Nancy Marshall v. Department of Veterans Affairs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 30, 2012
• Docket: 12-12581
• Status: Unpublished

Opinion

Case: 12-12581 Date Filed: 05/30/2013 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-12581 Non-Argument Calendar ________________________

D.C. Docket No. 2:08-cv-01282-SLB

NANCY MARSHALL,

Plaintiff-Appellee,

versus

DEPARTMENT OF VETERANS AFFAIRS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(May 30, 2013)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Nancy Marshall appeals the summary judgment in favor of her former

employer, the Department of Veteran Affairs. Marshall, a part-time speech Case: 12-12581 Date Filed: 05/30/2013 Page: 2 of 5

pathologist, complained that the Department retaliated against and constructively

discharged her for filing charges in June 2005 related to her transfer from a

hospital in Birmingham, Alabama, to an outpatient clinic in Jasper, Alabama. See

42 U.S.C. §§ 2000e-3(a), 1981. We affirm.

We review a summary judgment de novo, viewing the evidence in the light

most favorable to the nonmoving party. Crawford v. Carroll, 529 F.3d 961, 964

(11th Cir. 2008). Summary judgment is appropriate when there are no genuine

issues of material fact and the moving party is entitled to a judgment as a matter of

law. Fed. R. Civ. P. 56(a).

Marshall failed to establish a prima facie case of retaliation with respect to

all, but one, of the actions of the Department. Most of the actions of the

Department about which Marshall complains were not adverse employment

actions. See Crawford, 529 F.3d at 973. Marshall complains that the Department

gave her reduced responsibilities and insufficient patients to satisfy performance

standards, and the Department later refused to modify those standards, reassign her

to Birmingham, or provide her a fiberoptic instrument to test her patients. But the

undisputed evidence establishes that Marshall was kept in Jasper to serve local

veterans; she was given the additional responsibility of providing audiology

services; she received “fully successful” ratings in her performance appraisals; and

she did not require a fiberoptic instrument in her work with debilitated patients.

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See Doe v. DeKalb Cnty. Sch. Dist., 145 F.3d 1441, 1453 (11th Cir. 1998) (“[I]t is

not enough that a transfer imposes some de minimis inconvenience or alteration of

responsibilities.”). Marshall also complains that the Department refused to send

her to a conference in Tennessee and required her to use annual leave to attend a

conference in Texas and to drive to Birmingham to apply for a promotion, but the

conference in Tennessee was for full-time audiologists; the Department granted an

absence to another speech pathologist to attend the conference in Texas because

Marshall had attended the year before; and the Department reasonably expected

Marshall to treat patients during her working hours. The remaining actions of the

Department were too remote to Marshall’s protected conduct to create a reasonable

inference of a causal connection. See Thomas v. Cooper Lighting, Inc., 506 F.3d

1361, 1364 (11th Cir. 2007). Marshall complains about the belated delivery of

materials she needed to apply for a raise, not being recommended for a raise, and

receiving two reprimands, but the mishap involving the materials occurred in

February 2006, approximately eight months after Marshall had filed charges

against the Department, and the other incidents occurred even later.

Marshall also complains about not being reappointed to the Traumatic Brain

Injury team, but Marshall’s claim about that decision is untimely. See Santini v.

Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000). Marshall cannot

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resurrect a claim that she presented in an earlier charge, but failed to present in a

timely civil action.

The only matter about which Marshall established a prima facie case of

retaliation involves a fraud investigation commenced by her supervisor, but the

Department provided a legitimate, nonretaliatory reason for that investigation,

which Marshall failed to rebut as pretextual. See Crawford, 529 F.3d at 976.

Marshall’s supervisor, Lynn Arnold, requested that security officers of the

Department investigate why a trip ticket approving use of a government car for one

of Marshall’s coworkers had been altered with liquid paper to add Marshall to the

trip. The undisputed evidence establishes that Arnold had signed a trip ticket that

approved travel only for Marshall’s coworker and Arnold had not yet decided

whether Marshall could go on the trip when Marshall’s name was added to the

ticket. Nonetheless, Arnold did not discipline Marshall and allowed her to go on

the trip.

Marshall also failed to prove that she was constructively discharged. “A

constructive discharge occurs when [an] . . . employer imposes working conditions

that are ‘so intolerable that a reasonable person in [the employee’s] position would

have been compelled to resign.’” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d

974, 977 (11th Cir. 2003) (quoting Poole v. Country Club of Columbus, Inc., 129

F.3d 551, 553 (11th Cir. 1997)). Marshall bases her claim of constructive

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discharge primarily on the same actions she bases her claim of retaliation, but a

paucity of patients, the denial of unneeded equipment, limitations on travel, and an

investigation of potential fraud did not make Marshall’s working conditions

intolerable, particularly in the light of her favorable reviews. Marshall complains

about returning from sick leave to find that her office was being used as an

examining room, but the undisputed evidence establishes that there was

insufficient office space at the Jasper clinic, employees had to share offices, and all

the employees used the break room to compete paperwork. Marshall’s situation

contrasts starkly with Poole, where the plaintiff created a genuine factual dispute

about whether she had been constructively discharged when, after working as an

executive secretary for about two years, her employer remarked that she was “as

old as [his] mother”; she was relocated to a space without a desk or computer;

other employees were instructed not to speak to her; and “her duties and

responsibilities [were] reduced to virtually nothing.” Poole, 129 F.3d at 551–52.

We AFFIRM the summary judgment in favor of the Department.