Marks v. Secretary of Veterans Affairs

MOTION for summary judgment and memorandum of law

M.D. Fla.August 30, 2016

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARY ANN MARKS, Plaintiff, v. Case No.: 8: 15-cv-769-T-24TBM ROBERT MCDONALD, Secretary, Department of Veterans Affairs, Defendant. / MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56, Federal Rules of Civil Procedure, the Secretary of the Department of Veterans Affairs moves for summary judgment and respectfully says: INTRODUCTION Mary Ann Marks was a good pharmacist and colleague for many years while working for the VA. However, a few years ago, Marks’ performance and behavior began to deteriorate. That deterioration began well before Marks engaged in protected activity under Title VII. At every turn, her supervisors thoroughly investigated her allegations (as well as the allegations against her), provided opportunities for training and redemption, and communicated about the results of the investigations and the basis for proposed discipline. Yet Marks claims that her supervisors and co-workers engaged in a conspiracy to harass, harm, and belittle her. She possesses nothing but speculation and baseless accusations to support this claim. This action is an attempt by Marks to use Title VII, 42 U.S.C. § 2000e-16, as an excuse for her own professional failures and inability to work amicably with others. That is not the function of the statute. Summary judgment is warranted on count one (retaliation) and count Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 1 of 25 PageID 460 2 two (retaliatory hostile work environment) because no genuine and disputed issue of material fact exists. Specifically: (1) A majority of the acts that the plaintiff challenges as retaliation are not adverse personnel actions; (2) The plaintiff cannot establish a prima facie case of retaliation as to her suspension and removal from service; (3) The facts and evidence cannot support an actionable hostile work environment claim; and (4) Even before the plaintiff engaged in protected activity, her co-workers complained about her hostility toward them and she failed to perform her job duties. UNDISPUTED MATERIAL FACTS A. Background 1. Plaintiff Mary Ann Marks began working as a pharmacist at the James A. Haley VA Hospital in 1998. Deposition of Mary Ann Marks 8:1-7. Marks has worked in a number of roles at Haley, but has worked as a Clinical Specialist in the Outpatient pharmacy since approximately 2003. Marks 15:9-14. 2. One of Marks’ supervisor in the outpatient pharmacy was Maria Castellanos. Deposition of Maria Castellanos, 6:1-9; 7:11-22. In September 2013, Dr. Freddy Tadros became her second direct supervisor. Deposition of Freddy Tadros 4:15-5:5; 6:5-17. 3. Marks claims she participated in the EEO of another pharmacist, Kim Bui, in 2010 because she made favorable comments about Bui in an email. Marks 13:21-15:18. Marks claims she was a “potential witness” in Bui’s case because “I believe I was in support of her and she knew that I supported her morally, so if she needed I would support her.” Id. at 18:10- 14. Marks does not have any knowledge, beyond her belief that Haley is a “gossip mill,” that her supervisors were aware she sent an email about Bui. Id. at 60:7-22. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 2 of 25 PageID 461 3 4. Sometime in 2012 or 2013, Marks’ personality changed; her work performance declined and she had trouble getting along with staff. Deposition of Michael McCormick, 9:11-17; Castellanos 9:1-18, 12:5-13:18.1 5. In March 2012, McCormick limited Marks’ ability to author notes in patient files because she failed to comply with his instruction to delete an inappropriate note she wrote in a patient chart. Note Removal File, Exh. A. Marks testified she “can’t recall why at that exact moment [McCormick’s order] wasn’t complied with” and does not know whether or not other pharmacists also failed remove notes when told to do so. Marks 36:1-2; 47:7-12. B. Plaintiff’s EEO Complaint 6. In April and October 2013, Marks’ supervisors conducted fact findings into complaints by Marks’ coworkers that she was yelling at them and creating a hostile work environment. Fact Findings dated 4/3/13 and 10/11/13, Exhs. B and C. 7. In October 2013, the VA no longer assigned Marks as the after-hours pharmacist in charge.2 Marks understood the reason she was no longer selected were because she was failed to follow her supervisors’ instruction to stop reporting co-workers’ schedules but also believes it was in retaliation for supporting Bui. Marks 55:1-16; 59:12-23. 8. On November 21, 2013, Marks received a performance appraisal rating her “fully successful.” Amd. Comp. ¶ 11. Marks had received the same rating for several years before 1 McCormick, who hired Marks in 1998, tried to help her. In one of the many meetings he had with her to discuss counselings, he told her “something is wrong, you need to get help,” and offered to refer her to the VA’s EAP program if she was not willing to talk to him. McCormick 27:22-28:13. 2 When supervisors are not present, a pharmacist is asked to serve as pharmacist in charge. Castellanos Deposition 69:12-18. The pharmacist in charge is responsible for resolving issues encountered by staff pharmacists. Id. The pharmacist in charge is not a supervisor and does not receive additional pay. Marks 43:13- 19; 116:9-25. At times Marks was asked to serve as the pharmacist in charge. Id. 42:9-12. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 3 of 25 PageID 462 4 that. Performance Appraisals, Exh. D; Marks 79:19-23. 9. Shortly after starting as a supervisor in the outpatient pharmacy, Tadros received three written complaints from technicians about Marks being hostile toward them. Tadros 29:23-30:19; 2013 Complaints, Exh. E. After Tadros conducted an investigation and met with Marks, he issued a written counseling, noting it was unacceptable for Marks to decline to help technicians and encouraging her not to speak in a hostile tone to coworkers. Written counseling, 11/27/13, Exh. F. The written counseling conveys the issues and sets forth conduct expectations; it is not a disciplinary action. Tadros 30:23-31:6. Marks claims Tadros threatened to have the pharmacy technicians “come after” her and called her a liar at a meeting to discuss the counseling. Amd. Compl. ¶ 13. Marks believes the fact finding and counseling were motivated by retaliation for her support of Bui in 2010. Marks 56:9-22. Marks believes Tadros knew about her support of Bui in 2010 through the Haley “gossip mill” but admits she has no evidence he knew about it. Marks 72:8-73:6. Tadros testified he did not know at the time of Marks’ involvement with Bui’s EEO. Tadros 92:4-10. 10. Marks claims that on December 6, 2013, a technician deliberately rolled a “lundia” in an attempt to crush Marks between two lundia. Amd. Compl. ¶ 15. Marks believes the technician, Jen Ming, was carrying out Tadros’ threat. Marks 86:18-87:4. Marks stated “it was without warning and she didn’t apologize when I was saying that I was in there” but otherwise has no evidence the incident was deliberate. Marks 89:20-90:6. In the investigation, Ming testified she had no recollection of the incident. Ming Affidavit, Exh. G. 11. On December 11, 2013, Tadros convened a fact-finding into multiple complaints by technicians that Marks was refusing to assist patients. 12/11/13, Exh. H. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 4 of 25 PageID 463 5 12. On December 31, 2013, Marks filed a formal EEO complaint claiming the above conduct was harassment in retaliation for her “written and oral opposition to discrimination against a co-worker.” Formal Compl., Exh. I. C. Conflicts between Marks and co-workers 13. Even before Marks filed her first EEO complaint at Haley, her relationships with her co-workers were strained, as evidenced by the numerous complaints Marks was screaming at staff and failing to assist patients. Castellanos and Tadros tried to address the issues in verbal and written counselings. Exhs. B, C, F; Tadros 29:23-30:19. When Tadros asked Marks for feedback on the complaints, Marks repeatedly responded that she refuted the allegations but would say nothing more. Notes of Fact Finding, Exh. J. 14. On January 24, 2014, Marks was notified of a proposed admonishment for failure to perform her duties. Amd. Comp. ¶ 21; Proposed admonishment and evidence file, Exh. K. Marks wrote a response explaining her side. Marks 107:24-108:6. Management believed the other witnesses who gave evidence during the fact finding. Id. Marks was notified of a decision to admonish her on March 3, 2014. Amd. Comp. ¶ 24; Admonishment, Exh. L. 15. In early 2015, a group of 27 technicians from the outpatient pharmacy sent a letter to the Director of Haley complaining that Marks was creating a hostile work environment. Tadros 79:11-80:15; McCormick 83:2-19. Tadros convened a fact finding to investigate the allegation. 2/23/15 Fact Finding, Exh. M. D. Marks’ Professional and Interpersonal problems continue 16. On April 24, 2014, Tadros notified Marks her schedule would change from 8:00 a.m to 8:00 pm to Monday through Friday, 9:00 a.m. to 5:30 p.m. due to “frequent Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 5 of 25 PageID 464 6 complaints” by staff that remained unresolved after administrative actions. Amd. Comp. ¶29; 4/24/14 Exh. N. The change would provide Marks with supervision to provide “assistance in meeting clinical decision making and performance expectation.” Exh. N. McCormick confirmed the schedule change in an April 28, 2014 memo. Memo 4/28/14, Exh. O. 17. On May 21, 2014, two pharmacists told Castellanos they saw Marks hang up numerous times on veterans who called the pharmacy for assistance. Emails, Exh. P. Tadros ran a daily activity report for each pharmacist who answered phones (each is required to sign in); it revealed that over the previous three weeks, out of the 136 phone calls Marks had answered, 91 lasted less than 0:02 seconds. Tadros email, Exh. Q. No other employee had any such calls on their report. Id. Tadros also checked the activity for employees who used the same work station Marks had used to ensure it was not an equipment malfunction issue, and confirmed no other employee answering phones there had calls lasting such a short period of time. Id. Tadros informed McCormick of the situation. Id. McCormick advised Tadros to remove Marks from phone duties and to contact labor relations and the union to request immediate representation for Marks. Id. Tadros, Marks, and her union representative met at 2:45 that afternoon, where Tadros informed Marks of his findings and advised Marks to report to McCormick’s office the next morning.3 Id. Tadros ran a report of Marks’ call history for the previous three months, and found that in addition to the 91 calls the previous three weeks, there were over 300 additional calls lasting less than 0:02, which indicated to him that Marks had hung up on over 400 veterans seeking a pharmacist’s assistance. Id. He reported his findings to McCormick. Id. On May 22, 2014, McCormick met with Marks to inform her that 3 Shortly after the meeting, Marks went home sick, claiming she had a stomach ache. Exh. Q. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 6 of 25 PageID 465 7 her pharmacist’s scope of practice was revoked, which meant she could not work as a pharmacist at Haley until the investigation was completed. Id. McCormick and human resources representatives decided Marks would continue her day shift detail, with oversight by Tadros, and would be assigned non-pharmacist duties pending the outcome of the investigation. Id. McCormick considered Marks’ conduct to constitute patient abuse. Id.; Employee Abuse of Patients, Exh. R. Marks does not know whether or not other pharmacists in the outpatient pharmacy were required to have a scope of practice. Marks 186:1-7. On May 27, 2014, Tadros convened a fact finding to investigate the issue. Memo 5/27/14, Exh. S. E. First Proposed Removal 18. On June 2, 2014, Tadros provided McCormick with a five-page summary of his investigation of three issues: two formal complaints of Marks not performing her duties and Marks’ hanging up on over 400 veterans. Proposed removal memo, Exh. T. Based on his findings, Tadros proposed Marks’ immediate removal. Id. 19. Marks was issued a proposed removal dated June 27, 2014, based on failure to perform her duties, conduct unbecoming of a professional, and abuse of patients. Proposed removal, Exh. U. Marks was also provided a copy of the evidence file from the investigation. Evidence file, Exh. V. Marks claims she did not understand how the phone system worked because she had not been properly trained. Marks 57:4-14. Marks conceded in deposition that she understood replacing the phone receiver in the cradle terminates a phone call. 145:3-7; 17:21-148:23. The phone system is not complex; it consists of three buttons (break mode, work mode, logging on) and is used primarily to track length of calls. Tadros 11:19-17:15. 20. On August 12, 2014, Marks met with the Director of Haley, Kathleen Fogarty, to Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 7 of 25 PageID 466 8 give her response to the proposed removal. Suspension, 8/28/14, Exh. W. Director Fogarty sustained two of the three charges in the proposed removal, including the charge that Marks had hung up on hundreds of veterans, but mitigated the penalty to a one-week suspension in light of her many years of service and her past work record. Id. Even though Fogarty believed management’s version of events over Marks’ for two of the charges, Marks does not believe Fogarty engaged in retaliation or discrimination against her. Marks 171:8-173:15; 184:9-12. After her suspension, Marks received additional training on the phones. Tadros 119:6-10. F. EEO Amendments 21. Marks filed a total of six amendments to her EEO complaint alleging retaliation for prior EEO activity. EEO Amendments, Exh. X.4 Those amendments contain a chronology of events prepared by Marks that identify many of the acts described above, beginning after she filed her EEO Complaint in December 2013, and continuing through her removal in March 2015. 22. Additional allegations included Marks’ complaint to her supervisors on June 13, 2014, that pharmacy technician Joe Chuney threw a full prescription bottle at her twice and claimed one of them hit her in the face. 6/13/2014 email, Exh. Y. Castellanos immediately interviewed Marks, Chuney, and five other staff members present who witnessed the incident. Id. Chuney stated he gently tossed Marks one empty bottle from no more than two feet away, Marks caught it, and it did not hit her in the face. Id. All five witnesses confirmed Chuney’s account. Id. Castellanos told Chuney that tossing a bottle, whatever the intention, was inappropriate, and notified Marks of her findings. Id. Marks also claims Chuney, upon 4 Exhibit X is Marks’ sixth and final amendment, which incorporates all previous amendments. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 8 of 25 PageID 467 9 realizing Marks had not been removed but just suspended, said “now we can go after her again.” Amd. Comp. ¶ 47. Marks believes Chuney knew of her proposed removal through the “gossip mill” but has no other evidence he knew. Marks 173:17-175:16. The incident was investigated. Id. Finally, Marks claims Chuney “improperly vigorously” ran a transport cart close to where she was sitting and said “whee” as he stopped the cart in a “threatening manner.” Amd. Comp. ¶ 137. Marks alleges Chuney was on leave that day, and believes he came into work solely to menace her. Marks 293:6-294:8. 23. On November 6, 2014, Marks complained to Castellanos that in the breakroom, pharmacy technician John Vernet had looked at her and said “Wacha Wacha Baby,” which Marks called “sexual harassment.” Amd. Compl. ¶ 92; 11/6/2014, Exh. Z. Marks told Castellanos there were no witnesses to the incident. Id. Castellanos immediately initiated an investigation; she interviewed Vernet, who said he was singing a song to himself as he placed his lunch in the refrigerator and did not direct his singing at Marks, and a co-worker who heard Vernet singing the same song to himself throughout the day. Id. Castellanos informed Marks of her findings and closed the investigation. Id. 24. In February 2014, Marks complained to Castellanos that pharmacy technician Linda Mims used Marks’ initials in a problem resolution program. Marks 110:24-111:3. Marks remembers Castellanos questioned Mims, who either she was sorry or it was a mistake. Marks Dep. 110:24-112:16. Marks does not know whether or not Mims used her initials to retaliate against her. Id. 112:20-22. 25. On November 5, 2014, Castellanos told Marks she would be required to provide Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 9 of 25 PageID 468 10 medical certification to substantiate all leave requests due to illness.5 11/4/14 Exh. AA. Castellanos noted that Marks had used 222 hours of sick leave during the six-month period of May 21 to November 4, 2014. Id. 26. Marks claims a bottle of rubbing alcohol left on one of the workstations in the outpatient pharmacy, on which someone had written “Leave RPH,” was meant as warning to her to leave the pharmacy. 305:23-308:11. 27. After Marks was removed from her pharmacy duties, Tadros gave her an assignment to review and suggest amendments or changes to VA policies. Compl. ¶¶ 49, 50, 52, 53. Marks believes Tadros had the authority to ask her to complete the assignment. Marks 177:21-178:12. 28. Marks was charged AWOL for leaving her post to meet with EEO investigators without approved administrative leave. Amd. Comp. ¶ 28. Marks’ supervisors, Tadros and Castellanos, told Marks the leave was not approved because she failed to provide sufficient advance notice, as required. Emails, Exh. CC. Marks claims she was “verbally given permission” by Castellanos. Amd. Comp. 31. 29. Marks claims she was denied the opportunity to work overtime on several occasions. Amd. Compl. ¶¶ 19, 43, 51, 57, 58, 60, 67, 68, 75-78, 94, 106, 118, 119, 138, 142, 153. Marks admits she does not know whether or not other pharmacists were excluded from the offers, and admits that for several such offers, she was not eligible to work overtime because she was not considered a pharmacist in good standing. Marks 99:21-100:6; 158:16- 5 Marks claims being placed on sick leave certification was improper and that her supervisors wrongly refused her medical note, but documentation shows Marks provided an inadequate note and was marked AWOL until she produced a note that complied with VA policy. Exh. BB. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 10 of 25 PageID 469 11 25; 163:19-164:1; 186:19-22; 201:1-6. 30. Marks claims she has requested to advance from GS-12 to GS-13 since July 2012 but has been denied while others have advanced. Amd. Compl. ¶ 25. She believes she should be a GS-13 because she is a clinical pharmacy specialist. Marks 30:22-31:14. She does not know whether or not there were other clinical pharmacy specialists who also were at the GS- 12 level. Id. 31:15-23. She could not identify which pharmacists were allowed to advance to GS-13. Id. 114:3-16. McCormick notified Marks her position was not eligible for a GS-13 slot. McCormick Email, Exh. DD. 31. Marks applied for several supervisor positions at Haley in 2012, 2013, and 2014, but was not selected. Amd. Compl. ¶¶ 7, 8, 17, 22, 145. For each, she admits she did not know how many pharmacists applied, what their qualifications were, or whether or not they were interviewed. Marks 48:18-50:8; 51:9-53:9; 95:2-98:21; 282:16-23. She was not eligible to work as a pharmacist when an inpatient supervisor position opened in December 2014. 279:10-280:19. She was interviewed but not selected. Id. She does not know who else applied. Of the four-member panel, which included McCormick, Tadros, another pharmacy supervisor and another person, she believes her non-selection was due to retaliation by McCormick and Tadros, but does not know whether the other two panelists’ decision was based on retaliation. Marks 279:10-283:12. G. Second Proposed Removal 32. On December 16, 2014, Tadros observed Marks taking a photograph of a telephone work station in the lobby of the outpatient pharmacy. 62:9-63:1. VA regulations prohibit unauthorized photography on VA premises. 38 C.F.R. § 1.218. Marks had received, Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 11 of 25 PageID 470 12 and read, an email in May 2014 in which employees were specifically advised of this prohibition. 5/20/2014 Email, Exh. EE. When Tadros confronted Marks and told her she must delete the photos, she would not allow Tadros to check her phone. 62:24-64:15. Marks also would not cooperate with Castellanos. Id. McCormick advised Tadros to call the VA Police. 63:18-65:10. The police tried to interview Marks but she walked away and was eventually found in the union office. 65:11-66:10. The police cited Marks for violating 38 C.F.R. § 1.218. Evidence File, Exh. FF, Tab 3. Six days after the incident, Marks admitted in an email to Tadros that she had taken photographs as “evidence of my innocence and supports my EEO claims.” Exh. FF, Tab 4. Marks testified in deposition that the email referred to photographs she admitted taking at Haley on a different day. Marks 257:18-258:23. 33. Tadros convened a fact-finding into the photo taking incident. Exh. FF, Tab 6. Following an investigation, Castellanos prepared a memo to McCormick outlining formal complaints about Marks failing to perform her duties, taking photographs in violation of 38 C.F.R. § 1.218, and abandoning her station. Exh. FF, Tab 1. She concluded there was a “preponderance of evidence” supporting the charges. Id. Based on those charges and Marks’ repeated discipline for failing to perform her duties and conduct unbecoming a VA employee, Castellanos proposed Marks’ removal. Id. 34. McCormick issued a proposed removal to Marks on February 13, 2015, based on four charges as a result of Castellanos’ investigation. 2/13/15 Proposed Removal Exh. GG. The charges included taking unauthorized photos on VA premises, leaving the work area without permission, and inappropriately addressing patients’ concerns. Id. The evidence upon which the charges were based, including written statements by witnesses, email Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 12 of 25 PageID 471 13 correspondence, VHA policies, and past disciplinary actions, was included with the memo. Id.; Exh. FF. Marks was invited to reply to the charges orally or in writing. Id. On March 19, 2015, Marks was notified of the Director’s decision to remove her from employment effective March 27, 2015. 3/19/15 Removal, Exh. HH. MEMORANDUM OF LAW I. Summary judgment should be granted on count one. A. Marks cannot establish a prima facie case of retaliation. A prima facie case of retaliation requires proof of (1) a statutorily protected activity, (2) an adverse employment action, and (3) a causal link between the protected activity and the adverse action. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998). A “causal link” means “‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2524 (2013). Thus, a plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Id. at 2534. Marks cannot establish a prima facie case based on allegedly adverse employment actions occurring before December 31, 2013, when Marks first filed an EEO complaint. Neither commenting favorably on Bui’s competence nor giving Bui “moral support” constitutes statutorily protected activity because Marks did not oppose any practice prohibited by Title VII.6 Marks cannot establish that her supervisors knew about her “support” of Bui; she admits lacking evidence beyond her belief that they would have known based on the 6 Title VII does not prohibit employers from retaliating against an employee based on her opposition to practices that are outside the scope of Title VII. See Valdes v. Miami-Dade College, 463 F. App’x 843, 847-48 (11th Cir. 2012) (grievance filed with human resource department not protected activity because grievance was “‘essentially a list of workplace complaints unrelated to Title VII[.]’”) Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 13 of 25 PageID 472 14 facility’s “gossip mill.” This is wholly inadequate. See Marshall v. City of Cape Coral, Fla., 797 F.2d 1555, 1559 (11th Cir. 1986) (“[I]nferences based upon speculation are not reasonable,” and may not defeat a motion for summary judgment); Bass v. Bd. Of County Comm’rs, 256 F.3d 1095, 1117 (11th Cir. 2001) (“It is not enough for the plaintiff to show that someone in the organization knew of the protected expression; instead, the plaintiff must show that the person taking the adverse action was aware of the protected expression.”) (overruled on other grounds Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008)). Even if Marks could establish that her support for Bui was a protected activity known to her supervisors, any incidents in 2012 and 2013 before she filed an EEO complaint are far too remote from her 2010 “involvement” in Bui’s EEO to establish a causal link.7 Furthermore, Marks cannot establish a prima facie case based on allegedly adverse employment actions occurring after December 31, 2013. Marks describes dozens of incidents allegedly resulting from a conspiracy by her supervisors and her co-workers to retaliate against her for her EEO activity. A majority of these incidents are not adverse personnel actions. Under Davis v. Town of Lake Park, Fla., 245 F.3d 1232 (11th Cir. 2001), an adverse action means a “serious and material change in the terms, conditions, or privileges of employment.” Id. at 1238. Short of a “termination, failure to hire, or demotion,” an employer’s action “must, in some substantial way, alter the employee's compensation, terms, conditions, or privileges of employment, deprive him or her of employment opportunities, or 7 At the prima facie case stage, a plaintiff may prove causation by showing a close temporal proximity between the statutorily-protected activity and the adverse employment action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However, mere temporal proximity, without more, must be “very close” to establish causation. Id. If the plaintiff presents no other evidence to show causation and there is a substantial delay between the protected expression and the adverse action, the complaint of retaliation fails as a matter of law. Id. Under Eleventh Circuit precedent, a three to four-month disparity is insufficient to prove causation. Id. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 14 of 25 PageID 473 15 adversely affect his or her status as an employee.” Crawford, 529 F.3d at 970 (quotations omitted). Even if every incident in fact occurred, Marks possesses no evidence that her supervisors enlisted co-workers to harass her and thereby purposefully altered the conditions of her employment. Marks cobbles together a collection of alleged events, including (1) Chuney pushing a cart close to Marks’ chair and saying “whee”; (2) Ming moving an adjustable shelf and thereby “attempting to crush Marks between two [shelves] without warning”; (3) Vernet harassing Marks by singing a song to himself in her presence; and (4) someone leaving a bottle of rubbing alcohol on a work station with the writing “Leave RPH” and thereby threatening Marks to leave the pharmacy.8 None of these acts are materially adverse actions within the legal confines of a retaliation case. After Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the standard is whether a reasonable employee would have found the action materially adverse so as to dissuade that employee from making a charge of discrimination. Id. at 68. Although Marks may have been subjectively distraught at her treatment, the assessment is whether a reasonable person would have been dissuaded from filing an EEO charge. Here, the plaintiff was not dissuaded from complaining and, in fact, continued to do so. See Burgos v. Napolitano, 330 F. App’x 187, 190 (11th Cir. 2009) (finding employer's action not materially adverse where employee was not deterred from reinstating EEOC claim); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 572 (2d Cir. 2011) (“Indeed, while the test is an objective one, it is relevant that [plaintiff] was not deterred from complaining—he complained numerous times.”). 8 See Statement of Undisputed Material Facts, ¶ 10, 21-24. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 15 of 25 PageID 474 16 Many of the personnel actions of which she complains, including her schedule change, performance evaluation, non-selection, exclusion from overtime, and limited scope of practice fail because Marks cannot identify other employees, outside of the protected class, who the defendant treated more favorably. She must show comparators who are similarly situated to her “in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Indeed, Marks admits knowing neither the qualifications of other applicants nor whether they were interviewed nor whether anyone else had a limited scope of practice. As for her performance evaluations, Marks admits that the “fully successful” rating she received in 2013 was the same rating she received for many years. B. Even if Marks could establish a prima facie case of retaliation, Marks cannot show that the defendant’s actions were a pretext for discrimination. Even if Marks establishes a prima facie case of retaliation, the agency had legitimate, non-discriminatory reasons for disciplining and removing Marks. Although the VA bears the burden of production on this issue, the burden is “exceedingly light.” See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 770 (11th Cir. 2005) (per curiam). The employer satisfies this burden by articulating a “clear and reasonably specific” non-discriminatory basis for its action. Id. An employee’s poor performance is a legitimate business reason for termination. See Frazier v. Doosan Infracore Intern, Inc., 479 F. App’x 925, 934 (11th Cir. 2012). In this case, the VA suspended and ultimately terminated Marks because of her consistently poor performance, her inability to get along with co-workers, and her ongoing misconduct. In doing so, the VA described clearly and in detail the reasons for Marks’ suspension and removal and provided comprehensive evidence files in support of those decisions. The evidence file included fact-findings, emails, and interview notes from Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 16 of 25 PageID 475 17 witnesses substantiating the charges, documents, and audit reports. As Mr. McCormick said, the first proposed removal derived from conduct constituting patient abuse: “We are not sure as to why Ms. Marks chose to function in this manner but I believe this is patient abuse and should be treated as such.”9 Marks knew this was the reason for her proposed removal, although she denied engaging in the misconduct. Marks was ultimately removed in 2015 for taking photographs on VA property—which Marks admits—and for leaving her work area without permission, inappropriately dealing with patient concerns, as well as her disciplinary history. See Henry v. City of Tallahassee, 216 F. Supp. 2d 1299, 1318 (N.D. Fla. 2002) (employer satisfied burden by showing evidence that employee was terminated for untruthfulness and for engaging in potentially criminal conduct). Evidence of pretext “must reveal ‘such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.’” Vessels, 408 F.3d at 771 (quoting Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir.2004) (applying McDonnell Douglas in a § 1981 employment case)). Comparator evidence can be raised as a part of a showing of pretext. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1276 (11th Cir.) (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817), reh’g denied, 285 F. App’x 741 (11th Cir. 2008). An employee cannot undermine an employer’s legitimate reasons with nothing more than vague, self-serving assumptions. King v. Chubb & Son, 8:10-cv-2916-T-24AEP, 2013 WL 704764, *8 (M.D. Fla. Feb. 26, 2013). Here, the undisputed evidence establishes that Marks’ supervisors conducted fact- 9 Ex. P. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 17 of 25 PageID 476 18 findings into complaints about her and gave her a verbal and a written counseling before she first filed an EEO complaint in December, 2013. Marks’ poor performance and interpersonal problems were a progression that began well before she filed an EEO complaint and continued until her removal in 2015. As her performance deteriorated, she received additional training. Her supervisors met with her numerous times and asked for her input into solving her problems. She knew that these serious performance issues could result in her termination; indeed, she was nearly removed in 2014. Even after the Director mitigated her first proposed removal to a one-week suspension, Marks failed to avail herself of the opportunity to benefit from additional training and improve her performance. Rather, her performance continued to decline, she continued to demonstrate she was unwilling to improve relationships with co- workers, and she engaged in serious (and illegal) misconduct. Marks received notice, in writing, that she was being terminated for failure to perform her duties and for conduct unbecoming a VA employee. She learned that the reason for her termination was her unlawful picture taking, as well as two substantiated complaints that she failed to help veterans. Marks points to nothing other than rank speculation to support her claim that the real reason for her termination was her EEO activity and her vague claims of “ongoing retaliation.” This self-serving, speculative statement cannot refute the defendant’s articulated non-discriminatory reasons for firing her. See Wilson v. B/E Aerospace. Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (holding that plaintiff's self-serving assertions that the articulated reason is not true did not establish that she had been discriminated against); Chubb, 2013 WL 704764 at *8. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 18 of 25 PageID 477 19 II. Summary judgment should be granted on count two. A. Marks cannot establish the existence of a retaliatory hostile work environment. A retaliatory hostile work environment claim requires proof that the employee (1) engaged in protected EEO activity; (2) was subjected to unwelcome harassment; (3) the harassment was based on her protected activity; and (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment. See Gowski v. Peake, 682 F.3d 1299, 1311-12 (11th Cir. 2012). The conduct “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s job performance matter. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999) (en banc). The conduct must be “‘hostile or deeply repugnant,’” not “‘merely unpleasant.’” Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.1996). An employer’s liability for workplace harassment depends on the status of the alleged harasser. Vance, 133 S.Ct. at 2439; see Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher, 524 U.S. at 807. “An employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior.” Vance, 133 S. Ct. at 2441 (citing Faragher, 524 U.S. at 789). Different rules apply if the harassing employee is the plaintiff's “supervisor.” Id. An employer may be vicariously liable for the actions of its supervisors,10 but if the harassing employee is a 10 “If the supervisor's harassment culminates in a tangible employment action, the employer is strictly Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 19 of 25 PageID 478 20 co-worker, the employer is liable only if it was negligent in controlling working conditions. Id. Thus, “it matters whether a harasser is a ‘supervisor’ or simply a co- worker.” Id. at 2439. An employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. Id. at 2445-46. B. The series of acts identified by plaintiff do not rise to the level of a hostile work environment. A hostile work environment requires proof “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). That description has become the hallmark for a hostile workplace claim, and it is typically characterized by comments of a discriminatory nature. Considering all of the actions identified by Marks, the hostile work environment claim fails. The comments identified by Marks lack the intimidation and ridicule typical of a hostile workplace. For example, the alleged comments identified by Marks include (1) James Atherton saying to Marks “Even you can do this,” in reference to a job announcement for a car driver; (2) Freddy Tadros selectively yelling at her and asking “What are you doing?’”; and (3) Diane Bennett witnessing the throwing of a prescription bottle and saying “You threw it at Mary Ann, good job!”11 The Supreme Court has emphasized that “[a] recurring point in [its] opinions is that ‘simple teasing,’ offhand liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Vance, 133 S.Ct. at 2439. 11 Doc. 18. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 20 of 25 PageID 479 21 comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788. In a retaliatory hostile work environment, there must be intimidation and insult directed at a person’s protected activity. See Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir. 2000) (plaintiff exposed to repeated derogatory comments, including supervisors yelling at him, calling him “liar,” “troublemaker,” and “rabble rouser”); Gowski, 682 F.3d at 1313-14 (hostile workplace consisted of spreading rumors about plaintiffs, damaging their reputations, disciplining them, soliciting reports of contact against plaintiffs, instructing other employees to encourage plaintiffs to resign, and maligning them in front of their peers and co-workers). In light of the weak probative value of the comments, the plaintiff tries to cobble together a series of acts and hopes that by sheer quantity she can establish a claim. But even when adding these acts to the isolated remarks, the plaintiff still cannot establish a claim. The actions of which plaintiff complains were primarily her reaction to her supervisors’ attempts (1) to investigate complaints (both by Marks and by her co-workers), (2) to provide guidance and training to Marks in an attempt to improve her performance, and (3) to remediate repeated, well-documented misconduct by Marks. Complaints such as these are insufficient to establish a claim. Instead, they are “‘ordinary tribulations of the workplace.’” Faragher, 524 U.S. at 788. C. Defendant is not vicariously liable because no “supervisor” was involved in the alleged harassment. Pursuant to the VA Handbook, the only employee who can propose actions involving Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 21 of 25 PageID 480 22 a reduction in grade, reduction in pay, suspension, or discharge is the Service Chief – in this case the Chief of Pharmacy. Employee/Management Relations, Exh. II. The only employee who can make the final decision on actions involving a reduction in grade, reduction pay, suspension of more than 14 days, or discharge is the Director of the Haley VA Medical Center. Exh. II. Thus, Marks’ only “supervisor” for the purpose of her hostile work environment claim is the Director. As Marks said in her deposition, she does not believe that the Director was involved in retaliating against her.12 Although Tadros and Castellanos are supervisors in the outpatient pharmacy, they lack authority to make a final decision about a reprimand. They also lack authority to decide appointments, promotions, reassignments, reduction in grade, reduction in pay, suspension, or discharge of an employee. The co-workers Marks claims mistreated her— Chuney, Ming, Mims, Vernet—are her co-workers. They lack authority to decide anything affecting Marks’ employment. D. Defendant was not negligent. Under the negligence standard applicable to co-workers, the complainant must show that (1) the work environment was so pervaded by discrimination that the terms and conditions of employment were altered; (2) the employer knew or should have known of the offensive conduct; and (3) that the employer failed to take appropriate corrective action. See Vance, 133 S.Ct. at 2241; Faragher, 524 U.S. at 799; Ellerth, 524 U.S. at 758– 59. Here, Marks’ allegations against coworkers are discussed in paragraphs 5-16 and 23-25 of the Statement of Undisputed Material Facts. 12 See Statement of Undisputed Material Facts, ¶ 20. Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 22 of 25 PageID 481 23 The plaintiff bears the burden to “show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered.” Vance, 133 S.Ct. at 2441. To establish that the harassment was sufficiently severe or pervasive, the plaintiff must prove “that the environment be both objectively and subjectively abusive.” Singleton v. Auburn University Montgomery, 520 F. App’x 844, 848 (11th Cir. 2013) (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)). The Eleventh Circuit looks at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Singleton, 520 F. App’x at 848 (citing Harris, 510 U.S. at 23). To establish that it took proper action to correct the harassment, an employer must show that “it acted reasonably promptly on [the] complaint when it was given proper notice of [the] allegations.” Kurtts v. Chiropractic Strategies Group, Inc., 481 F. App’x 462, 466 (11th Cir. 2012) (quoting Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001)). A “threshold step in correcting harassment is to determine if any occurred, and that requires an investigation that is reasonable given the circumstances.” Id. (quoting Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007)). An employer need not “conduct a full-blown, due process, trial-type proceeding in response to complaints of sexual harassment.” Id. (citing Baldwin, 480 F.3d at 1304). “Nor must an employer interview every witness deemed critical by the complainant.” Id.; see Walton v. Johnson & Johnson Servs., 347 F.3d 1272, 1288 (11th Cir.2003) (per curiam). “At a minimum, however, an employer must make it clear that it will investigate the Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 23 of 25 PageID 482 24 allegations and ‘arrive at a reasonably fair estimate of [the] truth.’” Id. (quoting Baldwin, 480 F.3d at 1304). Here, Marks cannot satisfy the negligence standard. She has no evidence that the outpatient pharmacy was so pervaded by discrimination the terms of her employment were altered. Rather, the record shows that Marks’ supervisors promptly and thoroughly investigated complaints brought by Marks against co-workers and complaints by co- workers against Marks. The supervisors told Marks the result of each investigation. Her supervisors provided extensive training and feedback and gave her every opportunity to resolve her problems. Marks cannot show that the alleged discriminatory conduct was frequent, severe, humiliating, or unreasonably interfered with her work performance. Considering cumulatively everything described by the plaintiff, the allegations do not show any action taken against Marks “because of” her protected status. Instead, plaintiff tries to build her case on personality conflicts and reactions to her own poor performance and misconduct. That is what this case is really about. “Title VII prohibits discrimination; it is not a shield against harsh treatment at the work place. Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation.” McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir.1986) (footnote and internal quotation marks omitted). Likewise, the plaintiff cannot turn an office feud involving multiple employees into her own personal Title VII civility suit. III. Summary judgment should be granted on count three. Because counts one and two fail, count three—which seeks to enjoin the defendant Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 24 of 25 PageID 483 25 from further violating Title VII—also fails. WHEREFORE, the defendant respectfully requests summary judgment on all claims asserted by the plaintiff, as well as all further just and appropriate relief. Dated this 30th day of August, 2016. A. LEE BENTLEY, III United States Attorney /s/Jennifer Waugh Corinis JENNIFER WAUGH CORINIS Assistant United States Attorney Florida Bar No. 49095 LINDSAY SAXE GRIFFIN Assistant United States Attorney Florida Bar No. 72761 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone No. (813) 274-2000 Facsimile No. (813) 274-6200 Email: jennifer.corinis@usdoj.gov Email: lindsay.griffin@usdoj.gov CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 30, 2016, I served a copy of the foregoing by U.S. Mail, with a courtesy copy by e-mail, on the following: Mary Ann Marks 4418 W. Kennedy Blvd. Tampa, FL 33609 Gatorrx81@gmail.com /s/Jennifer Waugh Corinis Assistant United States Attorney Case 8:15-cv-00769-SCB-TBM Document 48 Filed 08/30/16 Page 25 of 25 PageID 484 EXHIBIT A Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 1 of 9 PageID 485 PLAINTIFF'S PRODUCTION 003430 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 2 of 9 PageID 486 PLAINTIFF'S PRODUCTION 003431 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 3 of 9 PageID 487 PLAINTIFF'S PRODUCTION 003432 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 4 of 9 PageID 488 PLAINTIFF'S PRODUCTION 003433 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 5 of 9 PageID 489 PLAINTIFF'S PRODUCTION 003434 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 6 of 9 PageID 490 PLAINTIFF'S PRODUCTION 003435 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 7 of 9 PageID 491 PLAINTIFF'S PRODUCTION 003436 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 8 of 9 PageID 492 PLAINTIFF'S PRODUCTION 003437 Case 8:15-cv-00769-SCB-TBM Document 48-1 Filed 08/30/16 Page 9 of 9 PageID 493 EXHIBIT B Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 1 of 7 PageID 494 PLAINTIFF'S PRODUCTION 003391 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 2 of 7 PageID 495 PLAINTIFF'S PRODUCTION 003392 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 3 of 7 PageID 496 PLAINTIFF'S PRODUCTION 003393 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 4 of 7 PageID 497 PLAINTIFF'S PRODUCTION 003394 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 5 of 7 PageID 498 PLAINTIFF'S PRODUCTION 003395 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 6 of 7 PageID 499 PLAINTIFF'S PRODUCTION 003397 Case 8:15-cv-00769-SCB-TBM Document 48-2 Filed 08/30/16 Page 7 of 7 PageID 500 EXHIBIT C Case 8:15-cv-00769-SCB-TBM Document 48-3 Filed 08/30/16 Page 1 of 2 PageID 501 PLAINTIFF'S PRODUCTION 00007 Case 8:15-cv-00769-SCB-TBM Document 48-3 Filed 08/30/16 Page 2 of 2 PageID 502 EXHIBIT D Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 1 of 24 PageID 503 PLAINTIFF'S PRODUCTION 01586 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 2 of 24 PageID 504 PLAINTIFF'S PRODUCTION 01590 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 3 of 24 PageID 505 PLAINTIFF'S PRODUCTION 01592 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 4 of 24 PageID 506 PLAINTIFF'S PRODUCTION 01596 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 5 of 24 PageID 507 PLAINTIFF'S PRODUCTION 01598 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 6 of 24 PageID 508 PLAINTIFF'S PRODUCTION 01602 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 7 of 24 PageID 509 PLAINTIFF'S PRODUCTION 01521 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 8 of 24 PageID 510 PLAINTIFF'S PRODUCTION 01525 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 9 of 24 PageID 511 PLAINTIFF'S PRODUCTION 01610 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 10 of 24 PageID 512 PLAINTIFF'S PRODUCTION 01614 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 11 of 24 PageID 513 PLAINTIFF'S PRODUCTION 01526 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 12 of 24 PageID 514 PLAINTIFF'S PRODUCTION 01530 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 13 of 24 PageID 515 PLAINTIFF'S PRODUCTION 01531 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 14 of 24 PageID 516 PLAINTIFF'S PRODUCTION 01535 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 15 of 24 PageID 517 PLAINTIFF'S PRODUCTION 01536 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 16 of 24 PageID 518 PLAINTIFF'S PRODUCTION 01540 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 17 of 24 PageID 519 PLAINTIFF'S PRODUCTION 01571 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 18 of 24 PageID 520 PLAINTIFF'S PRODUCTION 01575 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 19 of 24 PageID 521 PLAINTIFF'S PRODUCTION 01559 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 20 of 24 PageID 522 PLAINTIFF'S PRODUCTION 01563 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 21 of 24 PageID 523 PLAINTIFF'S PRODUCTION 01565 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 22 of 24 PageID 524 PLAINTIFF'S PRODUCTION 01569 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 23 of 24 PageID 525 PLAINTIFF'S PRODUCTION 01570 Case 8:15-cv-00769-SCB-TBM Document 48-4 Filed 08/30/16 Page 24 of 24 PageID 526