Tonkyro v. McDonald

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ERIN TONKYRO, DANA STRAUSER

KARA MITCHELL-DAVIS, YENNY

HERNANDEZ

Plaintiffs,

v. Case No: 8:16-cv-2419-CEH-AEP

SECRETARY, DEPARTMENT OF

VETERANS AFFAIRS

Defendant.

ORDER

This matter comes before the Court upon Defendant’s Supplemental Brief in

Support of Summary Judgment (Doc. 116), Plaintiffs’ response in opposition (Doc.

119), Defendant’s reply (Doc. 122), Plaintiffs’ surreply (Doc. 125), and the Joint

Statement of Agreed Material Facts (Doc. 63).1 The Court, being fully advised in the

premises and having considered the written submissions, including the declarations,

depositions and attachments thereto, will again grant Defendant’s Motion for

Summary Judgment.

1 The Court previously granted summary judgment for Defendant. Doc. 99. The Eleventh

Circuit later affirmed in part, vacated in part, and remanded the case with instructions based

on intervening decisions. See Doc. 109. Thus, the Court considers the Parties’ prior briefing

in addition to the supplemental briefing. See Docs. 54, 60, 64, 67, 85, 89.

I. Background and Statement of Facts2

Plaintiffs Erin Tonkyro, Dana Strauser, Kara Mitchell-Davis, and Yenny

Hernandez allege that they were retaliated against and subjected to a retaliatory hostile

work environment while employed in Radiology Services at the James A. Haley VA

Healthcare System (the “Tampa VA”). Plaintiffs claim that Defendant retaliated

against them for Equal Employment Opportunity (“EEO”) complaints that were

settled in 2013. Doc. 83 ¶¶ 16–32.

a. Defendant’s Organizational Structure

The Tampa VA is a Veterans Administration hospital and medical center. The

chain of command there was as follows. Kathleen Fogarty was Director from 2011 to

July 2015. Doc. 54-6 at 75–76. Joe D. Battle became Director in July 2015. Doc. 54-6

at 62–64. Edward Cutolo became Chief of Staff in 2006 and oversaw all medical

services at the hospital, including Radiology. Id. at 52–54. Dr. Stephen Stenzler

became Chief of Radiology Services in October 2012. Doc. 63 ¶ 9. Stenzler is Plaintiffs’

third line supervisor. Id. Dr. Joseph Parise was Assistant Chief of Radiology from 2008

until June 2017. Id. ¶ 11. John Bennett became Administrative Officer (“AO”) of

Radiology in January 2013 and was Plaintiffs’ second line supervisor as Chief

Radiology Technologist from 2008 to 2012. Id. ¶ 10. Jeri Graham was Plaintiffs’ direct

supervisor until April 2012 and is currently their second line supervisor and Chief

2 This Order sets forth only the facts material to the remaining claims, as the Eleventh Circuit

affirmed the grant of summary judgment for Defendant on Count Three, Hernandez’s sex-

based hostile work environment claim. Doc. 109 at 2–3; Tonkyro v. Sec'y, Dep't of Veterans Affs.,

995 F.3d 828, 831 (11th Cir. 2021).

Technologist in Radiology. Id. ¶ 8. The Chief Technologist supervises all radiologic

examinations, including MRI, ultrasound, X-ray, CT scan and mammography. Id.

Carolyn Eubanks was Plaintiffs’ first line supervisor from January 2013 until

November 2013. Id. ¶ 5. Mario De Leon then became Acting Supervisor over the

Medical Instrument Technician (“MIT”) and MRI technologists. Id. ¶¶ 5–6. De Leon’s

position change made him Plaintiffs’ first line supervisor until October 2014, when

Scott Petrillo became the MIT and MRI supervisor. Id. ¶¶ 6–7. Petrillo was Plaintiffs’

first line supervisor at the time this lawsuit was filed. Id.

b. Plaintiffs’ Backgrounds

Erin Tonkyro has been an MIT in the Radiology Service since 2002. Doc. 54-1

at 3. An MIT performs diagnostic ultrasounds. Id. at 32. Kara Mitchell-Davis

(“Davis”) was hired in 2008 and promoted to Lead MIT in February 2014. Dana

Strauser began working as an MIT in November 2008. Doc. 54-3 at 3. Yenny

Hernandez began working as an MIT in October 2011. Doc. 54-4 at 5.

In May 2012, Tonkyro, Davis, and Strauser filed separate EEO complaints

against the Tampa VA alleging sexual harassment by Parise, Bennett, and Graham.

Doc. 63 ¶ 15. Hernandez did not file an EEO complaint at that time. Doc. 54-4 at 6.

She did, however, testify in support of the other Plaintiffs’ claims. Doc. 60-4 at 2 ¶ 1.

In September 2013, the VA settled Tonkyro, Strauser and Davis’s EEO cases. Doc. 63

¶ 17.

Plaintiffs allege that their supervisors subsequently retaliated against them in

several ways, including through initiation of an Administrative Investigative Board

(“AIB”), statements that Plaintiffs would never become supervisors, disputes about

understaffing in Radiology, rampant rumor-spreading within the hospital, and

disclosure of confidential employment records on the “S drive” accessible to all

employees. Doc. 60-1 ¶¶ 1–6, 16.

c. Plaintiffs’ Claims and Individual EEO Complaints

i. Erin Tonkyro

As relevant to the remaining claims in this lawsuit, Tonkyro contacted an EEO

counselor alleging retaliation and a retaliatory hostile work environment based on her

previous EEO complaints in January 2018. Doc. 60-1 at 2–9. She had filed an informal

EEO complaint on May 1, 2012, and a formal one on June 12, 2012. Id. ¶ 1. She filed

another informal complaint on March 28, 2014, and a formal one on July 9, 2014.

Doc. 54-1 at 3; Doc. 60-1 ¶ 1.

In her complaints, Tonkyro alleged that: Bennett slowly walked past her and

glared; Stenzler recommended her application for a supervisory position but Fogarty

disagreed; management required a Diagnostic Radiologic Technician (“DRT”) license

for a supervisory MRI/Ultrasound position which made her ineligible to apply;

management disclosed confidential employment records; Parise entered her work area

and glared at her; an employee, Warren Rose, made disparaging remarks after

accessing confidential employment records; and Bennett failed to provide her with

essential equipment. Doc. 60-1 at 123. The Tampa VA investigated the claims as

evidenced by the Department of Veterans Affairs Office of Resolution Management’s

Written Affidavit. Id. at 122–133.

On September 15, 2014, Tonkyro transferred from the main hospital to the

newly opened Primary Care Annex. Doc. 63 ¶ 18. From that point on, she visited the

main hospital monthly for staff meetings. Doc. 54-1 at 4, 40. On September 24, 2015,

Tonkyro again contacted an EEO counselor, alleging retaliation and a retaliatory

hostile work environment based upon prior EEO activity. Id. at 4–5. On November 2,

2015, she filed a formal EEO complaint alleging further retaliation. Doc. 54-1 at 84–

86. From 2012 to 2016, Tonkyro received “exceptional” and “outstanding”

performance ratings. Id. at 69–70; Doc. 60-9, 60-10. She has no record of discipline

since the 2013 settlement agreement. Doc. 54-1 at 70; Doc. 54-5 at 94 ¶ 3.

ii. Dana Strauser

Strauser filed an informal EEO complaint on May 1, 2012, and a formal

complaint on June 8, 2012. She contacted an EEO counselor to allege retaliation and

a hostile work environment based upon the settlement of her previous complaint in

2013. Doc. 54-3 at 4–5. She filed another informal complaint on March 28, 2014 (Doc.

60-3 ¶ 1) and a formal complaint on July 11, 2014. Doc. 54 ¶ 24. She filed a subsequent

complaint on June 14, 2015. Doc. 60-3 ¶ 1.

Strauser alleged that bullying claims made by Angela Geraci-DiSimone

(“Geraci”) and an ensuing investigation were done in bad faith, and that management

denigrated her and the other plaintiffs during the investigation. Doc. 54-3 at 5. Strauser

claimed that she received threatening and harassing telephone calls. Id. at 12. She also

alleged that management created an Ultrasound Supervisor position and then changed

the qualifications to bar her from applying. Id. at 30. Lastly, she complained that

confidential employment records were placed on the hospital “S Drive” and Bennett

failed to properly investigate the incident. Id.; Doc. 54-3 at 75. Strauser took maternity

leave from January 12, 2015, to May 5, 2015. Id. at 37. On February 10, 2016, she

again contacted an EEO counselor and filed an informal complaint alleging retaliation

and a retaliatory hostile work environment. She filed a formal EEO complaint on April

4, 2016. Id. at 10. From 2013 to 2016, Strauser received “outstanding” performance

ratings. Id. at 57. She has no record of discipline since the 2013 settlement. Doc. 54-5

at 93–95.

iii. Yenny Hernandez

Hernandez contacted an EEO counselor on July 28, 2016, and filed a formal

complaint alleging sexual harassment and a retaliatory hostile workplace on

September 8, 2016. Doc. 54-4 at 33. Previously, Hernandez testified before an AIB

that was convened in 2012 to investigate Plaintiffs’ sexual harassment allegations. Id.

at 6. She was also a witness in the 2014 EEO cases filed by her co-Plaintiffs. Id. at 6–

7. Among other incidents and comments, Hernandez claimed that Dr. Thornton

Eastham told her that Parise said she and others working in radiology would be fired.

Id. at 16–17.

Hernandez also complained that Geraci harassed and retaliated against her in

several ways. Geraci began working as an MIT in August 2015. Doc. 54-6 at 96. First,

Hernandez alleged that Geraci pulled up her shirt just a few hours after the two met.

Doc. 54-4 at 15. Separately, Geraci said she was a “double D” and pulled up her blouse

to show Hernandez her breasts. Id. at 65–66. Although Hernandez told Geraci she did

not want to see her breasts repeatedly, Geraci pulled up her shirt, and later made

similar comments and gestures. Id. At other times, Geraci referenced her mother’s

“close friendship” with Jeri Graham, Chief Technologist. Doc. 54-4 at 15. Hernandez

alleged that Petrillo did not intervene to stop this behavior. Id. at 60–67. Further,

Hernandez alleged that Geraci would embrace other coworkers and sit on their laps,

make lewd comments and gestures about Hernandez, doctors, and patients, and make

repeated inappropriate references to genitalia. Id.

iv. Kara “Nikki” Mitchell-Davis

Davis filed an informal EEO complaint on April 30, 2012, and a formal

complaint on June 8, 2012. Doc. 60-2 ¶ 1. She added claims and made amendments

on November 14, 2012. She filed another informal complaint on April 1, 2014, and a

formal complaint on July 7, 2014. Id. On September 23, 2015, Davis again contacted

an EEO counselor and filed a formal complaint on October 28, 2015. Id.

Davis’s complaints alleged that two employees told her confidential records had

been purposely shared on a public computer drive, including information about her

previous lawsuit and EEO complaints. See Doc. 54-2 at 98–103. She also alleged that

supervisors intentionally hired Geraci, who was unfit for the job, “in order to see her

[Davis] fail,” Bennett continued to glare at her, and Parise took threatening actions.

Id. at 101. Davis also alleged that management restricted a supervisor job opening to

DRT-licensed personnel, which disqualified her from applying, and that although she

received a promotion to Lead Technician, management delayed it and reduced her

ability to succeed. Id. The Office of Resolution Management investigated her EEO

claims as documented in its February 24, 2016, Written Affidavit. Doc. 60-2 at 90–

109.

From 2012 to 2016, Davis received “exceptional” and “outstanding”

performance ratings. Doc. 54-2 at 63–64. She has no record of discipline since the 2013

settlement agreement. Doc. 54-5 at 93–95. Her salary and pay grade increased with

the 2014 promotion to lead MIT. Doc. 54-2 at 20. She took extended leave from April

25, 2014, to February 17, 2015, for a work-related injury. Id. at 66–67. She took

maternity leave from October 12, 2015, to the first week of February 2016, and again

from October 24, 2016, to March 2017. Id. at 9, 67. In total, Davis was absent for

around 18 months of the relevant period. Id.

In March 2016, Geraci first complained to Petrillo about her conflicts with

Davis. Doc. 54-5 at 58–59. In April, the Tampa VA posted a vacancy announcement

for an Ultrasound Supervisor, to which only Davis applied. Doc. 63 at 3 ¶ 21. The job

posting closed on April 22, 2016, and remained unfilled. Doc. 54-6 at 9, 65. Stenzler

stated that this was because he “felt that it was better for the service to have a lead

mammography tech than for a lead in PCA.” Id. at 9. That same month, Geraci

prepared a written complaint alleging Davis bullied her and met with Stenzler

regarding her complaint. Doc. 54-6 at 97; Doc. 54-5 at 103. Stenzler referred the matter

to Cutolo, the Chief of Staff. Doc. 54-5 at 3. Director Battle received a briefing and

decided to empanel an AIB to investigate. Doc. 54-6 at 62. None of the three AIB

members worked in Radiology. Doc. 54-7 at 2, 10–11; Doc. 54-3 at 51. Various

employees in Radiology testified before the AIB, which ultimately concluded that

Davis bullied and harassed Geraci. Doc. 54-7 at 5–7, 23–24. The AIB recommended

remedial training and team building in lieu of disciplinary action. Id. In May 2016, the

hospital moved Geraci to the New Port Richey Clinic. Doc. 63 ¶ 22; Doc. 54-5 at 94.

d. Anonymous Memorandum

On June 23, 2016, two employees (later identified as Dr. Thornton Eastham

and Dr. Katie Bailey) sent an anonymous memorandum to Director Battle. Doc. 60-9

at 25–26. The letter stated that “the leadership of the Radiology service” had engaged

in numerous “prohibited, illegal, and/or deficient activities.” Id. at 25. It stated that

management engaged in “retaliatory behavior” and intentionally created a “hostile

work environment,” which included derogatory statements about employees in front

of other staff, exclusion of employees from advancement or promotion within the

department, and threats by managers that notice of any complaints would result in

negative consequences. Id. at 26. The memo also noted that complaints were funneled

through the leadership hierarchy even if the person receiving the report committed the

wrongdoing, and that the employees who were initial victims of the sexual harassment

EEO settlements “remain in constant vigilance for continued retaliation.” Id.

e. Procedural Posture

Plaintiffs sue the Secretary of the Department of Veterans Affairs under Title

VII, 42 U.S.C. § 2000e-16, alleging retaliation and a retaliatory hostile work

environment. Doc. 83 ¶¶ 15–32. Defendant moved for summary judgment, and

Plaintiffs responded. Docs. 54, 60. Thereafter, a Third Amended Complaint was filed,

which did not alter the substantive allegations. Doc. 83. Defendant and Plaintiffs

renewed their motions and responses. Docs. 85 & 89. The Court granted summary

judgment for Defendant on all claims. Doc. 99.

Plaintiffs appealed. The Eleventh Circuit affirmed the order as to Hernandez’s

sex-based hostile work environment claim, but vacated it as to the retaliation and

retaliatory hostile work environment claims. Doc. 109. The Circuit Court remanded

these claims for reconsideration under two intervening decisions: (1) Babb v. Wilkie,

992 F.3d 1193 (11th Cir. 2021), which held that federal-sector Title VII claims are to

be evaluated under the causation standard announced by the Supreme Court in Babb

v. Wilkie, 140 S. Ct. 1168 (2020); and (2) Monaghan v. Worldplay U.S., Inc., 955 F.3d

855 (11th Cir. 2020), which adopted the material adversity standard in Burlington

Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) for federal sector

retaliatory hostile work environment claims. After a status conference, Defendant filed

a supplemental brief in support of summary judgment. Doc. 116. Plaintiffs responded

(Doc. 119), Defendant replied (Doc. 122), and Plaintiffs filed a surreply (Doc. 125).

The Court heard oral argument on Defendant’s renewed motion for summary

judgment on December 4, 2023 (Doc. 131).

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show

the court that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325.

When the moving party has discharged its burden, the nonmoving party must

then designate specific facts showing that there is a genuine issue of material fact. Id.

at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving

party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by

relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,

858 (11th Cir. 2006).

A. Retaliation

Defendant argues it is again entitled to summary judgment on Plaintiffs’

retaliation claims. Doc. 116 at 3–16. Upon review of the evidence, original briefing,

supplemental briefing, and with the benefit of oral argument, the Court agrees.

Although the Court now reviews Plaintiff’s claims under a broader and more lenient

causal standard (which asks whether protected activity played any part in the way the

employment decisions in question were made), the intervening caselaw has not

changed the fact that Plaintiffs must still show that there is a genuine dispute of

material fact as to each of their claims. As detailed below, Plaintiffs fail to do so, and

summary judgment will again be granted in favor of Defendant.

Count One alleges that Plaintiffs were retaliated against based on prior EEO

activity. Doc. 83 ¶¶ 33–41. Over more than thirty-five pages, the operative complaint

rattles off a lengthy list of adverse employment actions that Plaintiffs claim were

retaliatory. Id. ¶¶ 15–32, 38. Some of these employment actions affected the plaintiffs

collectively, while others affected a specific plaintiff. Id.

The Circuit Court remanded Plaintiffs’ retaliation claims for consideration in

light of Babb v. Wilkie, 140 S. Ct. 1168 (2020). Doc. 109 at 9. Babb addressed the

causation requirement for federal-sector ADEA claims—holding that the requirement

that decisions be “made free from any discrimination based on age” means that a

plaintiff suing under the ADEA need not show that her age was a but-for cause of an

ultimate personnel action. 140 S. Ct. at 1171–1178. Instead, a showing that age

discrimination played “any part in the way a decision [wa]s made” is enough to

establish a violation. Id. at 1173–74. On remand from the Supreme Court, the Eleventh

Circuit concluded that Babb’s more lenient causation standard controls federal-sector

Title VII claims as well, based on its nearly identical causation provision. Babb v. Sec'y,

Dep't of Veterans Affs., 992 F.3d 1193, 1196 (11th Cir. 2021).

Previously, the burden-shifting framework set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973) (“McDonnell Douglas”) applied to federal-sector Title VII

claims based on circumstantial evidence. After the Babb decisions, however, it became

clear that the framework’s second and third steps no longer applied. A Plaintiff is thus

no longer required to prove that retaliation was a but-for cause of the ultimate adverse

employment action taken against her. Instead, evidence that retaliation played any

part in the way a decision was made (assuming the employment action was material)

is now enough to push a claim past the summary judgment stage.

Moreover, the Eleventh Circuit recently clarified that post-Babb, it no longer

“make[s] sense” to apply any portion of the McDonnell Douglas burden-shifting

framework to federal-sector Title VII claims. Buckley v. Sec'y of Army, 97 F.4th 784, 794

(11th Cir. 2024) (addressing race-based disparate treatment claims). Buckley also

extended this holding to retaliation claims, such as the ones in this matter, stating that

“after Babb I and Babb II, in analyzing Buckley's retaliation claim, we instead consider

whether Buckley has submitted evidence that would allow a reasonable jury to find

that retaliation ‘play[ed] any part’ in the Secretary's decision-making process when he

proposed to remove her from federal service.” Id. (citing Babb I, 140 S. Ct. at 1174).

As set forth in another recent Circuit decision, to make out a case of retaliation,

Plaintiffs must show that: (1) they engaged in protected EEO activity; (2) they suffered

an adverse employment action; and (3) they must establish a causal link between the

protected activity and the adverse action. Terrell v. Sec'y, Dep't of Veterans Affs., No. 21-

14185, 2024 WL 1671962, at *7 (11th Cir. Apr. 18, 2024) (citing Crawford v. Carroll,

529 F.3d 961, 970 (11th Cir. 2008)). Plaintiffs can establish a violation either by

proving that their EEO activity was a but-for cause of the adverse actions3 or by

proving that retaliation tainted the decision-making process. See Buckley, 97 F.4th at

798.

However, the remedy for each showing differs. See id. Specifically, if Plaintiffs

ultimately proved that retaliation was a but-for cause (or one of the causes of) the

adverse actions, they would be entitled to retrospective relief, like compensatory

damages and back pay. See id. On the other hand, if they could prove only that

discrimination “tainted” the hiring process but not that it was a but-for cause, they

would not be entitled to damages stemming from the actions. Instead, they would

potentially be entitled to “injunctive or other forward-looking relief.” Id. (internal

quotation marks omitted) (quoting Babb II, 992 F.3d at 1205 n.8). Here, Plaintiffs fail

to establish a genuine dispute of material fact as to either type of causation.

The Court begins by analyzing the incidents that affected all employees, before

moving on to Plaintiffs’ individual claims. Defendant claims that none of these acts

are materially adverse (Doc. 116 at 12) and the Court agrees. At the outset, the Court

notes that Plaintiffs rely on several comments made by managers and colleagues in the

Tampa VA as direct evidence of retaliatory animus. This includes an anonymous

memo sent by Doctors Eastham and Bailey discussed in the background section of this

3 An adverse employment action in the retaliation context is one that “well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted).

Order, statements made during lunch meetings regarding Plaintiffs’ EEO activity, and

comments made by managers and colleagues in the Tampa VA.4

As the Court previously found, because Plaintiffs cannot attribute any of the

statements that reflect retaliatory animus to any of the decisionmakers in their adverse

employment actions, it is not direct evidence. See Bass v. Board of County Commissioners,

256 F.3d 1095, 1105 (11th Cir. 2001) (“For statements of discriminatory intent to

constitute direct evidence of discrimination, they must be made by a person involved

in the challenged decision.”). More importantly, the fact that these statements came

from individuals who were not decisionmakers on any of the employment actions in

question means that they do not create a triable issue of fact as to causation on any of

Plaintiffs’ claims. As explained for each adverse action below, no reasonable jury

could find that Plaintiffs’ protected activity played a role in differential treatment as to

any of the alleged adverse employment actions.5

1. Mold in the Ultrasound Suite

Plaintiffs claim management’s failure to address a mold issue in the ultrasound

suite was a materially adverse employment action. Although they claim management

ignored the issues in retaliation for their EEO claims, they concede that other co-

4 These statements are outlined in the Court’s prior order on summary judgment (Doc. 99 at

22–23).

5 As described below, several claims also fail because there is no genuine issue of material fact

as to whether the employment decisions in question were materially adverse.

workers also complained of the mold issue based on health concerns. Doc. 54-3 at 42;

Doc. 54-2 at 11; Doc. 54-8 at 45–51.6

First, the Court agrees with Defendant that management’s failure to fix the

mold was neutral on its face, affected all employees, and did not deter Plaintiffs from

pursuing EEO claims. See Burgos v. Napolitano, 330 Fed. Appx. 187, 191 (11th Cir.

2009) (holding that the defendant’s “failure to consult [the plaintiff’s] physician was

not a materially adverse action because the evidence shows that Burgos was not

deterred in reinstating her EEOC claim.”). Nor do Plaintiffs cite evidence or law

supporting their argument that this event well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination or retaliation. No

reasonable jury could find that the mold in the ultrasound suite was materially adverse

to the Plaintiffs. The mold affected all employees.

Even assuming that it was materially adverse, Plaintiffs fail to present evidence

of any connection between their EEO complaints and management’s inaction. This

dooms Plaintiffs’ claim, even under the more lenient causal standard, because there is

no evidence upon which a jury could find that Plaintiffs’ protected activity had

anything to do with the employment action. As such, summary judgment must be

granted for Defendant on this retaliation claim.

6 Although Plaintiffs’ renewed response to the motion for summary judgment appears to

concede that the mold issue was not an adverse action (Doc. 119 at 34 n.23), the Court

addresses the claim out of an abundance of caution.

2. Publication of Personnel Files

Defendant argues that publication of the confidential employee records was not

an adverse employment action because personnel documents of all employees were

published, not just Plaintiffs’ documents. Doc. 116 at 13. It also argues that Plaintiffs

fail to present any evidence tying this event to their EEO complaints, and that the

incident was not materially adverse because there is no evidence the documents were

accessed and Plaintiffs suffered no harm. Id. at 13–14. Plaintiffs respond that “the

postings are a material adverse action” and that Bennett ordering an employee to

upload the files is “traditional direct evidence” for their claim. Doc. 119 at 32.

However, they concede that because the system only records the date the records were

last modified, there is no way to know how many people saw them. Id. at 33.

Plaintiffs’ arguments are speculative and unsupported by law or evidence.

Again, they provide no proof of a connection between the publication of the files and

their EEO complaints. Further, no reasonable jury could find that these events

constituted a “materially adverse action,” because there is no evidence the documents

were accessed or that any harm was caused to Plaintiffs. See Harrison v. Belk, Inc., 2017

WL 11475408, at *11–12 (N.D. Ga. July 6, 2017) (holding that management divulging

an employee’s private medical information to associates was “trivial and ordinary,”

not materially adverse); cf. Wells v. General Dynamics Information Technology Inc., 571

Fed. Appx. 732, 736 (11th Cir. 2014) (holding that an employer cancelling medical

insurance, insisting that plaintiff relocate, and several other cumulative actions were

not sufficiently harmful to be materially adverse.) Lastly, other employees’ documents

were also uploaded to the S drive. Doc. 54-7 at 127; Doc. 54-3 at 94–98. Plaintiffs thus

fail to provide sufficient evidence of causation, or that the publication of the documents

was materially adverse, and have not established a triable issue of fact as to this claim.

3. The Geraci Hiring

Plaintiffs claim that Defendant hired Geraci, an unqualified person, to make

them appear incompetent and increase their workload. Doc. 83 at 31–32. Defendant

argues that this claim must fail because Plaintiffs have not established a connection

between their protected activity and Geraci’s hiring, and because Geraci’s hiring

affected all employees equally. Doc. 116 at 14. Plaintiffs fail to substantively respond.

Again, Plaintiffs fail to establish that this incident was a materially adverse

employment action since it affected all employees. Although their interactions with

Geraci were contentious, and they felt she was unqualified, there is no evidence from

which a reasonable jury could find that her hiring was a materially adverse action in

any way related to Plaintiffs’ protected activity.

First, there is no evidence that Petrillo hired Geraci to make the Plaintiffs’ jobs

more difficult or otherwise retaliate. All ultrasound technologists had to assist Geraci

to improve her scanning. Doc. 54-3 at 50; Doc. 54-8 at 5–6, 10. Neither does the

inconvenience caused by her alleged lack of experience nor her reminder of her

mother’s connection to people of influence at the Tampa VA create an inference of

retaliation. See Burlington, 548 U.S. at 68 (holding that personality conflicts at work

that generate antipathy and snubbing by supervisors and coworkers are not

actionable).

Nor have Plaintiffs established the materiality of this adverse employment

action—specifically, that Geraci’s hiring well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination. Tellingly, Plaintiffs

were not deterred from pursuing additional EEO complaints. See Burgos, 330 Fed.

Appx. at 191; See also Jarvis v. Griffin, 6:08-CV-138-PCF-KRS, 2009 WL 3781587, at

*3 (M.D. Fla. Nov. 9, 2009), aff'd sub nom. Jarvis v. Bolden, 417 Fed. Appx. 925 (11th

Cir. 2011) (“In fact, Plaintiff was not so deterred [by her employer’s decision to ignore

EEOC recommendation] and subsequently filed two more formal EEOC

discrimination complaints.”). As such, summary judgment will be granted for

Defendant.

4. Tonkyro

Tonkyro claims she was denied the PCA Lead Ultrasound Technologist

position in retaliation for her EEO activity. Doc. 83 ¶ 28(k). She specifically cites

Stenzler’s decision not to post and fill that position—choosing instead to fill a Lead

Mammography position. Doc. 54-6 at 7–8. Defendant argues that Tonkyro again fails

to establish a prima facie case of retaliation. Doc. 116 at 7–8; Doc. 54 at 16. Plaintiffs

respond that this claim should survive summary judgment based on evidence of

retaliatory intent in the record. Doc. 119 at 22–27.

For this claim to survive summary judgment, Tonkyro must provide evidence

that her previous EEO activity played a part in differential treatment with regard to

this decision, and that the employment action in question was materially adverse. The

relevant incident is Stenzler’s decision that the PCA needed a Lead Mammography

technician instead of a Lead Ultrasound technician. Tonkyro challenged this decision

with the testimony of a mammography technologist who stated that three

mammography technologists would be too many for the patient load, space, and

equipment at the Tampa VA. Doc. 60 at 10. Stenzler, on the other hand, felt that such

a technician was a better use of Radiology resources. Doc. 54-6 at 8–9.

Although Babb changed the applicable causal standard here, it did not change

the fact that “courts do not sit as ‘super-personnel departments,’ reexamining the

wisdom of business decisions.” See Johnson v. Airbus Def. & Space Inc., 858 Fed. Appx.

304, 310 (11th Cir. 2021). Stenzler’s decision as to which new position would be a

better use of resources was a business decision of the kind that the Eleventh Circuit

has said should not be second-guessed in the absence of evidence of retaliation. Davis

v. Town of Lake Park, Fla., 245 F.3d 1232, 1244 (11th Cir. 2001) (“Title VII is not

designed to make federal courts sit as a super-personnel department that reexamines

an entity’s business decisions.”).

Additionally, Stenzler’s alleged statements that Cutolo (Chief of Staff) and

Fogarty (the former Tampa VA Director) would not allow Tonkyro to become a

supervisor, that Davis would never become a supervisor, and that the plaintiffs were

causing problems by filing frivolous EEOC complaints are not enough to allow a jury

to find that Tonkyro’s protected EEO activity played any role in the decision to fill a

different position or resulted in any differential treatment. These statements might be

enough to attribute retaliatory motive to individuals other than Stenzler, but Plaintiffs

provide no evidence of a causal connection between Tonkyro’s EEOC complaints and

Stenzler’s personnel decision to create a mammography lead position. Thus, Plaintiffs

have not established that a reasonable jury could find for Tonkyro on the issues of

whether she suffered an adverse action or that there was a connection between her

EEO activity and Stenzler’s personnel decision. Defendant is entitled to summary

judgment.

5. Strauser

Strauser’s retaliation claim relies on events that affected all Plaintiffs, and she

does not identify an adverse action unique to her claim. Doc. 83 ¶¶ 1–41. Thus, the

Court again finds that she does not establish a triable issue of fact as to this claim. See

Doc. 99 at 33. She also relies on the totality of the circumstances, i.e., the overall

hostile environment created by the EEO settlement, as a basis for establishing

causation. However, as discussed supra with regards to the mold incident, the

publication of personnel documents, and Geraci’s hiring, there is insufficient evidence

to establish that retaliation played a role in any of these actions or resulted in

differential treatment as to these actions, which affected all Plaintiffs. Thus, Defendant

is entitled to summary judgment on this claim.

6. Davis

Davis claims she was not selected for an ultrasound supervisor position in

retaliation for her EEO activities. Doc. 83 ¶ 29. She argues that Defendant’s decision

to empanel an AIB, which led to the position being placed on hold and her not being

selected, was a sham decision meant to allow Geraci to transfer locations. Id. at 21–

22.

Under Babb, the Court must determine whether a genuine issue of material fact

exists as to Davis’s claim. As for causation, Davis must provide some evidence that

her EEO activity played a role in the handling of Geraci’s bullying complaint against

her or the initiation of an AIB to investigate those claims. Babb, 992 F.3d at 1205.

Davis argues that these events were part of a plot to keep her from becoming an

Ultrasound Supervisor and help Geraci transfer to the New Port Richey clinic despite

her lack of seniority. Doc. 119 at 25–27, 29. She argues that this claim is supported by

an April 20, 2016, meeting held by Geraci, Stenzler, and Petrillo to discuss Geraci’s

complaint against her, which occurred after she applied for the Ultrasound Supervisor

role. Doc. 60 at 4. She argues that Geraci participated in the scheme against her by

preparing a bullying complaint, presumably at the bidding of management. Id.; Doc.

119 at 24–26.

Defendant responds that this claim is wholly speculative. Specifically, it argues

that Geraci—who started her job long after Davis settled her previous EEO complaint,

decided to write the bullying complaint on her own. Defendant argues that Geraci

detailed numerous instances of bullying and harassment and had no connection to

prior EEO complaints. Doc. 54-6 at 97, 115–16. In her deposition, Geraci stated that

she eventually learned about the Plaintiffs’ previous EEO activity, but that she did not

“know their circumstance around the other case” or “really care, to be honest, what

happened in their past.” Id. at 110. Second, Defendant argues that Geraci complained

about the bullying before the Ultrasound Supervisor vacancy announcement was

issued, which undermines Plaintiff’s argument that the bullying complaint was a ploy

to hurt her promotion prospects. Doc. 116 at 9. Third, Defendant argues that Petrillo

and Battle, both of whom were allegedly involved in the scheme to empanel an AIB,

started at the Tampa VA after the settlement of Davis’ prior EEO complaint and

weren’t involved in that case. Id. at 9–10.

Davis offers a few counterarguments as to why summary judgment should not

be granted. First, she claims the AIB process was tainted because many statements

about EEO activity “came from the highest officials,” and no “corrective action” was

ever taken. Doc. 119 at 11. Next, she emphasizes that she testified regarding her EEO

claims on February 24, 2016, just weeks before Bennett, Stenzler, Petrillo, and

Graham gave sworn affidavits. Id. at 12. Davis also argues that she was on maternity

leave from October 2015 to February 2016 and thus could not have bullied Geraci. Id.

at 24. To the contrary, Davis claims she brought Hernandez’s sexual harassment

complaints against Geraci to Petrillo’s attention upon her return from leave and was

only then accused of bullying. Id. Davis claims that the allegations against her were

treated abnormally and that Cutolo and Stenzler decided to create an AIB and brought

the issue to Battle’s attention. Id. at 25. Then, she speculates, “Stenzler, Cutolo or

Battle, and likely all three decided to put a hold on the supervisory position until the

AIB was decided.” Id. Davis next points out that at the AIB, Stenzler criticized

Plaintiffs for “frivolous EEO's” and claimed that Davis “orchestrates these things.” Id.

at 25. She argues that a jury could find that Battle, Stenzler, and Cutolo agreed the

position could not be filled until the AIB was decided, and—based on this—could find

that Battle refused to decide whether to accept or reject the findings of the report to

prevent Davis from obtaining the position. Id. at 26.

Defendant replies that Battle’s decision to accept, reject, or modify the AIB

report was not related to any EEO activity, that there is no evidence to support

Plaintiffs’ theory, and that Plaintiffs ignore all of the contrary evidence showing there

was no differential treatment based on EEO activity, including the genesis of the AIB

(a complaint of bullying against Davis by a female co-worker who joined the VA after

the plaintiffs’ previous EEOs), the composition of the AIB panel (individuals outside

the Radiology Service who knew nothing of the plaintiffs’ EEOs), the

recommendation of the panel (team building and training), and Battle’s reason for not

acting on the AIB report (to avoid retaliation and the appearance of retaliation). See

Doc. 54 at 15–16.

Although Davis provides evidence of management discussing Plaintiffs’ EEO

activity, including in Stenzler’s AIB testimony, she cites no evidence supporting her

argument that these statements played any role in these actions. Therefore, she fails to

establish a triable issue of fact regarding whether there was a causal connection

between any adverse action and her protected activity. See Cincinnati Ins. Co. v. Metro.

Props., Inc., 806 F.2d 1541, 1544 (11th Cir. 1986) (holding that “contentions which are

based on mere speculation and conjecture are . . . impermissible” to defeat a summary

judgment motion).

First, she fails to provide evidence showing that a cause of Battle’s decision to

empanel the AIB was her EEO activity, or that her EEO activity played any role in

the process, or in Battle’s decision to start the process. In the absence of any such

evidence, the AIB occurred six months after Davis’s last EEO claim, which is “too

distant to infer causation.” See Williams v. Waste Mgmt., Inc., 411 Fed. Appx. 226, 229-

30 (11th Cir. 2011) (“However, a two-month gap between the two events has been

found to be enough of a delay to preclude an inference of causation.”). Additionally,

the record shows none of the AIB members worked in Radiology, and after hearing

testimony from various employees in the Radiology Service, they found that Davis

had indeed bullied and harassed Geraci. Doc. 54-7 at 14–24.

Overall, there is insufficient evidence to support Davis’ contention that her EEO

activity played a role in any differential treatment with regards to the AIB or Board’s

final decision. Moreover, the AIB concluded that the facts supported Geraci’s Hostile

Work Environment claims against Davis and co-workers in the Ultrasound

Department, as well as the allegation that Davis bullied Geraci. Doc. 54-7 at 23–24.

Thus, based on the record, the Court finds that no reasonable jury could find a causal

link between the AIB and Davis’ EEO activity, and summary judgment will be granted

for Defendant.

Davis also challenges the delay in her boarding package after being selected for

a new position in February 2014, which she alleges delayed her promotion to May.

Doc. 83 at ¶ 29(e). The Court previously found that a non-retaliatory reason existed

for the delay—the schedule of the Board—and granted summary judgment for

Defendant. Doc. 99 at 29. Nothing in Babb or the record compels a different result.

Again, Davis’ claim—that Bennett delayed her boarding package because of her EEO

settlement—is speculative and unsupported by any evidence. Cincinnati Ins. Co., 806

F.2d at 1544.

Cat’s Paw Theory

In the alternative, Davis again argues that the “cat’s paw” doctrine articulated

in Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011) applies to her claims. Doc. 119 at

31; Doc. 60 at 27. In Staub, the Supreme Court explained that the cat’s paw theory

applies when an employee seeks to hold her employer liable for the animus of a

supervisor who was not charged with making the ultimate employment decision. 562

U.S. at 415. Staub concluded that an independent investigation did not relieve an

employer of fault where the supervisor’s biased act was intended to cause and

proximately caused an adverse employment action. Id. at 422. Davis argues that the

VA empaneled the AIB based on assertions by an individual with retaliatory animus

(Stenzler) who said that Davis made frivolous EEO claims, and Petrillo and Graham

gave false and misleading testimony. Id. She also argues that Battle’s decision to reject

the AIB recommendation is evidence that he inappropriately considered her EEO

activity in his decision.

In any event, there is no proximate cause, and therefore no liability, if the

adverse action is entirely justified apart from the biased supervisor’s recommendation.

Staub, 562 U.S. at 421–422. Here, for the same reasons Davis fails to state a prima facie

claim, her cat’s paw claim fails to survive summary judgment as well. The AIB was

empaneled based on Geraci’s bullying complaints, which were ultimately found to

have merit. And “while the cat’s paw theory may be appropriate in cases in which the

plaintiff is required to prove only that the protected characteristic was a motivating

factor,” Davis puts forward nothing more than speculation to explain why the AIB

was retaliatory or unjustified. Duncan v. Alabama, 734 Fed. Appx. 637, 640 (11th Cir.

May 9, 2018) (citing Staub, 562 U.S. 421-22). Thus, no reasonable jury could find in

favor of Davis on this claim and Defendant is entitled to summary judgment.7

B. Hostile Work Environment

In Count Two, Plaintiffs bring a retaliatory hostile work environment claim,

and in Count Three Hernandez brings hostile work environment claims based on

retaliation and sex. Doc. 83 ¶¶ 42–51. Previously, the Court found that Defendant was

entitled to summary judgment on both counts. Doc. 99 at 38–43. The Eleventh Circuit

affirmed this Court’s decision to enter summary judgment for Defendant on

Hernandez’s sex-based hostile work environment claim. Doc. 109 at 2. However, it

7 Count One of the Third Amended Complaint mentions that, in addition to the Plaintiffs’

EEO retaliation claim, Hernandez sues Defendant “for retaliation based upon sex.” Doc. 83

¶ 33. Defendant moves for renewed summary judgment on the retaliation claims of all the

Plaintiffs. See Doc. 116 at 12–16.

The Complaint alleges several ways in which Hernandez has been subjected to retaliation by

way of incidents that affected all employees (Id. ¶¶ 24–27), which the Court has considered

and rejected above. It also includes allegations regarding Hernandez’s sex-based hostile work

environment claim, (Id. at ¶ 31) on which the Court previously granted summary judgment

for Defendants (and which the Eleventh Circuit affirmed). The Complaint includes no other

incidents that would support Hernandez’s retaliation claim, and Plaintiffs fail to respond to

Defendant’s summary judgment motion as to this claim or cite supporting evidence. Thus,

the claim is deemed abandoned, and Defendant is awarded summary judgment on this claim.

Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014) (citations omitted).

remanded Plaintiffs’ retaliatory hostile work environment claims for consideration

under Monaghan v. Worldplay U.S., Inc., 955 F.3d 855 (11th Cir. 2020). Id. at 13–15.

As detailed below, even under the standard in Monaghan, Plaintiffs fail to

establish that a reasonable jury could rule in their favor on the elements of causation

and/or material adversity. Therefore, the Court will again grant summary judgment

in favor of Defendant.

Monaghan reaffirmed that the materiality standard applicable to all Title VII

retaliation claims (including retaliatory hostile work environment claims) is one and

the same. This is the Burlington Northern standard, which determines whether

retaliation is material by asking whether it “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Monaghan, 955 F.3d

at 862–63 (quoting Burlington Northern, 548 U.S. at 68). Defendant argues that

Plaintiffs’ claims fail under this standard, because the acts they identify were not

materially adverse and the acts Hernandez identifies were neither materially adverse

nor related to her EEO activity. Doc. 116 at 16–25. Plaintiffs respond that the actions

taken against them were materially adverse under Burlington Northern and Monaghan

and retaliatory. Doc. 119 at 34–39.

“A retaliatory-hostile-work-environment claim complains that the employer

created or tolerated a hostile work environment in retaliation for an employee's

participation in protected activity under Title VII . . . [and] is somewhat of a hybrid

of a traditional protected-characteristic-based hostile-work-environment claim and a

traditional retaliation claim.” Buckley, 97 F.4th at 799.

To establish such a claim, a plaintiff must show that she: (1) engaged in

protected EEO activity; (2) suffered unwelcome harassment; (3) the harassment was

based on protected activity; and (4) the harassment was materially adverse, meaning

that it “well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Monaghan, 955 F.3d at 862–63. In assessing material

adversity, however, the Court must “separate significant from trivial harms” because

Title VII is not “a general civility code for the American workplace,” and an

employee’s decision to report discriminatory behavior “cannot immunize that

employee from those petty slights or minor annoyances that often take place at work

and that all employees experience.” Burlington Northern, 548 U.S. at 68. “[E]ven when

a plaintiff ‘accumulate[s] a long list of slights’ a court might not be able to ‘discern a

collective retaliation claim greater than the sum of its parts.’” Toomer v. Mattis, 266 F.

Supp. 3d 184, 205 (D.D.C. 2017) (quoting Lurensky v. Wellinghoff, 167 F. Supp. 3d 1,

21 (D.D.C. 2015)).

With respect to causation, a plaintiff must show that the decision-maker knew

of her protected activity, and that the protected activity and adverse action were not

wholly unrelated. Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.

2002). “At a minimum, [a plaintiff] must show that the adverse act followed the

protected conduct[.]” Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999).

“It is not enough for the plaintiff to show that someone in the organization knew of

the protected expression; instead, the plaintiff must show that the person taking the

adverse action was aware of the protected expression.” Bass v. Bd. of Cnty. Comm'rs,

Orange Cnty., Fla., 256 F.3d 1095, 1119 (11th Cir. 2001). “In the absence of other

evidence tending to show causation, if there is a substantial delay between the

protected expression and the adverse action, the complaint of retaliation fails as a

matter of law.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)

(citation omitted).

i. Tonkyro, Davis, and Strauser

Tonkyro, Davis, and Strauser bring retaliatory hostile work environment claims

based on events that affected all employees as well as statements made by other

employees. Doc. 83 at ¶¶ 47–51. For example, they point to Stenzler’s suggestion that

Tonkyro apply for Eubanks’ position once he retired, after which management decided

to hire somebody else (Doc. 60-1 at 20, 24); Stenzler’s statement that “you girls will

never get past this,” (Doc. 60-3 at 36–37, 60; Doc. 60-2 at 54); Chuang telling Tonkyro

that he heard about the settlement; a co-worker telling Plaintiffs that Chuang told her

that they received $250,000 in a settlement; and an HR employee stating that the

Plaintiffs have a new case which would cost the agency money. Doc. 60-2 at 29–30;

Doc. 60-1 at 61. Plaintiffs also rely on Geraci’s knowledge of the EEO settlements

from an unidentified Tampa VA employee to support their claim. Doc. 60-8 at 216–

217. Like in a game of telephone, Geraci allegedly spoke to Axsom, who spoke to

Hernandez, who in turn spoke to Tonkyro and Davis. Doc. 60-1 at 34–35; Doc. 60-2

at 28; Doc. 60-11 at 7–8. Eastham also told Plaintiffs that he heard general

conversations about the EEO settlement. Doc. 60-1 at 35–36, 38.

Other incidents include the following: Parise told Eastham that Plaintiffs would

be terminated; Bailey reported that Parise yelled “yes” and made a “fist pumping

gesture” when he heard that Davis was going on maternity leave; Kathy Arruda

reported to Davis that Jeri Graham advised her of openings in Tampa and discussed

problems in the ultrasound department; and Andrews told Plaintiffs that Stenzler

reported that they were filing frivolous EEO complaints which affected the ultrasound

department. See Doc. 54 at 22. Plaintiffs also allege they were portrayed as “money

hungry” and “money grubbing bitches.” See Doc. 60-2 at 30, 41; Doc. 60-1 at 61.

Although Plaintiffs contend that many staff members used the term, they could not

identify any by name or the source of their knowledge. See Doc. 60-1 at 61; Doc. 60-2

at 41; Doc. 60-6 at 86–87. Several other acts Plaintiffs claim were retaliatory affected

the entire department, as discussed in the analysis of Count One.

Defendant argues that the conduct in this case is distinguishable from Monaghan

because Plaintiffs rely upon “a trail of office gossip” that eventually reached them,

whereas in Monaghan, a supervisor directly told the plaintiff she would be terminated

in retaliation for previous complaints. Doc. 116 at 19–20. Defendant asserts that the

comments here fall into the category of petty slights that Title VII is not meant to

remedy, and that certain other comments and incidents were facially neutral and

lacked any connection to Plaintiffs or their EEO activity. Id. Finally, Defendant argues

that Plaintiffs were not deterred from filing subsequent complaints, which shows that

the conduct was not materially adverse. Id. at 21. Plaintiffs respond by discussing—at

length—the intervening decisions and standards the Eleventh Circuit identified and

instructed this Court to apply. Doc. 119 at 33–39. However, they do so in lieu of

applying the law to the facts. Nor do they respond to Defendant’s argument

distinguishing the case from Monaghan.

Summary judgment will be granted in favor of Defendant on all the retaliatory

hostile workplace claims because the identified acts are: (1) not materially adverse

under Monaghan—i.e., they would not have dissuaded a reasonable employee from

engaging in protected activity; and (2) there is no evidence that the events are related

in any way to Plaintiffs’ EEO activity.

First, the Court discusses the actions that affected all employees equally:

management’s failure to promptly remediate the mold in the ultrasound suite; its

decision to hire Geraci in August 2015; the publication of the confidential employee

records; and the advertisement of the position created by Eubanks’ retirement as a

DRT licensed position. Again, the Court agrees with Defendant that these

employment actions, common to all Plaintiffs, are neutral on their face and are not

materially adverse employment actions as contemplated by Title VII. See Mason v.

Geithner, 811 F. Supp. 2d 128, 180 (D.D.C. 2011), aff'd, 492 F. App'x 122 (D.C. Cir.

2012). Moreover, Plaintiffs fail to show evidence of any connection between these

events and their prior EEO activity. Thus, because no reasonable jury could find that

these events were materially adverse or that they were related to Plaintiffs’ prior EEO

activity, Defendant is entitled to summary judgment. Shannon v. BellSouth Telecomms.,

Inc., 292 F.3d 712, 716 (11th Cir. 2002).

Next, the Court considers the comments from colleagues and supervisors that

eventually made their way to Plaintiffs. The Court agrees with Defendant that the

remarks are not materially adverse, and thus not actionable under Title VII. As an

example, Plaintiffs complain that they were labeled as “money hungry” or “money

grubbing bitches.” However, they are unable to identify who said this or the source of

their knowledge. See Doc. 54-1 at 52; Doc. 54-2 at 22; Doc. 54-7 at 57. In addition to

the fact that the speaker is unknown, these comments, while negative, do not present

evidence of retaliation akin to the facts in Monaghan. 955 F.3d at 858 (reversing a grant

of summary judgment for an employer where an employee was “berated for 45

minutes regarding her complaints,” advised that she had “cut her own throat,” that

she would be “blackballed,” that her days at the company were numbered, and that

she “better watch it” because the supervisor knew her address.”) Here, it is not clear

from whom the comments originated, none of them were physically threatening, as in

Monaghan, and the comments fall under the category of “petty slights” that Title VII

does not cover. Burlington Northern, 548 U.S. at 68. Other comments, like Graham

speaking to Kathy Arruda about job openings at Bay Pines or Stenzler saying that

Cutolo and Fogarty wanted to fill Eubanks’ position with someone outside the facility,

are facially neutral and have no connection to the plaintiffs or their EEO activity.

Additionally, Plaintiffs were not deterred from filing additional complaints.

Although not dispositive, this is relevant to the analysis under Monaghan, as

subsequent EEO complaints tend to show Defendant’s conduct was not materially

adverse. See Burgos, 330 Fed. Appx. at 191; Shannon v. Postmaster Gen. of U.S. Postal

Serv., 335 Fed. Appx. 21, 27 (11th Cir. 2009) (plaintiff’s filing of his last two EEOC

complaints after the alleged adverse action raised doubt as to whether the actions

might have dissuaded a reasonable worker from making a charge of discrimination).

Plaintiffs also claim that Parise and Bennett were responsible for many of the

actions taken against them, which they support by pointing to an encounter with Parise

in 2014 where he allegedly told Plaintiffs that they “will never get past this.” Doc. 83

at 12 ¶ 28(h). However, Plaintiffs had minimal contact with Parise thereafter, and this

isolated incident is insufficient to allow a reasonable jury to find for Plaintiffs on their

retaliatory hostile workplace environment claim, based on a lack of causation evidence

and (as relevant to materiality), the fact that Plaintiffs were not dissuaded from

complaining about the incident immediately after it happened. In conclusion, even

under Monaghan, Defendant is entitled to summary judgment on all of Plaintiffs’

hostile work environment claims.

ii. Hernandez

Hernandez’s claim is based on bullying by Geraci and an ultrasound tech

named Victor Martinez, as well as Petrillo’s failure to act on her complaints about the

bullying. Doc. 83 ¶¶ 24–27, 31, 47–51. Also, Hernandez asserts that she was forced to

perform additional ultrasounds because Geraci was not performing her duties. Id. ¶

31(jj). Even after Monaghan, Hernandez must demonstrate that her protected activity

was causally connected to the “accumulation of actions.” Gowski, 682 F.3d at 1313.

Hernandez offers no evidence to satisfy that causal standard, other than asserting she

signed an EEO affidavit in support of Plaintiffs’ 2014 EEO complaints. That alone

does not establish that the actions of Geraci, Martinez, and Petrillo were based in any

way on Hernandez’s EEO activity. Therefore, Hernandez’s claim fails because there

is no evidence it was tied to her protected activity.

Moreover, under Monaghan, no reasonable jury could find that the conduct

would dissuade a reasonable employee from engaging in EEO activity. Instead, the

acts in question are the kinds of petty slights and typical tribulations of the workplace

that Title VII typically does not cover. Burlington Northern, 548 U.S. at 68. The Circuit

Court’s analysis in affirming summary judgment on Hernandez’s sex-based hostile

work environment claim is helpful here, as the two claims were based largely on the

same allegations. It first found that Geraci’s angry looks, harsh words, and silent

treatment toward Hernandez “suggest[ed] that Geraci was angry at Hernandez

because Hernandez reported Geraci for sexual harassment.” Tonkyro, 995 F.3d at 838.

Without more, however, the Circuit Court found that this conduct was “insufficiently

severe or pervasive to alter the terms and conditions of Hernandez’s employment.” Id.

Although the Court applies a broader materiality standard here, the claims

based on Geraci’s conduct nonetheless fail because the actions amount to nothing

more than ordinary tribulations of the workplace and “normally petty slights, minor

annoyances, and simple lack of good manners” which are not actionable under Title

VII. Burlington Northern, 548 U.S. at 68. The same is true of the teasing by Martinez

and disputes over who is to conduct which ultrasounds or how work is split up. These

are not the kinds of acts that would deter victims of discrimination from complaining

under Burlington Northern and in fact did not deter Hernandez from complaining.

Furthermore, the context of the conduct matters, and Hernandez points to no conduct

or comments that were physically threatening or suggested a retaliatory hostile work

environment based on prior EEO activity.

Therefore, for the reasons described above, the Court finds that Hernandez has

not established a genuine issue of material fact as to whether the conduct in question

was materially adverse or related in any way to her EEO activity. She therefore fails

to establish a triable issue of fact as to her hostile work environment claim, and

summary judgment is again due to be granted in favor of Defendant.

Accordingly, itis ORDERED AND ADJUDGED:

1. Defendant’s Renewed Motion for Summary Judgment (Doc. 116) is

GRANTED.

2. The Clerk is directed to enter Judgment in favor of Defendant Secretary,

Department of Veterans Affairs, and against Plaintiffs Erin Tonkyro, Dana Strauser,

Kara Mitchell-Davis, and Yenny Hernandez.

3. The Clerk is further directed to terminate any pending motions and

deadlines and CLOSE this case.

DONE and ORDERED in Tampa, Florida on June 5, 2024.

Charlene Edwards Honeywell

United States District Judge

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Counsel of Record