Tonkyro v. Sec'y
| Decision Date | 07 November 2018 |
| Docket Number | Case No: 8:16-cv-2419-T-36AEP |
| Parties | ERIN TONKYRO, DANA STRAUSER, KARA MITCHELL-DAVIS, YENNY HERNANDEZ. Plaintiffs, v. Secretary, DEPARTMENT OF VETERANS AFFAIRS, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon Defendant Robert Wilkie1, Secretary, Department of Veterans Affairs' Motion for Summary Judgment (Doc. 54), Erin Tonkyro, Dana Strauser, Kara Mitchell-Davis, and Yenny Hernandez's response in opposition (Doc. 60), Joint Statement of Agreed Material Facts (Doc. 63), Defendant's reply (Doc. 64), Plaintiffs' surreply (Doc. 67), Defendant's Renewed Motion for Summary Judgment (Doc. 85), and Plaintiffs' response in opposition (Doc. 89).2 The Court, having considered the parties' written submissions, including the Joint Stipulation of Agreed Material Facts, declarations, depositions and attachments thereto, and being fully advised in the premises, will now grant the Defendant's Motion for Summary Judgment.
Plaintiffs Erin Tonkyro, Dana Strauser, Kara Mitchell-Davis, and Yenny Hernandez bring this action alleging retaliation and hostile work environment claims under Title VII while working for Radiology Services at the James A. Haley VA Healthcare System. Plaintiffs' claims relate to Equal Employment Opportunity ("EEO") complaints that they settled in 2013. (Doc. 54-1 at 87-96); (Dep. Tonkyro, 45:5-18; Doc. 54-1 at 13)4; (Ex. 4; Doc. 54-1 at 87-96).5 The Third Amended Complaint ("TAC") alleges the following claims: Count I—Retaliation (Tonkyro, Mitchell-Davis, and Strauser); Count II—Hostile Work Environment (all Plaintiffs); Count III—Hostile Work Environment (Hernandez); and Count IV—Injunctive Relief under 42 U.S.C. § 2000e-16 of Title VII of the Civil Rights Act of 1964 (all Plaintiffs). Doc. 83.6
The James A. Haley VA Healthcare System ("VAHCS" or the "Tampa VA") is a Veterans Administration hospital and medical center. The chain of command is as follows. Kathleen Fogarty was Director between August 2011 to July 2015. (Dep. Fogarty7 at 4:23-5:5). Joe D. Battle became the Director on July 27, 2015. (Dep. Battle8 at 3:15-20). Edward Cutolo became the Chief of Staff for the Tampa VA in 2006 and oversaw all the medical services at the hospital, including Radiology. (EEO Dep. Cutolo9 at 4:8-20). Dr. Stephen Stenzler became the Chief of Radiology Services at the Tampa VA in approximately October 2012. (Doc. 63 at 2 ¶ 9). Stenzler is Plaintiffs'third line supervisor. Id. Dr. Joseph Parise was the Assistant Chief of Radiology from 2008 until June 2017. Id. at 2 ¶ 11. John Bennett became the Administrative Officer ("AO") of Radiology in January 2013 and was Plaintiffs' second line supervisor as the Chief Radiology Technologist from 2008 to 2012. (Doc. 63 at 2 ¶ 10). Jeri Graham was the Plaintiffs' direct supervisor until April 2012 and is currently Plaintiffs' second line supervisor and Chief Technologist in Radiology. Id. at 2 ¶¶ 3, 8). The Chief Technologist is a supervisor over all modalities of radiologic examinations, including MRI, ultrasound, X-ray, CT scan and mammography. Id. Graham is Plaintiffs' second line supervisor. Id. Carolyn Eubanks was the Plaintiffs' first line supervisor from January 2013 until November 2013. (Doc. 63 at 2 ¶ 5). After Eubanks' retirement, Mario De Leon became the Acting Supervisor over the Medical Instrument Technician ("MIT") and Magnetic Resonance Imaging ("MRI") technologists. (Doc. 63 at 2 ¶ 5, 6).
Due to De Leon's position change, he became the Plaintiffs' first line supervisor prior to October 2014 when Scott Petrillo started as the MIT and MRI supervisor. (Doc. 63 at p. 2 ¶ 6). Id. at 2 ¶ 7. Petrillo was the Plaintiffs' first line supervisor at the time of the filing of the Motion. Id. The Defendant employed these individuals and they all were acting within the course and scope of their employment with the Defendant at the time of the relevant and material conduct at issue in this case.
Erin Tonkyro is an MIT at the Tampa VA in the Radiology Service. (Dep. Tonkyro at 6:11-18; [Ex. A; Doc. 54-1 at 2-53]). An MIT performs diagnostic ultrasounds. Id. She has worked at the Tampa VA as an MIT since 2002. Id. Kara Mitchell-Davis is the Lead MIT at the Tampa VA. (Doc. 63 at 1 ¶ 2). She was hired in 2008 and promoted to the Lead MIT position in February 2014. Id. Dana Strauser began working as an MIT at the Tampa VA in November 2008. (Dep.Strauser10 at 8:11-18). Yenny Hernandez began working as an MIT at the Tampa VA in October 2011. (Dep. Hernandez11 at 14:8-14).
In May 2012, Tonkyro, Mitchell-Davis, and Strauser filed separate EEO complaints against the Tampa VA alleging sexual harassment by Parise, Bennett and Graham. (Doc. 63 at 2 ¶ 15). Hernandez did not file an EEO complaint alleging sexual harassment at that time. (Dep. Hernandez at 20:20-24 [Ex. D; Doc. 54-4 at 1-59]). But she did testify in support of the other Plaintiffs' claims. Dec. Hernandez12 at ¶ 1. In September 2013, the VA settled the EEO cases with Tonkyro, Strauser and Mitchell-Davis as evidenced in the written and signed settlement agreements. (Doc. 63 at 3 ¶ 17).
After the settlements, the Plaintiffs allege that their supervisors engaged in retaliatory actions in the workplace. These actions include: initiation of an Administrative Investigative Board ("AIB"), discussion by employees and management indicating that Plaintiffs would never become supervisors, disputes about understaffing in Radiology, a hostile work environment created by rampant spreading of rumors within the Tampa VA, and public disclosure of Plaintiffs' (and other employees) confidential employment records which were placed on the "S drive" accessible by all employees. (Doc. 60-1 at 1 ¶¶ 1-6, 16(a)-(o)).
i. Erin Tonkyro
Tonkyro contacted an EEO counselor alleging retaliation and a retaliatory hostile work environment based upon the settlement of her previous EEO complaint. (Dec. Tonkyro13 at ¶ 1). She filed an informal EEO complaint on May 1, 2012, and a formal one on June 12, 2012. (Dec.Tonkyro at ¶ 1). She filed another informal complaint on March 28, 2014, followed by a formal one on July 9, 2014. (Ex. A; Doc. 54-1 at 2-53); (Dep. Tonkyro at 8:1-22; Dec. Tonkyro at ¶ 1). She added additional claims and amendments on November 19, 2012. (Dec. Tonkyro at 2 ¶ 1). In her EEO complaints, Tonkyro alleged the following discriminatory behavior: Bennett slowly walked past her and glared; Stenzler recommended her application for a supervisory position but Fogarty disagreed; management required a Diagnostic Radiologic Technician ("DRT") license for a supervisory MRI/Ultrasound position which made her ineligible to apply; management disclosed confidential employment records, Parise entered her work area and glared at her, an employee, Warren Rose, made disparaging remarks after accessing the confidential employment records, and Bennett did not provide her with the essential equipment needed to carry out her job duties. (Doc. 60-1 at 123 ¶¶ 1-7, 33). The Tampa VA investigated the EEO claims as evidenced in the Department of Veteran's Affairs Office of Resolution Management's ("ORM") Written Affidavit.
On September 15, 2014, Tonkyro transferred from the main hospital to the newly opened Primary Care Annex ("PCA") where she continues to perform ultrasounds. (Doc. 63 at 3 ¶ 18). She visits the main hospital once a month for radiology staff meetings. (Dep. Tonkyro, at 12:7-12, 153:21-23 [Ex. A; Doc. 54-1 at 2-53]). On September 24, 2015, Tonkyro again contacted an EEO counselor, alleging retaliation and a retaliatory hostile work environment based upon her prior EEO activity. (Dep. Tonkyro at 8:13-15 [Ex. A; Doc. 54-1 at 3]). On November 2, 2015, she filed a formal EEO complaint. (Dep. Tonkyro at 9:19-10:6 [Ex. A; Doc. 54-1 at 2-53]). She alleged further retaliation based on her EEO settlement.
From 2012 to 2016, Tonkyro received "exceptional" and "outstanding" performance ratings. (Ex. A; Doc. 54-1 at 2-53); (Dep. Tonkyro at 269:13-271:11 [Exs. 18, 19, 20]). Tonkyrohas no record of discipline since the 2013 settlement agreement. (Dep. Tonkyro, p. 271:23-25 [Ex. A; Doc. 54-1 at 2-53]); (Dec. Graham, Ex. I; Doc. 54-5 at 94 ¶ 3).
ii. Dana Strauser
Strauser contacted an EEO counselor alleging retaliation and a retaliatory hostile work environment based upon the settlement of her previous EEO complaint in September 2013. (Dep. Strauser14 at 12:3-13:4 [Ex. C; Doc. 54-3 at 4-5]). Strauser filed an informal EEO complaint on May 1, 2012, and a formal EEO complaint on June 8, 2012. She filed another informal complaint on March 28, 2014, (Dec. Strauser15 at 2 ¶ 1) and a formal complaint on July 11, 2014. (Doc. 54, at 6 ¶ 24). She filed yet another EEO complaint on June 14, 2015. (Dec. Strauser at 2 ¶ 1).
Strauser alleged that Angel Geraci-DiSimone's bullying claims and the ensuing AIB investigation into it lacked good faith; during the investigation management officials spread rumors and made denigrating remarks about her and the other Plaintiffs. (Dep. Strauser at 13:7-12, 15:7-16:16 [Ex. C; Doc. 54-3 at 5]). Strauser received threatening and harassing telephone calls. (Dep. Strauser at 42:23-43:15 [Ex. C; Doc. 54-3 at 12]). She complained about the public disclosure of the confidential employment records and Bennett's role in investigating it. (Dep. Strauser at 114:6-21 [Ex. C; Doc 54-3 at 30]); (Doc. 54-3 at 75 ¶ b). She also alleged that management created an Ultrasound Supervisor position and then changed the qualifications to purposefully disqualify her from applying. (Doc. 54-3 at 75 ¶ a).
Between January 12, 2015, and May 5, 2015, Strauser took maternity leave. (Dep. Strauser at 144:2-13 [Ex. C; Doc. 54-3 at 37]). On February 10, 2016, Strauser again contacted an EEO counselor and filed an informal EEO complaint...
To continue reading
Request your trial