Nancy Marshall v. Department of Veterans Affairs

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12581
Non-Argument Calendar
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D.C. Docket No. 2:08-cv-01282-SLB
NANCY MARSHALL,
Plaintiff-Appellee,
versus
DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(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
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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.
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