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Lopez v. Shulkin

United States District Court, D. New Mexico

September 28, 2018

RENEE LOPEZ, Plaintiff,
DAVID J. SHULKIN, in his capacity as Secretary of the Department of Veterans Affairs, Defendant.


         On October 13, 2017, Defendant David J. Shulkin (“Defendant”) filed a Motion for Summary Judgment and Supporting Memorandum (ECF No. 25). The Court, having considered the motion, briefs, evidence, argument, relevant law, and otherwise being fully advised, concludes that the motion for summary judgment should be granted as to both claims and the case dismissed.


         The record, viewed in the light most favorable to Plaintiff Renee Lopez (“Plaintiff” or “Lopez”) and drawing all inferences in her favor, shows the following.

         Lopez's employment and supervisory chain

         Lopez works as an Intermediate Care Technician at the New Mexico Veterans Affairs Healthcare System (“VA”) in Albuquerque, New Mexico. Def.'s Mot. for Summ. J. (“MSJ”), Undisputed Fact (“UF”) ¶ 1, ECF No. 25. Between 2013 and April 17, 2017, Lopez served as a Health Technician, GS-7, in the Surgical Service at the VA. Id. From August 2012 through March 2017, Nurse Manager Rebecca Chavez served as Lopez's immediate supervisor. Id., UF ¶ 2. Between February 2, 2015, and January 12, 2016, James Russell, M.D., served as Lopez's second level supervisor. Id., UF ¶ 3. James Goff, M.D., has been working in the VA as Chief of Staff from mid-November 2016 to the present. Id., UF ¶ 4. He previously worked in other capacities at the VA during the relevant time period: Chief of Surgery from February 2011 through January 2015, Acting Chief of Staff from February 2015 to mid-January 2016, and Chief of Surgery from mid-January 2016 to mid-November 2016. Id.

         Dr. Paul Lesko (“Lesko”) was employed as an Orthopedic Surgeon by the VA from 2012 until May 31, 2017. Id., UF ¶ 5. The VA required Lopez, as a Technician, to follow directions by Physicians, like Dr. Lesko, in certain situations. See June 16, 2015 Letter of Reprimand, ECF No. 25-10 at 1 of 2; Lopez Dep. 54:10-13, ECF No. 25-13. Dr. Lesko, however, was not in her supervisory chain, he did not prepare her annual evaluations, and he did not set her schedule, or prepare or approve her work plans. See Lopez Dep. 54:14-55:1, ECF No. 25-13; Goff Decl. ¶ 7, ECF No. 25-2, and ¶¶ 8-9, ECF No. 29-1. Dr. Lesko did not have the authority to recommend disciplinary action against Lopez or otherwise affect her removal, reassignment, termination, or make any significant changes in her benefits. Lopez Dep. 55:7-56:10, ECF No. 25-13. Lopez admitted in her deposition that Dr. Lesko was not her supervisor. Id. 54:14-16.

         The VA's Sexual Harassment and Workplace Misconduct Policies

         Between 2013 and 2016, the VA had in effect a Policy for the Prevention of Workplace Harassment (“the Policy”). Def.'s MSJ, UF ¶ 9, ECF No. 25. The Policy provided: “Persons believing they have been subject to workplace harassment to include sexual harassment should discuss concerns with their immediate supervisor, service line director, the EEO Program Manager, or an Office of Resolution Management EEO counselor.” Goff Decl. ¶ 11, ECF No. 29-1. The Policy directed that formal complaints of workplace harassment may be brought to an EEO Counselor within 45 days of the date of the alleged acts. Id. ¶ 12. The VA required all employees to undergo annual training for the prevention of workplace harassment. Id. ¶ 13.

         The VA also has a progressive discipline policy wherein penalties increase upon repeated occurrences as follows: (1) Written Counseling (not disciplinary); (2) Admonishment; (3) Reprimand; (4) Suspension; (5) Removal (non-probationary employees); and (6) Termination (probationary employees). Id. ¶ 23, ECF No. 25-2. The VA has a “zero tolerance” policy for “inappropriate behavior that demonstrates and/or suggests disruptive, threatening or volatile actions or communication toward staff.” Dec. 21, 2015 Letter, ECF No. 25-6 at 2. VA policy also prohibits employees from making disrespectful remarks or behaving in a manner disruptive to the work environment. Id.

         The 2013 Incidents

         In February 2013, Lesko attempted to sit on Lopez's lap - conduct Lopez described as “unwelcomed” and “gross.” See Lopez Dep. at 78:11-23, ECF No. 28-1, and 89:16-90:23, ECF No. 25-13. Lesko acknowledged that Lopez appeared uncomfortable when he tried to sit on her lap. Lesko Dep. 26:15-23, Doc. 28-2.

         At another time in February 2013, on a “Jersey Friday” - so called because on Fridays staff was permitted to wear sports jerseys to work - Lesko walked up to Lopez, asked her what shirt she was wearing, and, without her permission, unzipped the hoodie covering her jersey. See Lopez Dep. 84:11-23, ECF No. 28-1, and 83:2-9, 88:1-90:8, ECF No. 25-13. The zipper was hitched about three inches below Lopez's neck. Id. at 84:24-85:4, ECF No. 28-1. As Lesko unfastened the zipper, the backside of his hand touched Lopez's breasts. Id. at 85:1-86:7. She did not appreciate him touching her at all. Id. 86:6-7. She walked away and zipped up the hoodie. Id. at 84:21-23.

         Lopez did not report either Lesko's attempt to sit her lap or the hoodie incident to her supervisor, Ms. Chavez, until two years later, in March 2015, because of feelings of embarrassment. See Lopez Dep. 82:1-24, 89:14-20, ECF No. 25-13. No. further unwanted contact or interactions with Lesko occurred throughout 2013. Id. at 90:5-16. At the time of the 2013 incidents, Lopez did not think that she was working in a hostile work environment. Id. at 91:3-8. Lopez's feelings changed after Lesko gave her a poem when she began to feel uncomfortable and began to feel that she was working in a hostile work environment. See Id. 27:2-18, ECF No. 28-1, and 91:1-15, ECF No. 25-13.

         2014 poem incident and the VA's investigation of Lopez's complaint

         In April 2014, Lesko presented Lopez with a poem, in which he expressed his feelings for her. Def.'s MSJ, UF ¶ 18, ECF No. 25; Poem, Doc. 25-4. When Lesko delivered it to her, Lopez read the poem in Lesko's presence, she threw it on the desk, and she walked out of the room. Lopez Dep. 93:10-14, ECF No. 25-13. Lopez appeared uncomfortable when he gave her the poem. Lesko Dep. 60:18-23, ECF No. 28-2.

         After Lopez rejected Lesko's advances, he began treating her differently. See Lopez Dep. 93:1-4, ECF No. 25-13. On June 25, 2014, Lesko ignored her presence and efforts to help, and he walked around the clinic looking for another technician to assist him with an injection. Def.'s Ex. B, Attachment 1, ECF No. 25-3. Lopez felt disrespected and uncomfortable. Id. She reported the situation to her nurse manager and asked to go home. Id.

         In July 2014, Lopez reported to Rebecca Chavez that she had received the poem from Lesko. Chavez Decl. ¶ 6, ECF No. 25-1. After reading the poem and feeling it was inappropriate, Ms. Chavez notified Lesko's supervisor, Dr. Kenneth Yaw, and then-Chief of Surgery Dr. James Goff. Id. Lopez, Ms. Chavez, Dr. Goff, and another nurse manager, Stacy Schneider, met to discuss Lopez's concerns about Lesko's behavior. Def.'s MSJ, UF ¶ 24, ECF No. 25. Lopez told Dr. Goff that Lesko's poem made her uncomfortable. Lopez Dep. 27:13-15, ECF No. 28-1. Ms. Chavez told Lopez to make a written complaint, and Dr. Goff told her that he would take care of it. Id. at 27:2-18.

         On or about July 14, 2014, Lopez put the incident in writing by completing a Report of Contact (“ROC”). ROC, Doc. 25-3. In the ROC, Lopez described how during this last year, Lesko had “expressed a romantic interest beyond my professional relationship at work.” Id. She stated that Lesko gave her a poem, and when she told him she was not interested in his advances, he made her feel uncomfortable. Id. She further reported that since she rebuffed his advances, he began treating her differently, and by way of example, recounted the incident on June 24, 2014, where he ignored her and looked for another person to help with an injection. Id. In this July 2014 ROC, Lopez did not report the 2013 incidents. See Id. Nor did she make any mention of those 2013 incidents to her supervisors in the July 2014 meeting. Def.'s MSJ, UF ¶¶ 27-28, ECF No. 25; Lopez Dep. 69:5-22, 71:5-11, ECF No. 25-13. She asked Dr. Goff to address Lesko's conduct and she wanted Dr. Yaw to do something about the situation. Lopez Dep. 108:22-109:5, ECF No. 25-13.

         Dr. Goff arranged for a fact-finding interview with Lesko, and on August 13, 2014, Dr. Goff interviewed Lesko about the allegations contained in Lopez's ROC to determine a course of disciplinary action, if any, and to hear Lesko's account of events. See Goff Decl. ¶¶ 16-17, ECF No. 25-2. After hearing Lesko's side of the story, Dr. Goff concluded Lesko's behavior was inappropriate and warned him not to engage in any similar behavior. Id. ¶ 17. In September, Dr. Goff prepared a written counseling letter to Lesko for violating the VA's policy concerning employee courtesy and conduct regarding his treatment of Lopez and for violating VA guidelines for animals in healthcare for an unrelated issue in which he brought a guinea pig into the facility. See Id. ¶¶ 18-19; Def.'s Ex. B, Attachment 3, ECF No. 25-5. The written counseling letter is the first step in the disciplinary process against an employee under the VA's progressive discipline policy, although it is not itself considered a form of discipline, but may be cited when issuing an admonishment, reprimand, suspension, or removal. Goff Decl. ¶¶ 23-24, ECF No. 25-2. Dr. Goff forwarded the letter to the VA's Human Resource Department for review and comments. Id. ¶ 18. On September 20, 2014, Dr. Goff informed Lesko he was issuing a Written Counseling to him and requested he make an appointment to receive the letter. Id. ¶ 19.

         Dr. Goff did not give Lesko the letter of reprimand until December 4, 2014. Id. ¶ 22; Def.'s Ex. B, Attachment 3, ECF No. 25-5. The letter stated that Dr. Goff substantiated Lopez's complaint concerning Lesko's actions in singling her out and treating her differently and disrespectfully after she informed Lesko she was not interested in a romantic relationship with him. Def.'s Ex. B, Attachment 3, ECF No. 25-5. The letter instructed Lesko to refrain from any behavior that would be in violation of VA Policy, specifically the policy against unprofessional behavior with staff. See Id. The letter further advised that it “may be used in determining an appropriate penalty if further infractions occur.” Id.

         Subsequent incidents, complaints, and the VA's responses

         On February 4, 2015, Lesko told Lopez in front of others to “room my patients now” in a demeaning, disrespectful, unprofessional manner. See Def.'s Ex. B, Attachment 5, ECF No. 25-7; Lopez Dep. 98:16-100:11, ECF No. 25-13. Lopez explained that the rooms were already filled. Def.'s Ex. B, Attachment 5, ECF No. 25-7; Lopez Dep. 99:3-5, ECF No. 28-1. A few minutes later, Lesko came back into the clinic and belittled Lopez in front of residents and providers by telling her in a rude manner to pick up a needle cap he had dropped on the floor. Def.'s Ex. B, Attachment 5, ECF No. 25-7; Lopez Dep. 99:15-22, ECF No. 28-1. On or about the same day, Lopez submitted another written ROC with Dr. Goff, explaining this February 4, 2015 incident. Def.'s Ex. B, Attachment 5, Doc. 25-7.

         Dr. Goff met with Lopez, Ms. Schneider, and Ms. Chavez to review the ROC on February 6, 2015. Def.'s MSJ, UF ¶ 38, ECF No. 25. Dr. Goff subsequently met with Lesko and others on February 20, 2015. Id., UF ΒΆ 39. Lesko disputed Lopez's version of events, ...

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