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McGill v. McDonald

United States District Court, D. Nevada

February 22, 2017

ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant.



         This 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.


         Plaintiff 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).

         In July 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).

         Plaintiff 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).

         Plaintiff's 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.


         A court 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).

         In 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.

         If the 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.

         At the 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.” Id.


         A. Disability Discrimination

         1. Legal Standards

         The 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 framework,

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 ...

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