United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT JUDGE
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).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.
FACTUAL AND PROCEDURAL HISTORY
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).
Plaintiffs Employment with the Veteran's
Administration Medical Center
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.).
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).
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).
Plaintiffs Disciplinary History and
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).
Plaintiffs History of Complaints to
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).
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).
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.
August 2013 Robot Incident
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).
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.
September 2013 Incident Involving
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).
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).
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
Plaintiffs Complaints to Maurer and Director
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).
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
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
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
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).
Transfer to Akron and Separation
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.
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).
Plaintiffs EEO History
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.).
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.
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)).