United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. SCHROEDER UNITED STATES DISTRICT JUDGE.
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.
facts, viewed in the light most favorable to Barnes as the
non-moving party, demonstrate the following:
The Durham VA'S Hiring and Promotion Policies
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.)
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.)
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) Professional Development,
Collaboration, and (4) Scientific Inquiry. (Id. at
15.) Once the NPSB makes its recommendation, the Nurse
Executive must approve it before it becomes final. (Doc. 19-5
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.)
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). 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.)
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.)
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
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).
submitted his resume and application to the Durham VA on
April 6, 2013. (Docs. 1-2, 1-3). 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.)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.) 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.)
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.) On June 7, the NPSB (composed of
Marguerite Summey,  Donna Kovalick,  and Kathy
Burgess-Brown) 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.)
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.)
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.)
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.)
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
Barnes's first few weeks working at the Durham VA, he met
with Susan Collin,  Kerri Wilhoite,  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.) 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.)
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,
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.)
August 20, 2015, five members of the NPSB (Kovalick and four
others) considered Barnes for promotion. (See Doc. 25 at
83.) 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 or charge nurse qualified him as a
Nurse II, as Barnes contended. (Doc. 24 at 110-20,
147-155.) 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).
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.) 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.)
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.
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 ...