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Counts v. Shinseki

September 23, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.


Plaintiff, Joyce Counts ("Plaintiff"), filed a Complaint on March 26, 2008 alleging that she had been discriminated against on the basis of her gender and age, and had been subjected to unlawful retaliation during her employment at the Erie VA Medical Center ("Defendant" or "VA"). See Complaint. Plaintiff has confined her retaliation claim to three (3) alleged incidents relating to an investigation conducted by the VA and/or the Office of Inspector General, as set forth in paragraph 37, subparagraphs (o), (p) and (r) of the Complaint, namely that:

o. On or about April 11, 2006, after being informed that she was under investigation (but she was not told the nature of the investigation), Plaintiff's tour of duty was changed from 6 a.m. to 2 p.m., to 8 a.m. to 4:30 p.m. (Monday through Friday), when she was detailed to Executive Leadership, Office of Performance & Quality;

p. On or about April 12, 2006, the Plaintiff was subjected to an illegal arrest and false imprisonment when she was forcibly detained and required to retrieve her laptop due to a so called "investigation."

r. On or about May 12, 2006, Plaintiff learned that she was being detailed from the Executive Leadership, Office of Performance & Quality, to a Fee Clerk position in Medical Administration, and management refused to provide Plaintiff with a reason for the reassignment other than noting that she was under investigation.

See Complaint ¶ 37 (o), (p), and (r). Defendant has moved for summary judgment and the matter is fully briefed and ripe for disposition. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.


Plaintiff has been employed at the VA since 1986. See Def. Ex. 1, Counts Dep. pp. 36; 46. In December 1998, Plaintiff began working in the Information Technology ("IT") Department, also known as Information Resource Management ("IRM") or Information Systems ("IS"). Def. Ex. 1, Counts Dep. pp. 47-49. Plaintiff and co-worker Ila Tordoff ("Tordoff") filed an EEOC complaint in October 1999 based on an alleged hostile environment and retaliatory conduct ("Counts I"). Pl. Ex. 23A, Counts Dep. pp. 65-67; Def. Ex. 7, EEOC Decision in Counts I, pp. 1-2. In a decision dated August 16, 2001, an Administrative Law Judge ("ALJ") concluded that the Plaintiff and Tordoff had been subjected to a hostile work environment. Pl. Ex. 23A, Counts Dep. p. 68; Def. Ex. 7, EEOC Decision in Counts I, pp. 2; 12. Plaintiff subsequently filed a federal lawsuit relative to that claim that was ultimately settled by the parties. Pl. Ex. 23B, Counts Dep. pp. 70-71.

On August 16, 2004, the Plaintiff filed another EEOC complaint asserting a retaliation claim based upon various incidents that allegedly occurred during the summer and autumn of that year ("Counts II"). Pl. Ex. 23B, Counts Dep. pp. 72-73; Def. Ex. 8, EEOC Decision in Counts II, pp. 1-2. In connection with this complaint, the Plaintiff testified at a hearing before an ALJ on March 21 and 22, 2006. Def. Ex. 8, EEOC Decision in Counts II, pp.1-2. On July 31, 2006, the ALJ issued a decision in favor of the VA. Def. Ex. 8, EEOC Decision in Counts II, p. 13.

In January 2005 Christina Hessler ("Hessler") was assigned to the IT Department. Def. Ex. 12, Counts AIB Testimony, p. 64. For reasons that are not apparent from the record, the Plaintiff and Hessler had difficulty getting along with each other. On February 8, 2006, Hessler sent a memorandum to David Wood ("Wood"), the Acting Director of the VA, outlining several actions on the part of the Plaintiff that she felt were creating a "hostile work environment." Pl. Ex. 25, Wood Dep. p. 31; Def. Ex. 10, AIB Decision p. 4.*fn2 Wood initiated an Administrative Investigation Board ("AIB") for the purpose of investigating Hessler's and the Plaintiff's complaints against each other. Pl. Ex. 25, Wood Dep. pp. 34; 42. The AIB conducted an investigation and in a report dated March 23, 2006, concluded that, inter alia, "[t]here [was] clearly a strained working relationship between Ms. Counts and Ms. Hessler that [was] having an overall adverse impact on the working environment of the IRM department." Def. Ex. 10, AIB Decision, p. 7.

On March 24, 2006, while performing routine maintenance on the VA computers, Hessler found evidence that a former VA employee, John Riley ("Riley"), may have accessed the desk top computers of two VA employees following his termination. Def. Ex. 2, CRI, p. 1, Attachment 10, p. 2.*fn3 On March 28, 2006, Hessler also found evidence that Riley may have improperly accessed the VA server, based upon information reflected in the "Documents and Setting" folder. Def. Ex. 2, CRI, Attachment 10, p. 2. Hessler reported her concerns relative to a possible security breach of the computer network to Lorraine Hummel ("Hummel"), the VA's Information Security Officer ("ISO"), who in turn informed Beth Sahlmann, ("Sahlmann"), the Plaintiff's immediate supervisor and Acting Associate Director of Business Operations. Pl. Ex. 14, Hummel EEO Aff. p. 3; Def. Ex. 2, CRI, Attachment 1 p. 6; Def. Ex. 15, Sahlmann EEO Aff. pp. 4-5.

On April 7, 2006, Hessler was informed by VA employee Ron Rycek ("Rycek"), that he had observed the Plaintiff make "several trips in and out with lots of stuff." Def. Ex. 2, CRI, Attachment 10, p. 9. Upon exiting the building Hessler observed Riley and the Plaintiff in the parking lot, at which time Riley was holding "several large white binders." Def. Ex. 2, CRI, Attachment 10, p. 9. Hessler also reported this observation to Hummel and Sahlmann. Def. Ex. 2, CRI, Attachment 10, pp. 9-10.*fn4 She stated that she could not hear what the Plaintiff said, but heard Riley say: "I don't care if she sees us, she can't do anything to me." Def. Ex. 2, CRI, Attachment 10, p. 9.

As a result of Hessler's reports, an investigation was commenced on April 8, 2006 by Hummel, Hessler, VA Police Officer Matthew Tuzynski ("Tuzynski") and Brian Wilshire ("Wilshire"), to determine if any VA property was missing. Def. Ex. 2, CRI, Attachment 10, p. 4. As a result of this investigation, it was determined that a box of personal items belonging to Riley, the hard drive from the computer previously assigned to Riley, and several binders from a bookcase could not be located. Def. Ex. 2, CRI, Attachment 10, p. 4; Def. Ex. 6, Hummel Dep. pp. 33-35. Based on Hessler's observations, there was a concern that the Plaintiff may have given Riley the hard drive from his computer. Def. Ex. 2, CRI p. 2.

A conference call was subsequently held on April 10, 2006 with Donald Wetzel ("Wetzel"), the Acting Director of the VA,*fn5 Hummel, Sahlmann, an "IG Investigator," Chief Information Officer John Hrichardson ("Hrichardson") and ISO Randy Ledsome ("Ledsome"). Def. Ex. 2, CRI, Attachment 1, p. 4; Def. Ex. 6, Hummel Dep. pp. 40-42; Pl. Ex. 16, Wetzel EEO Aff. pp. 6-7. Due to a perceived "[i]mminent threat" to the VA computer system, a decision was made to conduct an expedited investigation through the Office of the Inspector General ("OIG" or "IG"). Def. Ex. 2, CRI, Attachment 1 pp. 4-5; Def. Ex. 14, Wetzel Aff. pp. 6-7. In order to safeguard the security of the system during the investigation, it was deemed prudent to limit the Plaintiff's access to the computer system, temporarily reassign her to another position, and to secure the Plaintiff's laptop. Def. Ex. 2, CRI, Attachment 1 pp. 4-5; Def. Ex. 14, Wetzel Aff. pp. 6-7. The decision to retrieve the laptop was occasioned by the concern that Riley may have accessed the network through the Plaintiff's laptop. Def. Ex. 6, Hummel Dep. pp. 55-56.

On April 11, 2006, the Plaintiff met with Sahlmann and was informed that she was being reassigned to the Office of Performance and Quality ("OPQ"). Pl. Ex. 23C, Counts Dep. pp. 150-151. She was also advised that she was under investigation, but was not advised at that time as to its nature. Pl. Ex. 23C, Counts Dep. p. 150; Def. Ex. 15, Sahlmann Aff. p. 25. Plaintiff characterized her duties in the OPQ Department as essentially involving "typ[ing] documents" with little or no additional responsibility. Pl. Ex. 23A, Counts Dep. pp. 56-57. It is undisputed however, that she did not receive a different rate of pay, nor did she receive a demotion in her grade. Pl. Ex. 23A, Counts Dep. p. 57.

On April 12, 2006, Hummel, Tuzynski and Stephen Bielecki ("Bielecki"), the Facility Manager, met with the Plaintiff in order to retrieve the laptop. Pl. Ex. 24B, Tuzynski Dep. p. 22. According to the Plaintiff, upon returning from lunch she was confronted by Hummel, Bielecki and Tuzynski, who was dressed in his "police garb." Def. Ex. 1, Counts Dep. p. 78. Plaintiff claims that, with his hand on his pistol, Tuzynski repeatedly informed her that she had no choice but to be escorted home in a VA van and turn over her VA laptop to Hummell. Def. Ex. 1, Counts Dep. pp. 79-80. According to the Plaintiff, Tuzynski placed his hands on her shoulder and walked her down the stairs and placed her in the van. Def. Ex. 1, Counts Dep. p. 80. Plaintiff indicated that she was directed where to sit and was locked in the van when the door was closed. Def. Ex. 1, Counts Dep. p. 81. When she arrived at her home with Hummel and Bielecki, the Plaintiff retrieved the laptop and handed it to Bielecki who wrapped it in "red evidence tape." Def. Ex. 1, Counts Dep. p. 83.

Plaintiff remained in the OPQ position for approximately one month, until the project she was assigned to was completed. Pl. Ex. 9, Sahlmann Aff. pp. 28-29. As a result of staffing shortages, she was reassigned to a Fee Clerk position in Health Administration effective May 15, 2006. Pl. Ex. 9, Sahlmann Aff. p. 29; Pl. Ex. 23A, Counts Dep. p. 56. Although the Plaintiff's pay, grade and step did not change as a result of this assignment, the Plaintiff testified that she was physically moved to the basement, placed in the back of the office in a corner facing a wall, and was relegated to "scan[ning] documents." Pl. Ex. 23A, Counts Dep. pp. 58-59.*fn6

Ultimately, a report styled "Comprehensive Report of Investigation" ("CRI") prepared by Reporting Agent Timothy D. Barry of the OIG exonerated the Plaintiff, concluding that the allegations related to the missing hard drive and unauthorized computer access were not substantiated. Def. Ex. 2, CRI pp. 2-4. Agent Barry provided the following synopsis of the investigation's findings and conclusions:

This case originated on April 17, 2006 upon receipt of a VA-Office of Inspector General Hotline Referral submitted by the VA Medical Center (VAMC) - Erie, PA. The referral contained two allegations concerning former VA employee John A. RILEY. RILEY was suspected of accessing the VAMC - Erie computer network without authorization after his November 2005 termination from VA employment. He was also suspected of being in possession of a missing computer hard drive from a VA computer that was assigned to him during his term of employment. The Hotline Referral also indicated that VAMC employee Joyce COUNTS could have assisted RILEY in the removal of the computer hard drive from VA property.

This investigation found no evidence that RILEY accessed the VA computer network without authorization. The missing computer hard drive was turned in by VA employee Floyd Titus, who reported that he had removed it from the computer formerly assigned to RILEY and subsequently used it to perform his IT duties.

Def. Ex. 2, CRI p. 1.


Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Fed.R.Civ.P. 56(c). In order to withstand a motion for summary judgment, the non-moving party must "make a showing sufficient to establish the existence of [each] 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 (1986). In evaluating whether the non-moving party has established each necessary element, the Court must grant all reasonable inferences from the evidence to the non-moving party. Knabe v. Boury Corp., 114 F.3d 407, 410, n.4 (3d Cir. 1997) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Id. (quoting Matsushita, 475 U.S. at 587).


In support of his motion for summary judgment, the Defendant argues that the present action is untimely; that Plaintiff failed to exhaust her administrative remedies relative to the laptop incident; that Plaintiff has failed to establish a prima facie case of retaliation; and alternatively, has failed to raise a triable issue of fact as to pretext. I shall address each of these contentions in turn.

A. Limitations

Pursuant to Title VII, a federal employee has ninety (90) days from the receipt of the right-to-sue letter issued by the EEOC within which to file a complaint in federal court. 42 U.S.C. § 2000e-16(c) ("Within 90 days of receipt of notice of final action ... on a complaint of discrimination ... an employee ... may file a civil action ... ."). Courts have treated this ninety day provision as a statute of limitations. Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 (3rd Cir. 2001). The provision has been strictly enforced by the courts, and the Third Circuit has held that "a claim filed even one day beyond its ninety day window is untimely and may be dismissed absent an equitable reason for disregarding the statutory requirement." Figueroa v. Buccaneer Hotel, 188 F.3d 172, 176 (3rd Cir. 1999) (citing Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 253 (3rd Cir. 1986)). The clock begins to run when either the plaintiff or counsel for plaintiff receives the right-to-sue letter, whichever is earlier. Seitzinger v. Reading Hospital and Medical Center, 165 F.3d 236, 239 n.1 (3rd Cir. 1999). Defendant bears the burden of proof when asserting a statute of limitations defense. Ebbert v. DaimlerChrylser Corp., 319 F.3d 103, 108 (3rd Cir. 2003).

As previously indicated, the Plaintiff filed the instant action on March 26, 2008. Consequently, in order to be timely, the Plaintiff must have received the FAD no earlier than December 27, 2007. It is undisputed that the EEOC issued the Plaintiff a right-to-sue letter on December 19, 2007 and that it was mailed to the Plaintiff the next day via certified mail. Def. Ex. 4, Crutchfield Dec. ¶¶ 4; 6; Def. Ex. 4A, FAD. Plaintiff disputes only the date of receipt. Defendant has submitted the return receipt card which appears to bear the signature of "James Counts" and a handwritten delivery date of December 24, 2007. Def. Ex. 4C. Plaintiff claims that she did not receive the FAD until December 27, 2007, and in support thereof, has attached the affidavits of her husband and counsel. Pl. Ex. 2, Counts Aff.; Pl. Ex. 1, Filippi Aff. The affidavit of James Counts states, in relevant part:

3. On or about December 27, 2007, while the undersigned was at his home at 2509 East 26th Street, Erie, Pennsylvania 16510, a United States postal delivery person delivered a Certified Letter from the Department ...

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