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Johnson v. Nicholson

May 11, 2007

JOYCE JOHNSON, PLAINTIFF,
v.
R. JAMES NICHOLSON, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Joyce Johnson brings this action against her employer, defendant James R. Nicholson, Secretary of the Department of Veteran Affairs, alleging that defendant discriminated against her on the basis of her race and retaliated against her based on her participation in protected activity under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Plaintiff does not oppose defendant's motion for summary judgment as it applies to her substantive discrimination claims; thus only her retaliation claim remains.

By motion dated September 14, 2006, defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties consented to me presiding over this motion pursuant to 28 U.S.C. § 636(c). Viewing the evidence in the light most favorable to plaintiff, and for the reasons set forth below, I find that there are no material facts in dispute such that a reasonable jury could conclude that plaintiff was the subject of unlawful retaliation. Accordingly, summary judgment is granted to defendant.

I. FACTS

The following facts are taken from defendant's Statement of Undisputed Material Facts pursuant to Local Rule 56.1 ("Def.'s 56.1 Statement"). Plaintiff has not submitted a Local Rule 56.1 Counter-Statement, and thus defendant's 56.1 Statement will be accepted as the undisputed facts in this case. See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (finding that because plaintiff failed to respond with a Rule 56.1 Counter-Statement, defendant's 56.1 Statement is deemed admitted as a matter of law.) Because this is defendant's motion, the facts will be viewed in the light most favorable to the plaintiff.

Plaintiff Joyce Johnson, an African-American woman, is currently a Special Projects Manager at the Brooklyn Veterans Affairs Medical Center ("Medical Center") in Brooklyn, New York. (Def.'s 56.1 Statement ¶¶ 1, 2.) From 1993 until the present, plaintiff has been employed at the Medical Center as an Associate Chief Nurse, an Acting Chief Nurse, an Associate Chief Nurse of Special Care Units, and finally, as a Special Projects Manager. (Def.'s 56.1 Statement ¶¶ 3-7.)

Plaintiff claims that she was retaliated against for filing protected Equal Employment Opportunity ("EEO") complaints and a prior federal lawsuit. She alleges the following protected acts: (1) a formal EEO complaint filed July 23, 1998 alleging racial discrimination; (2) a federal lawsuit filed July 1999, alleging employment discrimination, see Johnson v. West, No. 99-CV-4339 (ILG) (JMA); (3) an informal EEO complaint filed April 20, 2000 and a formal EEO complaint filed July 20, 2000, regarding her non-selection for a Care Line Manager position; (4) an informal EEO complaint filed July 12, 2000 and a formal EEO complaint filed September 10, 2000 regarding defendant's denial of funding for plaintiff to attend a Blacks In Government ("BIG") conference; and (5) an informal EEO complaint filed August 14, 2000 and a formal EEO complaint filed October 12, 2000 regarding defendant's issuance of written counseling memoranda to the plaintiff. (Def.'s 56.1 Statement ¶¶ 111-12, 116, 118-19, 123-24.) The following facts pertain to the employment actions giving rise to plaintiff's claims.

In the late 1990s, the New York Veterans Affairs Medical Center and the Brooklyn Veterans Affairs Medical Center merged to become the New York Harbor Healthcare System. (Id. ¶ 12.) Due to the integration, the Chief Nurses, including plaintiff, had to reapply for their jobs, and the Associate Chief Nurse position was reclassified as a Care Line Manager position. (Id. ¶¶ 13, 15.) In April 2000, the Veterans Affairs office issued a vacancy announcement for three Care Line Manager positions: (1) a surgical care line manager for the Brooklyn campus; (2) a medical care line manager for the Brooklyn Campus; and (3) a mental health care line manager for the whole New York Harbor Healthcare System. (Id. ¶¶ 16, 17.) Plaintiff applied for these three positions. (Id. ¶ 23.)

In applying for the positions, plaintiff completed an application, submitted a resume, and was interviewed by a panel. (Id. ¶ 24.) All qualified applicants, including plaintiff, were interviewed by a panel with identical panel members, made up of a cross section of employees from various departments within the New York Harbor Healthcare System. (Id. ¶¶ 32-34.) The process used to select the Care Line Managers was the "High Performance Development" model, in which the interviewers identified eight "core competencies" to address the skills required for the position. (Id. ¶¶ 27, 28.) In addition to plaintiff, employees Karen Biancolillo, Sheila Britton, Rose Browne, Marianne Lynch, Karel Raneri-Vitale, Joann Roberts, Susan Sodden, Laura Vigliarolo, Aurita Waterman, and Alan Winkler applied for the positions. (Id. ¶ 38.) Of the candidates, plaintiff, Aurita Waterman and Sheila Briton are African-American; the remaining are white. (Id. ¶¶ 39, 40.)

At the end of the interviews, plaintiff was ranked seventh out of eleven candidates. (Id. ¶ 44.) Rose Browne was selected for the Medical Care Line Manager position, Sheila Britton for the Surgical Care Line Manager position, and Karel Raneri-Vitale for the Mental Health Care Line Manager position. (Id. ¶ 46.) Defendant claims that Browne was selected for the Medical Care Line Manager position and Britton was selected for the Surgical Care Line Manager position because they were both qualified for the May 11, 2007 positions and they outranked the other candidates, including plaintiff. (Id. ¶¶ 47, 49.) Defendant similarly asserts that Rainier-Vitale was selected for the Mental Health Care Line Manager position because she had a psychiatric mental health background and she outranked all other candidates, including plaintiff. (Id. ¶ 48.) Plaintiff argues that she was more qualified than any of the candidates who applied for the positions, except for Alan Winkler, whom plaintiff does not know. (Id. ¶ 53.) She also claims that Sheila Britton, who is African-American, was only given the position in order to undermine plaintiff's EEO claims. (Id. ¶ 58.)

In July 2000, after not being chosen for any of these positions, plaintiff applied for funding to attend a Blacks in Government ("BIG") conference being held in August 2000. (Id. ¶¶ 66, 74.) The funding to attend this type of program was given by the Medical Center's education committee, which met every other Monday. (Id. ¶ 69.) In July 2000, the committee met on three Mondays: July 3, 10 and 24. (Id. ¶ 70.) On July 3, five employees were approved for $1,500 in travel and $1,500 in tuition to attend the BIG conference. (Id. ¶ 71.) Plaintiff, however, applied for funding on July 13 and her request was discussed at the July 24 meeting of the education committee. (Id. ¶¶ 79, 80.) Defendant claims that plaintiff's request for funding was denied because "five other employees had already been approved and monies were low." (Id. ¶ 81.) Defendant also notes that two other employees were denied funding at the same time as plaintiff. (Id. ¶ 82.) Later, an employee who was originally granted funding decided not to attend, so as per "standard practice," the funds allocated for her were divided among the four employees previously approved for funding. (Id. ¶ 93.) Plaintiff contends that by dividing this money among the four employees and not granting her funding, defendant retaliated against her for protected activity. (Id. ¶ 92.)

Subsequently on August 2, 2000, plaintiff received written counseling regarding her use of sick leave. (Id. ¶ 97.) This written counseling memorandum was issued because between January and August 2000, plaintiff used most, if not all, of her accumulated sick leave. (Id. ¶ 96.) Defendant claims that plaintiff's "absenteeism cause[d] management not to be able to plan work properly, and put[] an undue burden on [plaintiff's] fellow employees." (Id. ¶ 98.) Plaintiff was not, however, required to submit medical proof of her absences, and the letter was not placed in plaintiff's personnel folder. (Id. ¶¶ 99, 100.)

On August 7, 2000, plaintiff again received written counseling for being absent without leave during her shift on July 27, 2000. (Id. ¶¶ 104, 107.) On July 27, Elvira Miller, plaintiff's immediate supervisor, paged plaintiff three times between 3:30 and 4:00 pm and plaintiff failed to respond to these pages. (Id. ¶ 105.) Plaintiff, however, cannot remember where she was during this time. (Id. ¶ 106.) This written counseling letter was also not ...


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