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Walker v. Wilkie

United States District Court, W.D. North Carolina, Charlotte Division

July 25, 2019

DARNELL WINSTON WALKER, Plaintiff,
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM AND RECOMMENDATION AND ORDER

          DAVID S. CAYER UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         This 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.

         Having 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 discussed below.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         Plaintiff requested informal EEO counseling on March 11, 2016. On April 5, 2016, she filed a formal EEO Complaint No. 2004-0659-2016102631.

         Plaintiff 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.

         Accepting 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 description.

         On 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.

         On June 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.

         On 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.

         Based 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).

         II. ...


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