*fn26,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,ARVIN-MICHAEL TURNER, PLAINTIFF, v. ERIC SHINSEKI, SECRETARY, UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT." />

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Arvin-Michael Turner v. Eric Shinseki

November 15, 2011 *fn26

ARVIN-MICHAEL TURNER, PLAINTIFF,
v.
ERIC SHINSEKI, SECRETARY, UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, Arvin-Michael Turner ("Turner"), brings this action against Eric Shinseki, in his official capacity as Secretary of the Department of Veterans Affairs,*fn1 pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e (2006), and the Civil Rights Act of 1991, 42 U.S.C. § 1981 (2006), asserting claims of discrimination, retaliation, and hostile work environment.*fn2 Currently before the Court is the defendant's motion to dismiss and motion for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(c) or, in the alternative, for summary judgment pursuant to Rule 56. After carefully considering all of the parties' pleadings, the defendant's motion, the plaintiff's opposition, and all memoranda of law and exhibits submitted with these filings,*fn3 for the reasons set forth below, the Court concludes that it must grant in part and deny in part the defendant's motion to dismiss and motion for judgment on the pleadings, and grant the defendant's motion for summary judgment.

I. BACKGROUND

Viewing the facts of this case in the light most favorable to the plaintiff, as the Court must, the facts that form the basis for the plaintiff's claims are as follows.*fn4

The plaintiff is an African-American male who was employed for fourteen years as a Medical Technologist at the Department of Veterans Affairs Medical Center ("VAMC"), Pathology and Laboratory Service ("Pathology Service") division, in Washington, D.C.*fn5

Complaint ("Compl.") ¶¶ 16-17; the defendant's Statement of Material Facts as to Which There Is No Genuine Issue ("Def.'s Stmt.") ¶ 1. "The lab where [the p]laintiff work[ed] is open 24 hours a day, seven days a week, and has three shifts-morning, evening, and night." Def.'s Stmt. ¶ 3. "The evening shift runs from 4:00 P.M. to Midnight." Id. ¶ 1. "At all times relevant to this case, [the plaintiff worked] . . . the evening shift . . . ." Id.

In late 2004, one of the plaintiff's co-workers, Peregrina Lee ("Lee"), was promoted to evening shift supervisor, a position for which the plaintiff had also applied. Memorandum of Points and Authorities in Support of Motion to Dismiss and Motion for Judgment on the Pleadings or, in the Alternative, Motion for Summary Judgment ("Def.'s Mem."), Exhibit ("Ex.") 6 (Excerpts of Mitra Thompson's E[qual] E[mployment] O[pportunity] ("EEO") Affidavit ("Thompson Aff.")) at 6:18-7:1, 8:18-9:1; id., Ex. 19 (Letter from Plaintiff to Congressman Cummings, Dec. 1, 2004 ("Pl.'s Dec. 1 Letter")). After Lee was selected as the evening shift supervisor instead of the plaintiff, the plaintiff drafted two letters-one addressed to the Honorable Elijah Cummings, Congressman for the Maryland Seventh Congressional District, and the individuals involved in the selection process, see Def.'s Mem., Ex. 19 (Pl.'s Dec. 1 Letter),*fn6 and the other addressed only to the Congressman Cummings. See the Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss and Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment ("Pl.'s Opp'n"), Ex. 7 (The plaintiff's December 10, 2004 Letter to Congressman Cummings ("Pl.'s Dec. 10 Letter")). Both letters expressed the plaintiff's concern "that Black employees, in the Pathology and Laboratory Services of the Agency, were subjected to disparate treatment in hiring and promotions." Compl. ¶ 23; see Def.'s Mem., Ex. 19 (Pl.'s Dec. 1 Letter) (noting the plaintiff's concern "on how the selection process is not diverse and balanced"); Pl.'s Opp'n, Ex. 7 (Pl.'s Dec. 10 Letter) at 8-11 (referring to the selection of Lee as a "pre-selection," because "management had no intention of hiring [a] Black Female;" they just wanted "to make it seem like they [were] consider[ing] a Black Female"). The letters made it apparent to the recipients that the plaintiff felt that he was more qualified for the position than Lee, who had only recently joined the Pathology Service. See Def.'s Mem., Ex. 19 (Pl.'s Dec. 1 Letter) at 1-2. The plaintiff, apart from the two letters, did not engage in any further action regarding the alleged discrimination resulting from Lee's selection. See Def.'s Mem., Ex. 18 (Final Agency Order) (making no mention of discrimination in the selection process);*fn7 Def.'s Reply, Ex. 1 (EEO Counselor's Report, April 30, 2005) (mentioning no claim of discrimination in the selection process); Pl.'s Opp'n, Ex. 4 (Complaint of Employment Discrimination) ("Plaintiff's EEO Complaint") (making no claim of discrimination in the selection process); Def.'s Reply, Ex. 2 (Letter from EEO Specialist Dottie Lynn Robinson to the plaintiff, dated September 6, 2005) (informing the plaintiff of the acceptance of his claims, with no mention of discrimination in the selection process); Def.'s Mem, Ex. 6 (Thompson Aff.) at 9:14-17 (EEO Investigator Robinson stating that "we are not investigating the selection [for evening shift supervisor] . . . .").

A. January 19, 2005 Report of Contact

"On January 12, 2005, [the p]laintiff arrived at work and found a slide in his work area from a spinal fluid analysis that was begun by the day shift." Def.'s Stmt. ¶ 9 (citing Def.'s Mem., Ex. 1 (Excerpts of Plaintiff's Deposition Transcript, May 28, 2010 ("Pl.'s Dep.")) at 32:13-16). The plaintiff "then conducted a computer inquiry. After this inquiry, he assumed that nothing further should be done on th[e] slide." Id. (citing Def.'s Mem., Ex. 2 (Plaintiff's EEO Affidavit ("Pl.'s EEO Aff.")) at 6-7); see also Def.'s Mem., Ex. 9 (E-mail chain between Lee and the plaintiff, January 13-14, 2005 ("January 13-14 E-mail Chain")). However, the defendant contends that the plaintiff failed to review the communication log requesting that he perform a differential count on the slide specimen, even though, according to Lee, "[e]veryone should check the communication book for endorsement of anything left unfinished." Def.'s Stmt. ¶ 11 (citing Def.'s Mem., Ex. 3 (Excerpts of Peregrina Lee's EEO Affidavit, dated September 14, 2005 ("Lee Aff.")) at 8:6-8). When "it was brought to Lee's attention that the count was not done on the slide that had been left for [the p]laintiff . . . she sent him an e-mail." Def.'s Stmt. ¶ 10; Def.'s Mem., Ex. 9 (January 13-14 E-mail Chain); Def.'s Mem., Ex. 3 (Lee Aff.) at 8:15-9:21. "In that e-mail, Lee advised [the p]laintiff that the day shift had endorsed the spinal fluid sample to the evening shift for a differential count." Def.'s Stmt. ¶ 10. In a series of e-mails, Lee and the plaintiff disputed whose responsibility it was to perform the count on the slide specimen. See Def.'s Mem., Ex. 9 (January 13-14 E-mail Chain); Def.'s Mem., Ex. 3 (Lee Aff.) at 8:15-9:21. Specifically, Lee argued that the plaintiff failed to review the communications log from the day-shift, and the plaintiff maintained that checking the specimen's status in the computer was all that was required. Id., Ex. 9 (January 13-14 E-mail Chain). After the initial dispute, Lee verbally requested that the plaintiff verify the specimen. Id., Ex. 3 (Lee Aff.) at 14:8-18. Despite this request, the plaintiff never verified the specimen and Lee ultimately completed the task herself. Id., Ex. 3 (Lee Aff.) at 15:7-20.

On January 14, 2005, Lee sent the plaintiff an e-mail regarding two other, unrelated, slides that she said the plaintiff had also failed to properly analyze. Id., Ex. 10 (E-mail chain between Lee and the plaintiff, January 14 and 18, 2005 ("January 14 & 18 E-mail Chain")). In his response to these e-mails, the plaintiff requested that Lee, "when [in the office,] . . . speak to [him] directly," rather than through e-mail. Id. The plaintiff felt that Lee was using e-mail communication as "a form of [intimidation] to scare [him]," and that her use of e-mail was "creating a hostile work environment[.]" Id. (internal quotation marks omitted). In another e-mail, following the earlier exchange, Lee explained to the plaintiff that "e-mail notification is sent to everyone and [that] it [was] not only [the plaintiff who was] in this situation but everyone else as well." Id. Furthermore, Lee stated that her e-mails were not "a form of [h]ostility and intimidation." Id.

On January 19, 2005, Lee issued the plaintiff a Report of Contact. Id., Ex. 11 (Report of Contact, January 19, 2005 ("Report of Contact")). A Report of Contact is a written record of a verbal warning between the employee and a supervisor. See Def.'s Stmt. ¶ 18; Def.'s Mem., Ex. 5 (Excerpts of Mitra Thompson's Deposition Transcript ("Thompson Dep.")) at 48:1-20. The reports are catalogued in order to maintain an accurate record of any incidents. See Def.'s Stmt. ¶ 18 ("Reports of contact serve as records . . . ."); see also Def.'s Mem., Ex. 5 (Thompson Dep.) at 48:1-20 ("[A r]eport of contact is the documentation that a supervisor keeps, because not everyone remembers what happened . . . .".). The Report of Contact regarding the plaintiff cited him for his failure to perform the verification on the slide left by the day-shift on January 12, 2005, as well as his failure to perform the analysis on the two other slides referenced in the e-mails between the plaintiff and Lee dated January 14 and 18, 2005. Def.'s Mem., Ex. 11 (Report of Contact).

B. February 18, 2005 Counseling E-mail

The second disciplinary action occurred on February 18, 2005, nearly a month after the Report of Contact was issued, when Lee spoke with the plaintiff about his tardiness.*fn8 See Def.'s Stmt. ¶ 21. During that same discussion, Lee also told the plaintiff that he was required to review his e-mail at the beginning of his shift each evening. See id. Later that day, Lee sent the plaintiff an him an e-mail memorializing her counseling conversation. See id.; Compl. ¶ 27; Def.'s Mem., Ex. 15 (February 18, 2005 E-mail from Lee ("Counseling E-mail")). Among other things, Lee's e-mail reflected that she told the plaintiff "to read the e-mail everyday because there may be directives pertaining to his work that need[] to be addressed before he start[s] to work." Def.'s Mem., Ex. 15 (Counseling E-mail).

C. The Plaintiff's Equal Employment Opportunity Action

The plaintiff initially filed an EEO Complaint on April 20, 2005, concerning the events at

issue in this lawsuit. Def.'s Mem., Ex. 18 (Final Agency Order) at 6. In his EEO Complaint, the plaintiff alleged that he has was subjected to a hostile work environment, discrimination, and retaliation, based on the two alleged adverse employment actions that the plaintiff suffered-the January 19, 2005 Report of Contact and the February 18, 2005 Counseling E-mail, described in detail above.*fn9 Id. at 6-9; Pl.'s Opp'n, Ex. 4 (Plaintiff's EEO Complaint).*fn10 On December 19, 2006, "[p]ursuant to EEO Commission Regulation 29 C.F.R. § 1614.109, the [plaintiff's EEO case] was decided without a hearing." Def.'s Mem., Ex. 18 (Final Agency Order) at 5. The EEO Administrative Judge found, "[b]ased on the evidence presented and in the light most favorable to [the plaintiff, that he was] not [able to] prove, by a preponderance of evidence, that he was discriminated against and subjected to harassment because of his race," and also was not subjected to "retaliation in violation of Title VII." Id. The transmittal letter accompanying the Final Agency Order is also dated December 19, 2006. Id. at 2. The plaintiff does not recall when he received notice of the Final Agency Order. Def.'s Stmt. ¶ 32; Def.'s Mem., Ex. 1 (Pl.'s Dep.) at 10:12-22.

D. The Filing of the Complaint

After receiving the adverse decision in response to his EEO Complaint, the plaintiff filed

his original Complaint in this case on March 21, 2007.*fn11 His initial filing was determined to be deficient due to the plaintiff's failure to properly name all parties in the caption, properly sign the Complaint, submit the requisite number of copies, and use the correct civil cover sheet. Pl.'s Opp'n, Ex. 10 (March 21, 2007 Order Stating Deficiencies in Original Filing). The plaintiff refiled his Complaint on April 5, 2007.*fn12 In his new Complaint, the plaintiff asserts claims of discrimination, retaliation, and hostile work environment based on the Report of Contact and the Counseling E-mail. "[The plaintiff] believes that the subject counseling and reports [that are the basis of this litigation] were predicated on racial animus, as opposed to an objective view of his performance." Compl. ¶ 29; see also id. ¶ 40 (noting the discipline the plaintiff allegedly received followed his letters to his congressman). The plaintiff contends that as the only African-American on his shift he was singled out for discipline. See Pl.'s Opp'n, Ex. 2 (Pl.'s Dep.) at 72:19-73:10. On December 20, 2010, the defendant filed his motion to dismiss or for judgment on the pleadings, or, in the alternative, for summary judgment. In his motion, the defendant asserts the following: (1) "[the p]laintiff's claims are untimely because he filed his Complaint after the 90 day time limit specified in 42 U.S.C. § 2000e-16(c)," Def.'s Mem. at 1;

(2) "[the p]laintiff improperly seeks to hold a federal agency liable for punitive damages under

42 U.S.C. § 1981 in Count II of his Complaint," id.; (3) "[the p]laintiff cannot show that he suffered any materially adverse action," id., as the Report of Contact and Counseling E-mail do not constitute such employment actions under Title VII; (4) the circumstances surrounding the Report of Contact and Counseling E-mail do not create an inference of discrimination or retaliation because they are "legitimate business practice[s]," id.; (5) even if the plaintiff has established a prima facie case of discrimination, the defendant has provided "non-discriminatory reason[s]," id. at 2, for its actions and the plaintiff has not established that those actions were merely pretextual; and (6) neither the Report of Contact nor the Counseling E-mail "rise to the level of creating a hostile work environment," id. at 1-2; see generally Def.'s Mem.

In opposition, the plaintiff responds that the Complaint was filed in a timely manner under 42 U.S.C. ยง 2000e-16. See Pl.'s Opp'n 1, 18-19. The plaintiff also challenges the defendant's allegations that the Report of Contact and Counseling E-mail are not considered adverse employment actions, and further asserts that ...


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