Johnson v. Sec'y of Veterans Affairs

• Decision Date: 29 September 2020
• Docket Number: Civil Action 2:17-cv-915
• Parties: JANET K. JOHNSON, Plaintiff, v. SECRETARY OF VETERANS AFFAIRS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

JANET K. JOHNSON, Plaintiff, v. SECRETARY OF VETERANS AFFAIRS, Defendant.

Civil Action 2:17-cv-915

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

September 29, 2020

Chief Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

Proceeding without the assistance of counsel, Plaintiff Janet K. Johnson initiated this lawsuit against the Secretary of the United States Department of Veterans Affairs. This case is related to Plaintiff's earlier complaint before the Equal Employment Opportunity Commission ("EEOC"), VA Case No. 200H-0757-2015101526, EEOC No. 532-2016-00060X (the "EEOC Complaint").

This Court has jurisdiction pursuant to 28 U.S.C. § 1331. With the consent of the parties to the jurisdiction of the United States Magistrate Judge (ECF No. 16), 28 U.S.C. § 636(c), this matter is before the Court for consideration of Defendants' Motion to Dismiss for Plaintiff's Failure to Prosecute (ECF No. 40) and Defendant's Motion for Summary Judgment (ECF No. 45). For the reasons that follow, Defendant's Motion to Dismiss for Plaintiff's Failure to Prosecute (ECF No. 40) is DENIED AS MOOT and Defendant's Motion for Summary Judgment (ECF No. 45) is GRANTED.

I. FACTUAL BACKGROUND

Plaintiff's Complaint does not expressly set forth any causes of action, and instead only consists of the following eleven factual allegations regarding events that allegedly took place between December 23, 2014 and June 26, 2015:

1. On December 23, 2014, Lloyd McNutt, (LM), Supervisory Medical Support Assistant, [Plaintiff's] supervisor, performed a fact-finding with [Plaintiff] and badgered her with repeated questions.

2. On December 24, 2014, LM performed a fact-finding with [Plaintiff], appointed [Plaintiff's] union representative without her approval, and refused to provide her with a copy of the report of the incident in question.

3. On January 5, 2015, LM issued [Plaintiff] a proposed reprimand.

4. On January 22, 2015, LM issued [Plaintiff] a reprimand.

5. On or about February 3, 2015, Carolyn Park, Lead Medical Support Assistant at the direction of LM, placed a post-it note on [Plaintiff's] desk ordering her to remove a patient-related sign that had been in place on a white Medical Support Assistant's desk since 2013.

6. On February 25, 2015, LM denied [Plaintiff's] annual leave request and charged her with four hours of AWOL.

7. On May 4, 2015, LM informed [Plaintiff] that she was being scheduled for a fact-finding interview for May 6, 2015.

8. On May 7, 2015, Dr. Edward Bope, Chief Primary Care, issued [Plaintiff] a proposed five-day suspension for disrespectful conduct towards a patient.

9. On May 27, 2015, Dr. Mark Cooperman, Chief of Staff[,] issued [Plaintiff] a 3-day suspension, effective June 9 through June 11, 2015.

10. On June 22, 2015, LM requested that [Plaintiff] provide a doctor's excuse because she had taken sick leave for a third day. [Plaintiff] contends that she reported the matter to the union[.] The Union Master Agreement supports [Plaintiff]. [Plaintiff] contends that this was not an error but rather another opportunity to harass her.

11. On June 26, 2015, LM issued [Plaintiff] a letter of written counseling for failure to follow instructions. [Plaintiff] explained that the letter stated that the written counseling was not a disciplinary action but that the next time an incident happens she would be removed from service.

(Complaint, ECF No. 4.) These allegations require additional context in order to understand Plaintiff's claims. Defendant submits that Plaintiff's Complaint ought to be considered in the context of the Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication's Final Agency Decision ("FAD"), dated July 19, 2017, related to Plaintiff's EEOC Complaint, in order to fully appreciate the underlying facts of this case. (ECF No. 45 at PAGEID # 217.) This Court agrees, and therefore relies on both the Complaint and the FAD (ECF No. 45-1) to set forth below the factual and legal context for the allegations in Plaintiff's Complaint. Plaintiff's discovery responses (ECF Nos. 23-24) and her deposition transcript (ECF No. 46-1) also provide additional background.

Plaintiff worked for the United States Department of Veterans Affairs (the "VA"), in the Primary Care area of the Ambulatory Care Center in Columbus, beginning in December 2004. (See FAD, ECF No. 45-1, at PAGEID # 254; Johnson Dep., ECF No. 46-1, at PAGEID # 425 (18:2-7).) On February 26, 2015, Plaintiff filed her EEOC Complaint, alleging that VA officials at the Ambulatory Care Center had discriminated against her. (FAC, ECF No. 45-1, at PAGEID # 253.) Specifically, Plaintiff alleged that (1) she had been subjected to disparate treatment based on race (she is African American), sex (she is female), reprisal (she had prior EEOC activity), and age (she was approximately 55 at the time of the EEOC Complaint); and (2) she had been subjected to a hostile work environment based on her race, sex, reprisal status, and age. (Id. at PAGEID # 254.)

Plaintiff's EEOC Complaint, as amended, alleged discrimination arising out of a series of events between December 23, 2014 and June 26, 2015. (Id. at PAGEID ## 254-261.) Plaintiff's Complaint in this action concerns these same events. First, on December 23, 2014, Plaintiff's former supervisor Lloyd McNutt notified her that she was being investigated for being rude to apatient. (See Complaint, ECF No. 4, at ¶ 1; see also Plaintiff's Responses to First Set of Interrogatories to Plaintiff Janet K. Johnson (the "Interrogatory Responses"), ECF No. 23, at Answer No. 9.) Plaintiff denied that she had been rude to a patient, and claims Mr. McNutt "reportedly called and badgered the patient for some kind of statement and embellished the report to get [Plaintiff] in trouble." (Compare Complaint, ECF No. 4, at ¶ 1, with Interrogatory Responses, ECF No. 23, at Answer Nos. 9 and 17; see also Johnson Dep., ECF No. 46-1, at PAGEID # 432 (46:17-48:1).) Second, on or about February 3, 2015, a white coworker named Carolyn Park placed a post-it note on Plaintiff's desk asking Plaintiff to remove a sign from her desk. (Compare Complaint, ECF No. 4, at ¶ 5, with Interrogatory Responses, ECF No. 23, at Answer No. 10.) Plaintiff felt she was the victim of a double standard, as "[t]he exact sign . . . was on a desk of a coworker (white lady)" and "[t]his sign had been placed there by [the other coworker] for several years and no one had ever complained about the sign." (Id.) As a result, Plaintiff felt she "was not treated like ALL the white people on [her] team." (Interrogatory Responses, ECF No. 23, at Answer No. 12.) At deposition, however, Plaintiff admitted that another white coworker also was asked to remove the same sign from her desk. (See Johnson Dep., ECF No. 46-1, at PAGEID # 437 (65:4-67:7).)

Then, on February 25, 2015, Mr. McNutt denied Plaintiff's annual leave request and charged her four hours of pay. (Compare Complaint, ECF No. 4, at ¶ 6, with Interrogatory Responses, ECF No. 23, at Answer No. 15.) Plaintiff had requested leave "due to family matters," but Mr. McNutt "did not ask what the problems/family matters were" and charged Plaintiff for Leave Without Pay. (Interrogatory Responses, ECF No. 23, at Answer No. 15; see also Johnson Dep., ECF No. 46-1, at PAGEID # 439 (75:20-76:4).) Plaintiff filed her EEOC Complaint the next day.

In May 2015, after an internal investigation, Plaintiff was issued a three-day suspension "for disrespectful conduct towards a patient." (Complaint, ECF No. 4, at ¶¶ 8-9; see also Interrogatory Responses, ECF No. 23, at Answer No. 19.) After serving the suspension in June 2015, Plaintiff took an additional three days off work due to illness. (Interrogatory Responses, ECF No. 23, at Answer No. 19.) Upon arriving back to work after her illness, Mr. McNutt "requested that [Plaintiff] complete a leave slip," which was not the proper protocol because Plaintiff had not taken four or more days off work due to illness. (Compare Complaint, ECF No. 4, at ¶ 10, with Interrogatory Responses, ECF No. 23, at Answer No. 19.) Finally, on June 26, 2015, Mr. McNutt provided Plaintiff with a written counseling letter, informing her that she had failed to follow instructions and warning her that the next time an incident happened she would be removed from service. (Complaint, ECF No. 4, at ¶ 11.) Plaintiff ultimately resigned from the VA on April 13, 2016. (Johnson Dep., ECF No. 46-1, at PAGEID ## 446-447 (103:17-105:21).)

The EEOC investigated Plaintiff's claims, and on July 19, 2017, Maxanne R. Witkin, Director of the VA's Office of Employment Discrimination Complaint Adjudication, issued the FAD, concluding that Plaintiff "fail[ed] to demonstrate that she was subjected to discrimination or retaliation with regard to the matters raised in this complaint." (FAD, ECF No. 45-1, at PAGEID # 267.) The FAD advised Plaintiff that she "ha[d] the right to file a civil action in an appropriate United States District Court ... within 90 days.["] (Id. at PAGEID # 268.) Approximately three months later, on October 20, 2017, Plaintiff initiated the subject action pro se.

This Court finds that Plaintiff's claims in this action mirror her claims from the EEOC Complaint, except for one allegation in the EEOC Complaint that Plaintiff does not allege in thesubject Complaint. (Compare Complaint, ECF No. 4, with FAD, ECF No. 45-1, at PAGEID # 259 (describing event on May 18, 2015).) Therefore, in the absence of any evidence (or explanation from Plaintiff) to the contrary, the Court construes Plaintiff's Complaint to seek relief under Title VII for (1) disparate treatment, and (2) a hostile work environment, based on Plaintiff's race, sex, reprisal status, and/or age.

II. PROCEDURAL BACKGROUND

Plaintiff filed suit on October 20, 2017. (ECF No. 1.) On December 22, 2017, the Court declined to appoint counsel to Plaintiff. (ECF No. 7.) On January 16, 2020, Defendant filed a Motion to...