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West v. Shulkin

United States District Court, E.D. Michigan, Northern Division

July 18, 2019

MIKAYLA WEST, Plaintiff,



         On December 29, 2017, Plaintiff Mikayla West filed a complaint against Defendant David J. Shulkin, now-former Secretary of Veterans Affairs. ECF No. 1. On June 1, 2018, Plaintiff filed an amended complaint substituting current Secretary of Veterans Affairs, Robert Wilkie, as Defendant.[1] ECF No. 16. Plaintiff claims that Defendant and his agents racially discriminated and retaliated against her for engaging in a protected activity under Title VII by terminating her employment. Id. On May 6, 2019, Defendant filed a motion for summary judgment. ECF No. 27. For the following reasons, the motion will be granted in part and denied in part.



         Plaintiff Mikayla West is an African-American female who was employed by the U.S. Department of Veterans Affairs from 2016 to 2017. Plaintiff graduated from Delta College in 2015 with an associate degree and a Practical Nurse certificate. PageID.359 at 11:18-23; PageID.360 at 13:5-8. On December 9, 2015, Plaintiff was licensed as a Practical Nurse by the State of Michigan. PageID.360 at 13:9-16. On February 9, 2016, Plaintiff began her first position with the United States Department of Veterans Affairs at the Aleda E. Lutz VA Medical Center (“Lutz”) in Saginaw, Michigan as a Certified Nursing Assistant in the Community Living Center unit. PageID.362 at 23:1-6. Plaintiff held this position until August 2016, when she was hired as a urology and nephrology Licensed Practical Nurse (“LPN”) in Lutz' Specialty Clinic. PageID.362 at 24:18-19; PageID.363 at 27:3, 10-12. On August 22, 2016, Plaintiff started her LPN position. PageID.423. Plaintiff initially worked under the supervision of African American Nurse Manager Archia Jackson. PageID.438 at 25:25-PageID.439 at 26:1. When Jackson transferred to a different department, Christina Tokarski, a Caucasian female, was named Acting Nurse Manager for the clinic, before being promoted to Nurse Manager in early 2017. PageID.437 at 20: 21-25.

         Plaintiff alleges the work environment “changed” when Tokarski replaced Jackson. PageID.560. Plaintiff alleges that Tokarski was “very close” with LPN Terri Hayes, LPN Susan Sobieray, LPN Ed Marshall, Registered Nurse (“RN”) Cathy Stadler, and RN Melissa Pritchard. PageID.561. Dr. Linda McIntyre, an employee in the Specialty Clinic, stated “it was evident” that Tokarski was “good friends” with Pritchard and Stadler. ECF No. 31-8. Plaintiff and Crystal Alexander, an African American RN in the unit, would allegedly hear this group of Caucasian nurses “talk about socializing outside of work together with Tokarski and going to the bar.” PageID.561. Plaintiff further testified that she and Alexander were never invited to these alleged social gatherings. ECF No. 31-3 at 42:9-10.

         Plaintiff began her orientation period upon being hired. There is no set length for the orientation period, as an LPN must show competency in dozens of procedures before successfully completing orientation. PageID.332. The Lutz facility uses an orientation checklist to train all LPNs, including Plaintiff. PageID.331-32. Non-supervisor peers, called preceptors, help train the new LPNs, offer feedback, and review and sign off on the checklist's procedures. Id. Plaintiff's preceptors were Sobieray, Hayes, Pritchard, and Stadler. PageID.260 at 44:9-13. The checklist included a review sheet, in which the nurse manager or preceptor documented Plaintiff's performance in two-week intervals. PageID.332; PageID.430. After each interval, Plaintiff, the nurse manager, and a preceptor would meet to review and evaluate Plaintiff's progress. PageID.332.

         On September 13, 2016, Tokarski reviewed Plaintiff's first two-week period. PageID.430. Tokarski's review was complimentary, noting that Plaintiff was “working independently, ” picking tasks up easily, “asking question[s], ” “getting along well” with others, and was an “asset” to the department. Id.

         On September 14, 2016, Tokarski and Plaintiff met with Sadler to discuss Plaintiff's progress. PageID.465; PageID.479. Tokarski noted in her calendar entry that she discussed concerns about Plaintiff keeping her door shut, not checking patients in, and constructive criticism. PageID.465. Tokarski's calendar entry also noted that Physician's Assistant Krista Stapleton-Zehnder and Nurse Practitioner Virginia Roland complained about Plaintiff being absent from the work area and reading a book while on her shift. Id. Plaintiff's notes from the meeting did not indicate a discussion of Stapleton-Zehnder and Roland's complaints. PageID.467.

         On September 27, 2016, Sobieray reviewed Plaintiff's second two-week period. PageID.430. Sobieray addressed several concerns, noting that Plaintiff needs to “keep door open when available” and “complete veterans note while veteran is in the room.” Id.

         On September 29, 2016, Tokarski and Plaintiff met to discuss Plaintiff's progress. PageID.467; PageID.468. Plaintiff's notes from the meeting indicate that Plaintiff told Tokarski that she felt like her co-workers are out to get her. Plaintiff also noted that she felt like she had multiple managers because “whatever they told [Tokarski, ] [Plaintiff] was being sat down [and] talked to.” PageID.467. Tokarski's calendar entry similarly noted that Plaintiff “feels she keeps getting in trouble.” PageID.468. Tokarski also noted that she told Plaintiff that her “co-workers are there to train her” and “should be telling her ways/things to correct.” Id.

         On October 11, 2016, Pritchard reviewed Plaintiff's third two-week period. PageID.430. Pritchard's review was mixed, noting that while Plaintiff needs “direction, ” “prompting, ” and “time management skills, ” she “seeks out help for new situations.” Id.

         On October 18, 2016, Plaintiff received her Annual Competency Assessment and was marked satisfactory on every skill a validator reviewed on. ECF No. 31-10.

         On October 25, 2016, Sobieray reviewed Plaintiff's fourth two-week period. PageID.430. Sobieray's review was mixed, noting that while Plaintiff took “adequate” and “complete” notes and “appropriately” asked questions, she needed improvement “initiat[ing] procedures.” Id. Sobieray also noted that Plaintiff refused to engage in re-stocking tasks during down time, allegedly saying “that's not my job” and “I'm not doing that.” Id. Sobieray then noted she told Plaintiff that “it is all our jobs to watch for keeping up on quality care for our veterans.” Id.

         On October 26, 2016, Tokarski met with Plaintiff and Jackson to discuss Plaintiff's progress. PageID.470. Tokarski testified that Jackson requested this meeting after Tokarski told her about concerns of not getting her message through to Plaintiff. PageID.445 at 52:1-12. Tokarski documented the meeting in an email that she sent to Plaintiff the following day. PageID.470-71. The email discussed Plaintiff's September concerns as well as additional concerns about Plaintiff's performance throughout October. Id. During the week of October 11, 2016, Plaintiff allegedly failed to follow Tokarski's instructions about her unit assignment. PageID.470. On October 13, 2016, Plaintiff again allegedly failed to follow Tokarski's instructions for summoning other nurses for assistance. Id.; PageID.473. On October 26, 2016, Plaintiff told LPN Ed Marshall that she was not going to do chart reviews after Marshall volunteered to show her the process for doing the reviews. Id.; PageID.476. Plaintiff indicated in her notes that she told Marshall she “wasn't ready for that yet.” PageID.476. Plaintiff further noted that Jackson told her at the October 26 meeting that she “shouldn't be learning” chart reviews yet. Id. Also on October 26, 2016, Plaintiff avoided answering Sobieray's question when she followed up with Plaintiff concerning the prior day's re-stocking tasks. PageID.470-71; PageID.474. Plaintiff indicated in her notes that she did not maintain eye contact with Sobieray because she “was working on something for a veteran at the time.” PageID.477. On October 27, 2016, Plaintiff responded to Tokarski's email by stating that she did not “agree with any of this” and “false statements” were being made about her. PageID.479.

         On October 28, 2016, Plaintiff spoke at a nurse meeting regarding her treatment and concerns. Plaintiff's notes state that she was aware “certain concerns” had been raised, that she was an “approachable person, ” and invited her co-workers to approach her with their concerns so she could “fix the issues.” PageID.481. Plaintiff further noted that “nobody spoke up.” Id. Afterwards, Tokarski initiated a meeting with Plaintiff and union chief steward Dan Wilheim. Plaintiff's notes indicate that Tokarski told her that “there is no problem w[ith] the care you provide but your conduct.” PageID.482. Plaintiff, Tokarski, and Wilheim all signed a sheet that listed the “expectations of any LPN working in the Specialty Clinic.” PageID.483.

         On October 31, 2016, Tokarski sent an email to Plaintiff, Wilheim, and Tokarski's supervisor Kathryn Ball documenting the October 28 meeting's events and expectations for the LPN role. PageID.484-85. Tokarski's email noted that Plaintiff shared that she “felt as though [her] co-workers were not approaching” her with their concerns. PageID.484. Tokarski also noted that she expressed concerns about Plaintiff's conduct, including respecting and communicating with her co-workers, and responding to calls and requests in a timely manner. PageID.485.

         Plaintiff also testified that she talked to the union about the events that transpired from the nurse meeting at “the end of October.” ECF No. 31-4 at 106:9-10. Plaintiff said she spoke with union representative Robert Pritchard, Melissa Pritchard's husband, and told him she “felt [she] was being picked on.” ECF No. 31-4 at 106:16. Plaintiff testified that R. Pritchard told her just to “deal with it.” Id. at 19-20.

         On November 8, 2016, Tokarski noted in her calendar entry that she spoke with Ed Lesko, Human Resources (“HR”) Officer at Lutz. PageID.486. Tokarski noted that she asked Lesko if she could terminate Plaintiff. Id. Tokarski further noted that Lesko said there were no grounds for Plaintiff's termination nor could she give Plaintiff's an unsatisfactory review. Id.

         On November 9, 2016, Plaintiff received a satisfactory review for her overall performance in her 90-day evaluation. PageID.489. Tokarski added a note that stated, “Based on previous conversations, understanding of expectations set forward and will continue with orientation.” Id.

         On December 1, 2016, Tokarski met with Plaintiff and Sobieray regarding Plaintiff's progress. PageID.430. Tokarski noted in her calendar entry that they discussed scheduling follow-up appointments and problems with Plaintiff's charts. PageID.490. Tokarski also noted that she decided to extend Plaintiff's orientation for two weeks. Id. Plaintiff's notes from the meeting expressed concerns that Tokarski “wouldn't listen to anything” concerning Plaintiff's explanations for the complaints raised about her. PageID.492. Plaintiff also noted that the orientation extension made her “feel totally discriminated against” because Leanne Strok, a Caucasian LPN, “started with [Plaintiff] [and] has been off orientation for 2 weeks.” Id.

         On December 6, 2016, Tokarski received two complaints regarding Plaintiff's performance. First, Sobieray noted that on December 5, 2016, Plaintiff discharged a veteran in the waiting room, PageID.493, which Defendant contends was a “potential HIPAA violation, ” PageID.338. Second, Hayes noted that Plaintiff “was standing at the window talking” while a veteran waited to be checked into the clinic. PageID.494.

         Also on December 6, 2016, Plaintiff contacted EEO manager Cherryl Biggins at the Lutz facility to complain that she was being harassed by Tokarski based on her co-workers' complaints about her, which she contended created a hostile work environment. PageID.495. Plaintiff asserted that she was “singled out, ” and “not given the opportunity to give her side of the story” regarding complaints about her performance. Plaintiff further asserted that Strok “started the same time [Plaintiff] did and is no longer in orientation.” Id.

         Plaintiff alleges that the work environment under Tokarski is hostile to African Americans. Joann Gidron, an African American employee in the Specialty Clinic, stated in a January 11, 2017 interview that Plaintiff was excessively monitored by Hayes and Sobieray, something that did not allegedly occur with the other nurses. ECF No. 31-13. Pamela Tasley, another African American employee in the Specialty Clinic, stated in a January 11, 2017 interview that Hayes monitored Plaintiff beyond normal and Sobieray would “pass certain patients off to [Plaintiff] even when she [was] busy with another patient.” ECF No. 31-14. Tasley also stated that this was the “first time in 10 years that she has seen a hostile work environment.” Brenda Woods, an employee in the Specialty Clinic, stated in a December 28, 2016 interview that Plaintiff's orientation “was going fine and then suddenly other nurses (LPNs) started coming to her complaining about [Plaintiff].” ECF No. 31-15. Woods described Plaintiff as an “excellent LPN.” Id.

         Plaintiff alleges that the “racial dynamic is best characterized” in statements made by Hayes about Plaintiff and Alexander. PageID.564. For example, Plaintiff testified that Hayes mentioned “its us versus them, ” allegedly “meaning it's the white nurses versus [Plaintiff] and Alexander, ” and would make comments about Plaintiff and Alexander like “[t]here they go again.” Id. When speaking to Alexander, Plaintiff testified that Hayes would refer to Plaintiff as “her friend.” Id. Plaintiff alleges that she told Tokarski several times that Hayes was racially biased against her as an African American, that she felt Sobieray, Hayes, and Ed Marshall were out to get her, and that these actions were being done because she was African American. PageID.567. However, Plaintiff alleges that “Tokarski simply blew off Plaintiff's complaints and changed the subject.” Id. Plaintiff testified that she spoke with Union President Robert Pritchard about her treatment. Plaintiff alleges that R. Pritchard told Plaintiff “to deal with it.” PageID.567.

         On December 15, 2016, LPN Michelle McInnis complained about Plaintiff's performance after Plaintiff was asked to cover in the podiatry clinic. PageID.500. McInnis noted that Plaintiff allegedly arrived to the clinic stating “I don't understand why I'm here, I am still on orientation.” Id. The same day, Tokarski noted in her calendar entry that she spoke to Plaintiff regarding her conduct, noting that “she should be able to go to any clinic while on orientation to cover.” PageID.501. Plaintiff testified that Tokarski led her into a stairwell after the incident at the podiatry clinic and told her not to ask questions, allegedly raising her voice and pointing her finger at Plaintiff. PageID.396 at 159:17-160:16. Tokarski also noted in her calendar entry that she spoke to Ed Marshall and Woods about Marshall's refusal to cover podiatry earlier that day. Id.; PageID.540-41.

         On December 16, 2016, Plaintiff contacted the EEO office to initiate an informal EEO charge. PageID.499. Tokarski stated in her declaration that she first learned about Plaintiff's EEO complaint on December 16, 2016 ...

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