United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
before the Court are the Defendant's Motion for Summary
Judgment [ECF No. 29] and the Plaintiff's Motion for
Partial Summary Judgement [ECF No. 30], both filed on March
31, 2017. Thereafter, both parties filed responses [ECF Nos.
32 & 33] and replies [ECF Nos. 35 & 36].
Ning Shen (“Dr. Shen”) brings this action against
the Department of Veterans Affairs (“VA”)
pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”). Specifically, in her amended
four-count complaint, Dr. Shen alleges wrongful termination;
deliberate idling; hostile work environment and breach of
settlement agreement. The United States Department of
Veterans Affairs (“Defendant”), argues that Dr.
Shen was terminated for doing clinical work without
privileges. The Defendant further argues that Dr. Shen's
other claims are also without merit, and therefore, it is
entitled to summary judgment as a matter of law.
in 2008, Dr. Shen became a full-time employee at the Veterans
Administration Medical Center (“VAMC”) located in
Martinsburg, West Virginia. In 2009, she began pursuing an
equal employment opportunity (“EEO”) complaint
against the VAMC. The 2009 EEO claim resulted in Dr. Shen and
the VAMC entering into a settlement agreement before an
administrative law judge on April 17, 2013. The agreement
provided that Dr. Shen would be reassigned to the
compensation and pension (“C&P”) department
of the VAMC to work as a C&P physician reviewer-a new,
unique position created specifically for Dr. Shen as a result
of the settlement. The agreement further specified that Dr.
Shen's new position “grants [her] credentials as a
physician at the VA Medical Center in Martinsburg, West
Virginia, but not privileges.” ECF No. 29-24 at 7; see
also ECF No. 30-1 at 3. The agreement also stipulated that
“[a]s a physician, [Dr. Shen] will have $1, 000
education pay annually.” ECF No. 29-24 at 7.
August 22, 2013, Dr. Shen alleged that the settlement
agreement was not enforceable, and in the event it was
enforceable, the VA had breached it. The VA's Office of
Resolution Management issued a final agency decision on
October 30, 2013, finding that the agreement was enforceable
and “that the agency has complied with all of the terms
contained” therein. ECF No. 29-27 at 7. Dr. Shen timely
appealed the decision to the Equal Employment Opportunity
Commission (“EEOC”). The EEOC found that
“the crux of [Dr. Shen's] claim of breach is her
dissatisfaction with the position she agreed to in the
settlement agreement while she was represented by [an]
Attorney.” ECF No. 29- 28 at 4. On April 9, 2014, the
EEOC concluded that the VA did not breach the settlement
agreement. Id. at 4-5.
the EEOC's decision, Dr. Shen's direct supervisor,
Deborah Bennett, D.O., authored a memorandum memorializing
conversations with Dr. Shen and Dr. Veronice Gardner
regarding whether Dr. Shen was performing Acceptable Clinical
“exams.” The essence of Dr. Bennett's April 3,
2014 memorandum is that both doctors told Dr. Bennett that
Dr. Shen was performing ACE reviews that Dr. Gardner would
then review and sign. See ECF No. 29-29.
23, 2014, Dr. Shen received a proposed discharge letter,
signed by her supervisor, Dr. Bennett. The letter charged Dr.
Shen with “performing ACE clinical reviews without
clinical privileges.” See ECF Nos. 29-30;
30-22. The letter further specified, “[b]eginning in or
about October 2013 you have performed Acceptable Clinical
Evidence (ACE) clinical review examinations for the
Compensation and Pension Clinic. This is a patient-related
duty that is assigned to a credentialed and privileged
physician. You lack privileges at this facility and
performing ACE clinical review examinations is outside of the
scope of your functional statement.” On July 7, 2014,
Dr. Shen, by counsel, replied to the proposed discharge
letter in writing. ECF No. 30-19.
August 5, 2014, Dr. Shen contacted the VA's ORM for equal
employment opportunity (“EEO”) counseling.
See ECF No. 30-21. The VA ORM informed the
VAMC's Director, Timothy Cooke, of Dr. Shen's EEO
counseling by email sent on August 15, 2014. Id. On
August 19, 2014, Mr. Cooke issued Dr. Shen a last chance
agreement (“LCA”). ECF No. 30-22. The LCA
explained that Mr. Cooke determined the misconduct charged in
the proposed termination letter should be sustained. Further,
he explained termination is the appropriate traditional
penalty for the sustained charge. However, Mr. Cooke offered
Dr. Shen a chance to avoid termination, if she agreed to the
terms contained within the LCA. Specifically, the VAMC and
Dr. Shen would agree that Dr. Shen admitted to the sustained
charge; the traditional discipline would be removal; Dr. Shen
would voluntarily withdraw all complaints, grievances, and
other causes of action against the VA; the LCA would stay in
Dr. Shen's personnel folder for two years; Dr. Shen would
serve a thirty-day suspension; any future misconduct by Dr.
Shen within the two-year period could result in her
termination and Dr. Shen understood and voluntarily agreed to
the LCA. Id. Dr. Shen declined to accept the LCA.
letter dated September 9, 2014, Mr. Cooke informed Dr. Shen
that she was being discharged from federal employment
effective September 11, 2014, which was the same date Dr.
Shen signed and received the letter. ECF No. 30-18.
September 18, 2014, Dr. Shen filed a second formal EEO
complaint with the Department of Veterans Affairs Office of
Resolution Management; however, a final agency decision never
issued because Dr. Shen filed the instant action on January
4, 2016. ECF No. 29-31 at 3; ECF No. 1.
STANDARDS OF REVIEW
to Rule 56, summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue exists “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Thus, the Court must
conduct “the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Id. at
party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is,
once the movant has met its burden to show an absence of
material fact, the party opposing summary judgment must then
come forward with affidavits or other evidence demonstrating
there is indeed a genuine issue for trial. Fed.R.Civ.P.
56(c); Celotex, 477 U.S. at 323-35;
Anderson, 477 U.S. at 248. “Conclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving
party's] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (quotations
omitted). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations
plaintiff lacking direct evidence of retaliation may utilize
the McDonnell Douglas Corp v. Green, 411 U.S. 792 .
. . (1973), framework to prove a claim of retaliation.
Price v. Thompson, 380 F.3d 209 (4th Cir. 2004)
(citing Williams v. Cerebronics, Inc., 871 F.2d 452,
457 (4th Cir. 1989)). To avoid summary judgment under the
McDonnell Douglas framework, a Title VII plaintiff
“after establishing a prima facie case of
discrimination, demonstrates that the employer's
proffered permissible reason for taking an adverse employment
action is actually a pretext for discrimination.”
Diamond v. Colonial Life and Acc. Ins. Co.,
416 F.3d 310, 318 (4th Cir. 2005) (quoting Hill v.
Lockheed Martin Logistics Management, Inc., 354 F.3d
277, 285 (4th Cir. 2004) (en banc)).
McDonnell Douglas framework is a three-step
burden-shifting framework used by Title VII plaintiffs who
lack direct evidence of retaliatory discrimination.”
Foster v. University of Maryland-Eastern Shore, 787
F.3d 243, 250 (4th Cir. 2015) (citing Diamond, 416
F.3d at 318). To prevail under McDonnell Douglas, a
plaintiff “must first establish a prima facie case by
showing: (i) that [she] engaged in protected activity, (ii)
that [her employer] took adverse action against [her], and
(iii) that a causal relationship existed between the
protected activity and the adverse employment
activity.” Foster, 787 F.3d at 250 (internal
quotation marks omitted) (quoting Price v. Thompson,
380 F.3d 209, 212); see also King v. Rumsfeld, 328
F.3d 145, 150-51 (4th Cir.), cert. denied, 540 U.S.
1073 (2003). However, “once an employer rebuts the
prima facie case with a legitimate, nondiscriminatory reason
for the employment action, ‘the McDonnell
Douglas framework-with its presumptions and
burdens-disappear[s], and the sole remaining issue [is]
discrimination vel non.” Diamond, 416
F.3d at 318 (alterations in original) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43
satisfying the first two prongs of the McDonnell
Douglas framework, the inquiry focuses on causation.
Specifically, a plaintiff must show that a causal
relationship existed between the protected activity and the
adverse employment action. Id. Further, a plaintiff
“must establish causation at two different stages of
the McDonnell Douglas framework: first, in making a
prima facie case, and second, in proving pretext and
satisfying her ultimate burden of persuasion.”
Foster, 787 F.3d at 250.
Foster, the Fourth Circuit considered how the
Supreme Court of the United States' decision in
Nassar impacted the causation requirements under
McDonnell Douglas. See Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S.Ct. 2517 (2013). In
Nassar, the Supreme Court concluded that
“Title VII retaliation claims must be proved according
to traditional principles of but-for causation[, which
require] proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or
actions of the employer.” 133 S.Ct. at 2533.
examining the Supreme Court's analysis in
Nassar, the Foster Court declined to
“apply a heightened ‘but-for' standard to the
causation prong of a prima facie case of retaliation.”
Mohammed v. Central Driving Mini Storage, Inc., 128
F.Supp.3d 932 (4th Cir. 2015) (citing Foster, 787
F.3d at 250-51). The Foster Court reasoned that if
the Supreme Court “intended to retire McDonnell
Douglas and set aside 40 years of precedent, it would
have spoken plainly and clearly to that effect.” 787
F.3d at 251. Accordingly, the Fourth Circuit holds
“that Nassar does not alter the causation prong of a
prima facie case of retaliation.” 787 F.3d at ...