Mitchell v. Secretary Veterans Affairs

467 F. Supp. 2d 544 (2006)

Edward Bernard MITCHELL, Plaintiff,
v.
SECRETARY VETERANS AFFAIRS, Defendant.

No. CA 204-2237-PMD-RSC.

United States District Court, D. South Carolina, Charleston Division.

December 11, 2006.

Chalmers Carey Johnson, Chalmers Johnson Law Firm, Charleston, SC, for Plaintiff.

Christie V. Newman, Terri Hearn Bailey, U.S. Attorneys Office, Columbia, SC, for Defendant.

ORDER

DUFFY, District Judge.

Plaintiff Edward Bernard Mitchell ("Mitchell") filed this action for termination of his employment on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq and for retaliation pursuant to § 704(a) of Title VII. Mitchell sues Anthony Principi, the Secretary of the Department of Veteran Affairs, for the alleged discrimination and retaliation he suffered while employed in the Surgical Intensive. Care Unit ("SICU") at the Ralph Johnson VA Medical. Center in Charleston, South Carolina. Defendant moved for summary judgment on April 3, 2006. On June 28, 2006, a United States Magistrate Judge issued a Report and Recommendation ("R & R"), made in accordance with 28 U.S.C. § 636(b)(1)(B), which recommended that summary judgment be granted. A party may object, in writing, to a report and recommendation within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Mitchell has filed timely objections to the R & R.

BACKGROUND

The facts, either undisputed or presented in a light most favorable to Mitchell, are as follows:

In August of 1999, Nurse Manager Letha Rogers ("Rogers"), a black female, interviewed and hired Mitchell, a black male, to work as a temporary probationary employee^[1] in the SICU at the Ralph Johnson VA Medical Center. Mitchell's temporary appointment was for a period not to exceed thirteen months and could be terminated at any time up to the expiration date of the appointment. Mitchell's duties as a R.N. in the SICU included monitoring patients, giving drugs, and reporting to the doctors. After a month of initial orientation, Mitchell worked the night shift, from 7 p.m. until 7 a.m. After three weeks on the night shift, Mitchell observed that the two charge nurses who worked weekends, Bill McMaster, a white male, and Kathy Bunting, a white female, "wouldn't do anything for the patients. . . . [t]hey were abusive to the patients." (Pl.Dep. pp. 65-66.) Mitchell reported his concerns to Rogers.^[2] Mitchell is unaware of any investigation into his reports and is unaware if any counseling or discipline resulted from his reports. He believes, however, that Rogers did nothing to remedy the situations he reported.

In June of 2000, Mitchell approached Rogers, and told her that he felt that the white nurses could get away with anything because of their race, and that he felt that this was racist. Rogers did not respond to Mitchell's concern. Three weeks later, Mitchell received a letter notifying him that he was being terminated as of July 21, 2000, months before the end of his contract. (Termination letter 7-7-00.) The letter did not state a reason for the termination, but noted that Mitchell had been "advised of the facts `about temporary appointments and that [his] appointment was subject to termination at any time." (Id) When Mitchell received the letter, he demanded to know the reason behind the decision. At that time, Rogers told Mitchell that he was being terminated because his "skills were substandard." (Pl.Dep. p. 101.) Mitchell refused to sign the letter and Rogers noted that he "wants more documentation for reasons he is being fired." Accordingly, on August 29, 2000, Rogers wrote a Proficiency Report summarizing Mitchell's performance. She noted that although Mitchell "demonstrated skillful customer service abilities," he "was counseled various times concerning patient care issues such as not taking off orders resulting in medication error, failure to accurately document urine output on a GU patient with a CBI infusing and administering sedation after an order was discontinued." (Proficiency Report 8-29-00.) The. Report concluded that Mitchell's "critical care skills were lacking knowledge and performance." (Id.) Rogers ranked Mitchell's performance as "low satisfactory" and Sarah Williams, the Associate Chief of Nursing and Patient Care, concurred in Roger's assessment. (Id.)

There are five instances cited by Defendant and uncontested by Mitchell, in which Mitchell's work performance was found to be deficient: (1) Mitchell admitted that, in December 1999, he delayed admitting a patient to SICU for an hour, even though he knew the doctor had ordered the transfer. (2) Mitchell admitted that, in February 2000, he failed to notify the chief resident of an intern's indecisive action which may have contributed to the patient's death. Mitchell also admitted that two weeks later he was counseled on being the patient's advocate in this type of situation. (3) Mitchell admitted that on May 22, 2000, he gave 10 milligrams of the drug Versed to a patient without a doctor's order. Following this medication error,. the patient had a stroke and died. (4) Mitchell acknowledged that on May 24, 2000, he failed to properly document continued bladder irrigation and urine output on one patient. (5) Mitchell admitted that patient Pie's doctor had ordered that Pie's NG tube should not be manipulated without calling the doctor. Plaintiff also admitted that, in disregard of this direct order, he replaced Pie's NG tube on June 14, 2000, and he did not document that the intern was present.

On July 6, 2004, Mitchell filed a cause of action in this court, alleging that the termination of his employment was on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq and for retaliation pursuant to § 704(a) of Title VII.

STANDARD OF REVIEW

A. Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 269, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). The court reviews de novo those portions of the R & R to which a specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1)(c).

B. Legal Standard For Summary Judgment

To grant a motion for summary judgment, the court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence but rather to determine if there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The "obligation of the nonmoving party is `particularly strong when the nonmoving party bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual bases." Celotex, 477 U.S. at 327, 106 S. Ct. 2548.

OBJECTIONS

After consideration of the facts supported by the evidence, the Magistrate Judge recommended in his R & R that Defendant's motion for summary judgment be granted. The Magistrate Judge found that the evidence taken in a light most favorable to Plaintiff showed him to have been a temporary employee who performed below his employer's reasonable expectation; accordingly, he found that Plaintiff had not proven essential elements of his disparate treatment or retaliation claim.

Mitchell cites three objections to the R & R: (1) the Magistrate Judge failed to mention that Defendant agreed to withdraw its asserted defense of issue preclusion; (2) the Magistrate Judge erred in finding that the record does not present genuine issues of material fact as to the claim for disparate treatment discrimination; and (3) the Magistrate Judge failed to address his retaliation claim.

(1) Plaintiff objects that the Magistrate Judge erred in failing to mention that Defense counsel withdrew the defense of issue preclusion and judicial estoppel at the hearing of this matter.

The court finds that this objection is without merit. The Magistrate Judge stated in footnote two on page eight of the R & R that "Defendant withdrew [the defense of issue preclusion] at oral argument." (R & R at 8.) As such, the Magistrate Judge correctly noted that the defense of issue preclusion and judicial estoppel was no longer before the court and did not refer to or rely upon this defense in reaching his recommendation that summary judgment be granted.

(2) Plaintiff objects that the Magistrate Judge erred in finding that the record does not present a genuine issue of material fact as to his claim for disparate treatment.

Plaintiff asserts that the Magistrate Judge erred by failing to accept the facts and draw all inferences in a light most favorable to Plaintiff. Specifically, Plain tiff claims that the Magistrate Judge "simply [left] out Plaintiffs testimony and that of his supervisors concerning his [good] work performance" and failed to consider other "evidence from which a reasonable juror could find that he had not acted incompetently in any of the scenarios raised by the Defendant." Plaintiff further objects that the Magistrate Judge did not address the issue of disparate treatment other than to simply conclude that there was no evidence of it.

Mitchell premises his disparate treatment in discharge claim on his assertion that white nurses also violated hospital policies but escaped discipline and discharge. To establish a prima facie case for disparate treatment claim under Title VII, the plaintiff bears the initial burden of proving by a preponderance of the evidence: (i) that he belongs to a racial minority; (ii) that he was qualified for his job and performing his work at a level which met his employer's reasonable expectations; (iii) that he was discharged; and (iv) other similarly situated employees who were not members of the protected class were not discharged. Taylor v. Virginia Union University, 193 F.3d 219, 233 (4th Cir.1999); see also Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 133 (4th Cir.2002). If the plaintiff makes this showing, he has established a rebuttable presumption of unlawful discrimination. McDonnell-Douglas, 411 U.S. at 802, 93 S. Ct. 1817. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the defendant provides such an explanation, no presumption of discrimination remains, and the burden shifts back to the plaintiff. The plaintiff must then have an opportunity to prove that the legitimate reasons offered by the defendant were not its true reasons, and were a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. 1089.

In this case; it is uncontested that Plaintiff is a member of a minority, and that he was discharged; however, the Magistrate Judge found that the "evidence taken in the light most favorable to the plaintiff shows him to be a temporary employee, who performed below his employer's reasonable expectation." (R & R at 19.) The R & R also stated that Plaintiff "has no basis to know, and does not actually know, if any [white] nurses were counseled or disciplined as a result of his numerous complaints to" his supervisor. (R & R at 10.) As such, although he does not explicitly state that this is his reasoning, the Magistrate Judge found that summary judgment is appropriate because Plaintiff failed to present evidence supporting factors two and four of a prima facie case of disparate treatment. Plaintiff objects to both of these findings.

A. Work Performance

Plaintiff claims that he has presented a genuine issue of material fact that his work was satisfactory. Plaintiff submitted the affidavits of two supervising nurses who worked with Plaintiff at the VA Medical Center, Stanley Greenwald and Linda Williams. Both of these supervising nurses testified that Plaintiff "perform[ed] his duties competently," "was a hard worker and responsible and took good care of his patients and followed the regulations of the VA." Plaintiff claims that the testimony in these affidavits raises genuine issues of material fact regarding whether his work was satisfactory. Because on a motion for summary judgment all evidence must be considered in the light most, favorable to Plaintiff, Plaintiff argues that it was error for the Magistrate Judge to find that he had not presented sufficient evidence that his work performance was satisfactory.

As an initial matter, the court notes that although the plaintiff's burden at this stage is "not onerous," it nevertheless requires him to "prov[e] by the preponderance of the evidence a prima facie case of discrimination." Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515 (4th Cir. 2006) (citing Burdine, 450 U.S. at 252-53, 101 S. Ct. 1089); Mackey v. Shalala, 360 F.3d 463, 468 (4th Cir.2004) ("`[T]he plaintiff-employee must first prove a prima facie case of discrimination by a preponderance of the evidence.'") (quoting Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996)). "And, because a plaintiff must show by a preponderance of the evidence that he met the employer's legitimate job expectations to prove his prima facie case, the employer may counter with evidence defining the expectations as well as evidence that the employee was not meeting those expectations." Warch, 435 F.3d at 516. To require otherwise would turn the plaintiffs burden at the prima facie stage into a mere burden of production, making it "difficult to imagine a case where an employee could not satisfy the `qualified' [or legitimate expectation] element. . . ." Id. (citing Nizami v. Pfizer Inc., 107 F. Supp. 2d 791, 801 n. 11 (E.D.Mich.2000)). Accordingly, the court considers both the evidence presented by Mitchell and the evidence presented by Defendant in determining whether Mitchell has shown that he met his employer's legitimate performance expectations.

Considering all the evidence, the court finds that the Magistrate Judge did not err in finding that Mitchell failed to raise a genuine issue of material fact supporting his contention that his work performance was satisfactory. Defendant asserts that Mitchell failed to meet reasonable expectations, and cites five documented instances in which Mitchell violated hospital policy. In these five instances, it is uncontested that his performance was substandard, and failed to meet his employer's reasonable expectations. In the affidavits referred to by Mitchell, neither Mr. Greenwald nor Ms. Williams address these instances of substandard performance. The court further notes that according to their affidavits, neither Mr. Greenwald nor Ms. Williams worked directly with Mitchell in the SICU. Mr. Greenwald was a respiratory technician in the MICU with limited interactions with Mitchell, and Ms. Williams worked the day shift in the SICU, while Mitchell worked the night shift.^[3] Accordingly, while they both testified that they had an "opportunity to observe his performance as a nurse" and found him to "be competent and performing his duties competently," their observations of his work performance were necessarily more limited than that of his Nurse Manager. As such, viewing the evidence in the light most favorable to Mitchell, the court concludes that no reasonable jury would find that he was meeting Defendant's legitimate performance expectations. Therefore, the court finds that the Magistrate Judge did not err in finding that Mitchell failed to establish a genuine issue of material fact regarding his good work performance.

B. Disparate Treatment

Plaintiff also objects that he has presented a genuine issue of material fact that other similarly situated white employees were treated more favorably. Plaintiff relies on his own affidavit as well as the affidavits of Mr. Greenwald and Ms. Williams who both testified that, despite Plaintiffs reporting on white nurses, including Bill McMasters and Kathy Bunting, for violations of VA policy, "nothing to [their] knowledge was done." Ms. Williams also testified that Plaintiff complained to his supervisor about the conduct of nurses who had been hired after him and that "to [her] knowledge nothing was ever done to correct the situations [Plaintiff] reported." Plaintiff also refers to his own affidavit wherein he asserts that "McMasters held a patient up fro[m] coming into the SICU, and was not reprimanded?' As such, Plaintiff asserts that he has presented evidence raising a genuine issue of material fact that white nurses who violated hospital policy were treated more favorably than he was treated.

First, the court notes that the affidavits of Mr. Greenwald and Ms. Williams do not constitute evidence that white nurses were treated more favorably. Mr. Greenwald testified only that "Mr. Mitchell informed me that Ms. Rodgers did not pay attention to [his complaints regarding the white nurses] and nothing was done." As such, Mr. Greenwald does not testify as to his own personal knowledge regarding the events in this case, but only recites the version of events told to him by Mitchell. Similarly, Ms. Williams testified that Mitchell "complained to me about the employees who were not helping him and who would spend most of their shift on the internet. . . . [Mitchell] told me that he had also reported them to the Nurse Manager. To my knowledge nothing was ever done to correct the situations [Mitchell] reported." As such, neither Mr. Greenwald nor Ms. Williams testified that they had personal knowledge of either the alleged infractions by white nurses or the disciplinary actions taken to remedy these alleged infractions.

The court further notes that Mitchell has not shown that the white nurses that allegedly were not disciplined for their violations of hospital policy were "similarly situated" for purposes of determining disparate treatment. To be "similarly situated," the individuals with whom Mitchell attempts to compare himself must be similarly situated in all material aspects. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir.1997) (finding that individuals were not similarly situated to plaintiff where individuals had not engaged in same misconduct). Mitchell admits that he does not know of any other probationary employee who had violated hospital policy or received allegations of bad patient care and had not been disciplined or discharged.^[4] (Pl.Dep. p. 150.) Similarly, Mitchell has no first hand knowledge as to whether and under what circumstances any other SICU nurses were ever disciplined. (Pl.Dep. pp. 109, 110, 150.) Accordingly, the court finds that Mitchell has not presented evidence that other similarly situated employees who were not members of the protected class were treated more favorably under similar circumstances. Therefore, Mitchell has not presented a prima facie case of disparate treatment, and the Magistrate Judge correctly found that Defendant's motion for summary judgment on this claim should be granted.

(3) Plaintiff objects that the Magistrate Judge erred in failing to discuss his retaliation claim.

Mitchell contends that he did forecast sufficient evidence to establish a "very strong claim" of retaliation under Title VII and that the Magistrate Judge erred by recommending that summary judgment be granted as to all causes of action without addressing the issue of retaliation at all.

To establish a prima facie case of retaliation, a plaintiff must prove three elements: (1) that he engaged in protected activity, (2) that an adverse employment action was taken against him, and (3) that there was a causal link between the protected activity and the adverse employment action See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th Cir.),, cert. denied, 519 U.S. 818, 117 S. Ct. 70, 136 L. Ed. 2d 30 (1996). Under the burden-shifting scheme, if Plaintiff succeeds in proving a prima facie case, the burden of going forward shifts to Defendant to provide evidence of a legitimate non-discriminatory reason for taking the adverse employment action. See, e.g., Matvia v. Bald Head Island Manag., 259 F.3d 261, 271 (4th Cir.2001); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir.2000). Should Defendant articulate a non-discriminatory reason, the burden then shifts back to Plaintiff to demonstrate that Defendant's proffered reason is a pretext for retaliation. Smith, 202 F.3d at 248. To do so, Plaintiff must demonstrate, through either direct or circumstantial evidence, "both that the [proffered nondiscriminatory] reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). In applying St. Mary's, the Fourth Circuit has held "that to survive a motion for summary judgment under the McDonnell Douglas paradigm the plaintiff must do more than merely raise a jury question about the veracity of the employer's proffered justification. The plaintiff must have developed some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action." Vaughan v. The Metrahealth Cos., 145 F.3d 197, 202 (4th Cir. 1998); Smith, 202 F.3d at 249. As such, in order to avoid summary judgment, Plaintiff must present some evidence, either direct or circumstantial, that Defendant's stated reason for terminating Plaintiff was a pretext for retaliation.

In this case, it is undisputed that Mitchell suffered an adverse employment action and therefore satisfies the second requirement of the prima facie case: He was terminated. See Hartsell v. Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir.1997) (noting that termination is an adverse employment action). It is further undisputed that, three weeks before his termination, Plaintiff told his supervisor, Ms. Letha Rogers, that "he felt that the white nurses could get away with anything because of their race, and that he felt that this was racist."^[5] (Pl. Response to Mot for SJ.) He asserts that this complaint to Ms. Rogers constituted activity protected under Title VII,^[6] and that, because he was terminated only three weeks after the complaint, a causal connection exists between the protected activity and the termination. In order to prove a causal connection based on temporal proximity alone, the time between the protected activity and the adverse employment action must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001); Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.1986) (protected activity must be "closely followed by adverse actions," and one-month period, was., sufficient to make out a prima facie case of retaliation.). Because the adverse employment action occurred only three weeks after the alleged protected activity, there is a genuine issue of material fact as to whether a causal connection exists between the two events. The court therefore finds that Plaintiff presented evidence supporting all three elements of a prima facie case of retaliation.

The R & R specifically addresses Plaintiffs retaliation claim in only one paragraph in the Facts section: "Plaintiff's retaliation claim is that he accused Rogers of racial discrimination because plaintiff believes that Rogers did not punish McMasters for holding up a coding patient from coming into the SICU. As a result of this accusation, plaintiff was thereafter terminated, according to the plaintiff. Plaintiff claims his complaint to Rogers that Rogers discriminated on the basis of race is activity protected under Title VII." (R & R at 18.) Although Mitchell presents evidence supporting a prima facie case of retaliation, the Discussion section of the R & R does not mention Plaintiffs retaliation claim and articulates no reason for summarily finding that "no issue of genuine material fact" exists regarding this claim. As such, the court agrees with Plaintiff that the R & R does not adequately address the retaliation claim.

Rather than remanding the matter to the Magistrate Judge, the court now considers whether Defendant has provided evidence of a legitimate non-discriminatory reason for terminating Mitchell and, if so, whether Mitchell has demonstrated that Defendant's proffered reason is a pretext for retaliation.^[7]See, e.g., Matvia v. Bald Head Island Manag., 259 F.3d 261, 271 (4th Cir.2001). Defendant asserts that Mitchell was discharged for his substandard performance on the job. Defendant points to the five admitted instances in which Mitchell was counseled or disciplined for his violations of hospital policy. His supervisor, Ms. Rogers, reported that his "critical care skills were lacking knowledge and performance" and "after initiatives to correct these deficiencies were unsuccessful, Mr. Mitchell was released from duty." (Proficiency Report 8-29-00.) Defendant's legitimate, documented concerns with Mitchell's work performance constitute nondiscriminatory reasons for terminating Mitchell's temporary position. As such, in order to avoid summary judgment, Mitchell must come forward with evidence that those reasons were a mere pretext for discrimination. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000).

Although Mitchell does not deny that he committed the five infractions cited above, he argues that these nondiscriminatory reasons for his termination were pretextual because the termination letter did not list substandard performance as the reason for termination. Mitchell asserts that the termination letter cited "fluctuating staffing needs" as the reason for his termination, and Defendant only cited his substandard performance as the reason for his termination after he had filed a complaint with the EEO. Because Defendant allegedly changed positions regarding the reason for his termination, Mitchell asserts that the claim that his work performance was inadequate was merely a cover-up for Defendant's retaliatory motive. This is clearly not the case, however, as the termination letter cites no reason for the termination. As such, Mitchell has presented no evidence that Defendant ever was inconsistent or changed his reasons for terminating Mitchell's temporary employment. Further, the court notes that "once an employer has provided a non-discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it." Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir.2006). The former would not create a "genuine" dispute, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), the latter would fail to be "material," see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In this case, the fact that the termination letter did not specify that Mitchell's poor work performance was the reason for the termination does not cast doubt on the explanation's validity.

The court concludes that Mitchell has not introduced sufficient evidence to satisfy his burden of demonstration that Defendant's proffered legitimate reason for terminating him was false and pretext. Combs-Burge v. Rumsfeld, 170 Fed.Appx. 856 (4th Cir.2006). Mitchell's assertion that Defendant's reasons for terminating him were false is not sufficient to avoid summary judgment on his retaliation claim. Schuster v. Lucent Technologies, Inc., 327 F.3d 569 (7th Cir.2003) (to avoid summary judgment in favor of employer on his age discrimination claim based on failure to show pretext, vice president had to do more than simply allege that employer's executives were lying about their real reason for terminating him; he had to point to specific facts sufficient to cast doubt on legitimate restructuring and financial reasons offered by employer, or which raised doubts as to credibility of executives' testimony). Accordingly, the court finds that Mitchell's retaliation claim fails as a matter of law.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant Anthony Principi's Motion for Summary Judgment is GRANTED.

AND IT IS SO ORDERED.

REPORT AND RECOMMENDATION

CARR, United States Magistrate Judge.

This employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e, et. seq., is before the undersigned United States Magistrate Judge for a report and recommendation on the defendant's motion for summary judgment filed on April 3, 2006.

On July 6, 2004, the plaintiff, Edward Bernard Mitchell, sued his former employer, defendant Anthony J. Principi, Secretary, Dept. Of Veteran Affairs, and alleged that he was discharged because of his race, age, and sex, and that he was subjected to a hostile environment because of his race, age, and sex, and that he was discharged in retaliation for engaging in protected activities, all in violation of Title VII.

The defendant was not served until January 31, 2005, NS answered the complaint on March 8, 2005. After various extensions of time, discovery closed on March 6, 2006.

The defendant filed the instant motion for summary judgment on April 3, 2006. The plaintiff filed an opposition to the motion on May 16, 2006, and filed various exhibits on May 17, 2006. A hearing on the motion was held before the undersigned on May 17, 2006, as well. Hence, it appears consideration of the motion is appropriate.

SUMMARY JUDGMENT STANDARD

To grant a motion for summary judgment, this court first must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge, is not to weigh the evidence,, but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which the party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). All evidence should be viewed in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-23 (4th Cir.1990). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "[W]here the record taken as a whole could not lead a rational trier of fact to find for, the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Unsupported speculation is not enough to withstand a motion for summary judgment. Ash v. United Parcel Service, Inc., 800 F.2d 409, 411-12 (4th Cir.1986). Indeed, the court should draw reasonable inferences on behalf of the non-moving party, but it must not slip into "sheer speculation." The court may not move beyond inference and into the realm of mere conjecture. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir. 1982).

STANDARD IN TITLE VII CASES

Title VII was fashioned "`to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identified group of white employees over other employees . . ."' Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)). Title VII now makes it unlawful to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

Under the disparate treatment scenario of employment discrimination, as here, a plaintiff must demonstrate that the "employer . . . treats some people less favorably than others because of their . . . sex. . . ." International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977).

Recently the Fourth Circuit reiterated that there are two avenues of proof by which an aggrieved employee can prove a disparate treatment Title VII violation. Brinkley v. Harbour Recreation Club, 180 F.3d 598 at 606-607 (4th Cir.1999). First, an employee may utilize "ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue." Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992). To over come a summary judgment motion based upon this method of proof, the plaintiff "must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact." Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.1988). "What is required is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995). If such evidence is lacking, the plaintiff may nevertheless proceed under McDonnell Douglas burden shifting proof scheme. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see, Tuck, 973 F.2d at 374.

The McDonnell Douglas standard allocate the burdens of proof. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981). Under this standard, the plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination: that she belongs to a minority, that he was performing her work at a level which met his employer's reasonable expectations, and that he suffered an adverse employment action under circumstances which could indicate race was not treated neutrally.^[1]

If the plaintiff makes that showing, he has established a rebuttable presumption of unlawful discrimination. McDonnell-Douglas, 411 U.S. at 802, 93 S. Ct. 1817. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant provides such an explanation, no presumption of discrimination remains, and the burden shifts back to the plaintiff. "[T]he plaintiff must than have an opportunity to prove . . . that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207.

The Supreme Court recently clarified the plaintiffs burden at the pretext stage in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The Court reiterated that evidence of pretext, combined' with the plaintiffs prima face case, does not compel judgment for the plaintiff, because "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. at 2108 (quoting. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)). However, the Reeves Court made plain that, under the appropriate circumstances, plaintiffs prima facie case, combined with sufficient evidence to find that the employers asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109.

The plaintiff also brought a claim that he was terminated because he accused Rogers of failing to investigate and punish McMasters as a result of Plaintiffs complaints because of Rogers' racial animus. The Opposition Clause of Title VII makes it "an unlawful employment practice for an employer to discriminate against any of its employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). The series of proofs and burdens outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), apply to retaliation claims under § 704(a). See, Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir.1998). To establish a prima facie claim of retaliation under Title VII, a plaintiff must establish (1) that he engaged in protected activity, (2) that he was subject to an adverse employment, action, and (3) that there was a causal link between the two. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.1997). The burden then shifts to the employer to articulate a legitimate non-retaliatory reason for the adverse action. Beall, 130 F.3d at 619. If the employer does so, the plaintiff must then demonstrate that the employer's reason was pretext for retaliation by proving both that the reason was false, and that retaliation was the real reason for the challenged conduct. Beall, 130 F.3d at 619. However, under appropriate circumstances, 2`a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Equal Employment Opportunity Comm'n v. Sears Roebuck and Co., 243 F.3d 846, 852 (4th Cir. 2001) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).

DEFENDANT'S GROUNDS FOR SUMMARY JUDGMENT

The defendant argued he is entitled to judgment as a matter of law because:

(1) Plaintiff cannot establish disparate treatment.

(2) Plaintiff cannot establish retaliation as a reason for the termination of his employment.

(3) Plaintiffs action is barred by issue preclusion after his settlement in the Whistleblower action.^[2]

FACTS

The facts either undisputed or as presented by the plaintiff, with all reasonable inferences drawn in favor of the plaintiff, to the extent supported by the record, are as follow.

Nurse Manager Letha Rogers, a black female, interviewed and hired plaintiff, a black male born in 1955, to work in the Surgical Intensive Care Unit ("SICU") at the Ralph Johnson VA Medical Center in Charleston, South Carolina as a temporary probationary employee beginning August 29, 1999. Nurse Manager Rogers was also plaintiffs supervisor while he worked at the VA and was the decision maker who terminated plaintiffs employment nine months after she hired him. When hired, plaintiff was informed that his appointment was temporary:^[3]

Your appointment is temporary, not-to-exceed thirteen months and subject to renewal at that time for an additional 13 months. Temporary appointments are necessary due to current workload and budget considerations. They may be terminated, if necessary at any time up to the expiration date of the appointment. . . .

Ex. 1, letter of August 26, 1999.

Plaintiffs duties as an R.N. in the SICU working under the charge nurse on duty included monitoring patients, giving drugs, and reporting to the doctors. After a month of initial orientation, plaintiff worked the night shift, from 7 p.m. until 7 a.m. After three weeks on the night shift, plaintiff began observing that the two charge nurses who worked weekends, Bill McMaster, a white male, and Kathy Bunting, a white female, "didn't do anything for the patients. That was where the problem was. They were abusive to the patients. They wouldn't do anything for the patients. I would report them." Plaintiff testified that he got along with everyone until the third or fourth week on the floor when he started, making complaints to Rogers that the patients were mistreated.^[4] Then, after the multiple complaints started, plaintiff believes that most of the other nurses, some of whom were black and some of whom were male, hid not want to work with, him. Plaintiff testified that McMaster had twenty years experience in the job, had once trained Rogers before she Was promoted and had "some kind of authority over her". (Pl.dep. p. 78). Plaintiff believes that McMaster was "the culprit of all the problems." (Pl.dep. p. 62).

Although plaintiff deposed that he believed that Rogers did not counsel or discipline the nurses about whom the plaintiff complained, he has no basis to know, and does not actually know, if any nurses were counseled or disciplined as a result of his numerous complaints to Rogers. Rogers would thank him for his complaint and say, "I'll take care of this" or "I'll handle it." (Pl.dep. p. 83). Plaintiff recalled reporting to Rogers three major events of patient mistreatment by McMaster. . McMaster threatened a patient, Mr. Pie who was combative and had scratched or pushed McMaster and may have hurt Bunting too. McMaster told Pie, "If you do that again, I'm gonna beat your ass." (Pl.Dep. pp. 72-75).

Plaintiff reported that during an emergency, McMaster would not let a patient onto SICU because he wanted him to go to the Medical Intensive Care Unit (MICU). The patient did not die as a result of the delay but plaintiff believed that the patient could have died. (Pl.Dep., pp. 76-79).

Plaintiff also recalled that McMaster pushed a patient down on the bed which was dangerous because the patient had a Swan-Ganz type of catheter into his heart. Again, he reported the incident to Rogers. Again, plaintiff is unaware of any investigation into his reports and is unaware if any counseling or discipline resulted from his reports. (Pl.Dep., pp. 80-83).

Denise R. Carey, Nurse Executive, Nursing and Patient Care Services concurred with Rogers that plaintiffs temporary appointment should be terminated and wrote him a letter which Rogers delivered to that effect:

SUBJ: TERMINATION OF TIME LIMITED APPOINTMENT

1. On August 29, 1999, you were hired as a Staff Nurse, AD-6 10-Il, on a time limited appointment not to exceed (NTE) September 28, 2000, to accommodate fluctuating staffing needs. You were advised of the facts about temporary appointments and that your appointment was subject to termination at any time.

2. This is to inform you that your temporary appointment will terminate on July 21, 2000. By the end of your last scheduled shift prior to this date you must clear indebtedness, and return all VA property in your possession.

3. Please be advised that before your, final paycheck is released, you are required to properly clear this Medical Center, and return all VA property issued to you such as badge, keys, and uniforms.

4. You are thanked for your services rendered to this Medical Center and veteran patients, and you are wished well in your future endeavors.

When Rogers gave plaintiff the letter, he demanded to know the reason behind the decision. Rogers told the plaintiff it was because "[his] skills was substandard." (Pl.dep. p. 101). Plaintiff refused to sign the letter and Rogers noted that he "wants more documentation for reasons he is being fired."

There were five incidents that the defendant cites in support of its contention that plaintiff was fired because of performance issues:

1. In December 1999, plaintiff was accused of delaying a patient's placement in SICU for an hour after the doctor ordered the transfer. (Pl.Dep., p. 79). Plaintiff explained that McMaster was the Charge Nurse that night and when he came on shift, McMaster said, "here, this is your assignment." Plaintiff felt that McMaster was "one hundred percent disrespect[ful]" (Pl.Dep. p. 226). Plaintiff knew that the doctor had ordered this patient moved from a bed on the MICU ward to SICU; however, in plaintiff's view, there was no hurry because the patient was in no distress. Plaintiff knew some of the patient's history and felt he needed observation. For this reason, plaintiff and the ward nurse who was transferring the patient, agreed to hold up the transfer until the room in front of the SICU nurse's desk could be made up for the patient, instead of placing him in an open room further away for the desk. McMaster reported the delay in transferring the patient to Rogers, and Rogers asked plaintiff about the incident. Plaintiff told her that McMaster's account was a lie and that "the patient was fine". (Pl.Dep., pp. 217-228).

2. When plaintiff came on duty in early February 2000, he went to Patient Grooms's room and asked him how he was. When responded that he was "fine," plaintiff noticed that the endotracheal tube (ETT), intubation through the mouth into the trachea which prevents a patient from speaking when in place, was dislodged in his mouth. Plaintiff notified the resident, Dr. Leopold, that the ETT was dislodged. As a resident, Dr. Leopold is considered a student. Plaintiff advised Dr. Leopold not to reintubate the patient because he was in no distress and his gas levels were good unassisted; as he testified, "me and Stanley [Greenwald, the respiratory therapist] told him we know the tube is out, we can just finish pulling it out." The resident was indecisive about what to do and plaintiff went on to his other duties. Hours later the decision was made by the resident to remove the tube. Thereafter, the decision was made to reintubate the patient and the patient died. (Pl.Dep., pp. 230-235). By memorandum dated February 2, 2000, Supervisor Rogers memorialized this incident, concluding,

I inquired of Mr. Mitchell the reason it took two hours to decide to remove the tube. Mr. Mitchell stated he felt the intern was informed, was in the unit and communicating with his chief resident that all bases were covered. He did not feel the need to call the resident or attending to make the decision to remove the tube. I have counsel Mr. Mitchell, RN concerning the importance of notifying the chief resident or attending when interns are indecisive. I stressed to Mr. Mitchell that this is his responsibility as a patient advocate and staff nurse at this institution to demand a decision concerning a patient condition.

Pl. Dep. Ex. 1, p. 5.

Plaintiff says that he tried to talk with Rogers about the ETT incident, but she walked off. Plaintiff testified that two weeks later, Rogers told him he should have been the patient's advocate. (Pl. Dep., pp. 236-239).

3. On May 22, 2000, plaintiff gave Versed to a patient (Patient F2422) after the doctor had ordered that the drug not be given. Plaintiff testified that when he came on duty the patient "was acting like he was in bad pain and . . . was so disgruntled, he was just trashing the bed." Although plaintiff knew the doctor was trying to wean the patient off the drugs, plaintiff did not take the time to look on the computer to see what the doctor had ordered before plaintiff's shift began. (P1. Dep., pp. 242-243). When plaintiff did look at the computer he saw that the drug had been ordered stopped by the doctor. Plaintiff phoned the doctor and told him what had happened, and the doctor was angry. Plaintiff admitted that he gave the patient 10 milligrams of Versed without an order. (Pl.Dep., p. 284). The patient had a deadly stroke after receiving the Versed. The Hospital investigated the death and concluded: "There appears to be a distinct medication error associated with his care in the SICU post-operatively. The issue of `marginal hemostasis' also raises some concerns." (Ex. 2 to Pl. dep., p. 27). Rogers formally discussed this incident with Plaintiff on June 23, 2000. (Ex. 2, p. 6).

4. On May 24, 2000, plaintiff failed to document continued bladder irrigation ("CBI") and urine output properly. The patient had recently experienced prostate surgery and his bladder was being irrigated as part of his post operative care. Plaintiff recalled that the staff was flushing the patient's kidneys with saline following surgery, running 3,000 cc of saline through the Foley catheter. It was important to measure the outputs, subtracting the saline from the total output to determine the amount of urine the body was producing. (Pl.Dep. pp. 256-261). Plaintiff s notes of the patient's intake and output on May 25, 2000, showed that the patient's urine output was 12,000 cc over the shift. (Pl.Dep., p. 276). Plaintiff had entered the total output as urine without subtracting the saline from the total output. Plaintiff deposed that he could offer no explanation for his error: looking at the amount of urine he had recorded, plaintiff acknowledged, "the patient could not have been peeing then. I don't know. I'm trying to go from memory." (Pl.Dep. p. 262).

5. The doctor's orders for patient Pie on June 14, 2000, were, "Do not manipulate NG (nasogastric tube) w/o calling M.D." (Pl.Dep. pp. 277-279). On June 17, 2000, plaintiff replaced Pie's NG tube without calling Pie's doctor. Plaintiff explained that the tape holding the tape to the patient's nose was loose and the tube popped up or came out and that Dr. Leopold, the intern, was at bedside and told him to do it. (Pl.Dep. pp. 265-268). However, plaintiff failed to document that Dr. Leopld was there at bedside when he manipulated/or made the adjustment to the tube. (Pl.Dep., p. 92). Plaintiff says he did not know about the doctor's order of June 14th not to manipulate NG tube. (Pl.Dep. p. 268).

Rogers received complaints that plaintiff manipulated the patient's NG tube. Review of plaintiffs nursing notes revealed that he did not note that the intern had told him to do it. Rogers formally discussed this issue with plaintiff on July 6, 2000. (Ex. 2, p. 17). When confronted, plaintiff acknowledged that manipulating an NG tube could traumatize a patient. (Pl.Dep. p. 87). However, plaintiff said that, "Although didn't document it, I'll be truthful, I did not document it because it weren't an issue. We only put stuff down that would matter, okay?" (Pl.dep.262).

Plaintiffs employment terminated on July 21, 2000. (Ex. 4). Plaintiff made an initial contact with the EEO Counselor on July 7, 2000, claiming discrimination on account of race. (Ex. 5). Later his charge claimed harassment and discrimination on account of race, age, and gender. (Ex. 6). Plaintiff does not know of anybody who was in probationary status who had received allegations of bad patient care and who was not disciplined. (Pl.Dep. p. 109, 110, 150). Similarly, plaintiff does not know if any other SICU nurse was ever disciplined. (Pl.Dep. p. 149, 150). A MICU white female nurse not on probation, Sharon Collins, was fired for sleeping on the job. (Pl.dep. p. 150).

The plaintiff claims that other nurses were telling Rogers that he was a bad nurse and "lying on him" in retaliation for his complaints against them. (Pl.dep. p. 101, Pl.aff. para. 25). An unnamed person told Rogers that plaintiff was "hopeless." (Pl.aff. para. 18).

The plaintiffs complaint that he was discriminated on the basis of his gender is that female nurses were offered charge nurse training and recovery room training "several times" and he was not. When he complained, Rogers explained that the hospital could not afford to so train him; it is undisputed that the plaintiff was never a candidate for charge nurse and that he never performed any work in the recovery room. (Pl.dep. p. 150, 151).

Plaintiffs age discrimination claim is that another probationary nurse, Laurie Eaton, who was younger, was assigned to the day shift. Plaintiffs own opinion is that she should have been assigned to the night shift and worked her way up in seniority to the day shift.

Plaintiffs retaliation claim is that he accused Rogers of racial discrimination because plaintiff believes that Rogers did not punish McMaster for holding up a coding patient from coming into the SICU. As a result of this accusation, plaintiff was thereafter terminated, according to the plaintiff. (Pl.aff. para. 25). Plaintiff claims his complaint to Rogers that Rogers discriminated on the basis of race is activity protected under Title VII.

Plaintiff had previously settled a Whistleblower action against the VA which alleged patient abuse in the three events involving McMaster pushing and threatening patient Pie; McMaster not allowing the coding patient into SICU but referring him to MICU; and possibly McMaster pushing the patient with a Swan-Ganz catheter. (Pl.Dep., pp. 121-123, 130-131). Plaintiff states that he was terminated because of his complaints to Nurse Manager Rogers and the subsequent retaliation: "I know why I was terminated, because I kept telling them Letha, he's not doing anything and these guys retaliating on me." (Pl.Dep., p. 101). Plaintiff testified that "[t]hey [McMaster and Bunting] didn't do anything for the patients. That was where the problem was. They were abusive to the patients. They wouldn't do anything for the patients. I would report them." (Pl.Dep., pp. 61, 65-66). Plaintiff recalled hearing that a doctor ordered Kathy Bunting, R.N., to advance a swan catheter and that Bunting had done it, even though advancing a swan is outside the scope of nursing practice. Plaintiff reported the incident the next morning. (Pl. Dep., p. 97, 99). He believes that he was terminated in retaliation for his claims about Bill McMaster, Jeff (unknown last name) and Kathy Bunting. All of the events underlying his EEO claims were brought up in the Whistleblower action. (Pl.Dep.. pp. 120-123). The Whistleblower case was first filed with the Office of Special Counsel (OSC) and later with the Merit System Protections Board. Plaintiff asked the Office of Special Counsel to look into the incident where he allegedly delayed an patient's transfer to SICU. On or about May 1, 2003, plaintiff and the agency settled the MSPB Whistleblower action. (Pl.Dep. pp. 128, 293-294).

DISCUSSION

Here there is no issue of genuine material fact. The evidence taken in the light most favorable to the plaintiff shows him to have been a temporary employee, who performed below his employer's reasonable expectation, if not below the level of acceptable medical care. The only issue of race, age, or gender in the work place is attributable solely to the plaintiffs raising race, age, or gender as an issue.

The plaintiffs complaints are unsupported speculation, and there is no evidence that could lead a rational trier of fact considering the record as a whole to find for the plaintiff.

The general standards for summary judgment naturally inform any assessment of whether a plaintiff has provided sufficient evidence of discrimination such that his case may proceed to trial. See, e.g., Anderson v. Westinghouse Savannah River Co., 406 F.3d 248; 272 (4th Cir.2005); Mereish v. Walker, 359 F.3d 330, 339 (4th Cir.2004). As the Supreme Court has made clear, "trial courts should not `treat discrimination differently from other ultimate questions of fact.'" Reeves, 530 U.S. at 148, 120 S. Ct. 2097 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)). Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." "Together, the genuineness and materiality requirements express the sound proposition that litigation for its own sake is not a judicious use of resources." Hux v. City of Newport News, Virginia, 451 F.3d 311 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

CONCLUSION

Accordingly, for the aforementioned reasons, it is recommended that the defendant's motion for summary judgment be granted and this matter ended.

NOTES

[1] If Mitchell had finished his temporary assignment and been rehired for another temporary assignment, he would have been considered a permanent federal employee. Temporary assignments can last up to five years. (Pl.Dep. pp. 135-36.)

[2] Specifically, Mitchell reported to Rogers three major events of patient mistreatment by McMaster: (1) McMaster threatened a patient, Mr. Pie, who was combative and had scratched or pushed McMaster, and possibly Kathy Bunting. McMaster told Pie, "If you do that again, I'm gonna beat your ass." (Pl.Dep. pp. 72-75.) (2) During an emergency, McMaster did not let a patient onto SICU because he wanted him to go to the Medical Intensive Care Unit ("MICU"). The patient did not die as a result of the delay, but Mitchell believed that the patient could have died. (Pl.Dep. pp. 76-79.) (3) McMaster pushed a patient down on the bed even though the patient had a Swan-Ganz type catheter in his heart which made pushing the patient dangerous. (Pl.Dep. pp. 80-83.)

[3] The court notes, however, that Ms. Williams and Mitchell did work the day shift together for about four weeks before Mitchell went to " the night shift.

[4] It is uncontested that Bill McMaster and Kathy Bunting were permanent employees, not probationary employees like Mitchell.

[5] In his affidavit, Plaintiff describes the alleged protected activity as follows: "I went to Ms. Rogers. I told her that because Bill (McMasters) is white and I'm black, you allow him to get away with anything. I said Letha, you are not going to do anything to him. I said, `This is discrimination, Letha.'"

[6] The Fourth Circuit defines protected opposition activity as activity that "encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinion in order to bring attention to an employer's discriminatory activities." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253 (4th Cir.1998); Kubicko, ("[A]s long as an employee complains to his or her employer or participates in an employer's informal grievance procedure . . ., the employee's activities are entitled to protection under [Title VII]'s opposition clause."). Given that Plaintiff made a specific complaint to his supervisor in which he expressed his belief that he was being subjected to racial discrimination, a genuine issue of material fact exists as to whether Plaintiff's informal complaint to Ms. Rogers was protected opposition activity.

[7] Mitchell also argued in his opposition to the motion for summary judgment that it would be error for the court to consider the burden shifting scheme at the summary judgment stage. He asserts that the shifting burden test should be treated as an "affirmative defense," such that "even a successfully proven asserted non-discriminatory reason for an adverse employment action would not call for the dismissal of the case." (Pl. Opp. to Sum. Jud. at 23.) However, the Fourth Circuit has clearly held that the "summary judgment standards mesh comfortably with the McDonnell Douglas framework." Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir.2006). Therefore, the court may consider whether a plaintiff has successfully satisfied the burden-shifting scheme when considering a motion for summary judgment.

[1] The Supreme Court has made it clear that because the facts of given cases "necessarily will vary" this formula "is not necessarily applicable to differing factual situations." McDonnell Douglas, 411 U.S. at 802, n. 13, 93 S. Ct. 1817; See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired, or fired, or not promoted "under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

[2] Defendant withdrew this ground at oral argument.

[3] If Plaintiff had finished his temporary assignment and been rehired for another temporary assignment, he would then have been considered a permanent federal employee. The temporary assignments can last up to five years. (Pl.dep. p. 135-136).

[4] During his orientation period, he had been told to report patient abuse. (Pl.Dep., pp. 61-68).