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Ousley v. McDonald

United States District Court, M.D. North Carolina

March 31, 2015

GERARD OUSLEY, Plaintiff,
v.
ROBERT A. McDONALD, Secretary of the Department of Veterans Affairs, [1] Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM L. OSTEEN, Jr., District Judge.

Plaintiff Gerard Ousley ("Plaintiff) commenced this action against Defendant Robert A. McDonald, in his official capacity as Secretary of the Department of Veterans Affairs ("Defendant" or "VA"), alleging race-based discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended and codified at 42 U.S.C. 2000e, et seq. ("Title VII"). Specifically, Plaintiff claims that he was removed from his position based on his race.

This matter is now before this court on Defendant's Renewed Motion for Summary Judgment. (Doc. 18.) Plaintiff has responded in opposition to Defendant's Renewed Motion for Summary Judgment (Doc. 25), and Defendant has submitted a reply (Doc. 27). The matter is now ripe for adjudication.[2]

For the reasons that follow, this court will grant Defendant's Renewed Motion for Summary Judgment, and this action will be dismissed.

I. FACTS

Plaintiff is an African-American veteran, who has served in law enforcement for approximately thirty-seven years and is a graduate of the United States Military Academy at West Point. (Pl.'s Mem. in Opp'n to Def.'s Renewed Mot. for Summ. J. ("Pl.'s Second Resp.") (Doc. 25) at 1.)

In April 2006, Plaintiff became Police Chief of the VA Medical Center in Durham, North Carolina ("Durham VAMC"). (Id.) The police chief of each VAMC is hired by the director of that VAMC. (Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Initial Summ. J. Mem.") (Doc. 8) at 2.) On two occasions, Plaintiff's job performance was rated as "successful" and "excellent, " respectively. (Pl.'s Second Resp. (Doc. 25) at 2.) However, on April 24, 2009, Ralph T. Gigliotti, the director of Durham VAMC, suspended Plaintiff for one day, removed Plaintiff from his position as Police Chief, and reassigned Plaintiff as a Supervisory Medical Support Assistant, effective May 24, 2009. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 7-8.)

The events that led to Plaintiff's removal as Police Chief are not in dispute, although Plaintiff does seek to add some additional context to Defendant's recitation of the facts. (See Pl.'s Second Resp. (Doc. 25) at 1 n.1.)

The first event that led to Plaintiff's suspension and ultimately to his removal was Plaintiff's response to an incident where one of Plaintiff's officers was found to have used excessive force against a patient (the "use-of-force incident"). (See Complaint ("Compl.") (Doc. 1) ¶¶ 13-29; Pl.'s Second Resp. (Doc. 25) at 1-3.) On October 28, 2008, two VA police officers responded to a disturbance call involving a patient in the outpatient area of Durham VAMC. The officers escorted the patient, who had required physical restraint in the past, to a nearby room. As the patient entered the room, witnesses reported that the patient struck one of the officers. That officer warned the patient to get down, and when the patient did not comply, the officer struck the patient three or four times with a baton, breaking the patient's wrist. (Pl.'s Second Resp. (Doc. 25) at 2.)

As the Durham VAMC Police Chief, Plaintiff conducted an investigation of the event by interviewing the officers involved, obtaining witness statements, speaking with medical personnel about the patient's pain tolerance and ability to understand verbal instructions, and reviewing the videotape of the incident. Plaintiff determined that the videotape - which only captured part of the incident - was not determinative, and Plaintiff found that the officer had not used excessive force in restraining the patient. (Id.) Plaintiff notes that he is somewhat of a subject matter expert on use of force, as he was an instructor on appropriate use-of-force procedures for law enforcement officers at the VA Law Enforcement Training Center (LETC) in Little Rock, Arkansas, before accepting the position of Police Chief at Durham VAMC. (Id. at 1.)

By early November 2008, Director Gigliotti had received complaints about the use-of-force incident, including an anonymous letter demanding an investigation and threatening media exposure. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 3-4.) Per VA regulations, Director Gigliotti convened a four-person Administrative Board of Investigation ("ABI") to review the incident. The ABI interviewed ten individuals, including the officers involved, medical personnel, and Plaintiff. (See id., Ex. 6, ABI Report (Doc. 8-7) at 1-6.) The ABI drafted a report of its findings, and in that report, the ABI disagreed with Plaintiff, found that the officer used excessive force, and suggested that Plaintiff's determination "reflected poor judgment." (See id. at 7.) Plaintiff continues to disagree with this assessment. (Pl.'s Second Resp. (Doc. 25) at 4.)

An officer at the LETC, Thomas W. Kellogg, then reviewed the incident and also concluded that the officer used excessive force. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 4; Ex. 13, Kellogg's Report (Doc. 8-14) ¶¶ 2, 13.) Plaintiff does not contest this fact but argues that Kellogg only reviewed the video, which was not reflective of the entire incident. However, Plaintiff admits that, even when Kellogg received information that the officer had been struck before using force, Kellogg rendered a second report where he maintained his position that the officer used excessive force. (Pl.'s Second Resp. (Doc. 25) at 5; Ex. E, Kellogg Dep. (Doc. 25-6) at 6.)

In March 2009, Plaintiff received written notice proposing a suspension for five (5) days for failure to discipline an officer for failing to follow proper procedures. Plaintiff appealed that proposed suspension and it was reduced to a one-day suspension. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 7; Ex. 30, Director Gigliotti's Decision on Proposed Suspension (Doc. 8-34) at 1.)

The second event that led to Plaintiff's removal was the Durham VAMC police department's performance on a Biannual Review conducted by the VA's Office of Security and Law Enforcement ("OSLE"). (See Compl. (Doc. 1) ¶ 31.) The purpose of the biannual OSLE inspection was to "evaluate the Medical Center's continued Implementation of VA's security and law enforcement regulations and related VHA policies and procedures." (Def.'s Initial Summ. J. Mem., Ex. 25, OSLE Inspection Report (Doc. 8-26) at 1.) Plaintiff's first OSLE inspection as Police Chief occurred in November 2006, and the department was rated satisfactory. (Id.)

The OSLE inspection that led to Plaintiff's removal occurred in February 2009, and it was conducted by a five-person team (the "OSLE Inspection Team"). The OSLE Inspection Team was led by Dr. Nina Graves, who is African American, (Def.'s Initial Summ. J. Mem. (Doc. 8) at 6), and during the inspection, the team observed police operations, reviewed police program paperwork, and conducted staff interviews. (OSLE Inspection Report (Doc. 8-26) at 11.) After conducting its investigation, the OSLE Inspection Team found six areas of deficiencies, including (1) personnel and training; (2) administration; (3) operations; (4) equipment, weapons, and weapons control; (5) physical security; and (6) outcomes/customer satisfaction. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 6.)

The report issued by the OSLE Inspection Team indicated a "laissez faire" attitude by Plaintiff and his officers that resulted in numerous problems within the police force, culminating ultimately in the police service not being able to provide a safe and secure environment for VA patients, visitors, and personnel. (OSLE Inspection Report (Doc. 8-26) at 11.) Dr. Graves informed Director Gigliotti that the deficiencies found were so egregious that the OSLE Inspection Team recommended immediate re-assignment of both the Police Chief and the Assistant Police Chief. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 6.) The Assistant Police Chief, who is also African American, was not removed because he was new in his role. (Id. at 6 n.2.)

Plaintiff claims that there were irregularities in the OSLE inspection and his subsequent removal. First, Plaintiff claims that the OSLE inspection was a "surprise" inspection. (Compl. (Doc. 1) ¶ 31.) Both parties agree that the inspection was scheduled for March 2009 but that Director Gigliotti had the inspection take place a month early in February 2009. Plaintiff explains that the "reason the Director sought the review of the service is because Plaintiff maintained that both the conclusion of the ABI and the opinion from Kellogg in Little Rock were wrong." (Pl.'s Second Resp. (Doc. 25) at 6.) Defendant does not disagree but explains that the inspection was also necessitated by reports from other departments at Durham VAMC that they were losing confidence in the Durham VAMC police department. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 5.) Defendant also states that Plaintiff knew that the biannual review was due in November 2008 or the first quarter of 2009, such that although the inspection was unannounced, it was not a surprise inspection. In addition to the timing of the inspection, Plaintiff also claims that it is irregular for the OSLE Inspection Team to recommend the removal of a Police Chief in an inspection report. (Pl.'s Second Resp. (Doc. 25) at 6.)

Although the parties are in general agreement on the events that led to Plaintiff's removal, the parties disagree on the role William Dale Hendley played in the ultimate decision to remove Plaintiff from his role as Police Chief. Plaintiff's case revolves around Hendley being the actual decisionmaker in removing Plaintiff from his position. (See, e.g., Compl. (Doc. 1) ¶¶ 29, 31, 42-45.) Hendley is Police Chief at the VAMC in Salem, Virginia, and the Lead Police Chief for the Veterans Integrated Service Network 6, the division of the VA serving North Carolina, Virginia, and West Virginia. (Def.'s Initial Summ. J. Mem. (Doc. 8) at 2.) As the Lead Police Chief, Hendley was tasked as being a resource, mentor, and advisor to the Police Chiefs at the seven other VAMCs in the division. (Id. at 1-2.) The parties agree that Hendley, as Lead Police Chief, was not Plaintiff's supervisor. However, Plaintiff does note that Hendley had some authority over Plaintiff, was involved in the process of evaluating Plaintiff's performance, and had some ability to "put [Plaintiff] under a microscope." (See Pl.'s Second Resp., Ex. G, Graves Dep. (Doc. 25-8) at 11.)[3]

Additionally, Plaintiff argues that Hendley took specific actions that influenced the ultimate decision to remove Plaintiff. Both parties agree that, after reviewing the videotape, Hendley believed that the officer under Plaintiff's supervision had used excessive force, and Hendley urged Plaintiff to discipline the officers. (Compl. (Doc. 1) ¶ 35.) According to Plaintiff, Hendley consulted with Director Gigliotti and the ABI about the incident. The parties do not dispute, and Director Gigliotti admits, that he communicated with Hendley "extensively, " after the ABI conducted its investigation and submitted its report. (Pl.'s Second Resp., Ex. A, Gigliotti Dep. (Doc. 25-2) at 11.) However, to the extent Plaintiff claims Hendley convinced Director Gigliotti that Plaintiff should be removed as Police Chief, he has not offered proof of these communications.

Plaintiff also contends that Hendley exerted significant influence over the ABI investigation. Plaintiff asserts that Hendley told Plaintiff "that [Hendley] convened the ABI, " (Pl.'s Second Resp. (Doc. 25) at 3), but Plaintiff does not offer any evidence, besides his own deposition, to substantiate this assertion. Defendant does not dispute that Director Gigliotti consulted with Hendley on how to convene the ABI. Additionally, Hendley was the one who recommended Edward Middleton, a former police chief, to serve on the ABI. (Id.) Furthermore, Defendant does not dispute that Hendley "facilitated the [LETC] where [Plaintiff] used to work and decided to have the videotape reviewed and you know subsequently got the feedback from Mr. Kellogg that it did constitute patient abuse." (Pl.'s Second Resp., Ex. A, Gigliotti Dep. (Doc. 25-2) at 8.) Finally, Plaintiff also points out that, after the ABI rendered its decision, Hendley contacted the Federal Bureau of Investigation to allege civil rights violations against the officer who struck the patient during the use-of-force incident. (Pl.'s Second Resp. (Doc. 25) at 6; Ex. H, Hendley Letter to FBI (Doc. 25-9) at 2.) The parties are in agreement that Hendley committed these actions, but to the extent Plaintiff asserts that Hendley was more involved or had greater influence over the ABI's decision-making process, Plaintiff has not offered proof to support such an inference.

Plaintiff contends that Hendley also played some role in the OSLE inspection, but again, the parties disagree as to the extent of the role Hendley played. Plaintiff claims that Hendley "orchestrated" the inspection. (Compl. (Doc. 1) ¶¶ 31, 42.) Hendley had conducted a mock inspection, per his duties as Lead Police Chief, in September 2008. (Def.'s Initial Summ. J. Mem., Ex. 41, Mock Inspection Summary (Doc. 8-45) at 1.) In that mock inspection, Hendley found deficiencies in five of the eleven critical areas. Concerning the official inspection, Defendant admits that Hendley suggested to Director Gigliotti that the director ask for an unannounced OSLE inspection in February 2009, rather than as scheduled in March 2009, and that Hendley contacted the OSLE on Director Gigliotti's prompting. ( Id., Ex. 2, Apr. 9, 2011 Admin. Hr'g Tr. (Doc. 8-3) at 87, 126, 211.) Additionally, Plaintiff has offered proof that Dr. Graves, the OSLE Inspection Team leader, contacted Hendley after the OSLE inspection, to explain that the OSLE Inspection Team was planning to recommend that Plaintiff be removed as Police Chief. ( Id., Ex. 22, Email from Nina Graves to William Dale Hendley (Doc. 8-23); Pl.'s Second Resp. (Doc. 25) at 7.) Again, the parties are in agreement that Hendley committed these actions, but to the extent Plaintiff asserts that Hendley was more involved or had greater influence over the OSLE inspection and the team's report, Plaintiff has not offered proof to support such an inference.

Plaintiff does not contend that Director Gigliotti, the members of the ABI, Officer Kellogg at the LETC, or the members of the OSLE Inspection Team acted with racial animus. (See Pl.'s Mem. of Law Pursuant to Rule 56(d) and in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s First Resp.") (Doc. 12-2) at 2; Apr. 19, 2011 Admin. Hr'g Tr. (Doc. 8-3) at 80-81, 86.) Instead, Plaintiff submits circumstantial evidence of only Hendley's alleged racial animus, such as (1) disparaging comments made by Hendley about the performance of two African American Police Chiefs; (2) an off-color joke made by Hendley in an email to Plaintiff about the number of illegal aliens coming to the Durham VAMC; (3) Hendley's lack of help in securing a training officer for the Durham VAMC, even though Hendley helped a white police chief address his department's issues; and (4) Hendley's recommendation of a police chief for the Asheville VAMC who had previously been accused but not found liable of racial discrimination. (Pl.'s Second Resp. (Doc. 25) at 7-9.)

On August 11, 2009, Plaintiff filed a "Complaint of Employment Discrimination" with Defendant in which he alleged that Defendant had discriminated against him based on race and had retaliated against him. (Compl. (Doc. 1) ¶ 40.) The Equal Employment Opportunity hearings were held in front of an Administrative Judge on April 19 and May 19, 2011. (Def.'s Initial Summ. J. Mem., Ex. 2, Apr. 19, 2011 Admin. Hr'g Tr. (Doc. 8-3); Ex. 3, May 19, 2011 Admin. Hr'g Tr. (Doc. 8-4).) The Administrative Judge issued her decision on September 19, 2011, finding that Plaintiff "ha[d] not proved, by a preponderance of the evidence, that the agency discriminated against him on the basis of race when the agency suspended him and subsequently reassigned/demoted him." (Admin. Judge Decision (Doc. 8-43) at 14.) On October 11, 2011, Plaintiff received a "Transmittal of Final Agency Decision" from Defendant's Office of Employment Discrimination Complaint Adjudication, ...


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