Brazill v. Department of Veteran Affairs

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 3 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

DARRYL J. BRAZILL,

Plaintiff - Appellant,

v. No. 01-3109
(D.C. No. 98-CV-2001-GTV)
DEPARTMENT OF VETERAN (D. Kansas)
AFFAIRS,

Defendant - Appellee,

and

U.S. ATTORNEY GENERAL,
Department of Justice;
U.S. ATTORNEY,

Defendants.

ORDER AND JUDGMENT *

Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Darryl J. Brazill appeals the district court’s grant of summary

judgment in favor of her former employer, the Department of Veteran Affairs

(VA). Because plaintiff has not shown the existence of a genuine factual dispute

or that the district court committed a legal error, we affirm. 1

Plaintiff, an African-American female, was employed by the VA as a nurse

from March 18, 1995, until her termination on March 19, 1996. During the year,

plaintiff was involved in numerous controversies concerning her training, lab and

medication mistakes, friction with coworkers, questions over leave, improper

computer access to another employee’s file, and her inability to work in a

stressful environment. In February 1996, a Nursing Professional Standards Board

unanimously recommended terminating plaintiff from her probationary position

based on her conduct at work, her several episodes of professional incompetence,

1
We begin by noting our jurisdiction over this appeal. On June 19, 2002, we
issued an order to show cause why the case should not be dismissed for lack of a
final order. Based on the parties’ responses, we conclude that plaintiff’s amended
complaint abandoned any purported claims against the “U.S. Attorney General”
and the “U.S. Attorney,” and thus the district court’s order was final as to all
parties.

-2-
her lack of judgment, her inability to get along with coworkers, and her threats

toward her supervisor. See R. Vol. IV, doc. 104, ex. 11 at 2. On March 19,

plaintiff was terminated on these grounds.

During her employment, plaintiff filed two Equal Employment Opportunity

(EEO) complaints, alleging that she was treated poorly and not promoted to a

Telephone Triage Nurse position because of her race and gender, and that she was

being retaliated against because she had filed a prior EEO complaint. After her

March 1996 dismissal, plaintiff filed a third EEO complaint alleging she was

terminated based on race and in retaliation for filing previous EEO complaints.

Plaintiff brought this federal action against the VA, alleging that the agency

discriminated against her based on race and gender and retaliated against her for

filing EEO complaints, all in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17. After months of discovery, the district

court granted the VA’s motion for summary judgment on the following grounds:

(1) plaintiff had not exhausted her remedies on two of her failure-to-promote

claims; (2) plaintiff did not make a prima facie case that she was qualified for the

Telephone Triage Nurse position because she did not have the five years of

experience identified in the vacancy announcement; (3) even if plaintiff made

a prima facie case, she failed to show that the VA’s proffered reason for its

decision was pretextual; (4) plaintiff lacked evidence that she was not promoted

-3-
in retaliation for filing an EEO complaint; (5) plaintiff failed to show that she was

subjected to “adverse employment actions” within Title VII’s protection;

(6) plaintiff failed to make a prima facie case of discriminatory discharge because

her only evidence was her own conclusory evaluation of her performance; and

(7) plaintiff failed to show retaliatory discharge because she failed to show

the VA’s proffered reliance on the Nursing Board’s recommendation was

pretextual. See Brazill v. Gober , No. CIV.A. 98-2001-GTV, 2001 WL 135833

(D. Kan. Feb. 14, 2001).

Plaintiff appeals this decision, appearing pro se. 2
We review de novo the

district court’s grant of summary judgment, viewing the record in the light most

favorable to the party opposing summary judgment. McKnight v. Kimberly Clark

Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). However, where the

nonmoving party bears the burden of proof on an element essential to her case,

the failure to designate specific facts sufficient to show the existence of the

essential element entitles the moving party to summary judgment. See Celotex

Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).

2
Plaintiff was represented in the district court by two different appointed
counsel until each moved to withdraw. Plaintiff represents herself on appeal.

-4-
 On appeal, we examine whether plaintiff’s evidence was sufficient under

the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S.

792, 802-04 (1973). McKnight , 149 F.3d at 1128 (describing analysis used in

discrimination cases). Because the VA has proffered legitimate reasons for all of

its decisions, we presume that plaintiff made a prima facie case on her claims and

examine whether her evidence was sufficient to show that the VA’s reasons were

pretexts for discrimination. Selenke v. Med. Imaging of Colo. , 248 F.3d 1249,

1260 (10th Cir. 2001) (“[W]hen a defendant articulates a reason for terminating

the plaintiff’s employment, establishing a prima facie case is not sufficient to

avoid summary judgment. Instead, the plaintiff must offer evidence that the

defendant’s reason is a pretext for discrimination.”).

Plaintiff’s brief does not identify specific evidence supporting her claim

that the VA was motivated by racial and gender animus, arguing instead that the

facts relied upon by the VA were lies perpetrated by coworkers to get rid of her.

The relevant inquiry, however, is whether the VA honestly believed the

complaints against plaintiff and acted in good faith upon those beliefs.

Id. at 1261; McKnight , 149 F.3d at 1129. We examine the facts as they appeared

to the persons making the employment decision. Selenke , 248 F.3d at 1261.

We cannot second-guess the business judgment of the VA or question whether its

decisions were fair, wise, or even correct. Id.

-5-
 Title VII protects against discrimination based on a forbidden characteristic

such as race or gender, but not personality. See id. Here, there simply is no

evidence that the VA’s actions were motivated by discriminatory animus, and, in

fact, plaintiff’s brief acknowledges that her claims rest on speculation. See Aplt.

Br. at 5 (stating that her coworkers “wanted me out. The only reasons I can

conclude are due to my race, sex, and educational level.”). The district court

did not err, then, in granting judgment on plaintiff’s race and gender

discrimination claims.

Plaintiff also has not pointed to evidence that the VA acted in retaliation

for her previously filed EEO complaints. Absent evidence of a causal connection

between the EEO filings and her lack of promotion and termination, plaintiff did

not raise a triable issue regarding retaliation. See Selenke , 248 F.3d at 1266

(affirming summary judgment when plaintiff failed to offer sufficient evidence to

permit a finding of a causal connection between plaintiff’s protected activity and

defendant’s adverse employment decisions).

The judgment of the United States District Court for the District of Kansas

is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

-6-