Bangura v. Shulkin

• Decision Date: 26 September 2018
• Docket Number: CIVIL ACTION NO. 16-10614-JGD
• Citation: 334 F.Supp.3d 443
• Parties: Rosaline BANGURA, Plaintiff, v. David J. SHULKIN, Secretary of the Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Massachusetts

334 F.Supp.3d 443

Rosaline BANGURA, Plaintiff,

v.David J. SHULKIN, Secretary of the Department of Veterans Affairs, Defendant.

CIVIL ACTION NO. 16-10614-JGD

United States District Court, D. Massachusetts.

Signed September 26, 2018

Benneth O. Amadi, Amadi Law Office, Lynn, MA, for Plaintiff.

Annapurna Balakrishna, U.S. Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DEIN, U.S.M.J.

I. INTRODUCTION

The Plaintiff, Rosaline Bangura, has brought this action against her former employer, the Department of Veteran Affairs, through its Secretary (collectively, the "VA"), raising a number of claims of discrimination and retaliation in connection with her work as a Certified Nursing Aide, and contending that she stopped going to work, and was constructively discharged, as a result of a hostile work environment. The VA denies any liability, and asserts that the termination of Ms. Bangura's employment, a year after she stopped reporting to work, was due to her failure to come to work or to follow the VA's leave policy. This matter is before the Court on "Defendant's Motion for Summary Judgment" (Docket No. 56) and on "Plaintiff's Request for Entry of Summary Judgment in Her Favor." (Docket No. 68). In their motions, each of the parties contends that it is entitled to judgment as a matter of law. For the reasons detailed herein, the Defendant's motion is ALLOWED, and the Plaintiff's Motion is DENIED.

II. STATEMENT OF FACTS ¹

The following facts are undisputed unless otherwise indicated.

Plaintiff's Employment with the VA

Plaintiff began working in 2007 as a Certified Nursing Aide for the VA in Bedford, Massachusetts. (PF ¶ 5; DF ¶ 1).² Plaintiff is an African American woman of Sierra Leone origin. (PF ¶ 4). As a Certified Nursing Aide, Plaintiff worked the evening shift of 4:00 p.m. to 12:00 a.m. and Plaintiff's job performance generally met the VA's expectations, with some exceptions. (Id. ¶ 31; DR ¶ 82). While at the VA, Plaintiff's nurse manager and managing official was Barbara Mueller ("Ms. Mueller"), the nurse in charge was Ann Goulet ("Ms. Goulet"), and the director of nursing in 2014 and 2015 was Mary-Ann Petrillo ("Ms. Petrillo"). (DR ¶ 6). Plaintiff suffers from severe arthritis

, high blood pressure, and other health ailments that substantially limit her ability to perform major life activities. (PF ¶¶ 25, 73). Plaintiff took leave under the Family and Medical Leave Act from August 14, 2013 to January 14, 2014. (PF ¶ 8; DR ¶ 8).

Plaintiff's First Request for An Accommodation

In late March 2014, after Plaintiff returned from leave, she applied for a reasonable accommodation for her disabilities. (DF ¶ 8; PF ¶ 9). Plaintiff submitted two medical letters to support her request. (Pl. Ex. D; Def. Ex. D). The first letter, from Dr. Wen Yee Lee, dated January 7, 2014, stated that Plaintiff "may return to work, working no more than 40 hours/week with no restrictions, on 1/20/2014." (DF ¶ 9). The second letter from Dr. Wen Yee Lee, dated April 3, 2014, stated that Plaintiff suffered from osteoarthritis

of both knees and "[s]he can not work more than 8 hours per day." (Pl. Ex. D). Plaintiff made the doctor's advice known to Defendant and, specifically, to Ms. Mueller, Ms. Goulet, and Ms. Petrillo. (PF ¶ 11).

In or about April 2014, the VA granted Plaintiff's accommodation, which went into effect on March 28, 2014. (DF ¶ 11).³ The parties dispute the level of enforcement of the reasonable accommodation. (PF ¶ 13; DR ¶ 13). Plaintiff asserts that her workplace became difficult because she was forced to work more than forty hours per week or eight hours per shift and had to stay to cover later shifts. (PF ¶¶ 13, 15; Pl. Ex. A at 2-3). She has offered no support for her claim of working additional hours other than her own, generalized, statement. Defendant contends that the VA did not schedule Plaintiff to work more than 40 hours per week after January 14, 2014 and no more than eight hours per shift after April 1, 2014. (DR ¶ 13). The VA's assertion is supported by the Plaintiff's timecards. (Id. ).

Between May 28, 2014 and May 31, 2014, three of Plaintiff's white coworkers filled out separate "Reports of Contact" about an incident on their floor with Plaintiff on May 28, 2014. (See Def. Ex. E). The reports provided that Plaintiff was disruptive, loud, upset the patients, and used her phone in the patient care area. (Id.; DF ¶¶ 13-15). Plaintiff contends that all of these reports were false and that Ms. Mueller and Ms. Goulet convinced her coworkers to write these reports against her. (PR ¶¶ 13-16; PF ¶ 16).⁴ Plaintiff also contends that some of these same white coworkers made fun of her accent, food, and disability. (PR ¶ 16).⁵ All the coworkers have sworn under oath that they did not ridicule Plaintiff or write false reports against her. (DR ¶ 97). Plaintiff contends that this behavior contributed to creating a hostile work environment, and that the events of May 2014, as well as the hours she worked, would be evidenced on surveillance tapes from cameras on the floor where she worked. (See Pl. Mem. (Docket No. 73) at 19 ("defendants have suppressed the production of the recordings of the surveillance cameras because their conducts are discriminatory and allegations against plaintiff, and their explanations are tissues of lies, untrue and pretextual.") ). However, the VA has attested to the fact that the surveillance cameras were not installed until several years after the events at issue. (DR Docket No. 79-1).

Plaintiff's Second Request for An Accommodation

Following the reports of the May 28, 2014 incident, nursing leadership recommended that Plaintiff change shifts and Ms. Mueller reassigned Plaintiff to work the day shift, starting on June 3, 2014 at 7:30 a.m. (DF ¶¶ 16-17). The parties dispute the purpose of the shift change. (DF ¶ 18; PR ¶ 18). Plaintiff contends the purpose was retaliatory and discriminatory because Plaintiff complained about bullying and because Ms. Mueller told Plaintiff that her white coworkers did not want to work with her. (PR ¶ 16).⁶ Defendant contends that the purpose of the shift change was to place the Plaintiff with more supervisors who could better evaluate and educate her, because there was not enough staff on the evening shift to correct employee behavior. (DF ¶¶ 18-19).

On June 3, 2014, Plaintiff did not arrive to work her first day shift. (Id. ¶ 21). On June 5, 2014, Plaintiff requested that she be returned to the evening shift and reassigned to another floor. (Id. ¶ 22; PF ¶ 24). Plaintiff alleges that she informed the Defendant that "it would be against her health conditions to work on the morning shifts." (PF ¶ 30). To support her request, Plaintiff provided a letter from a physician's assistant, dated June 4, 2014, that stated, "the structure during the evening could make her less fatigued and she would be more fully functional that [sic] working during day shift." (DF ¶ 23; Pl. Ex. E). The VA did not grant Plaintiff's second accommodation request. (Id. ¶ 24). Plaintiff contends that the VA's denial of her request for accommodation was retaliatory and discriminatory. (PF ¶ 51). Plaintiff also asserts that the Defendant threatened Plaintiff that she would be arrested if she came to work on the evening shift. (Id. ¶ 30). Defendant disputes Plaintiff's allegations and contends that the VA did not grant her request because the letter was not sufficient to support the change to the evening shift, and the shift change was intended to be temporary. (DR ¶¶ 51, 55).

Plaintiff never returned to work after June 3, 2014. (DF ¶ 26). The Plaintiff contends that she was constructively discharged as of June 8, 2014. (PF ¶ 2; PR ¶ 30). The Defendant contends that she never resigned, and was eventually terminated on July 6, 2015, effective June 26, 2015, for failing to come to work or to request leave. (DF ¶ 40).

Plaintiff's EEO Complaints and Termination of Employment

On June 11, 2014, Plaintiff met with the Equal Employment Opportunity ("EEO") Manager at the VA, Deborah Outing ("Ms. Outing"), regarding her discrimination claims. (DF ¶ 27). According to Ms. Outing, she advised Plaintiff that she would need to contact the ORM within forty-five days of the incident to start the EEO complaint procedure. (Id. ¶ 28). Ms. Outing was the appropriate contact for the settlement of non-EEO issues only. (Id. ¶ 4). On June 24, 2014, Ms. Mueller called Plaintiff and told her "she was a VA employee who was expected to report to work unless she was requesting leave." (Id. ¶ 30). On June 25, 2014, Plaintiff submitted a complaint of discrimination to Ms. Outing at the EEO (the "June 2014 Complaint") and, according to Ms. Outing, she again explained to the Plaintiff the appropriate process for filing complaints with the ORM. (Id. ¶ 29).⁷ On June 27, 2014, Plaintiff also submitted a request to transfer to another ward to Ms. Mueller, copying Ms. Petrillo and a union representative. (Id. ¶ 31). On the same day, the VA deemed Plaintiff to be away without leave ("AWOL"). (Id. ¶ 32).

In a letter dated July 2, 2014, the VA notified Plaintiff of a proposal to suspend her for five days starting on August 18, 2014 for inappropriate conduct, patient abuse, using a cellphone in a patient area, and being AWOL. (Id. ¶ 33). As part of the proposal for suspension, the VA took into account a prior incident from 2013 with a charge nurse, Wayne Baptiste ("Mr. Baptiste"), who reported Plaintiff for raising her voice to a patient. (Id. ¶ 5; Def. Ex. H at 5). He also reported that Plaintiff resisted attempts to "re-educate her on communication techniques." (DF ¶ 5). Plaintiff asserts that the incident was falsified and that Mr. Baptiste had taunted her. (PF ¶ 95). As a result of this incident, the VA issued Plaintiff an Admonishment for her behavior. (DF ¶ 7).⁸

On July 21, 2014, the Plaintiff having failed to return to work, the VA suspended her and notified her of her appeal rights....