Mitchell v. Secretary Veterans Affairs

Decision Date11 December 2006
Docket NumberNo. CA 204-2237-PMD-RSC.,CA 204-2237-PMD-RSC.
Citation467 F.Supp.2d 544
CourtU.S. District Court — District of South Carolina
PartiesEdward Bernard MITCHELL, Plaintiff, v. SECRETARY VETERANS AFFAIRS, Defendant.

Chalmers Carey Johnson, Chalmers Johnson Law Firm, Charleston, SC, for Plaintiff.

Christie V. Newman, Terri Hearn Bailey, U.S. Attorneys Office, Columbia, SC, for Defendant.

ORDER

DUFFY, District Judge.

Plaintiff Edward Bernard Mitchell ("Mitchell") filed this action for termination of his employment on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq and for retaliation pursuant to § 704(a) of Title VII. Mitchell sues Anthony Principi, the Secretary of the Department of Veteran Affairs, for the alleged discrimination and retaliation he suffered while employed in the Surgical Intensive. Care Unit ("SICU") at the Ralph Johnson VA Medical. Center in Charleston, South Carolina. Defendant moved for summary judgment on April 3, 2006. On June 28, 2006, a United States Magistrate Judge issued a Report and Recommendation ("R & R"), made in accordance with 28 U.S.C. § 636(b)(1)(B), which recommended that summary judgment be granted. A party may object, in writing, to a report and recommendation within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Mitchell has filed timely objections to the R & R.

BACKGROUND

The facts, either undisputed or presented in a light most favorable to Mitchell, are as follows:

In August of 1999, Nurse Manager Letha Rogers ("Rogers"), a black female, interviewed and hired Mitchell, a black male, to work as a temporary probationary employee1 in the SICU at the Ralph Johnson VA Medical Center. Mitchell's temporary appointment was for a period not to exceed thirteen months and could be terminated at any time up to the expiration date of the appointment. Mitchell's duties as a R.N. in the SICU included monitoring patients, giving drugs, and reporting to the doctors. After a month of initial orientation, Mitchell worked the night shift, from 7 p.m. until 7 a.m. After three weeks on the night shift, Mitchell observed that the two charge nurses who worked weekends, Bill McMaster, a white male, and Kathy Bunting, a white female, "wouldn't do anything for the patients ... . [t]hey were abusive to the patients." (Pl.Dep. pp. 65-66.) Mitchell reported his concerns to Rogers.2 Mitchell is unaware of any investigation into his reports and is unaware if any counseling or discipline resulted from his reports. He believes, however, that Rogers did nothing to remedy the situations he reported.

In June of 2000, Mitchell approached Rogers, and told her that he felt that the white nurses could get away with anything because of their race, and that he felt that this was racist. Rogers did not respond to Mitchell's concern. Three weeks later, Mitchell received a letter notifying him that he was being terminated as of July 21, 2000, months before the end of his contract. (Termination letter 7-7-00.) The letter did not state a reason for the termination, but noted that Mitchell had been "advised of the facts `about temporary appointments and that [his] appointment was subject to termination at any time." (Id) When Mitchell received the letter, he demanded to know the reason behind the decision. At that time, Rogers told Mitchell that he was being terminated because his "skills were substandard." (Pl.Dep. p 101.) Mitchell refused to sign the letter and Rogers noted that he "wants more documentation for reasons he is being fired." Accordingly, on August 29, 2000, Rogers wrote a Proficiency Report summarizing Mitchell's performance. She noted that although Mitchell "demonstrated skillful customer service abilities," he "was counseled various times concerning patient care issues such as not taking off orders resulting in medication error, failure to accurately document urine output on a GU patient with a CBI infusing and administering sedation after an order was discontinued." (Proficiency Report 8-29-00.) The. Report concluded that Mitchell's "critical care skills were lacking knowledge and performance." (Id.) Rogers ranked Mitchell's performance as "low satisfactory" and Sarah Williams, the Associate Chief of Nursing and Patient Care, concurred in Roger's assessment. (Id.)

There are five instances cited by Defendant and uncontested by Mitchell, in which Mitchell's work performance was found to be deficient: (1) Mitchell admitted that, in December 1999, he delayed admitting a patient to SICU for an hour, even though he knew the doctor had ordered the transfer. (2) Mitchell admitted that, in February 2000, he failed to notify the chief resident of an intern's indecisive action which may have contributed to the patient's death. Mitchell also admitted that two weeks later he was counseled on being the patient's advocate in this type of situation. (3) Mitchell admitted that on May 22, 2000, he gave 10 milligrams of the drug Versed to a patient without a doctor's order. Following this medication error,. the patient had a stroke and died. (4) Mitchell acknowledged that on May 24, 2000, he failed to properly document continued bladder irrigation and urine output on one patient. (5) Mitchell admitted that patient Pie's doctor had ordered that Pie's NG tube should not be manipulated without calling the doctor. Plaintiff also admitted that, in disregard of this direct order, he replaced Pie's NG tube on June 14, 2000, and he did not document that the intern was present.

On July 6, 2004, Mitchell filed a cause of action in this court, alleging that the termination of his employment was on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq and for retaliation pursuant to § 704(a) of Title VII.

STANDARD OF REVIEW
A. Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 269, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court reviews de novo those portions of the R & R to which a specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1)(c).

B. Legal Standard For Summary Judgment

To grant a motion for summary judgment, the court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence but rather to determine if there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "obligation of the nonmoving party is `particularly strong when the nonmoving party bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual bases." Celotex, 477 U.S. at 327, 106 S.Ct. 2548.

OBJECTIONS

After consideration of the facts supported by the evidence, the Magistrate Judge recommended in his R & R that Defendant's motion for summary judgment be granted. The Magistrate Judge found that the evidence taken in a light most favorable to Plaintiff showed him to have been a temporary employee who performed below his employer's reasonable expectation; accordingly, he found that Plaintiff had not proven essential elements of his disparate treatment or retaliation claim.

Mitchell cites three objections to the R & R: (1) the Magistrate Judge failed to mention that Defendant agreed to withdraw its asserted defense of issue preclusion; (2) the Magistrate Judge erred in finding that the record does not present genuine issues of material fact as to the claim for disparate treatment discrimination; and (3) the Magistrate Judge failed to address his retaliation claim.

(1) Plaintiff objects that the Magistrate Judge erred in failing to mention that Defense counsel withdrew the defense of issue preclusion and judicial estoppel at the hearing of this matter.

The court finds that this objection is without merit. The Magistrate Judge stated in footnote two on page eight of the R & R that "Defendant withdrew [the defense of issue preclusion] at oral argument." (R & R at 8.) As such, the Magistrate Judge correctly noted that the defense of issue preclusion and judicial estoppel was no longer before the court and did not refer to or rely upon this defense in reaching his recommendation that summary judgment be granted.

(2) Plaintiff objects that the Magistrate Judge erred in finding that the record does not present a genuine issue of material fact as to his claim for disparate treatment.

Plaintiff asserts that the Magistrate Judge erred by failing to accept the facts and draw all inferences in a light most favorable to Plaintiff. Specifically, Plain...

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