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Chavers v. Shinseki

November 5, 2009

DEE DEE CHAVERS, PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Dee Dee Chavers is an employee of the United States Department of Veterans Affairs ("VA" or "the agency"). She claims that her employer discriminated against her on the basis of her disability, discriminated against her by subjecting her to a hostile work environment based on her gender, and retaliated against her for complaining about that discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. Defendant has moved for judgment on the pleadings or, in the alternative, summary judgment on all of plaintiff's claims. Having considered defendant's motion, the record herein, and for the reasons set forth below, the Court will grant the motion.

BACKGROUND

At all times relevant to this case, plaintiff was employed as a Program Specialist in Nursing Education at the Veterans Affairs Medical Center ("VAMC") in Washington, D.C. (Pl.'s Opp'n ("Opp'n") to Def.'s Mot. to Dismiss and Mot. for J. on the Pleadings or in the Alternative, Mot. for Summ. J. ("Mot."), Statement of Genuine Issues and Affirmative Statement of Material Facts ("Pl.'s SMF") at 1 ¶ 1.) During the relevant period, plaintiff was a thirty percent or greater compensable service-connected disabled veteran. (Mem. in Supp. of Mot. ("Mem.") at 29; Compl. ¶ 7.) She asserts that she suffers from a variety of medical conditions, including some that cause "chronic pain in her back and legs," that substantially limit walking, standing, and sitting. (Pl.'s SMF at 10 ¶¶ 31-32.)

I. THE ALLEGED HARASSMENT

In 2004, plaintiff's work area was moved to the VAMC's basement, putting her in the vicinity of the Building and Trades Unit ("BTU") of the VAMC's Facilities Management Service ("FMS"). (Pl.'s SMF at 1-2 ¶¶ 2, 4.) One of the carpenters working in the BTU was Albert Rogers, whom plaintiff described as a "very friendly" and "very jolly" "350-pound muscular guy with a loud voice" who "made it a point to know as many people as possible" and "would cheerfully greet" people he saw by "smil[ing] and speak[ing]" to them "whether he knew [them] or not . . . ." (Def.'s Mot. to Dismiss and Mot. for J. on the Pleadings or in the Alternative, Mot. for Summ. J. ("Mot."), Ex. 1 (Chavers Dep., Oct. 29, 2008) ("Chavers Dep."*fn1 at 45:5-11, 55:4-8, 67:11-18.)

Plaintiff had several work-related interactions with Rogers via telephone and electronic work order, and following her 2004 relocation to the VAMC basement, she also encountered him briefly in the hallway on several occasions. (Pl.'s SMF at 2 ¶¶ 3-4.) On two or three of those occasions, Rogers offered to "'take [plaintiff] out to lunch'" (Chavers Dep. at 43:19-25 (quoting Rogers), 48:2-5), but plaintiff declined, at which point Rogers would, in plaintiff's words, "latch onto the next person." (Chavers Dep. at 43:19-25; see also Pl.'s SMFat 2 ¶ 4.) On a separate occasion, plaintiff told her supervisor, Dr. Suzanne McNicholas, that Rogers had made comments to a nurse that the nurse had found "inappropriate." (Opp'n, Decl. of Dee Dee Chavers ("Chavers Decl.") ¶ 34).)

At approximately 1:00 p.m. on June 7, 2005, plaintiff was exiting the nursing education and research classroom and locking the door behind her when she encountered Rogers in the "brightly lit" hallway where "a lot of people" were present. (Pl.'s SMF at 2 ¶ 5; Chavers Dep. at 54:4-55:1, 61:11-13.) Rogers was standing in front her, hunched over his red steel tool cart, blocking her exit with the cart. (Pl.'s SMF at 2 ¶ 6; Chavers Dep. at 51:7-11.) Rogers told her that he would not move until she gave him a kiss. (Pl.'s SMF at 2 ¶ 6.) When plaintiff asked him to move the cart, Rogers replied, "Not until you give me a kiss for the work that I've done." (Id. at 2 ¶ 7.) Plaintiff then attempted to move Rogers and the cart by pushing against them for "probably a few seconds" with the right side of her body, straining her arm in the process. (Chavers Dep. at 57:13-15; Pl.'s SMF at 2 ¶ 8.) Plaintiff did not call out for help. (See Chavers Dep. at 61:18-62:4.) Raymond Doster, a medical records supervisor, came over after noticing plaintiff and Rogers and told Rogers to leave plaintiff alone, at which point Rogers left. (Pl.'s SMF at 2 ¶ 9; Chavers Dep.at 59:6-8.) The entire incident lasted "[p]robably over a minute." (Chavers Dep. at 56:14-20.)

Immediately following the incident, plaintiff returned to her office and "cried for about an hour." (Chavers Dep. at 59:12-15.) Feeling pain throughout the right side of her body, plaintiff took the stairs up one floor to the occupational health unit, but because it was too crowded, she left without checking in or being evaluated and returned to her office. (See id. at 59:15-60:21.) Feeling unable to focus, she left the office shortly before she was scheduled to get off of work at 3:00 p.m. (Id. at 60:22-24.)

Within a day or two of the Rogers incident, Doster related what he had observed to Larry Osborne, the BTU supervisor. (Pl.'s SMF at 6-7 ¶ 20.) On June 9, 2005, Osborne orally instructed Rogers not to go near plaintiff's office. (Def.'s Statement of Material Facts as to Which There Is No Genuine Issue ("Def.'s SMF") ¶ 21.)*fn2 Plaintiff did not talk about the Rogers incident with anyone, not even friends or family, until one week later. (Chavers Dep. at 64:18-25.) On June 13, 2005, she reported the incident to Carol Mather, a specialist in the agency's Equal Employment Opportunity ("EEO") office. (See Mot., Ex. 7 (Carol Mather EEO Aff., Jan. 19, 2006) ("Mather Aff.") ¶ 5.) The EEO office began an investigation into the Rogers incident, and Mather learned that two other female employees reported incidents with Rogers after plaintiff's incident. (Id. ¶¶ 15-17;Mot., Ex. 6 (Carol Mather Dep., Aug. 2, 2006) at 8:17-19; see also Chavers Dep. at 68:21-69:17.)

On June 14, 2005, plaintiff reported the incident to the VA Police Service and McNicholas, her immediate supervisor. (See Chavers Dep. at 64:18-25; Pl.'s SMF at 3 ¶ 11, 7 ¶ 22; Mot., Ex. 15 (McNicholas Dep., Aug. 2, 2006) ("McNicholas Dep.") at 14:2-18.) Plaintiff requested that Rogers be restricted to certain areas of the building, that he not be permitted to interact with her, and that a panic button be installed in her office. (Chavers Dep. at 74:4-11.) On June 15 or 16, McNicholas spoke with David King of the EEO office and later spoke with Osborne, telling him that she wanted Rogers to have no further contact with plaintiff. (McNicholas Dep. at 14:12-15:12, 19:2-3; Mather Aff. ¶ 18.) McNicholas also advised plaintiff's second-level supervisor, Geraldine Feaster, about the Rogers incident. (See McNicholas Dep. at 23:21-24:6.)

On June 20, 2005, McNicholas and Osborne met with Rogers to discuss the incident, and McNicholas told Rogers that he was to avoid contact with plaintiff; the next day, Rogers went on unpaid leave. (McNicholas Dep. at 19; Mot., Ex. 16 (Osborne Mem.) at 1-2; see Mot., Ex. 24 (June 20, 2005 Rogers Mem.) ("Rogers Mem.").) On July 1, Rogers took early retirement and the EEO investigation was finalized. (See Rogers Mem.; Mather Aff. ¶¶ 23, 30; Chavers Dep. at 69:6-9.) Despite Rogers' retirement, plaintiff still requested the installation of a panic button due to her desire to "feel safe in [her] environment," because the VAMC basement was connected to an open garage which, she believed, Rogers or "[a]ny vagrant" could enter "at any point in time." (Chavers Dep. at 74:16-22.) However, plaintiff never saw Rogers after the June 7, 2005 incident, and her only basis for believing that Rogers would return was "the fear that he [in]flicted" upon her. (Id. at 74:23-75:3, 75:17-18.) The panic button that plaintiff had requested was installed in February 2006. (Chavers Decl. ¶ 39.)

On September 14, 2005, plaintiff filed a formal complaint of discrimination regarding the Rogers incident. (Compl. ¶ 34.) Defendant does not challenge plaintiff's exhaustion of her administrative remedies with respect to this claim.

II. THE NON-SELECTIONS

A. Vacancy Announcement NEU-05-90 (August 2005)

On or about August 23, 2005, plaintiff was not selected for the position of Administrative Office in the Neurology Service, which had been advertised in vacancy announcement NEU-05-90. (Chavers Dep. at 130:1-5; Chavers Decl. ¶ 56.) On August 25, she emailed Keith Manning and two other individuals to inquire why she was not selected; to assert that her experience and education "extend[ed] far beyond" that of the selected individual; to seek specific information about the selection process; and to request reconsideration. (Mot., Ex. 22 ("Chavers-Manning Emails") at 1.) Manning responded that plaintiff was "qualified, referred[,] but not selected for the position," and advised her to contact the Neurology Service if she wished to inquire why she was not selected. (Id.) On September 1, plaintiff responded to thank Manning and stated that she would talk to Dr. Pincus, the selecting official. (See id.; Chavers Dep. at 118.) That same day, plaintiff received an email notification of the non-selection. (See Mot., Ex. 18 ("Kruger-Deal Emails") at 2.)

B. Vacancy Announcement HRMS-05-165 (September 2005)

On or about September 30, 2005, plaintiff was not selected for the position of Human Resources Specialist, which had been advertised in vacancy announcement HRMS-05-165. (Chavers Decl ¶ 58.) Plaintiff asserts that did not receive a notice of this non-selection until "after Thanksgiving 2005." (Kruger-Deal Emails at 1.)

C. Vacancy Announcement OSP-05-221A (March 2006)

On or about March 9, 2006, plaintiff was not selected for the position of Program Specialist, which had been advertised in vacancy announcement OSP-05-221A. (Chavers Decl. ΒΆ 59.) Plaintiff asserts that she did not receive the ...


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