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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-CV-02435-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Defendant,

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION The VA admits that it terminated Sandle due to her disability. It also admits that her performance in the position in question ­ the one she held when she was terminated ­ was "clearly above that expected of a fully competent employee." As such, Sandle was discriminated against for her disability as a matter of law. But genuine issues of material fact exist regarding Sandle's retaliation claim, so summary judgment is improper. The VA created a paper trail of unfair performance ratings in an attempt to be rid of Sandle because she complained too much. And her supervisor openly bemoaned Sandle's exercise of her protected right to complain about the discrimination she suffered. Sandle was terminated due to her disability, and the VA was motivated to do so by retaliation for Sandle's exercise of her rights.

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DISABILITY DISCRIMINATION UNDER THE REHABILITATION ACT ARGUMENT 1. The VA is not entitled to summary judgment on Sandle's Rehabilitation Act claim ­ but Sandle is. Many of the assertions made by the VA in its Motion as to Sandle's claim for disability discrimination are stunning in that they plainly contradict the VA's previous assertions. This is best illustrated by comparing the VA's admissions of facts at the time of Sandle's termination with the allegations the VA now makes: VA'S ALLEGATIONS NOW "Plaintiff Did Not Have a Disability"1 VA'S ADMISSIONS THEN "REASON FOR TERMINATION: DISABILITY."2 "the decision to separate you for disability ... has been reviewed and sustained by the Chief Medical Director."4 Sandle's "restrictions are most likely permanent in nature."6 "because of Ms. Sandle's chronic low back condition, it is indeed unlikely that she can return to her full duties as a staff nurse..."8

"Plaintiff Has No `Record of Impairment with the Defendant' Nor Was She `Regarded as Having a Disability'"3 "Plaintiff's impairment is not permanent or long-term"5 "Plaintiff's Alleged Disability Did Not Substantially Limit Her Ability to Work"7

Tellingly, in their 57 page brief, the VA never mentions these admissions. And remarkably, the VA originally admitted that Sandle was disabled in its initial Motion
1 2

Defendant's Motion for Summary Judgment ("VA Mot.") at 44. Plaintiff's Motion for Partial Summary Judgment ("Sandle MSJ") Exh. 21. 3 VA Mot. at 49. 4 Sandle MSJ Exh. 23 at 1. 5 VA Mot. at 48. 6 Sandle MSJ Exh. 3 at 8. 7 VA Mot. at 45. 8 Sandle MSJ Exh. 3 at 8. 2
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for Summary Judgment in this case, which it withdrew. See Defendant's Motion for Summary Judgment, filed March 14, 2005, at 76 (the VA "does not dispute, solely for the purpose of this motion, that Ms. Sandle--at the time she was separated from government service--had a disability within the meaning of the Rehabilitation Act.").9 As shown in Sandle's Motion for Partial Summary Judgment,10 she is entitled to summary judgment in her favor on her disability discrimination claim. The VA terminated Sandle because she was disabled even though she performed the position in question, her Claims Clerk position, in a manner "clearly above that expected of a fully competent employee. . . ." See Sandle MSJ. Thus, Sandle is entitled to summary judgment on her claim for disability discrimination under the Rehabilitation Act. See id.

2. The VA presents no evidence to contradict Sandle's direct evidence of discrimination; thus, McDonnell Douglas does not apply and the VA must prove that Sandle would have been terminated even in the absence of disability discrimination, which it cannot do. Sandle argued in her Motion for Partial Summary Judgment that, having established a prima facie case of discrimination, the burden shifts to the VA under McDonnell Douglas to disprove discrimination. However, based on the VA's Motion, it

The VA also attempts to argue that Sandle was not disabled because she admitted in discovery that "she was not significantly restricted in the ability to perform a class of jobs in the field of Nursing." VA Mot. at 46. Of course, this is true ­ Sandle could perform those jobs that did not require heavy lifting and bending. But as the VA Medical Center Employee Health Physician recognized, Sandle could not work in any position that entailed lifting or carrying over 40-45 pounds and repeated bending or twisting. See Sandle MSJ Exh. 3 at 6 and 8. So Sandle was significantly restricted in that regard. The VA cannot now deny Sandle's disability based on craftily drafted discovery requests.
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Sandle hereby incorporates her entire Motion for Partial Summary Judgment. 3

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is now apparent that the VA cannot rebut the direct evidence that it terminated Sandle due to her disability. Therefore, the Court should not apply McDonnell Douglas: "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." Trans World Airlines, Inc., v. Thurston, 496 U.S. 111, 121 (1985); see also Furr v. AT & T Tech., Inc., 824 F.2d 1537, 1549 (10th Cir. 1987) ("It is true that the three-part shifting allocation of burdens of proof and production set forth in McDonnell Douglas and Burdine is inapplicable when a plaintiff can show direct evidence of the discriminatory basis of the employment decision."). The standard is that "the employer must do more than merely articulate a nondiscriminatory justification and the burden shifts to the employer to prove by a preponderance of the evidence that the adverse employment action would have been taken even in the absence of the impermissible motivation." Long v. Laramie County Cmty. Coll. Dist., 840 F.2d 743, 748­49 (10th Cir. 1988).

3. Because the VA admits that it terminated Sandle solely due to disability, it cannot present any evidence that Sandle would have been terminated in the absence of this disability discrimination; Sandle is entitled to summary judgment. As shown in Sandle's Motion, the VA terminated her due to her disability. The Notification of Personnel Action recording Sandle's termination from the VA states: "REASON FOR TERMINATION: DISABILITY" Sandle MSJ Exh. 21 ("Remarks"). The VA Medical Center wrote to Sandle on June 13, 1991 and stated that she would be terminated on June 29, 1991 because she was "determined to be physically incapable of performing the duties of the position of Staff Nurse. . . ." Sandle MSJ Exh. 22 at 1 ¶ 1.

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Sandle was informed by the VA Medical Center, over one year later, "that the decision to separate you for disability from your position of Staff Nurse has been reviewed and sustained by the Chief Medical Director." Sandle MSJ Exh. 23 at 1 (emphasis added). This is the same reason why Sandle was terminated from her position as Claims Clerk. See Sandle MSJ Exh. 12 ¶ 2. Given all of these facts, the VA cannot dispute that Sandle was disabled, had a record of the disability, and was regarded by the VA as being disabled. Nor can the VA dispute that Sandle was terminated because of her disability. Finally, as established in Sandle's MSJ, she was otherwise qualified for the position in question ­ her Claims Clerk position. Therefore, Sandle has proven disability discrimination with direct evidence that cannot be rebutted. Sandle is entitled to summary judgment on her claim for disability discrimination under the Rehabilitation Act.11

RETALIATION UNDER TITLE VII AND THE REHABILITATION ACT

ARGUMENT Genuine Issues of Material Fact Exist On Sandle's Retaliation Claim. The VA contends in its Motion for Summary Judgment that Sandle asserts over thirty separate retaliation claims, and it purports to demonstrate that these thirty-plus

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The VA does not dispute, nor could it, that Sandle properly exhausted her administrative remedies for her claim of disability discrimination (that she was wrongfully placed on leave without pay and was ultimately terminated due to her disability). Sandle followed to appropriate mechanisms and these issues were eventually addressed by Administrative Judge Dickie Montemayor in his September 30, 2001 Order. See Exh. 1 (Montemayor Order) at 2, 7 and 61. 5

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adverse employment actions that Sandle identified in discovery responses do not support her claim.12 The VA misconstrues Sandle's discovery responses. Sandle does not contend that each adverse employment action that she listed in her interrogatory responses is a separate retaliation claim. Rather, all of the adverse employment actions Sandle identified in her interrogatory responses demonstrate the VA's pattern of retaliatory conduct against Sandle in response to her numerous and continuing complaints of employment discrimination, as well as the numerous materially adverse actions she suffered. The evidence in this case demonstrates that Sandle worked within an antagonistic atmosphere. From the start, Sandle frequently exercised her protected right to voice her complaints of discrimination to her superiors and to the Equal Employment Opportunity Commission ("EEOC"). Sandle's complaints often focused on her immediate supervisor, Martha Weeks, and were made to Ms. Weeks herself, Ms. Weeks' supervisors in the Nursing Home Care Unit ("NHCU") (Jane Sheldon, Jan Kost, and Rebecca Williams) and to the EEOC. The VA's retaliation against Sandle included Ms. Weeks' unfairly negative proficiency ratings in May 198713 and March 198814-- which served as pretext to justify its denial of Sandle's requests for promotion, transfer out of the NHCU, and further training, all of which are materially adverse actions against Sandle.15 The VA's retaliation continued up to termination of Sandle's light duty detail in

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Def.'s MSJ at 5-42, Exh. A-36 at 3-5. Exh. 2 (5/28/87 Proficiency Rating). 14 Exh. 3 (3/23/88 Proficiency Rating). 15 Exh. 4 at 3-5 (Pl.'s Resp. to Def.'s 1st Supp. Discovery Requests 12/12/15). 6
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November 1990,16 and culminated in her termination from the VA in June 1991.17 The VA terminated Sandle due to her disability, with retaliation as a motivating factor. Sandle will show that her continuous complaints, Ms. Sheldon's specific derogatory reference to Sandle's protected activity in a November 2, 1987 meeting,18 and Ms. Weeks' reproach of Sandle's light duty detail and its "demoralizing" effect on staff,19 along with other evidence, are more than sufficient to support the inference that: (a) the VA's May 28, 1987 below average proficiency rating of Sandle;20 (b) the VA's March 23, 1988 "unsatisfactory" proficiency rating of Sandle;21 (c) the VA's termination of Sandle's light duty detail and transfer to leave without pay ("LWOP") status in October and November 1990;22 and (d) the VA's ultimate termination of Sandle for disability on June 29, 1991,23 were motivated by retaliation against Sandle. Therefore, the VA's Motion for Summary Judgment must be denied. A. Legal Standard

42 U.S.C. § 2000e-3(a) prohibits an employer from discriminating against an employee "because he has opposed any practice made an unlawful employment practice" by Title VII of the Civil Rights Act of 1964. To withstand a motion for summary judgment on a retaliation claim, a plaintiff must establish a prima facie case of retaliation. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir. 2003). "To
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Exh. 5 (Termination of light duty detail); Exh. 6 (11/17/90 LWOP status). Exh. 7 (Termination for "DISABILITY"). 18 Exh. 8 (11/2/87 Sandle Memo). 19 Exh. 9 (10/3/89 Weeks Memo). 20 Exh. 2 (5/28/87 Proficiency Rating). 21 Exh. 3 (3/23/88 Proficiency Rating). 22 Exh. 5 (Termination of light duty detail); Exh. 6 (11/17/90 LWOP status). 23 Exh. 7 (Termination for "DISABILITY"). 7
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state a prima facie case of retaliation, a plaintiff is required to demonstrate: (1) that [she] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Mickelson v. New York Life Ins. Co., No. 05-3049, 2006 WL 2468302, at *9 (10th Cir. Aug. 28, 2006) (internal citations omitted).24 "Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action." Id. "The burden then shifts back to the plaintiff to show that the employer's proffered reason is pretext for retaliation." Id. A plaintiff's prima facie case, plus evidence that the defendant's purported reasons for the adverse action were pretextual, are sufficient to defeat a motion for summary judgment. See Doebele, 342 F.3d at 1135. In this case, Sandle presents more than enough evidence to create a genuine issue of material fact as to the VA's motive to retaliate against Sandle in response to her protected opposition to the VA's discriminatory practices. B. Sandle Has Established Prima Facie Case Of Retaliation. 1. Sandle's Complaints To Her Superiors And The EEOC Constitute Protected Opposition To Discrimination.

While employed by the VA in Denver, Sandle filed at least seven formal complaints of employment discrimination with the EEOC25 and complained to her

Attached hereto as Exh. 10. See Exh. 11 (9/3/87 Doubleday Memo; Def.'s 012299-00); Exh. 12 (9/18/87 Complaint); Exh. 13 (12/23/87 Complaint); Exh. 14 (6/10/88 Complaint); Exh. 15 (11/29/89 Complaint); Exh. 16 (6/6/90 Complaint); Exh. 17 (8/28/91 Complaint).
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superiors countless times.26 Sandle's activities constitute protected opposition to discrimination for which the VA could not retaliate against her. See O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253, 1255 (10th Cir. 2001) (noting that employer "concedes" that employee's filing of an EEOC claim "constitutes a protected activity" and that "[i]nformal complaints to superiors constitute protected activity"). Sandle properly exhausted her administrative remedies on her retaliation claim.27 Her formal EEOC complaints were addressed by that agency and were eventually appealed to an administrative judge who decided them, albeit incorrectly, on the merits.28 Now her claims are before this Court. 2. The VA's Actions Were Materially Adverse.

The United States Supreme Court recently broadened the retaliatory actions for which an employer can be liable in Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006). The standard for retaliatory conduct is no longer an "adverse employment action" such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." HIllig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004) (internal quotation omitted). Rather, to prove its prima facie case, a plaintiff need only demonstrate "that a reasonable employee would have found the challenged action materially adverse, which in this context means [that the employer's conduct] might have dissuaded a reasonable

Exh. 55 (internal complaints arranged chronologically). See Exhs. 12 - 17 (EEOC Complaints) and 1 (Montemayor Order) at 3-7 (describing issues decided by Administrative Judge), especially p. 3 ## 6-8, p. 4 ## 1 and 3, p. 5 # 14, p. 6 ## 2-4, and p. 7 ## 10, 12, 15 and 17. 28 See id.
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worker from making or supporting a charge of discrimination." Burlington N., 126 S.Ct. at 2415 (internal quotations omitted). Even before the recent expansion of employer liability for retaliation claims in Burlington Northern, the Tenth Circuit "liberally define[d]" the phrase "adverse employment action." Hillig, 381 F.3d at 1032 (internal quotation omitted). "Such actions are not simply limited to monetary losses in the form of wages or benefits," and can take the form of "harm to future employment prospects." Id. (internal quotations omitted). In this case, Sandle suffered many materially adverse actions while employed by the VA, the most damaging being: (a) the below average proficiency rating on May 28, 1987; (b) the "unsatisfactory" proficiency rating on March 23, 1988; (c) the termination of Sandle's light duty detail and transfer to LWOP status in November 1990; and finally, (d) her termination on June 29, 1991. All of these constitute materially adverse employment actions, as well as those listen in Sandle's Discovery Responses.29 The VA concedes that the May 28, 1987 proficiency rating and Sandle's termination on June 29, 1991 constitute adverse employment actions.30 Indeed, they are. See Hillig, 381 F.3d at 1031 ("One factor that strongly indicates a challenged action is an `adverse employment action' is that the action causes `harm to future employment prospects.'") (citation omitted); O'Neal, 237 F.3d at 1255 (termination constitutes adverse employment action). Moreover, the VA's Motion altogether fails to address one of the most egregious of the retaliatory actions it undertook--the March 23, 1988 "unsatisfactory" performance
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Exh. 4 at 3-5 (Pl.'s Resp. to Def.'s 1st Supp. Discovery Requests 12/12/15). See Def.'s MSJ at 17-18, 38-42. 10

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rating of Sandle despite her having been on leave for at least nine of the eleven months under review.31 This rating, like the May 28, 1987 proficiency rating, clearly constitutes a materially adverse action. See Hillig, 381 F.3d at 1031. Finally, the VA's contention that the termination of her light duty detail in Medical Administration Services ("MAS") in November 1990 does not constitute an adverse employment action evidences its misperception of Sandle's claim.32 It was not her transfer to MAS that was an adverse action; it was the VA's termination of her light duty detail in MAS that constitutes the adverse action. Termination of Sandle's light duty detail in MAS,33 and thereby forcing Sandle to request LWOP status--which she did "in protest,"34 meant Sandle lost her wages. As a result, the VA engaged in the quintessential adverse employment action. See Hillig, 381 F.3d at 1031. In sum, the actions Sandle challenges as retaliatory are materially adverse and, thus, actionable on her retaliation claim. 3. The VA Retaliated Against Sandle Because Of Her Discrimination Complaints.

The evidence in this case amply supports the inference, sufficient to withstand the VA's Motion for Summary Judgment, that the VA's May 28, 1987 below average proficiency rating, March 23, 1988 "unsatisfactory" proficiency rating, termination of Sandle's light duty detail and transfer to LWOP status in November 1990, and ultimate

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Exh. 3 (3/23/88 "unsatisfactory" rating; P000724); Def's MSJ Exh. A-36 at 4. See Def.'s MSJ at 36-37. 33 Exh. 5 (11/90 termination of MAS light duty detail). 34 Exh. 6 (11/90 LWOP request). 11
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firing on June 29, 1991, were motivated by retaliation against Sandle for her internal and EEOC complaints of employment discrimination. A causal connection between the employee's protected activity and the employer's retaliatory conduct "may be shown by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." O'Neal, 237 F.3d at 1253. The Tenth Circuit has cautioned, however, that "the phrase `closely followed' must not be read too restrictively." Marx v. Schnuck Markets, Inc., 76 F.3d 321, 329 (10th Cir. 1996). Thus, where the protected activity and the retaliatory conduct do not occur in close succession, a plaintiff may demonstrate causation by offering additional evidence of the employer's retaliatory motive. O'Neal, 237 F.3d at 1253. Even where many months elapse between the protected activity and retaliation, causation can be shown where the employee continues to complain in the interim or where the employer's pattern of retaliatory conduct commences soon after the protected activity and only culminates later in actual discharge. See Cobb v. Syniverse Technologies, Inc., 359 F. Supp. 2d 1287, 1290 (M.D. Fla. 2005) (denying employer's motion for summary judgment on retaliation claim where employer terminated the employee nearly seven months after he complained of age discrimination because the employee's continued complaints in the interim demonstrated causation of the retaliation); Marx, 76 F.3d at 329 (reversing summary judgment for employer on retaliation claim where employer commenced a pattern of retaliatory actions one month after employee filed FLSA complaint, culminating in the employee's termination one and a half years later).

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a.

May 28, 1987 Proficiency Rating.

On May 28, 1997, Martha Weeks--Sandle's direct supervisor in the NHCU-- issued a negative proficiency report for Sandle covering the period since she arrived at the Denver VA through May 2, 1987.35 Although Ms. Weeks technically rated Sandle with a "satisfactory" score, the number was below average, and the narrative comments confirmed Ms. Weeks' disapproving opinion of Sandle.36 The evidence supports the inference, sufficient to withstand the VA's Motion for Summary Judgment, that retaliation motivated Ms. Weeks' May 28, 1987 negative evaluation of Sandle. Sandle complained to Ms. Weeks and her supervisors in the NHCU incessantly during the period under review, creating an incentive for the NHCU to retaliate against Sandle in the May 28, 1987 proficiency report. Indeed, records of at least 57 of those complaints ­ more than one per month on average ­ were reduced to writing.37 On January 11, 1987, Sandle complained to Jan Kost, Supervisor of the NHCU and Ms. Weeks' superior, of the harassment she was experiencing in the NHCU due to her back injury.38 On January 25, 1987, Sandle complained to Jane Sheldon (Chief of Nursing Services), Ms. Kost, and Ms. Weeks of "numerous unfair labor practices that I feel I have been subjected to and harassment."39 On February 3, 1987 and February 6, 1987, Sandle contacted Ms. Weeks, concerning a meeting about the complaints.40 On February 24, 1987, Sandle "summoned" Jan Kost and Martha Weeks to her locker to
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See Exh. 2 (5/28/87 Proficiency Rating; Def.'s 012269-76). Id. 37 See Exh. 55. 38 See Exh. 18 (Def.'s 012690). 39 See Exh. 19 (Def.'s 012216-17). 40 See Exh. 20 (Def.'s 012691); Exh. 21 (Def.'s 012693). 13
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view two white crosses that had been taped on the exterior.41 Sandle contacted Jane Sheldon, Jan Kost and Martha Weeks again on March 10, 1987, "requesting to meet with the Chief of Nursing at her earliest convenience" to discuss the "continued" harassment Sandle was experiencing.42 On March 21, 1987, Sandle wrote to Jane Sheldon, with copies to Martha Weeks, Jan Kost, Dr. Larry Seidl (Chief of Staff) and Fred Salas (Medical Center Director), requesting "a hearing in reference to numerous problems I have encountered while a staff nurse on the NHCU East Wing."43 All of these complaints--and their frequency--support the inference that the VA's May 28, 1987 unfavorable proficiency rating of Sandle was motivated by retaliation for Sandle's opposition to discrimination. See Cobb, 359 F. Supp. 2d at 1290. The VA's Motion for Summary Judgment must, therefore, be denied. b. March 23, 1988 Proficiency Rating.

The VA does not even attempt to argue in its Motion for Summary Judgment that the March 23, 1988 "unsatisfactory" proficiency rating does not support Sandle's retaliation claim; the VA fails to address the action altogether, likely because the evidence of the VA's retaliatory motive for the "unsatisfactory" rating is so profound. To begin, the notification of the "unsatisfactory" rating appeared in a VA Memorandum dated March 23, 1988 by Martha Weeks.44 It purports to assess Sandle's performance in the NHCU since May 1987, and states that "[b]ased on your performance during the time you worked during this rating period, you are receiving an
41 42

See Exh. 22 (Def.'s 012710). See Exh. 23 (Def.'s 012695). 43 See Exh. 24 (Def.'s 012218). 44 Exh. 3 (3/23/88 Proficiency Rating; P000724). 14
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unsatisfactory rating on your proficiency."45 The evidence more than supports the inference that the VA's motive for issuing this "unsatisfactory" rating was retaliation for Sandle's complaints of employment discrimination. Sandle complained of discrimination frequently during the review period, and Ms. Weeks and Ms. Weeks' superiors--Jan Kost (Supervisor, NHCU), Jane Sheldon (Chief, Nursing Services), Rebecca Williams (Chief, Nursing Services), and Dr. Larry Seidl (Chief of Staff)--received and, therefore, were each fully aware of those complaints. The following timeline--merely a partial list for this period--demonstrates the extent of Sandle's complaints: · · May 30, 1987: Sandle complained of Ms. Weeks' review for the previous period.46 June 23, 1987: Sandle complained to Ms. Weeks, requesting a meeting "to discuss my dissatisfaction with overall working conditions ... and disparity that has been displayed and condoned."47 June 24, 1987: Ms. Weeks met with Sandle to discuss her complaints.48 June 30, 1987: Sandle filed a complaint with the EEOC, complaining of retaliation, discrimination, intimidation, coercion and harassment.49 July 8, 1987: Sandle requested leave from Ms. Weeks to keep an appointment in personnel.50 September 23, 1987: Sandle filed another EEOC complaint.51

· · · ·

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Id. Exh. 25 (5/30/87 Sandle Memo; 012278-79). 47 Exh. 26 (6/23/87 Sandle Memo; 012746). 48 Exh. 27 (7/2/87 Weeks Memo; 012232-34). 49 Exh. 11 (9/3/87 Doubleday Memo; 012299-00). 50 Exh. 28 (7/8/87 Sandle Memo; S000142). 51 Exh. 12 (9/23/87 Complaint (dated 9/18/87)) 15
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·

November 2, 1987: Sandle both complained to the Chief of Staff, Dr. Larry Seidl52 and met with Jane Sheldon and Emma Sneed (Sandle's EEOC representative) to discuss Sandle's discrimination complaints.53 November 10, 1987: Sandle wrote two complaining memoranda--one to Fred Salas, Director of the VA Medical Center, and one to Dr. Seidl, both copied to Jane Sheldon.54 November 11, 1987: Sandle complained again to Ms. Weeks, "(third grievance submitted)," copied to Ms. Kost, Ms. Sheldon and Dr. Seidl.55 November 20, 1987: Sandle complained of Ms. Weeks to Willa Tribble, EEO Counselor.56 November 23, 1987: Sandle complained of Ms. Weeks to Dr. Seidl, copies to Mr. Salas and Mr. Alley, an attorney. December 23, 1987: Sandle complained to Dr. Seidl, through Ms. Sheldon, Ms. Kost, and Mr. Salas of the promotion denial due to Ms. Week's unfair proficiency rating.57 Sandle also filed another EEOC complaint on this date.58 January 30, 1988: Sandle wrote to Mr. Salas concerning her EEO complaint, including Ms. Weeks' unfair proficiency report. March 11, 1988: Ms. Weeks, Sandle and Ms. Sneed met to discuss Sandle's complaints.59

·

· · · ·

· ·

As the evidence makes clear, Ms. Weeks' March 23, 1988 "unsatisfactory" performance rating of Sandle is causally linked to Sandle's submission of complaints to Ms. Weeks or to Ms. Weeks' superiors throughout the relevant period ­ not just to a single complaint. Sandle's continual filing of complaints throughout the term is sufficient

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Exh. 29 (11/2/87 Report of Contact; P005128-29). Exh. 8 (11/2/87 Sandle Memo) 54 Exh. 30 (11/10/87 Sandle Memo to Salas); Exh. 31 (11/10/87 Sandle Memo to Seidl). 55 Exh. 32 (11/11/87 Sandle memo to Weeks). 56 Exh. 33 (11/20/87 Sandle memo; P003149). 57 Exh. 34 (12/23/87 Sandle memo; P005170). 58 Exh. 13 (12/23/87 EEOC Complaint). 59 Exh. 35 (3/29/88 Weeks Memo; 012238). 16
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to support the inference that the March 23, 1988 "unsatisfactory" rating was motivated by retaliation for Sandle's complaints. See Cobb, 359 F. Supp. 2d at 1290. Indeed, the fact that numerous complaints during this period specifically addressed Ms. Weeks's unfair proficiency ratings and poor treatment of Sandle is, in and of itself, enough to support the inference that Ms. Weeks' March 23, 1988 proficiency rating was retaliatory. The inference of retaliation as motivating the March 23, 1988 "unsatisfactory" proficiency rating of Sandle is further evidenced by the fact that Sandle was not even working under Ms. Weeks for most of the eleven months under review. The review purports to cover the period from May 1987 to March 23, 1988.60 Of that time, however, Sandle only worked in the NHCU for about a month and a half, toward the beginning of the period, and Sandle had been absent due to her back injury for the five months preceding the rating.61 Thus, this is a close proximity case and causation may be inferred. See Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003) (finding causal connection between employee's complaints of discrimination and employer's adverse action five months later because employee was on leave during much of the time gap and, thus, retaliatory motive could be inferred as in a close proximity case). In addition, Ms. Weeks further evidenced her particular dislike for Sandle by going out of her way to write and send a letter to the Worker's Compensation Program to report information intended to undercut Sandle's worker's compensation claim. On December 29, 1987, Ms. Weeks reported to the Worker's Compensation Program that
60 61

Exh. 3 (3/23/88 Weeks memo). See Exh. 36 (P003740-43); Exh. 37 (011504); Def. MSJ at 38. 17

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she had learned that Sandle had been in a car accident two and a half months before her work-related injury of January 2, 1987, thereby suggesting that Sandle's worker's compensation claim might be fraudulent or, at least, without merit.62 A reasonable factfinder could conclude that Ms. Weeks' effort to draw into question Sandle's worker's compensation claim evidences her retaliatory motive. Finally, and perhaps the most damning evidence of retaliatory motive for the March 23, 1988 proficiency rating--and against Sandle more generally--Ms. Sheldon (Ms. Weeks' supervisor) addressed Sandle's frequent complaints to the EEOC and superiors.63 In the November 2, 1987 memo to Ms. Sheldon summarizing their meeting of that same date, Sandle recounted: Also during our discussion, you repeatedly alluded to the facts that I exercised my appeal rights in "filing EEO complaints", Alleged "you're always writing other higher Gov. Officials, Wrote complaint to OSHA".64 The fact that Ms. Sheldon specifically referenced Sandle's discrimination complaints in a meeting discussing a grievance is proof positive that the motive to retaliate against Sandle existed and, at the very least, is sufficient to raise a genuine issue of material fact as to the VA's motives vis à vis Sandle. See Marquez v. Baker Process, Inc., 42 Fed. Appx. 272, 278 (10th Cir. 2002) (holding that summary judgment on retaliation claim was error where employer mentioned at meeting that the employee plaintiff "had said some very bad things about the company and that [the employee] had presented a discrimination complaint against the company"); O'Bryan v. KTIV Tele., 64 F.3d 1188,
62 63

Exh. 38 (012662). Exh. 8 (11/2/87 Sandle memo) (emphasis in original). 64 Id. 18
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1194-95 (8th Cir. 1995) (holding that district court erred in granting summary judgment on retaliation claims where employer announced that the employee plaintiff "had filed discrimination charges against [the employer]" and asked the employee not to visit the office "since there is a claim being carried before the Sioux City Human Rights Commission"). c. November 1990 Light Duty Detail Termination and Transfer to LWOP Status.

In November 1990, the VA terminated Sandle's light duty detail in Medical Administration Service ("MAS") due to her disability, forcing Sandle with no choice but to go on LWOP status, which she accepted "in protest".65 The evidence supports the inference that the VA terminated Sandle for her disability with retaliation for Sandle's opposition to discrimination as a motivating factor. Thus, summary judgment against Sandle on her retaliation claim is inappropriate. First, Sandle's frequent opposition to the VA's discriminatory practices continued throughout the years leading up to November 1990. Sandle returned to the NHCU from leave for her back injury in July 1989, and recurrent complaints to and about Martha Weeks' discriminatory practices followed.66 Sandle filed a discrimination complaint with

Exh. 5 (S000494); Exh. 6 (P000565). See Exh. 39 (9/9/89 Sandle Memo; P000964); Exh. 40 (9/12/89 Sandle memo; P005320); Exh. 41 (10/18/89 Sandle memo; P000969); Exh. 42 (3/9/90 Sandle letter; 010431-35); Exh. 43 (4/20/90 Sandle memo; P002935); Exh. 44 (4/23/90; 010454-58); Exh. 45 (4/24/90; P001191); Exh. 46 (5/21/90; P000731); Exh. 47 (6/15/90; S00049091).
66

65

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the EEOC in June 1988, and two more followed in November 1989 and June 1990, providing further incentive to the VA to retaliate against her.67 Next, Ms. Weeks again went out of her way to retaliate against Sandle, this time attempting to limit Sandle's ability to work in the NHCU. Sandle re-injured her back on September 12, 1989.68 Sensing an opportunity to rid the VA of Sandle, Ms. Weeks contacted the Chief of Personnel, thru the Chief of Nursing Service and NHCU Supervisor on October 3, 1989, to request "consultation and support in limiting the length of light duty time to 8 weeks on this most recent claim."69 In response, Michael Winn, Personnel Officer, confirmed that "no specific time limitations on light duty placements are presently established," and that the Nursing Service could limit the length of a light duty assignment after consideration of "factors as type of injury, prognosis, available medical documentation, employee abilities, work restrictions, and the expected length of the light duty assignment."70 Ms. Weeks' effort to establish a policy that would effectively bar Sandle from working in the NHCU further supports an inference of retaliatory motive in the face of Sandle's continuous complaints. Ms. Weeks' October 3, 1989 memo also stated that Sandle's request for light duty was "very difficult to accommodate" and that it was "very demoralizing for the staff to have someone on light duty for this extended period of time."71 Such statements have been held to constitute direct evidence of retaliatory motive. See Doebele, 342 See Exh. 14 (6/10/88 VA Complaint); Exh. 15 (11/29/89 VA Complaint); Exh. 16 (6/6/90 VA Complaint). 68 See Exh. 48 (9/12/89 report of emergency treatment, P000827). 69 Exh. 9 (10/3/89 Weeks memo) 70 Exh. 49 (10/19/99; Def.'s 011347). 71 Exh. 9 (10/3/89 Weeks memo). 20
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F.3d at 1137-38 (direct evidence of retaliatory motive included supervisors' complaints about the employee's absences, distribution of employee's workload, restrictions on employee's hours, describing as "unfortunate" the employee's timely request for a continuation of her disability leave, and pointing out that the employee has been on disability leave for over nine weeks). The VA's retaliatory motive is further evidenced by the fact that Sandle earned positive reviews for her year of light duty work in the MAS from November 1989 through November 1990.72 Sandle's supervisor and her reviewer in MAS rated her according to five factors or job elements, and as to four of those five, Sandle's performance was "clearly above that expected of a fully competent employee" and as to the other factor, her performance was "to the full extent expected of thoroughly competent employee."73 Additional comments in Sandle's review included: "very knowledgeable," "displays tact, courtesy and compassion at all times," and "supportive to staff and co-workers."74 Such a positive review from another department suggests that the reviews Sandle received in NHCU were motivated by retaliation, not Sandle's allegedly poor job performance. Finally, not to pass up an opportunity to retaliate against Sandle for her opposition to discrimination, on December 18, 1989, Ms. Weeks denied Sandle's request for administrative leave to tend to an urgent, job-related issue.75 The continuous nature of Sandle's complaints--through the year leading up to the November 1990 termination of Sandle's light duty detail--the glowing reviews from
72 73

Exh. 50 (Def.'s 011596-601) Id. 74 Id. 75 Exh. 51 (12/4/89; P000695); Exh. 52 (12/18/89; P000696). 21
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supervisors outside the NHCU, and the direct evidence of retaliation by Ms. Weeks, demonstrates that a causal connection exists between Sandle's opposition to discrimination and the VA's termination of Sandle's light duty detail in November 1990. See Cobb, 359 F. Supp. 2d at 1290; Doebele, 342 F.3d at 1137-38. The VA's motion for summary judgment on Sandle's retaliation claim, thus, must be denied. d. June 29, 1991 Termination.

The aforementioned evidence establishes that the VA's adverse employment actions against Sandle were motivated by retaliation against Sandle's frequent, yet protected, complaints of discrimination. The antagonistic nature of the relationship between the VA and Sandle was so entrenched and so profound that the VA's retaliation against Sandle culminated with her firing on June 29, 1991. In June 1991 the VA terminated Sandle for "DISABILITY".76 Given the evidence of retaliatory motive that the VA possessed leading up to Sandle's termination, the inference that the VA was motivated by retaliation when it terminated Sandle is likewise clear. See Wells, 325 F.3d at 1217; Cobb, 359 F. Supp. 2d at 1290. Thus, a genuine issue of material fact exists--sufficient to withstand the VA's Motion for Summary Judgment--on Sandle's retaliation claim based on her termination. C. The VA Failed To Meet Its Burden To Provide A Legitimate, NonDiscriminatory Reason For The "Unsatisfactory" March 23, 1988 Proficiency Rating.

Once Sandle established a prima facie case of retaliation based on the March 23, 1988 "unsatisfactory" proficiency rating, the burden of production shifted to the the VA to

76

Exh. 7 (P004569). 22

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articulate a legitimate, nondiscriminatory reason for the adverse action. See Mickelson, 2006 WL 2468302, at *9. The VA did not even address, let alone offer a legitimate, non-discriminatory reason for, the March 23, 1988 proficiency rating in its Motion for Summary Judgment. Therefore, the VA has failed to meet its burden of production on Sandle's retaliation claim, and its Motion for Summary Judgment on that claim must be denied. D. Any Purportedly Legitimate, Non-Discriminatory Reasons Proffered By The VA For The Other Employment Actions Against Sandle Are Pretextual.

If the VA were to articulate a legitimate, non-discriminatory reason for an adverse employment action, the burden would shift back to Sandle to show that the VA's proffered reason is pretext for retaliation. See Mickelson, 2006 WL 2468302, at *9. "[P]retext may be shown by a variety of evidence and no one type of evidence is required." Doebele, 342 F.3d at 1137. Moreover, "the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom" may be considered when determining whether the defendant's explanation is pretextual. O'Neal, 237 F.3d at 1253 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000)). Weaknesses, inconsistencies, or contradictions in the employer's purported reasons for the adverse employment action support the inference of pretext. O'Neal, 237 F.3d at 1254. Furthermore, at the summary judgment stage, "all doubts concerning pretext must be resolved in plaintiff's favor." Doebele, 342 F.3d at 1139. The VA attempts to articulate a purportedly legitimate, non-discriminatory reasons for its May 1987 proficiency rating and other materially adverse actions, namely

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poor performance and lack of qualifications, but that does not hold up against the evidence. Here are just a few of the key pieces of evidence that show the VA's purported justifications to be mere pretext for retaliation:

First, Sandle received poor performance reviews from her supervisors at NHCU, but as soon as she was out from under their supervision, she received glowing reviews for her full year of work in MAS, under new supervisors.

Second, the VA trapped Sandle in a Catch 22: she tried desperately to transfer out of the NHCU, but the VA's retaliatory paper trail of unfair performance reviews prevented that. As Jane Sheldon stated: "Until you correct your performance problems as a staff nurse in the [NHCU], I am unable to consider you for another position."77

Third, Sandle's Catch 22 is further illustrated by the fact that, for instance, Sandle was denied a training request to take a course in patient education, but then was denied a position as patient health education coordinator because she did not have any experience in patient education.78 It was an impossible situation.

Fourth, Sandle's supervisor explicitly complained to Sandle about the fact that she exercised her right to complain about the discrimination she suffered.79

77 78

Exh. 53 (11/13/87 Sheldon memo) See Exh. 54 (30(b)(6) Deposition of Judith Wilson) at 44:23-45:15. 79 Exh. 8 (11/2/87 Sandle memo) 24
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Fifth, another of Sandle's supervisors improperly attempted to limit Sandle's light duty to eight weeks even though no such policy existed."80 This action was targeted specifically at Sandle and interfered directly with Sandle's ability to work.

Sixth, that same supervisor found that Sandle's placement on light duty, due to a disability, was "demoralizing."81

Seventh, again the same supervisor, Ms. Weeks, essentially tattled on Sandle, unsolicited, to the Worker's Compensation Program. Ms. Weeks claimed that she had learned that Sandle had been in a car accident two and a half months before her workrelated injury of January 2, 1987, thereby impugning Sandle.82

Eighth, and perhaps most shocking, Sandle was given an unsatisfactory rating for a year of performance despite her having been on leave at the time of the review and for at least nine of the eleven months under review.83 Then, on top of it all, Sandle was given 90 days to improve her performance ­ during a time when she was not working because the VA forced her on LWOP.84

80
81

See Exh. 9 (10/3/89 Weeks memo); Exh. 49 (10/19/99; Def.'s 011347). Exh. 9 (10/3/89 Weeks Memo) 82 Exh. 38 (012662). 83 Exh. 3 (3/23/88 "unsatisfactory" rating; P000724). 84 See id. 25
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Simply stated, any reason given by the VA is pretext. The VA created a false paper trail of unfair performance reviews to punish Sandle and to pretextually justify its efforts to be rid of her. For instance, as an explanation for the May 1987 below average proficiency rating, the VA contends that Sandle's "performance was simply not up to par."85 Ms. Weeks' comments in the evaluation included: "difficulty following instructions," "not always able to elicit cooperation from staff," "written and oral communication skill require improvement."86 Ms. Kost stated that Sandle had "a problem following instructions."87 Ms. Weeks' and Ms. Kost's comments stand in stark contrast, however, to the extremely complimentary comments from Sandle's supervisors in MAS.88 Sandle's performance was "clearly above that expected of a fully competent employee" as to most factors, and was "to the full extent expected of a thoroughly competent employee" on one other factor.89 Her supervisor and reviewer, citing numerous specific instances, made the following remarks about Sandle: · · · · ·
85 86

"very knowledgeable" "demonstrates the abilities to interpret [and] explain" "displays tact, courtesy and compassion at all times" "presents a professional demeanor" "written communication" is "clear and concise"

Def. MSJ at 18. Id.; Def.'s Exh. C-2. 87 Id.; Def.'s Exh. A-18 at 3-4. 88 Exh. 50 (011596-601). 89 Id. 26
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·

"demonstrated the ability to work well under stressful situations, recognized potentially dangerous situations and completed all work under time constrictions" "supportive to staff and co-workers" Able "to complete assigned tasks effectively and efficiently"90

· ·

The marked inconsistency between the NHCU's evaluations of Sandle and that of the MAS, along with all the other evidence of the NHCU's retaliatory motive, are no coincidence. Sandle's performance did not miraculously improve overnight. Out from under the thumb of her retaliatory supervisors, Sandle's skills were recognized. Finally, the VA admitted at the time of the termination of Sandle's light duty detail in November 1990 and her ultimate termination in June 1991, that Sandle was terminated because she was disabled.91 First, the VA's proffered reason is neither legitimate nor non-discriminatory, and therefore fails to satisfy its burden of production ­ indeed, it is direct evidence of disability discrimination. See Sandle MSJ and pp. 2-5, above. Moreover, as the review from MAS made clear, Sandle was more than capable--indeed, she was performing at a level "clearly above that expected of a fully competent employee"--to work.92 The overwhelming evidence of retaliatory motive on the part of the NHCU more than supports the inference that the VA's reasons were pretextual. See O'Neal, 237 F.3d at 1253.

90 91

Id. at 5-6. See Sandle MSJ Exhs. 21 and 23 at 1. 92 Exh. 50 (011596-601). 27
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In sum, because Sandle has established a prima facie case of retaliation and offered evidence supporting the inference that the VA's purported justifications for these materially adverse actions were pretextual, the VA's Motion for Summary Judgment must be denied. See Doebele, 342 F.3d at 1135; Wells, 325 F.3d at 1220.

Respectfully submitted this 25th day of September, 2006. HOGAN & HARTSON L.L.P.

s/ Dugan Bliss Sean R. Gallagher Dugan W. Bliss Eric S. Howard Anne H. Turner 1200 Seventeenth Street, Suite 1500 Denver, CO 80202 Telephone: (303) 899-7300 Fax: (303) 899-7333 E-mail: [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff Lillian F. Sandle

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CERTIFICATE OF SERVICE This is to certify that on this 25th day of September, 2006, I electronically filed the foregoing PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Michael Conrad Johnson U.S. Attorney's Office ­ Denver, Colorado 1225 17th Street, Suite 700 Denver, Colorado 80202 [email protected]

Magistrate Judge Patricia A. Coan United States District Court 901 19th Street Denver, Colorado 80294 [email protected]

s/ Dugan Bliss

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