United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. CAYER UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant's
“Motion to Dismiss or, in the alternative, Motion for
Summary Judgment” (Doc. 15), pro se
Plaintiff's “Motion to Defer, Motion to Dismiss . .
. Motion for Summary Judgment . . .” (Doc. 19), and the
parties' briefs and exhibits.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and these Motions are
ripe for the Court's consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned denies
Plaintiff's “Motion to Defer.” The
undersigned respectfully recommends that Defendant's
“Motion to Dismiss” be granted, as
FACTUAL AND PROCEDURAL BACKGROUND
November 19, 2018, pro se Plaintiff filed this
action alleging (1) unequal terms and conditions of
employment (2) retaliation, and (3) hostile work environment
in violation of Title VII of the Civil Rights Act of 1964
based upon race and gender. Plaintiff is an African American
female. The Complaint names Plaintiff's employer, the
U.S. Department of Veterans Affairs, as Defendant.
requested informal EEO counseling on March 11, 2016. On April
5, 2016, she filed a formal EEO Complaint No.
is a GS-11 grade Veterans Integrated Service Network 6
Telehealth Data Analyst/ Management Coordinator at the
Veterans Affairs Medical Center in Salisbury, North Carolina.
Plaintiff's job duties include data analysis, reports,
preparing presentations, evaluating processes, Telehealth
staff training, and organizational trend analysis.
the allegations of the Complaint as true, on December 20,
2015, Plaintiff received notice and approved changes to her
annual evaluation that included patient care duties.
Plaintiff alleges that these duties are not part of her job
February 17, 2016, Dr. Robert Morris, Chief of the
Teleretinalogy Service, revised Plaintiff's annual
performance evaluation to include a critical analysis
element. On February 18, 2016, Dr. Morris assigned Plaintiff
work that she perceived to be clerical.
14, 2016, Dr. Morris met with Plaintiff's supervisor, Ms.
Terndrup, and stated that Plaintiff was not a team player. On
June 29, 2016, Dr. Morris met with Plaintiff's supervisor
and stated that Plaintiff failed to include a key data
indicator on a project she was assigned to complete.
September 15, 2017, Plaintiff submitted a request for a
“Different Geographic Location” in Emporia,
Virginia. The request was granted on November 8, 2017.
Approval was delayed beyond the twenty-day requested time
frame because of the comments Dr. Morris made to
Plaintiff's supervisor about her poor job performance.
upon Plaintiff's initial and amended EEO Complaint, an
Administrative Law Judge ruled that “the [Defendant
was] entitled to a partial decision in its favor on
[Plaintiff's] hostile environment harassment claims on
the grounds of race, sex, and reprisal.” As for the
retaliation claim, and based upon the February 2016 events,
the ALJ ruled “that [Plaintiff] was not
‘aggrieved' as to her claims of disparate
treatment” and “did not suffer a present harm or
loss with respect to any term, condition, or privilege of
employment.” “The Agency [Veterans Affairs]
articulated legitimate, non-discriminatory reasons for its
[February] actions.” On April 3, 2019, Defendant filed
a “Motion to Dismiss, or in the alternative, Motion for
Summary Judgment.” (Doc. 15). On May 7, 2019, Plaintiff
filed a “Motion to Defer” a ruling on those
motions. (Doc. 19).