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Zuzul v. McDonald

United States District Court, M.D. North Carolina

March 31, 2015

MARCIA ZUZUL, Plaintiff,
ROBERT MCDONALD, Secretary of Veterans Affairs, and the UNITED STATES OF AMERICA, Defendants

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Thomas D. Schroeder, United States District Judge.

In the remaining claims of this employment discrimination action, Plaintiff Marcia Zuzul alleges that the Department of Veterans Affairs (the " VA" ) discriminated against her because of her race and gender, permitted the creation of a gender- and racially-hostile work environment, and retaliated against her, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. (Doc. 5.) Ms. Zuzul also brings claims of assault, battery, and defamation under North Carolina law against the United States, substituted for Dr. William F. Pearson. (Id. ¶ ¶ 139-60.) Before the court is the United States' motion to dismiss and, alternatively, for summary judgment. (Doc. 9.) Also before the court is Ms. Zuzul's motion for relief pursuant to Federal Rule of Civil Procedure 56(d). (Doc. 19.) For the reasons set forth below, the United States' motion to dismiss will be granted in part and denied in part; its alternative motion for summary judgment will be denied; and Ms. Zuzul's Rule 56(d) motion will be denied as moot.


The allegations of the amended verified complaint, taken in the light most favorable to Ms. Zuzul, show the following.[1]

Ms. Zuzul -- a white female -- is a certified Nurse Anesthetist at the W. G. (Bill) Hefner Veterans Affairs Medical Center (" VAMC" ) in Salisbury, North Carolina. (Doc. 5 ¶ 15.) She has worked in anesthesia for nineteen years and in critical care for fifteen years. (Id.) She has worked at the VAMC since 2006 and served as a staff anesthesiologist since 2011. (Id. ¶ ¶ 15, 17.) During her time with the VA, she has always received " Outstanding" performance review ratings. (Id. ¶ 16.)

At some point, Ms. Zuzul began to work with Dr. William Pearson -- a doctor practicing anesthesiology at VAMC who is allegedly black -- about once or twice a week. (Id. ¶ ¶ 19, 98.) Dr. Pearson allegedly treated Ms. Zuzul coldly and in a demeaning manner, creating " tension" between the two. (Id. ¶ 19)

On April 5, 2012, Ms. Zuzul worked with Dr. Pearson on a team to provide a patient with anesthesia. (Id. ¶ 20.) During medical preparations and while at the patient's bedside, Dr. Pearson told Ms. Zuzul " we need to use Etomidate on this guy. He has a heart history and we could kill him if we do not." [2] (Id. ¶ 24.) According to the amended complaint, " [t]he use of Etomidate in the case at issue was contrary to the plan of care that was in place." (Id. ¶ 25.) Noticing that the patient " seemed concerned" by Dr. Pearson's statement, Ms. Zuzul recommended discussing the matter later. (Id. ¶ 27.) A disagreement then occurred between Ms. Zuzul and Dr. Pearson about the appropriate medications to administer. (Id. ¶ ¶ 27-28.) During the disagreement, Dr. Pearson " became irate and said that they would use whatever

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drug he recommended for the case." (Id. ¶ 29.) He then walked to the head of the patient's bed, where Ms. Zuzul stood attempting to administer medicine, " and pushed her out of the way so he could stand where she had been standing." (Id. ¶ ¶ 30-31.) In response, Ms. Zuzul stated that they should discuss the matter outside the patient's room, but Dr. Pearson raised his voice saying, " You are not putting my patient to sleep. I will do the case." (Id. ¶ ¶ 31-32.) While both Ms. Zuzul and Dr. Pearson were alongside the patient as he was moved to the operating room, Dr. Pearson told another doctor -- Chief of Anesthesia Dr. Robert Blok -- that Ms. Zuzul was " not listening" to him. (Id. ¶ 35.)

The following day, April 6, 2012, Ms. Zuzul met with Dr. Blok, Chief of Staff Dr. Paul Lucha, and Union Representative Reggie Thurmond with the American Federation of Government Employees (" AFGE" ). (Id. ¶ 39.) During the meeting, Ms. Zuzul was told that a fact-finding investigation would be conducted as a result of her complaint about the altercation with Dr. Pearson. (Id.) About a week later, on April 12, 2012, Ms. Zuzul met with Dr. Lucha, Dr. Blok, Mr. Thurmond, and Union Representatives Sharon Machovina and Pat Long. (Id. ¶ 40.) At the meeting, Dr. Lucha told Ms. Zuzul that Dr. Pearson disputed that either a physical or verbal assault occurred on April 5 and that the two should " learn to work together." (Id.)

The same day as that meeting, Ms. Zuzul filed a grievance (the " First Grievance" ) with the VA, " claiming that management simply told everyone to work together and get along rather than doing anything about the assault and the comments Pearson made in front of the patient." (Id. ¶ 41.) The grievance procedure at the VA requires an employee to proceed through a four-step process. (See Doc. 10-7.) On May 31, 2012, the AFGE filed a Step 2 Grievance on Ms. Zuzul's behalf, asserting that " [o]n or about April 12, 2012, management created a [sic] unhealthy and unsafe environment for Ms. Zuzul" after she " reported to management an altercation . . . between herself and another employee." (Doc. 10-6.) On July 2, 2012, and in response to the Step 2 Grievance, Dr. Lucha granted the First Grievance.[3] (Doc. 5 ¶ ¶ 41, 49; see also Doc. 10-8.) She makes no allegation that she completed the last step of the four-step procedure.

Around April 18, 2012, Drs. Blok and Jean-Mary Breton met with Ms. Zuzul regarding the medical charts for two patients Ms. Zuzul had treated. (Doc. 5 ¶ ¶ 42-43.) The meeting was held because someone had assessed one of Ms. Zuzul's charts as " below the standards of anesthesia." (Id. ¶ 43.) Dr. Breton would not disclose who had made the assessment, but Dr. Blok " stated there was nothing wrong with the care [Ms. Zuzul] had provided" and that he had not authorized the review of her charts. (Id. ¶ ¶ 44-45.) On April 27, 2012, Ms. Zuzul initiated an Equal Employment Opportunity (" EEO" ) Complaint (the " First EEO Complaint" ) on the basis of gender and racial harassment based on the unauthorized assessment of her charts. (Id. ¶ 47; see also Doc. 10-10 (noting filing date as August 15, 2012).) At a September 2012 mediation of the complaint, Dr. Lucha acknowledged that Dr. Pearson was the one who had reviewed and assessed charts of patients treated by Ms. Zuzul, which she alleges were unauthorized assessments,

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and that Dr. Pearson " had problems working well with other nurse anesthetists at the VA." (Doc. 5 ¶ ¶ 45, 50-51.) Dr. Lucha further agreed at the mediation that Dr. Pearson and Ms. Zuzul should not be assigned to work together and that they should be kept apart as much as possible.[4] (Id. ¶ 53.)

At some unspecified time, Dr. Pearson also filed an EEO complaint against Ms. Zuzul, claiming that Ms. Zuzul discriminated against him because he was " a heterosexual black male" and that she refused to work with him. (Id. ¶ 56.) According to Ms. Zuzul, these claims are false. (Id.) Dr. Pearson also filed EEO complaints against Dr. Blok, a nurse named Jeanette Burleson, and Dr. Breton. (Id. ¶ 57.)

On January 9, 2013, Ms. Zuzul was assigned to work on call with Dr. Pearson due to the small department size and staff shortages.[5] (Id. ¶ 63.) That evening, VAMC paged both Ms. Zuzul and Dr. Pearson, requesting that they come in for an emergency procedure. (Id. ¶ ¶ 64-65.) Ms. Zuzul told VAMC's hospital administrator that she would arrive in approximately thirty to forty-five minutes because of rainy conditions. (Id. ¶ 65.) Ms. Zuzul then called Dr. Pearson to confirm with him that she was on her way. (Id. ¶ 66.) Twenty minutes after the phone call, Dr. Pearson called Ms. Zuzul, telling her that the emergency procedure was " done" and that she was not needed, which Ms. Zuzul repeated back to him to confirm. (Id.) Ms. Zuzul then called the hospital administrator to inform them of what Dr. Pearson had said. (Id. ¶ 68.)

The next morning, Dr. Breton and Wendy Bostian -- an anesthesia tech -- informed Ms. Zuzul that Dr. Pearson told others that she had " refused to come in" the night before and refused to cooperate. (Id. ¶ 71.) Sometime after hearing this, Ms. Zuzul met separately with both Drs. Blok and Lucha. (Id. ¶ ¶ 72-73.) Dr. Pearson also attended the meeting with Dr. Lucha and continued to claim Ms. Zuzul refused to come in on January 9. (Id. ¶ 73.) Dr. Lucha agreed to conduct another fact-finding investigation and changed investigators after Ms. Zuzul's disagreement with the initial investigator assignment. (Id. ¶ ¶ 74-77.) The fact finding on the January 9 incident, however, took at least five weeks to get underway. (Id. ¶ 78.) Since the January 9, 2013 incident, Ms. Zuzul and Dr. Pearson have not worked together. (Id. ¶ 79.)

On June 20, 2013, an anesthesia meeting occurred with a number of individuals in attendance, including Dr. Pearson, Ms. Zuzul, Drs. Blok, Breton, Steven Leder (a union representative), and Ms. Burleson. (Id. ¶ 80.) The meeting concerned Dr. Pearson's treatment of another white female nurse anesthetist. Along with several others, Ms. Zuzul discussed her strained relationship with Dr. Pearson. (Id. ¶ 82.) After Ms. Zuzul's recounting of the January 9 incident, Dr. Pearson repeated his

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claims that Ms. Zuzul refused to come in to the hospital that night. (Id. ¶ 83.) When Ms. Zuzul disagreed with his version of incident, Dr. Pearson twice yelled, " But you didn't come in, did you?" (Id. ¶ 84.) He repeated this question at the end of the meeting and " came at" Ms. Zuzul while pointing his finger at her. (Id. ¶ ¶ 85-86.) Feeling threatened and " wonder[ing] if he was going to push her again," Ms. Zuzul left the meeting room. (Id. ¶ ¶ 86-87.) On July 1, 2013, Ms. Zuzul initiated her fourth EEO complaint (" Fourth EEO Complaint" ) based on gender, sexual orientation, and race, concerning the January 9, 2013 incident and the June 20, 2013 meeting.[6] (Id. ¶ 94.)

According to the amended complaint, Dr. Pearson's " false allegations" regarding Ms. Zuzul's charting, monitoring of patient temperatures, and failure to appear at work " damage[d] her professional reputation. No other physician ha[d] questioned her professionalism or her competence prior to [Dr. Pearson.]" (Id. ¶ 88.) The amended complaint also alleges that Dr. Pearson allows one black nurse anesthetist to take longer lunches than three white nurse anesthetists, that he allows one male nurse to question him and works collaboratively with him but is demeaning toward female nurses, and that he " does not converse or interact with" the white female nurses. (Id. ¶ ¶ 89-92.)

On March 23, 2014, Ms. Zuzul filed a complaint, which she amended on April 16, 2014, alleging both race and gender discrimination, harassment, and retaliation against the VA, as well as assault, battery, and defamation against Dr. Pearson.[7] (Docs. 1, 5.) On May 29, 2014, the United States filed a notice of substitution as to Ms. Zuzul's claims against Dr. Pearson based on the United States Attorney's certification, pursuant to the Westfall Act, also known as the Federal Employees Liability Reform and Tort Compensation Act of 1988, codified at 28 U.S.C. § 2679(d)(1) and (2). (Doc. 8.) The United States' Notice sought to substitute the United States for Dr. Pearson. Ms. Zuzul objected to the substitution. (Doc. 13.) On September 10, 2014, after the parties had fully brief the issue, this court adopted the August 6, 2014 Recommendation of the Magistrate Judge, substituting the United States for Dr. Pearson. (Doc. 30.)

On May 29, 2014, the United States filed its motion to dismiss -- pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure -- or, in the alternative, a motion for summary judgment. (Doc. 9.) The motion attached a number of documents related to Ms. Zuzul's efforts to exhaust her administrative remedies.[8] (See Docs. 10-1 to 10-23.) Ms. Zuzul simultaneously responded to the motion (Doc. 21), attaching her affidavit, and moved for relief pursuant to Rule 56(d) of the Federal Rules of ...

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