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Reed v. Dep't of Veterans Affairs

United States District Court, N.D. Florida, Gainesville Division

May 31, 2019

MEREACOS REED, Plaintiff,
v.
DEP'T OF VETERANS AFFAIRS, Defendant.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on ECF No. 63, Defendant's Motion for Summary Judgment. Plaintiff has filed a response and amended response in opposition (ECF Nos. 72, 80), and Defendant has filed a reply (ECF No. 73). For the reasons explained below, it is respectfully recommended that Defendant's motion be denied.

         I. BACKGROUND

         Plaintiff brings claims against the Department of Veterans Affairs (the “VA”) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff was initially represented by counsel in this case, but is now proceeding pro se. See ECF Nos. 1, 36. Plaintiff was employed as a Telemetry Technician at the Malcolm Randall Veterans Administration Medical Center. Plaintiff's First Amended Complaint, ECF No. 21, alleged that Defendant created a hostile work environment in violation of Title VII and that she was wrongfully disciplined and ultimately terminated in retaliation for EEO activity. ECF No. 21 at 3-4. Defendant moved to dismiss the First Amended Complaint, arguing that Plaintiff's hostile work environment claim failed to state a claim for relief, and her retaliation claim should be dismissed for failure to exhaust administrative remedies because Plaintiff had an appeal of her termination pending before the Merit Systems Protection Board. ECF No. 22. The Court dismissed Plaintiff's retaliation and termination claims for failure to exhaust administrative remedies. The Court dismissed Plaintiff's hostile work environment claim with leave to file a Second Amended Complaint. ECF No. 39.

         The Second Amended Complaint clarified Plaintiff's hostile work environment claims. Plaintiff, who is African-American, alleges that from August 2012 through August 2015 her coworkers, most of whom were white, subjected Plaintiff to race-based harassment. Plaintiff contends that in December 2013 a white coworker “likened Plaintiff to less than a monkey, ” while complaining that she was not properly training another worker. The coworker stated that “even a monkey can do this job.” ECF No. 40 at 3. Plaintiff complained to the coworker, and the next day he greeted her with the taunt “what's up monkey?” Plaintiff complained to her nurse manager, but she alleges that no action was taken. The coworker subsequently told Plaintiff that “it does no justice to complain, ” and again reiterated that a monkey could do Plaintiff's job. Id.

         Plaintiff alleges that she was subjected to insults regarding her ethnic dialect. Id. at 4. She alleges that “[t]he notion that Black people are unclean was a frequent theme of the speech and behavior of Plaintiff's white coworkers.” Plaintiff alleges that at least three times per day, from November 2014 to August 2015, five of her white coworkers would disinfect items that she had touched as soon as she left her workstation. The white coworkers did not similarly clean or disinfect items that had been touched by each other. Plaintiff alleges that during 2014 and 2015, on at least 60 occasions, two of her white coworkers, in her presence, stereotyped African medical staff as “stinking” and not bathing. Id.

         Plaintiff further alleges that because of her race and her “Louisiana roots, ” coworkers stereotyped her as being a practitioner of voodoo. In May 2014, a coworker loudly called her a “Louisiana voodoo ass.” Id. Plaintiff claims that on at least five occasions in 2015 one of the white coworkers, who habitually disinfected items she had touched, taunted Plaintiff because of her race with verbiage about hexes and voodoo dolls. Plaintiff alleges that she had been warned about that coworker's “skinhead” background. Id. Plaintiff alleges that she complained to management but no remedial action was taken. Id. at 5.

         The Court previously denied Defendant's motion to dismiss the Second Amended Complaint, in which Defendant again argued that Plaintiff failed to state a hostile work environment claim. ECF. No. 51. Defendant now contends that it is entitled to summary judgment because Plaintiff cannot show that she was subjected to harassment based upon her race, or that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment. ECF No. 63.

         II. STANDARD OF REVIEW

         Pursuant to Federal Rule of Civil Procedure 56(a), the entry of summary judgment is appropriate only when the Court is satisfied that “there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” In applying this standard, the Court must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits and other evidence in the record "in the light most favorable to the non-moving party." Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). “In determining whether summary judgment is appropriate, [the Court is] required to draw all reasonable inferences in favor of the non-moving party, not all possible inferences.” Horn v. United Parcel Services, Inc. 433 Fed.Appx. 788, 796 (11th Cir. 2011) (emphasis added).[1]

         As the Supreme Court held in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the moving party bears the initial burden of establishing the nonexistence of a triable issue of fact. If the movant is successful on this score, the burden of production shifts to the non-moving party who must then come forward with “sufficient evidence of every element that he or she must prove.” Rollins v. Techsouth, 833 F.2d 1525, 1528 (11th Cir. 1987). The non-moving party may not simply rest on the pleadings, but must use affidavits, depositions, answers to interrogatories, or other admissible evidence to demonstrate that a material fact issue remains to be tried.

         The Eleventh Circuit has noted that:

It is well settled that “after adequate time for discovery and upon motion, [summary judgment is appropriate] against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, in response to a motion for summary judgment, a nonmoving-plaintiff must present evidence in support of his allegations sufficient to raise a genuine issue of material fact regarding each element of his claim. As established in Celotex, it is not necessary for the party moving for summary judgment to introduce any evidence at all in order to prevail on his motion. Rather, in cases in which the nonmoving party will bear the burden of proof at trial, the movant can seek summary judgment by establishing that the opposing party has insufficient evidence to prevail as a matter of law, thereby forcing the opposing party to come forward with some evidence or risk having judgment entered against him. Id. Where the nonmoving party fails to present such evidence, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id.

Maxi-Taxi of Fla., Inc. v. Lee County Port Auth., 301 Fed. App'x 881, 885 (11th Cir. 2008). Where the nonmoving party bears the burden of proof, he must offer more than a mere “scintilla of evidence” in support of his position. Ande ...


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