Filed: Mar. 11, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2229 SERGEI VOLOCHAYEV, Plaintiff – Appellant, v. KATHLEEN SEBELIUS, Secretary, United States Department of Health and Human Services, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:11-cv-00230-AW) Argued: December 5, 2012 Decided: March 11, 2013 Before MOTZ, KING, and DIAZ, Circuit Judges. Affirmed by unpublished opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2229 SERGEI VOLOCHAYEV, Plaintiff – Appellant, v. KATHLEEN SEBELIUS, Secretary, United States Department of Health and Human Services, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:11-cv-00230-AW) Argued: December 5, 2012 Decided: March 11, 2013 Before MOTZ, KING, and DIAZ, Circuit Judges. Affirmed by unpublished opin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2229
SERGEI VOLOCHAYEV,
Plaintiff – Appellant,
v.
KATHLEEN SEBELIUS, Secretary, United States Department of
Health and Human Services,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cv-00230-AW)
Argued: December 5, 2012 Decided: March 11, 2013
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: Morris Eli Fischer, THE LAW OFFICE OF MORRIS E. FISCHER,
LLC, Silver Spring, Maryland, for Appellant. Larry David Adams,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
Sergei Volochayev filed suit under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
alleging his employer’s discrimination on the basis of national
origin and retaliation for engaging in protected activity. He
now appeals from a district court order granting summary
judgment to his employer, Kathleen Sebelius, Secretary of the
United States Department of Health and Human Services (“HHS”).
That decision followed a ruling by an Equal Employment
Opportunity Commission (“EEOC”) Administrative Judge (“AJ”), who
similarly found that Volochayev had failed to establish a Title
VII violation. Likewise, we conclude that Volochayev cannot
make out a prima facie case on either of his claims, and
therefore affirm the judgment of the district court.
I.
A.
Volochayev is a male of Russian descent who was employed as
a Research Nurse in the Intensive Care Unit (“ICU”) of the
National Institute of Health (“NIH”) Clinical Center from April
2006 until April 2008. Volochayev was removed from his position
after an incident prompted ICU Nurse Manager Deborah Kolakowski
to order an investigation into his documentation records,
revealing a multitude of errors.
2
The events prompting the investigation took place between
September 29 and October 1, 2007, when Volochayev was working
the night shift and caring for “Patient X,” who was under orders
to receive a continuous intravenous (“IV”) drip of Fentanyl, a
powerful controlled narcotic. Over the course of Volochayev’s
two consecutive night shifts, six separate IV bags containing
Patient X’s Fentanyl ran dry much more quickly than they were
supposed to. Volochayev replaced the depleted bags with new
ones and did not promptly report the problem. When he did
finally alert his charge nurse, inspections revealed no problems
with either the patient or the IV pump, and the pharmacy
confirmed that the bags had contained the correct dose.
The charge nurse reported the incident to the ICU’s
Administrative Coordinator, expressing concern that Volochayev
had delayed to self-report the matter. ICU Assistant Nurse
Manager Pamela Horwitz then questioned Volochayev about the
missing Fentanyl. When he could offer no explanation,
Kolakowski instructed Horwitz to investigate Volochayev’s
Controlled Substance Report forms for the month of September
2007. The records revealed over forty documentation errors
relating to the administration of controlled substances.
According to testimony at the administrative hearing, although
some of these errors may have been commonplace among the ICU
3
nursing staff, the sheer number of Volochayev’s errors was
abnormal, if not unprecedented.
Per Kolakowski’s recommendation, Deputy Chief Nurse Officer
Tannia Cartledge issued Volochayev a Notice of Proposed Removal
based on the pervasiveness of his misconduct, his knowledge of
the procedures in question, his previous subpar performance
review, and the potential risk he presented to patients.
Volochayev responded through counsel that his supervisors were
retaliating against him for complaining about preferential
treatment given to certain employees. Chief Nurse Officer Clare
Hastings subsequently issued a decision to remove Volochayev
from federal service. The decision found that Volochayev had
failed to sufficiently account for his numerous errors--raising
doubts about his credibility--and found no merit to his
allegations of preferential treatment or retaliation.
B.
Following his removal, Volochayev filed a complaint with
the Equal Employment Opportunity Office (“EEO”), alleging
national origin discrimination and retaliation. HHS responded
that Volochayev was fired due not to discrimination or
retaliation, but to his failure to meet work expectations.
As evidence of national origin animus among his
supervisors, Volochayev claimed that they made various
disparaging remarks about Russians, calling them rude,
4
insubordinate, and overly fond of vodka. Volochayev also urged
that anti-Russian prejudice could be inferred from HHS’s more
lenient treatment of two of his colleagues, Mark Pavlick and
Carol Wingfield, whose own documentation errors did not prompt
investigation or removal. In support of his retaliation claim,
Volochayev pointed to a series of February 2007 emails and
conversations with his supervisors that he claims was the
protected activity that triggered his firing.
Over an eight-month administrative discovery period,
Volochayev served a number of interrogatories and document
requests and deposed Kolakowski, Cartledge, and Hastings. After
a five-day EEO hearing, the AJ ruled in favor of HHS.
Volochayev then brought the instant Title VII action in the
United States District Court for the District of Maryland.
Pursuant to Federal Rule of Civil Procedure 56(d), Volochayev
moved for additional discovery. In an affidavit, he explained
that he hoped to obtain, among other materials, the
documentation records of other nurses in the ICU, information
about the experience levels of other nurses, and information
regarding the national origin of his replacement. After
reviewing the administrative record, the court denied
Volochayev’s Rule 56(d) motion, concluding that he had had a
full opportunity to conduct discovery at the administrative
5
level. The district court then granted summary judgment to HHS
on both Title VII claims. This appeal followed.
II.
The issues before us are (1) whether the district court
abused its discretion by denying Volochayev’s Rule 56(d) request
for additional discovery, and (2) whether entry of summary
judgment in favor of HHS was proper.
A.
We first consider Volochayev’s contention that the district
court erred in denying his request for additional discovery. We
review a district court’s denial of a Rule 56(d) request for
abuse of discretion. See Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (discussing earlier
version of the rule).
Volochayev claims that the administrative discovery process
was insufficient to support the district court’s entry of
summary judgment and that his request for further discovery
should therefore have been granted. As an indication that the
administrative process was lacking, Volochayev notes that he was
limited to one set of interrogatories. He also complains that
he was denied the opportunity to conduct discovery on issues
that arose during the hearing before the AJ.
6
Federal Rule of Civil Procedure 56(d) provides that a court
“may” allow a party faced with a motion for summary judgment to
conduct additional discovery “if [the] nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.” The denial
of additional discovery is appropriate when the materials sought
by the requesting party could have been discovered earlier. See
CBRE Realty Fin. TRS, LLC v. McCormick, 414 F. App’x 547, 551
(4th Cir. 2011) (unpublished) (citing Ayala–Gerena v. Bristol
Myers–Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996)).
We find no abuse of discretion in the district court’s
refusal to allow additional discovery. Contrary to Volochayev’s
belief, the record produced by the eight-month administrative
discovery period and five-day hearing was more than sufficient
for the district court to make its summary judgment
determination. Despite the procedural limitations of the
administrative discovery process, that process gave Volochayev
ample opportunity to discover the information he later sought
through his Rule 56(d) motion. And nothing that arose during
the administrative hearing, in our view, required the court to
grant Volochayev’s motion.
B.
We next consider Volochayev’s contention that the district
court erred in granting summary judgment on his Title VII
7
discrimination and retaliation claims. We review a district
court’s decision to grant summary judgment de novo, viewing all
facts and reasonable inferences therefrom in the light most
favorable to the nonmoving party--here, Volochayev. Pueschel v.
Peters, 577 F.3d 558, 563 (4th Cir. 2009). Summary judgment is
only appropriate if “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).
1.
An aggrieved employee can prove a Title VII discrimination
claim in either of two ways. “First, an employee may utilize
ordinary principles of proof using any direct or indirect
evidence relevant to and sufficiently probative of the issue.”
Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir.
1999) (internal quotations omitted), abrogated on other grounds
by Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003). This
evidence must not only reflect a discriminatory attitude, but
must also bear directly on the contested employment decision.
Fuller v. Phipps,
67 F.3d 1137, 1142 (4th Cir. 1995), abrogated
on other grounds by Desert Palace,
539 U.S. 90 (2003).
Volochayev argues that his supervisors’ alleged anti-
Russian comments constitute direct evidence of HHS’s
discrimination. We disagree. Even viewing the evidence in
Volochayev’s favor and assuming the comments were actually made,
8
Volochayev has put forth no evidence that those stray comments
had any direct bearing on his firing, as is required under
Phipps, 67 F.3d at 1142. Without some closer nexus, we cannot
conclude that the remarks raise an inference that Volochayev’s
firing was motivated by an impermissible basis.
Neither does HHS’s more lenient treatment of fellow nurses
Mark Pavlick and Carol Wingfield raise an inference of
discrimination. As the district court observed, Pavlick’s
violations occurred over a period of nine months, each dealt
with a breach of a different rule, and only one involved
controlled substances. Volochayev, on the other hand, committed
multiple violations of a single rule concerning controlled
substances in a concentrated period, suggesting disregard for
the ICU’s practices and rules rather than mere negligence on
isolated occasions. Wingfield, for her part, was still
considered a trainee at the time of her violations, whereas
Volochayev had extensive nursing experience and was
understandably held to higher standards.
Lacking sufficient direct or circumstantial evidence,
Volochayev may nevertheless proceed under a second method of
proof: the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under this framework, Volochayev
may establish a prima facie case of employment discrimination if
he can show that (1) he is in a protected class; (2) he suffered
9
an adverse employment action; (3) he was performing his job
duties at a level that met his employer’s legitimate
expectations at the time of the employment action; and (4) the
position remained open or was filled by similarly qualified
applicants outside the protected class. Bonds v. Leavitt, 629
F.3d 369, 373 (4th Cir.) (internal quotations omitted), cert.
denied,
132 S. Ct. 398 (2011). Once this prima facie showing is
made, the burden shifts to the defendant to produce a
legitimate, non-discriminatory reason for its actions.
McDonnell Douglas, 411 U.S. at 802. The burden then shifts back
to the plaintiff to show, by a preponderance of the evidence,
that the proffered legitimate reason was a pretext for
discrimination. Id. at 804.
The district court held that Volochayev had failed to make
out a prima facie discrimination case because he could not show
that he was performing his job duties at a level that met his
employer’s legitimate expectations. The court further concluded
that even if Volochayev had established a prima facie case, HHS
had presented a legitimate, non-pretextual reason for
terminating him: his pervasive documentation violations relating
to controlled substances.
In Volochayev’s view, the district court mishandled the
McDonnell Douglas analysis by failing to merge its “legitimate
expectations” analysis with the question of pretext. He cites
10
cases from our sister circuits for the proposition that where a
plaintiff argues that he has “performed satisfactorily and the
employer is lying about the business expectations required for
the position, the second prong and the pretext question
seemingly merge because the issue is the same--whether the
employer is lying.” Hague v. Thompson Distrib. Co., 436 F.3d
816, 823 (7th Cir. 2006). Volochayev suggests that by failing
to merge these two parts of the analysis, HHS’s proffered
justification for the firing did not receive proper scrutiny
under the burden shifting approach.
Again, we disagree. While we have recognized that the
McDonnell framework contains no “impermeable barrier” that
prevents the sort of merged analysis Volochayev urges, Warch v.
Ohio Cas. Ins. Co., 435 F.3d 510, 516 (4th Cir. 2006), we also
see no need to insist upon it in every case. Here, the district
court fully engaged in the pretext analysis, giving HHS’s
proffered justification the scrutiny Volochayev complains was
lacking. In doing so, the court found that Volochayev’s
pervasive record of documentation errors constituted a
legitimate, nondiscriminatory reason for Volochayev’s removal.
We concur and conclude that in light of his poor work record,
Volochayev cannot show that he was meeting HHS’s legitimate
business expectations or that his failure to do so was not the
true motivation for his firing. Accordingly, we affirm the
11
district court’s grant of summary judgment on Volochayev’s
discrimination claim.
2.
To make out a prima facie showing of retaliation under
Title VII, a plaintiff must demonstrate that (1) he engaged in
protected activity; (2) he suffered some form of adverse action;
and (3) some causal connection existed between the protected
activity and the adverse action. Holland v. Washington Homes,
Inc., 487 F.3d 208, 218 (4th Cir. 2007). The district court
held that Volochayev failed to establish both the first and
third prongs.
As evidence of protected EEO activity, Volochayev cites a
February 2007 conversation and email in which he complained
about his supervisors’ unprofessional treatment, as well as
another alleged email, written with his colleague Jacqueline
Cooper’s assistance, threatening to file a complaint with the
EEO. He further submits that a causal link existed between his
complaints and his eventual firing. In Volochayev’s view, the
long lapse between his February 2007 complaints and his March
2008 removal does not sever the nexus, since he claims the fall
2007 Fentanyl incident was simply the first reasonable
opportunity his supervisors had to retaliate against him without
drawing suspicion of retaliatory motive.
12
Although it is true that informal complaints about
discriminatory treatment relating to a protected status
constitute protected activity under Title VII, Armstrong v.
Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981), Volochayev
has presented no evidence that his February 2007 interactions
with his supervisors had anything to do with his protected
status. As for the alleged second email threatening EEO action,
Volochayev was unable to produce a copy of this email, his
supervisors testified that they never received it, and HHS was
unable to locate it on its servers. Even when viewing the
evidence in the light most favorable to Volochayev, we cannot
see how he satisfies the first prong of a prima facie
retaliation claim.
Furthermore, even if we assume, arguendo, that Volochayev
did engage in protected EEO conduct, we discern no causal link
between his February 2007 complaints and his March 2008 removal.
There is no evidence that his supervisors were ever aware of
Volochayev’s intent to file an EEO claim, and the investigation
into his removal did not begin until seven months after
Volochayev lodged his informal complaint. Meanwhile, the fall
2007 Fentanyl incident, rather than being merely the first
reasonable opportunity for his supervisors to retaliate against
him, was instead a legitimate, non-pretextual reason for
13
Kolakowski to launch the investigation that ultimately resulted
in Volochayev’s removal.
Since Volochayev cannot make out a prima facie retaliation
claim, we affirm the district court’s grant of summary judgment.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
14
