The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KRISTIN BURNS,
Case No. 2:23-cv-01810-JDW
v.
DENIS MCDONOUGH, Secretary,
Department of Veterans Affairs,
KRISTEN RUELL,
Case No. 2:23-cv-02487-JDW
v.
DENIS MCDONOUGH, Secretary,
Department of Veterans Affairs,
MEMORANDUM
Title VII “does not mandate a happy workplace.” , 435 F.3d 444, 451
(3d Cir. 2006),
, 548 U.S. 53 (2006)). Discrimination and poor management are both bad for the
workplace, but only one of them is illegal. Kristin Burns and Kristen Ruell worked for a
difficult boss who assigned them work above their paygrade, failed to support them, and
berated them in front of their colleagues. But there’s no evidence that their supervisor
treated them this way because of their race or sex. To the contrary, she seems to have
treated many of her subordinates that way. However, after Mss. Burns and Ruell
complained about this treatment—which they perceived to be discriminatory—the U.S.
Department of Veterans Affairs revoked its offer to transfer them to a new position. This
evidence creates a fact question about whether the VA retaliated against them for making
a complaint of discrimination, so I will deny Secretary Denis McDonough’s motion for
summary judgment as to that claim. But absent evidence of intentional discrimination, I
will grant summary judgment as to the claims for disparate treatment and hostile work
environment.
I. BACKGROUND
A. Employment At The VA And Settlement Agreements
Mss. Burns and Ruell are White women who work for the VA. Previously, both
women worked in-person at the Philadelphia Regional Office (“Philadelphia RO”) of the
Veterans Benefits Administration (“VBA”).
In 2012, Ms. Ruell discovered that a computer glitch caused duplicate payments,
overpayments, or both to certain veterans and their dependents. She also discovered that
hard copy claims that came through the mail and data-entry errors caused some veterans
not to receive any benefit payments at all. Ms. Ruell reported these issues and testified
about them before Congress in 2014 and 2015. After reporting these errors, Ms. Ruell
claims that individuals in the Philadelphia RO retaliated against her, so she filed Equal
Employment Opportunity (“EEO”) and Merit System Protections Board (“MSPB”)
complaints with the VA in 2014.
In September 2015, the VA Undersecretary for Benefits, Allison Hickey, arranged
for Ms. Ruell to begin working on a remote detail to a VA sub-unit called the “MyVA Task
Force,” which operated out of VA’s Central Office (“VACO”) in Washington, D.C. As a result,
Ms. Ruell no longer had to work for the Philadelphia RO, where she had been subject to
retaliation.
In May 2016, Ms. Ruell entered into a Settlement Agreement with the VA to resolve
her pending EEO and MSPB claims. Her Settlement Agreement provides that her “detail
to the MyVA team will be extended from September 7, 2016 until the end of the MyVA
charter, December 10, 2016” and that after December 10, 2016, the VA would “not object
to extensions for [Ms. Ruell’s] detail or will not object or be opposed to a new detail
outside of MyVA unless MyVA or VACO declines further extensions/opportunities to
[her].” (ECF No. 35-11 at ¶ 4.c.1)
In 2016, Ms. Burns started a remote detail with the MyVA Task Force.2 Like Ms.
Ruell, Ms. Burns did not report to the Philadelphia RO while working on this detail. In
2017, Ms. Burns filed an MSPB complaint against the VBA for claims of discrimination
1 For ease of reference, I refer to the docket entries as they appear on the
docket. The same documents appear on the docket.
2 In 2017, the MyVA Task Force became the “Modernization Office” under VA’s Office
of Enterprise Integration (“OEI”). In May 2020, Modernization Office became the Enterprise
Program Integration Office (“EPIO”).
under the Uniformed Services and Employment and Reemployment Rights Act
(“USERRA”). Ms. Burns alleged that “she was experiencing hostility (to include non-
selection of jobs in the workplace) after reporting wrongdoing towards Veterans by the
Philadelphia’s HR Chief and Selecting Official.” (ECF No. 35-12 at p. 2 of 68.) In June 2018,
Ms. Burns entered into a Settlement Agreement with the VA to resolve her pending MSPB
complaint. Ms. Burns’s Settlement Agreement includes a nearly identical provision to Ms.
Ruell’s regarding her current detail and any details going forward. ( ECF No. 41 at
Section I.g.D.)
B. Details To MyVA Task Force/EPIO
When VA detailed Mss. Burns and Ruell to MyVA Task Force/EPIO, they were
“smoke-jumpers”—meaning that they worked on a variety of different projects, rather
than one full-time position dedicated to one specific project. As a result, their day-to-day
assignments varied. At the end of each fiscal year, the VA renewed Mss. Burns’s and Ruell’s
details with MyVA Task Force/EPIO, through fiscal year 2020, which ended on September
30, 2020. In August of each year, Mss. Burns and Ruell would ask if there was enough work
for them to remain on the detail another year, and there was until the end of fiscal year
2020. According to Ms. Ruell, if there wasn’t going to be enough work, then they “wanted
to find another opportunity”— another detail—to avoid having to go back to the
Philadelphia RO. (ECF No. 35-10 at 101:8-19.)
In May 2020, Meredith Bedenbaugh-Thomas (“MBT”), a Black woman, joined OEI
to lead an effort to revamp the VA's Electronic Health Record Modernization (“EHRM”)
system. One component of the EHRM project was to create an internal dashboard. A VA
employee named Jason Carley worked on the dashboard project until he moved into
another role in July 2020. After he left, Mss. Burns and Ruell started working to support
the dashboard project in mid-to-late July 2020. However, no one, including MBT, gave
Mss. Burns or Ruell any direction about what they were supposed to be doing to support
the dashboard project or what their role was with respect to that assignment. Neither Ms.
Burns nor Ms. Ruell had the skillset to create an internal dashboard, and they felt as
though they were being set up to fail.
On August 6, 2020, Mss. Burns and Ruell had their first direct meeting with MBT.
During that meeting, MBT wanted to know how Mss. Burns and Ruell ended-up on their
details to OEI. They explained that they were “there due to a settlement agreement due
to prior EEO activity.” (ECF No. 35-9 at 56:5-10.) During that meeting, the three women
discussed the dashboard project, and Mss. Burns and Ruell made MBT aware that they
did not feel they had the necessary training or skillset to work on the dashboard project.
They also contend that the dashboard work was above their paygrade. MBT told them
that she would take over as lead of the dashboard project and they could help her with
it, in addition working on the other projects they had been working on within OEI.
During this conversation, Mss. Burns and Ruell mentioned that their details were
coming to an end, and they asked MBT if OEI was planning to extend their details, as it
had done before. MBT said yes and that she would figure out how to get them extended.
Ms. Ruell left that meeting thinking that their details with OEI would be extended like
before.
After that meeting, Mss. Burns and Ruell continued to struggle with the dashboard
project because MBT “didn’t help like she said she was going to help.” (ECF No. 35-10 at
140:22-23.) Instead, MBT called out Mss. Burns and Ruell in front of their coworkers during
team meetings and berated them for not completing the project. Things came to a head
during a team meeting on August 17, 2020, when MBT asked Mss. Burns and Ruell if they
had “performance standards,” humiliating them in front of the group. ( at 141:8.) In
another call, MBT told Mss. Burns and Ruell that they had to complete a Findings and
Analysis on a short time frame, and she berated them for not knowing how to do it. Again,
Mss. Burns and Ruell felt embarrassed in front of colleagues who were also on the call.
Given the treatment from MBT, neither Ms. Burns nor Mr. Ruell wanted to continue
working for her, but she had agreed to extend them another year. So, the next day—
August 18, 2020—Mss. Burns and Ruell called a different supervisor, Larry Fink, and
explained what happened with MBT. They complained that MBT had subjected them to a
hostile work environment and that she had yelled and berated them in front of colleagues.
They did not tell Mr. Fink that they believed MBT was treating them this way because of
their race or sex. Mr. Fink advised them to talk to Jennifer Jessup in HR about the situation.
He also told them that other employees had complained about MBT.3 During the call,
Mss. Burns and Ruell asked Mr. Fink if he had work for them and if they could come work
for him instead. He told them he was starting a big requirements project and that he could
use them on it. He advised his boss, Mike Frueh, that they were available.
Following their conversation with Mr. Fink, Mss. Burns and Ruell contacted Ms.
Jessup and made the same complaints about MBT. Again, they referenced a hostile work
environment, but they did not allege that MBT was treating them differently because of
their race or sex. When asked why she believed MBT’s treatment was based on race, Ms.
Burns testified that she “felt like it was a racial discrimination, because I’m white and [MBT]
is black.” (ECF No. 35-9 at 64:15-18.) Admittedly, Ms. Burns did not suspect sex
discrimination until after she complained about MBT. ( ECF No. 35-9 at 64:18-22 (“And
then after August 18th, I learned that men had complained about [HWE], … so then I
realized gender was an issue.”); ECF No. 35-9 at 71:10-18 (testifying that she “began to
feel it was gender” discrimination “[s]ometime after August 18th”).)
After speaking with Mr. Fink and Ms. Jessup, Mss. Burns and Ruell spoke with MBT.
They advised her that they did not want to continue working on the dashboard project
and that Mr. Fink had another project for them to work on. MBT “said it was fine, and that
3 There is no evidence about whether other VA employees complained about
discrimination by MBT.
she would … get the paperwork done.” (ECF No. 35-10 at 144:3-5.) Thus, as of August 18,
2020, Mss. Burns and Ruell planned to work with Mr. Fink going forward, and MBT
“agreed.” ( at 144:7.)
After Mss. Burns and Ruell stopped working on the dashboard project, they were
excluded from EPIO team meetings and communications. The record does not indicate
who left them off the invitations and emails, but they contend that this started as soon as
they complained about MBT. For example, the Office of Resolution Management, Diversity
& Inclusion (“ORMDI”) scheduled a mediation session with OEI on September 28, 2020,
but did not invite Mss. Burns or Ruell. However, the meeting facilitator sent them
invitations once Ms. Ruell advised him that they were still part of the EPIO team until their
details ended on September 30, 2020. At the start of the meeting—which was virtual—
Ms. Jessup removed Mss. Burns and Ruell, but the facilitator let them back in. They were
embarrassed but participated in most of the session. Other employees, like Joe Salvatore
(a White male) and Saddia Walton (a Black woman), also complained about MBT, but they
continued to be included in emails and team meetings, like the ORMDI session.
Shortly after August 18, 2020, Ms. Jessup and MBT reached out to OEI’s Chief of
Staff, Shana Love-Holmon, about Mss. Burns and Ruell going to work on the requirements
project with Mr. Fink. Ms. Love-Holmon contacted Mr. Fink and Mr. Frueh about these
details, and “they identified they did not actually have full-time work or they didn't have
a statement of duty or anything that we would be able to detail them to.” (ECF No. 35-8
at 36:11-14.) Mr. Frueh testified that his boss, Dat Tran, told him that he and Ms. Love-
Holmon were aware that Mss. Burns’s and Ruell’s details would be ending at the end of
September 2020, and he asked Mr. Frueh to stand down on offering the requirements
project to them. Mr. Frueh conveyed this information to Mr. Fink, and Mr. Fink advised
Mss. Burns and Ruell that they would not be working on the requirements project and
that he was sorry it didn’t work out. Mr. Frueh did not know why Mr. Tran directed him to
stand down.
On September 1, 2020, Ms. Jessup forwarded an opening to Mss. Burns and Ruell
for a detail on the requirements project and encouraged them to apply. However, it was
only one full-time position, and neither one of them applied for it. Ms. Love-Holmon then
advised them that none of the other special projects they had worked on had
“documented full time employee requirement gaps as identified by VA leadership in those
organizations that support an official identified need in OEI.” (ECF No. 35-20.) Thus,
without another detail opportunity, Mss. Burns and Ruell would have to return to working
for the Philadelphia RO once their OEI details ended as of September 30, 2020.
In September 2020, Ms. Ruell reached out to an acquaintance, Peter Rizzo, to find
another detail opportunity. Mr. Rizzo, a Program Manager in VA’s Construction and
Facilities Management (“CFM”), told Ms. Ruell that CFM was trying to find employees to
work on a project and that he thought Ms. Ruell would be perfect for it. Mr. Rizzo put
Mss. Burns and Ruell in touch with Alan Trow, a supervisor and Director of Quality
Assurance Service at CFM, so that they could discuss a potential detail. Mr. Trow needed
workers and drafted memoranda of understanding for both Mss. Burns and Ruell to work
for him at CFM for a year once their OEI details ended. He also completed paperwork and
sent it to the Philadelphia RO. However, Mr. Trow never spoke to CFM HR or his own
supervisor about the details. According to Mr. Rizzo, “CFM simply has no formal policies
or procedures in place governing employee details” and “it has been CFM HR’s practice
to make up the rules as they go[.]” (ECF No. 36-5.)
On October 6, 2020, Michael Brown, Director of HR at CFM, received a call from
Lucia Alencherry from the VA’s Office of General Counsel. During that call, Ms. Alencherry
inquired about the proposed details for Mss. Burns and Ruell and asked if they had been
created “legally.” (ECF No. 35-25 at 31:6-8.) Mr. Brown had no idea about the details, but
upon investigation, he learned about the MOUs from Mr. Trow. He advised Mr. Trow that
he could not offer the details to Mss. Burns and Ruell because he did not follow the proper
procedures with HR. Mr. Brown suggested that Mr. Trow reach out to his HR liaison,
Kimberly Woods, about what needed to be done to put the details in place. Ms. Woods
advised that “official documentation/info” would be between CFM and the Philadelphia
RO and that there “really isn’t anything on [HR’s] end that has to be done.” (ECF No. 36-
15.) Mr. Brown disagreed. According to him, there must be vacancy in CFM to create a
detail, and then an HR specialist reviews the applicant’s resume and verifies that she has
the qualifications to satisfy the job duties. As a result, he advised Mr. Trow to rescind the
offers he made to Mss. Burns and Ruell. With no available detail, Mss. Burns and Ruell had
to report to the Philadelphia RO. They worked remotely until April 2021, at which time
they were placed in new remote, permanent positions with the Office of Outreach
Transition and Economic Development (“OTED”).
C. Procedural History
On September 15, 2020, Mss. Burns and Ruell filed complaints with ORMDI. They
also filed EEO charges of discrimination on September 24, 2020. On October 2, 2020, while
their complaints were pending, Ms. Burns’s Counsel wrote to Ms. Alencherry and argued
that the VA’s actions to deny Mss. Burns’s and Ruell’s choice of details violated their
respective Settlement Agreements and was retaliatory.
After completing the administrative process, Mss. Burns and Ruell filed suit in this
Court. Represented by Counsel, Ms. Burns filed suit on May 11, 2023. In her operative
Second Amended Complaint, she asserts claims against the VA, via Secretary McDonough,
for violations of Title VII of the Civil Rights Act of 1964, including discrimination based on
race, color, and gender and retaliation.
On June 27, 2023, Ms. Ruell filed a Complaint, alleging the same claims, as
well as a claim of hostile work environment. I dismissed that claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) but permitted Ms. Ruell to proceed with a claim of a
retaliatory hostile work environment. I also granted her leave to try and replead her hostile
work environment claim via an amendment, and Ms. Ruell filed her Second Amended
Complaint on October 31, 2023, asserting such a claim. Secretary McDonough did not
move to dismiss it.
Given the overlapping facts and claims at issue in this case, I directed the Parties
to coordinate their discovery efforts. Since then, Secretary McDonough moved for
summary judgment on all of Mss. Burns’s and Ruell’s claims, and the motions are ripe for
disposition.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to enter,
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.” Fed. R. Civ. P.
56(a). In ruling on a summary judgment motion, a court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” , 550 U.S. 372, 378 (2007) (quotation omitted). “The
non-moving party may not merely deny the allegations in the moving party’s pleadings;
instead, [s]he must show where in the record there exists a genuine dispute over a material
fact.” , 480 F.3d 252, 256 (3d Cir. 2007) (citation omitted);
Fed. R. Civ. P. 56(c)(1)(A)-(B). If she fails to make this showing, then the court may
“consider the fact undisputed for purposes of the motion” and/or “grant summary
judgment if the motion and supporting materials — including the facts considered
undisputed — show that the movant is entitled to it[.]” Fed. R. Civ. P. 56(e)(2), (3).
III. ANALYSIS
A. Disparate Treatment
Mss. Burns’ and Ruell’s claims of discrimination based on their race and sex are
subject to the familiar burden-shifting framework. Under that
framework, they must first establish a case of discrimination by showing that
(1) they are members of a protected class; (2) they are qualified for the positions they
sought to attain or retain; (3) they suffered an adverse employment action; and (4) “the
action occurred under circumstances that could give rise to an inference of intentional
discrimination.” , 100 F.4th 458, 473 (3d Cir. 2024) (quotation omitted).
“To establish a case at summary judgment, the evidence must be sufficient to
convince a reasonable factfinder to find all of the elements of [the] case.”
, 707 F.3d 417, 426 (3d Cir. 2013) (same). Thus, “[i]f a plaintiff fails to
raise a genuine dispute of material fact as to of the elements of the case,
she has not met her initial burden, and summary judgment is properly granted for the
defendant.” (emphasis added).
Mss. Burns and Ruell cannot prevail on their disparate treatment claims because
they cannot establish a case of discrimination without evidence that the
alleged adverse actions—the non-renewal of their OEI details and the withdrawal of an
offer to work in CFM—occurred under circumstances that could give rise to an inference
of intentional discrimination. There is no direct evidence in the record to support such an
inference, such as statements by MBT demonstrating her racial or sex-based animus. To
be clear, Ms. Burns’s personal belief that MBT discriminated against her based on race
because she is white and MBT is black is not evidence that creates an inference of
discrimination. , 434 F. Supp. 3d 284, 300 (E.D. Pa. 2020);
, No. 17-cv-2516, 2017 WL 6606888, at *8 (E.D. Pa. Dec. 27, 2017).
The absence of direct evidence doesn’t have to be the end of the story, though.
Plaintiffs alleging disparate treatment discrimination can satisfy the last element of the
case with evidence that their employer treated similarly-situated persons
outside the protected class— comparators—more favorably. , 100 F.4th at 474.
To create an inference of intentional discrimination, “comparator employees need not be
identical but must be similarly situated in ‘all material respects.’” (quotation omitted).
In conducting that inquiry, a judge looks to “[f]actors that are relevant include whether
the employees dealt with the same supervisor, were subject to the same standards, and
shared similar job responsibilities.” at 474 (citations omitted).
Mss. Burns and Ruell haven’t told me anything about the two comparators on
whom they rely, let alone explain how they are similarly situated. For their sex
discrimination claims, Mss. Burns and Ruell point to Joseph Salvatore (male) and contend
that he also complained about MBT but was not removed from the EPIO team. Instead,
they allege that he moved to a Communications role. For racial discrimination, Mss. Burns
and Ruell identify Saddia Walton (Black) and contend that she also remained on the EPIO
team after complaining about MBT. But these barebone assertions are insufficient to
demonstrate that either individual is a valid comparator. I don’t know anything about Mr.
Salvatore or Ms. Walton’s job responsibilities, their immediate supervisors, which GS levels
they occupied, their efforts to secure alternate details (if any), or the nature of their
complaints about MBT. Without this evidence, no reasonable jury could conclude that
these two individuals are similarly situated to Mss. Burns and Ruell in all material respects.
Mss. Burns and Ruell also contend that they “were asked to work a job for which they
weren’t qualified for and then ridiculed for not knowing how to perform this job” while
“[m]ale employees and Black employees were not forced to work above their pay grade.”
(ECF No. 37-1 at 14.) But there is no evidence in the record that speaks to this issue, and
Mss. Burns and Ruell do not identify any other potential comparators to support this
assertion.
The limited evidence about Ms. Walton and Mr. Salvatore suggests they are not
similarly situated. For example, there is a passing reference in the record that Ms. Walton
worked in HR as Jennifer Jessup’s assistant, and it appears that Mr. Salvatore was Ms.
Ruell’s supervisor at some point in time. ( ECF No. 36-3 at 000068, 000071.) These
different positions doom Mss. Burns and Ruell’s proffered comparator evidence because
“[a]n employee who holds a different job title or works in a different department is not
similarly situated.” , 100 F.4th at 474. Because these two individuals are not valid
comparators, Mss. Burns and Ruell cannot meet their burden of establishing an inference
of intentional discrimination based on race or sex, an essential element of a
case. Thus, Secretary McDonough is entitled to summary judgment on this claim.
B. Retaliation
1. case
Courts review retaliation claims using the same three-step burden shifting
framework under . Thus, to prevail on these claims, Plaintiffs must first
establish a case by showing: (1) they engaged in protected employee activity;
“(2) adverse action by the employer either after or contemporaneous with the employee's
protected activity; and (3) a causal connection between [their] protected activity and the
employer's adverse action.” , 49 F.4th 340, 346 (3d Cir.
2022) (quotation omitted). Mss. Burns and Ruell have come forward with enough evidence
to satisfy these elements.
As an initial matter, however, I agree with Secretary McDonough that Mss. Burns and
Ruell did not engage in protected activity until they filed with the EEO in September 2020.
In the Title VII context, “protected ‘opposition’ activity” refers to formal and informal
“protests of discriminatory employment practices[.]” ,
776 F.3d 181, 193 (3d Cir. 2015) (quotation omitted). When Mss. Burns and Ruell advised
MBT during their call on August 6, 2020, that they had filed EEO complaints against the VA
years earlier, they were not engaging in protected activity because they were not
protesting, opposing, or complaining about current (or even past) discrimination. Instead,
they simply advised MBT about their prior filings when she asked about how they ended
up detailed to OEI.
In addition, Mss. Burns and Ruell did not engage in protected activity on August 18,
2020, when they complained to Mr. Fink and Ms. Jessup about working for MBT because
they did not attribute MBT’s behavior to discrimination based on race or sex. Title VII is
“not intended to establish general standards for conduct of employers in dealing with
employees.” , 776 F.3d at 195; , 68 F.3d 694,
701-02 (3d Cir. 1995). For a complaint to constitute protected activity under Title VII,
plaintiffs “must allege that the opposition was to discrimination based on a protected
category, such as age or race.” , 776 F.3d at 193 (citations omitted). But Mss. Burns
and Ruell both admit that neither one of them mentioned race or sex discrimination when
making their complaints about MBT to Mr. Fink and Ms. Jessup.
While they used the term “hostile work environment,” that phrase—on its own—is
not magic language that cloaks them with the protection of Title VII if it contains “no
reference whatsoever to race or any other protected characteristic.”
, No. 21-cv-66, 2022 WL 2911804, at *7 (M.D. Tenn. July 22, 2022). Instead, I must
“look to the message … conveyed [by [their] conduct] rather than the means of
conveyance.” , 776 F.3d at 193 (quotation omitted). Mss. Burns and Ruell
complained to Mr. Fink and Ms. Jessup that MBT had: yelled at them in front of coworkers
during a team meeting; berated them about a Findings and Analysis; and assigned them
projects that were above their paygrade, which they did not know how to complete.
Nothing about the context of these complaints suggests that Mss. Burns or Ruell were
complaining about race or sex discrimination when they spoke with Mr. Fink and Ms. Jessup
on August 18, 2020. The mere fact that MBT is a different race than Mss. Burns and Ruell is
not sufficient. And Mss. Burns’s4 and Ruell’s subjective beliefs that they were complaining
about race or sex discrimination does not turn those complaints into protected conduct if
a reasonable listener wouldn’t have understood them that way. , 776 F.3d at
194.
However, there is no dispute that Mss. Burns and Ruell engaged in protected activity
when they filed an EEO charge of discrimination on September 24, 2020. They also engaged
in protected activity when they filed ORMDI complaints on September 15, 2020. They have
satisfied the first element of their case.
As for the second prong of their claim, a reasonable employee could have found that
being sent back to work at the Philadelphia RO was materially adverse, given the particular
facts of this case. Indeed, Mss. Burns and Ms. Ruell had filed previous complaints against
that office and had a settlement agreement in place that was designed to keep them from
having to work there, to the extent feasible. A reasonable jury could conclude that sending
4 Ms. Burns did not believe she was complaining about sex discrimination when she
spoke with Mr. Fink and Ms. Jessup. During her deposition, she testified that she did not
begin to suspect sex discrimination until she and Ms. Ruell complained on August
18, 2020. ( ECF No. 35-9 at 64:18-22, 71:10-18.)
an employee back to a working environment about which they had filed whistleblower and
internal complaints “could well dissuade a reasonable worker from making or supporting a
charge of discrimination.” , 548 U.S. 53, 57 (2006).
It does not matter that their pay and benefits remained the same. Indeed, “the
significance of any given act of retaliation will often depend upon the particular
circumstances[,]” at 69, and “‘[c]ontext matters’ such that ‘an act that would be immaterial
in some situations is material in others.’” , 776 F.3d at 196 (quotation omitted). In this
case, on these facts, it matters that Mss. Burns and Ruell had prior negative experiences in
the Philadelphia RO, complained about that office, and then settled their complaints in a way
that was designed to keep them from having to report to that office in the future. In the face
of that history, sending them back to work for that office could dissuade a reasonable
employee from making a complaint, even if they knew that their pay and benefits would
remain the same.
Finally, Mss. Burns and Ruell satisfy the causation prong at this stage of the
proceedings. They filed charges of discrimination on September 15, 2020 and September 24,
2020. Less than a month later, Mr. Trow rescinded his offer to have them work in CFM,
meaning they would have to report to the Philadelphia RO.5 “This timing is well within the
three-month range to be ’unusually suggestive of retaliatory motive.’” , 100 F.4th at 477
5 The VA’s decision not to extend Mss. Burns’s and Ruell’s OEI details cannot satisfy
the adverse action element because the VA made that decision at some point in August
of 2020— Mss. Burns and Ruell filed their ORMDI and EEO complaints.
(quotation omitted). Thus, they have satisfied the causation prong for purposes of summary
judgment.
2. Legitimate nondiscriminatory reason
Having established a case, the burden shifts to Secretary McDonough to
“produc[e] evidence that ‘present[s] a legitimate, non-retaliatory reason for having taken
the adverse action.’” , 49 F.4th at 346 (quotation omitted). If he meets this burden,
then the burden “shifts ‘back to the plaintiff[s] to demonstrate that the employer's
proffered explanation was false, and that retaliation was the real reason for the adverse
employment action.’” (same). Secretary McDonough has come forward with a legitimate,
non-retaliatory reason for having rescinded Mss. Burns’s and Ruell’s offers to work at CFM
and sending them back to the Philadelphia RO: there were no open full-time positions for
them within CFM, and Mr. Trow did not follow HR’s procedures for creating the details. The
burden therefore shifts back to Mss. Burns and Ruell.
3. Pretext
To overcome summary judgment at the third step, Mss. Burns and Ruell “must point
to some evidence, direct or circumstantial, from which a factfinder could reasonably either
(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer's action.” , 49 F.4th at 347 (quotation omitted). They can meet this burden
by “‘painting the [employer's articulated reasons] as weak, implausible, contradictory, or
incoherent’ [or] ‘by showing that the employer in the past had subjected [them] to unlawful
discriminatory treatment, [or] that the employer treated other, similarly situated persons
not of [their] protected class more favorably.’” (same). However, they cannot prevail by
“show[ing] that the employer's decision was wrong or mistaken, since the factual dispute
at issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.” , 32 F.3d 759, 765 (3d
Cir. 1994).
Mss. Burns and Ruell have come forward with enough evidence to disbelieve the
VA’s reasons for refusing to place them in details in CFM, and they have also come forward
with enough evidence that could lead a reasonable jury to conclude that retaliation
motivated that decision. After receiving an email from Mr. Trow regarding his proposal to
detail Mss. Burns and Ruell to work for him in CFM, Mr. Trow’s HR liaison—Ms. Woods—
advised him that “[t]he official documentation/info is between you and their current office.
There really isn’t anything on [HR’s] end that has to be done.” (ECF No. 36-15.) Ms. Woods’s
reply that HR did not need to do anything further undermines the VA’s explanation that
Mr. Trow failed to follow HR procedures in creating the details for Mss. Burns and Ruell.
Similarly, Mr. Rizzo’s email to Ms. Ruell that “CFM simply has no formal policies or
procedures in place governing employee details” and his observation that “it has been CFM
HR’s practice to make up the rules as they go,” also casts doubt on the VA’s explanation.
(ECF No. 36-5.)
Mss. Burns and Ruell have also come forward with evidence that could lead a
reasonable jury to conclude that retaliation was the real reason behind the VA’s decision
to rescind the CFM offers. In addition to the unusually suggestive temporal proximity
between Mss. Burns and Ruell’s protected activity and rescission of Mr. Trow’s offer, there
is additional evidence that calls the VA’s motives into question.
On October 2, 2020, Ms. Burns’s Counsel wrote a letter on behalf of Mss. Burns and
Ruell to Ms. Alencherry in the VA’s Office of General Counsel, arguing that the VA’s “actions
to deny Ruell and Burns their choice of detail is retaliatory.” (ECF No. 36-6.) Four days later,
Ms. Alencherry called Mr. Brown and asked about the new details for Mss. Burns and Ruell.
Mr. Brown was unaware of any details before receiving Ms. Alencherry’s call. However, once
Mr. Brown confirmed that new details were in place, Ms. Alencherry asked him if the details
were ”put in … legally and the way they should have been as a detail.” (ECF No. 35-25 at
31:6-8.) Following that call, Mr. Brown determined that Mr. Trow had not followed the
proper procedures to create the details and that they were invalid as a result.
The incredibly short time-frame—the span of four days—between Counsel’s letter
to Ms. Alencherry and her call to Mr. Brown (who had been unaware of the details) and his
subsequent investigation into the CFM details is unduly suggestive of a retaliatory motive.
Given all of this, Mss. Burns and Ruell have come forward with sufficient evidence to create
a genuine dispute of fact as to whether Secretary McDonough’s reason for denying them
CFM details was pretext for unlawful retaliation. Thus, the VA is not entitled to summary
judgment on this claim.
C. Ms. Ruell’s Claims
When I dismissed Ms. Ruell’s hostile work environment claim, I granted her to leave
to file an amended complaint if she intended to revive that claim. Ms. Ruell took me up
on that offer and filed a Second Amended Complaint, reasserting that claim. Secretary
McDonough did not seek to dismiss the reasserted claim, so it remains live in the case.
Though Secretary McDonough moved for summary judgment on this claim as if it were a
retaliatory hostile work environment claim—which is somewhat different—Ms. Ruell
addressed the merits of a pure hostile work environment claim, so I will address both.
1. Hostile work environment
To establish a hostile work environment claim, Ms. Ruell must prove (1) she
suffered intentional discrimination because of her race or sex; (2) the discrimination was
severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination
would detrimentally affect a reasonable person in like circumstances; and (5) there was
liability. , 67 F.4th 565, 570 (3d Cir.
2023). At a minimum, Ms. Ruell’s hostile work environment claim fails for the same reason
her disparate treatment claim fails: she has not come forward with any evidence that she
suffered intentional discrimination because of her race or sex. “Under Title VII, even if
there is severe or pervasive behavior, a plaintiff cannot succeed if the reason for the
harassment is not based upon race [or sex].” , No. 17-
cv-2653, 2018 WL 4489646, at *7 (E.D. Pa. Sept. 19, 2018). As I’ve already explained, there’s
no evidence, other than Ms. Ruell’s subjective belief, that she was treated the way she was
due to her race or gender. Thus, Secretary McDonough is entitled to summary judgment
on Ms. Ruell’s hostile work environment claim.
2. Retaliatory Hostile Work Environment
The elements of a retaliatory hostile work environment are the same as a claim for
retaliation, except that the adverse action is the hostile work environment. To the extent
Ms. Ruell intended to pursue a retaliatory hostile work environment, she cannot overcome
summary judgment on this claim either because she has not come forward with any
evidence that she was subjected to a hostile work environment after she engaged in
protected activity.
Ms. Ruell did not engage in protected activity when she advised MBT that she had
filed a prior EEO complaint against the VA nor when she complained about a hostile work
environment to Mr. Fink and Ms. Jessup. Thus, to prevail on her claim of a retaliatory
hostile work environment, Ms. Ruell must demonstrate that the VA subjected her to a
hostile work environment after or contemporaneous with when she filed her charges of
discrimination in September 2020. But Ms. Ruell cannot make the requisite showing.
, much of the evidence that Ms. Ruell relies on to support her claim of a hostile
work environment pre-dates her protected activity. To the extent MBT mistreated her by
berating and belittling her and assigning her work above her paygrade, that all happened
she filed her EEO complaint. In fact, that alleged conduct prompted Ms. Ruell to
file her complaint. The same is true of her removal from team meetings and emails. Again,
Ms. Ruell claims that she was effectively removed from the team immediately after she
complained about MBT on August 18, 2020—weeks before she filed with the EEO.
, the alleged conduct that occurred after Ms. Ruell engaged in protected
activity does not rise to the level of a hostile work environment. “To determine whether
an environment is hostile, a court must consider the totality of the circumstances,
including ‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’” , 67 F.4th at 570 (quotation
omitted). The fact that OEI did not invite Ms. Ruell to the virtual facilitation session on
September 28, 2020, was an isolated incident, and no reasonable jury would conclude that
failing to invite Ms. Ruell to the meeting or briefly removing her from the start of the
meeting created a hostile work environment for her.
, 536 U.S. 101, 115 (2002). That is because Ms. Ruell ultimately participated in
“most of” the meeting after advising the facilitator that she was still on the OEI team. (ECF
No. 35-10 at 224:3.) This one-off, “petty slight” is a far cry from the type of conduct
necessary to create a hostile work environment. , 776 F.3d at 196 (quotation
omitted). And because Ms. Ruell’s detail was ending two days later, it could not have
created a hostile work environment to exclude her from a team meeting that would have
no relevance to her going forward.
, while a jury could conclude that sending Ms. Ruell back to the Philadelphia
RO was materially adverse for purposes of her retaliation claim, there is no evidence in
the record Ms. Ruell suffered from abusive or discriminatory conduct once she resumed
working for the Philadelphia RO. Simply put, Ms. Ruell has not come forward with any
evidence about the conditions of her employment or what her work environment was like
after her detail in OEI ended. As such, she cannot prevail on a claim of a retaliatory hostile
work environment, so Secretary McDonough is entitled to summary judgment on this
claim as well.
IV. CONCLUSION
No doubt, Mss. Burns and Ruell found it difficult to work for their boss at the VA,
and she did not always treat them (or others) with professional courtesy or respect. But
that isn’t illegal, and Mss. Burns and Ruell haven’t come forward with any evidence that
she treated them poorly because of their race or sex. There also isn’t any evidence that
Ms. Ruell experienced a hostile work environment because of these protected
characteristics. However, there is enough evidence to create a question as to whether the
VA violated Title VII when it revoked offers to Mss. Burns and Ruell to go on details after
they complained about perceived discrimination. Thus, I will deny summary judgment as
to their retaliation claims. An appropriate Order follows.
BY THE COURT:
JOSHUA D. WOLSON, J.
September 16, 2024