Harris v. McDonough

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TIFFANY HARRIS,

Plaintiff,

v. Case No. 2:22-cv-193-CLM

DENIS MCDONOUGH, and consolidated case no.:

Secretary, Department of 2:22-cv-194-CLM.

Veterans Affairs

Defendant.

MEMORANDUM OPINION

Pro se Plaintiff Tiffany Harris sues Denis McDonough, Secretary of

the Department of Veterans Affairs, for workplace mistreatment under

Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq.

McDonough moves for summary judgment, arguing that Harris failed to

exhaust her administrative remedies and failed to show a causal

connection between her removal and her protected activity. (Doc. 46).

For the reasons stated below, the court GRANTS summary

judgment for McDonough on Harris’s retaliation claim based on the

removal of Harris’s employment. The court DENIES McDonough

summary judgment on Harris’s claim that she suffered a retaliatory

hostile-work-environment in response to her participation in protected

activity. The court will try that claim to a jury.

BACKGROUND

A. Factual Background

1. The workplace allegations: Tiffany Harris worked for the

Department of Veterans Affairs (“VA”) as an Advanced Medical Support

Assistant. Harris says that from February 2020 to July 2021, she

experienced discrimination, retaliation, discriminatory harassment, and

a hostile work environment.

Harris submitted a 13-page letter with her complaint, specifying the

conduct she endured at the VA. In this letter, Harris alleges that

management and her co-workers often placed white and orange particles

in her work area which affected her breathing because she was allergic.1

Harris says this behavior began after her supervisor demanded her Social

Security number, accessed her medical records, and discovered her

allergies. According to Harris, her co-workers would place the particles in

the carpet underneath her desk and drop particles on her desk as they

walked by, which made her struggle to breathe. She said she was told to

sit in an assigned seat in the file room where her desk was trashed daily.

Harris also alleges a generally poor working environment with co-

workers: she says they would not acknowledge her presence, encourage

others not to interact with her, and yell at her. According to Harris, her

co-workers fabricated reports to destroy her character, procured her

unjustified suspension, and later her removal.

Harris said Supervisor Joyce Gilbert gave her written counselings

for doing things other employees did not get in trouble for, called VA police

on her to escort her out of the building several times, denied her telework

but allowed others to telework, and gave her work assignments with

impossible deadlines to meet. Management also charged Harris with

absence without leave (AWOL) when she was sent home and revoked her

leave under the Family Medical Leave Act. Harris also says she was

denied mandatory Medical Support Assistant training and that Gilbert

canceled her mid-year evaluation.

2. The EEOC claim, investigation, and removal: According to her

complaint, Harris initiated and participated in an internal harassment

investigation with VA’s facility detective, John Moore, in February 2020.

Harris says that her supervisor Joyce Gilbert and Team Lead Porsha

Oakes derailed the investigation. She says when the investigator came to

1 In her deposition, Harris says these particles are iodine and that she is allergic to

iodine. But Harris never refers to the particles as iodine in her complaint. (See Doc. 43-

15, p. 46).

the office, Gilbert and Oakes would cover up the particles on the floor and

lie to the investigator.

In December 2020, Harris filed an EEOC charge.

Harris was ultimately terminated in July 2021. First, Debbie Litton

created a notice of proposed removal that cited six instances Litton said

supported Harris’s removal. Next, Dr. Kokoyi sent Harris a notice of

removal that sustained Litton’s charges and gave these reasons for

removing Harris’s employment:

• Inappropriate Conduct in the Workplace;

• Failure to Follow Supervisory Instructions;

• Failure to Report to Assigned Work Area; and

• Absent Without Leave (AWOL).

(Id., p. 1). In sum, here is the relevant timeline of events surrounding

Harris’s protected activity and removal:

• February 2020: Harris participated in a harassment

investigation and filed an internal claim with the VA’s EEO

office.2

• March 2020: Harris received a written counseling for taking

photos and videos of the particles and employees in her

workspace.

• June 2020: Harris received a proposed notice of suspension and

later a five-day suspension.

• July 2020: Harris was suspended for failure to follow supervisory

instruction.

• December 15, 2020: Harris filed a complaint of discrimination

with the EEOC.

• January 2021: Gilbert provided Harris a poor performance

review.

• June 2, 2021: Harris received a notice of proposed removal. (Doc.

43-18).

2 Harris says she received her right to sue letter in February 2022.

• June 29, 2021: Harris received a notice of removal from Dr.

Olapido Kokoyi, Interim Medical Center Director. (Doc. 43-14).

3. MSPB hearing: Harris says Dr. Kokoyi and the VA removed her

because she filed the December 2020 EEOC complaint. So she appealed

the removal to the Merit Systems Protection Board (“MSPB”). (Doc. 43-

16). The MSPB held a hearing and heard testimony from Harris, her

supervisors, and some co-workers. After hearing testimony from both

sides, the MSPB affirmed the VA’s decision to terminate Harris,

sustaining the specifications and charges that the VA had lodged against

Harris. (Doc. 43-17). The MSPB also found that Harris failed to meet her

burden of establishing that retaliation was a motivating factor in the

decision to terminate her. (Id.).

At the same time, Harris continued to pursue her EEOC charge,

including amendments and appeals. Here’s the relevant timeline:

• July 12, 2021: Harris amended her December EEOC complaint

for the 15th time. (Doc. 43-4).

• February 8, 2022: The EEOC issued a decision and order in the

VA’s favor. (Doc. 43-7).

• February 10, 2022: Harris appealed the EEOC’s final decision

and order. (Doc. 43-9).

• February 11, 2022: The VA adopted the EEOC administrative

judge’s decision and issued a final order. (Doc. 43-8).

• February 14, 2022: Harris filed two suits in this federal court

against Denis McDonough (as Secretary of the Department of

Veterans Affairs); the Department of Veterans Affairs; Joyce

Gilbert; Porsha Oakes; and Dr. Oladipo Kukoyi. (Harris v.

McDonough et al., 2:22-cv-193-CLM; Harris v. McDonough et al.,

2:22-cv-194-CLM).

• September 25, 2023: The EEOC’s Office of Federal Operations

affirmed the agency’s final order adopting the administrative

judge’s decision. (Doc. 43-11).

• September 27, 2023: Harris requested reconsideration of her

appeal. (Doc. 43-12).

• December 11, 2023: The Office of Federal Operations affirmed its

decision. (Doc. 43-13).

B. Procedural Background

Harris filed two complaints in this federal court against McDonough

to challenge her workplace mistreatment. (Case No. 2:22-cv-193, Doc. 1;

Case No. 2:22-cv-194, Doc. 1). Harris also moved for leave to proceed in

forma pauperis. (Doc. 2). The magistrate judge consolidated Harris’s cases

(doc. 4), screened her complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), and

ordered Harris to file a consolidated amended complaint to correct

pleading deficiencies. (Doc. 5).

Harris filed a consolidated amended complaint, bringing claims

under Title VII of the Civil Rights Act of 1964 against McDonough, the

Department of Veterans Affairs, Joyce Gilbert, Porsha Oakes, and Dr.

Oladipo A. Kukoyi. Harris described her claims as based on termination

of employment, failure to promote, unequal terms and conditions of

employment, retaliation, bullying, and harassment. (Doc. 7, p. 4). This

court then screened Harris’s amended complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii) and found that Harris plausibly alleged a violation of

the participation clause of Title VII’s antiretaliation provision against

Denis McDonough, Secretary of the Department of Veterans Affairs. (Doc.

12). So Harris’s participation clause retaliation claims are the only claims

here at the summary judgment stage.

STANDARD OF REVIEW

In reviewing a motion for summary judgment, this court views the

facts and draws all reasonable inferences in the light most favorable to

the non-moving party. See Cuesta v. Sch. Bd. of Miami-Dade Cty., 285

F.3d 962, 966 (11th Cir. 2002). Summary judgment is appropriate when

there is no genuine dispute of material fact, and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

HARRIS’S RESPONSE

After McDonough moved for summary judgment, the court provided

Harris with a notice and explanation of how Rule 56 works. (See Doc. 47).

The court also reminded Harris that her response to McDonough’s motion

was due on March 20, 2024. (Id., p. 2). Harris did not file a response brief.

Instead, she filed a notice of evidentiary submission that provided a

timeline of events and asked the court to refer to the evidence she

submitted along with her complaint in ruling on McDonough’s motion.

(Doc. 44). The court has reviewed both Harris’s and McDonough’s

evidentiary submissions and considered them in the light most favorable

to Harris. In reviewing McDonough’s motion, the court has also kept in

mind that it cannot base its entry of summary judgment on the mere fact

that Harris did not file a response brief but “must consider the merits of

the motion.” See United States v. One Piece of Real Prop. Located at 5800

SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004).

DISCUSSION

Harris alleges two distinct claims: (a) retaliation that resulted in

her removal from employment, and (b) retaliation that resulted in a

hostile work environment. The court addresses the claims in this order.

I. Removal Retaliation Claim

Harris claims that McDonough removed her from employment in

retaliation for filing an EEOC complaint. McDonough argues that he is

entitled to judgment on this claim for two reasons: (1) Harris failed to

exhaust her removal-based claim; and, (2) Harris cannot show a causal

connection between her removal and her EEOC complaint. The court

agrees with both reasons.

A. Failure to Exhaust: Removal Retaliation Claim

A federal employee bringing a Title VII claim must exhaust her

administrative remedies before suing her employer in federal court. See

Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). When a federal

employee “complains of a personnel action serious enough to appeal to the

MSPB and alleges that the action was based on discrimination, she is said

(by pertinent regulation) to have brought a ‘mixed case.’” Kloeckner v.

Solis, 568 U.S. 41, 45 (2012).

A federal employee presenting a mixed case has two options. She

may either file a discrimination complaint with the EEOC or file an appeal

with the MSPB, but she may not do both. Fleck v. Sec’y of U.S. Dep’t of

Transp., 826 F. App’x 782, 784 (11th Cir. 2020). (citing 29 C.F.R. §

1614.302(b)). If an employee files “both a mixed case complaint and appeal

on the same matter[,] . . . whichever is filed first shall be considered an

election to proceed in that forum.” 29 C.F.R. § 1614.302(b). When “the

MSPB rejects an employee’s claims in a mixed case, the employee may: (1)

seek the EEOC’s review of his discrimination claims; (2) file a civil action

in federal district court raising both his discrimination and termination

claims; or (3) petition the Federal Circuit for review of the termination

decision.” Lee v. United States, 544 F. App’x 898, 900 (11th Cir. 2013)

(citing 5 U.S.C. §§ 7702(b)(1), 7703(b)(1)-(2)). “For those who take the

[second] option, ‘a final decision from the MSPB exhausts an employee’s

administrative remedies and allows him to seek judicial review.’” Council

v. Am. Fed’n of Gov’t Emps. (AFGE) Union, 477 F. App’x 648, 653 (11th

Cir. 2012) (quoting Chappell v. Chao, 388 F.3d 1373, 1375 (11th Cir.

2004)).

The record shows that Harris appealed her removal to the MSPB on

July 9, 2021. (Doc. 43-16). Three days later, Harris amended her EEO

complaint to include a claim that her removal was in retaliation for

engaging in protected activity. (Doc. 43-4, pp. 6-7). Because Harris

appealed to the MSPB before amending her EEO complaint, she made a

binding election to proceed before the MSPB instead of the EEOC. See 29

C.F.R. § 1614.302(b). So Harris was required to wait for a final decision

from the MSPB before challenging her removal in federal district court.

Council, 477 F. App’x at 653. Harris, however, filed suit in this court about

a month before the MSPB issued its decision affirming the VA’s removal

of Harris. (See Docs. 1; 43-17). Because Harris filed her original

complaints before the MSPB issued its final decision, Harris failed to

exhaust her administrative remedies. See Stoll v. Principi, 449 F.3d 263,

267 (1st Cir. 2006) (affirming dismissal for failure to exhaust

administrative remedies when plaintiff filed original complaint 9 months

before MSPB issued its final decision).

B. Merits: Removal Retaliation Claim

Even if Harris adequately exhausted her administrative remedies,

she has failed to present evidence that would permit a reasonable juror to

find that the VA terminated her because she filed an EEOC complaint.

Under Title VII’s federal-sector provision, federal employers must

make “[a]ll personnel actions . . . free from any discrimination,” including

retaliation. See 42 U.S.C. § 2000e-16(a). “[I]f retaliation for engaging in a

protected activity under Title VII taints the decision-making process for

any personnel action, that violates the federal-sector provision—even if

the employer would have made the same decision absent retaliation.”

Buckley v. Sec’y of Army, 97 F.4th 784, 798 (11th Cir. 2024). So a federal

employee bringing a Title VII retaliation claim needn’t establish “but-for”

causation, and the traditional McDonnell Douglas framework does not

apply at summary judgment. See id. Instead, Harris’s removal retaliation

claim will survive summary judgment if she “has submitted evidence that

would allow a reasonable jury to find that retaliation played any part” in

the decision to remove her from federal service. Id. (cleaned up).

It is undisputed that Dr. Kukoyi removed Harris from federal

employment. Harris argues that Dr. Kukoyi had an impermissible conflict

of interest because he was practicing sorcery against her, called her crazy

when she was responding to what happened to her, and knew about the

situation before deciding to terminate her. (Doc. 43-16, pp. 5–6). But when

Harris was asked in her deposition about how her removal was connected

to her EEO activity, Harris provided only speculative responses. For

example, Harris testified that she believed Dr. Kukoyi removed her

employment in retaliation for her protected activity to cover up what was

happening to her at the VA and because Dr. Kukoyi had begun to

participate in the dropping of particles in Harris’s work area. Harris,

however, struggled to explain how she knew Dr. Kukoyi was retaliating

against her:

Q. What other reasons do you have for believing that Dr.

Kukoyi’s decision to remove you was in retaliation for

your protected activity?

A: I’m not exactly sure. I just know I was retaliated

against. So I’m not exactly sure. I know he played a part

in the retaliation. So the only thing that I can think of

is to cover up on what was being done at the VA. So I

don’t really know.

Q: Okay. I’m going to restate what I understood was your

testimony. And let me know if I’m describing it

accurately.

A: Okay.

Q: You believe that Dr. Kukoyi decided to remove you in

retaliation for your protected activity because it makes

sense as part of a cover-up of the truth of what was

actually going on?

A. Part of it, yes.

Q: What is the other part of it?

A. Once again, he played a role in my retaliation. He

allowed the supervisor—supervisors and the director,

Debbie Litton, as far as to make decisions on my behalf

which was falsified. Pretty much—like I said,

everything was falsified. So it was covered up.

I can’t—I don’t really know. As far as—I don’t know, I

guess, how to answer that. But the only thing that I can

say was that everything was covered up on what was

being done to me because I was in protected activity.

(Doc. 43-15, pp. 9–10).

Because Harris is the non-movant, the court will assume that Dr.

Kukoyi knew about Harris’s protected activity when he removed her from

federal employment. But Dr. Kukoyi’s knowledge of Harris’s protected

activity, standing alone, isn’t “evidence that would allow a reasonable jury

to find that retaliation played any part” in the decision to remove Harris

from federal service. See Buckley, 97 F.4th at 798 (emphasis omitted). And

“inferences in favor of a plaintiff can be based only on evidence—not on

speculation.” Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1058

(11th Cir. 2020). So Harris’s speculation that her protected activity played

a role in Dr. Kukoyi’s decision fails to create a genuine dispute of material

fact.

As a result, Harris’s only evidence linking her removal from federal

employment to her protected activity is the temporal proximity between

Harris’s protected activity and Dr. Kukoyi’s decision to fire her. Five

months passed between Harris’s last EEO complaint and the issuance of

Harris’s notice of proposed removal. (Docs. 43-2, 43-18). And another

month passed before Dr. Kukoyi made the final decision to remove Harris.

(Doc. 43-14). “That is far too long to allow for the inference that retaliation

infected the decision-making process that resulted in [Harris’s]

dismissal.” Buckley, 97 F.4th at 799 (holding that 7-8-month gap is too

long and citing with approval cases that have held that a 3-4-month gap

is too long). Because Harris presents no evidence that would allow a juror

to connect her EEOC complaint and her termination, McDonough is

entitled to judgment on Harris’s removal-related retaliation claim. For

this reason, plus Harris’s failure to exhaust, the court will GRANT

McDonough’s motion for summary judgment.

II. Retaliatory Hostile-Work-Environment Claim

Harris claims that her work environment was hostile because she

participated in a harassment prevention program and filed EEOC

complaints. As detailed below, McDonough makes only one argument for

judgment on this claim (failure to exhaust) but acknowledges that

argument is foreclosed by Eleventh Circuit precedent. McDonough does

not seek judgment on the merits, meaning this claim will go to trial.

A. Failure to Exhaust: Retaliatory Hostile-Work-

Environment

Like Harris’s removal retaliation claim, McDonough contends that

Harris failed to exhaust her retaliatory hostile-work-environment claims

because Harris didn’t wait long enough to file this lawsuit.

Harris appealed the EEOC’s final order in favor of the VA to the

Office of Federal Operations. A complainant who files an appeal may only

file a civil action in federal district court “[a]fter 180 days from the date of

filing [the] appeal with the Commission if there has been no final decision

by the Commission.” 29 C.F.R. § 1614.407(d). But Harris filed these

actions only four days after she appealed to the Office of Federal

Operations. (See Docs. 43-9; 43-10).

That said, McDonough concedes that binding Eleventh Circuit

precedent prevents this court from dismissing Harris’s claims for failure

to exhaust if Harris “cooperated in good faith with the EEOC, and [her]

early filing did not prevent the EEOC from investigating [her] complaint

for the full 180 days.” See Brown v. Snow, 440 F.3d 1259, 1264 (11th Cir.

2006), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53 (2006). McDonough says that he cannot establish that

Harris acted in bad faith or that this lawsuit prevented the investigation

of Harris’s claims. McDonough is instead raising this issue to preserve it

for appeal. The court will thus DENY McDonough’s motion to dismiss

Harris’s retaliatory hostile-work-environment claims for failure to

exhaust her administrative remedies. See Brown, supra.

B. Merits: Retaliatory Hostile-Work-Environment Claim

“[T]o state a claim for retaliatory hostile-work-environment, a

federal-sector plaintiff must establish that, to retaliate against her for

engaging in protected Title VII activity, her employer created or tolerated

a work environment that might well have dissuaded a reasonable worker

from making or supporting a charge of discrimination and that

environment rose to the level of a personnel action [ ].” Buckley, 97 F.4th

at 799.

In its screening order, the court found that Harris had plausibly

alleged retaliatory hostile-work-environment. (Doc. 12, pp. 7–9). As the

court explained, Harris’s complaint adequately alleged that Harris

engaged in statutorily protected activity when she participated in a

harassment prevention program and when she filed EEOC complaints.

(Doc. 12, pp. 7-8). Harris’s complaint detailed mistreatment “that might

well have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” (Id.). For example, Harris alleged that her

supervisors and co-workers often placed allergens in her workspaces,

made her work in a file room, disciplined her, unjustifiably procured her

suspension, and falsified reports about her. (Id.). And Harris’s allegations

suggested that her harassment could be causally connected to one or both

of the protected activities. (Id., p. 9).

McDonough has not moved for summary judgment on the merits of

Harris’s retaliatory hostile-work-environment claim. So this court will try

Harris’s claim that her employer created or tolerated a hostile work

environment in retaliation for Harris’s participation in activity protected

under Title VII.

CONCLUSION

For the reasons stated within, the court GRANTS IN PART

McDonough’s motion for summary judgment. (Case No. 2:22-cv-193, Doc.

45; Case No. 2:22-cv-194, Doc. 47). In the consolidated case, Case No. 2:22-

cv-194, Docs. 46 and 47 are duplicate filings. So the court DENIES AS

MOOT McDonough’s initial motion for summary judgment in that case.

(Case No. 2:22-cv-194, Doc. 46).

The court will enter a separate order that carries out this ruling.

DONE and ORDERED on September 3, 2024.

COREY L. MAZE

UNITED STATES DISTRICT JUDGE

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