United States District Court, N.D. Alabama, Southern Division
ADRIENNE L. CURRY, Plaintiff,
ROBERT WILKIE, UNITED STATES SECRETARY OF VETERANS AFFAIRS, Defendant.
K. KALLON UNITED STATES DISTRICT JUDGE.
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
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).
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).
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)).
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.
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. 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.
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.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
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.
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.
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.
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 ...