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Roberta Ann Walach v. Erick Shineski

February 28, 2012

ROBERTA ANN WALACH, PLAINTIFF,
v.
ERICK SHINESKI, AS SECRETARY OF VETERAN AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Daniel T. K. Hurley United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT & DENYING PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

Plaintiff, Roberta Ann Walach, a Caucasian female, alleges that her employer, the Department of Veterans Affairs ("VA")*fn1 violated Title VII by discriminating against her based on race. The defendant has moved for summary judgment, contending, first, that plaintiff is unable to establish a prima facie case of discrimination due to insufficient evidence of disparate treatment of a similarly situated employee outside her race. Alternatively, defendant argues that it has offered a legitimate, non-discriminatory reason for the challenged employment action which plaintiff does not rebut with evidence of pretext. Plaintiff has cross-moved for summary judgment on the issue of liability.

I. Background *fn2

Walach is employed as a staff operating room ("OR") nurse at the Veterans Administration Hospital ("the hospital") located in West Palm Beach, Florida. On October 2, 2009, Walach was injured in an off-duty motorcycle accident causing fractures to her left clavicle, scapula and ribs. Her doctor released her to light duty work with lifting restrictions on December 16, 2009. On that date, Wallach presented the physician's release to her immediate supervisor, Helen Glinski ("Glinski"), also a Caucasian female. After consulting with her superior, Bonnie Richter, Glinski returned and told Wallach that there were no light duty positions available for OR nurses with non-work related injuries at that time.

On the following day, Walach's request was formally submitted to the hospital's five-member "light duty review board," consisting of a physician, safety officer, employee union representative and two nurses, Olivia Freda and Katherine Schreiber. Although Glinski was generally supportive of Walach's request, the board denied it citing a then existing backlog of requests for light duty assignments from nurses injured on the job and a company policy giving preference to such applicants. Consequently, Ms. Wallach remained on leave without pay until she was able to resume her post without restrictions on March 8, 2010.

In August, 2010, Walach learned that another OR staff nurse, Debra Shannon, an African-American, had been hospitalized for a heart condition while out on vacation, and upon return to work was placed in a "float" position, essentially operating as a back-up for other OR staff nurses during scheduled breaks. Walach contends that she frequently observed Shannon resting in the lounge wrapped in blankets following that assignment, and that other employees complained about her work lapses without any disciplinary repercussion from supervisor Helen Glinski. Shona Pryce, the "flow coordinator" responsible for OR staff scheduling, testified that other OR nurses also complained about Shannon walking out of the OR room during surgical procedures ( a terminable offense) on two separate occasions during this time, and that Shannon was allowed to remain on the job despite report of these derelictions to Glinski.

According to Glinski, Shannon delivered a doctor's note dated August 26, 2010 which released her back to work without restriction on August 30, 2010, and that Shannon never formally requested or received a light duty work assignment. Glinski explains that as nurse manager, she had discretion to instruct the flow coordinator to assign a nurse who was not feeling well, such as Shannon, to a "float" position, which is generally considered to be a less stressful position in the OR but is not formally designated as a light duty position. Glinski acknowledges that she directed such an assignment for Shannon, and does not recall receiving any complaints about Shannon's performance in that capacity during her limited period of incapacitation.

After learning of the accommodation made for Shannon, Wallach presented a charge of discrimination, pursuant to defendant's internal procedures, contending that was treated in an unfair and racially discriminatory manner because a similarly situated African-American employee was granted a light duty work assignment despite similar incapacities, where Walach was denied such a request. Walach filed this lawsuit after the Department of Veterans Affairs ultimately dismissed her complaint and issued a notice of right to sue.

Beyond the proffered comparator evidence, the only other circumstantial evidence of bias on the part of hospital management personnel derives from the affidavit testimony of Bonnie Carter dated January 27, 2012. In this affidavit, Carter offers to correct her prior deposition testimony of December 20, 2011, in which she disclaimed any knowledge of derogatory racial statements made by Glinski. In her current affidavit, she now recalls a prior conversation with Helen Glinski involving another African-American OR employee, Wilbert Evans. Carter alleges that she complained to Glinski about reports of poor work performance jeopardizing patient safety , but that Carter dismissed the complaints saying she knew Evans was unsafe but "there was really nothing she could do because he had 'three cards in his favor." Glinski then allegedly elaborated by saying, "Number one: he is a veteran and number two....," at which point she allegedly touched the back of her hand with her fingers rubbing it back and forth. Carter interpreted this as a reference to the color of Mr. Evans skin and a race-based preferential treatment.

In response to allegations of bias charged to Glinski, the defendant counters that Glinski did not have ultimate decision making authority over the challenged employment decision. Initially, defendant shows that Glinski simply relayed the denial of Walach's light duty work request made by Bonnie Richter, Glinski's own supervisor, when she verbally reported back to Walach that there were no light duty positions available for her in OR in December 2009.

Subsequently, defendant shows that Glinski was not a participant in the hospital's light duty review board which formally considered and denied Walach's request. It further shows that Glinski was generally supportive of Walach's request before the board and expressed a willingness to find clerical work for Walach should the board allow the requested assignment. There is no competing record evidence suggesting that Glinski in fact participated in the decision to deny Walach's light duty work request, or that she otherwise exercised any negative influence over the decision makers who did participate in that process.

III. Discussion

A. Standard

A case of race discrimination under Title VII based on purely circumstantial evidence is governed by the familiar burden shifting framework outlined by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Under McDonnell-Douglas and its progeny, to establish a prima facie case of unlawful race discrimination the plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) she was treated less favorably than similarly situated employees outside her race, and (4) she was qualified to do the job. See Maynard v. Bd of Regents 342 F.3d 1281 (11th Cir. 2003). See also Holifield v Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). To establish that a defendant treated similarly situated employees more favorably, plaintiff must show that her comparators are "similarly situated in all relevant respects." Id. In evaluating the "similarly situated" component in cases involving allegedly discriminatory discipline or preferential treatment, the "quantity and quality" of the comparator's circumstances must be "nearly identical" to those of the plaintiff. Peppers v Traditions Golf Club, 2012 WL 443336 (11th Cir. Feb. 13, 2012); Lee v U.S. Steel Corp., 2012 WL 11008 (11th ...


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