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Curry v. Wilkie

United States District Court, N.D. Alabama, Southern Division

October 15, 2018

ADRIENNE L. CURRY, Plaintiff,
v.
ROBERT WILKIE, UNITED STATES SECRETARY OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE.

         Adrienne Curry alleges that her employer, the United States Department of Veterans Affairs (“VA”), unlawfully retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., by denying her four nursing positions in 2012. Docs. 1 at 2-4; 27. The court has for consideration the VA's motion for summary judgment, which is fully briefed and ripe for consideration. Docs. 16, 27, 28. After reading the briefs, viewing the evidence, and considering the relevant law, the court finds that Curry has failed to establish a prima facie case or to rebut the articulated reasons for the selection decisions at issue. The VA's motion is therefore due to be granted.

         I. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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 (1986) (alteration in original).

         The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         At summary judgment, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).

         II. FACTUAL BACKGROUND

         Curry is a long term employee of the VA. Doc. 18-12 at 1-4. Curry has had various issues that resulted in her filing lawsuits and EEOC complaints against the VA. For example, in January 2009, Curry filed a lawsuit in this court alleging harassment and retaliation. Curry v. United States Dep't of Veterans Affairs et al, No. 2:09-cv-2441-AKK, ECF No. 1. Then, in January 2010, Curry filed an EEOC complaint against the VA, alleging disability discrimination and retaliation. Doc. 18-11 at 1-2.

         Next, in September 2011, Curry filed an EEOC complaint, alleging that the VA had denied her applications for twenty-three Registered Nurse (RN) positions on the basis of her disability and in retaliation for her prior EEOC activity. Id. at 1- 2.[1] Roughly six months later, Curry filed another lawsuit in this court alleging disability discrimination and retaliation. Curry v. Wilkie, No. 2:12-cv-608-SLB, ECF. No. 1.

         Relevant to this action, in July 2012, Curry filed another EEOC complaint, alleging that the VA had denied her applications for five RN positions on the basis of her disability and in retaliation for her prior EEOC activity. Doc. 17-1 at 4.[2]Basically, and relevant here, from about February or March through May 2012, Curry applied and interviewed for the positions of RN Dialysis Unit, RN Safe Harbor/Palliative Care Unit, and RN-6B Medical Surgical Unit (two positions). Docs. 17-1 at 4; 18-13 at 2; 18-14 at 2; 18-15 at 2. By this time, Curry, who had never been employed as a nurse or RN, had qualified as a RN, had a master's degree in nursing, and had gained clinical nursing experience as a nursing student. Docs. 19-1 at 4, 21; 19-3 at 2, 4. In this lawsuit, Curry maintains that she is more qualified than the individuals selected for these four positions. Doc. 27 at 3-7.

         For the RN Dialysis position, Cynthia Frazier was the selecting official who made the initial hiring recommendation. Doc. 18-13 at 2-3. This position had non-mandatory “enhanced qualifications” of dialysis experience and two years of successful RN medical surgical critical care practice. Docs. 19-3 at 4; 18-13 at 3. Frazier testified that she also considered previous dialysis experience as a licensed practical nurse or technician. Doc. 18-13 at 3. Frazier recommended and ultimately selected Alexis Ray over Curry because Ray “worked in the critical care unit at another facility from 2007 until time of selection where she did receive experience in continuous renal replacement therapy or dialysis.” Id. Frazier also cited Ray's certification in Advanced Cardiac Life Support as a reason for Ray's selection. Id.

         For the RN Safe Harbor/Palliative Care position, Kimberly Froelich was the selecting official who made the initial recommendation. This position had “enhanced qualifications” of one year of successful ambulatory surgery, medical surgical, critical care, or palliative care experience. Doc. 19-3 at 4. Froelich recommended and ultimately selected Michelle Walker due to Walker's clinical experience as a licensed practical nurse for “about 10, 15 years.” Doc. 18-14 at 3; see doc. 28-2 at 2. Froelich further testified that it was important that the successful candidate have “clinical expertise” and “basic experience in clinical assessment tools” because the position required leading non-RN staff. Doc. 18-14 at 3-4.

         For the RN-6B Medical Surgical positions, the selecting official Clement Wilson recommended and ultimately selected Donna Miller and Lorraine Bester for these two positions. Doc. 18-15 at 2-3. These positions did not differ significantly from the RN-5 Main Medical Surgical position for which Curry was ultimately selected. Doc. 19-2 at 17, 18. Wilson explained that he chose Miller and Bester over Curry because Miller and Bester “scored high on the performance based-interview tool, and both persons had prior nursing experience. [Curry] had never worked as a registered nurse since she left school.” Doc. 18-15 at 3.

         Gregory Eagerton, the Associate Director for Patient Care Service and the Nurse Executive, approved the recommendations for each of the four positions. Doc. 18-17 at 3. Eagerton did not interview Curry or any ...


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