Dial v. McDonough

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ELIZABETH DIAL, Plaintiff, v. DENIS McDONOUGH, Secretary, Department of Veteran Affairs, Defendant.

Civil Action No. 21-01071-KHV-ADM

United States District Court, D. Kansas

November 29, 2022

MEMORANDUM AND ORDER

KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

Elizabeth Dial filed suit against her former employer the United States Department of Veteran Affairs (the “VA”) alleging that it discriminated against her on the basis of race, maintained a hostile work environment and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is before the Court on Defendant's Motion For Summary Judgment (Doc. #67) filed July 1, 2022. For reasons stated below, the Court sustains defendant's motion in part.

Legal Standard

Summary judgment is appropriate if the pleadings, depositions answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry her burden, the nonmoving party may not rest on her pleadings but must instead set forth specific facts supported by competent evidence. Nahno-Lopez, 625 F.3d at 1283.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, speculation or suspicion and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). The heart of the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.

Facts

The following facts are uncontroverted or viewed in a light most favorable to plaintiff, the nonmoving party.^[1]

Plaintiff Joins The Robert J. Dole VA Medical Center

In December of 2011, plaintiff, a Black female, began working for the VA in Kansas City, Missouri as Supervisor, Medical Administrative Specialist. In that role, plaintiff supervised approximately 35 medical support assistants (“MSAs”) and two lead MSAs. In February of 2019, plaintiff transferred to the Robert J. Dole VA Medical Center (“RJDVAMC”).

Plaintiff applied for a supervisor position in the Office of Community Care (“OCC”) at the RJDVAMC. By telephone, she interviewed with Ruth Duda (White female), the Chief of Community Care, and DaShaun McCray (Black female), a Nurse Manager at the OCC. Duda did not know that plaintiff was Black until she reported for work at the OCC. Plaintiff's position in the OCC was a promotion from GS-9 to GS-11.

When plaintiff began to work, the OCC consisted of the Chief of Community Care, two supervisors, approximately eight nurses and 20 to 25 MSAs. Plaintiff supervised the MSAs, and McCray supervised the nurses. Plaintiff and McCray reported to Duda. Dr. Robert Cummings, Chief of Staff, was plaintiff's second line supervisor and Duda's direct supervisor. Dr. Cummings reported directly to the hospital director.

The OCC assists veterans who cannot get appointments at the main facility. When plaintiff arrived at the OCC, staff was implementing the MISSION Act, which increased everyone's workload.

Plaintiff's Job Duties And Training

When plaintiff reported for work, she expected a job description. Duda was responsible for creating job descriptions. In October of 2019, eight months after plaintiff started working at the OCC, Duda emailed her an outdated supervisor job description. For example, it stated that plaintiff oversaw the nurses and that she reported to the Chief of Dental. McCray oversaw the nurses, however, and plaintiff reported to Duda-not the Chief of Dental. Duda told plaintiff that she would correct the mistakes and return an updated copy to plaintiff. Duda did not do so.

Even though defendant hired plaintiff for one full-time position, Duda assigned plaintiff the duties of three full-time positions: supervisor, program specialist and administrative officer (“AO”). In her supervisor capacity, plaintiff (1) oversaw the MSAs, (2) conducted performance appraisals, hiring, staffing levels and timecard approvals and (3) met with staff individually and as a group. As program specialist, plaintiff (1) pulled reports, (2) organized specialty clinics for the MSAs and (3) ensured that the MSAs scheduled appointments for veterans. As AO, plaintiff (1) addressed Congressional inquiries and (2) worked with doctors regarding revenues and budgets. Plaintiff never received position descriptions for the program specialist and AO jobs.

Plaintiff did not require training for the supervisory aspect of her job because she had served as a supervisor for eight years at the VA in Kansas City. Plaintiff needed training, however, for her other duties at the OCC. When plaintiff requested training, Duda denied the requests. Duda instructed plaintiff to reach out to her peers with questions because Duda did not know the AO duties. When McCray attempted to train plaintiff, Duda told McCray to stop. McCray believes this instruction was racially motivated. The only time Duda scheduled a training for plaintiff, she interrupted the training with Skype messages and phone calls to plaintiff.

Duda repeatedly assigned plaintiff new job duties, completed tasks and busywork. McCray and plaintiff believe that Duda wanted plaintiff to fail because of her race. For example, Duda would badger plaintiff with remedial tasks in the mornings, disrupting plaintiff's days and making it impossible for her to timely complete tasks. Duda also changed the assignments of plaintiff's staff without informing plaintiff, leaving assigned tasks uncovered. Plaintiff had to add those tasks to her full schedule. McCray testified that Duda treated her staff of color like this, but not her White staff.

Plaintiff worked after hours and on weekends to manage her ever-increasing workload. One weekend, plaintiff worked nine hours one day and eleven hours the next day. Plaintiff did not request overtime because plaintiff and McCray believed that overtime was not available for supervisors. The record seems to reflect that Duda told either McCray or plaintiff that they could not request overtime. McCray later learned that this was not correct. Plaintiff never received overtime pay.

Performance Appraisal In October 2019

On October 24, 2019, Duda issued plaintiff a performance appraisal for February 4, 2019 to September 20, 2019. Duda rated plaintiff as fully successful or exceptional on a scale of unacceptable to fully successful to exceptional. Plaintiff thinks that Duda should have rated her exceptional in all five elements of the review. The evaluation upset plaintiff because she did not see how she could receive negative ratings and comments without Duda giving her the tools necessary to do her job.

Meeting And Presentation In January 2020

In early January of 2020, plaintiff prepared a presentation regarding department numbers for the leadership team. Plaintiff prepared the presentation based on discussions with a group practice manager (“GPM”), who met with Dr. Cummings to learn what the presentation should include. Plaintiff then sent the presentation to Duda for review, and on January 9, 2020, Duda arranged a meeting with plaintiff. The GPM joined the meeting by phone. During the meeting, Duda disagreed with the GPM about what information plaintiff should include in the presentation. Duda stood over plaintiff, raised her voice and spoke condescendingly. McCray overhead Duda yelling at plaintiff.

The next day, plaintiff presented the presentation to leadership. During her presentation, Duda interrupted, embarrassed and undermined plaintiff. Ultimately, Duda took over the presentation.

Meeting With Dr. Cummings On January 24, 2020

On January 24, 2020, McCray and plaintiff met with Dr. Cummings. At this meeting, plaintiff and McCray reported that Duda was discriminating against them on the basis of race and maintaining a racially hostile work environment. Dr. Cummings offered to mediate a conversation between plaintiff, McCray and Duda. Plaintiff accepted this offer. Plaintiff canceled this meeting, however, after Duda's behavior worsened-increasing plaintiff's stress, anxiety and panic attacks. Dr. Cummings told Duda about the complaints and instructed her to stop “micromanaging.”

Exhibit B (Doc. #69-2) at 16.

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