United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
case arises from the Department of Veterans Affairs's
(“the VA”) alleged violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), the
Americans with Disabilities Act (“ADA”), as well
as various state tort laws. Pending before the Court is a
Motion for Summary Judgment (ECF No. 43) filed by Defendant
Robert A. McDonald, Secretary of Veterans Affairs. For the
reasons contained herein, the motion is granted.
AND PROCEDURAL HISTORY
Sholanda McGill is a homosexual African-American woman who
began employment with the VA on November 22, 2008. (Am.
Compl. ¶¶ 12-13, ECF No. 28). Plaintiff has been
diagnosed with fibromyalgia, IBS, PTSD, anxiety, and
depression. (Id. ¶ 20; Pl.'s Dep., 14, ECF
No. 43-2). She worked as a respiratory therapist at the
VA's hospital in Clark County, Nevada. (Am. Compl.
¶¶ 11, 14). In 2010, Plaintiff filed a complaint
with the union, and she filed an Equal Employment Opportunity
(“EEO”) complaint with the VA claiming that two
male coworkers were subjecting her to severe physical and
verbal harassment based on her sexual orientation.
(Id. ¶¶ 18-19). Because of the harassment,
she suffered from depression, nausea, headaches, stress,
fatigue, and nightmares. (Id. ¶ 20; Pl.'s
Dep., 14-15). The VA opened an investigation into
Plaintiff's claims and temporarily moved Plaintiff to an
outpatient facility away from the coworkers who were
harassing her. (Id. at 8; Am. Compl. ¶ 25). In
her new position, Plaintiff worked as a respiratory therapist
training veterans how to use respiratory equipment, such as
continuous positive airway pressure (“CPAP”)
equipment. (Pl.'s Dep., 11-12). Plaintiff had received
training to work in inpatient care, which her prior position
at the hospital involved, but she was not trained to work in
outpatient care. (Id.). Once the VA's
investigation was complete, Plaintiff's temporary
position became permanent along with a lower pay grade.
(Id. ¶¶ 22-23).
2012, Plaintiff received an email informing her that she was
required to attend a walk-through of a new VA facility where
the outpatient respiratory therapists would be relocated.
(Id. ¶ 26; Pl's. Dep., 16-18). Plaintiff
alleges that Defendant informed her that the harassers
“would be transferring to [the] new hospital facility
in the pulmonary department; the same department of the
Plaintiff.” (Admis. No. 6, ECF No. 43-4, at 4).
Plaintiff informed her supervisors and the VA's local
human resources office about her fear that the move would
return her to a hostile working environment. (Am. Compl.
¶ 28). Plaintiff alleges that Defendant failed to
address her concerns and instead demanded that she report to
work at the new facility or be reported AWOL. (Id.
¶ 29; E-mail, 111, ECF No. 44). Despite three separate
attempts to report to the new facility, Plaintiff could not
overcome the “physical and mental
afflict[ion]” that she experienced at the thought of
working in the same building with her former harassers. (Am.
Compl. ¶¶ 30-31). This distress allegedly caused
her existing conditions to worsen. (Id. ¶ 35).
filed another EEO and union complaint and proposed that
Defendant create an “Education CPAP Clinic” in
one of its primary care clinics that would allow Plaintiff to
continue her outpatient duties at the same pay rate and at a
facility apart from the other respiratory therapists.
(See Proposal, 54, ECF No. 43-2; Pl.'s Decl.,
¶ 20, ECF No. 44, at 108). The parties failed to reach a
mutually agreeable solution, and on December 13, 2012,
Plaintiff resigned. (Am. Compl. ¶¶ 41-42; Pl's.
Dep., 45). Plaintiff believes that Defendant subjected her to
disparate treatment due to her sex, sexual orientation,
disability, and EEO complaints. (Am. Compl. ¶ 43).
Complaint contained ten causes of action. She voluntarily
withdrew three of them, (Resp. 16, ECF No. 20), and the Court
dismissed four others with prejudice and one with leave to
amend, (see Order, ECF No. 25). Plaintiff filed an
Amended Complaint and Defendant answered. (See ECF
Nos. 28, 32). Defendant now moves for summary judgment on the
three remaining claims: (1) disability discrimination; (2)
retaliation; and (3) constructive discharge.
must grant summary judgment when “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(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the non-moving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
Rehabilitation Act, 29 U.S.C. § 701 et seq,
prohibits discrimination against any “otherwise
qualified individual with a disability.” § 794(a);
see also § 794a(a)(1) (providing a cause of
action for employment discrimination). The standards used
under the Americans with Disabilities Act (“ADA”)
apply to a claim of employment discrimination under the
Rehabilitation Act. § 791(f). To evaluate an employment
discrimination claim, the courts use the McDonnell
Douglas burden-shifting framework. See Mustafa v.
Clark Co. Sch. Dist., 157 F.3d 1169, 1174-77 (9th Cir.
1998); see also Raytheon Co. v. Hernandez, 540 U.S.
44, 49-52 (2003) (applying the McDonnell Douglas
standard to an ADA claim on summary judgment). Under this
the plaintiff must establish a prima facie case of
discrimination. If the plaintiff succeeds in doing so, then
the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its allegedly
discriminatory conduct. If the defendant provides such a
reason, the burden shifts back to the ...