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Shen v. McDonald

United States District Court, N.D. West Virginia

June 8, 2017




         Currently 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].


         Doctor 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.


         Early 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.

         On 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.

         Before 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 Evidence (“ACE”) “exams.”[1] 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.

         On June 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.

         On 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.

         By 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.

         On 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.


         Pursuant 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 250.

         The 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 omitted).

         “A 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)).

         “The 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 (2000)).

         Upon 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.

         In 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.

         Upon 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 ...

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