Bell v. Wilkie

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARECIA S. BELL,

Plaintiff,

v. Case No. 8:20-cv-1274-VMC-CPT

DENIS McDONOUGH, Secretary,

DEPARTMENT OF VETERANS AFFAIRS,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant’s Motion for Summary Judgment (Doc. # 46), filed on

November 3, 2021. Plaintiff Marecia Bell responded on

December 8, 2021 (Doc. # 52), and Defendant replied on

December 21, 2021. (Doc. # 56). For the reasons that follow,

the Motion is granted in part and denied in part.

I. Background

A. Bell is hired by the SCI Unit

In October 2016, Bell was hired as an Assistant Nurse

Manager (“ANM”) with the Spinal Cord Injury (“SCI”) unit at

the James A. Haley VA Medical Center (the “Tampa VA” or “the

VA”). (Doc. # 46 at 2, ¶ 1; Doc. # 52 at 14, ¶ 1).

Specifically, Bell occupied the role of Assistant Nurse

Manager, staffing coordinator. (Doc. # 46-2 at 552 (8:5-8)).

Bell’s direct supervisor was Julia Lewis, the Assistant Chief

Nurse for the SCI unit. (Id. at 156 (3:20-25)). One rung above

Lewis was the position of Chief Nurse of the SCI unit. When

Bell began with SCI, Kathy Michel was the interim Chief Nurse

and Mary Alice Rippman became the Chief Nurse in January 2017.

(Id. at 269 (5:15-21), 554 (15:3-9)).

Lewis explained that the Assistant Nurse Manager,

staffing coordinator position “was intended to be the person

who helped the chief nurse manage the human resources [of the

department]. So that could include handling the movement of

staff at different shift hours when there are call outs. In

nursing we are required to provide safe numbers, so that

person would help manage resources, meaning nurses, NAs,

LPNs, and RNs to get the appropriate skill mix on the right

unit at the right time to keep that safe mix.” (Id. at 553

(9:18-25)). Typically, an ANM like Bell would have reported

to a Nurse Manager. (Id. at 192 (12:19-20)). But, as Laureen

Doloresco – the Chief Nurse Executive at the Tampa VA –

explained, the situation in the SCI unit was “unique” because

Bell was reporting directly to the Assistant Chief Nurse.

(Id. at 191 (5:12-16), 192 (12:14-18), 307).

Within a month of starting the ANM position, Bell was

asked to be the direct supervisor of the Resource Pool. (Doc.

# 46-2 at 5 (14:23-15:2)). As explained by Lewis, the Resource

Pool was a group of staff members who would “float” to the

various units and clinics in the SCI, Polytrauma, and Rehab

units. (Id. at 165 (41:13-22); see also Id. at 192 (11:5-10)

(Doloresco explaining that the SCI Resource Pool was a “float

pool” of nurses internal to the SCI who would go to different

units to provide patient care)). Bell’s job was to assign

these workers to various units. (Id. at 158 (11:13-16)). The

Resource Pool had 9 to 15 employees during the relevant time

frame. (Id. at 157 (9:19-21)).

The Resource Pool announcement came as a “shock” to Bell

because “that’s not what [she] was hired to do” and she had

been told that she would not be supervising people in the ANM

position. (Id. at 5 (16:12-25)). Bell testified that the two

previous employees to supervise the Resource Pool were both

Assistant Chief Nurses. (Id. at 6 (17:9-16)). Additionally,

“there were no other Assistant Nurse Managers in the Tampa VA

that were directly supervising[,] first line supervisor of

any staff.” (Id. at 6 (18:15-18)). According to Bell, “other

nurses that were the . . . first line supervisor over staff

were at minimum Nurse Managers and then Assistant Chief and

Chief. . . . That was the policy.” (Id. at 6 (19:18-21)).

Lewis confirmed that the three other people who have been

responsible for the Resource Pool were all nurse managers.

(Id. at 156 (4:14-5:7)). Lewis additionally confirmed that no

other ANM had managed the Resource Pool prior to Bell and

that decision “came out of [Lewis] being overwhelmed after

[multiple] management people left.” (Id. at 173 (72:5-19)).

According to Bell, shortly after that announcement was

made, she asked her supervisors, Lewis and Michel, “were they

going to change [her] position to a nurse manager’s position

and give [her] the pay for directly supervising staff.” (Id.

at 5-6 (15:11-13, 17:1-4)). Bell testified that Lewis and

Michel told her that this promotion and/or pay raise would

happen, they just had to get Doloresco to “sign off” and

“process the paperwork.” (Id. at 6 (17:5-8, 19:24-20:6)); see

also (Doc. # 52-4 at 1-2 (Bell’s written declaration stating

that in November 2016 Lewis and Michel told her that her

position would be changed to that of a nurse manager and she

would be paid on the nurse manager pay scale)). However, Lewis

testified that it was not “within [her] power to make that

happen” because the VA’s “hiring system requires that it be

a competitive position.” (Id. at 168 (51:18-52:7)). And

Doloresco testified that she never had discussions with

anyone about making Bell a nurse manager or converting her

position to a nurse manager position. (Id. at 201 (47-49)).

Overseeing the Resource Pool was not the only

supervisory duty that Bell fulfilled while an ANM with the

SCI unit. According to Lewis, Bell had the ability to certify

employees’ time and attendance records, a duty normally

reserved for “supervisors” or nurse managers. (Id. at 163

(31:15-20, 33:14-25)). Bell testified that, in her very first

month on the job, she assisted Lewis with multiple

administrative tasks normally undertaken by the Assistant

Chief Nurse. (Id. at 17 (63:1-4) (Bell testifying that Lewis

“needed me to help her with leadership duties and to manage

SCI Polytrauma and Rehab”)); see also (Id. at 115 (Lewis

commenting in an email that she had previously been

“overwhelmed” at work and needed Bell to help manage the

SCI)).

B. Bell begins experiencing issues in the SCI unit

Bell stated that, beginning in December 2016, she was

subjected to “hostility and unfair and vulgar behavior” by a

co-worker, Wanda Soto-Hunter. (Doc. # 46-2 at 7 (24:1-4)).

Soto-Hunter would yell “unpleasant comments” to Bell at staff

meetings, stating for example that the meetings were only for

nurse managers. (Id. at 7 (24:6-25:3)). In February 2017,

Bell sent Lewis, Michel, and Rippman an email complaining

about Soto-Hunter’s “disrespectful [and] demeaning behavior”

towards her. (Doc. # 46-2 at 95). Bell stated she was “not

requesting intervention at this time.” (Id.). In April 2017,

Bell sent another email about Soto-Hunter’s behavior to Lewis

and Rippman, stating that Soto-Hunter “continues to be

disrespectful, demeaning and unprofessional to me in a

bullying and hostile manner.” (Id. at 103). According to the

email, Soto-Hunter had yelled at Bell, undermined her work

staffing nurses, and continued to ridicule her for not being

part of the management team. (Id.). Bell also noted in this

email that she was planning to file a complaint with the Equal

Employment Opportunity Commission (“EEOC”). (Id.).

Bell testified that Soto-Hunter’s behavior was racially

motivated because she was the only African-American employee

in SCI management at that time and Soto-Hunter did not treat

the other employees badly. (Id. at 9 (32:16-25)). Based on

Soto-Hunter’s behavior, Bell filed her first complaint with

the EEOC in April 2017. (Id. at 13 (46:10-12), 264).

In June or July of 2017, Bell was reassigned to work

night shifts several times a week, from 3:30 pm to midnight.

(Id. at 15 (53:1-54:17); 160 (22:1-23:14)). As Lewis

explained, Bell “worked the evening shift for a period of

time over several months, and she was representative of the

management team in that role in the evenings.” (Id. at 160

(20:24-21:2)). Rippman conceded that Bell was the only ANM

who worked the late shift every day. (Id. at 372 (34:20-25)).

Bell claims that moving her to the night shift was done in

retaliation for the filing of her first EEOC complaint and

was also racial discrimination. (Id. at 15 (54:8-55:2)).

Bell’s problems with Soto-Hunter continued. In June

2017, Bell emailed management about how Soto-Hunter

“continues to demean me in my job as assistant nurse manager

and as a staffing coordinator and is very disruptive to my

staffing coordinator work duties and bullies me to assign SCI

Resource staff to the SCI units she manages.” (Doc. # 46-2 at

258). Bell documented a June 2017 meeting in which Soto-

Hunter raised her voice at Bell over certain staffing

decisions Bell made. (Id.). In an August 2017 email, Bell

documented an incident where Soto-Hunter undermined certain

staffing decisions made by Bell, which decision Rippman

upheld. (Id. at 119).1

Bell testified that, in her opinion, she was not

initially allowed to sign the “proficiencies” (employee work

evaluations) for SCI Resource Pool employees due to her race,

1 Soto-Hunter was eventually “removed from her position,

detailed out,” and moved to a nurse manager position elsewhere

in the VA. (Doc. # 46-2 at 276 (35:1-9)).

stating that, “I was the only one African American Black in

management in Spinal Cord at that time. . . . I had already

filed an EEO Complaint. And I felt like this was further

racial discrimination. And also with me just looking around

the VA to see how many African American Blacks were in

management at the James A. Haley hospital, which were not

very many at all, very minimal.” (Doc. # 46-2 at 29 (110:21-

111:13). Lewis testified that ANMs at first were not allowed

to sign evaluations, but eventually HR changed their position

on that. (Id. at 157 (9:1-14)).

Bell also claims that her superiors pressured her to

mistreat VA staff based on race. For example, when assigning

“light duty” tasks, Bell’s supervisors directed her to tell

a black woman to scrape gum and food from underneath the

bedside tables, while asking a white woman to answer phones.

(Id. at 15 (55:14-56:20)).

As Defendant admits, Bell was a successful employee

during her time with SCI. (Doc. # 46 at 1-2). She was rated

as “outstanding” in her employee performance review for the

time period between October 2016 and September 2017. (Doc. #

46-2 at 475). The performance review noted that Bell joined

SCI as the ANM / Staffing Coordinator “amid sweeping

leadership changes.” (Id. at 474). And:

[W]ith almost no assistance, she shouldered full

responsibility for the SCI Resource Pool to include

hiring, coaching / mentoring, educating and even

disciplining staff when needed. Further, when

needed, she transitioned to work evening shifts

routinely to provide a stabilizing leadership

presence in-house during that work time. Due to

her efforts, many staff members have commented that

the work environment on that shift has greatly

improved.

(Id.).

Beginning in February or March 2018, Bell was going to

be transferred to the SCI-D unit and placed under the

supervision of Nurse Manager Lynette Carballo. (Id. at 164

(37:13-16); 281 (53:18-25); see also Id. at 518, 520). Bell

would have retained her role leading the SCI Resource Pool,

with Carballo acting as the “second line supervisor.” (Id. at

518). Lewis testified that this move was contemplated as a

“win/win” because Carballo had “one of the lower numbers of

report to employees” and it would enable Bell to work as an

ANM in an inpatient setting. (Id. at 164 (38:5-16)). Bell,

however, viewed the transfer as racial discrimination and

retaliation. (Id. at 30-31 (116-19)). Bell initiated contact

with the EEOC in late February 2018 on an informal EEO claim,

which claim became formal in March 2018. (Doc. # 52-3 at 12).

In March 2018, Bell met with Doloresco and asked to be

removed from the SCI unit, stating that she was being

“retaliated against for filing an EEO complaint and not

following” Rippman’s direction with respect to a certain

employee investigation. (Id. at 524). According to a March 6,

2018, email, after that meeting, Lewis told Bell that her

position had been eliminated. (Id.). Bell told Doloresco she

was receiving disparate treatment, was being “bullied by

[Lewis] and [Rippman],” and was being forced to work in a

hostile work environment. (Id.). Doloresco replied that same

day saying, among other things, that Bell’s position had not

been eliminated – she was being “aligned” under a nursing

manager (Carballo). (Id. at 523).

C. Bell moves to the HBPC program

Instead of moving to the SCI-D unit, however, in late

March of 2018, Bell accepted a position with the VA’s Home

Based Primary Care (“HBPC”) program. (Doc. # 46-2 at 34

(131:1-3), 640-43). Bell’s direct supervisor at HBPC was

Nurse Manager Tammie Terrell. (Id. at 804-08). At that time,

Terrell’s direct supervisor was Raina Rochon, Chief Nurse

over multiple departments, including the HBPC program. (Id.

at 807-08). Rochon, as a Chief Nurse, reported to Doloresco.

Dr. June Leland is the medical director of the Tampa

VA’s HBPC program. (Id. at 603 (5:10-12)). Dr. Leland wrote

an email on March 30, 2018, that HBPC was “expanding” its use

of RNs. (Id. at 600). According to the email, the group had

selected five new RNs. (Id.). When one of the selected nurses

declined the position, the position was offered to Bell as

the “next in line” based on the hiring committee’s scoring.

(Id.).

Specifically, in a March 30, 2018, email chain, Terrell

asked Dr. Leland where Bell should be placed. (Id. at 641-

42). Dr. Leland responded, “There must be a mistake. We did

not select her.” (Id. at 641). Terrell wrote back that “based

on your scoring from the interviews [Bell] is next in line[.]”

(Id. at 640). Dr. Leland requested that Bell be placed

elsewhere until the entire hiring committee could reconvene

to fill the spot. (Id. at 639). Dr. Leland also wrote to HR,

“heartily object[ing] to [hiring] a candidate” that was not

chosen by the entire committee. (Id. at 600). Eventually, HR

stated that Bell’s selection was valid, and her placement at

HBPC went through. (Id. at 612 (41:7-16), 658-64).

According to Dr. Leland, she did not have anything

against Bell, but was objecting to the selection process.

(Id. at 612 (41:24-42:3)). But Bell believes that Dr. Leland

tried to block her from the position due to her race stating

that, after she began working in the HBPC program, Dr. Leland

committed “multiple” acts of racial discrimination against

Bell and other African-American employees. (Id. at 39 (150:9-

21)).

According to Bell, the discriminatory conduct continued

after she moved to HBPC. For example, all the other HBPC

nurses were assigned patients close to where they lived,

except for Bell. (Id. at 40 (155:4-9)). Nurse Manager Terrell

verified that “we were trying to pair up everybody . . . based

on where they resided.” (Id. as 834 (25:2-5)).

Bell explained that she was assigned patients in both

the Polk County, Lakeland-area and in south Hillsborough

County, neither of which was close to where she lived. (Id.

at 619 (69:9-11), 822). As noted by Dr. Leland in a June 2018

email: “Our new RN Marecia Bell has been given a panel of 26

patients across 4 providers ranging from South Hillsborough

to Lakeland. Her drive times between all four providers are

huge, and we are going to restrict her to 2 providers by next

week.” (Id. at 902).

Bell was eventually reassigned to just cover south

Hillsborough County. (Id. at 655). Bell believed that moving

her to the south Hillsborough County rotation was done in

retaliation for her EEO complaint, although Terrell assured

her it was only due to patient demands. (Id. at 872).

Terrell explained that Bell and others felt that the

work was not being distributed fairly and that rules or

policies were not being applied fairly by Dr. Leland. (Id. at

836 (34-35)). Terrell stated that, in her opinion, Dr. Leland

gave differential and less preferential treatment to African-

American staff members. (Id. at 834 (27:5-13), 836 (35:4-9)).

As Terrell described it, Dr. Leland was “very strict” and

inflexible on certain policies but “she didn’t hold the same

standards” across her entire staff and there was obvious

favoritism. (Id. at 837 (38:3-15)).

D. Bell’s request for a part-time position and LWOP

In January 2019, Bell requested a part-time position,

effective that August or September. (Doc. # 46-2 at 45

(176:15-25), 781). Nurse Manager Terrell forwarded Bell’s

request to Chief Nurse Rochon. (Id. at 780). From the email

traffic, it appears that Bell was trying to procure a part-

time position in a different department. (Id. at 780).

Rochon testified that whether Bell would receive this

part-time position in another department was out of her hands

— employees could apply for new positions within the VA, and

she would be notified by HR if the employee was going to be

reassigned. (Id. at 734 (68:4-12)). But, as Bell tells it,

Rochon had to approve her move to a part-time position, and

Rochon would not do it because of Bell’s race and prior EEOC

activity. (Id. at 46 (177:17-178:16), 48 (186:11-15)).

In June 2019, having been unable to find a part-time

position, Bell requested leave without pay from August 2019

until August 2020 (the “LWOP request”) in order to care for

herself and her husband following surgeries they had. (Id. at

782). Rochon sent a memo to her supervisors regarding Bell’s

LWOP request, recommending that it be denied and essentially

stating that the team did not have the capacity to cover an

absent employee for a year. (Id. at 791-94). Andrew Sutton,

the head of HR, Doloresco, and the VA’s director, Joe Battle,

also disapproved the request. (Id.). According to Bell, her

LWOP request was denied on the basis of her race and prior

EEOC activity. (Id. at 52 (203:1-9)). She explained that she

was the only Black person working as an RN in the HBPC program

at that time. (Id. at 203:16-20)). She said Battle told her

he would approve the LWOP if she would drop all of her EEOC

complaints. (Id. at 203-04). Bell refused to do so and,

instead, filed a new EEOC complaint in August 2019 based on

the denial of her LWOP request. (Doc. # 52-3 at 9-11).

Bell did eventually take leave under the Family Medical

Leave Act (“FMLA”) starting in June 2019. (Doc. # 46-2 at

926, 933-34). After her approved leave time under the FMLA

was exhausted, Bell did not return to work and was marked as

AWOL until she returned in June 2020. (Id. at 53 (205:14-

18)).

Bell initiated this action against the Department of

Veterans Affairs on June 3, 2020, asserting claims for racial

discrimination under Title VII (Count One); retaliation under

Title VII (Count Two); and a hostile work environment under

Title VII (Count Three). (Doc. # 1). Bell also brought a claim

under the FMLA, but that claim was later dismissed. (Doc. #

45). She seeks damages, attorneys’ fees and costs, and

injunctive relief. (Doc. # 1 at 20-25). The VA filed an

answer, and the case proceeded through discovery. The VA now

moves for summary judgment on all claims. (Doc. # 46). The

Motion has been fully briefed (Doc. ## 52, 56), and is now

ripe for review.

II. Legal Standard

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 factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

Bell worked as a federal government employee and thus

this case is controlled by Title VII’s federal-sector

provision. It states in relevant part that “[a]ll personnel

actions affecting employees . . . in executive agencies . .

. shall be made free from any discrimination on race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).

The Eleventh Circuit recently held that the Supreme Court’s

decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020) (“Babb I”)

– which interpreted the nearly identical federal-sector

provision of the Age Discrimination in Employment Act

(“ADEA”) – is applicable to Title VII federal sector cases.

Babb v. Sec’y, Dep’t of Veterans Affairs, 992 F.3d 1193 (11th

Cir. 2021) (“Babb II”).

As the Supreme Court explained in Babb I, the language

“shall be made free from any discrimination” means that

personnel actions must be “untainted by any consideration” of

the protected factor. 140 S. Ct. at 1171. “If . . .

discrimination plays any part in the way a decision is made,

then the decision is not made in a way that is untainted by

any such discrimination.” Id. at 1174. “As a result, [the

protected factor] must be a but-for cause of discrimination

– that is, of differential treatment – but not necessarily a

but-for cause of the personnel action itself.” Id. at 1173.

In other words, to state a claim under Title VII, the

protected factor “must be the but-for cause of differential

treatment, not that the [protected factor] must be a but-for

cause of the ultimate decision.” Id. at 1174.

But showing that a protected factor was the but-for cause

of the challenged employment decision still plays an

important role in determining the appropriate remedy. Id. at

1177. Showing that discrimination was the but-for cause of

the ultimate employment decision or outcome will unlock all

available forms of relief such as reinstatement, back pay,

and compensatory damages. Id. at 1171, 1177-78. But if a

plaintiff makes only the lesser showing, that is, if a

plaintiff shows that discrimination was a but-for cause of

differential treatment but not the but-for cause of the

employment decision itself, that plaintiff can still seek

injunctive or other forward-looking relief. Id. at 1178.

In applying Babb I to a Title VII federal-sector case,

the Eleventh Circuit wrote that:

So, even when there are non-pretextual reasons for

an adverse employment decision . . . the presence

of those reasons doesn’t cancel out the presence,

and the taint, of discriminatory considerations.

Without quite saying as much, then, it seems that

the Supreme Court accepted Babb’s argument that the

District Court should not have used the McDonnell

Douglas framework.

Babb II, 992 F.3d at 1204 (citation and internal quotation

marks omitted).

Thus, under the Babb framework, Bell needs to show only

that her race/color played a part in the way an employment

decision was made, that is, that the decision was “tainted”

by discrimination. Babb, 140 S. Ct. at 1174; see also Durr v.

Sec’y, Dep’t of Veterans Affairs, 843 F. App’x 246, 247 (11th

Cir. 2021) (explaining that, after Babb, “a plaintiff’s claim

survives if ‘discrimination played any part in the way a

decision was made’” (internal alterations omitted)).

A. Racial Discrimination Claim

To be actionable, discrimination must influence a

“personnel action.” See 42 U.S.C. § 2000e-16(a) (“All

personnel actions affecting employees . . . in executive

agencies . . . shall be made free from any discrimination on

race, color, religion, sex, or national origin.”). Personnel

actions in the federal employment context “include most

employment-related decisions, such as appointment, promotion,

work assignment, compensation, and performance reviews.” Babb

I, 140 S. Ct. at 1172-73 (citing 5 U.S.C. § 2302(a)(2)(A)).

Here, with respect to her duration of employment in the

SCI unit (October 2016 to March 2018), Bell claims that

discrimination played a part in the following employment

decisions: (1) “On February 20, 2018, [Bell’s] position

description was changed; (2) On March 5, 2018, [Bell] was

denied a reassignment; (3) On March 5, 2018, [Bell’s] position

was eliminated; and (4) [Bell] was denied appropriate

supervisory pay.” (Doc. # 1 at ¶ 13). She also argues that

the overall hostile work environment at the Tampa VA was a

“personnel action” because it constituted a “significant

change in . . . working conditions.” (Doc. # 52 at 22); see

also Babb II, 992 F.3d at 1209 (“The text of the federal-

sector provision addresses ‘personnel actions,’ and so it

seems clear enough that an actionable retaliatory-hostile-

work-environment claim must describe conduct that rises to

that level.”).

The Court first examines Bell’s claim with respect to

her employment with the SCI unit. With respect to the alleged

personnel actions taken during this time, Bell has little

beyond her own subjective beliefs to demonstrate that racial

discrimination played a part in any of these decisions. A

plaintiff’s speculative assertions of racial discrimination

are not enough to overcome summary judgment. See Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)

(“Speculation does not create a genuine issue of fact;

instead, it creates a false issue, the demolition of which is

a primary goal of summary judgment.”); Jeffery, 64 F.3d at

593-94 (explaining that the party opposing summary judgment

must come forward with evidence setting forth specific facts

to show that there is a genuine issue for trial).

Bell points to the fact that she was the only African-

American supervisor in the SCI unit, but she does not point

to any non-African-American ANMs who were given supervisory

or management duties and then persuaded the VA to give them

a promotion and/or pay raise.2 There is similarly no evidence

of any ANM at the VA who was given supervisory powers and

then, with or without a promotion, given pay commensurate

with that of a nurse manager. Nor has Bell pointed to any

other employees who were allowed, upon request, to transfer

to another unit because they were unhappy in their current

position.

Although it is true that Babb lessened the burden that

federal-sector plaintiffs need to show, Bell has not met this

lesser burden because she has not pointed to any evidence

that racial discrimination was the but-for cause of any

differential treatment she experienced. For example, the

Eleventh Circuit has recently upheld a district court’s grant

of summary judgment in favor of the defendant-employer where

the plaintiff offered no direct evidence that race played a

role in the defendant’s promotion decisions and his

contention that he was more qualified than the people who got

promoted was not supported by the record. Malone v. U.S. Att’y

Gen., 858 F. App’x 296, 301 (11th Cir. 2021) (writing that,

2 The record reflects that Shernise Henshall was promoted from

an ANM to an acting nurse manager position and then Henshall

got the permanent nurse manager position with commensurate

pay. (Doc. # 46-2 at 723-34 (24:23-26:14)). But Henshall is

also African-American. (Doc. # 52 at 7).

even under the Babb standard, summary judgment was proper on

racial discrimination claim where plaintiff could not “point

to any record evidence that his application for DHO was

treated differently because he is white”); see also Buckley

v. McCarthy, No. 4:19-CV-49 (CDL), 2021 WL 2403447, at *1 &

*6 (M.D. Ga. June 11, 2021) (granting defendant’s summary

judgment motion under Babb standard where plaintiff was the

only Black provider at the subject clinic and contended that

she was assigned fewer patients and that her coworkers called

her an “angry Black woman” because the evidence did not

demonstrate that race played any role in the decision to

remove that plaintiff from federal service).

It is evident that Bell thinks it unfair that she was

expected to perform supervisory duties while retaining the

position and pay grade of an ANM. But this Court is not in

the position to be the arbiter of whether certain employment

decisions were fair, it is concerned solely with whether those

decisions were based on illegal reasons. See Gogel v. Kia

Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1148 (11th Cir. 2020)

(“The role of this Court is to prevent unlawful Title VII

practices, not to act as a super personnel department that

second-guesses employers’ business judgments. Our sole

concern is whether unlawful discriminatory or retaliatory

animus motivates a challenged employment decision.”).

The Court now turns to Bell’s time with the HBPC program.

During that timeframe, from April 2018 until March 2019, “Dr.

Leland assigned [Bell] an unfair workload requiring her to

conduct patient visits between two counties, the farthest

travel distance” and on July 31, 2019, her LWOP request for

August 2019 through August 2020 was denied.3 (Doc. # 1 at ¶

38). In her testimony, Bell identifies the only other African-

American nurse in the program, Dietrich Langston. (Doc. # 46-

2 at 43 (167:1-4)). According to the testimony, Dr. Leland

assigned Bell and Langston to work areas far from their homes

and also unfairly blocked Bell and Langston from taking

advantage of certain parking privileges. (Id. at 167:4-25).

Bell testified that Dr. Leland did not treat other nurses in

the program this way. (Id. at 40 (155:4-9)). And Bell has

also presented the testimony of Nurse Manager Terrell that,

in her opinion, Dr. Leland gave differential and less

preferential treatment to African-American staff members.

(Id. at 834 (27:5-13), 836 (35:4-9)). Given corroborated

3 None of the other actions that Bell complains of during this

time frame, such as “inappropriate comments” being made,

rises to the level of a personnel action or employment

decision by the VA.

differential treatment by Dr. Leland, a reasonable jury could

also infer that race played a part in Dr. Leland’s efforts to

block Bell from joining the HBPC program as a nurse. Thus, a

reasonable jury could infer that race was a but-for cause of

the different treatment that Bell experienced with respect to

the HBPC application process and the work assignments she

received once she was part of the HBPC program.

Finally, Bell has not produced any evidence beyond her

own speculation that race played a part in the VA’s decision

to deny her LWOP request.

Accordingly, the VA’s motion for summary judgment is

granted in part and denied in part with respect to Count One.

The Motion is granted to the extent it seeks summary judgment

with respect to Bell’s claim of racial discrimination

pertaining to personnel decisions in connection with her

employment with the SCI unit and her LWOP request. But the

Motion is denied with respect to Bell’s claim of racial

discrimination with respect to her employment with the HBPC

program.

B. Retaliation Claim

A prima facie case of retaliation requires a plaintiff

to establish that she (1) engaged in statutorily protected

activity; (2) suffered an adverse employment action; and (3)

established a causal link between the protected activity and

the adverse employment action. Malone v. U.S. Att’y Gen., 858

F. App’x 296, 303 (11th Cir. 2021). “In the context of a

retaliation claim, an adverse employment action is one that

‘well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Id. (citing

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). To show a causal connection, the plaintiff needs to

show that the protected activity played some part in the way

the decision was made. Tonkyro v. Sec’y, Dep’t of Veterans

Affs., 995 F.3d 828, 835 (11th Cir. 2021) (holding that

federal-sector plaintiffs need not “prove that their

protected activity was a but-for cause of the adverse actions”

and remanding the district court to determine causation under

the standard enunciated in Babb).

Here, it is undisputed that Bell engaged in protected

activity through her multiple EEOC complaints. For reasons

described more fully below, the Court will proceed next to

the causation prong.

As the Eleventh Circuit explained just last month:

In federal-sector cases, of course, the employee is

not required to show that her protected activity

was the but-for cause of the adverse action; it is

sufficient to show that her protected activity

played a role in the adverse action. Moreover, if

the employee makes this showing, the employer

cannot escape liability by presenting evidence that

it also had nondiscriminatory reasons for its

action. That is because “even when there are non-

pretextual reasons for an adverse employment

decision . . . the presence of those reasons doesn’t

cancel out the presence, and the taint, of

discriminatory considerations.

Varnedoe v. Postmaster Gen., No. 21-11186, 2022 WL 35614, at

*3 (11th Cir. Jan. 4, 2022) (citing Babb II, 992 F.3d at 1199,

1204-05).

Here, in the absence of any other evidence of retaliatory

animus, Bell relies on temporal proximity between her EEO

activity and the allegedly adverse actions taken against her.

A plaintiff can show a causal connection by showing a close

temporal proximity between her employer’s discovery of the

protected activity and the adverse action, but the temporal

proximity must be “very close.” Thomas v. Dejoy, No. 5:19-

cv-549-TKW-MJF, 2021 WL 4992892, at *10 (N.D. Fla. July 19,

2021) (looking to temporal proximity test post-Babb and

citing Debe v. State Farm Mut. Auto. Ins., 860 F. App’x 637,

639-40 (11th Cir. 2021) (noting that a one-month delay may

satisfy the test, but a three-to-four-month delay is too

long)).

As Bell points out, in April 2017, she initiated her

first EEOC Complaint. See (Doc. # 52-4 at 5). This EEOC

complaint was based on Soto-Hunter’s harassing behavior.

(Doc. # 52-3 at 7-8). On June 19, 2017, Bell emailed Lewis,

Rippman, and Doloresco complaining of workplace harassment

and stating that she had filed an EEOC complaint. (Doc. # 46-

2 at 107).

On June 20, 2017, Chief Nurse Rippman changed Bell’s

working hours from the day shift to a shift stretching from

3:30 p.m. until midnight. (Doc. # 52-4 at 6). Bell claims

that she was the only ANM made to work that later shift.

(Id.). While other ANMs allegedly had to cover that shift two

times per week, Bell never saw them and claims she was the

only manager made to work that shift.

Bell filed her second EEOC Complaint on March 22, 2018.

(Doc. # 52-4 at 5). In that complaint, Bell raised the issues

of: (1) lack of supervisory pay; (2) being made to work the

night shift; (3) her reassignment to working under Nurse

Manager Carballo; and (4) Lewis and/or Rippman’s statements

to her on March 5, 2018, that her position was being

eliminated. (Doc. # 52-3 at 13-14). Bell filed another EEOC

complaint in August 2019, grieving the denial of her LWOP

request. (Doc. # 52-3 at 9-11).

As an initial matter, the Tampa VA’s refusal to change

Bell’s position in the SCI to that of a nurse manager or offer

her higher pay cannot be causally related to any EEO activity

because she was given supervisory duties over the Resource

Pool in November 2016 (and requested the commensurate

promotion at the same time), but she did not file her first

EEOC complaint until the next year. Similarly, while Bell

identifies the “realignment” or “elimination” of her position

in February or March 2018 as an actionable personnel decision,

the record reflects that she filed her second formal EEOC

complaint after these events occurred. See Debe, 860 F. App’x

at 640 (“[I]f the alleged retaliatory conduct occurred before

the employee engaged in protected activity, the two events

cannot be causally connected.”). And these events occurred

nearly one year after Lewis, Rippman, and/or Doloresco became

aware of the first EEOC complaint. (Doc. # 46-2 at 103); see

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007) (holding that a three- to four-month delay between

the EEO action and the adverse action does not demonstrate

causation).

While Bell’s move to the HBPC program did occur near the

time of her filing of the second EEOC complaint, there is no

record evidence that Dr. Leland (who objected to Bell’s

placement in the program and then later allegedly gave Bell

less desirable assignments) had any knowledge of Bell’s

earlier EEOC activity. There is similarly no evidence that

Rochon was aware of Bell’s prior EEO activity.4 See Malone,

858 F. App’x at 303 (plaintiff’s retaliation claim due to be

dismissed where he could not point to any evidence that his

supervisors were aware of his EEOC complaint at the time he

was removed from his post). Bell speculates that Doloresco

probably told Dr. Leland about this activity, but such

speculation is insufficient to defeat summary judgment. See

Id.

Thus, the only potentially adverse action that is close

in time to Bell’s EEO activity was the placement of Bell on

a later shift in June 2017. But even if retaliatory animus

did play a part in this shift change, it cannot form the basis

of a retaliation claim because it was not, under the

circumstances presented here, an adverse employment action.

Whether a particular employment action is materially

adverse under the Burlington Northern standard “depends upon

the circumstances of the particular case, and should be judged

from the perspective of a reasonable person in the plaintiff’s

position considering all the circumstances.” Revere v.

4 To the extent Bell asserts in her declaration that Rochon

“participated in an EEO mediation,” that mediation did not

take place until November 2019, well after all of the alleged

adverse actions took place. (Doc. # 52-4 at 19).

Harvey, No. 1:06-cv-2485-CAP-RGV, 2009 WL 10666058, at *17

(N.D. Ga. Feb. 13, 2009), report and recommendation adopted,

2009 WL 10669716 (N.D. Ga. Mar. 20, 2009). Here, the record

reflects that the original ANM position that Bell applied for

was subject to working hours of 3:30 p.m. to midnight. (Doc.

# 46-2, Ex. 2). There is also record evidence that several

other ANMs were assigned to work this shift as well, although

some of them initially resisted this request from management.

(Id. at 315, 372 (35:12-25)). And Bell conceded during EEOC

proceedings that three other ANMs were also required to work

that evening shift starting in or around June 2017. (Id. at

391). Bell does not allege that the shift change was

accompanied by any change in her benefits, pay, or promotion

opportunities.

Under these circumstances, where the evening shift was

clearly contemplated in the ANM, staffing coordinator nursing

position and where the VA also required several other ANMs to

work this shift around the same time as Bell, the placement

of Bell on an evening shift does not constitute an action

that would dissuade a reasonable worker in Bell’s position

from making or sustaining a charge of discrimination. See

Solomon v. Jacksonville Aviation Auth., 759 F. App’x 872, 876

(11th Cir. 2019) (concluding that “isolated schedule changes”

did not rise to the level of an adverse action because they

would not have dissuaded a reasonable person from filing a

discrimination complaint); Benningfield v. City of Houston,

157 F.3d 369, 377 (5th Cir. 1998) (holding that a transfer to

the night shift, alone, did not constitute

an adverse action); see also Bolden v. City of Birmingham,

No. 2:17-CV-1520-TMP, 2019 WL 763513, at *4-5 (N.D. Ala. Feb.

21, 2019) (holding that an employer’s denial of a requested

shift change was not materially adverse where the employee

did not suffer a reduction in pay and did not lose any benefit

or promotion opportunity).

For these reasons, the VA’s Motion for Summary Judgment

is granted as to Count Two.

C. Retaliatory Hostile Work Environment Claim

As an initial matter, Bell appears to assert only a

retaliatory hostile work environment claim, not a traditional

hostile work environment claim. See (Doc. # 52 at 27-30

(limiting her response to address a retaliatory hostile work

environment claim)); see also (Doc. # 1 at ¶ 75 (alleging in

her hostile work environment claim that the hostile work

environment was “due to her EEO activity or . . . was

motivated, at least in part, by that activity” and that the

VA’s actions were “motivated by EEO animus”)).

This distinction is important in light of the Eleventh

Circuit’s recent Babb II holding. There, the Court clarified

that, in light of its decision in Monaghan v. Worldpay US,

Inc., 955 F.3d 855 (11th Cir. 2020), “retaliatory hostile

work environment” claims fall under the rubric of retaliation

claims, not true hostile work environment claims. Babb II,

992 F.3d at 1206-07. Thus, such claims are not subject to the

“severe or pervasive” standard (like true hostile work

environment claims), but should instead be decided under the

“well might have dissuaded” standard enunciated in Burlington

Northern. Id. at 1207-08.

The VA argues that, even under this standard, Bell cannot

show that the events making up her hostile work environment

claim were based on, or causally connected to, her EEO

activity. (Doc. # 46 at 22). The Court agrees. For the reasons

described above, viewing the evidence in the light most

favorable to Bell, Bell has failed to demonstrate a link

between the totality of events that allegedly created the

hostile work environment and her EEO activity. See Terrell v.

McDonough, No. 8:20-cv-64-WFJ-AEP, 2021 WL 4502795, at *9

(M.D. Fla. Oct. 1, 2021) (rejecting plaintiff’s retaliatory

hostile work environment claim where she failed to link the

allegedly adverse actions to her EEO activity).

In sum, Bell has failed to establish that a reasonable

employee in Bell’s position would have been dissuaded by any

of these action from filing an EEOC complaint and, indeed,

the record reflects that none of them dissuaded Bell from

doing so. See Burgos v. Napolitano, 330 F. App’x 187, 190-

191 (11th Cir. 2009) (finding no materially adverse action

where plaintiff “was not deterred in reinstating her EEOC

claim”).

Accordingly, the VA’s Motion for Summary Judgment will

be granted as to Count Three.

IV. Conclusion

For the reasons given above, summary judgment is due to

be granted on Counts Two and Three and on Count One to the

extent it is premised on claims of racial discrimination

related to the denial of Bell’s LWOP request or her employment

with the SCI unit. The Motion is denied as to Count One on

Bell’s claim of racial discrimination with respect to her

employment with the VA’s HBPC program.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

Defendant’s Motion for Summary Judgment (Doc. # 46) is

GRANTED in part and DENIED in part in accordance with this

Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

17th day of February, 2022.

fan Hunaby (mei¥h

VIR! IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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