Sandra Kurtz v. Department of the Army , 423 F. App'x 572 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0337n.06
No. 10-5042
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
SANDRA KURTZ, May 18, 2011
LEONARD GREEN, Clerk
Plaintiff-Appellant,
v. On Appeal from the United
States District Court for the
JOHN McHUGH, Secretary of the Army; Middle District of Tennessee
DEPARTMENT OF THE ARMY, at Nashville
Defendants-Appellees.
/
Before: GUY, CLAY, and McKEAGUE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Plaintiff Sandra Kurtz appeals from the entry
of judgment in favor of the defendants with respect to her Title VII retaliation claims. See
42 U.S.C. § 2000e-3(a).1 Plaintiff argues that the district court erred in finding that many of
her retaliation claims were time barred; that the defendants had not waived the issue of
timeliness; and that equitable tolling was not warranted. Plaintiff also contends that the
district court erred: (1) in finding that plaintiff had not made out a prima facie case of
retaliation with respect to two claims that were either timely, or assumed to be timely; and
1
Plaintiff has expressly abandoned all of her other claims for relief.
No. 10-5042 2
(2) in determining that two additional claims asserted in response to the motion for summary
judgment had not been properly pleaded. For the reasons that follow, we affirm.
I.
Plaintiff was hired and has continued to work as a health technician in the
Ophthalmology Clinic of Blanchfield Army Community Hospital, which is located at Fort
Campbell, Kentucky. A confrontation in the Clinic more than a year after plaintiff began
working there set in motion the circumstances that led to the alleged retaliation. Specifically,
on Friday, March 26, 2004, the husband of a coworker came to the Clinic and angrily
accused his wife of having a workplace affair. The following Monday, March 29, 2004,
Clinic Chief Dr. Glenn Sandford called a meeting of the technicians and chastised them for
spreading rumors about the alleged affair. Dr. Sandford told them to keep their “damn
mouths shut,” and said a letter would be placed in their personnel files reflecting his directive
not to gossip at work or take issues that could be resolved by a supervisor outside the chain
of command. A letter of counseling was apparently drafted, although defendants maintain
that the letter was never actually placed in any of their personnel files.
Denying involvement in the gossip, plaintiff and fellow technician Jennifer Smith
objected to the threatened action and asked their direct supervisor, Ricarda Johnson, for an
opportunity to speak with Dr. Sanford. Rebuffed by Johnson, they requested a meeting with
Dr. Sandford’s supervisor and a meeting was held with Colonel Stanley Bloustine, Chief of
Surgery, on April 2, 2004. Smith, with the support of plaintiff, complained that it was unfair
to reprimand everyone without regard to culpability and expressed concern about how
No. 10-5042 3
management had responded to the altercation. Both Johnson and Dr. Sandford were present
during that meeting. Plaintiff maintained that her decision to take the issue outside the chain
of command motivated the acts of alleged retaliation that followed.
Specifically, the next day, having heard about the meeting, Dr. Karen Nixon banned
plaintiff and Smith from assisting her during LASIK surgeries. Dr. Nixon said she had “lost
trust” in them, and later testified that it was because she heard that they had criticized her
during the meeting with Colonel Bloustine. Johnson advised plaintiff and Smith about the
ban, telling them that their supervisors were “mad” because they had made them “look bad”
by going outside the chain of command. Johnson also warned plaintiff that she had better
“dot all of [her] ‘i’s and cross all of [her] ‘t’s” because they were watching her. The ban did
not apply to other doctors or procedures, and was lifted by Dr. Nixon later that year.
Plaintiff complained to Dr. Sandford, but he believed there was nothing to investigate
and reminded plaintiff that no one in the hospital had listened to Smith’s complaints. On
May 5, 2004, Smith made her initial contact with an EEO counselor. Plaintiff accompanied
Smith and gave a statement to the EEO counselor, but decided not to initiate her own EEO
complaint at that time. Three more incidents of alleged retaliation followed over the next
year—the “emergency door incident,” the “purse incident,” and the “recycle bin
incident”—each of which involved actions taken by Johnson.
Specifically, in the wake of 9-11, one of the Clinic doors was designated and posted
for use only in an emergency. Staff knew that this door was not to be used except in
emergencies, but did not always comply. Sometime in the spring or summer of 2004,
No. 10-5042 4
plaintiff and another coworker were observed by Johnson attempting to enter the Clinic
through the emergency door. Having been seen, plaintiff walked around to another door and
was met by Johnson. Yelling, Johnson grabbed plaintiff by the arm, took her to the
emergency door, and insisted that she read the sign on the door aloud. Plaintiff claimed that
she was singled out and humiliated in front of patients and staff, while nothing was said to
the coworker who had been with her. No disciplinary action was taken.
Once in either May 2004 or April 2005, plaintiff left her purse unattended at the
technician station while answering someone’s question. Johnson saw this and hid plaintiff’s
purse from her. When confronted, Johnson denied that she had the purse, loudly warned
plaintiff that personal items were supposed to be locked up, and finally returned plaintiff’s
purse to her. Although hospital policy required employees to secure personal items, there
was evidence that other technicians had not been chastised for similar conduct.
Finally, one day in March or April 2005, plaintiff and another employee were asked
to take a recycle bin from the Clinic and empty it into a dumpster. Instead of returning
directly to the Clinic, however, they detoured to another area so that plaintiff’s coworker
could confirm a surgical appointment for her child for the next day. Johnson discovered the
recycle bin unattended in the hallway, and decided to take it to “make a point” about the need
to return directly from such a task. Plaintiff searched for the recycle bin, had an
announcement made over the public address system asking for its return, and offered to pay
for a replacement if it was not found. Plaintiff did not report the loss to Johnson, and
Johnson did not tell plaintiff that she had taken it until several days later. Johnson accused
No. 10-5042 5
plaintiff of being untrustworthy and required plaintiff to inform her before leaving the Clinic
for a break.
On April 29, 2005, Dr. Nixon confronted plaintiff about the notice Dr. Nixon received
listing her and plaintiff among the witnesses to be called at Smith’s EEO hearing on May 3,
2005. According to plaintiff, Dr. Nixon said it would not hurt her or Johnson and could only
hurt plaintiff or Dr. Sandford. She added that Dr. Sandford did not deserve that because he
was “fighting a war.” Plaintiff reported this exchange to Johnson, who was unsympathetic
and said she had warned that they should “dot all of their ‘i’s and cross all of their ‘t’s.”
Plaintiff proceeded to testify at Smith’s EEO hearing on May 3, 2005, and then finally
initiated contact with an EEO counselor on her own behalf on May 9, 2005. Plaintiff
maintains that two additional instances of retaliation followed this protected activity: being
placed on “probation” on May 20, 2005; and having her name removed from a
commendation form on March 9, 2006. The district court found, however, that these
additional claims had not been pleaded in the Complaint or Amended Complaint.
Specifically, plaintiff complained that she was placed on “probation” for an error she
admittedly made on May 17, 2005, when she placed the photographs of one patient’s eyes
into the file of a different patient with the same surname who was having refraction surgery.
The surgeon, Dr. Adam Buchanan, noticed differences in the centration photographs and
caught the error. Plaintiff did not attribute any retaliatory motive to Dr. Buchanan, but
alleged that she was disciplined more severely than others had been for similar conduct. In
fact, plaintiff received only formal counseling and was placed on a performance standards
No. 10-5042 6
review for 90 days, during which plaintiff’s work was reviewed on a daily basis and plaintiff
was expected to have no more than a specified number of errors. There were no further
incidents, the period of close supervision ended, and plaintiff received no further discipline.
Finally, on March 9, 2006, the same day as the administrative hearing on plaintiff’s
EEO complaint, Johnson allegedly altered a form that had been filled out by a patient
intending to recognize plaintiff for outstanding service. According to plaintiff, Johnson
removed plaintiff’s name from the form and substituted the names of other technicians
instead. Plaintiff does not claim that this had any particular consequences, and the
significance of such a patient commendation does not appear in the record. Defendants
emphasized that plaintiff received the “top block,” or the highest rating possible, on her
performance evaluations for the period of May 2005 through June 2006, as well as for July
2006 through April 2007, and May 2007 through April 2008.
The final agency decision denying plaintiff’s claims was issued on September 29,
2006, and this action was filed timely on December 21, 2006. An Amended Complaint was
later filed, and defendants’ first motion to dismiss was withdrawn to allow discovery to
proceed. Defendants filed a new motion to dismiss or for summary judgment after the close
of discovery, which the magistrate judge recommended be granted. Over plaintiff’s
objections, the district court adopted the magistrate judge’s report, granted defendants’
motion for summary judgment, and dismissed the case with prejudice. This appeal followed.
No. 10-5042 7
II.
Since the defendants’ motion to dismiss or for summary judgment involved
consideration of matters outside the pleadings, the district court treated the motion as one for
summary judgment. F ED. R. C IV. P. 12(d). Summary judgment is proper when, viewing the
facts and drawing all inferences in the light most favorable to the nonmoving party, there is
no genuine issue of material fact for trial and the moving party is entitled to judgment as a
matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
F ED. R. C IV. P. 56(c)(2). We review a district court’s grant of summary judgment de novo.
Mazur v. Young, 507 F.3d 1013, 1016 (6th Cir. 2007).
A. Timeliness
A federal employee who wishes to assert employment discrimination claims must
exhaust her administrative remedies. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832
(1976); McFarland v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (Title VII). Although
retaliation claims are often excepted from this requirement because they arise after an EEO
charge is filed, retaliation claims based on conduct that occurred before the charge is filed
must be included in that charge. Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254
(6th Cir. 1998). In this case, plaintiff was required to bring her complaints to the attention
of an EEO counselor “within 45 days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the effective date of the action.” 29
C.F.R. § 1614.105(a)(1).
No. 10-5042 8
Plaintiff’s Amended Complaint alleged that “upon learning of her protected
activities,” defendants retaliated against her in the following ways:
(i) not allowing her to assist in surgeries;
(ii) singling her out as to her use of an emergency door;
(iii) her supervisor physically grabbing her [to take her to the emergency door];
(iv) the supervisor hiding her personal possessions; and,
(v) the supervisor hiding a [recycle bin] over which the Plaintiff had
responsibility.
The magistrate judge found that each of these acts of alleged retaliation were untimely
because they occurred more than 45 days before plaintiff first contacted an EEO counselor
about her claims on May 9, 2005. The district court agreed except as to the “recycling bin
incident,” noting that there was evidence in a statement taken by an EEO counselor
indicating that it had occurred on April 9, 2005. Drawing the inferences in plaintiff’s favor,
the district court assumed that this last claim was timely. Defendants do not appeal from that
determination. Nor does plaintiff dispute that both the exclusion from LASIK surgeries in
April 2004, and the “emergency door incident” in the spring or summer of 2004, arose well
outside the 45-day period.
That leaves only the “purse incident,” which plaintiff contends was brought timely.
The magistrate judge relied on plaintiff’s response to the motion for summary judgment,
which stated that the incident occurred in May 2004. Plaintiff argued in her objections, as
she does here, that the court should have accepted as true her “forecasts of the evidence”
outlined in the agency’s letter identifying the issues accepted for investigation. That letter
No. 10-5042 9
did not represent any fact finding, but simply repeated the allegations in plaintiff’s formal
EEO complaint—including the allegation that Johnson took plaintiff’s purse on April 25,
2005. However, the investigator’s subsequent report noted that plaintiff testified that the
incident occurred in May 2004. Moreover, the affidavit that plaintiff submitted with her
response to the motion for summary judgment placed this event “sometime after May 2004.”
We find no error in the district court’s conclusions with respect to the timeliness of these
claims.
B. Tolling and Waiver
Although timely exhaustion is a prerequisite to filing suit, exhaustion is not
jurisdictional and is subject to equitable tolling, waiver, and estoppel. Mitchell v. Chapman,
343 F.3d 811, 820 (6th Cir. 2003). Equitable tolling is to be applied only sparingly. Dunlap
v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001). This court has consistently
considered the following factors in determining whether equitable tolling is appropriate: (1)
lack of notice of the filing requirement; (2) lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant;
and (5) plaintiff’s reasonableness in remaining ignorant of the legal requirement for filing
her claim. Id. at 1009.
Here, there was evidence that notices regarding the EEO filing requirement were
posted in plaintiff’s workplace. In addition, plaintiff accompanied Smith to the EEO office
in May 2004, but decided not to initiate a claim on her own behalf until May 2005. The
district court found that plaintiff had constructive notice of the filing requirement, such that
No. 10-5042 10
it would be unreasonable for plaintiff to have remained ignorant of it. Without contesting
that determination, plaintiff argues that the district court erred by failing to consider the lack
of prejudice to defendants if they had been required to defend these claims. As the Supreme
Court has explained: “Although absence of prejudice is a factor to be considered in
determining whether the doctrine of equitable tolling should apply once a factor that might
justify such tolling is identified, it is not an independent basis for invoking the doctrine and
sanctioning deviations from established procedures.” Baldwin Cnty. Welcome Ctr. v. Brown,
466 U.S. 147, 152 (1984).
Alternatively, plaintiff argues that waiver should bar defendants from raising
untimeliness as a defense because the agency investigated her claims and conducted an
administrative hearing on the merits. This court has held, however, that agencies do not
waive the defense of untimely exhaustion merely by accepting and investigating a complaint
of discrimination. Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004). “Rather, waiver
occurs when the agency decides the complaint on the merits without addressing the
untimeliness defense.” Id. (citing Ester v. Principi, 250 F.3d 1068, 1071-72 (7th Cir. 2001),
and Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997)). As plaintiff herself
concedes, the final agency decision in this case addressed the untimeliness defense and found
that, with the exception of the claim that she was placed on “probation” on May 20, 2005,
none of plaintiff’s claims were raised with an EEO counselor within the required 45 days.
Accordingly, defendants did not waive the untimeliness of the plaintiff’s claims arising from
the “surgery ban,” the “emergency door incident,” or the “purse incident.”
No. 10-5042 11
C. Retaliation
The district court restricted its consideration of the merits to plaintiff’s claims of
retaliation arising from the “recycle bin incident” and the “purse incident,” which were the
only two claims in the Amended Complaint that plaintiff had even argued occurred within
the 45-day window. Plaintiff appeals from the district court’s finding that she failed to make
a prima facie showing of retaliation under Title VII.
Title VII makes it unlawful to retaliate against an employee either because she
“opposed any practice made unlawful [by Title VII],” or because she has “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
[under Title VII.]” 42 U.S.C. § 2000e-3(a). A plaintiff may establish a prima facie case of
retaliation by showing: (1) that she engaged in protected activity; (2) that the exercise of
protected rights was known to the defendant; (3) that the defendant took adverse action, or
subjected plaintiff to severe or pervasive retaliatory harassment; and (4) that there was a
causal connection between the protected activity and the adverse action. Garner v.
Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir. 2009).2
With respect to the first and fourth prongs, defendants continue to argue that
plaintiff’s claims must fail because she herself testified that all of the acts of alleged
retaliation were motivated by her involvement in the meeting with Col. Bloustine. Plaintiff
2
Plaintiff asserts in passing that the district court erred by failing to evaluate her claims as
establishing retaliatory harassment, but this was not a claim plaintiff made in the district court. Nor has
plaintiff alleged facts from which the court may infer that “the workplace [was] permeated with
‘discriminatory intimidation, ridicule and insult,’ that [was] sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (citations omitted).
No. 10-5042 12
argued that this was protected activity under the “opposition clause,” see Crawford v. Metro.
Gov’t of Nashville and Davidson Cnty., Tenn., 129 S. Ct. 846, 851-52 (2009), but made no
attempt to show that the opposition voiced during that meeting was opposition to a practice
made unlawful by Title VII. In fact, the evidence showed that the complaints expressed had
to do with the imposition of discipline without regard for culpability and management’s
response to the confrontation.
What defendants seem to ignore, however, is that plaintiff testified that the fallout
from that meeting led her to engage in other protected activity, which she believed had also
motivated some of the acts of alleged retaliation. Specifically, as the district court found,
plaintiff engaged in protected activity under the “participation clause” by making a statement
to the EEO counselor at the time of Smith’s initial contact on May 5, 2004; by testifying at
Smith’s EEO hearing on May 4, 2005; and by initiating her own EEO proceedings on May
9, 2005. Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003).3
Causation is shown where the evidence is “sufficient to raise the inference that
protected activity was the likely reason for the adverse action.” Michael v. Caterpillar Fin.
Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007). Accepting plaintiff’s chronology, we
assume that the “recycle bin incident” and the “purse incident” occurred on April 9, and April
25, 2005, respectively. These incidents preceded not only Smith’s EEO hearing on May 3,
2005, but also plaintiff’s initial EEO contact on May 9, 2005. Likewise, although plaintiff
3
Of course, defendants’ point is well-taken with respect to the otherwise time-barred claim arising
from the ban on assisting Dr. Nixon during LASIK surgeries because the ban could not have been motivated
by plaintiff’s subsequent assistance with, participation in, or initiation of EEO proceedings.
No. 10-5042 13
asserted that Johnson acted in anticipation that plaintiff would participate in Smith’s EEO
hearing, the district court found that there was nothing more than supposition to support that
contention. Even Dr. Nixon’s alleged reaction to the EEO hearing notice identifying plaintiff
as a witness post-dated these incidents. Still, there was evidence that Johnson knew that
plaintiff had gone to the EEO office with Smith the year before and that Johnson had treated
plaintiff differently from other similarly situated employees on several occasions. See
Barrett v. Whirlpool Corp., 556 F.3d 502, 516-17 (6th Cir. 2009). We need not decide
whether this would be sufficient to establish causation, however, because neither represents
a materially adverse action.
In Burlington Northern & Santa Fe Railway Co., 548 U.S. 53 (2006), the Court
considered the level of seriousness to which the harm must rise in order to constitute
actionable retaliation. Specifically, the Court held that “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which in
this context means it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Id. at 68 (citation omitted). Reiterating that Title
VII does not create a general civility code for workplaces, the Court explained that the
purpose is to prohibit “employer actions that are likely ‘to deter victims of discrimination
from complaining to the EEOC,’ the courts, and their employers,” and, “normally petty
slights, minor annoyances, and simple lack of good manners will not create such deterrence.”
Id. (citations omitted). While petty, juvenile, and annoying, we agree with the district court
that a reasonable employee would not find it materially adverse for a supervisor to hide her
No. 10-5042 14
purse because it was unsecured, or hijack an abandoned recycle bin “to make a point” about
the need to return directly to work. Neither incident resulted in discipline, negative
evaluation, or loss of an opportunity that might contribute to advancement.
D. Additional Claims
Next, plaintiff contends that the district court erred by refusing to consider two
additional claims of retaliation: the formal counseling imposed on May 20, 2005; and the
alteration of the patient commendation form on March 9, 2006. Although timely exhaustion
was not an issue, both incidents predated the filing of the complaint in this case but were not
included in either the Complaint filed in December 2006, or the Amended Complaint filed
in December 2007. The district court found that plaintiff’s failure to plead these claims or
to seek to add them through amendment under Fed. R. Civ. P. 15(a), precluded plaintiff from
asserting them in response to defendants’ motion for summary judgment. Accord Tucker v.
Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 787-88 (6th Cir. 2005); Carter
v. Ford Motor Co., 561 F.3d 562, 567-68 (6th Cir. 2009) (stating that the issue is “fair
notice”).
In Tucker, this court explained that the modest notice pleading standard applicable in
the context of a motion to dismiss under Rule 12(b)(6) does not apply when the sufficiency
of a complaint arises at the summary judgment stage. Id. at 788. Plaintiff argues that the
defendants were not unfairly surprised by these claims because they were raised during
discovery. Specifically, plaintiff points to a reference to these incidents in a narrative
response to one of defendants’ written interrogatories. Having omitted these incidents from
No. 10-5042 15
the specific acts of alleged retaliation alleged in the Complaint and the Amended Complaint,
that interrogatory answer cannot be said to have given defendants notice that plaintiff was
asserting these additional claims. In addition, plaintiff argues that there would be no unfair
surprise to defendants with respect to the formal counseling claim, at least, because it was
among the claims accepted for investigation by the agency. Although that claim was fully
investigated in the administrative proceedings, plaintiff’s Complaint narrowed the retaliation
claims being asserted in the federal action. The district court did not err in finding that
plaintiff could not assert or revive these additional claims in response to the defendants’
motion for summary judgment. Id.
Moreover, even if we were to find error in the refusal to consider these claims, we
would affirm the judgment on other grounds. First, as noted earlier, the record did not
suggest any consequences of the alteration of the patient commendation form or provide
evidence concerning the circumstances surrounding that allegation. We have no difficulty
concluding that plaintiff did not show that a reasonable employee would consider this act to
be materially adverse. Second, even assuming that plaintiff would be able to make a prima
facie showing of retaliation with respect to the formal counseling, defendants have
articulated a legitimate nonretaliatory reason for the action and plaintiff did not come forward
with evidence sufficient to create a jury question on the issue of pretext. Wrenn v. Gould,
808 F.2d 493, 500-01 (6th Cir. 1987). Plaintiff admitted her error and that it involved patient
safety, conceded that there was no retaliatory motive on the part of the surgeon who caught
the error, and acknowledged that she successfully completed the 90-day performance
No. 10-5042 16
standards review. Plaintiff asserted that she was disciplined for this error when another
employee was not disciplined for similar conduct, but the employee in question testified that
her work was likewise reviewed for a period of time and that she was expected to have no
more than a certain number of errors.
AFFIRMED.