The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIFFANY HARRIS,
Plaintiff,
v. Case No. 2:22-cv-828-CLM
DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Tiffany Harris sues the Department of Veterans
Affairs (“VA”) under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.
§ 2000e et seq., and appeals the affirmance of the VA’s decision to
terminate her federal employment.1 The VA moves for summary
judgment on Harris’s discrimination claims and for judgment on the
administrative record on her non-discrimination claims. For the reasons
stated within, the court GRANTS those motions. (Docs. 41, 42).
BACKGROUND
A. Factual Background
1. The alleged harassment: Tiffany Harris worked for the VA as an
Advanced Medical Support Assistant starting in December 2019. Harris
says from February 2020 to July 2021, the VA failed to promote her,
provided unequal terms of employment, retaliated against her, harassed
her, constructively discriminated against her by poisoning her
environment, and ultimately terminated her employment in retaliation
for engaging in protected activity.
1 Harris’s complaint also alleges violations of HIPAA and the Privacy Act. (Doc. 8, p. 4).
But plaintiffs cannot bring a private right of action over an alleged HIPAA violation.
See Sneed v. Pan Am. Hosp., 370 F. App’x 47, 50 (11th Cir. 2010). And Harris’s
complaint doesn’t plausibly allege that the VA violated the Privacy Act because she
doesn’t explain what entity maintained the records that she says were improperly
disclosed to her supervisor. So to the extent that these claims haven’t already been
dismissed, the court will dismiss them under 28 U.S.C. § 1915(e).
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.
She says this began after her supervisor demanded her Social Security
number, accessed her medical records, and discovered her allergies.
Harris said 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, yell at her, and drop particles on her desk.
According to Harris, her co-workers fabricated reports to destroy her
character, procured her unjustified suspension, and later her removal.
Harris alleges Supervisor Joyce Gilbert gave Harris written counselings
for doing things other employees did, called VA police on Harris to escort
her out of the building several times, denied Harris telework but allowed
other employees to telework, and gave Harris work assignments with
impossible deadlines to meet. Harris says that management charged her
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.
Harris’s amended complaint includes nearly 300 pages of
documents including email updates of complaints about particles in her
workspace, communication with her supervisor, and adverse treatment in
the workplace. The general theme of events is that Harris believed her co-
workers were placing particles in her workspace making it difficult for her
to breathe and performing acts of sorcery on her.
2. The investigation: According to her amended complaint, Harris
initiated and participated in an internal harassment investigation with
VA’s facility detective, John Moore, in February 2020. But Harris says
that her supervisor Joyce Gilbert and Team Lead Porsha Oakes derailed
the investigation by covering up the particles on the floor and lying to the
investigator.
Harris then filed an internal claim with the VA medical center’s
EEOC office in February 2020. In December 2020, Harris formally filed
an EEOC charge.
Harris was ultimately removed from federal employment in July
2021. In Harris’s notice of proposed removal, Debbie Litton cited six
instances that she said supported Harris’s removal. Dr. Kokoyi’s notice of
removal sustained Litton’s charges against Harris 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).
(Doc. 40-10).
—
In sum, this 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
EEOC office.2
• March 2020: Harris received a written counseling for
taking photos and videos of the particles and employees
in her workspace. (Doc. 8-1, p. 96).
• June 2020: Harris received a proposed notice of
suspension and later a five-day suspension. (Doc. 8-1, pp.
129-30).
• July 2020: Harris was suspended for failure to follow
supervisory instruction. (Doc. 8-1, p. 135).
2 Harris says she received her right to sue letter in February 2022.
• December 15, 2020: Harris filed a complaint of
discrimination with the EEOC.
• January 2021: Gilbert provided Harris a poor
performance review. (Doc. 8-1, p. 161).
• May 2021: Harris received another written counseling for
failing to follow instructions and insubordination. (Doc. 8-
1, p. 193).
• June 2, 2021: Harris received a notice of proposed
removal. (Doc. 8-1, p. 205).
• June 29, 2021: Harris received a notice of removal from
Dr. Olapido Kokoyi, Interim Medical Center Director.
(Doc. 8-1, pp. 205-207).
B. Procedural History
Under the Civil Service Reform Act, Harris had the right to
challenge the VA’s decision to remove her from federal employment. See 5
U.S.C. §§ 1204, 7512, 7701. So Harris appealed her removal to the Merit
System Protection Board (“MSPB”). (Doc. 40-14).
The MSPB administrative judge (“AJ”) conducted a seven-hour
evidentiary hearing on Harris’s claims that she was wrongfully removed
and her affirmative defense that she was retaliated against for engaging
in protected activity. (Doc. 40-15). Eight witnesses testified at the hearing,
and Harris offered a statement on her own behalf. (Doc. 40-16). About a
month after the hearing, the AJ issued a 26-page opinion affirming the
VA’s removal of Harris. (Doc. 40-17).
Harris then appealed the MSPB’s decision to the Federal Circuit,
(doc. 40-18), which generally has jurisdiction over MSPB appeals, see
Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002). The Federal
Circuit, however, lacks jurisdiction over claims that a federal employer
violated Title VII. See Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 422–23
(2017). Because Harris wished to preserve her Title VII claims against the
VA, the Federal Circuit transferred Harris’s appeal to this court, (doc. 40-
20), which has jurisdiction over both Harris’s discrimination and non-
discrimination claims, Kelliher, 313 F.3d at 1274.
While Harris’s MSPB appeal was pending, Harris filed two lawsuits
in this court against Denis McDonough, Secretary of the Department of
Veteran Affairs, the VA, and several other VA officials. See Harris v.
McDonough, No. 2:22-cv-193-CLM and 2:22-cv-194-CLM. Harris’s claims
in those cases mainly focused on her alleged harassment and other
adverse acts that weren’t serious enough personnel actions to be part of
Harris’s MSPB appeal. But Harris also alleged that her removal was in
retaliation for participating in protected activity.
The court consolidated the two new cases and screened Harris’s
complaint under 28 U.S.C. § 1915(e). After screening Harris’s complaint,
the court found that Harris had plausibly alleged a violation of the
participation clause of Title VII’s antiretaliation provision against
Secretary McDonough but dismissed all other claims and all other parties.
The court recently granted Secretary McDonough summary judgment on
Harris’s retaliation claim based on her removal from federal service and
set Harris’s retaliatory harassment claims for trial. (Case No. 2:22-cv-193-
CLM, Doc. xx; Case No. 2:22-cv-194, Doc. xx).
STANDARD OF REVIEW
1. Motion for summary judgment: A federal employee who
challenges the MSPB’s finding that her employer’s actions did not violate
a federal antidiscrimination law has “the right to have the facts subject to
trial de novo by the reviewing court.” See 5 U.S.C. § 7703(c). So the court
applies its typical summary judgment standard to the VA’s motion for
summary judgment on Harris’s Title VII claims.
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).
2. Motion for judgment on the administrative record: The court
applies an arbitrary and capricious standard of review to non-
discrimination-based challenges to the MSPB’s findings. See 5 U.S.C. §
7703(c). Under this standard, the court can set aside the MSPB’s findings
or conclusions only if they are “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” See id.
“In determining whether the outcome in an adjudication before an
administrative agency such as the MSPB is arbitrary and capricious” this
court does “not substitute [its] judgment for that of the agency but rather
only seek[s] to ensure that the decision was reasonable and rational.”
Kelliher, 313 F.3d at 1276 (citing Zukas v. Hinson, 124 F.3d 1407, 1409
(11th Cir. 1997)). The arbitrary and capricious standard allows a court on
appeal to only “consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear
error in judgment.” Id. (quoting N. Buckhead Civic Ass’n v. Skinner, 903
F.2d 1533, 1538 (11th Cir. 1990)).
DISCUSSION
A. Motion for Summary Judgment
The VA moves for summary judgment on Harris’s Title VII claims.
Under the court’s screening order, the only Title VII claims remaining are
Harris’s claims of retaliation for participating in protected activity. (Doc.
5). The VA argues that it is entitled to summary judgment on Harris’s
retaliation claims because (a) Harris cannot show a causal connection
between her removal and her protected activity, and (b) Harris’s
retaliatory hostile-work-environment claims are duplicative of the claims
pending in Harris’s suit against McDonough. (Doc. 41).
1. Removal Retaliation: 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. See Buckley v. Sec’y of Army,
97 F.4th 784, 798 (11th Cir. 2024). As explained in the court’s summary
judgment opinion in Harris’s case against McDonough, Harris’s evidence
does not establish a causal connection between her removal and her
protected activity. (Case No. 2:22-cv-193- CLM, Doc. 55; Case No. 2:22-cv-
194, Doc. 57). The court adopts its analysis from that case here and WILL
GRANT the VA’s motion for summary judgment on the removal
retaliation claim for the same reasons it granted summary judgment to
McDonough on this claim: Harris has not shown that a retaliatory motive
tainted the decision to remove her from federal service.
2. Duplicative Complaints: As the VA correctly argues, Harris
attached a nearly identical set of facts to her complaint here as she did in
her Title VII retaliatory hostile work environment claim in Harris v.
McDonough, No. 2:22-cv-193-CLM and 2:22-cv-194-CLM (Doc. 7, pp. 8-
20). A plaintiff “may not file duplicative complaints in order to expand
their legal rights.” Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 841
(11th Cir. 2017) (citation and quotation marks omitted). Courts apply a
two-part test to determine whether a plaintiff has filed duplicative
complaints: (1) “whether the case involves the same parties and their
privies, and (2) whether separate cases arise from the same transaction
or series of transactions.” Id. at 841–42. “Successive causes of action arise
from the same transaction or series of transactions when the two actions
are based on the same nucleus of operative facts.” Id. (quoting Petro-Hunt,
L.L.C. v. United States, 365 F.3d 385, 395-96 (5th Cir. 2004)).
Harris’s complaint entails the same parties and their privies as the
complaint in Case Nos. 2:22-cv-193-CLM and 2:22-cv-194-CLM. In this
case, Harris sues the Department of Veterans Affairs, while in the earlier
filed cases, she sues Denis McDonough, the Secretary of the Department
of Veterans Affairs. These cases also both arise from the same series of
transactions and are based on the same nucleus of operative facts:
Harris’s allegations that her co-workers and supervisors created a hostile
work environment by placing particles in her workplace, unfairly charging
her with AWOL, and giving her written counselings in retaliation for
Harris participating in protected activity. So although not identical in all
respects, the court agrees with the VA that this complaint is duplicative
of the first. Harris’s claims of retaliatory harassment in Case Nos. 2:22-
cv-193-CLM and 2:22-cv-194-CLM have survived summary judgment and
will be tried before a jury. The court will thus not allow Harris to continue
to prosecute the nearly identical retaliatory harassment claims in this
case or to try these claims before a separate jury.
—
For these reasons, the court WILL GRANT the VA’s motion for
summary judgment on Harris’s retaliatory harassment claims. The court
now moves on to the VA’s motion for judgment on the administrative
record. (Doc. 42).
B. Motion for Judgment on the Administrative Record
The VA moves for judgment on the administrative record on
Harris’s non-discrimination claims, arguing that the MSPB’s decision
upholding Harris’s removal should be affirmed because it was not
arbitrary or capricious and was supported by substantial evidence. (Doc.
42). Again, for the court to rule in Harris’s favor, Harris must show that
the MSPB’s decision was (1) arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. 5 U.S.C. § 7703(c).
1. Waiver: Harris does not reference the MSPB’s decision in her
appeal, much less allege that it was arbitrary or capricious, obtained
without lawful procedures, or unsupported by substantial evidence. (Doc.
44, pp. 9-10). Nor does Harris quarrel with the specifications and charges
that the VA said led to Harris’s removal. Instead, Harris’s complaint
consistently alleges that she experienced harassment and retaliation
because of her EEOC protected activity. While this court construes pro se
pleadings liberally, it cannot “rewrite an otherwise deficient pleading in
order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165,
1168–69 (11th Cir. 2014). Because Harris’s complaint raises only
discrimination claims, the court finds that Harris has waived any non-
discrimination-based claims related to the MSPB’s handling of her appeal.
2. Merits: The court also finds that the MSPB’s decision was
supported by substantial evidence. The MSPB issued a 26-page decision
after it held a seven-hour evidentiary hearing and reviewed the VA’s
records for removing Harris. In Harris’s notice of removal, Dr. Kokoyi
cited six specifications for her removal (i.e., six instances of misconduct).
After hearing testimony from both sides, the MSPB analyzed all six of the
VA’s specifications for terminating Harris. The MSPB affirmed the VA’s
decision to terminate Harris, sustaining the VA’s specifications and
finding that Harris failed to meet her burden of establishing that
retaliation was a motivating factor in the decision to terminate her. (Doc.
40-21, pp. 323-356).
The decision-making process began with the AJ holding a telephone
prehearing conference on Harris’s appeal. During the call, the AJ
discussed that Harris’s MSPB appeal challenged her removal at the VA
based on four charges listed in her notice of removal: (1) inappropriate
conduct, (2) failure to follow supervisory instructions, (3) failure to report
to assigned work area, and (4) absent without leave (AWOL). The AJ
discussed the law and burden of proof that lied with the agency to prove
each of these charges, as well as Harris’s burden with respect to her
affirmative defense of retaliation. The AJ also approved the agency’s
witnesses for its hearing: Debbie Litton, Oladipo Kukoyi, Joyce Gilbert,
Tiffany Cundiff, Shawntena Norman, Lesia Strown, Tangee Sims, and
Porsha Oakes—all employees of the VA that worked with Harris in some
regard. The AJ approved Harris and Ashley Wright, another VA
employee, to testify on Harris’s behalf. (See Doc. 40-21, pp. 310–19).
The AJ then held an evidentiary hearing on February 15, 2022, and
issued the MSPB’s initial decision. In that decision, the AJ found that the
VA proved its charge of inappropriate conduct in the workplace. The first
specification stated that Harris did not complete a training related to
vaccine scheduling and did not give an explanation when prompted.
Harris’s supervisor testified that Harris never responded to her or
provided a reason for not attending a mandatory training session. This
testimony was supported by documents in the record and emails from that
period. For her part, Harris said that she thought the training was
voluntary but admitted to not responding to the training supervisor’s
email or appearing as instructed. So the AJ found the alleged facts proven
for the first specification.
The AJ similarly analyzed the remaining five specifications. In
ruling on these specifications, the AJ weighed the witnesses’ credibility
and found the VA’s witnesses more credible than Harris. Because Harris
admitted to many specifications for her removal, the VA’s witnesses were
credible, and the AJ found the charges against Harris egregious enough
to support the removal of her employment, the AJ affirmed the VA’s
decision to remove Harris from federal employment. (Doc. 40-21, pp. 323-
356).
In short, the MSPB held a lengthy hearing and issued a lengthy
decision on Harris’s appeal. The AJ articulated the testimony as applied
to each specification for Harris’s removal, explained the reasons it
sustained those specifications, and reasonably applied the facts to the
legal standards governing Harris’s claims. So the court finds that the
MSPB’s decision was not arbitrary or capricious, and it was supported by
substantial evidence. And Harris has waived any argument to the
contrary. As a result, the court WILL GRANT the VA’s motion for
judgment on the administrative record. (Doc. 42).
CONCLUSION
For the reasons stated within, the court GRANTS the VA’s motion
for summary judgment on Harris’s discrimination claims (doc. 41) and
GRANTS the VA’s motion for judgment on the administrative record on
her non-discrimination claims. (Doc. 42).
The court will enter a separate order consistent with this
memorandum opinion that closes this case.
DONE and ORDERED on September 3, 2024.
COREY L. MAZE
UNITED STATES DISTRICT JUDGE
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