted. (Burnette Depo. at 47, 49-51). Ms. Carrion turned around and saw Plaintiff retrieving a vial from the robot's gripper arm and then grabbed the vial out of Plaintiffs hand. (Burnette Depo. at 49-50).

         A disagreement between the two ensued, during which Plaintiff alleges Ms. Carrion threatened her. (Burnette Depo. at 52-23). Mr. Severinski arrived and suggested both take a lunch break. (Severinski Depo. at 12-22). He later interviewed Plaintiff, Ms. Carrion and everyone else in the pharmacy at the time of the incident in order to "get a comprehensive review of what actually happened from as many viewpoints" as possible. (Severinski Depo. at 30). Those interviewed corroborated that Plaintiff had incorrectly grabbed the vial despite being instructed as to proper handling and ultimately became defensive and yelled at Ms. Carrion. (Severinski Depo. at 32). Mr. Severinski then presented his findings to human resources and his supervisor. (Id.).

         3. September 2013 Incident Involving Pharmacists

         On September 19, 2013, pharmacist-in-charge Stircula ("Pharmacist Stircula") asked Plaintiff to assist with a line of patients forming at the check-in and pick-up windows. (Severinski Decl. ¶ 6). Plaintiff contends she did not hear Pharmacist Stircula and thus stayed at her desk without responding. (Burnette Depo.at 67-68). Mr. Severinski testified that Plaintiff had a clear line of vision from her desk and was responsible for keeping an eye on the window in order to jump in if needed. (Severinski Depo. at 41-42). Pharmacist Stircula emailed Mr. Severinski to document the incident. (Severinski Decl. ¶ 6). The following day, pharmacist in charge Stutler ("Pharmacist Stutler") asked Ms. Burnette to assist a patient at the window but Plaintiff refused, indicating that she only had to assist at the window between 12:00 p.m. and 12:30 p.m. (Severinski Depo. at 49).

         Following the incident, Mr. Severinski called Plaintiff and reminded her of her responsibility to assist at the window. Plaintiff hung up the phone, believing the conversation had ended and then assisted Pharmacist Stutler. Mr. Severinski and Pharmacist Stutler both documented the incident on a Report of Contact ("ROC")- (Severinski Depo. at 52; Severinski Decl. ¶ 7). In response to the incident, Plaintiff alleged "these people are very mean, vindictive, and harassing and I believe this is in retaliation for sybil's [Carrion's] roc in which there[soc] names was mention" and "[t]hese people want to make me quit and are retaliating against me on a daily basis." (Id. ¶ 8). This documentation was provided to human resources. (Severinski Depo. at 53).

         Problems continued throughout September of 2013, including a number of incidents between Plaintiff and Ms. Carrion. On September 26, 2013, Severinski held a meeting with the entire pharmacy staff to set expectations, reinforce guidelines, and clarify responsibilities regarding technicians and assisting at the pharmacy window. (Email 9-30-2013; Severinksi Depo. at 54-56). Plaintiff alleged that this meeting took place because Mr. Severinski was offended by her. (Burnette Complaints).

         C. Plaintiffs Complaints to Maurer and Director Fuehrer

         On October 28, 2013, Plaintiff emailed Mr. Maurer regarding her August 2013 ROC: "Please inform me on the status of the ROC that HR has. Things have not gotten better and it needs to be addressed." (Email 10-28-2013; Burnette Depo. 102). Ms. Burnette emailed Ms. Fuehrer the next day stating, "We have a problem in the parma cboc with sibyl carrion and Donna Burnette please address immediately. Thanks." (Email 10-29-203; Burnette Depo. at 103). The email was sent to employment and labor relations to investigate. (Fuehrer Depo. at 12-13).

         In November of 2013, Plaintiff complained that Ms. Carrion "purposely bumped me then very low said excuse me." (Email 11-22-2013). She emailed Ms. Fuehrer again stating that she had over a year of complaints against Ms. Carrion and that she continued to be harassed daily. (Email to Fuehrer 11-25-2013). Plaintiff requested that Mr. Severinski stop Ms. Carrion's behavior, saying she needed to "act according to the conduct rules and be respectful" and "quit trying to avoid her work that is affiliated with me." (Email 11-26-2013). Mr. Severinski responded by discussing the issues with Plaintiff and Ms. Carrion separately and together and told them "You guys need to learn how to work together. You need to have appropriate behavior in the workplace and there's consequences if you can't." (Severinksi Depo. at 37). Plaintiff also informed Mr. Severinski that she believed Ms. Carrion was responsible for causing a flat tire. (Email to Severinski 12-2-2013). VA police were called to investigate the incident and the allegations against Ms. Carrion. After speaking with the parties involved and reviewing surveillance footage, the police could not substantiate Plaintiffs allegations. (Severinski Depo. at 38).

         D. Proposed Suspension

         On or around November 27, 2013, Plaintiff received a letter notifying her of a proposed suspension for 21-days based on her: (1) disrespect towards a coworker as a result of her behavior during the robot incident; (2) failure to assist for the September 19, 2013 incident; and (3) insubordination for the September 20, 2013 incident. (Proposed Suspension). Plaintiff was given an opportunity to respond to the proposed suspension by submitting evidence and providing an oral reply. (Id.). Her oral reply was heard by John Merkle, then deputy director of the VAMC, and after considering all evidence, Ms. Fuehrer ultimately upheld a 14-day suspension on February 11, 2014. (Fuehrer Depo. at 17).

         E. Plaintiffs AWOL

         Workdays at the VA pharmacy began at 8:00 a.m. and ended at 4:30 p.m. (Burnette Depo. at 22). Leave was to be requested in advance and it was a supervisor's prerogative to deny leave based on needs of the pharmacy. (Burnette Depo. at 86; Severinski Depo. at 57). In September of 2013, Defendant stopped allowing the use of annual leave for tardiness. (Email 9-30-2013).

         On April 24, 2014 Plaintiff called Mr. Severinksi at 8:05 a.m. to request the day off. On that particular day, out of a staff of seven, two people had already called off prior to Plaintiff and only three people, including Mr. Severinski, were present at work. (Severinski Depo. at 59-60). Mr. Severinski asked Plaintiff to come in for part of the day or assist during lunch, which Plaintiff declined, and Mr. Severinski denied Plaintiffs request. (Email 4-24-2014).

         F. Transfer to Akron and Separation

         Plaintiff continued to have conflicts with the pharmacy staff throughout 2013 and 2014, and Mr. Severinski and Mr. Maurer revisited Plaintiffs request for a transfer. (Severinski Decl. ¶ 10). In early 2014, Plaintiff temporarily transferred to a non-pharmacy position in Akron but returned in six months. (Burnette Depo. at 31-22). Issues with pharmacy staff persisted and on November 21, 2016, Mr. Severinski emailed a request to meet with Plaintiff. (Email 11-21-2016). Simultaneously, Plaintiff emailed Mr. Severinski's new supervisor, Timothy Heimann ("Mr. Heimann"), expressing her dissatisfaction with Mr. Severinski's behavior. Plaintiff then sent another complaint to Mr. Heimann, a union representative, Andrea Freeman, EEO coordinator, and Ms. Fuehrer.

         In January 2017, Plaintiff transferred to the Akron facility where a filling technician position in a lower pay grade was available. (Burnette Depo. at 89). Plaintiffs attendance issues continued and in March 2017, Plaintiff received a letter proposing removal based on problems occurring throughout 2016 and 2017. (Shihadeh Decl. ¶ 13). Plaintiff was provided an opportunity to respond and was offered an Abeyance Agreement. (Id.). Plaintiff declined and instead chose to retire, effective May 19, 2017. (Compl. ¶ 28).

         G. Plaintiffs EEO History

         Plaintiff filed multiple EEO complaints during her employment with Defendant and contends that her claims center around her mistreatment as the only African American employee at Defendant's Parma facility and Defendant's retaliation against her for raising complaints relating to the alleged mistreatment. In 2012, Plaintiff initiated an informal complaint of discrimination related to receiving GS-6 pay for performing GS-7 duties. This complaint was settled on August 1, 2012 and no formal complaint was filed or accepted. (Jindra Decl. ¶ 3(a)). On March 11, 2013, Plaintiff filed a formal complaint of discrimination related to non-selection for Pharmacy Technician position under Vacancy FZ-12-680717-LB. The claim was accepted by the VA's Office of Resolution Management ("ORM") and its investigation was completed on August 6, 2013. On September 15, 2015, an Administrative Law Judge ("ALJ") found no discrimination. A Final Agency Decision was issued on October 1, 2015 and Plaintiff did not file an appeal or federal civil action. (Id.).

         Giving rise to this litigation, Ms. Burnette filed a formal complaint of discrimination with the Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication on May 29, 2014, alleging hostile work environment, race discrimination, and reprisal (Agency No: 200H-0541-2014102509) (the "May 2014 Complaint"). The complaint was accepted by the ORM on June 18, 2014 and its investigation was completed on August 10, 2014. After a hearing on February 6, 2018, an ALJ issued a decision on March 22, 2018 finding that Defendant did not discriminate or retaliate against Plaintiff. On March 19, 2018, the EEOC issued an Order Entering Judgment and on April 23, 2018, the Agency issued a Final Order accepting and fully implementing the decision of the EEOC Administrative Judge. (Jindra Decl. ¶ 3(b)).

         On March 7, 2017, Plaintiff filed a formal complaint of race and age discrimination and reprisal, alleging constructive discharge and hostile work environment based on various events in 2016 and 2017, leading to her separation from the VA (Agency No: 200H-0541-2017100937) (the "March 2017 Complaint). The ORM completed its investigation on September 17, 2017 and a final agency decision finding no discrimination was issued on January 23, 2018. Plaintiff did not file an appeal. (Jindra Decl. ¶ 3(c)).

         II. ...


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