Iskander v. Dep't of the Navy

• Decision Date: 07 July 2015
• Docket Number: No. 7:12–CV–270–D.,7:12–CV–270–D.
• Citation: 116 F.Supp.3d 669
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Yvette ISKANDER, Plaintiff, v. DEPARTMENT OF the NAVY, and Raymond Mabus, Secretary, Defendants.

116 F.Supp.3d 669

Yvette ISKANDER, Plaintiff,

v.DEPARTMENT OF the NAVY, and Raymond Mabus, Secretary, Defendants.

No. 7:12–CV–270–D.

United States District Court, E.D. North Carolina, Southern Division.

Signed July 7, 2015.

Ernest J. Wright, Wright Law Firm, Jacksonville, NC, for Plaintiff.

Michael James, R.A. Renfer, Jr., U.S. Attorney's Office, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief Judge.

Yvette Iskander ("plaintiff" or "Iskander") is a 61–year old pharmacist who worked for the Department of the Navy from April 2007 until October 2010. Iskander alleges that the Navy discriminated against her based on her sex, race (Egyptian), national origin (Egyptian), and disability (back pain resulting from a 2005 back injury), when the Navy fired her in October 2010. Iskander also alleges that the Navy fostered a hostile work environment based on her national origin and disability. The Navy responds that it did not discriminate against Iskander. Rather, the Navy contends that it fired Iskander for disorderly conduct and battering two co-workers.

Iskander pursued discrimination claims internally via the Navy's EEO process and contested her termination externally via the Merit Systems Protection Board ("MSPB"). The Navy's EEO investigation failed to substantiate Iskander's discrimination claims, and, on November 1, 2012, the MSPB upheld Iskander's termination. See [D.E. 17–1] 3–14; [D.E. 17–9].

On September 18, 2012, Iskander filed suit alleging employment discrimination. See Compl. [D.E. 1]. Iskander seeks relief under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), and the Americans with Disabilities Act, as amended ("ADA"). On December 19, 2012, Iskander filed an amended complaint. See Am. Compl. [D.E. 10]. On December 13, 2014, defendants filed a motion for summary judgment [D.E. 52] and supporting memorandum [D.E. 53]. Iskander responded in opposition [D.E. 60], and defendants replied [D.E. 64]. As explained below, the court grants defendants' motion for summary judgment.

I.

Iskander was born in Cairo, Egypt, in 1954. While in Egypt, Iskander earned an undergraduate pharmacy degree. Iskander arrived in the United States in 1986. Iskander then earned a masters degree in pharmacy at North Dakota State University. Although Iskander then studied for a Ph.D. for six years, she never received a Ph.D.

Iskander is a licensed pharmacist in North Carolina. In 2005, before the Navy hired Iskander, she injured her back in a slip and fall accident while working as a pharmacist at Walgreens. As a result, Iskander received a worker's compensation settlement and still sometimes has back pain. In April 2007, the Navy hired Iskander as a pharmacist and assigned her to work at the naval hospital at Camp Lejeune, North Carolina. Iskander does not recall whether she told the Navy about her 2005 back injury before being hired or beginning employment. See Iskander Dep. [D.E. 53–2] 23–24 (deposition pages 91–96).

As part of Iskander's duties as a pharmacist with the Navy, Iskander verified prescriptions, adjusted medications, monitored prescriptions for drug interactions, and consulted with physicians and patients. Iskander (like the other Navy pharmacists at Camp Lejeune) also worked with numerous pharmacist technicians. The pharmacist technicians principally worked at the pharmacy windows, where they received the prescriptions from the patient, filled the prescriptions, and then brought the prescriptions to the pharmacist for verification. The pharmacists and the pharmacy technicians generally did not sit down while working.

Initially, Lt. Katu was Iskander's supervisor. In April 2007, Iskander told Lt. Katu that she had back pain and would like to use a chair while working. Lt. Katu obtained a wooden chair for Iskander to use. Although Iskander did not believe that the chair was comfortable, Iskander did not complain about the chair and used it while working. See Iskander Dep. 98–108.

In March 2008, Dr. Joseph Flott became Iskander's supervisor. See [D.E. 53–4] 110–11 (testimony of Dr. Flott). In March 2009, Iskander told Dr. Flott that her back hurt and requested a chair. Dr. Flott told Iskander to go to the human resources officer. Thereafter, Dr. Flott consulted with the human resources officer and then tasked Lt. Pena with helping to find a comfortable chair for Iskander. Lt. Pena did so, and Iskander received a comfortable chair to use while working. See id. 112–13, 116–17 (testimony of Dr. Flott); 377 (testimony of Lt. Pena).

Throughout Iskander's tenure with the Navy, Iskander had countless conflicts with many of her co-workers and supervisors due, in part, to her confrontational, curt, and brusque manner. See e.g., id. 128–29, 136–37, 141–45, 152–54, 162–63 (testimony of Dr. Flott); 185–87 (testimony of Lt. Diaz–Sevila); 204–08, 218–19 (testimony of Sonja Webb Carpenter); 241–45 (testimony of James Peterman); 297–304 (testimony of Joann Goforth); 324–35 (testimony of Rosalee Collingsworth); 356–64 (testimony of Heather Edens Thompson); 382–83 (testimony of Lt. Pena). In early December 2009, Dr. Flott learned that Iskander claimed that he refused to provide her a reasonable accommodation concerning her back pain. On December 7, 2009, Dr. Flott instructed Iskander to report to human resources concerning an accommodation. Iskander spoke with Gerri Haga in human resources, and human resources agreed to provide Iskander an ergonomic chair. After the Navy analyzed Iskander's work area and job duties, the Navy provided an ergonomic chair to Iskander.

Iskander's use of a chair caused some tension with some of the pharmacy technicians, who generally stood while working. Moreover, some of the pharmacy technicians would move Iskander's chair out of the way when Iskander was on break because the pods at the pharmacy windows were narrow, the windows were busy with patients, and the chair was in their way. See, e.g., [D.E. 53–4] 118 (testimony of Dr. Flott); 199–200 (testimony of Sonya Webb Carpenter); 270–71 (testimony of Katrina Daniels). A few pharmacy technicians also told one another that they doubted Iskander's alleged back problems and need for a chair.

Iskander's confrontational, curt, and brusque manner with co-workers continued to cause her problems in the work place. Iskander also sometimes spoke loudly and disrespectfully to her superiors, including Dr. Flott and Lt. Diaz–Sevilla. See, e.g., 141–46, 162–63 (testimony of Dr. Flott); 186–87 (testimony of Lt. Diaz–Sevilla). Additionally, some co-workers complained to Dr. Flott about the odor of Iskander's lunch meals.

On March 9, 2010, Iskander had a confrontation with pharmacy technician Heather Edens about a prescription refill, and Iskander grabbed Edens's left arm. See, e.g., id. 238–40 (testimony of James Peterman); 356–64 (testimony of Heather Edens Thompson). The Navy then suspended Iskander for five days due to Iskander's inappropriate physical contact of a co-worker.

On March 23, 2010, Iskander filed an internal EEO complaint alleging discrimination based on her race, national origin, sex, disability, and age. See [D.E. 17–2]. Navy EEO personnel began an investigation. See [D.E. 53–4].

On May 14, 2010, Iskander pushed a refrigerator door closed while co-worker Margareta Catacata attempted to place breast milk in the office refrigerator, thereby causing Catacata to spill the milk. See [D.E. 17–4] 1. On May 26, 2010, Iskander snatched a tray from co-worker Dana W. Hill while Hill was trying to count medication. See id. On May 28, 2010, Iskander pulled a chair out from under another co-worker, Jennifer Killebrew, while Killebrew attempted to sit down. Id. On June 4, 2010, Iskander spoke loudly and disrespectfully towards Dr. Flott concerning a work assignment. Id.

On June 18, 2010, the Navy issued Iskander a notice of proposed removal with four specifications of disorderly conduct on May 14, 2010, May 26, 2010, May 28, 2010, and June 4, 2010, and two specifications that Iskander battered co-workers on May 28, 2010, and June 4, 2010.See id. Pending a final determination, the Navy placed Iskander on paid administrative leave. On October 5, 2010, after giving Iskander an opportunity to contest the proposed removal and considering her response, the Navy fired Iskander. See [D.E. 17–5].

Iskander pursued EEO remedies with the Navy concerning alleged employment discrimination, but Iskander failed to obtain relief in the Navy's EEO process. She then sought relief concerning her termination with the MSPB. On November 1, 2012, the MSPB rejected Iskander's challenge to her termination. See [D.E. 17–1] 3–14; [D.E. 17–9].

II.

In considering defendants' motion for summary judgment, the court views the evidence in the light most favorable to Iskander and applies well-established principles under Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Fed.R.Civ.P. 56 ; Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Celotex Corp. v. Catrett, 477 U.S. 317, 325–26, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–55, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505. The party seeking summary judgment must initially come forward and demonstrate an absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact for trial. See Matsushita, 475 U.S. at 586–87, 106 S.Ct. 1348.

"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a...