United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
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.
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.
Summary Judgment Standards
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).
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.
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.
Organizational Structure of
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.
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.
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.
Employment of WMC
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."
"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.
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.
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
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."
David's Employment Evaluations from
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.
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.
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.
The 2011 and 2012 PIPs
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.
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.
David's Complaints Against Others
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. 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.
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.
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.
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. Id. David again filed a formal
complaint, this time against Haines (but not Dr. Restrepo).
Id. Ex. 31.
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.
Dr. Restrepo's Recent Behavior Toward David
made several complaints about Dr. Restrepo's behavior,
and claimed that his behavior was because David was
female. 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.,
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.
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,
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.
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.
David Reports Dr. Restrepo's Actions to Others
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
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.
WMC's Investigation into Allegations of
David's Abuse of Staff
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.
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. 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.
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."
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.
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,
• Director does not support VHS Management decisions and
• 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 ...