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Barnes v. Shulkin

United States District Court, M.D. North Carolina

January 22, 2018




         This is an employment discrimination action by Plaintiff Derese Barnes arising out of his hiring and subsequent failure to be promoted at the Fulton Veterans Affairs Medical Center in Durham, North Carolina (the “Durham VA”). Barnes claims racial discrimination in the setting of his position and pay at hiring; retaliation for having engaged in protected activity, and failure to promote based on racial discrimination. Before the court is Defendant's motion for summary judgment on all claims. (Doc. 18.) The motion has been fully briefed (Docs. 19 through 28) and is ready for decision. For the reasons set forth below, the motion will be granted and the action will be dismissed.

         I. BACKGROUND

         The facts, viewed in the light most favorable to Barnes as the non-moving party, demonstrate the following:

         A. The Durham VA'S Hiring and Promotion Policies

         Candidates who wish to apply for a nursing position at the Durham VA must do so electronically. (Doc. 20-2 at 23.) A collection of Durham VA nurse recruiters and others from human resources review the applications for minimum qualifications and forward them to the selecting individuals, who then begin the interview process. (Id. at 24.) Once the interviews are completed, a nurse recruiter will work with the candidates to ensure that they have submitted as much relevant information about themselves as possible. (Id.) That information is then passed on to the Durham VA's Nursing Professional Standards Board (“NPSB”) for its review. (Id.)

         The NPSB is a group of thirty to forty nurses, all appointed by the Nurse Executive, and is responsible for making recommendations as to the grade, level, step, and salary for every nurse at the Durham VA. (Doc. 19-4 at 14, 18-20; Doc. 20-2 at 24.) Published standards delineate the classification of various healthcare professionals. A Nurse I (nurse grade I) is someone whose nursing practice benefits only his own patients, while a Nurse II (nurse grade II) is one whose nursing practice benefits the entire nursing unit. (Doc. 19-4 at 21; Doc. 19-5 at 14.) A Nurse III (nurse grade III) is one who influences a whole facility. (Doc. 19-4 at 21-22.) The NPSB's recommendation as to a nurse's starting grade is made by a three-member panel of the NPSB that evaluates objective and subjective criteria, and must be unanimous. (Doc. 19-4 at 18-21; Doc. 19-6 at 20-24; Doc. 20-1 at 36, 41.) Once the nurse's grade has been decided, there is a formula to determine the level, step, and salary for the nurse based on his education and experience. (Doc. 19-6 at 22-23; Doc. 20-1 at 39-41.)

         The NPSB examines four dimensions of nursing, as well as a set of published NPSB guidelines, when making a recommendation as to a nurse's grade. (Doc. 19-4 at 21, 38). These dimensions are (1) Practice, [2] (2) Professional Development, [3] (3) Collaboration, [4]and (4) Scientific Inquiry.[5] (Id. at 15.) Once the NPSB makes its recommendation, the Nurse Executive must approve it before it becomes final. (Doc. 19-5 at 45-46.)

         After the Nurse Executive approves the recommendation, a nurse recruiter will extend the candidate a formal job offer that includes the starting level and salary. (Doc. 20-2 at 24-26.) If the applicant believes his starting level or salary is too low, he can work with the nurse recruiter to ensure that the NPSB had all his relevant information. (Id. at 24.) However, the Durham VA does not negotiate salaries. (Id. at 24-26.) Once a candidate has accepted an offer, there is no reconsideration process, and the salary should deviate from the salary quoted only if the NPSB committed an error, such as failing to take into account information that was provided to it, and corrects it. (Id. at 30- 32.)

         Promotions are handled differently. When the NPSB meets to make promotion recommendations, it meets in a panel of five members who review a proficiency report written by a supervisor of the nurse in question. (Doc. 24 at 104-08.) The proficiency report is read aloud by the chairperson, and the board will vote on whether the candidate meets each of nine elements required for promotion. (Id. at 106-08).[6] In order to be promoted, a candidate must receive at least three of the five board members' favorable vote as to each of the nine required elements. (Id. at 106-08, 124.)

         The NPSB takes precautions to ensure that the NPSB members who are considering a candidate for promotion do not know the candidate's identity. For example, NPSB members do not take part in promotion considerations for nurses with whom they work. (See Doc. 25 at 48.) Further, only two of the five members actually know the name of the candidate in question - the chairperson and the secretary. (Doc. 24 at 107.) Otherwise, the chairperson omits all identifying information about the candidate when reading the proficiency report. (Id. at 106.)

         B. Barnes's Hiring

         In June of 2013, Barnes, an African American male, applied to work at the Durham VA in response to the Durham VA's vacancy announcement for a Temporary Registered Nurse for its Psychiatry Unit. (Docs. 1-1 through 1-3.) The announcement stated that a successful applicant's starting level and salary would be determined by the NPSB. (Doc. 1-1 at 2.)[7] It further explained that to be hired as a Nurse II, a candidate would need a Bachelor's of Science degree in Nursing and at least two years of nursing experience. (Id. at 3).

         Barnes submitted his resume and application to the Durham VA on April 6, 2013. (Docs. 1-2, 1-3).[8] Barnes's resume stated that he had a Bachelor of Science in Nursing and five years of nursing experience, four of which as a charge nurse. (Doc. 1-2 at 1.)[9]Barnes did not specify his race on his application or resume, but he claims that his application materials included a form on which he identified his race as African American. (Doc. 19-2 at 45- 46.)[10] On June 4, Barnes received a call from Nurse Recruiter Kenneth Hodges, who told Barnes that he had been selected for the position but did not mention Barnes's starting level or salary. (Doc. 19-2 at 47-49; Doc. 23-3 at 20-21.)

         On June 5, Barnes claims, he sent Hodges a letter of recommendation and a PowerPoint document, noting his professional accomplishments with reference to each of the dimensions of nursing and with the expectation that Hodges would forward the documents to the NPSB. (Doc. 23-3 at 23; Doc. 23-8.)[11] On June 7, the NPSB (composed of Marguerite Summey, [12] Donna Kovalick, [13] and Kathy Burgess-Brown[14]) reviewed Barnes's application materials and recommended that he start as a Nurse I, Level III, Step 9, and that his salary should be $62, 829. ((Doc. 19-5 at 37; Doc. 19-6 at 23-24; Doc. 20-6 at 10; Doc. 21-3 ¶¶ 4-6; Doc. 21-4 at 1-2.) The NPSB found that Barnes's nursing experience benefitted only his own patients and that Barnes did not have sufficient demonstrated outcomes to start as a Nurse II. (Doc. 20-2 at 74- 76; Doc. 21-19 at 15-23.) Subsequently, the Nurse Executive, Dr. Gregory Eagerton, approved the NPSB's recommendation. (Doc. 20-2 at 18, 72-73.)

         On June 13, Hodges informed Barnes of the starting level and salary of the position he was being offered. (Doc. 19-2 at 51; Doc. 23-3 at 24.) Upon receiving this information, Barnes told Hodges that there was a mistake and that he should have been hired as a Nurse II, based on his education and experience. (Doc. 1-5 at 1-2; Doc. 19-2 at 51; Doc. 23-3 at 24.) That same day, Barnes sent Hodges an email repeating this belief and inquiring as to whether the NPSB would reconsider his starting grade and salary. (See Doc. 1-5.) On June 14, Hodges responded by email to confirm that Barnes had declined the offer and advised him that if he asked the NPSB to reconsider, it might choose to “move forward with another candidate.” (Id. at 1.)

         Barnes took the language in Hodge's email to mean that he had to accept the position immediately or it would be given to another candidate. (Doc. 23-3 at 26.) As a result, Barnes explains, he accepted the Nurse I position “against [his] will” because he “needed a job.” (Doc. 19-2 at 49-51, 84; Doc. 23-3 at 26-29.) However, when he accepted the position, Barnes was still under the impression that the NPSB would reconsider his starting grade and salary. (Doc. 19-2 at 50-51; Doc. 23-3 at 28.)

         Barnes began working at the Durham VA on July 14, 2013, and, around that time, attended an orientation for new employees. (Doc. 23-3 at 29.) While giving a presentation at the orientation, Summey mentioned that a Nurse II typically has two to three years of experience. (Id.) Upon hearing this, Barnes told Summey that he felt he should have been hired as a Nurse II. (Id.) In response, Barnes says, Summey “apologized and told [Barnes] that nurses are supposed to have a chance to negotiate their salaries.” (Id. at 30.)[15]

         During the orientation, Barnes claims, he met other African American nurses who complained that their salary did not reflect their experience or education level. (Doc. 19-2 at 55; Doc. 23-3 at 30.) However, the only admissible evidence on this front is from nurse Regina McNeil, who confirmed that she complained unsuccessfully about her salary, and from Eagerton, who acknowledged that nurse manager Lisa Lowe did complain about her salary. (Doc. 20-3 at 15-17; Doc. 23-4 at 10.)[16]

         During Barnes's first few weeks working at the Durham VA, he met with Susan Collin, [17] Kerri Wilhoite, [18] McNeil, and Ossie Brigman to discuss nurses' salaries. (Doc. 19-2 at 28.) At the meeting, Wilhoite told the three nurses “in a very threatening manner” that they should not “rock the boat” and complain about their salaries because the same group of people who made their initial salary recommendations could consider them when they were up for promotion or advancement every year. (Id.; Doc. 23-3 at 32.)[19] It was at this meeting that Barnes first suspected his non-promotion “could be about race.” (Doc. 19-2 at 65-66; Doc. 23-3 at 32.) The meeting concluded with Wilhoite stating that she would meet with Eagerton to discuss their situations and “whether or not [they] would qualify for a promotion or raises.” (Doc. 23-3 at 33.) Barnes never heard back from Wilhoite. (Id. at 34.)

         In response to hearing about Barnes's complaints, Eagerton had several discussions with Kovalick, “may have” spoken with Summey, and confirmed that he agreed with the NPSB's recommendation for Barnes. (Doc. 20-2 at 35, 38-43.)

         On October 17, 2013, Barnes contacted an Equal Employment Opportunity Commission (“EEOC”) counselor at the Agency's Office of Resolution Management to discuss his concerns. (Doc. 21-6 ¶ 5.) Barnes filed a formal complaint with that office on January 19, 2014. (Id.) A hearing for the case took place on November 17, 2015. (Doc. 1-8 at 1-2.) On May 4, 2016, the Agency issued a Final Order finding that the Durham VA's actions were not the product of racial discrimination. (Doc. 21-8 at 10; Doc. 21-9 at 1.)

         C. Barnes's Non-Promotion

         On August 20, 2015, five members of the NPSB (Kovalick and four others) considered Barnes for promotion. (See Doc. 25 at 83.)[20] They reviewed his proficiency report (id. at 74-79) and recommended that he not be promoted because he met none of the nine elements. (Id. at 82-84.) On September 9, Eagerton approved this recommendation. (Id. at 83). Barnes was found not to have the kind of performance that contributed to the nursing unit as a whole, and neither his teaching experience nor working as a preceptor[21] or charge nurse qualified him as a Nurse II, as Barnes contended. (Doc. 24 at 110-20, 147-155.)[22] On September 30, Barnes was informed of his non-promotion (Doc. 23-3 at 8; Doc. 25 at 85) but did not appeal (Doc. 24 at 123).

         On November 6, 2015, Barnes contacted an EEOC counselor regarding his non-promotion. (Doc. 21-11 at 3.) On December 3, 2015, Barnes filed a second EEOC complaint, claiming that his non-promotion was the result of racial discrimination and retaliation. (Doc. 21-10 at 1.)[23] After conducting an investigation, the EEOC informed Barnes on June 24, 2016, of his right to have a hearing or an immediate final decision. (Doc. 21-11 at 1). Barnes did not respond to this notice. (Id.) Instead, he filed his complaint in this court on July 12, 2016, alleging discrimination based on his race and retaliation based on his EEOC complaint, both under Title VII of the Civil Rights act of 1964 and 42 U.S.C. § 2000(e) et seq. (Doc. 1.) Then, on September, 26, 2016, the EEOC rendered a final decision finding no discrimination or retaliation. (Doc. 21-11 at 1, 8.)

         Defendants now move for summary judgment on the grounds that there is insufficient evidence that the Durham VA discriminated based on race and because Barnes was not qualified to have been hired at, or promoted to, Nurse II. (Docs. 18-19.)[24]

         II. ANALYSIS

         Summary judgment is appropriate “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(a). A genuine issue of material fact is present if the evidence shows that a reasonable jury could return a verdict for the nonmoving party. Foster v. Univ. of Maryland-E. Shore,787 F.3d 243, 248 (4th Cir. 2015). In determining a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and resolves all reasonable inferences in their favor. Id. In evaluating documents submitted in support or opposition of a motion for ...

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