The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANH L. DU,
Plaintiff,
v. Case No: 8:22-cv-1526-CEH-TGW
DEPARTMENT OF VETERAN
AFFAIRS,
Defendant.
ORDER
This employment action comes before the Court on Defendant Department of
Veteran Affairs’ Motion for Summary Judgment (Doc. 40). Plaintiff Anh Du filed a
response in opposition to the motion (Doc. 53),1 to which Defendant replied (Doc.
49). Oral argument on Defendant’s motion was held on February 25, 2025 (Doc. 71).
At the hearing, the Court ordered the parties to submit supplemental briefing (Doc.
72). Defendant filed supplemental briefing in support of its motion (Doc. 74), and
Plaintiff filed supplemental briefing in support of her opposition (Doc. 80).
Upon review and consideration, and being fully advised in the premises, the
Court will grant the motion for summary judgment.
1 Plaintiff filed Doc. 53 as a corrected response to fix clerical issues in her original response
(Doc. 46). See Doc. 51 (Plaintiff’s Unopposed Motion for Leave to Correct Clerical Errors
and Reduce Response to Motion for Summary Judgment).
I. Facts2
Plaintiff Anh Du is an Asian American female who works at the Department
of Veteran Affairs. Doc. 14-1 ¶ 3. Du works at the James A. Haley Veterans’
Hospital (“Haley”) in Tampa, FL. Id. Haley is a Veterans Administration hospital.
Du has worked at Haley since 2009. Id. She is currently a GS-11, Step 9, certified
orthotist/prosthetist working in the Prosthetics Department. Id. Defendant is the
Department of Veteran Affairs (“VA”).
In December 2011, Du filed an EEO complaint against Haley (“2011 EEO
Complaint”). Doc. 53-3 at 2. On November 30, 2012, in a final agency decision, the
EEOC found that Du was subjected to sexual and racial harassment in violation of
Title VII of the Civil Rights Act of 1964. Id. at 19, 26. Haley’s Chief of Prosthetics,
Janet Bullard, received a five-day suspension without pay as a result of her conduct
in that case. Doc. 53-2 at 74. Bullard has been chief of prosthetics since 2009. Doc.
40-2 at 8. The events underlying the 2011 EEO Complaint are not at issue in this
case.
a. 2018 EEO Complaint
On February 8, 2018, Du had a verbal disagreement with Brittany Robinson, a
prosthetics student completing a residency at Haley. Stipulation of Agreed Material
2 The Court has determined the facts, which are undisputed unless otherwise noted, based
on the parties’ submissions, including declarations and exhibits, as well as the parties’
Stipulation of Agreed Material Facts (Doc. 63). For purposes of summary judgment, the
Court presents the facts in the light most favorable to the non-moving party as required by
Fed. R. Civ. P. 56.
Facts, Doc. 63 ¶¶ 2-3. Management initiated a fact-finding on the incident. Id. ¶ 3. The
incident concerned Robinson allegedly stealing Du’s patients. Doc. 40-1 at 15-27.
Eight witnesses provided statements on the incident. Id. Prior to the incident, Du
raised concerns she had with Robinson seeing Du’s patients without her permission.
Doc. 53-2 at 137. Another verbal altercation between Du and Robinson took place on
February 22. Stipulation of Agreed Material Facts ¶ 4.
On May 15, 2018, a doctor at Haley was examining a patient when the door
behind her opened. Doc. 40-1 at 42. That doctor heard Du yelling “you can’t come in
this is my patient[,]” to someone in the hall. Id. The doctor saw Du walk up to a patient
and say “you don’t want her in here do you?” Id. Du walked to the door and shouted
to Robinson and the prosthetist “he doesn’t want you in here.” Id. The doctor was
concerned about Du’s “behavior changes, outbursts[,] and general
unprofessionalism[,]” but reported that the resident “remained calm and
professional.” The doctor expressed concerns that residents were working in “a toxic
environment.” Id.
On May 17, 2018, Du was detailed to the Research Department pending a fact-
finding about the alleged confrontation between Du and Robinson on May 15.
Stipulation of Agreed Material Facts ¶ 5. On May 23, Bullard emailed the Prosthetics
and Orthotics Department to notify them that Du was on detail and not to send
prosthetics items to her because the Research Department had its own budget for
prosthetic items. Doc. 40-1 at 46. In the email, Bullard says, “Please do not get
involved. We are working with HR, Union, and the EEO office to resolve this matter.
In time we are hopeful that Ms. Du can return to Prosthetics in full capacity.” Id.
On May 30, 2018, Haley’s Chief of Orthotics, Joseph Shamp, issued Du a
written counseling because a patient informed him that Du had asked the patient to
write a letter of support for Du regarding her detail. Id. at 78. Shamp advised, “This is
inappropriate, and must stop immediately.” Id. Shamp directed Du not to provide any
prosthetic care to patients during her detail and not to contact any prosthetic patients.
Id. Shamp told Du that “at this time, you are functioning as an Orthotist.” Stipulation
of Agreed Material Facts ¶ 8.
On June 29, 2018, Du was issued a proposed reprimand based on her February
8, 2018, interaction with Robinson. Doc. 40-1 at 82-83. On July 20, Du was given a
written reprimand with the charge of unprofessional conduct based on the February 8
incident with Robinson. Stipulation of Agreed Material Facts ¶ 11; Doc. 53-6 at 113.
On July 16, 2018, Du emailed Bullard and Shamp asking to attend a July 26,
in-service training event at Haley led by Michael Kartel. Docs. 40-1 at 98; 53-5 at 134.
Kartel is a white male and a certified GS-11 orthotist/prosthetist. The training was to
enhance a specific patient’s activities of daily living. Doc. 40-1 at 98. Shamp first
denied Du’s request saying the event was for practitioners actively working with that
patient and did not provide any continuing education units. Id. at 92, 97. Du responded
with a list of those who had been invited and said, “It seems to me that this is a reprisal
to the ongoing investigation which has not come to a conclusion.” Id. at 96. Shamp
responded that Du could attend the July 26 program “as long as [she] arrive[s] just
prior to the meeting and report[s] to [her] detailed work station immediately after the
meeting ended.” Id. Shamp also says, “I see no problem with you attending this
meeting.” Du did not show up for the program. Id. at 63.
In a memorandum from August 28, 2018, Du’s detail was extended. Stipulation
of Agreed Material Facts ¶ 13. Du’s detail was extended because an investigation
found that “prosthetic devices . . . were issued by [Du] to patients without consults or
prior authorization from the Amputee Clinic staff[.]” Doc. 40-1 at 125. Bullard,
Shamp, and Assistant Director Suzanne Tate wrote letters of concern supporting this
finding. Id. at 137-40. Du was instructed not to contact amputee patients. Id.
The August 28, 2018, memorandum also changed Du’s tour of duty. Doc. 40-1
at 66. On Mondays, she would report to Research from 8:00 am to 4:30 pm, on
Wednesdays to the Lakeland clinic from 8:00 am to 4:30 pm, and on Thursdays and
Fridays to the Primary Care Annex at Hidden River from 7:30 am to 4:00 pm.
Stipulation of Agreed Material Facts ¶ 13. Du’s normal tour of duty was 8:00 am to
4:30 pm. Doc. 40-2 at 76. Bullard claims that the tour of duty change was a typo on
the paper and that there was never a change. Id. Shamp also claims that the tour of
duty was not changed. Doc. 40-1 at 66. Du claims her tour of duty was changed for a
week until she contacted her attorney and discussed the issue with Shamp. Doc. 40-4
at 72-73.
Du alleges that on September 17, 2018, Shamp denied her request to attend an
in-service training on a vacuum prosthetic casting system. Doc. 53-5 at 135. Shamp
denies excluding Du from the training. Doc. 40-1 at 70.
On September 26, 2018, Shamp informed Du that she could no longer work at
the Lakeland Orthotics Clinic. Doc. 53-6 at 117. Shamp told her that she could no
longer work the Wednesday clinic because she was taking too many Wednesdays off.
Id. Shamp informed her that the absences were disruptive to patient care. Id.
Du made her initial contact with EEO on September 5, 2018. Stipulation of
Agreed Material Facts ¶ 14. On October 19, 2018, she filed a formal complaint (“2018
EEO Complaint”) alleging discrimination and a hostile work environment based on
race, sex, and reprisal for the events above. Id. Shamp and Bullard first became aware
of Du’s 2018 EEO Complaint on January 8, 2019. Doc. 40-1 at 55; Doc. 53-6 at 172.
Du filed amendments to the 2018 EEO Complaint on January 9 and January 22, 2019.
Doc. 53-6 at 79, 88.
b. 2019 EEO Complaint
Du requested leave from June 21 to June 28, 2019, to be a part of the Haley
Research Department for the Warrior Games.3 Doc. 40-1 at 146. Du emailed Bullard
on April 23 and May 1. Doc. 53-7 at 145. Bullard responded on May 2 that she needed
guidance from Tate on how to code timecards for work hours in the Warrior Games.
Id. at 144. Bullard informed Du that until guidance is provided her request would
remain pending. Id. On May 14, Tate emailed Du on behalf of Bullard, who was
unable to respond due to a death in her family, and stated Du could attend the Warrior
3 The Warrior Games are a multi-sport event created by the Department of Defense for
wounded, ill, and injured service members and veterans. Doc. 53-7 at 36.
Games for the three days that she was detailed for research. Id. at 143. Tate responded
that Du may go three days a week for the research program but “needed to come back
to [her] Prosthetics Service responsibilities for the other 2 days.” Doc. 40-1 at 142.
On the morning of June 24, 2019, at the Warrior Games, Du approached the
Orthotic and Prosthetics School (“O&P School”) booth and asked Nicholas Mahairas,
a student resident at Haley, for a tape measure. Id. at 154. Arlene Gillis had organized
the clinical staffing for the O&P School which was treating veterans at the Warrior
Games. Id. at 150-51. Gillis asked Du what she was doing and to return the tape
measure. Id. at 154. Gillis told Du to send patients needing help to the O&P School
booth. Id. According to Bullard, the O&P School was tasked with caring for prosthetics
patients at the event and Du was not authorized to support the servicing of prosthetics
patients. Id. at 148. Bullard indicates that Du was assigned to the research table, which
was responsible for promoting the research program and recruiting new candidates.
Id.
Later that day, Du called Mahairas asking him to bring her a valve for an
amputee. Id. Du sent Mahairas a picture of what to bring and told him to come by
himself. Id. Maharias brought the valve and put it in the amputee. Docs. 40-1 at 154;
40-4 at 112-13. Du texted Maharias afterward stating, “Thank you for your help. Been
fixing up these guys, saving lives baby!!!” Doc. 40-1 at 157. Du states that by “saving
lives” she meant providing water to the Warrior Games’ participants and not seeing
them clinically. Doc. 40-4 at 113. Gillis and Maharias gave Haley management written
accounts, by email, of what occurred with Du at the Warrior Games. Doc. 40-1 at 150,
154-55.
Tate received reports about Du working outside her scope of work at the
Warrior Games and told Kartel to order Du back to duty. Id. at 164; Doc. 40-5 at 41.
Du told Kartel that she was not going to do anything until she talked to Tate. Doc. 40-
5 at 41. Tate then called Du and told her to return to the hospital. Doc. 40-1 at 173.
On July 1, 2019, Du submitted a doctor’s note dated June 26 stating, “Anh Du
was seen today at the MacDill Clinic and should be… Excused from work/school for
medical reasons for 3 days.” Stipulation of Agreed Material Facts ¶ 20. It stated,
“[p]rocedure done to leg.” Id. Bullard did not accept the note because it did not have
a physician’s stamp and describe the extent to which Du was incapacitated. Id. ¶ 21.
Bullard observed that the doctor’s note was dated for June 26-28, which is when Du
was reported to have attended the Warrior Games. Doc. 40-1 at 180. Bullard noted
that on June 24, Tate had instructed Du to return to work in Prosthetics. Id. Du did so
on June 25, then called out of work for June 26-28. Id. In a July 3 email, Bullard stated
that Du would be marked AWOL for June 26-28. Id. Du responded stating she was
absent because her husband had a procedure on June 26 and that requesting further
documentation would violate his privacy and HIPAA. Id. at 179. Du was observed
and photographed at the Warrior Games from June 26-28. Id. at 189-93.
On July 3, 2019, Kartel, who was Haley’s acting chief of orthotics at the time,
overheard Du ask a vendor to bring a scanning device to the hospital. Id. at 200. Kartel
intervened, telling Du that she could order the device. Id. Du began arguing, requesting
confirmation in writing and stating that Shamp, the former chief of orthotics, had told
her she could not order it. Id. After telling Du multiple times that she could order the
machine, Kartel said, “Am I not speaking English? I don’t know how else to say we
can get it.” Id. Kartel claimed he did not make that statement directly to Du or in a
hostile manner, rather it was a figure of speech to convey his disbelief that Du
continued to reject his help. Doc. 53-7 at 109. Du claimed Kartel also said, “Do you
understand English?” Doc. 40-4 at 110. Bullard informed Kartel after this incident that
Du had filed an EEO complaint against him. Doc. 40-5 at 16, 21. Bullard ordered an
investigation into Kartel’s comment. Doc. 40-1 at 202.
On July 9, 2019, Du made initial contact with an EEO counselor. Stipulation
of Agreed Material Facts ¶ 23. On August 20, 2019, she filed a formal complaint
(“2019 EEO Complaint”). Id.
c. 2021 EEO Complaint
On July 15, 2019, Jennifer Karczewski, Haley’s assistant chief of prosthetics,
was assigned to conduct the fact finding in the investigation of Kartel’s July 3, 2019,
comment. Doc. 53-7 at 186. In response, Du requested that someone who is neutral
and not a part of the Prosthetics Department or Amputee Clinic conduct the fact
finding. Id. Tate asked Du why she thinks Karczewski would not be neutral. Id. at 185.
Du responded, “I am simply requesting a neutral party to do the fact finding.” Id. Tate
responded that Du has not provided any information to suggest Karczewski is not
neutral and unless she provides reasonable justification, Karczewski will conduct the
fact finding. Id. Du responded that past personnel from the Prosthetics Department
conducted fact findings in favor of the Prosthetics Department. Id. Tate replied that
they will be moving forward with Karczewski as the fact finder. Id. at 184.
Du graduated from St. Petersburg College in May 2007. Stipulation of Agreed
Material Facts ¶ 24. In March 2007, the National Commission on Orthotic and
Prosthetic Education (NCOPE) granted development accreditation to the St.
Petersburg College program. Doc. 40-1 at 223. The board “did not feel confident
enough to move a recommendation of initial accreditation forward to CAAHEP” at
the time. Id. St. Petersburg College did not receive its initial CAAHEP accreditation
until November 2008. Id. at 249. On March 21, 2017, the national VA qualification
standard for the occupation of Orthotist/Prosthetist, GS-667, was revised to require:
(1) A bachelor’s degree or higher in orthotics and prosthetics from a
Commission on Accreditation of Allied Health Education Programs
(CAAHEP) accredited program.
OR
(2) A bachelor’s degree or higher in any major along with a post-graduate
orthotics or prosthetics certificate from a CAAHEP accredited program.
Stipulation of Agreed Material Facts ¶ 25. In January 2021, Orthotics-Prosthetic
Clinical Supervisor Jason Redd emailed Du and others to announce the approval of a
GS-12 position. Doc. 40-1 at 279-80. Du responded expressing her belief that the
educational requirements for the GS-12 position were “clearly prepared with the
exclusive intent to promote and hire Bill Conroy at the Tampa VA within the
prosthetic department.” Id. at 280.
On September 24, 2021, the job announcement for the GS-12 Orthotist-
Prosthetist position was posted and included the educational qualification from the
national VA qualification standard. Id. at 282-88. HR Specialist Deborah True, who
did not know Du except by name, screened all candidates for qualification and
experience. Id. at 291. True explained that candidates’ education “needed to be
approved by the accreditation agency (CAAHEP) by the time of graduation.” Id. at
293. If the candidate did not meet that requirement, he or she is not referred or is
removed from the referral with an explanation why. Id. True had no information about
Du’s race or sex at the time. Id. at 291. Candidates who submitted such information
would be disqualified. Id. True was unaware of Du’s EEO activity until her 2021 EEO
complaint. Id.
Du applied for the GS-12 position on October 13, 2021. Id. at 310. On October
15, Du received an email stating that she was “tentatively eligible” for the position
based on her self-rating of her qualifications and had been referred to the hiring
manager. Id. at 312. The email stated that eligibility and education remained subject
to verification. Id. On October 19, Redd emailed Du and Conroy stating they had both
made the certificate of eligibles for the GS-12 position. Id. at 315.
On October 20, 2021, Redd emailed True asking whether developmental
accreditation from NCOPE rather than full accreditation would affect the applicant
for the Tampa VA position. Id. at 220. On October 20, Du received an email stating
she was ineligible for the position because she did not satisfy the education
requirement in the vacancy announcement. Id. at 318. Du emailed Deborah True
asking her to clarify why she did not meet the educational requirement. Id. at 322. Du
acknowledged that the program was not accredited by the time she graduated and
asked if she could appeal the decision. Id. at 321. True responded that the school had
“developmental accreditation” and not full accreditation from NCOPE. Id. On
October 22, Redd emailed NCOPE explaining that he was “working on promoting
one of the orthotist-prosthetists” who was an early graduate from St. Petersburg
College and requested information confirming its accreditation. Id. at 325. Redd
forwarded St. Peterburg College’s accreditation information to True. Id. at 324.
The only name remaining after Du was found ineligible was William Conroy,
who had graduated from a CAAHEP-accredited program. Id. at 333. Conroy
graduated from St. Peterburg College with a Bachelor of Applied Science in Orthotics
and Prosthetics in May 2010. Doc. 53-5 at 38. On October 20, 2021, Redd selected
Conroy for the position. Id. at 43. On November 11, Conroy’s selection was approved.
Id. On March 21, 2024, the American Board for Certification in Orthotics, Prosthetics,
and Pedorthics Inc. (ABC) sent Du a letter, which stated that Du met the requirement
of completing a CAAHEP accredited educational program. Doc. 53-4 at 15.
On November 5, 2021, Du made initial contact with an EEO counselor.
Stipulation of Agreed Material Facts ¶ 26. On December 2, 2021, she filed a formal
complaint (“2021 EEO Complaint”). Id.
d. Procedural Background
In July 2022, Du filed this action against the VA. Doc. 1. Du filed an
amended complaint on August 11, 2022, alleging violations under Title VII of the
Civil Rights Act of 1964 of race discrimination (Count I), sex discrimination (Count
II), retaliation (Count III), and retaliatory hostile work environment (Count IV).
Doc. 14-1.
The VA filed its Motion for Summary Judgment. Doc. 40. Du filed her
response and later filed a corrected response. Docs. 46, 53. The VA then filed its
reply. Doc. 49. The Court held oral argument on the motion, after which it ordered
the parties to submit supplemental briefing. Doc. 72. The parties then submitted
supplemental briefing. Docs. 74, 80.
II. Legal Standard
Summary judgment is appropriate only when the court is satisfied that “there is
no genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law” after reviewing the “pleadings, the discovery and disclosure materials
on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining whether a
genuine issue of material fact exists, the Court must consider all the evidence in the
light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,
considering the evidence presented, could find for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged
if the moving party can show the court that there is “an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has
been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991).
“[I]n order to survive summary judgment, the nonmoving party must set forth
specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian
Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at
249-50). The non-moving party must go beyond the pleadings and “identify
affirmative evidence” that creates a genuine dispute of material fact. Crawford-El v.
Britton, 523 U.S. 574, 600 (1998). “[U]nsupported ‘conclusory allegations’ do not
suffice.” Middlebrooks v. Sacor Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019).
Likewise, “[a] ‘mere existence of a scintilla of evidence’ cannot suffice to create a
genuine issue of material fact.” Johnson, 826 F. App’x at 770 (quoting Anderson, 477
U.S. at 252)
III. Discussion
The VA moves for summary judgment on Du’s Title VII claims for (1) race-
and sex-based discrimination, (2) retaliation, and (3) retaliatory hostile work
environment.
a. Race (Count 1) and Sex Discrimination (Count II)
Because Plaintiff is a federal employee, Title VII’s federal-sector provision
applies to her discrimination claims.4 For federal employers, Title VII requires “[a]ll
personnel actions affecting employees . . . be made free from any discrimination on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Personnel
actions are defined in 5 U.S.C. § 2302 (a)(2)(A) and “include most employment-related
decisions, such as appointment, promotion, work assignment, compensation, and
performance reviews.” Babb v. Wilkie, 589 U.S. 399, 405 (2020). “[F]ree from any
discrimination” means that “personnel actions must be made in a way that is not
tainted by differential treatment based on a protected characteristic.” Terrell v. Sec’y,
Dept. of Veterans Affs., 98 F.4th 1343, 1351-52 (11th Cir. 2024) (cleaned up). To defeat
summary judgment for a Title VII claim, a federal employee “must show only that the
protected characteristic ‘played any part’ in the employer's decision-making process
when the employer engaged in the challenged action.” Rosado v. Sec'y, Dep't of the Navy,
4 This analysis also applies to Plaintiff’s retaliation claims. To survive summary
judgment, Plaintiff need only submit evidence that would allow a reasonable jury to find that
retaliation played any part in the VA’s decision-making process.
127 F.4th 858, 866 (11th Cir. 2025).5 Put simply, to survive summary judgment, Du
must offer sufficient evidence that her race or sex played a role in the VA’s personnel
actions. See Marshall v. Sec'y of Navy, No. 24-12910, 2025 WL 1733680, at *2 (11th Cir.
June 23, 2025). Evidence of discriminatory intent may be established “through
circumstantial evidence, including discriminatory comments, suspicious timing,
arbitrariness in the employer's actions, pretext in the employer's rationale, better
treatment of similarly situated . . . employees outside the protected group, and similar
experiences by [employees of the protected group].” Bell v. Sec'y, Dep't of Veterans Affs.,
No. 22-12698, 2024 WL 1462405, at *4 (11th Cir. Apr. 4, 2024).
In its motion for summary judgment, the VA argues that Du has not provided
evidence that her race or sex played any part in its decision-making process. Doc. 40
at 19, 20, 23. The VA argues that the administrative record from the 2018, 2019, and
2021 EEO Complaints timely raised eight events, but there is not evidence in the
record to suggest that race or sex played a role in the decision-making behind any of
those events. Doc. 74 at 5.
The Court will now consider the eight events. In so doing, the Court notes that
the issue of whether the actions taken by the VA were adverse employment actions is
5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973) establishes the traditional
framework for evaluating disparate-treatment claims using circumstantial evidence. Du is
not bound by this framework as it is no longer applied to federal-sector claims. See Terrell v.
Sec'y, Dep't of Veterans Affs., 98 F.4th 1343, 1352 (11th Cir. 2024); but see Rosado v. Sec'y, Dep't
of the Navy, 127 F.4th 858, 866 (11th Cir. 2025) (“Of course, if a federal employee wishes to
use the McDonnell Douglas framework to state a claim, he may continue to do so. It's just
that McDonnell Douglas imposes a heavier burden than a federal employee must satisfy.”).
not addressed by the parties. Thus, the Court assumes, without deciding, that the
challenged actions were adverse employment actions.
i. Request to attend trainings (July 16, 2018)
Du alleges that she was the only Asian American female who had engaged in
EEO activity who was denied these trainings and numerous white males attended.
Doc. 80 at 11. However, Du fails to provide citations to the record to support this
claim or name a comparator.6 The only potential comparator for this claim in the
record would be Kartel who was a white male that held the same position as Du at the
time and attended the July 26 training. But Du and Kartel cannot be said to be similarly
situated because Kartel was hosting the July 26 training and not merely an attendee.
Doc. 53-5 at 134. There is no genuine dispute of material fact regarding whether Du’s
race or sex played a role in her request to attend these trainings.
ii. Extension of temporary detail (August 28, 2018)
iii. Change of tour of duty (August 28, 2018)
Du argues that a change in her tour of duty was motivated by race and sex. Doc.
80 at 11-12. Du contends that she provides an exhibit comparing her schedule for
clinics on Wednesdays with her male coworker’s schedule for Fridays.7 Id.
6 A proper comparator must be similarly situated to the plaintiff. Johnson v. Miami-Dade
Cnty, 169 F. 4th 1301, 1308 (11th Cir. 2026).
7 Du also argues that there were no Asian American females scheduled for the Friday clinics
in August 2018. But she does not provide a citation to the record for this claim.
For the purposes of evaluating a discrimination claim, “[i]f the same policies
were applied differently to similarly ranked employees, those employees may be
compared.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011).
Du has failed to point to any evidence in the record that suggests this change
was made in part due to her race or sex. The only relevant evidence Du provides is a
comparison of her patient schedule with that of another coworker’s schedule. Doc. 53-
5 at 62-71. Du alleges that this is a male coworker’s schedule, but she does not point
to anywhere in the record to show that this coworker is in fact male or similarly
situated. The schedule only indicates “coworker Friday clinic[,]” without providing
details of the coworker such as a name, race, sex, or job title. Id. at 68-69. There is no
genuine dispute of material fact regarding whether Du’s race or sex played a role in
her extension of detail or change of tour duty.
iv. Reprimand (August 29, 2018)
Du argues that her reprimand was issued in part due to her race or sex. Doc. 80
at 6-7. In support, Du cites multiple exhibits. See e.g., Doc. 53-4 at 51-53 (statement
from American Federation of Government Employees Union to Janet Bullard); 53-4
(email from patient to Shamp re incident between Du and Robinson). However, Du
fails to explain how this evidence supports a finding that race or sex played a part in
the reprimand. See Brown v. Parker Hannifin Corp., 6:98-cv-616-GKS, 1999 WL
1449761, at *13 (M.D. Fla. Oct. 13, 1999) (“As the party opposing summary
judgment, [Plaintiff] was required to identify specific evidence in the record, and to
articulate the precise manner in which that evidence supports [her] claims” (citation
modified)).
Du also claims that the VA showed favoritism towards Robinson. Doc. 80 at
13. The VA argues that Du cannot successfully use Robinson as a comparator for her
discrimination claim because they were not similarly situated. Doc. 74 at 7.
To be an adequate comparator, the preferentially treated individual from
outside the plaintiff's protected class has to be similarly situated in “all material
respects.” Johnson v. Miami-Dade Cnty., 169 F.4th 1301, 1308 (11th Cir. 2026). “[A]
valid comparator is ordinarily someone who: (1) has engaged in the same basic
conduct (or misconduct) as the plaintiff, (2) is subject to the same employment policy,
guideline, or rule as the plaintiff, (3) is under the jurisdiction of the same supervisor as
the plaintiff, and (4) shares the plaintiff's employment or disciplinary history.” Id. A
helpful question is whether the plaintiff and the comparator are “similar enough that
they cannot reasonably be distinguished?” Id.
Robinson was not similarly situated to Du. At the time of the February 8
incident, Robinson was a prosthetics student-resident at Haley. Du was a
prosthetist/orthotist at Haley. Doc. 40-2 at 32, 91. Du and Robinson had different
responsibilities. See Doc. 53-6 at 151 (“As a new resident within the first few months
into her residency, [Robinson] is not permitted to work on patient’s prosthetics without
supervision.”). Additionally, Robinson and Du were under the purview of different
supervisors. Robinson reported to her resident proctor, Conroy, and Du to Shamp.
Doc. 40-1 at 10; Doc. 53-6 at 200. Thus, there is no genuine dispute of material fact
regarding whether Du’s reprimand was connected to her race or sex.
v. Exclusion from training (September 17, 2018)
vi. AWOL charge (July 3, 2019)
vii. Denial of sick leave (July 3, 2019)
Du disputes the facts underlying these decisions but fails to argue that race or
sex played a role in them. Du does not allege in her summary judgment briefing that
these actions were due to her race or sex. Additionally, the record does not support
such a finding. There is no genuine dispute of material fact regarding whether these
events were based in part due to Du’s race or sex.
viii. Non-selection for the GS-12 position (October 20, 2021)
Du claims that although she graduated from St. Petersburg College, which did
not receive its initial CAAHEP accreditation until November 2008, Du and other
students were recognized as having met the educational requirements at the time they
were hired. Doc. 80 at 14-15. In support Du provides a March 21, 2024, letter in which
the American Board for Certification in Orthotics, Prosthetics, and Pedorthics Inc.
(ABC) stated that Du met the requirement of completing a CAAHEP accredited
educational program. Doc. 53-4 at 15. However, this letter came after the VA’s
decision on October 20, 2021. Du did receive an email on October 15, 2021, stating
she was eligible for GS-12 positions in Tampa, Florida. Doc. 40-1 at 312. However,
the email stated that Du was “tentatively eligible” for the position based on her self-
rating of her qualifications and had been referred to the hiring manager. Id. The email
also stated that eligibility and education remained subject to verification. Id. Du has
not pointed to evidence creating a genuine dispute of material fact regarding whether
she met the educational requirements at the time Haley was hiring for the GS-12
position. Even if she had, Du has not pointed to any evidence that race or sex played
a role in her non-selection for the position. There is no genuine dispute of material fact
regarding whether Du’s race or sex played a part in her non-selection for the GS-12
position.
ix. Other events8
8 Du claims that because the VA addresses only eight events from her 2018, 2019, and 2021
EEO Complaints, her burden is to only respond to those eight events. In a motion for
summary judgment, the movant “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The movant can meet this burden by showing that the “nonmoving
party has failed to make a sufficient showing on an essential element of her case with respect
to which she has the burden of proof.” Id. at 322-23. “[T]he moving party simply may . . .
point[ ] out to the district court—that there is an absence of evidence to support the non-
moving party's case. Alternatively, the moving party may support its motion for summary
judgment with affirmative evidence demonstrating that the non-moving party will be unable
to prove its case at trial.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993). After
the movant meets its burden, the nonmovant must “go beyond the pleadings” to designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also
Fed. R. Civ. P. 56(c)(1). The VA claims that Du cannot point to evidence showing that her
race or sex played any part in the VA’s decision-making process. Doc. 40 at 19 (“[T]he record
shows there is no evidence that management’s actions were at all motivated by Plaintiff’s sex
[or] race[.]”). Therefore, Du must now point to evidence that race or gender played a role in
the VA’s decision-making.
In her response, Du argues that Shamp removed her from the Lakeland Clinic
and did so on the basis of her race and sex. Doc. 53 at 12. Du argues that her white
male co-workers were permitted to work this clinic. Id.
The record does not indicate that only Du’s white male co-workers were
permitted to work at the Lakeland Clinic. See Doc. 53-6 at 117, 142. In a sworn
declaration, Du says none of her “other colleagues were removed from clinics if they
request[ed] time off[.]” Id. at 117. However, Du does not identify the names, race, or
sex of any of these colleagues. The record reflects that Du was removed from this
Wednesday clinic because she was taking too many Wednesdays off, which Bullard
claims was disruptive to patient care. Id. at 117. Du’s conclusory statement in her brief
that her white male co-workers were permitted to work at the Lakeland Clinic instead
of her is insufficient to create a genuine issue of material fact. See Helmich v. Kennedy,
796 F.2d 1441, 1443 (11th Cir. 1986) (“Statements of fact in a party's brief, not in
proper affidavit form, cannot be considered in determining if a genuine issue of
material fact exists.”).
Du also claims she was denied multiple trainings on the basis of her race and
sex. Doc. 80 at 9. Du points to her sworn declaration in which she describes being
denied from trainings on June 4, September 17, and November 16, 2018. There is no
evidence in the record to suggest that she was denied these trainings on the basis of her
race or sex. For the trainings on September 17, 2018 and November 16, 2018, Du
provides the email invitations for these meetings but does not provide any evidence of
how she requested to attend these trainings or how she was denied. See Docs. 53-4 at
87, 179; 53-5 at 135, 137. This evidence is insufficient to create a genuine issue of
material fact.
In her sworn declaration, Du goes through a list of other trainings that she
alleges Kartel and Conroy attended but that she was denied from attending.9 Doc. 53-
5 at 129-30. Du identifies Conroy as a white male at Haley in the orthotist/prosthetist
GS-11 role.10 Id. at 129. Du’s declaration simply lists the name of the training and does
not provide any other details such as when the training occurred, who else attended,
how she requested to attend, or how she was denied attendance. Du’s sworn
declaration alone is not enough to show she suffered an adverse employment action in
part due to race or sex. See Williams v. Collins, No. 20-CV-22094, 2020 WL 13863963,
at *6 (S.D. Fla. Nov. 16, 2020) (“Plaintiffs’ self-serving [s]worn [s]tatements, without
more, will not defeat summary judgment.”).
Du also points to sworn declarations from Haley employees in support of the
claim that she was not provided training opportunities that other white male clinicians
were provided. Doc. 53-4 at 16-21. These declarations do not provide sufficient facts
to create a genuine issue of material fact regarding whether Du suffered an adverse
employment action in part due to race or sex. One former Haley employee attests that
“Du was not provided training opportunities that other clinicians were provided
because her leadership stated they did not believe in her skills nor ability to learn.” Id.
9 One of these trainings is the July 26 training hosted by Kartel and addressed in Section
III(a)(i).
10 Du does not allege Conroy as a comparator in any of her briefings.
at 17. However, this former employee does not attest that this belief stemmed from
Du’s race or sex or provide any specific details about when leadership made this claim.
Another Haley employee attests that Du was not allowed to attend a specific training
that “was only allowed to be attended by another colleague[.]” Id. at 21. This employee
does not provide the name, race, sex, or job title of this colleague. This evidence is not
enough to create a genuine issue of material fact.
In her supplemental briefing, Du argues that the VA addresses only eight events
from her 2018, 2019, and 2021 EEO Complaints and fails to address other events in
her background section in her response. Doc. 80 at 9. Although Du discusses
additional events in her briefing, she does not explain how race or sex played a role in
any of these events. 11 Additionally, the record does not support such a finding. The
only specific incident in the record that could support a finding that race or sex played
a role in the VA’s adverse employment actions is comments Kartel made to Du.
On July 3, 2019, Acting Chief of Orthotics Michael Kartel said to Du, “Am I
not speaking English? Do you understand English?” Doc. 40-4 at 110:5–17. Kartel was
Du’s direct supervisor at the time. Doc. 53-7 at 109. Kartel denies stating, “Do you
11 Du lays out the factual background behind other events but does not connect them to her
race or sex. When Du does argue that she was treated differently because of her race and
sex, she cites generally to her statement of facts. See e.g., Doc. 53 at 3 (“As set forth in the
Response to Defendant’s Statement of Facts, it also includes evidence Plaintiff was treated
differently based on her race, sex and EEO activity.”); Doc. 80 at 6 (“[T]he facts in dispute
which were identified in [Doc. 53] support the fact that a jury can find that the Defendant
continued to take actions in this case based on her race and gender animus. The factual
background of [Doc. 53] beginning on page 4 lays a substantial basis for the strong disputes
that the Plaintiff has with the Defendant’s facts.”). Du is required to identify specific
evidence in the record and articulate the precise manner in which that evidence supports her
claims. See Brown, 1999 WL 1449761, at *13.
understand English” but agrees that he said, “Am I not speaking English?”12 Id. Kartel
stated that this remark was not said directly to Du or in a hostile tone. Id. Rather, he
used those words as a figure of speech to convey his disbelief that Du continued to
reject his help. Id. Considering the evidence in the light most favorable to Du, a jury
could find that Kartel’s remarks were directed at her race.
Isolated and general racial remarks are not direct evidence of discrimination
when they are “too remote in time or too attenuated.” Ross v. Rhodes Furniture, Inc.,
146 F.3d 1286, 1291 (11th Cir. 1998). However, isolated general racial remarks may
constitute circumstantial evidence of discrimination. Id. The “proper inquiry” is
whether the remark, “when read in conjunction with the entire record,” is
circumstantial evidence of the decisionmaker's “discriminatory attitude.” Id. See, for
example, Silvestri v. Jupiter Inlet Colony, Fla., 614 F. App'x 983, 984 (11th Cir. 2015)
(“[A] stray remark, isolated and unrelated to the challenged employment decision,
standing alone, is insufficient to establish a material fact on pretext.”)
Even if the remark by Kartel was directed at Du’s race, it is not enough to show
that race played a role in the VA’s adverse employment actions against Du. This is a
single racial remark made by Kartel and the only one alleged to have been made by
the VA. There is no other evidence in the record that supports a finding that the VA
had a racial animus against Du. Kartel was Du’s supervisor for approximately a
month. Doc. 40-5 at 14. Additionally, Kartel did not play a role as a decision maker
12 Construing the facts in the light most favorable to Du, the Court assumes that Kartel
made both statements.
in any of the events from the 2018, 2019 and 2021 EEO Complaints. See Doc. 40-5 at
40, 44. Therefore, Kartel’s remark is unrelated to any employment decision.
There is no genuine dispute of material fact regarding whether the VA’s adverse
employment actions were motivated in part because of Du’s race or sex. The VA is
entitled to judgment, as a matter of law, in its favor on Counts I and II.
b. Retaliation (Count III)
To make out a case of retaliation, a public-sector plaintiff must show that she
(1) engaged in protected EEO activity and (2) suffered an adverse employment action,
and (3) she must establish a causal link between the protected activity and the adverse
action.13 Terrell v. Sec'y, Dep't of Veterans Affs., No. 2114185, 2024 WL 1671962, at *7
(11th Cir. Apr. 18, 2024). The first prong protects “proceedings and activities which
occur in conjunction with or after the filing of a formal charge with the [EEOC.]”
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). To satisfy the
third prong, federal-sector plaintiffs, such as plaintiff, only need to show that
retaliation played any part in the decision-making process. Buckley v. Sec'y of Army, 97
F.4th 784, 798 (11th Cir. 2024). Under the lightened federal-sector standard, “a
federal-sector plaintiff must still point to circumstantial evidence demonstrating
discrimination or retaliation[.]” Davis v. Collins, No. 6:23-CV-68-JSS-DCI, 2025 WL
1266767, at *9 (M.D. Fla. May 1, 2025).
13 Defendant only disputes the third element.
The VA contends that the record shows no evidence connecting any of its
adverse employment actions to Du’s protected EEO activity. Doc. 40 at 19-20, 23. The
VA argues that Du has not shown any direct evidence of retaliation or temporal
proximity between her protected activity and its adverse employment actions. Doc. 74
at 11.
i. Temporal Proximity
Plaintiff can show that retaliation played a part in the decision-making process
where there is a “close temporal proximity between the employee’s protected conduct
and the adverse employment action[.]” Brungart v. BellSouth Telecommunications, Inc.,
231 F.3d 791, 799 (11th Cir. 2000) (in the context of a but-for inquiry). “[T]hree
months between the two events is . . . not enough, standing alone, to establish that a
retaliatory motive tainted the decision-making process[.]” Buckley v. Sec'y of Army, 97
F.4th 784, 799 (11th Cir. 2024); see Wascura v. City of South Miami, 257 F.3d 1238, 1248
(11th Cir. 2001) (three and a half months was insufficient in the context of a but-for
inquiry); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (finding
three to four months was insufficient in the context of a but-for inquiry); see also Hurlbert
v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (“[N]o more
than two weeks, under the broadest reading of the facts—is evidence of pretext, though
probably insufficient to establish pretext by itself).
Du argues that the temporal proximity between her protected activity and the
VA’s adverse employment actions suggests retaliatory motive. Doc. 80 at 16-17.
Plaintiff wants the applicable date for protected EEO activity to include Du’s entire
participation in EEO activity, which Du argues continued throughout the filings of her
EEO Complaints and their resolutions. Id.
In Blanc v. City of Miami Beach, 965 F. Supp. 2d 1350, 1356 (S.D. Fla. 2012), the
plaintiff argued that the filing of an EEOC claim was protected activity along with the
negotiation and attempted enforcement of a settlement agreement from that EEOC
claim. Id. Unlike Du, the plaintiff in Blanc pointed to a specific event (negotiation and
settlement of EEO claim) and date when arguing for an applicable date beyond the
filing of the EEO complaint. Id. at 1352. Du fails to provide any dates or cite to the
record in support of any continued EEO activity. Here, Du states, “there was litigation
of [her EEO Complaints] which involved participation in production of documents,
depositions, and other testimony at the administrative stage and later in Federal
Court[.]” Doc. 80 at 17. Du does not provide any dates or citations to the record for
these activities. Du does mention two amendments to her 2018 EEO Complaint but
does not provide any dates or citations.
The proximity clock begins to run not when Plaintiff engages in the protected
activity but the date the decision-maker gains knowledge of that protected activity.
Gilliam v. U.S. Dep't of Veterans Affs., No. 2:16-CV-255-JES-UAM, 2018 WL 3707834,
at *8 (M.D. Fla. Aug. 3, 2018) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001)). Viewing the evidence in the light most favorable to Plaintiff, the Court
will consider the applicable dates for protected EEO activity as the date the decision-
makers first became aware of the 2018 EEO Complaint, the dates Du filed
amendments to her 2018 EEO complaint, and the dates Du filed her 2019 and 2021
EEO complaints.14
1. Request to attend trainings (July 16, 2018)
2. Extension temporary detail (August 28, 2018)
3. Change of tour of duty (August 28, 2018)
4. Reprimand (August 29, 2018)
5. Exclusion from training (September 17, 2018)
There is no evidence that there was close temporal proximity between Du’s
protected activity and these five events. The first event occurred over five years after
the EEOC’s Final Agency Decision for Du’s 2012 EEO Complaint. The first four
events occurred prior to Du engaging in any EEO activity related to her 2018 EEO
Complaint. She first spoke to an EEO investigator on September 5, 2018. Doc. 63 ¶
14. The only event that occurred after Du’s initial contact with an EEO investigator
was Shamp excluding Du from an educational in-service on September 17, 2018.
However, Du did not file her 2018 EEO Complaint until October 18, 2018, and Shamp
only became aware of Du’s EEO activity on January 8, 2019. Id.; Doc. 40-1 at 55.
Therefore, there is no genuine dispute of material fact regarding whether a temporal
14 Du emails Bullard and Shamp on March 22, 2018, stating, “Robinson creates a hostile
environment that hinders me from providing care[.]” Doc. 53-2 at 65-66. This conduct is not
protected activity because it does not allege that Du’s treatment was based on her race or
sex. See Jeronimus v. Polk Cnty. Opportunity Council, Inc., 145 F. App'x 319, 326 (11th Cir.
2005) (finding that an email in which an employee complained about working in a “hostile
environment” was not protected conduct because it never suggested that the treatment was
due to a protected characteristic such as race or sex).
proximity between Du’s protected EEO activity and these five events suggest a
retaliatory motive. They do not.
6. AWOL charge (July 3, 2019)
7. Denial of sick leave (July 3, 2019)
There is no evidence that there was close temporal proximity between Du’s
protected activity and her AWOL charge and denial of sick leave. Both events are over
five months from when Bullard received knowledge of the 2018 EEO Complaint on
January 8, 2019. See Doc. 53-6 at 172. Both events are also over five months from
when Du amended her 2018 EEO Complaint on January 8, 2019, and again on
January 18, 2019. Therefore, there is no genuine dispute of material fact regarding
whether a temporal proximity between Du’s protected EEO activity and these events
suggest a retaliatory motive. They do not.
8. Non-selection for the GS-12 position (10/20/21)
There is no evidence that there was close temporal proximity between Du’s
protected activity and her non-selection for the GS-12 position. The non-selection
arose three years after Du filed her 2018 EEO Complaint and over two years after she
filed her 2019 EEO Complaint. Doc. 63 ¶¶ 14, 23. Du filed her 2021 EEO Complaint
as a result of this event. Therefore, there is no genuine dispute of material fact
regarding whether a temporal proximity between Du’s protected EEO activity and the
VA’s adverse employment actions suggest a retaliatory motive. They do not.
ii. Pattern of Antagonism
Du argues that the passage of time is not legally conclusive proof against a
pattern of retaliation. Doc. 80 at 16. Du contends that the record in this case shows a
pattern of antagonism. Doc. 80 at 16-17.
Where there was a significant time gap between the protected activity and the
adverse action, the plaintiff must offer additional evidence to demonstrate a causal
connection, such as a pattern of antagonism or that the adverse action was the first
opportunity for the employer to retaliate. Ward v. United Parcel Serv., 580 F. App'x 735,
739 (11th Cir. 2014). The pattern of antagonism should be “consistent and continuous
during the intervening period” between the protected activity and adverse employment
action. See Bartos v. MHM Corr. Servs., Inc., 454 F. App'x 74, 79 (3d Cir. 2011).
To show a pattern of antagonism, a plaintiff must show “actual antagonistic
conduct or animus in the intervening period between the protected activity and the
retaliation.” Kriss v. Fayette Cnty., 504 F. App'x 182, 188 (3d Cir. 2012) (citation
modified). For example, a plaintiff can support a pattern of antagonism through a
“constant barrage of written and verbal warnings ... and disciplinary action[s] ... soon
after plaintiff's initial complaints.” Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895
(3d Cir. 1993). A pattern of antagonism, however, is more than a series of disciplinary
actions; a plaintiff must “offer [a] basis for linking the disciplinary actions to her
[protected activity].” Bartos v. MHM Correctional Servs., Inc., 454 F. App'x 74, 79 (3d
Cir. 2011).
Du is correct that she can show a causal connection between her protected EEO
activity through a showing of an “intervening pattern of antagonism.” See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). However, she does not present
facts supporting a pattern of antagonism. Du repeatedly makes blanket statements
without any specific citations to the record. Du asserts that each time she made a claim
of discrimination, “shortly thereafter continued retaliation occurred[,]” and the
entirety of that retaliation “shows a pattern of antagonism.” Doc. 80 at 16-17. Du does
not follow up by pointing to any factual instances supporting a pattern of antagonism.
Even considering the record, Du cannot establish a pattern of antagonism. The
record does not support a pattern of antagonism following protected activity from the
Final Agency Decision in 2012, the 2018 EEO Complaint, the 2019 EEO Complaint,
or the 2021 EEO Complaint.
1. 2012 Final Agency Decision
Any potential antagonism occurring between the Final Agency Decision
against the VA on November 30, 2012, and any adverse employment action is not
“consistent and continuous during the intervening period[.]” See Bartos, 454 F. App'x
at 79. The earliest instance of potential antagonism in the record occurred with the
February 8, 2018, incident with Robinson. A gap of six years between the protected
activity and the first instance of antagonism cannot support a consistent and
continuous pattern of antagonism.
2. 2018 EEO Complaint
The only evidence in the record between Du’s 2018 EEO complaint and the
following adverse employment action against her (AWOL charge on July 3, 2019) that
could potentially support a finding of a pattern of antagonism is (1) Bullard ignoring
Du’s requests to attend the Warrior Games, (2) Tate telling Du to return to work at
the hospital instead of attending the Warrior Games, (3) Bullard asking Du for an
additional physician’s note, and (4) Kartel’s comments on July 3, 2019.15
First, Du requested approval from Bullard to attend the Warrior Games for the
week of June 23, 2019. Doc. 53-7 at 145. Bullard did not respond to Du’s request
because there was a death in her family, so Tate responded to Du’s request instead. Id.
A reasonable jury could not find that Bullard’s failure to respond to Du’s request was
part of a pattern of antagonism or that it demonstrated retaliatory animus.
Second, Tate prohibited Du from continuing to attend the Warrior Games and
ordered her to return to the main hospital. Doc. 53-7 at 141. Tate had received reports
that Du was going beyond her scope of duty at the Warrior Games. Doc. 40-1 at 148.
A reasonable jury could not find that Tate’s decision to prohibit Du from attending the
Warrior Games was part of a pattern of antagonism or that it demonstrated retaliatory
animus.
15 Plaintiff alleges that on January 19, 2019, she was excluded on an invitation sent to the
entire department about the future of the Prosthetics Department. Plaintiff fails to cite to the
record for this allegation and, after searching the voluminous record, this invitation was not
found.
Third, Bullard asked Du for a detailed physician’s note in response to her
request for sick leave. On July 1, 2019, Plaintiff requested leave and submitted a
physician’s note that simply said “[p]rocedure done to leg[.]” Doc. 53-7 at 132-33.
Bullard noted that the requested leave was for the dates of June 26 to June 28 and
management had received reports that Du attended the Warrior Games during the
dates she requested sick leave. Id. at 131.16 As a result, Bullard requested a more
detailed physician’s note. Id. at 134. A reasonable jury could not find that Bullard’s
request of Du for a more detailed physician’s note was part of a pattern of antagonism
or that it demonstrated retaliatory animus.
Last, on July 3, 2019, Kartel asked Du, “Am I not speaking English” and “Do
you understand English?” Docs. 40-4 at 110, 43-7 at 217. Kartel only became aware
of Du’s EEO activity after he made those comments to Du. Doc. 40-5 at 16, 21. Thus,
a reasonable jury could not find that Kartel’s comments were part of a pattern of
antagonism. See Brunqart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.
2000) (“A decision maker cannot have been motivated to retaliate by something
unknown to him.”).
3. 2019 EEO Complaint
The only evidence in the record between Du’s 2019 EEO complaint and the
following adverse employment action against her (non-selection for the GS-12
16 Du was photographed at the Warrior Games on the dates she requested sick leave, and a
witness signed and confirmed that Du attended the Warrior Games for these dates. Doc. 40-
1 at 189-95.
position) that could potentially support a pattern of antagonism is Tate’s denial of Du’s
request for a different fact-finder in the investigation into Kartel’s comment.
Du requested a neutral fact-finder for the investigation into the alleged
discriminatory comment made by Kartel. Jennifer Karczewski, assistant chief of
prosthetics, was assigned to conduct the fact finding. Doc. 53-7 at 186. Du claimed
that Karczewski was not neutral because she was in the Prosthetics Department and
sought a different factfinder. Id. Tate asked Du to provide information that suggests
that Karczewski was not neutral to which Du repeated that personnel from the
Prosthetics Department are biased and they rule in favor of the Prosthetics
Department. Id. at 185. Based on this record, this is not evidence upon which a
reasonable jury could find retaliatory animus. Both Du and Kartel are a part of the
Prosthetics Department. Additionally, Karczewski was not in Kartel’s chain of
command of supervision. Doc. 53-2 at 75.
4. 2021 EEO Complaint
There is no evidence in the record after Du’s 2021 EEO Complaint of any
adverse employment action.
Thus, no reasonable jury would be able to find a pattern of antagonism based
on this record.
iii. First Opportunity to Retaliate
Next, Du argues that Bullard retaliated against Du because of the 2011 EEO
Complaint, which resulted in a finding on November 30, 2012, against the VA and a
five-day suspension without pay for Bullard. Docs. 80 at 17; 53-2 at 74. Du further
argues that this retaliatory animus continued until 2017 and 2018 which gave Bullard
the opportunity to act against Du. Doc. 80 at 17. Du contends that Bullard first had
the opportunity to retaliate in 2017 and 2018 when she received allegations from
another employee against Du, which resulted in Bullard sending an email on May 23,
2018, telling prosthetics staff not to get involved. See Doc. 40-1 at 46.
In Thomas v. Richmond Cnty. Sch. Dist., No. CV 107-092, 2008 WL 4857521, at
*11 (S.D. Ga. Nov. 6, 2008), the court considered the retaliation claim of a bus driver
who claimed he was not promoted because of prior EEO activity. Id. at *1. The court
rejected the first opportunity to retaliate rationale where there were “many other
avenues that could have been taken [by Defendants].” Id. at *11. The court reasoned
that “[d]efendants could have fired her, demoted her, changed her bus route, or any
other variety of adverse actions.” Id.
There is no evidence in the record that Bullard’s first opportunity to retaliate
was over five years after the resolution of Du’s 2011 EEO Complaint. Bullard has been
Haley’s chief of prosthetics since 2009, and Du has not pointed to any evidence that
Bullard’s authority changed from 2011 to 2017. See Doc. 40-2 at 8. As supervisor of all
prosthetics staff, Bullard could have retaliated against Du in a number of ways before
2017.
There is no genuine dispute of material fact regarding whether the VA’s adverse
employment actions were connected to Du’s protected activity. Thus, summary
judgment will be granted in favor of the VA on Count III.
c. Retaliatory Hostile Work Environment (Count IV)
Du alleges that she was subjected to a hostile work environment in retaliation
for her EEO activity.17 “Title VII prohibits the creation of a hostile work environment
in retaliation for an employee's engagement in protected activity.” Tonkyro v. Sec'y,
Dep't of Veterans Affs., 995 F.3d 828, 835 (11th Cir. 2021). Retaliatory hostile work
environment claims are retaliation claims and evaluated under the retaliation standard
of “whether the employer's complained-of action well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Buckley v.
Sec'y of Army, 97 F.4th 784, 799 (11th Cir. 2024) (citation modified). The alleged
retaliatory hostile work environment conduct must be causally linked to Plaintiff’s
protected conduct. Bradley v. Postmaster Gen., No. 21-12833, 2022 WL 4352633, at *2
(11th Cir. Sept. 20, 2022).
The VA argues that the record does not reflect any evidence that any alleged
harassment was based on Du’s protected activity. Doc. 74 at 20.
17 Defendant addresses a substantive hostile work environment claim in its briefing;
however, Plaintiff has previously maintained that Count IV only alleges a retaliatory hostile
work environment claim. See Doc. 32 ¶ 13. Therefore, the Court need only address the
retaliatory hostile work environment claim.
Du points to more acts18 in addition to the eight acts described in Section
(III)(b)(i) for her retaliatory hostile work environment claim.19 Doc. 80 at 18-19. Du
argues that Bullard’s email from May 23, 2018, and her change in schedule starting on
September 19, 2018, support a finding of retaliatory harassment.20 Id. Du does not
allege that these acts were connected to her EEO activity or point to any evidence in
the record to suggest such. Additionally, both Bullard’s email and Du’s change in
schedule21 occurred prior to the filing of Du’s 2018 EEO Complaint. Doc. 53-4 at 56;
53-5 at 62. Therefore, there is no genuine dispute of material fact regarding whether
these acts were in retaliation for Du’s protected activity.
Even looking at the record as a whole, there is no evidence to suggest Du was
subjected to a hostile work environment in retaliation for her protected activity. “[I]t
is only those actions, directed at a complainant, that stem from a retaliatory animus
which may be factored into the retaliatory hostile work environment calculus.” Moore
18 Plaintiff fails to cite to the record when discussing some of these additional acts. See Docs.
53 at 23 (“Her fundamental duties were changed and taken away.”); 80 at 18 (“[T[here were
a number of actions taken which were humiliating or embarrassing to Plaintiff as discussed
she was required to do things others were not to attend training.”); Id. at 18-19 (“She was
given a markedly different schedule from other employees and had duties for which she was
not only certified[,] but which were in her position description taken away from her and the
entire service knew it.”). Therefore, the Court will only consider the two additional acts in
which Plaintiff cites to the record See Fed. R. Civ. P. 56(c)(3) (“The court need consider
only the cited materials[.]”).
19 Du fails to show that her prior EEO activity played any part in the decision-making
process for the eight discreet acts and thus fails to show a causal connection between these
acts and her EEO activity. See Section III(b)(i), supra, for a full discussion of the issue.
20 Du also cites to Kartel’s comments on July 3, 2019, but Kartel was not aware of Du’s
protected activity when he made the comments. See Section III(b)(ii)(2), supra, for a full
discussion of the issue.
v. Shands Jacksonville Med. Ctr., Inc., No. 3:09-CV-298, 2013 WL 11327134, at *33
(M.D. Fla. Oct. 18, 2013), aff'd sub nom. Moore v. Shands Healthcare, Inc., 617 F. App'x
924 (11th Cir. 2015). As discussed in Section III(b)(ii), the record fails to reflect any
retaliatory animus against Du.
Therefore, Du’s retaliatory hostile work environment claim fails. Summary
judgment will be granted for the VA as to Count IV.
IV. Conclusion
Plaintiff contends that she was discriminated against by the VA based on her race
and sex and retaliated against due to her EEO complaints. Plaintiff complains about
several decisions made by the VA about which she disagrees. But, an employer may
act for a good reason or a bad reason as long as it does not act for an unlawful reason.
Federal Courts do not sit as super-personnel departments that reexamine an entity’s
business decisions. Tonkyro v. Sec’y, Dep’t of Veterans Affairs, No. 8:16-cv-2419-CEH-
AEP, 2024 WL 2846356, at *8 (M.D. Fla. June 5, 2024). The record, taken as a whole,
could not lead a rational trier of fact to find for plaintiff on her claims of discrimination,
retaliation, and retaliatory hostile work environment. Because there is not sufficient
“evidence on which the jury could reasonably find for [Du],” Defendant is entitled to
summary judgment in its favor. Burger King v. Weaver, 169 F.3d 1310,1321(11th Cir.
1999).
Accordingly, it is hereby ORDERED:
1. Defendant’s Motion for Summary Judgment (Doc. 40) is GRANTED.
2. The Clerk is directed to enter judgment in favor of Defendant
Department of Veteran Affairs, to terminate any other pending motions
and deadlines, and to close this case.
3. DONE and ORDERED in Tampa, Florida on June 30, 2026.
CA aiMace: a AiJarnda Ma PL at 0.
Charlene Edwards Honeywell
United States District Judge
Copies furnished to: Counsel of Record; Unrepresented Parties
40