Shoup v. McDonald

• Decision Date: 15 June 2016
• Docket Number: Case No. 3:14-cv-248
• Parties: PATSY SHOUP, Plaintiff, v. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

PATSY SHOUP, Plaintiff, v. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Defendant.

Case No. 3:14-cv-248

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

June 15, 2016

JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING IN PART AND NOT RULING UPON IN PART DEFENDANT ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS'S MOTION FOR SUMMARY JUDGMENT (DOC. #15); DEFENDANT'S MOTION IS SUSTAINED WITH RESPECT TO PLAINTIFF'S CLAIMS FOR DISCRIMINATION (COUNT I) AND RETALIATION (COUNT II) EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARISE FROM ALLEGED CONSTRUCTIVE DISCHARGE; JUDGMENT SHALL ULTIMATELY ENTER IN FAVOR OF DEFENDAMT AND AGAINST PLAINTIFF ON COUNTS I AND II, EXCEPT TO THE EXTENT THAT THOSE CLAIMS ARISE FROM ALLEGED CONSTRUCTIVE DISCHARGE; PLAINTIFF IS ORDERED TO SHOW CAUSE WITHIN TWENTY-ONE (21) DAYS AS TO WHY REMAINDER OF HER CLAIMS SHOULD NOT BE DISMISSED WITH PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION; DEFENDANT MAY FILE A RESPONSE WITHIN FOURTEEN (14) DAYS THEREAFTER

Plaintiff Patsy Shoup ("Plaintiff" or "Shoup"), a disabled former employee of Defendant Robert A. McDonald, Secretary of Veterans Affairs ("Defendant"), alleged that Defendant discriminated against her on the basis of her disability (Count I) and retaliated against her for engaging in protected activity (Count II). Plaintiff claimed that actions taken by her supervisor, Mark Frazee ("Frazee"), and her alleged de facto supervisor, Carolyn Crawford ("Crawford"), were "predicated on her known disability." Doc. #1, ¶ 16, PAGEID #3. Plaintiff has brought her claims under the Rehabilitation Act of 1973 ("Rehabilitation Act"). 29 U.S.C. § 701, et seq. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Defendant has filed a motion for summary judgment. Doc. #15. For the reasons set forth below, Defendant's motion is SUSTAINED IN PART, and not ruled upon in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff worked at the Dayton, Ohio, Veterans Affairs Medical Center ("Dayton VA") continuously from 1990 until March, 2014. Doc. #17, PAGEID #189-90. During her tenure at the Dayton VA, Plaintiff was never terminated, suspended or subjected to any disciplinary action. Doc. #15-2, ¶ 5, PAGEID #126. In May, 2008, Plaintiff was promoted to the position of Program Support Assistant, a GS-6/8 position. Doc. #15, PAGEID #65 (citing Doc. #23-1, PAGEID #265). Her tasks included handling "correspondence, supplies, timekeeping, files, [and] a lot of computer work." Doc. #23-1 PAGEID #264. In that role, she reported directly to Frazee, Chief of the Voluntary Service Department. Doc. #15-6, PAGEID #186. Plaintiff's timekeeping duties were supervised in part by Crawford, the Dayton VA's Voluntary Service Specialist, even though Crawford was not officially her supervisor.¹ Doc. #15-6, PAGEID #186; Doc. #23-1, PAGEID #260-61.

Shortly after beginning as a Program Support Assistant, Frazee and Crawford allegedly subjected Plaintiff to constant harassment. The harassment included "backstabbing, criticizing, . . . [and] damaging conversations." Doc. #23-1, PAGEID #259. Plaintiff testified that she was forced to perform some of the tasks of a Voluntary Service Specialist, which is "a GS-11 level. I was a GS-6. And when I would question my duties, then my supervisor would pull them away from me. . . . [T]here was a great inconsistency in my work." Id.

In October, 2010, Plaintiff and her family suffered a home invasion, in which Plaintiff suffered head trauma and was knocked unconscious. Doc. #17, PAGEID #190. Plaintiff was subsequently diagnosed with post-traumatic stress disorder ("PTSD"), which worsened Plaintiff's previous problems with Frazee and Crawford. Id. (citing Doc. #17-1, PAGEID #201-04). On March 6, 2013, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging four main incidents of disability discrimination:

1. April, 2010: Frazee placed his arm around Plaintiff's shoulder and told a co-worker that he had to counsel Plaintiff about arriving to work late, which was not true;

2. October 10, 2011: Crawford said, loudly enough for others to hear, that Plaintiff had a drinking problem. Crawford repeated her comment to Frazee, who failed to intervene or stop Crawford from repeating those comments;

3. October, 2012: In Plaintiff's presence, Crawford and Frazee joked that they had gotten Rhonda Cox, Plaintiff's predecessor as Program Support Assistant, fired; and

4. November 2, 2012: Crawford improperly assigned Plaintiff's timekeeping duties to Kenny Spann ("Spann"), a nondisabled employee who was the Voluntary Service department's backup timekeeper. Plaintiff was admitted to the Dayton VA emergency room ("Emergency Room") as a result of acute stress from the incident.

Doc. #1-1, PAGEID #8-9, 14.²

While Plaintiff was being treated in the Emergency Room, Frazee allegedly sent text messages to Plaintiff, informing her that she would be considered absent without leave ("AWOL"), if she did not return to work. Doc. #17, PAGEID #194 (citing Doc. #23-1, PAGEID #288-90). After her hospitalization, Plaintiff was diagnosed with acute work-related stress and took leave, pursuant to the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., until February, 2013. Id., PAGEID #194-95. Plaintiff's leave was partially paid and partially unpaid. Doc. #23-4, PAGEID #313. During Plaintiff's FMLA leave, she requested a transfer away from Frazee's supervision, but Brooke Harris ("Harris") and Michelle Reed ("Reed"), Dayton VA human resources department employees, denied her request.³ Doc. #17, PAGEID #195 (citing Doc. #17-3, PAGEID #206-08).

In September, 2013, Crawford announced her intention to retire from the Dayton VA, Doc. #23-4, PAGEID #310, and she did so on February 22, 2014. Doc. #15-2, ¶2, PAGEID #125; Doc. #17, PAGEID #196. Frazee allegedly had promised Plaintiff that she would be promoted to Crawford's position upon the latter's retirement, although Plaintiff would still have to apply for the position. Doc. #17, PAGEID #196-97; Doc. #19-1, PAGEID #224. However, nobody within the Dayton VA "posted" the position, and applications were never accepted. Doc. #23-1, PAGEID #266. Frazee was transferred to a different Department of Veterans Affairs hospital as of March 22, 2014, Doc. #15-2, ¶ 3, PAGEID #126, and Kimberly Frisco ("Frisco") replaced Frazee as the Dayton VA's Chief of Voluntary Service. Doc. #17, PAGEID #196. Plaintiff claimed that Frisco, who assumed Frazee's job responsibilities prior to his transfer, "continued the hostility and the abuse" that she had suffered while working under Frazee and Crawford. Doc. #23-1, PAGEID #267. Frazee later indicated to a co-worker that he thought Frisco "was driving [Plaintiff] off the edge." Doc. #17-4, PAGEID #209. Plaintiff retired from the Dayton VA effective March 29, 2014, although her last day of work was March 21, 2014. Doc. #15-2, ¶ 4, PAGEID #126; Doc. #17, PAGEID #196.

On April 28, 2014, the EEOC concluded that Plaintiff "fail[ed] to demonstrate by a preponderance of the evidence that she was discriminated against as alleged." Doc. #1-1, PAGEID #15. Plaintiff filed this lawsuit on July 30, 2014. Doc. #1.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment shall be granted "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). Summary judgment must be entered "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 moving party always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56 requires the nonmoving party to go beyond the pleadings and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. "The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff." Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

"Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Id. at 255. If the parties present conflicting evidence, a court may not decide which evidence to believe. Credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 3d, 2726 (1998).

In determining whether a genuine dispute of material fact exists, a court need only consider the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). "A district court is not . . . obligated to...