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David v. Winchester Medical Center

United States District Court, W.D. Virginia, Harrisonburg Division

January 5, 2018

MARY DAVID, Plaintiff,


          Michael F. Urbanski Chief United States District Judge.

         This matter comes before the court on defendant's Motion for Summary Judgment, ECF No. 37, in which defendant Winchester Medical Center ("WMC") seeks summary judgment on Counts I and II of plaintiff Mary David's Complaint (the "Complaint" or "Compl."), ECF No. I.[1] David has also filed a Motion to Strike, ECF No. 40, which WMC opposes. For the reasons discussed below, the court will GRANT WMC's Motion for Summary Judgment and DENY David's Motion to Strike.

         I. Summary Judgment Standards

         Pursuant to Rule 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a): Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Or. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . ., [any] affidavits" filed by the parties. Celotex. 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." IcL (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex. 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn. 710 F.3d at 213 (citing Bonds v. Leavitt. 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.'" McAirlaids. Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam)). Moreover, "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson. 477 U.S. at 255. The non-moving party must, however, "set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn. 710 F.3d at 213 (quoting Anderson. 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson. 477 U.S. at 249). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (quoting Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

         II. Background

         David's Title VII claims arise out of events that occurred during her employment at WMC. In short, David claims that the actions of Dr. Nicolas C. Restrepo constituted sex-based discrimination, and she was terminated in retaliation for threatening to file a sexual harassment complaint against Dr. Restrepo.

         A. Organizational Structure of WMC

         David was employed at WMC as the Director of Critical Care and Nursing, Heart, and Vascular Center. Deposition of Mary E. David ("David Tr.") 27:23-30:1 & Ex. 4. David did not supervise other directors or physicians. Id. 34:6-7; 35:6-11. Critical Care is one of seven departments under the supervision of the Vice President of Nursing ("VPN") at WMC, each of which was headed by a director. Id. 32:2-34:8, 35:17-36:1 & Exs. 4, 6. During David's employment, Kathy Tagnesi originally served as VPN, and Anne Whiteside replaced Tagnesi in March 2013; David reported directly to them. Id. 33:3-11. Both Tagnesi and Whiteside, and all seven directors under the VPN's supervision, were at all relevant times female. Id., Ex. 4.

         B. Dr. Restrepo

         Dr. Restrepo is the Vice President of Medical Affairs at WMC. Affidavit of Nicolas C. Restrepo, MD ("Restrepo Af£") ¶ 1. He began this position in 2011. Deposition of Nicolas C. Restrepo, M.D. ("Restrepo Tr.") 7:2-9. Both Dr. Restrepo and the VPN report directly to the President of WMC. David Tr. Ex. 6. Accordingly, "Anne Whiteside is Restrepo's peer." Mem. Opp. Def.'s Mot. Summ. J. ("Opposition to the Motion for Summary Judgment" or "MSJ Opp."), ECF No. 39, at 5.

         Dr. Restrepo states he can come across as "brash." Restrepo Tr. 45:6-7. Whiteside stated that Dr. Restrepo's behavior was "surgeon-like" and that people found him to be "intimidating." Deposition of Winchester Medical Center By and Through Its Designated Representative Anne Whiteside ("Whiteside Tr.") 58:20-53:6. WMC has tried to improve Dr. Restrepo's communication style. Id. 55:20-56:18. While WMC claims that Dr. Restrepo's communication style has improved, Declaration of Lori Brown ¶ 5, Affidavit of Carla Dallmann ("Dallmann Aff.") ¶ 21, Declaration of Katrina Minter ¶ 5, Declaration of Desiree Brunelle ("Brunelle Decl.") ¶ 5, Dr. Restrepo still received some complaints about his communication style as late as January 2017, Restrepo Tr. Ex. 3 at 30-33. Nonetheless, in the same January 2017 review, Dr. Restrepo still received an overall rating of 3.49 for "Interpersonal savvy, " and 3.93 for "Communicating effectively, " both of which lie between "Effective" and "Highly Effective." Restrepo Tr. Ex. 3 at 4.

         C. Policies Governing Employment of WMC

         Certain policies and professionalism standards governed David's employment at WMC. David's job description, effective as of August 2008, required David "to collaborate with nursing staff at all levels, interdisciplinary teams and executive team leaders, " take "responsibility for actions of self and staff in own department, " and "[demonstrate STARS behaviors in all interactions." Def.'s Br. Supp. Mot. Summ. J. ("Motion for Summary Judgment" or "MSJ Br."), ECF No. 38, Ex. 3, at 119. Further, David's position "require[d] a person with a positive attitude, who is pleasant and cooperative, displaying a professional demeanor with patients, families' physicians and fellow employees." Id.

         The "STARS" behaviors, which were also called "Corporate values, " required David to "treat [other employees] with courtesy and respect at all times, " "anticipate and offer support, guidance and encouragement to each other, " "remain open to new viewpoints, ideas, and talents, " and "participate in, accept, and carry out team decisions." Id., at 120. As late as April 9, 2012, David signed that she had "read and underst[ood] the Standards of Behavior for Valley Health [i.e., STARS] and pledge[d] to comply with and practice these behaviors." Id. at 121.

         At her deposition, David admitted that STARS behavior governed her employment. David Tr. 30:4. She understood that developing a trusting and respectful relationship with each other was "part of the basis" for STARS. 14 31:5-7. She believed that "the STARS value [sic] were an integral part of creating a cohesive unit, so if people didn't respect the STARS values, it was hard to-it was hard to move people along." Id., 59:16-19.

         The STARS values were transitioned "to a new values program . . . effective January 1, 2013." Mem. Supp. Mot. Strike. ("Mot. Strike"), ECF No. 41, Ex. 2; Whiteside Tr. 77:14-16. David does not dispute that a similar values system continued after STARS was phased out. Whiteside testified that STARS was simply "the words that go along with our values, ... the service standards." Whiteside Tr. 77:17-20.

         David was also subject to WMC's Corrective Action/Work Rules-Policy and Workplace Anti-Violence Policy. Affidavit of Kathy Kagarise ("Kagarise Af£") ¶¶ 15-16 & Ex. 14. The latter policy "prohibited] verbal abuse, " which was defined as "any verbal expression issued with the intent of creating fear or intimidation in another individual, " and also prohibited the "creation of a hostile work environment through verbal and nonverbal behavior." Id. ¶ 16. The Corrective Action/Work Rules Policy stated that all WMC employees were at-will employees. Id. It listed as a suggested first step for disruptive, abusive, or harassing behavior "the suspension or termination of the offending employee."

         D. David's Employment Evaluations from 2007-2013

         David's early performance reviews were, overall, very good. See MSJ Opp. 3 (ranging from "generally exceeds standards" to "outstanding"). Her 2007 performance review noted that her "ability to work with a variety of people" was "Outstanding, " and her ability to "build positive working relationships . . . [g]enerally exceeds standards." David Tr. Ex. 7. For her performance appraisal process in 2007-08, David was required to develop an action plan to improve employee satisfaction scores for her direct reports. Id., She also received a score of 1/5 on her 2008 performance evaluation for customer service. Id., Ex. 9.

         In 2008 through 2010, David's direct reports and fellow directors made complaints about David's communication style.36:14-37:24, 3'8:10-40:1, 30:13-41:13, 42:1-7, 42:21-43:20, 44:15-46:14. These complaints included that David was argumentative and uncooperative, refused to attend meetings with staff, and unreasonably blocked an applicant for a job interview. Id. David testified that she believed the complaints about her communication style came down to: "So I tend to be quiet and very serious, so sometimes I come across as direct. Or when things need to get done, I came across as telling people what to do rather than asking them to participate.... I came across as not being warm and fuzzy ..." Id. 37:11-17.

         David's 2013 review had an overall score of 3.42/5.00, which indicates "fully meets expectations." Id. Ex. 12. Her score for "managing conflict" was "2/5, " or "not full meeting standards." Id. David's employee engagement scores also fell below organizational averages, and Whiteside listed "turnover" as another area for improvement. Id. Ex. 13.

         E. The 2011 and 2012 PIPs

         In 2010, Tagnesi, the then-VPN of WMC, "had received many complaints about [David's] behavior toward other leaders and employees, which increased in 2010." Kagarise Aff. ¶ 4. These complaints included "not working effectively or collaboratively, " "gossiping and speaking in a derogatory manner about her colleagues, " "sabotaging certain initiatives, " and "spreading Information In a 'toxic' manner." Id. WMC strongly considered terminating David's employment at that time. Id. ¶¶ 6-7 & Exs. 1, 7.

         Tagnesi ultimately decided to give David another chance, placed her on a Performance Improvement Plan ("PIP") for 90 days, and hired an outside coach to assist David in changing her behavior. Id. ¶¶ 7-8. When the coach solicited feedback from David's colleagues, there was both positive and negative feedback. Id. ¶ 8 & Ex. 9; David. Tr. Ex. 9. David completed the PIP on or about July 26, 2011, and Tagnesi noted that only David's successful completion of the PIP would allow her to "continue in her Director Role." Kagarise Aff. ¶ 9 & Ex. 10. Tagnesi informed David that "she must, going forward, sustain behavioral results and STARS outcomes. This includes working with internal and external customers." Id. Ex. 10. David knew that she was required to sustain and maintain this performance or face possible termination. David Tr. 73:10-75:3, 143:3-18. David received another PIP in 2012 for certain auditing failures. Id. 75:11-76:10 & Ex. 3.

         F. David's Complaints Against Others

         Before David received her first PIP, she filed a complaint entitled "Concerns for Human Resources" against Tagnesi. Id. Ex. 22 at 1. The second paragraph of the complaint began "Creating a hostile work environment" and then defined that term.[2] Id. David expressed displeasure that Tagnesi had accused her "of various infractions of policy and lack of teamwork and communication, " and that "[e]ach time the accusations have been proven false." Id. David was upset that Tagnesi "undermine[d] [her] leadership by having people investigate [her] with [her] staff and had spoken with David's staff without informing her first. Id.

         Cark Dallmann was a member of the planning team responsible for instituting certain safety measures. Dallmann Aff. ¶ 2. These included a daily "safety call, " which encouraged reporting of potential risks and other areas of concerns. Id. ¶¶ 2-5. Other WMC directors expressed concerns that David was instructing or coercing her employees not to participate. Id. ¶¶ 6, 8; Whiteside Aff. ¶ 7; Brunelle Decl. ¶ 4.

         Around October 2012, there was a "sentinel event"-a patient safety event that resulted in death, permanent harm, or severe temporary harm-in David's department. Dallmann Aff. ¶ 12. Jennifer Haines of the Performance Improvement department investigated the event. Id. David was upset about the investigation and told Dallmann she did not want Haines in her department. Id. In particular, David complained that she believed Haines had told Dr.1 Restrepo that David was instructing her staff not to report issues on safety call. David Tr. 168:11-169:2 & Ex. 30. David was upset that Haines gathered this information without telling her. Dallmann Aff. ¶ 12. Dallmann considered David's concern unreasonable. Id.

         Later, in an October 12, 2012 email, David complained to Dallmann about Dr. Restrepo calling him "a bully, who hounds you until you just give him your.lunch money as ' the consequences are not worth it." David Tr. Ex. 30.While David complained that Dr. Restrepo was a "bully, " her email dd not raise dscrimination of any kind.[3] Id. David again filed a formal complaint, this time against Haines (but not Dr. Restrepo). Id. Ex. 31.

         David complained that Haines was "Creating a Hostile Work Environment, undermining credbility and trust." Id. David's concerns were unfounded, Dallmann Aff. ¶¶ 12-13, and David's complaint was resolved by having Haines meet with her to explain the process behind her investigatory role, David Tr. 179:3-180:22.

         G. Dr. Restrepo's Recent Behavior Toward David

         David made several complaints about Dr. Restrepo's behavior, and claimed that his behavior was because David was female.[4] In particular, during a safety-call meeting on August 21, 2014, Dallmann rounded with David, Jeff Behneke (director of heart and vascular operations), and Tammy Courtney (director of respiratory therapy), so some of David's staff could remain in a conference room with Dr. Restrepo and Whiteside, discuss the purpose of the safety call, and address any concerns about reporting information. Dallmann Aff. ¶ 19; David Tr. 101:8-9 & Exs. 4, 6. The meeting was held in the critical care conference worn, which bothered David. David Tr. 99:5. When David and the other rounders returned to the meeting room, Dr. Restrepo asked them to wait outside. Id.,

         David, Dallmann, Behneke, and Courtney attempted to reenter the room. Dr. Restrepo singled out David and said "You need to go out. Mary David, you need to get out of here, " or, "I'm not done, Mary David, you need to get out now." Id. 100:16-101:13, 102:4-16. David felt embarrassed and singled out, but no other director was allowed in either. Id. 102:17-104:3. Notably, Dallmann and Courtney, who are both females, were also not allowed to enter, nor did Dr. Restrepo call out either by name. Id. 103:1-4.

         David also felt mistreated during safety calls generally:

So every day, Dr. Restrepo treated me like I was his personal secretary. No. matter what time I come in the room, it's like, You come here. Sit here. He directed where I would sit and I was expected to sit there and take notes. If I sat at the end of the table so I didn't have to sit next to him, he made me get . up from the end of the table and come either sit next to him or sit across from him, and it was always, You come.
If I came in the room late, it's like, Where is Mary David? How come she's not here? Where is she? Come up here and sit down. And I had to sit there in front of-or across from him for all of the safety calls that we did. If for some reason I didn't go down to the safety calls and I listened upstairs with everybody else and called in, he'd be like, Where is Mary David? How come she's not at the safety calls? Even when we started holding them over in the auditorium instead of in the conference room, he would look around the table and say, I don't see Mary David. Where is Mary David?

Id. 118:16-119:11. Nonetheless, despite other women being present during safety call, David admitted that "he never did that to anyone else." Id. 119:12.

         David also testified that Dr. Restrepo never addressed anyone else in the manner in which he addressed David:

He doesn't speak-he speaks only to-to me-to me as a female. All the men are, you know, my boy, my man, Joe. It's degrading to me in particular as a female. He speaks differently to men. And he specifically directs this during this period of time at me.

Id. 113:3-8. While David claimed that Dr. Restrepo that spoke differently to men than women, David's testimony only reveals the following difference in Dr. Re, strepo's communication with men and women: "I think he spoke in derogatory terms to other women, didn't address them as-as my friend or my colleague. We were all like, You do this or you go do that. I think he was very disrespectful." Id. 113:25-114:3.

         H. David Reports Dr. Restrepo's Actions to Others

         During the spring and summer of 2014, David had conversations with Dallmann and complained about the way Dr. Restrepo "spoke to me and how he was demeaning, how he called me out and what was her suggestions [sic] to do about his behavior." Id. 201:5-9. In those conversations with Dalimann, David said that Dr. Restrepo "made me feel like he was discriminating against me as a woman, that he was pointedly-didn't refer to me in-in a- address me as a person." Id., 204:4-7.

He totally treated me differently than he treated the male people who he-the male counterparts who he'd become complimentary of and send them to do things, and that his treating of me was affecting-starting to affect my performance, to come here every day and just be constantly criticized.

         Id. 204:9-15.

         David had a conversation with Whiteside and asked: "[C]ould you please have him stop pointing me out, stop calling me out on things and making an example of me and humiliating me in front of all of the counterparts." JcL 201:25-202:4. On August 21, 2014, two days before David was suspended, she told Whiteside "that this is about as much as I could take and it was time to go higher if we weren't going to do things." Id. 203:1-3. David also told Whiteside that Dr. Restrepo's "behavior towards me was demeaning and humiliating, that he was discriminating against me based on my being female and being lesser than him." Id. 206:3-5.

         I. WMC's Investigation into Allegations of David's Abuse of Staff

         In February 2014, David was the subject of a "risk report" by WMC security officers. Dalimann Aff. ¶ 17 & Ex. 2. The officer reported that he had informed David that she could not involuntarily detain a patient without a temporary detention order ("TDO") from a judicial authority. Id. David did not have a TDO, David Tr. 185:24-186:16, 188:13-189:1, so the officer was correct (and David incorrect) that David could not keep him detained. The report claimed that David pointed her finger into one officer's face while speaking loudly and disrespectfully. Dalimann Aff. ¶ 17 & Ex. 2.

         In June 2017, David had disciplined Dawn Forte-Smith and David Gardner, two of her direct reports, for sharing passwords. Kagarise Aff. ¶ 14. Both Kathy Kagarise, Director of Employee Relations at WMC, and Whiteside approved the discipline.[5] Kagarise Tr. 33:7- 14. Around August 2017, Forte-Smith and Gardner each approached Kagarise on their own volition. Kagarise Aff. ¶¶ 11-12. Both reported disturbing behavior by David.

         On August 25, 2014, Kagarise met with Forte-Smith. On August 27, 2014, Kagarise and Whiteside met with Gardner, who reported the following: David yelled, cursed, and threw a water bottle at him. Kagarise Aff. ¶ 12; Gardner Decl. ¶¶ 5-7. During a July 2013 meeting, Mary told him, "the way you work, why P*k do I need managers?" Gardner Decl. ¶ 5. Later, she would yell at him and tell him "'you better f**king fix' this or that at least once a week." Id. ¶ 6. When Gardner told Mary he 'felt like she was exerting power and control over [him] for no good reason, " she responded, "I don't give a s**t." Id., She told him, "You are f**king evidence I don't need any managers." Id. ¶ 7. She asked Gardner while others were around if he was raising his son to have "no common sense like his father." Id. When his son had an incident at home and called Gardner from work, Mary asked if he was "raising a weakling." Id.

         Kagarise and Whiteside met with two additional employees that afternoon, and they said similar things about David's behavior. Kagarise Aff. ¶ 12; Affidavit of Dana Morrison ¶ 12; Declaration of Sheryl Crim ¶ 10. Based on those interviews, Whiteside suspended David and directed Kagarise to perform an investigation (the "Investigation") into her behavior. Kagarise Aff. ¶¶ 13-14; Whiteside Aff. ¶ 13.

         Kagarise interviewed 10 more employees or former employees, for a total of 14 interviewees, who reported directly to or worked closely with David at WMC. Kagarise Aff. ¶ 14 & Ex. 13. The Investigation bore out the following conclusions, among others:

• Director does not support VHS Management decisions and initiatives;
• Director views employees who bring up problems or try to fix problems as being troublemakers;
• Environment is punitive;
• Director has employees on a good list or a bad list; if you are on the bad list you are harassed until ...

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