The opinion of the court was delivered by: Deborah A. Robinson United State Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action against her former employer, Defendant Anthony Principi, Secretary of the Department of Veterans Affairs, for alleged violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. In Count One of her Complaint, Plaintiff alleges that the Defendant treated her"in a disparate manner and terminat[ed] Plaintiff because of her age[.]" Complaint ¶ 13. In Count Two, Plaintiff alleges that Defendant retaliated against her in violation of Title VII. Id. ¶ 16. Pending for determination by the undersigned United States Magistrate Judge is Defendant's Motion for Summary Judgment (Docket No. 36). Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, Defendant's motion will be granted in part and denied in part.
Plaintiff, a female born on July 13, 1951, was employed by Defendant as a full-time Medical Clerk, GS-5, in the Nursing Services Division of the Veterans Affairs Medical Center ("VAMC"). Plaintiff Mary E. Hayes' Statement of Genuine Issues and Response to Defendant's Statement of Material Facts Not in Dispute ("Plaintiff's Statement") at 2. When Plaintiff's employment began on April 12, 1998, Delilah White, her supervisor, informed Plaintiff that she would be subject to a one-year probationary period.*fn1 Id. at 2-4.
On March 19, 1999, Ms. White summoned Plaintiff to her office and served her with a Notice of Termination, effective April 2, 1999. Id. at 6. Ms. White informed Plaintiff that she would be placed on leave effective immediately, to end on April 2, 1999, and then directed that Plaintiff be escorted from the building by police officers. Id.
Plaintiff filed the instant civil action in this court on March 21, 2001, and alleges in Count One that the Defendant"treated Plaintiff in a disparate manner and terminating [sic] Plaintiff's employment because of her age" in violation of the ADEA. Complaint ¶ 13. Plaintiff, in Count Two, asserts that Defendant violated Title VII"by retaliating against Plaintiff for having opposed what she in good faith believed to have been unlawful discriminatory harassment... on the basis of her gender and/age [sic]." Id. ¶ 16.
Defendant moves for summary judgment with respect to both claims.*fn2 Defendant's Motion for Summary Judgment at 1. Defendant contends that Plaintiff has not established a prima facie case of age discrimination as she"has failed to show her age was a determining factor in her termination." Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Defendant's Memorandum") at 7. Defendant further submits that"Plaintiff has failed to show that any other intermittent employees outside her protected class were treated differently than she was treated." Id. With respect to Plaintiff's retaliation claim, Defendant similarly contends that Plaintiff failed to make a prima facie showing, as"Plaintiff never raised any Title VII issues of discrimination at any time with the union or with the RMO [Responsible Management Official]" and, accordingly"did not participate in any prior protected activity." Id. at 7.
In the alternative, Defendant submits that even if Plaintiff were to succeed in making a prima facie showing of age discrimination, Defendant would still be entitled to summary judgment, as it can show a legitimate non-discriminatory reason for Plaintiff's termination. Id. at 9. Defendant contends that"Plaintiff exhibited questionable coping mechanisms with respect to the VA patients and the nursing staff"; that she"consistently exhibited unprofessional behavior"; that she"was discharged for several conflicts with patients and staff"; and that"[i]n effect, Plaintiff was not a team player and did not work well within the division." Id. at 10. Lastly, Defendant submits that Plaintiff cannot show"persuasive evidence from which a fact finder could find that the Agency's decisions to terminated Plaintiff were based on any unlawful motivations" since"Plaintiff can not show any genuine dispute of material fact as to the truth of the Agency's proffered reasons for the Agency's actions." Id. at 11-12.
Plaintiff, in her opposition, submits that she has established a prima facie case of age discrimination. Plaintiff contends that Defendant attempted to avoid identifying by name an employee referred to by Defendant as"M.,"*fn3 and the"VA's failure to identify [M.]... compels the conclusion that [M.] was similarly situated to Hayes; [M.] engaged in more egregious misconduct than Hayes; and the VA treated [M.] favorably in comparison to Hayes." Plaintiff's Opposition at 29. Plaintiff submits that Defendant"favored [M.] by terminating her for a neutral reason" while"terminating Hayes with allegations about'frequent conflicts with staff and patients,' describing at length Hayes' purported performance deficiencies, and even attacking her'general character traits.'" Id. Plaintiff also points to Defendant's treatment of Sharon Doughty, who Plaintiff contends is a thirty-five year old nurse against whom Defendant took no adverse personnel action. Id. at 30.
Plaintiff further contends that Defendant's legitimate nondiscriminatory reasons for terminating Plaintiff are false. Id. at 31. In support of her assertion, Plaintiff claims that her
recommendation for promotion, dated less than four months before her termination, rated her as'Outstanding' in the very category for which the VA now claims it fired her. Morever, less than a month before her termination, Hayes received an award for outstanding customer service. Of the six specific acts alleged by the VA to have formed the basis of its decision to fire Hayes, two alleged staff conflicts were deemed immaterial at the time; one patient complaint was fabricated; and another co-worker complaint is not credible.
With respect to her retaliation claim, Plaintiff contends that she did in fact engage in a protected activity when she met with Ms. White even though she did not specifically state that she objected to the alleged"discrimination," and that Defendant"points to no authority that requires Hayes to use the catchword'discrimination' when she states her opposition [to alleged discriminatory acts in the workplace.]" Id. at 37. Plaintiff further submits that the temporal proximity between the meeting and her termination is"sufficient to establish the causation element." Id. at 38. Lastly, with respect to her ability to demonstrate pretext, Plaintiff asserts that Defendant's"own documents and sworn witness testimony demonstrate that its proffered reasons for firing Hayes are littered with non-truths and false accusations." Id. at 40.
Plaintiff, in her supplemental opposition, contends that Hayes and"M." were"similarly situated in all material respects: both worked as Medical Clerks in the Red Clinic; both were supervised by Dee White; both were subject to the same performance standards; and both had a Performance Appraisals prepared by White in April 1999, after their respective terminations." Supplement to Opposition of Plaintiff ...