United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
record, viewed in the light most favorable to Plaintiff Renee
Lopez (“Plaintiff” or “Lopez”) and
drawing all inferences in her favor, shows the following.
employment and supervisory chain
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.
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.
VA's Sexual Harassment and Workplace Misconduct
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.
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
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.
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.
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.
poem incident and the VA's investigation of Lopez's
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.
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.
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.
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.
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.
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.”
incidents, complaints, and the VA's responses
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.
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 ¶ 39. Lesko
disputed Lopez's version of events, ...