Carden v. McDonough (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

ALISHA CARDEN, )

)

Plaintiff, )

)

v. ) No.: 2:19-cv-229-TAV-CRW

)

DENIS MCDONOUGH, )

SECRETARY OF VETERANS AFFAIRS, )

)

Defendant. )

MEMORANDUM OPINION

This matter is before the Court on defendant’s motion for summary judgment

[Doc. 20]. Plaintiff has responded [Doc. 28], and defendant has replied [Doc. 31]. Also

before the Court are the parties’ motion to exclude [Doc. 32] and motion to strike [Doc. 33]

relating to submitted evidence. These matters are now ripe for the Court’s review. See

E.D. Tenn. L.R. 7.1(a). For the reasons explained below, defendant’s motion to strike

[Doc. 33] will be DENIED, plaintiff’s motion to exclude [Doc. 32] will be DENIED,

defendant’s motion for summary judgment [Doc. 20] will be GRANTED, and this case

will be DISMISSED.

I. Background

In her complaint, plaintiff raises claims of gender and disability discrimination,

retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1984

and Section 501 of the Rehabilitation Act [Doc. 1 ¶ 2].

Plaintiff is a female [Doc. 20-1, p. 8, Doc. 30, p. 1]. She has post-traumatic stress

disorder (“PTSD”), depression, and anxiety, which she asserts are disabilities [Doc. 20-1,

p. 9]. She was diagnosed with PTSD in June 2017 and her depression and anxiety began

in mid-December 2016 [Id.].

Plaintiff was hired by the Department of Veterans Affairs (“VA”) in

November 2015 as a certified nursing assistant (“CNA”) at the James H. Quillen Medical

Center in Mountain Home, Tennessee [Id. at 12; Doc. 30, p. 1]. She remained in her

position as a CNA for approximately a year before she moved to a position as a Medical

Supply Tech in the Sterile Processing Services department (“SPS”), which sterilizes

medical equipment [Doc. 20-1, pp. 13–14]. Her supervisor was Sharon Dennison, a

female, who was the Chief of the SPS department [Id. at 14, 93].

Bin Incident

Ian Randolph, a male, was another Medical Supply Tech in the SPS [Id. at 28–29].

On the morning of December 7, 2016, plaintiff and another employee, Kim Edwards, were

talking to Randolph [Id. at 29]. Randolph rode his bicycle to work and informed plaintiff

and Edwards that someone was honking their horn at him during his commute, and he was

“infuriated by it” [Id.; Doc. 30, pp. 1–2]. Randolph apparently stated that he had a knife

and was ready to kill the driver, regardless of whether the driver was a “man or woman”

[Doc. 20-1, pp. 29–30; Doc. 30, p. 2]. Plaintiff states that she felt very uncomfortable after

Randolph’s statement [Doc. 20-1, p. 32]. Approximately two-and-a-half hours later,

plaintiff and Randolph were both inspecting medical equipment [Id. at 30, 32]. Plaintiff

2

suddenly heard a noise to her right and saw co-worker Marjorie Berry next to Randolph

[Id.; Doc. 30, p. 2]. When she glanced over, she saw Randolph grabbing a bin and throwing

it to his left, where she was standing [Id.]. The bin was plastic and approximately one foot

long by eight inches wide and weighed approximately three pounds [Doc. 20-1, p. 32]. The

bin struck plaintiff in the forehead [Doc. 30, p. 2]. Plaintiff could not locate her glasses,

her head was hurting, and she realized that she was bleeding [Doc. 20-1, p. 30]. She then

became dizzy, was “seeing stars,” and felt faint, so she requested that co-workers assist her

[Id.; Doc. 30, p. 2].

After hitting plaintiff with the bin, Randolph approached her and apologized [Doc.

20-1, p. 36; Doc. 30, p. 2]. However, plaintiff states that she did not believe that the

incident was an accident because Randolph was angry at the time [Doc. 20-1, pp. 44–45].

Nevertheless, plaintiff admits that it was “very likely” that Randolph would have hit

whoever was at her workstation [Id. at 49]. When asked if she believed that Randolph

threw the bin at her because she is female, plaintiff responded “not necessarily because I’m

a female” [Id. at 54].

In an affidavit, Randolph stated that, at the time of the bin incident, an employee

came up behind him and slammed a plastic bin on the table beside him [Doc. 20-3, p. 22].

Randolph states that he had a flash-back to Iraq, thought there was an explosion, and

grabbed the bin and threw it to his left to separate himself from the perceived danger [Id.].

After the bin struck plaintiff, Randolph left the area to contact his supervisor [Id. at 23].

3

After the incident, plaintiff was seen in the emergency room (“ER”) by Dr. Ann

Chang, who stitched up plaintiff’s head [Doc. 20-1, pp. 36–37; Doc. 30, p. 2]. Plaintiff

required four stitches [Doc. 20-1, p. 36]. Her glasses were broken, and she had a cut on

her nose, but Dr. Chang confirmed with an x-ray that plaintiff’s nose was not broken [Id.].

Plaintiff’s husband, Adam Carden (“Adam”) arrived at the ER, and asked Dr. Chang to

perform a CT scan to check for a concussion, but Dr. Chang refused, simply stating that

plaintiff did not have a concussion1 [Id. at 36–37; Doc. 30, p. 3]. Plaintiff described the

pain from her injury as “excruciating” and rated it as an 8 on a scale of 1 to 10 [Doc. 20-1,

pp. 38–39]. Plaintiff states that Dr. Chang told her that she had no authority to send plaintiff

home from work [Id. at 11; Doc. 30, p. 3]. Plaintiff denies that Dr. Chang discriminated

against her because of her gender or disability but contends that Dr. Chang retaliated

against her, because she was a VA employee, by not conducting a CT scan to check for a

concussion [Doc. 20-1, p. 92].

While she was in the ER, Dennison and SPS Assistant Chief Jack Fillers visited

plaintiff and Adam [Id. at 38]. Dennison permitted plaintiff to go home from work [Id. at

39; Doc. 30, p. 3]. Dennison also stated that this was not the first time that Randolph had

an angry outburst [Doc. 20-1, p. 39; Doc. 30, p. 3].2 Plaintiff contends that, based on their

knowledge of Randolph’s prior “angry outbursts,” the VA should have known that

1 Plaintiff states that she was later diagnosed with a concussion by an outside provider

[Doc. 30, p. 3].

2 Dennison denied telling plaintiff that Randolph had exhibited angry outbursts before and

stated that there were no documented instances to support the statement [Doc. 20-3, p. 7].

4

Randolph would injure her [Doc. 20-1, p. 40]. However, plaintiff was not aware of any

other VA supervisors that knew of any prior angry outbursts [Id. at 40–41]. Plaintiff was

also not aware of any specific angry outbursts before December 7, 2016 [Id. at 41–42].

Plaintiff acknowledges that the VA opened an investigation into the bin incident on

December 7 [Id. at 59–60]. When asked if there was anything she believed the VA should

have done as part of its investigation that it did not do, plaintiff responded “not that I know

of” [Id. at 62].

Attempt to Report to Police

On December 9, 2016, Adam transported plaintiff to the VA police station, and

plaintiff informed Jerry Shelton, Chief of Police for the VA Police Department, that she

would like to file a police report for assault based on the incident [Id. at 98–99; Doc. 30,

p. 5]. Plaintiff states that Chief Shelton told her that he had already heard about the incident

and had classified it as an accident and therefore, she could not file a police report [Doc. 20-

1, pp. 99–100]. Plaintiff contends that Chief Shelton minimized the situation by not

allowing her to file a police report [Id. at 101]. Chief Shelton ultimately allowed plaintiff

to provide an oral statement to Officer Ernest King, but it was not an “official” statement

[Id. at 101–02; Doc. 30, p. 5].

An investigative report from the VA Police indicates that Officer King spoke to

plaintiff about the incident, but “[a]fter talking with her for a few minutes, [Officer King]

learned the incident was actually no [sic] intended toward her but an accident and will be

handled administratively” [Doc. 20-3, p. 93]. The report stated that plaintiff told Officer

5

King that she thought the incident was an accident and unintentional toward her, but she

was upset and scared of Randolph [Id. at 94]. Officer King stated that this did not constitute

assault, and he explained to plaintiff that no charges would be filed [Id.]. Both plaintiff

and Adam deny telling Officer King that the incident was an accident [Doc, 29, p. 3;

Doc. 30, p. 5].

In his affidavit, Chief Shelton states that when plaintiff visited the VA Police to file

a police report, he immediately assigned an officer to take plaintiff’s statement and

complete a report [Doc. 20-3, p. 14]. Chief Shelton stated that, based on the facts presented

by plaintiff and witnesses, the incident was an accident, and plaintiff told the reporting VA

Police Officer that the incident was an accident [Id.].

Based on these facts, plaintiff contends that Chief Shelton discriminated against her

based on her gender by not allowing her to file a police report against a male who assaulted

her [Doc. 20-1, p. 106]. She believes that if she had been a male, Chief Shelton would

have allowed her to file a police report [Id.]. Plaintiff stated that Chief Shelton did not

discriminate against her based on her disabilities or retaliate against her [Id. at 106–07].

Plaintiff stated that she did not know whether Officer King discriminated against her

because of her gender, but she is not alleging that he discriminated against her because of

her disability [Id. at 168]. She is alleging that Officer King retaliated against her by only

taking an oral statement and not allowing her to press charges against Randolph [Id.].

Plaintiff admits that, when she met with Officer King, she had not yet spoken to the VA’s

Equal Employment Opportunity (“EEO”) officer [Id. at 168–69].

6

First EEO Complaint Attempt

On December 13, 2016, while still on medical leave, plaintiff first complained of

discrimination to the VA’s EEO Officer, Cynthia Stewart,3 whom plaintiff informed that

she wished to file an EEO complaint based on a hostile work environment [Id. at 10,

107–08; Doc. 30, p. 6]. Plaintiff asserts that Stewart discouraged her from filing an EEO

complaint by telling her that one incident did not justify a hostile work environment claim

[Doc. 20-1, pp. 107–08; Doc. 20-2, p. 14]. Stewart also asked plaintiff if she wished to be

moved to a different department, and plaintiff responded that she did not wish to be moved,

but the VA should move Randolph4 [Doc. 30, p. 6]. Plaintiff contends that Stewart

minimized the severity of the situation, and such was gender discrimination [Doc. 20-1,

pp. 108–09]. Plaintiff stated that she was not alleging that Stewart discriminated against

her because of her disabilities or retaliated against her [Id. at 110]. However, in her later

declaration, plaintiff asserts that Stewart’s actions were retaliatory [Doc. 30, p. 6].

Worker’s Compensation

On December 15, 2016, plaintiff and Adam met with Mark Baumann, a VA

worker’s compensation representative, and plaintiff expressed that she was experiencing

anxiety about returning to work [Doc. 20-1, pp. 112–13; Doc. 30, p. 7]. Baumann told

plaintiff that she could seek assistance from the Employee Assistance Program (“EAP”) or

3 Although many of the documents refer to Stewart by her former name, Cynthia Metcalf,

the Court will refer to her as Stewart for consistency.

4 Plaintiff acknowledges that Randolph was detailed to another area when she returned to

the SPS and that she and Randolph never worked in the same department again [Doc. 20-1,

pp. 63–64].

7

an outside source for her anxiety [Doc. 20-1, pp. 113–14]. However, Baumann stated that

“in all the years that he’s worked there, anxiety doesn’t get people off of work” [Id. at 113;

Doc. 20-2, pp. 15–16; Doc. 30, p. 7]. Plaintiff stated that she believed Baumann was

minimizing her anxiety and discouraging her from seeking worker’s compensation benefits

because it would have been a “burden” to him [Doc. 20-1, pp. 113–15; Doc. 30, p. 7].5

Plaintiff states that Baumann discriminated against her based on her gender “by

minimizing the situation” and speaking to her in a manner that was “very condescending”

[Doc. 20-1, pp. 117–18]. Plaintiff admitted that her union representative informed her that

Baumann had spoken condescendingly to others, but plaintiff was unaware if Baumann

also spoke to men in a condescending manner [Id. at 118]. Plaintiff stated that Baumann

“possibly” discriminated against her based on her disabilities because he did not want to

deal with her anxiety [Id. at 119]. Plaintiff also stated that she was alleging that Baumann

retaliated against her, but she had not filed a complaint of discrimination at the time when

she spoke to Baumann [Id. at 121]. However, plaintiff had already spoken to Stewart and

stated that, based on her review of the investigative files, it appears that there were e-mails

between Stewart and Baumann, although plaintiff could not recall whether those e-mails

said anything about plaintiff contacting Stewart or whether she told Baumann that she

complained of discrimination [Id. at 121–22].

5 Despite Baumann allegedly discouraging plaintiff from filing a worker’s compensation

claim based on her anxiety, she apparently submitted such claim, which was denied [Doc. 30, p. 7].

8

In an affidavit, Baumann denied knowledge of plaintiff’s EEO activity [Doc. 20-3,

p. 42]. Baumann stated that plaintiff came to his office on December 15, 2016, asking for

a list of mental health providers [Id. at 43]. Baumann told plaintiff that the VA did not

maintain a list of providers but directed her to a website listing providers. He denied trying

to discourage plaintiff from filing a worker’s compensation claim [Id.].

Comments and Noises From SPS Co-Workers

Plaintiff returned to work from medical leave on December 21, 2016 [Doc. 30, p. 8].

That day, Edwards told plaintiff, “You know [Randolph] didn’t mean to do that” [Id.;

Doc. 20-1, pp. 138–39, 142]. Plaintiff believes that, if she had been a male, Edwards would

not have made this statement [Doc. 20-1, p. 142]. On December 22, 2016, Rebecca Miller,

who worked in the SPS, warned plaintiff to “watch [her] back” [Id. at 138–39]. Plaintiff

did not ask Miller what she meant [Id. at 139]. Plaintiff states that Edwards and Miller

discriminated against her based on her gender but denies that they discriminated against

her based on her disability [Id. at 140, 142–43]. However, plaintiff believes that Edwards

and Miller retaliated against her for her EEO activity, because Miller was friendly with

Randolph [Id. at 140–41]. Plaintiff was not certain whether Edwards or Miller knew

that plaintiff had complained of discrimination when they made these statements [Id. at

141, 143]. Plaintiff reported Miller’s statement to either Sonya Bradley or Dennison

[Id. at 141].

Will Cooke was a nightshift supervisor who was on medical leave at the time of the

bin incident [Id. at 145]. Cooke and Randolph were close friends [Id. at 145–46]. On

9

December 21, 2016, Cooke came into the SPS and commented to plaintiff, “so you’re the

one [Randolph] knocked out” [Id. at 146; Doc. 30, p. 8]. In an affidavit, Cooke admitted

to making this comment but explained that he was trying to make light of a situation that

he knew little about, and, after he was informed of the severity of the situation, he

apologized to plaintiff [Doc. 20-3, p. 46]. Plaintiff contends that Cooke discriminated

against her because of her gender, because he would not have made this comment to her if

she were male, stating “there’s no way that he would have said that to another man”

[Doc. 20-1, p. 163]. Plaintiff is not alleging that Cooke discriminated against her based on

her disability [Id.]. She does believe that Cooke retaliated against her for her EEO activity

by making this comment because of the investigation of Randolph, but she had not filed an

EEO complaint at that point and was unaware if Cooke knew that she had complained to

Stewart [Id. at 163–64].

Plaintiff states that she spoke to Dennison on January 10, 2017, about Cooke’s and

Edwards’s comments [Doc. 30, p. 8]. Dennison, however, stated that the only comment

she was made aware of was Cooke’s comment [Doc. 20-3, p. 8]. Dennison stated that

Cooke informed her that he apologized to plaintiff afterwards and had been unaware of the

severity of the incident [Id.].

Danny Ward, Tom Cook (“Tom”), and Benny Cook (“Benny”), all males, were

Medical Supply Techs in the SPS [Doc. 20-1, pp. 124–26]. Plaintiff states that, after she

returned to the SPS, these men threw equipment and yelled loudly in the SPS to upset her

[Doc. 20-1, p. 126]. Plaintiff states that the men never said anything directly to her, and

10

their yelling was not actual words, but just sounds [Id. at 127]. Plaintiff did not ask them

why they were throwing equipment and yelling or ask them to stop [Id. at 127–28].

Plaintiff admitted that the SPS could be loud at times due to metal equipment [Id. at 32].

Although others were in the same work area when the men were creating the noise, plaintiff

believed the noise was directed at her because it occurred “every time that [she and the

men] were together” [Id. at 131].

In their affidavits, Ward, Tom, and Benny all indicated that they were unaware of

plaintiff’s EEO activity until after plaintiff’s eventual transfer out of the SPS [Doc. 20-3,

pp. 49, 61, 66]. They all deny yelling or making loud noises or being aware of such actions

by others [Id. at 50, 62–63, 67].

Plaintiff stated that Ward, Tom, and Benny’s actions were gender discrimination

[Doc. 20-1, p. 131]. She is not alleging that Ward, Tom, or Benny discriminated against

her because of her disability [Id. at 132]. However, she believes that Ward, Tom, and

Benny were retaliating against her because she complained about their friend, Randolph

[Id. at 128, 132]. She states that she was “pretty sure” they knew about her complaints of

discrimination based on their friendship with Randolph, but she did not tell them that she

had filed an EEO complaint [Id. at 132, 134–35].

Plaintiff states that she reported these actions to Bradley, her “lead tech,” stating

that she felt the men were being “very disruptive and rude” and the “extra loud noises and

then yelling was towards [plaintiff]” [Id. at 129–30; Doc. 30, p. 9]. Plaintiff was not certain

whether Bradley ever spoke to Ward, Tom, or Benny about their actions [Doc. 20-1,

11

p. 152]. However, the behavior continued until plaintiff left the SPS [Id. at 130]. Plaintiff

states that she is not alleging that Bradley discriminated against her because of her gender

or disability [Id. at 151]. However, she believes that Bradley retaliated against her by not

informing Dennison or Fillers of the situation with these men because plaintiff had

complained about Randolph [Id. at 151–52]. Plaintiff could not recall telling Bradley that

she had complained to Stewart or anyone else at the VA about discrimination [Id. at 153].

Plaintiff alleges that on May 25, 2017, she complained to Dennison and Fillers about

Ward, Tom, and Benny’s behavior (as well as her visual contacts with Randolph, discussed

in further detail below) and stated that she “needed out of the area” [Doc. 30, p. 11]. Instead

of stopping these behaviors, Dennison told plaintiff that she could request a reassignment

as a reasonable accommodation for her mental condition [Id.]. Plaintiff contends that such

was discriminatory and/or retaliatory [Doc. 20-1, pp. 170–71]. Dennison denied that she

knew of co-workers yelling or slamming medical equipment but acknowledges that

plaintiff informed her that “walking through the doors” and “being in the same area” where

the bin incident happened caused her anxiety [Doc. 20-3, p. 8].

Employee Assistance Program

In January 2017, plaintiff contacted Dr. Katherine Barteck, a psychologist for the

EAP, for assistance with her anxiety [Doc. 20-1, pp. 146–47; Doc. 30, p. 10]. However,

Dr. Barteck told plaintiff that she would need to seek assistance from an outside source

because it was a work-related incident [Doc. 20-1, p. 147]. Plaintiff contends that

Dr. Barteck minimized the situation by not helping her, but that Dr. Barteck’s actions were

12

not “necessarily because [plaintiff is] a female” [Id. at 148]. Plaintiff does not believe that

Dr. Barteck told her to seek outside psychological treatment because of her disability but

believes that Dr. Barteck retaliated against her because she complained of discrimination

to the VA [Id. at 149–50]. Plaintiff could not recall whether she told Dr. Barteck that she

had complained to Stewart about discrimination [Id. at 150–51].

Dr. Barteck acknowledges that she encouraged plaintiff to seek evaluation and

treatment outside of the VA to ensure partiality and the avoidance of a conflict of interest

because it was foreseeable that such mental health evaluation or treatment could be used

for litigation purposes [Doc. 20-3, p. 69]. Dr. Barteck stated that formal psychological

assessment is beyond the scope of EAP services, and she explained the reasons for outside

referral to plaintiff at the time [Id.].

Randolph Discipline

On December 12, 2016, Randolph was detailed to the position of Health Aid in

Nursing Services until the fact-finding process in SPS was completed [Doc. 30-5]. This

detail was extended on February 10, 2017, and again on April 11, 2017 [Doc. 30-6]. Each

of the memoranda notifying Randolph of his detail and extension of detail were from

Deborah Shell, the Acting Associate Director of Patient/Nursing Service [Docs. 30-5,

30-6].

In an internal memorandum, dated March 22, 2017, Dennison wrote that

“Randolph’s misconduct [was] exceptionally serious” and stated that his actions were

within his control and intentional, but Dennison did not believe that Randolph intended to

13

hit plaintiff [Doc. 30-9, p. 1]. Dennison stated that she could not require plaintiff to work

with Randolph in the future “after he committed such a violent, hostile, and traumatic act,

which caused her bodily injury” [Id.]. Dennison noted that Randolph explained his actions

were caused by a flash-back to Iraq, but Dennison also noted that Randolph yelled at Berry

before throwing the bin, and if his reaction was based on a feeling of danger, he likely

would have thrown the bin first [Id. at 4]. Therefore, Dennison stated that she did not

find Randolph’s explanation credible [Id.]. Dennison recommended that Randolph be

terminated [Doc. 30-9].

On March 23, 2017, Dennison sent a letter to Randolph proposing that he be

terminated based on the bin incident [Doc. 20-3, pp. 88–90]. The letter informed Randolph

that he had a right to reply [Id. at 89]. Although not contained in the record, it appears that

Randolph provided a reply [See Doc 20-3, p. 91 (referencing Randolph’s oral and written

replies)].

On July 7, 2017, Dean Borsos, the Medical Center Director, sent a letter to Randolph

indicating that a decision had been made to suspend him for 14 days for the bin incident

[Doc. 20-3, p. 91]. In this letter, Boros specifically stated that, in reaching this decision,

Randolph’s oral and written replies were carefully considered [Id.].

In an internal memorandum dated July 7, 2017, Borsos adopted much of Dennison’s

analysis from the March 22, 2017, memorandum, including that Randolph’s actions were

“within his control” and “intentional,” but that he did not intend to hit plaintiff, and his

14

misconduct was “exceptionally serious” [Doc. 30-10, p. 1]. Borsos noted that Randolph

returned to the SPS on June 15, 2017, after plaintiff was reassigned from the department

[Id.]. Borsos likewise adopted Dennison’s finding that Randolph’s explanation about a

flash-back was not credible [Id. at 4]. Nevertheless, Borsos stated that he was “mitigating

the adverse action to a suspension,” which he believed would be sufficient to deter this

behavior in the future [Id.].

Plaintiff alleges that Borsos discriminated against her based on her gender because

he declined to fire Randolph, and plaintiff believes that he would have done so if she were

male [Doc. 20-1, p. 159]. When asked why she believed Borsos would have fired Randolph

if she was male, plaintiff responded “I don’t know” [Id.]. Plaintiff states that the

appropriate discipline for Randolph was termination [Id. at 64]. Plaintiff believes that

Borsos had determined to retain Randolph as an employee because he is male and arranged

for Randolph to be temporarily detailed to another area until plaintiff could be removed

from the SPS [Doc. 30, p. 134]. Borsos had never made any inappropriate or sexist

comments to plaintiff, and, in fact, plaintiff had never spoken to Borsos [Doc. 20-1, p. 159].

Plaintiff does not believe Borsos discriminated against her because of her disability [Id. at

160]. However, plaintiff does believe that Borsos retaliated against her by not firing

Randolph [Id. at 160–61]. Plaintiff states that she assumed Borsos knew about her EEO

complaints when he decided to suspend Randolph, as he is the Medical Center Director,

and her EEO complaint had been filed by that point [Id. at 161].

15

Reassignment

Plaintiff ultimately requested reassignment out of the SPS and to the Psychosocial

Recovery and Treatment Program (“PRTP”) in either the end of May 2017 or early

June 2017 [Doc. 20-1, p. 180; Doc. 20-2, pp. 23–24]. Plaintiff spoke to VA Employee and

Labor Relationships Specialist Cari Snyder about this request and explained the “hostile

work environment” in the SPS [Doc. 20-1, pp. 180–81; Doc. 20-2, pp. 22–23]. In a June 6,

2017, e-mail, Snyder informed plaintiff that she could request a voluntary reassignment

and not go through the reasonable accommodation process [Doc. 20-1, p. 188; Doc. 20-2,

p. 22]. Plaintiff responded that, based on a phone conversation with Snyder, she “would

like to ask for a voluntary reassignment” [Doc. 20-2, p. 22]. Plaintiff states that she

preferred the voluntary reassignment route because she wanted out of the SPS as soon as

possible [Doc. 20-1, p. 188]. Plaintiff explains that she sought reassignment based on the

noises being made by co-workers in the SPS, which she believed were directed toward her

[Id. at 18]. In addition, she stated that her continued visual contacts with Randolph, even

though he was assigned to another area, were anxiety-provoking. She admits that her

request for reassignment from the SPS was a voluntary change on her part [Id.]. In her

later declaration, however, plaintiff denies that her reassignment was voluntary, and

instead, contends that she was forced to request reassignment by the actions of others in

the SPS [Doc. 30, p. 11].

On June 15, 2017, plaintiff was temporarily detailed to a position as a program

support clerk in the PRTP [Doc. 20-1, pp. 16–17; Doc. 30 p. 14]. This detail became

16

permanent in August 2017, and plaintiff was satisfied with this reassignment [Doc. 20-1,

pp. 17, 182]. While her new position in the PRTP resulted in a lower pay scale of GS-5,

rather than GS-6, her pay increased from $36,611 to $37,225 [Id. at 18–19, 24]. Plaintiff

has continued to receive pay increases based on performance in the PRTP [Id. at 24–25].

In her later declaration, however, plaintiff asserts that “[t]he SPS job had more opportunity

for advancement” [Doc. 30, p. 14].

Continued Visual Encounters

Plaintiff also states that, after the incident, Randolph continued to “harass” her, even

though he was assigned to a different department, by entering the SPS break room and a

common area outside the SPS locker rooms while plaintiff still worked in the SPS

[Doc. 20-1, pp. 55–56; Doc. 30, pp. 6–7]. Plaintiff complained to Dennison about these

encounters, but Randolph continued to visit those areas while plaintiff was present

[Doc. 30, p. 9]. Plaintiff contends that Dennison discriminated against her based on her

gender because she minimized plaintiff’s complaints about Randolph [Doc. 20-1, p. 94].

When asked why she believed Dennison would have treated her differently if she was a

male, plaintiff responded “I don’t know” [Id. at 94–95]. Plaintiff denies that Dennison

discriminated against her based on her disability or retaliated against her [Id. at 95].

However, even after her transfer to the PRTP, Randolph would walk by plaintiff’s

office on his way to the gym, despite instruction from Dennison to stay away from plaintiff

[Id. at 56; Doc. 30, p. 14]. Plaintiff’s new office, after her detail to the PRTP, was diagonal

to the gym [Doc. 20-1, p. 71]. There were two entrances to the gym, one diagonal to

17

plaintiff’s office door and another around the corner [Id. at 71–72]. Randolph used the

entrance to the gym that was diagonal to plaintiff’s office door [Id. at 72]. Plaintiff believes

that the VA had a duty to ensure that she never saw Randolph again [Id. at 138].

Plaintiff estimated that she saw Randolph approximately 15 to 20 times after

Dennison instructed him to stay away from plaintiff, but Randolph did not say or do

anything to plaintiff during these encounters [Id. at 58]. Plaintiff did not tell anyone at the

VA about each of the specific encounters [Id. at 81]. Various reports of contact filed by

plaintiff and notes taken by plaintiff indicate that plaintiff visually encountered Randolph

on several occasions both before and after her reassignment to the PRTP, but Randolph

never spoke to plaintiff or took any actions toward her [Doc. 20-2, pp. 2–6].

Randolph stated that he has been using the VA’s gym for more than 10 years, and

there is only one entrance to the gym, which is diagonal to plaintiff’s office [Doc. 20-3,

p. 24]. He stated that he did take an alternate route to the gym, but the only entrance was

diagonal from plaintiff’s office [Id. at 24]. Randolph also stated that on several occasions,

plaintiff would enter the gym, make eye contact with him, and proceed into the gym

bathroom [Id. at 25].

Plaintiff asserts that she did not believe that Randolph would have continued to

come near her if she were male [Doc. 20-1, pp. 55–56]. Plaintiff asserts that Randolph’s

behavior was retaliatory [Id. at 57]. Plaintiff contends that Randolph was retaliating against

her because he was disciplined for the bin incident [Id. at 59]. Plaintiff stated that she had

no knowledge that Randolph knew of her complaints of discrimination [Id.].

18

Dennison stated that on August 29, 2017, Stewart notified her that plaintiff alleged

in her EEO complaint that Randolph walked past plaintiff’s office twice a week [Doc. 20-3,

p. 10]. Dennison immediately discussed the issue with Randolph, who told her that, if he

saw plaintiff’s door was open, he did not go by her door [Id.].

Plaintiff states that in early 2018, she learned that Randolph had been filing reports

of contact when he visually encountered plaintiff in the gym [Doc. 30, pp. 16–17;

Doc. 20-3, p. 10]. Plaintiff explains that she regularly used the restroom in the gym because

it was closest to her office, and the toilet in her office suite was “noisy,” which embarrassed

plaintiff [Doc. 30, pp. 17–18]. Plaintiff later learned that Dennison had encouraged

Randolph to file these reports of contact [Id. at 18]. Plaintiff believes that Dennison

retaliated against her by encouraging Randolph to file reports of contact regarding plaintiff

and not informing plaintiff of these reports [Doc. 20-1, p. 170]. Plaintiff indicates that she

should have been informed about the reports because Randolph was a threat to her [Id. at

174]. Plaintiff acknowledged that Dennison did not take any actions against her based on

Randolph’s reports of contact [Id.].

Pohlid E-Mail

On November 6, 2017, Kathleen Pohlid, a VA attorney, e-mailed plaintiff’s counsel

stating that plaintiff could ask for another accommodation and which plaintiff believes was

retaliation [Doc. 20-1, pp. 229–30; Doc. 20-2, p. 20; Doc. 30, p. 15]. The e-mail provided

the procedures for plaintiff to follow if she contends that she has a disability and needs an

accommodation to perform her job [Doc. 20-2, p. 20]. Plaintiff stated that she was not

19

subject to any job-related action as a result of Pohlid’s e-mail because plaintiff did not

request an accommodation [Doc. 20-1, p. 231].

EEO Complaint

On November 27, 2017, plaintiff filed a formal complaint of employment

discrimination with the VA, alleging gender and disability discrimination, retaliation, and

hostile work environment [Doc. 20-2, p. 25; Doc. 30, p. 16]. At some point thereafter,

plaintiff filed a supplement to her discrimination charges in which she detailed, in relevant

part, Dr. Chang’s failure to conduct a CT scan after the incident, Stewart and Dennison

asking or suggesting that plaintiff could be moved to a different department, and her visual

sightings of Randolph after the incident [Doc. 20-2, pp. 26–32]. On December 28, 2017,

the VA’s Office of Resolution Management (“ORM”) sent a letter to plaintiff’s counsel

indicating that several events raised in plaintiff’s supplement to her complaint were related

and/or inextricably intertwined with the claim in the original complaint [Id. at 36]. The

letter set forth a summary of plaintiff’s claims and stated that if the accepted claim was

improperly formulated, incomplete, or incorrect, plaintiff must notify the office within

7 days of receipt of the letter [Id. at 37]. There is no evidence that plaintiff ever notified

the ORM of any discrepancies.

II. Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall

grant summary judgment 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.” In ruling on a

20

motion for summary judgment, the court must draw all reasonable inferences in favor of

the nonmoving party. McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).

As such, the moving party has the burden of conclusively showing the lack of any genuine

issue of material fact. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979). To successfully

oppose a motion for summary judgment, “[t]he non-moving party . . . must present

sufficient evidence from which a jury could reasonably find for h[er].” Jones v. Muskegon

Cnty., 625 F.3d 935, 940 (6th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc.,

447 U.S. 242, 252 (1986)).

In assessing discrimination, retaliation, or hostile work environment claims under

Title VII or the Rehabilitation Act based on circumstantial evidence courts apply the

McDonnell Douglas6 framework. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th

Cir. 2007) (addressing the applicability of McDonnell Douglas to hostile work

environment claims); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001) (addressing

the applicability of McDonnell Douglas to discrimination and retaliation claims under the

Rehabilitation Act); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)

(addressing applicability of McDonnell Douglas to Title VII claims). McDonnell Douglas

establishes a three-step burden-shifting framework for analyzing employment

discrimination claims. Gribcheck, 245 F.3d at 550. First, a plaintiff must set forth a prima

facie case of discrimination or retaliation. Id. The burden then shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for its actions. Id. If defendant carries

6 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

21

this burden, plaintiff must then show by a preponderance of the evidence that the reasons

offered by the defendant were pretext for discrimination. Id.

III. Analysis

A. Evidentiary Matters

Before turning to the merits of the motion for summary judgment, the Court must

first address several evidentiary arguments raised by both parties. In her response to

defendant’s summary judgment motion, plaintiff contends that defendant relies upon

various investigative witness statements as evidence instead of filing current declarations

[Doc. 28, p. 2]. Plaintiff noted her intent to file a motion to have the Court reject these

notes as inadmissible evidence [Id.].

In its reply brief, defendant argues that plaintiff’s evidentiary objections should be

overruled because she has not identified what specific statements are objectionable, the

declarations were signed under oath and collected pursuant to the VA’s duty to investigate

under 29 C.F.R. § 1614.108, there is no requirement that “actual current Declarations” be

used in support of a motion, and all of the evidence is admissible under Rules 803(6) and

803(8) [Doc. 31, pp. 15–16].

However, defendant also objects to portions of plaintiff’s evidence submitted in

response to the summary judgment motion [Id. at 16]. Specifically, defendant objects to

Paragraph 29 of plaintiff’s declaration stating that Bradley, Aimee Ellis, and Berry

allegedly told her that they witnessed prior “outbursts” by Randolph because such

testimony is barred by Rule 404(b) and is inadmissible hearsay [Id.]. Additionally,

22

defendant objects to the statements attached as Exhibits 2 and 4 to plaintiff’s declaration

because they are hearsay and unsworn [Id. at 16–17]. Finally, defendant objects to the

statements made in Paragraphs 11 and 12 of Adam Carden’s declaration (“Carden

Declaration”), to the extent that they discuss events that allegedly happened at the VA,

because those assertions are based on hearsay [Id. at 17].

On August 26, 2021, after briefing was completed on the pending summary

judgment motion, plaintiff filed a motion to exclude certain documents submitted in

support of defendant’s summary judgment motion [Doc. 32]. Specifically, plaintiff alleges

that Stewart attached several documents to her declaration, but that Stewart was not

involved with the ORM investigation, is not the ORM manager, does not claim that she

personally took the statements attached, and is not the actual custodian of records [Id. at

1–2]. Plaintiff argues that the attached statements of various employees were compiled or

created pursuant to a regulatory-required VA investigation of plaintiff’s EEO charges and

are therefore inadmissible hearsay [Id. at 3]. Plaintiff further argues that Stewart’s

declaration does not provide adequate authentication of the attachments and none of the

employees who provided statements were cross-examined about the contents [Id. at 4–5].

On September 1, 2021, defendant responded with a motion to strike plaintiff’s

motion to exclude [Doc. 33]. Defendant contends that plaintiff filed her motion to exclude

without the Court’s prior approval, in violation of Local Rule 7.1(d) [Id. at 1]. Defendant

also contends that plaintiff’s motion is untimely because it was filed after the deadline to

respond to summary judgment expired [Id. at 2]. Moreover, defendant argues that

23

plaintiff’s motion unfairly prejudices defendant because plaintiff received an unfair

advantage by filing her motion after defendant’s response to her objection [Id.].

Plaintiff responded in opposition to defendant’s motion to strike, arguing that this

Court routinely permits filing independent motions to strike or exclude after briefing of a

defendant’s summary judgment motion is complete [Doc. 34, pp. 2–4]. Plaintiff argues

that sufficiently-detailed challenges to summary judgment evidence would consume all or

most of the permitted response briefing pages [Id. at 4]. Further, plaintiff states that she

provided notice of her intent to file a motion challenging the admissibility of evidence in

her summary judgment response [Id. at 5–6].

The Court notes that, although evidence submitted at the summary judgment stage

need not be in a form that is admissible at trial, the party offering the evidence must be able

to show that the evidence will be offered in an admissible form at trial to defeat summary

judgment. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). Accordingly,

hearsay evidence must be disregarded at the summary judgment stage. Id.

1. Defendant’s Motion to Strike

The Court first addresses defendant’s argument that plaintiff’s motion to exclude

should be stricken from the record, because it is not permitted by the Local Rules and is

untimely. Defendant first asserts that plaintiff’s motion to exclude was filed in

contravention of Local Rule 7.1(d). That rule states that “[n]o additional briefs, affidavits,

or other papers in support of or in opposition to a motion shall be filed without prior

approval of the Court[.]” E.D. Tenn. L.R. 7.1(d). If the filing at issue were an additional

24

brief, the Court would agree that plaintiff’s filing violated Local Rule 7.1(d). However,

plaintiff’s filing is not a “brief” or “affidavit” opposing summary judgment, but instead, is

a motion to exclude specific evidence submitted in support of defendant’s summary

judgment motion. Accordingly, the Court declines to find that this filing is violative of

Local Rule 7.1(d).

Defendant next asserts that plaintiff’s motion to exclude is untimely because it was

filed after the summary judgment briefing period expired. However, the Court notes that

plaintiff did raise her evidentiary objections in her response brief, even if only cursorily,

and expressed her intent to file a separate motion to exclude. Accordingly, the Court does

not find that defendant was prejudiced by the filing of the motion to exclude, as it was on

notice of plaintiff’s intent to raise such evidentiary issues and was permitted to respond to

these arguments both in its reply brief [Doc. 31] and in a response to plaintiff’s motion to

exclude (although the Court notes that defendant declined to file such a response). While

the Court agrees that the most appropriate time to file the motion to exclude would have

been at the time when plaintiff filed her summary judgment response brief, the Court

nevertheless declines to deny the motion to exclude solely on timeliness grounds.

Accordingly, defendant’s motion to strike [Doc. 33] will be DENIED. Nevertheless, as

explained infra, the Court will deny plaintiff’s motion to exclude on the merits.

2. Plaintiff’s Motion to Exclude

The exhibits to the Stewart Declaration consist of agency determinations and

findings of fact and statements submitted by various witnesses to the VA during its

25

investigation. As discussed below, the Court finds that these exhibits are admissible

despite being hearsay because the exhibits are properly authenticated business records

under Federal Rule of Evidence 803(6). Accordingly, the Court will admit these exhibits

and consider them to the extent that they have probative value in this matter by

demonstrating the state of mind and motive of the parties; however, the Court notes that it

is not bound by the agency’s determinations or findings of fact.

As an initial matter, the Court finds that the exhibits are properly authenticated. “To

satisfy the requirement of authenticating or identifying an item of evidence, the proponent

must produce evidence sufficient to support a finding that the item is what the proponent

claims it is.” Fed. R. Evid. 901(a). Evidence may be authenticated by testimony of a

witness stating that “an item is what it is claimed to be.” Fed. R. Evid. 901(b)(1). The

exhibits attached to the Stewart Declaration are authenticated by the Stewart Declaration

itself [Doc. 20-3]. Stewart signed the declaration under penalty of perjury and testified

therein that she is an EEO Manager at the VA, where she has worked for 16 years, and that

the exhibits to the declaration “are true and correct copies” of the VA’s investigative file,

the VA’s Final Agency Decision, and the EEOC’s decision [Id.]. The Court finds this

testimony sufficient to authenticate these exhibits.

Turning to the admissibility of the exhibits, a statement is hearsay when: “(1) the

declarant does not make [it] while testifying at the current trial or hearing; and (2) a party

offers [it] in evidence to prove the truth of the matter asserted in the statement.”

Fed. R. Evid. 801(c). Hearsay is inadmissible when it does not fall within a relevant

26

exception or exclusion to the hearsay rule. See United States v. Kendrick, 853 F.2d 492,

496 n.3 (6th Cir. 1988) (“[T]he proponent of a hearsay statement bears the burden of

proving that the statement fits squarely within a hearsay exception or exclusion”).

The exhibits attached to the Stewart Declaration are hearsay. First, it is undisputed

that the declarants did not make the statements contained in these exhibits while testifying

at the current trial or proceeding. Second, defendant relies upon these exhibits in its motion

for summary judgment for the truth of the matters asserted therein [See Doc. 21, pp. 2–12].

Therefore, the exhibits consist of hearsay, which the Court may only consider if an

exception the hearsay rule applies.

Ultimately, the Court finds that defendant has met its burden of showing that these

exhibits fall within the hearsay exception provided by Rule 803(6), because they are

records of regularly conducted activity. See Kendrick, 853 F.2d at 496 n.3. To fall within

this exclusion, a record must meet the following requirements:

(A) the record was made at or near the time by—or from information

transmitted by—someone with knowledge; (B) the record was kept in the

course of a regularly conducted activity of a business, organization,

occupation, or calling . . . ; (C) making the record was a regular practice of

that activity; (D) all these conditions are shown by the testimony of the

custodian or another qualified witness . . . ; and (E) the opponent does not

show that the source of information or the method or circumstances of

preparation indicate a lack of trustworthiness.

Id. The Stewart Declaration states that these exhibits were made by persons with

knowledge of the events and that the administrative agencies made and kept the records in

the course of their regularly conducted activities [Doc. 20-3]. Further, the Stewart

Declaration authenticates these documents, as stated above, and Stewart is therefore a

27

qualified witness [Id.]. Lastly, plaintiff has provided no evidence of a lack of

trustworthiness regarding the source of the information or the method or circumstances of

its preparation. While plaintiff asserts that these documents were not created in the

ordinary course of business of the Mountain Home Facility, Rule 803(6) does not require

that the records be prepared by a specific business or organization, but simply that the

records be created by an entity in its regular course of business. These exhibits therefore

fall within this exception as they are records of a regularly conducted activity, and the Court

need not consider whether these documents also fall within the exception provided by

Rule 803(8).

While the Court will not exclude these exhibits, the Court finds that the agency

determinations and findings of fact are not binding on the Court and will only consider the

documents to the extent that they are probative of the parties’ motive or state of mind. The

Sixth Circuit “hold[s] that a district court does not err as a matter of law by categorically

refusing to admit EEOC cause determinations in either bench or jury trials.” E.E.O.C. v.

Ford Motor Co., 98 F.3d 1341 (6th Cir. 1996). “[W]itness statements contained in an

investigative report may be considered on summary judgment not to prove their truth, but

to demonstrate the state of mind and motive of” the parties. Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007) (citation and quotations omitted). “[A]n

EEOC determination is not binding on the trier of fact in a discrimination action and, thus,

has no bearing on the Court's determination on the merits of the Plaintiff's case.” Crawford

v. Muvico Theaters, Inc., No. 04-2720 B, 2006 WL 522391, at *1 (W.D. Tenn. Mar. 2,

28

2006) (citing Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998)). Thus, while

excluding these exhibits is permissible, the Court finds that the hearsay rule does not

require their exclusion, and the Court will consider them to the extent that they are

probative in this matter. See Lindsey, 161 F.3d at 894 (“EEOC determinations and findings

of fact, although not binding on the trier of fact, are admissible as evidence in civil

proceedings as probative of a claim of employment discrimination at issue in the civil

proceedings.”). Therefore, the Court will consider these documents to the extent that they

demonstrate the motive or state of mind of the parties, but the Court will not treat the

findings of fact or decisions as binding. For these reasons, plaintiff’s motion to exclude

[Doc. 32] will be DENIED.

3. Defendant’s First Evidentiary Objection: Paragraph 29 of

Plaintiff’s Declaration

Turning to defendant’s evidentiary objections, the Court will not consider the

hearsay contained in Paragraph 29 of plaintiff’s declaration [Doc. 30, p. 9]. In this

paragraph, plaintiff states that Bradley, Ellis, and Berry told her that they had seen prior

“outbursts” by Randolph [Id.]. As noted previously, a statement is hearsay when: “(1) the

declarant does not make [it] while testifying at the current trial or hearing; and (2) a party

offers [it] in evidence to prove the truth of the matter asserted in the statement.”

Fed. R. Evid. 801(c). There is no dispute that Bradley, Ellis, and Berry did not make these

statements in the course of the current proceeding, and plaintiff clearly relies on these

statements for the truth of the matter asserted.

29

Moreover, plaintiff has not shown that the statements “fit[] squarely within a

hearsay exception or exclusion.” Id. Indeed, plaintiff has pointed to no relevant exception

or exclusion. While the Court will not strike these statements from the record, the Court

will not consider these statements in ruling on defendant’s motion for summary judgment.

Because the Court finds that these statements are inadmissible hearsay, the Court need not

address defendant’s argument that these statements are inadmissible under Rule 404(b).

4. Defendant’s Second Evidentiary Objection: Exhibits 2 and 4 to

Plaintiff’s Declaration

However, the Court will consider Exhibits 2 and 4 to plaintiff’s declaration

[Docs. 30-2, 30-4] because these statements are not hearsay; they are opposing party

statements. See Fed. R. Evid. 801(d). A statement is not hearsay and is instead an opposing

party statement when “[t]he statement is offered against an opposing party and . . . was

made by the party’s agent or employee on a matter within the scope of that relationship

and while it existed . . .” Id. In the context of Title VII claims, “[t]he relevant inquiry is

whether the statement ‘concerns a matter within the scope of the declarant's employment—

there is no requirement that a declarant be directly involved in the adverse employment

action.’” Bradley v. Rhema-Nw. Operating LLC, No. 16-2493, 2017 WL 4804419, at *2

(6th Cir. Oct. 3, 2017) (quoting Back v. Nestle USA, Inc., 694 F.3d 571, 577 (6th Cir.

2012)).

Exhibits 2 and 4 to plaintiff’s declaration are opposing party statements because

these exhibits consist of statements provided by Bradley and Ellis in the scope of their

employment [Docs. 30-2, 30-4]. Defendant asserts that “the statements are unsworn,”

30

“Bradley and Ellis were not management employees when their alleged statements were

made,” and that “the alleged statements did not concern any matter within the scope of

their employment” [Doc. 31, pp. 16–17]. Although defendant cites no evidence or

authority for these assertions, the Court addresses each assertion in turn [Id.].

First, whether the statements are unsworn is immaterial to the issue of whether the

statements are opposing party statements. A statement is an opposing party statement

when:

The statement is offered against an opposing party and: (A) was made by the

party in an individual or representative capacity; (B) is one the party

manifested that it adopted or believed to be true; (C) was made by a person

whom the party authorized to make a statement on the subject; (D) was made

by the party’s agent or employee on a matter within the scope of that

relationship and while it existed; or (E) was made by the party’s

coconspirator during and in furtherance of the conspiracy.

Fed. R. Evid. 801(d)(2). The rule does not require that the statement be sworn.

Second, whether Bradley and Ellis were management employees is likewise

immaterial. The rule does not require that the statements be made by “management

employees” or any other particular type of employee. Rather, a party’s employee or agent

may make an opposing party statement if the employee or agent does so in the scope of the

relationship. See id. In some Title VII cases involving an adverse employment decision,

courts have considered statements by employees with managerial authority as evidence

that the employer is responsible for the adverse employment action. See, e.g., Back v.

Nestle USA, Inc., 694 F.3d 571, 577 (6th Cir. 2012) (considering statement by a Human

Resources Director an opposing party statement). “Whether a statement qualifies as

31

nonhearsay under Rule 801(d)(2)(D), therefore, goes beyond simply determining if the

declarant is a direct decision-maker with regard to the adverse employment action.” Carter

v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir. 2003). In Back, for example, the Sixth

Circuit explained that “the question becomes whether [the Human Resource Director’s]

statement—that there was a plan to get rid of the three oldest employees and highest paid

team leaders—concerned a matter within the scope of his employment as the acting Human

Resources Director.” Id. (emphasis added). Therefore, the relevant inquiry is not whether

the employees were “management employees” but whether the statements were made “on

a matter within the scope of that relationship.” Fed. R. Evid. 801(d)(2).

“There is a critical difference between making a statement while one is an employee

and having the actual or implied authority to make such a statement on behalf of your

employer. The test is whether the statement concerns a matter within the scope of the

agency or employment.” Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp.,

176 F.3d 921, 928 (6th Cir. 1999). The appropriate inquiry, therefore, is whether the

statements made by Bradley and Ellis in Exhibits 2 and 4 to plaintiff’s declaration concern

a matter within the scope of their employment. See id. Plaintiff asserts that these

statements concern a matter within the scope of Bradley and Ellis’s employment because

the statements “were each made pursuant to an Agency investigation” in which Bradley

and Ellis “were under a duty to co-operate” and the statements describe “situations which

they observed or participated in during their employment at the VA” [Doc. 32, p. 5].

32

When an employee makes a statement pursuant to an investigation that the

employee participates in as part of the employee’s duties, the statement may concern a

matter within the scope of the employment. See Weinstein v. Siemens, 756 F. Supp. 2d

839, 852 (E.D. Mich. 2010). In Weinstein, the court concluded that statements made by

employees qualified as opposing party statements when the employees made the statements

“as part of an investigation,” the statements “were based on information the employee[s]

received as a result of their scope of employment,” and the employees “were duty-bound,

as a part of their employment responsibilities, to give these statements.” Id. While the

party seeking to admit the statements in that case produced the defendant’s “Corporate

Code of Business Conduct and Ethics which authorize[d]” the employees to participate in

such investigations, plaintiff has not done so in this case. Id. Nonetheless, plaintiff asserts

that Bradley and Ellis had a duty to cooperate in making the statements [Doc. 32, p. 5].

The statements relate to the subject of the VA’s investigation into the incident at issue in

this case, and Bradley and Ellis made the statements the day after the alleged incident

occurred [Docs. 30-2, 30-4]. Further, the statements appear to be made on forms bearing

the letterhead of the VA, and the forms bear the signature of the “Assistant Chief SPS”

[Docs. 30-2, 30-4]. See Fed. R. Evid. 801(d)(2) (“The statement must be considered but

does not by itself establish . . . the existence or scope of the relationship . . .”). The Court

33

therefore finds that these statements were made on a matter within the scope of Bradley

and Ellis’s employment relationship and are not hearsay.7 See id.

5. Defendant’s Third Evidentiary Objection: Paragraphs 11 and 12

of Carden Declaration

Finally, the Court will limit its consideration of Paragraphs 11 and 12 of the Carden

Declaration to the extent that these paragraphs describe matters about which Adam lacks

personal knowledge. Defendant objects to Paragraphs 11 and 12 of the Carden Declaration

on the basis that these paragraphs “discuss events that allegedly happened at the VA

because those assertions are based on inadmissible hearsay statements made by Plaintiff to

her husband” [Doc. 31, p. 17].

“A witness may testify to a matter only if evidence is introduced sufficient to support

a finding that the witness has personal knowledge of the matter.” Fed. R. Evid. 602. The

Advisory Committee Note to Rule 602 provides that:

This rule does not govern the situation of a witness who testifies to a hearsay

statement as such, if he has personal knowledge of the making of the

statement. Rules 801 and 805 would be applicable. This rule would,

however, prevent him from testifying to the subject matter of the hearsay

statement, as he has no personal knowledge of it.

Thus, Adam may testify as to the fact that plaintiff made a statement, but Adam may not

testify as to the subject matter of plaintiff’s statements because Adam would not have

personal knowledge of the subject matter.

7 However, the Court notes that these statements are irrelevant to its ultimate decision on

summary judgment, as described infra.

34

Paragraphs 11 and 12 of the Carden Declaration contain statements that are based

on hearsay, and Adam therefore lacks personal knowledge of the subject matter of the

hearsay statements and cannot testify as to that subject matter. While the majority of these

paragraphs describe Adam’s observations of plaintiff, some parts of these paragraphs

describe events that allegedly occurred when plaintiff was at work [Doc. 29, pp. 3–4]. In

the instances where Adam is basing his declaration on statements made to him by plaintiff,

he is relying on hearsay, not his personal knowledge. The statements made by plaintiff to

Adam are hearsay because plaintiff did not make the statements while testifying in the

current proceeding, and plaintiff now offers the statements, as recounted by Adam, to prove

the truth of the matter asserted. Accordingly, the Court will limit its consideration of these

paragraphs of the Carden Declaration by discounting the statements that Adam bases on

hearsay rather than his personal knowledge.8

B. Summary Judgment

1. Exhaustion of Claims

Before the Court delves into the McDonnell Douglas burden-shifting analysis, it

must first address defendant’s arguments regarding exhaustion of certain claims.

Defendant contends that plaintiff has waived any claims relating to the following issues by

not objecting to their exclusion from the VA’s investigation: Dr. Chang’s medical care,

Boros’s decision to suspend Randolph, plaintiff’s visual sightings of Randolph before

8 However, the Court notes that the majority of statements in the Carden Declaration are

also contained elsewhere in the record; therefore, this exclusion has no discernable impact on the

Court’s summary judgment analysis.

35

June 15, 2017, or any suggestion that she consider transferring out of the SPS [Doc. 21,

pp. 23–24]. Defendant asserts that these allegations were not addressed in the VA’s final

agency decision or in the EEOC’s decision denying plaintiff’s appeal [Id. at 24].

Plaintiff responds that she notified the VA and its EEO processing agents of every

episode of the continuing hostile work environment as they occurred and had no control

over what the VA’s ORM decided to “accept” or arbitrary “reject” or treat as “background

information” when processing her charges [Doc. 28, pp. 18, 24]. She also argues that the

later hostile episodes flow from and are related to the earlier episodes of the continuing

hostile work environment described in her EEO charges [Id. at 25].

Before filing a claim under the Rehabilitation Act, a plaintiff must exhaust her

administrative remedies. Smith v. U.S. Postal Serv., 742 F.2d 257, 262 (6th Cir. 1984).

Similarly, under Title VII, the claimant must register a formal charge with the EEOC prior

to filing a gender discrimination suit in federal court. 42 U.S.C. § 2000e-5(b), (e); Weston

v. Wal-Mart Stores E., Inc., No. 3:08-CV-177, 2008 WL 4372772, at *2–3 (E.D. Tenn.

Sept. 18, 2008).

A district court’s jurisdiction to hear cases arising under the Rehabilitation Act or

Title VII is “limited to the scope of the EEOC investigation reasonably expected to grow

out of the charge of discrimination.” Johnson v. Cleveland City Sch. Dist., 344 F. App’x

104, 109 (6th Cir. 2009) (citing Ang v. Procter & Gamble Co., 932 F.2d 540, 545 (6th Cir.

1991)). “Therefore, a plaintiff may bring suit on an uncharged claim if it was reasonably

within the scope of the charge filed[,]” or if the agency discovers evidence of the

36

discrimination relating to the uncharged claim while investigating plaintiff’s charge. Id.

(citing Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)).

The exhaustion requirement “is not meant to be overly rigid” and should not “result

in the restriction of subsequent complaints based on procedural technicalities or the failure

of the charges to contain the exact wording which might be required in a judicial pleading.”

Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006) (quotation

omitted). Thus, an EEOC complaint “should be liberally construed to encompass all claims

reasonably expected to grow out of the charge of discrimination.” Id. (quotation omitted).

Here, the Court declines to find that any of plaintiff’s claims are unexhausted in this

case. The record reflects that plaintiff filed a complaint of discrimination, alleging gender

and disability discrimination and a hostile work environment [Doc. 20-2, p. 25; Doc. 30,

p. 16]. She later supplemented her complaint with additional information, including

allegations regarding Dr. Chang’s failure to conduct a CT scan after the incident, Stewart

and Dennison asking or suggesting that plaintiff transfer departments, and her visual

sightings of Randolph after the incident [Doc. 20-2, pp. 26–32]. While the VA may have

elected to treat some information provided by plaintiff as simply “background

information,” and while, perhaps the most prudent course of action would have been for

plaintiff to object to the VA’s framing of her claims, the Court nevertheless finds that these

claims were reasonably within the scope of the charge of discrimination filed. Given the

Sixth Circuit’s guidance to construe an EEOC complaint liberally to encompass all claims

reasonably expected to grow out of the charge of discrimination, Randolph, 453 F.3d at

37

732, the Court will treat all of plaintiff’s claims as exhausted, and address the merits of

these claims.

2. Gender and Disability Discrimination Claims

To establish a prima facie case of disability discrimination under the Rehabilitation

Act, a plaintiff must show (1) that she is disabled, (2) that she otherwise qualified for the

job with or without reasonable accommodation, (3) that she suffered an adverse

employment action, (4) that her employer knew or had reason to know of her disability,

and (5) that, following the adverse employment action, either she was replaced by a

nondisabled person or her position remained open. Jones v. Potter, 488 F.3d 397, 404 (6th

Cir. 2007). The fifth element may be satisfied by showing that similarly situated

non-protected employees were treated more favorably. Id. Similarly, to establish a prima

facie case of sex discrimination under Title VII, a plaintiff must demonstrate that (1) she

is a member of a protected group, (2) she was subjected to an adverse employment action,

(3) she was qualified for the position, and (4) similarly situated non-protected employees

were treated more favorably. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769,

776 (6th Cir. 2016).

Defendant argues that plaintiff cannot show that she was subjected to any adverse

employment action because her transfer was voluntary [Doc. 21, p. 24]. Defendant

contends that the Court should reject plaintiff’s conclusory assertions in her declaration

that she has less opportunity for advancement in the PRTP than in the SPS, because she

cites no evidence to support this allegation [Id. at 14]. Defendant also contends that

38

plaintiff lacks evidence that she was replaced by someone outside her protected class or

that similarly situated persons outside her protected class received better treatment [Id.].

As an initial matter, in her deposition, plaintiff indicated that the only individual

that she believed “possibly” discriminated against her based on her disability was Baumann

[Doc. 20-1, p. 119; see also Doc. 20-1, pp. 92, 94–95, 106–07, 110, 132, 140, 142–43,

149–50, 160, 163, 168 (stating that other named individuals did not discriminate against

plaintiff based on her disability)]. Plaintiff indicated that the following individuals

discriminated against her based on her gender: Chief Shelton, Officer King, Stewart,

Baumann, Edwards, Miller, Cooke, Ward, Tom, Benny, Dr. Barteck, Dennison, Borsos,

and Randolph [Doc. 20-1, pp. 55–56, 94, 106, 108–09, 117–18, 131, 142–43, 148, 159,

163, 168]. The Court will address whether plaintiff has established a prima facie case of

disability or gender discrimination based on the actions of each of these individuals.

a. Adverse Employment Action

An adverse employment action is defined as “a materially adverse change in the

terms and conditions of a plaintiff’s employment.” Spees v. James Marine, Inc., 617 F.3d

380, 391 (6th Cir. 2010) (quotation and alterations omitted) (addressing a claim of gender

discrimination under Title VII); Plautz v. Potter, 156 F. App’x 812, 817 (6th Cir. 2005)

(addressing a claim of disability discrimination under the Rehabilitation Act). However,

“[a] ‘bruised ego’ or a ‘mere inconvenience or an alteration of job responsibilities’ is not

sufficient to constitute an adverse employment action.” Spees, 617 F.3d at 391. A

reassignment can qualify as an adverse employment action when accompanied by salary

39

or work hour changes, or when there is evidence that the employee received “a less

distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a particular situation.” Id. (citation

omitted).

The primary alleged adverse employment action in this case is plaintiff’s

reassignment to the PRTP. Defendant asserts that plaintiff’s reassignment cannot be an

adverse employment action because plaintiff requested a voluntary reassignment.

However, the Court finds that a genuine issue of fact exists as to whether plaintiff

voluntarily requested reassignment or was forced to request reassignment based on

allegedly discriminatory conduct in the SPS. However, the Court finds that the

voluntariness of plaintiff’s reassignment is not material, because, even if non-voluntary,

plaintiff’s reassignment was not an adverse employment action.

Plaintiff does not allege that her reassignment resulted in any work hour changes, a

less distinguished title, or significantly diminished material responsibilities. See Spees,

617 F.3d at 391. Plaintiff points to the fact that her reassignment came with a lower pay-

grade of GS-5, rather than GS-6, but, given that her actual pay increased, plaintiff has not

indicated how this change had any adverse effect [See Doc. 20-1, pp. 18–19, 24]. Finally,

plaintiff contends, for the first time in her post-deposition declaration, that her position in

the PRTP came with less opportunity for advancement than the position in the SPS

[Doc. 30, p. 14]. But plaintiff provides no explanation or support for this conclusory

assertion, and her reassignment cannot be deemed an adverse employment action based on

40

this conclusory statement alone. See Blodgett v. FAF, Inc., 446 F. Supp. 3d 320, 329 (E.D.

Tenn. 2020) (“Conclusory statements unadorned with supporting facts are insufficient to

establish a factual dispute that will defeat summary judgment” (quoting Viet v. Le, 951

F.3d 818, 823 (6th Cir. 2020))).

To the extent that plaintiff contends that actions by the other named individuals

constituted an adverse employment action, the Court briefly explains why none of these

incidents rise to the level of an adverse employment action. Chief Shelton and Officer

King, in not allowing plaintiff to file a formal police report about the bin incident, took no

actions that had any impact on plaintiff’s employment. Although plaintiff claims that

Stewart advised her that a single incident did not rise to the level of a hostile work

environment claim for EEO purposes, plaintiff does not assert that Stewart prevented her

from filing an EEO claim. Similarly, Baumann merely provided plaintiff advice about the

potential success of a worker’s compensation claim based on anxiety, and did not prevent

plaintiff from filing such claim, as evidenced by the fact that plaintiff did submit a worker’s

compensation claim based on her anxiety. Additionally, Dr. Barteck’s advice to plaintiff

to seek outside mental health treatment was merely advice and did not impact plaintiff’s

terms and conditions of employment.

As to Edwards, Miller, and Cooke, these individuals all allegedly made one-time

comments to plaintiff that she perceived as offensive. But “[i]solated comments are

insufficient as adverse employment actions.” Gibbs v. Voith Indus. Servs. Inc., 60 F. Supp.

3d 780, 801 (E.D. Mich. 2014). Similarly, Ward, Tom, and Benny allegedly caused

41

excessive noise around plaintiff, but such activity does not rise to the level of a “materially

adverse change” in plaintiff’s conditions of employment. See Spees, 617 F.3d at 391. And,

to the extent that plaintiff contends that Ward, Tom, and Benny’s behavior led her to seek

reassignment, the Court has explained supra why plaintiff’s reassignment was not an

adverse employment action.

Additionally, neither Dennison’s instruction for Randolph to file reports of contact

nor Randolph’s filing of the reports of contact affected the terms and conditions of

plaintiff’s employment. Plaintiff admits that she was not subjected to any discipline as a

result of the reports of contact, and, indeed, did not even know about the reports until

receiving information in the course of her EEO proceedings. To the extent that plaintiff

contends that the fact that she was not informed of the reports of contact was itself an

adverse employment action, the Court notes that “[i]ncreased surveillance . . . do[es] not

constitute a material adverse change in the terms of employment in the discrimination

context[.]” Lee v. Cleveland Clinic Foundation, 676 F. App’x 488, 495 (6th Cir. 2017).

Accordingly, the Court does not find that Randolph’s reports of contact constitute an

adverse employment action.

Finally, as to Borsos, to the extent that plaintiff contends that his failure to terminate

Randolph’s employment constitutes an adverse employment action, it is unclear how

Randolph’s continued employment with the VA was a materially adverse change in the

terms of plaintiff’s employment, particularly given the fact that, after the bin incident,

plaintiff and Randolph never worked in the same department, and, although she

42

occasionally saw him walking to the gym, Randolph apparently never spoke to plaintiff

again. Accordingly, the Court finds that none of the events described in plaintiff’s

complaint constitute an adverse employment action under Title VII or the Rehabilitation

Act.

Because, even viewing the evidence in the light most favorable to plaintiff, there is

no genuine issue of material fact as to whether plaintiff suffered an adverse employment

action, plaintiff’s gender and disability discrimination claims will be DISMISSED.

b. More Favorable Treatment

Additionally, plaintiff has not pointed to any similarly situated individuals with

regard to any of her claims. Accordingly, the Court finds that plaintiff has not even

attempted to establish this element of her prima facie case of gender or disability

discrimination. For this alternate reason, plaintiff’s gender and disability discrimination

claims will be DISMISSED.

3. Retaliation Claims

Defendant argues that plaintiff has no evidence that the persons she accuses of

retaliation knew of her protected activity when they allegedly retaliated against her

[Doc. 21, p. 25].

Plaintiff responds that defendant’s permitting Randolph to stalk her and file “secret”

written complaints about her restroom usage was “obviously retaliatory” [Doc. 28, p. 16,

23]. She points to the temporal proximity between her continued pursuit of EEO claims

43

after November 6, 2017, and Dennison’s November 8, 2017, directive to Randolph to send

reports of contact if he encountered plaintiff using the restroom in the gym [Id. at 23].

Defendant argues that plaintiff misstates the evidence regarding Randolph’s reports

of contact, which shows that Dennison merely asked Randolph to document any instances

when he was “in the gym and [plaintiff] comes in to use the restroom” [Doc. 31, p. 7].

Dennison’s request did not mention plaintiff’s EEO activity, plaintiff was not subject to

any adverse action as a result of the reports, and plaintiff kept similar documentation about

her visual contacts with Randolph [Id.].

To establish a prima facie case of retaliation under the Rehabilitation Act or Title

VII, plaintiff must show that that: (1) she engaged in protected activity; (2) the employer

knew of that activity; (3) the employer took an adverse action against plaintiff; and

(4) there was a causal connection between the protected activity and the adverse action.

Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th Cir. 2018) (addressing retaliation

claims under Title VII); A.C. ex rel J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697

(6th Cir. 2013) (addressing retaliation claims under the Rehabilitation Act and ADA).

a. Knowledge

First, the Court finds that plaintiff has not established that any of the individuals

who allegedly retaliated against her were aware of her EEO activity at the time of such

retaliatory conduct. As the Northern District of Ohio succinctly stated: “[n]o awareness;

no retaliatory animus or claim.” Skinner v. Bowling Green State Univ., 461 F. Supp. 3d

667, 674 (N.D. Ohio 2020) (citation omitted). Specifically, the relevant decision maker

44

must have known of plaintiff’s protected activity. Mulhall v. Ashcroft, 287 F.3d 543, 548

(6th Cir. 2002).

The record reflects that plaintiff first engaged in EEO activity on December 13,

2016, when she contacted Stewart about filing a hostile work environment claim based on

the bin incident [Doc. 20-1, pp. 10, 107–08; Doc. 30, p. 6]. Accordingly, the actions of

Dr. Chang on December 7, 2016, and Chief Shelton and Officer King on December 9,

2016, cannot be retaliatory, because they occurred prior to plaintiff’s first EEO activity.

Additionally, plaintiff has not shown that any other named individuals, with the

exception of Stewart, Dennison, and Pohlid, knew of her EEO activity. As to Baumann,

plaintiff contends that there were e-mails between him and Stewart but could not recall the

contents of those e-mails [Doc. 20-1, pp. 121–22]. Plaintiff’s assertion regarding

unproduced e-mails is merely speculation that Baumann had some knowledge of plaintiff’s

complaint to Stewart, and “speculation is no substitute for evidence or proof as to the

essential element of knowledge[.]” Skinner, 461 F. Supp. 3d at 674 (alterations omitted).

As to Edwards and Miller, plaintiff acknowledged that she was not certain whether

either individual knew of her EEO complaint when they made the allegedly offensive

comments [Doc. 20-1, pp. 141, 143]. Similarly, plaintiff admitted that she was unaware if

Cooke knew of her complaints to Stewart prior to his comment [Id. at 163–64]. Plaintiff

merely speculates that Ward, Tom, and Benny knew of her EEO complaints based on their

friendship with Randolph [Id. at 132, 134–35]. And Plaintiff could not recall if she

informed Bradley or Dr. Barteck that she had complained to Stewart and offered no other

45

evidence of these individuals’ knowledge of plaintiff’s EEO activity [Id. at 150–51, 153].

As to Borsos, plaintiff states that she assumes that he knew of her formal EEO complaint

at the time when he decided to suspend Randolph, based on his position as Medical Center

Director [Id. at 160–61]. Again, however, plaintiff offers no evidence beyond her own

speculation that Borsos actually knew of plaintiff’s EEO activity.

As to Randolph, plaintiff asserts that he was retaliating against her by walking past

her office because he was disciplined for the bin incident [Id. at 59]. Notably, it appears

that many of plaintiff’s retaliation claims, described above, are premised on retaliation

based on Randolph’s discipline, rather than based on plaintiff’s separate EEO activity.

However, Randolph’s investigation and discipline for the bin incident is separate from

plaintiff’s EEO activity. Accordingly, plaintiff has not shown that she engaged in any

protected activity that resulted in Randolph’s investigation and discipline, and therefore,

whether these individuals knew of Randolph’s discipline is irrelevant for purposes of this

analysis.

Plaintiff has, however, shown that Dennison, Stewart, and potentially Pohlid knew

of her EEO activity at the time when they allegedly retaliated against her. Specifically, the

evidence shows that Stewart contacted Dennison about the contents of plaintiff’s EEO

complaint on August 29, 2017 [Id. at 10]. And, naturally, as the EEO officer to whom

plaintiff first complained, Stewart was aware of plaintiff’s EEO complaints. Moreover,

plaintiff appears to at least imply that Pohlid was involved in, or had knowledge of,

plaintiff’s EEO mediation prior to the filing of formal EEO charges [Doc. 30, p. 15].

46

Accordingly, the Court will address whether plaintiff has established that Dennison,

Stewart, or Pohlid’s allegedly retaliatory conduct constitutes an adverse employment

action.

b. Adverse Employment Action

“In contrast to Title VII’s discrimination provision, the ‘adverse employment

action’ requirement in the retaliation context is not limited to an employer’s actions that

solely affect the terms, conditions or status of employment, or only those acts that occur at

the workplace.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir. 2008).

Instead, for retaliation purposes, an adverse employment action is conduct that “would

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. (quotation omitted). Accordingly, “[p]laintiff’s burden of establishing

a materially adverse employment action is less onerous in the retaliation context[.]” Laster

v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014).

The Court first finds that, even under this more lenient standard, plaintiff has not

established that Pohlid’s actions were an adverse employment action. Pohlid merely

e-mailed plaintiff’s counsel, at some point after the EEO mediation, providing information

on the process for plaintiff to follow if she needed to request a reassignment as a reasonable

accommodation [Doc. 20-1, pp. 229–30; Doc. 20-2, p. 20; Doc. 30, p. 15]. Plaintiff admits

that she was not subjected to any job-related action as a result of this e-mail [Doc. 20-1,

p. 231]. Ultimately, Pohlid’s e-mail, which merely provided general information about the

reasonable accommodation process at the VA, would not have dissuaded a reasonable

47

worker from making or supporting a charge of discrimination. See Hawkins, 517 F.3d at

345. Pohlid’s e-mail contains no implication that plaintiff was required to request an

accommodation or that her employment would be affected if she did not request an

accommodation. At best, Pohlid’s e-mail can be construed as advising plaintiff of her

ability to request a reasonable accommodation based on some of her EEO allegations,

which is simply too inoffensive to be deemed an adverse employment action, even under

the more lenient retaliation standard.

Next, as to Dennison, plaintiff asserts that Dennison retaliated by encouraging

Randolph to file reports of contact when he encountered plaintiff [Doc. 20-1, p. 170]. But

plaintiff herself admits that she was not even aware of Randolph’s reports of contact until

2018, in the course of her EEO proceedings, and Dennison took no employment action

against plaintiff based on Randolph’s reports of contact [Id. at 170, 174]. The Court finds

that plaintiff has not shown that such reports, of which she was not even aware, would have

dissuaded a reasonable person from pursuing a discrimination complaint.

Finally, as to Stewart, plaintiff appears to allege that Stewart’s advice that plaintiff

could not establish a hostile work environment claim based solely on the bin incident was

itself retaliatory for plaintiff’s assertion that she wished to file a hostile work environment

claim based on the bin incident [Doc. 30, p. 6]. The Court notes that, in her deposition,

plaintiff denied that Stewart retaliated against her [Doc. 20-1, p. 110]. However, in her

later declaration, plaintiff stated that this incident, which she had described in her

deposition, was also retaliation [Doc. 30, p. 6]. The Sixth Circuit has held that a

48

post-deposition affidavit that directly contradicts a party’s sworn deposition testimony

should be stricken unless the party provides a persuasive justification for the contradiction.

Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899, 908 (6th Cir. 2006). It appears that

plaintiff’s post-deposition declaration that Stewart’s actions were retaliatory directly

contradicts her sworn deposition statement that Stewart did not retaliate against her, and

plaintiff has provided no explanation for the contradiction. Accordingly, the Court finds

that it would be appropriate to strike plaintiff’s later claim that Stewart’s actions were

retaliatory and dismiss plaintiff’s retaliation claim on this ground. Nevertheless, because

Stewart’s statement could dissuade a reasonable person from filing an EEO charge, the

Court will address whether plaintiff has established causation.

c. Causation

“In order to establish causation, a plaintiff must demonstrate that, ‘but for’ the

protected activity, the employer would not have taken the adverse employment action.”

Eyster v. Metro. Nashville Airport Auth., 479 F. Supp. 3d 706, 719 (M.D. Tenn. 2020).

When “an adverse employment action occurs very close in time after an employer learns

of a protected activity, such temporal proximity . . . is significant enough to constitute

evidence of a causal connection[.]” George v. Youngstown State Univ., 966 F.3d 446,

460 (6th Cir. 2020) (addressing a Title VII retaliation claim). However, temporal

proximity alone is generally insufficient to establish a causal connection, and instead,

“must be coupled with other indicia of retaliatory conduct.” Eyster, 479 F. Supp. 3d at

719–20.

49

Because the Court has found that plaintiff has not established other elements of her

prima facie claim of discrimination as to the other named individuals, the Court will

analyze the causation element only as it relates to Stewart. There was certainly temporal

proximity between plaintiff’s assertion that she wished to file a hostile work environment

claim and Stewart’s advice that the one-time bin incident did not rise to the level of a hostile

work environment, all of which apparently occurred in the same conversation. However,

there is no other indicia of retaliatory intent present. See Eyster, 479 F. Supp. 3d at 719–20.

Plaintiff provides no evidence, beyond the temporal proximity, and her own subjective

belief, that Stewart’s advice was intended as retaliation for plaintiff’s EEO activity. And,

even if Stewart’s advice was erroneous, it is nonetheless not retaliatory absent such

evidence. Accordingly, the Court finds that plaintiff has not established the causation

element of her prima facie case of retaliation as to Stewart.

For the reasons discussed infra, the Court finds, viewing the evidence in the light

most favorable to plaintiff, she has not established a genuine issue of material fact as to her

prima facie case of retaliation. Accordingly, plaintiff retaliation claims will be

DISMISSED.

4. Hostile Work Environment Claims

A plaintiff can establish a violation of Title VII or the Rehabilitation Act by proving

that “the discrimination based on sex [or disability or retaliation] created a hostile or

abusive work environment.” Williams v. General Motors Corp., 187 F.3d 553, 560 (6th

Cir. 1999); see generally Plautz, 156 F. App’x at 818 (discussing standard for hostile work

50

environment claim based on disability under the Rehabilitation Act); Willey v. Slater, 20 F.

App’x 404, 406 (6th Cir. 2001) (discussing standard for retaliatory hostile work

environment claim under Rehabilitation Act). To establish a hostile work environment

claim, plaintiff must show that (1) she is a member of a protected class; (2) she was subject

to unwelcome discriminatory or retaliatory harassment; (3) the harassment complained of

was based on her gender, disability, or protected activity; (4) the harassment created a

hostile work environment; and (5) there exists some basis for liability on the part of the

employer. Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000) (setting

forth the factors for establishing a prima facie case of hostile work environment based on

gender under Title VII); Trepka v. Board of Educ., 28 F. App’x 455, 461 (6th Cir. 2002)

(setting forth the factors for establishing a prima facie case of hostile work environment

under the Americans With Disabilities Act (“ADA”)); Plautz, 156 F. App’x at

818 (applying the ADA’s hostile work environment prima facie factors to a claim under

the Rehabilitation Act); Willey, 20 F. App’x at 406 (setting forth the factors for establishing

a prima facie case of retaliatory hostile work environment under the Rehabilitation Act).

See also Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (“The elements and burden

of proof [in a hostile work environment claim] are the same, regardless of the

discrimination context in which the claim arises.” (internal quotation marks omitted)).

As to the third element, defendant contends that there is no evidence of

discriminatory animus [Doc. 21, p. 14]. Defendant notes that plaintiff allegedly developed

anxiety and depression in mid-December 2016 and was diagnosed with PTSD in

51

June 2017, and first engaged in EEO activity on December 13, 2016; thus, her disabilities

and EEO activity played no role in the bin incident or the alleged discrimination by

Dr. Chang, Chief Shelton, or Officer King in early December. As to the alleged sexual

harassment, plaintiff has offered no evidence that Randolph intentionally threw the bin at

her, nor that he threw it at her because she is female [Id.]. Additionally, plaintiff largely

speculates that the actions of other VA employees were taken because of her gender

[Id. at 14–17].

First, the Court notes that the record indicates that the following individuals are

female, like plaintiff: Dr. Chang, Dennison, Bradley, Stewart, Dr. Barteck, Edwards,

Miller, and Pohlid. “As the Supreme Court has recognized, ‘[c]ourts and juries have found

the inference of discrimination easy to draw in most male-female sexual harassment

situations,’ but the inference of discrimination based on sex may become more complicated

when the alleged harasser and victim are of the same sex.” Smith v. Rock-Tenn Serv., Inc.,

813 F.3d 298, 307 (6th Cir. 2016) (quoting Oncale v. Sundowner Offshore Serv. Inc.,

523 U.S. 75, 80 (1998)). “[T]his Circuit allows a plaintiff alleging same-sex harassment

in hostile work environment cases to establish the inference of discrimination based on sex

in three ways: (1) where the harasser is making sexual advances and acting out of sexual

desire; (2) where the harasser is motivated by general hostility to the presence of [wo]men

in the workplace; and (3) where the plaintiff offers direct comparative evidence about how

the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id.

(quotations omitted).

52

As an initial matter, as to her claims relating to her disability, in her deposition,

plaintiff expressly denied that any of these alleged same-sex harassers discriminated

against her based on her disability. Indeed, even with regard to the alleged opposite-sex

harassers, plaintiff only accuses Baumann of potentially discriminating against her based

on her disability. Therefore, the Court’s analysis will be limited to whether these

individuals’ (with the exception of Baumann) actions were because of plaintiff’s gender.

Looking to the three ways the Sixth Circuit has set forth for establishing that

harassment by same-sex individuals was gender-based, the Court finds that plaintiff has

not provided any evidence inferring discrimination. First, there is no indication that any

of the alleged harassers, of either gender, were making sexual advances toward plaintiff,

nor has plaintiff made any such allegation. Second, plaintiff has not alleged that any of her

same-sex harassers were motivated by general hostility to women in the workplace. To

the contrary, plaintiff appears to assert that many of these individuals were hostile to her

specifically, because of her complaints regarding the bin incident, rather than hostile to

women in the workplace generally. And, as the Sixth Circuit has explained, “mere personal

dislike . . . does not establish an actionable hostile work environment.” Mazur v. Wal-Mart

Stores, Inc., 250 F. App’x 120, 129 (6th Cir. 2007). Finally, plaintiff has offered no

comparative evidence of how these alleged same-sex harassers treated members of both

sexes in a mixed-sex workplace. Accordingly, the Court finds that plaintiff has not

established that the actions of plaintiff’s alleged same-sex harassers was because of

plaintiff’s gender.

53

Additionally, to the extent that plaintiff asserts that these alleged same-sex harassers

were motivated by her EEO activity, as the Court explained in detail supra, plaintiff has

not shown that any of these individuals, exclude Stewart, Dennison, and Pohlid, had any

knowledge of plaintiff’s EEO activity. Absent such knowledge, their actions could not

have been because of plaintiff’s EEO activity. And, ultimately, the Court finds that

plaintiff has not established that Stewart, Dennison, or Pohlid’s allegedly discriminatory

actions were because of her EEO activity.

Turning to plaintiff’s alleged opposite-sex harassers, the Court finds that plaintiff

has not met her burden of establishing that the alleged harassment was because of her

gender or protected activity. The Sixth Circuit has held that “non-sexual conduct may be

illegally sex-based where it evinces anti-female animus, and therefore could be found to

have contributed significantly to the hostile environment.” Waldo v. Consumers Energy

Co., 726 F.3d 802, 815 (6th Cir. 2013) (internal quotations omitted). Thus, “any unequal

treatment of an employee that would not occur but for the employee’s gender [or protected

activity], if sufficiently severe or pervasive, may constitute a hostile environment in

violation of Title VII.” Id. (internal quotations and alterations omitted). However, “[a]

trier of fact cannot infer that harassment emanated from an anti-woman bias merely

because a man directed that harassment toward a woman. Something more is required of

the evidence.” Wiseman v. Whayne Supply Co., 359 F. Supp. 2d 579, 587 (W.D. Ky. 2004)

(quotation omitted). Accordingly, the Court will address the actions of each of plaintiff’s

54

alleged opposite-sex harassers and determine whether plaintiff has shown that such alleged

harassment was because of her gender or protected activity.

As to Baumann, plaintiff primarily complains that he “discouraged” her from filing

for worker’s compensation by telling her that, in his experience, anxiety was rarely

sufficient justification for time off work [Doc. 20-1, p. 113; Doc. 20-2, pp. 15–16; Doc. 30,

p. 7]. She also contends that Baumann spoke to her condescendingly [Doc. 20-1,

pp. 117–18]. But plaintiff offers no evidence, other than her subjective belief and

speculation, that Baumann gave her this advice or spoke condescendingly to her because

of her gender, disability, or protected activity. As to her disability, plaintiff merely

indicates that Baumann “possibly” discriminated against her based on her disability by

“discouraging” her from seeking worker’s compensation, because it “would be a burden to

him” [Doc. 20-1, pp. 113–15, 119]. Such speculation is insufficient to establish that

Baumann’s actions were because of plaintiff’s disability. See Jones v. City of Franklin,

677 F. App’x 279, 282 (6th Cir. 2017) (“conclusory allegations, speculation, and

unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-

supported motion for summary judgment”). Likewise, plaintiff merely offers her

subjective belief that Baumann’s advice and condescending tone were because of her

gender. Indeed, plaintiff herself admits that her union representative informed her that

Baumann had a history of speaking condescendingly to individuals, and she was not aware

if that also included men [Doc. 20-1, p. 118]. Finally, as explained supra, plaintiff merely

speculates that Baumann knew of her EEO activity at the time of their meeting.

55

Accordingly, even construing the evidence in the light most favorable to plaintiff, plaintiff

has not established that Baumann’s actions were based on her disability, gender, or

protected activity.

Similarly, as to the comment by Cooke and the alleged noise made by Ward, Tom,

and Benny, plaintiff merely speculates that these actions were because of her gender and

protected activity. As to Cooke’s comment, plaintiff merely asserts that “there’s no way

that he would have said that to another man” [Doc. 20-1, p. 163]. Additionally, plaintiff

merely speculates that Cooke knew of her EEO activity, based on his friendship with

Randolph. Such speculation is insufficient to establish that Cooke’s comment was made

because of plaintiff’s gender or protected activity. See Jones, 677 F. App’x at 282. As to

the noise allegedly made by Ward, Tom, and Benny, plaintiff merely asserts that these

actions were based on her gender, highlighting the fact that these men were allegedly

friends with Randolph [Doc. 20-1, p. 128, 131]. Even taking plaintiff’s versions of events

as true, that these men made noises, and the noises were directed at her, she nevertheless

has not shown that such was because of her gender or protected activity, rather than because

of personal dislike, which the Court noted previously, is not sufficient to establish a hostile

work environment. See Mazur, 250 F. App’x at 129.

Next, as to Chief Shelton and Officer King, plaintiff complains that she was not

permitted to press charges against Randolph for the bin incident. Plaintiff states that she

subjectively believes that, if she had been a male, Chief Shelton would have permitted her

to file a police report against Randolph [Doc. 20-1, p. 106]. Plaintiff also stated that she

56

did not know whether Officer King discriminated against her because of her gender

[Id. at 168]. Again, such speculation alone is insufficient to establish that Chief Shelton

and Officer King’s denying plaintiff the ability to file a formal police report about the bin

incident was because of plaintiff’s gender. See Jones, 677 F. App’x at 282. And, as noted

supra, plaintiff had not engaged in any protected activity when she visited the VA police.

As to Borsos, plaintiff merely asserts that he discriminated against her based on her

gender by declining to fire Randolph for the bin incident, stating that she subjectively

believes that Borsos would have terminated Randolph if plaintiff were male [Doc. 20-1,

p. 159]. When asked to clarify this subjective belief at her deposition, plaintiff stated that

she did not know why she believed Borsos would have fired Randolph if plaintiff was male

[Id.]. Likewise, plaintiff “assumed” that Borsos knew of her EEO activity based on his

position as Medical Center Activity. This, again, is insufficient to show that Borsos’s

decision to suspend Randolph for two weeks, rather than fire him, was based on plaintiff’s

gender or protected activity. See Jones, 677 F. App’x at 282.

Finally, as to Randolph himself, plaintiff complains about the bin incident and her

visual contacts with Randolph after the bin incident. Regarding the bin incident, however,

plaintiff stated that it was “very likely” that Randolph would have hit anyone who had been

standing at her workstation with the bin, and she did “not necessarily” believe Randolph

threw the bin in her direction because she is female [Doc. 20-1, pp. 49, 54]. Accordingly,

plaintiff’s own deposition testimony undermines any claim that Randolph’s throwing of

the bin toward plaintiff was because of plaintiff’s gender. As to her continued visual

57

contacts with Randolph after the bin incident, plaintiff merely asserts that she does not

believe Randolph would have continued to walk past her office en route to the gym if she

were male [Doc. 20-1, pp. 55–56]. And plaintiff merely expresses her subjective belief

that Randolph took these actions as retaliation. As the Court has explained, such subjective

belief, without more, is insufficient to establish that an alleged harasser’s actions were

based on plaintiff’s gender or protected activity. See Jones, 677 F. App’x at 282.

For these reasons, the Court finds that, viewing the evidence in the light most

favorable to plaintiff, there is no genuine issue of material fact as to whether plaintiff has

established that the allegedly harassing actions were because of her disability, gender, or

protected activity. Plaintiff’s hostile work environment claims will therefore be

DISMISSED.

IV. Conclusion

For the reasons set forth above, defendant’s motion to strike [Doc. 33] will be

DENIED, plaintiff’s motion to exclude [Doc. 32] will be DENIED, defendant’s motion

for summary judgment [Doc. 20] will be GRANTED, and this case will be DISMISSED.

A judgment order will follow.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

58