Burnette v. Wilkie, CASE NO. 1:18-CV-1179
| Decision Date | 17 September 2019 |
| Docket Number | CASE NO. 1:18-CV-1179 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | DONNA BURNETTE, Plaintiff, v. ROBERT WILKIE, Acting Secretary of Veterans Affairs, Defendant. |
MEMORANDUM OPINION AND ORDER
This 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).1 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.
Plaintiff Donna Burnette brings this action against her former employer Defendant Robert Wilkie alleging race discrimination, retaliation and hostile work environment in violation of TitleVII 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).
Ms. 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.).
As a 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).
Plaintiff's 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.). Plaintiff's 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, Plaintiff's 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).
In 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 Decl. ¶ 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).
Beginning 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" betweenstaff, slammed prescriptions down on Plaintiff's 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).
On April 10, 2013, Plaintiff emailed her supervisor again, stating: "Joe we have a problem at the Parma site with staff in Pharmacy...I 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).
On May 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. at 17).
In 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 Plaintiff's hand. (Burnette Depo. at 49-50).
A 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. (Id.).
On 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).
Following 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).
Problems 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...
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