United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendant Erik K. Shinseki, in his official capacity as Secretary of the United States Department of Veterans Affairs, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Alice Buckhanan has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion should be granted as to plaintiff's claim of race, gender and age discrimination. The court, however, will reserve ruling on defendant's claim for summary judgment as to plaintiff's claim for retaliation.
Plaintiff Alice Buckhanan is an African-American female over the age of 40. She became employed as a police officer with the Jackson VA Medical Center (VAMC) in 2002. She was terminated from employment in August 2012, ostensibly because she failed to maintain qualification in the use of her service firearm, a condition of her employment. In the present action, plaintiff alleges that her termination was the result of unlawful discrimination on the basis of race, gender, age and retaliation, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq. 
From the time of her employment in 2002 until March 2011, when she sustained an on-the-job injury and was temporarily assigned to alternate duty, plaintiff worked as a police officer with the VAMC. As a VAMC police officer, plaintiff was required to qualify with her firearm every six months, which she did up to the time of her injury. In March 2012, after more than a year on alternate non-police duty, plaintiff was cleared by an Office of Worker's Compensation physician to resume her normal law enforcement duties. However, under VA policy, before she could return to duty as a police officer, plaintiff was required to pass physical and psychological examinations and to requalify with her weapon. On May 18, 2012, immediately upon receiving notice that she had passed the physical and psychological exams, plaintiff was directed to report to the firing range to attempt to requalify with her weapon, notwithstanding that VA policy required that any officer separated from normal police duties for more than six months be offered firearms retraining before attempting to requalify with her weapon and notwithstanding that plaintiff was not offered such training.
To qualify with a weapon, an officer is given up to three attempts of fifty rounds each and qualifies if she hits at least forty of fifty rounds completely inside the target. During the testing on May 18, 2012, plaintiff failed in her first attempt to qualify. Indeed, according to plaintiff's own testimony, she shot so poorly that she stopped after firing only about twenty rounds. The firearms instructor overseeing the testing, Conrad Hamp,  recognized the difficulties plaintiff was having and concluded that before proceeding with a second or third attempt, plaintiff would need remedial training. According to plaintiff, initially the plan was that she would return to the range the following day and have two more attempts to qualify. However, it was later decided that she and two other officers who had failed to qualify would be sent to the Law Enforcement Training Center (LETC) in Little Rock, Arkansas for basic firearms retraining. Accordingly, plaintiff, along with Officer Gregory Maples and Sergeant Lorraine Hudson, attended the LETC training course during the week of June 25-29, 2012. The forty-hour course included classroom instruction and hands-on skill training designed to teach proper shooting stances, loading, holstering and unholstering of weapons, and shooting at various distances. On the final day of training, the students performed a practice qualification test and received feedback before attempting to qualify.
After testing, plaintiff was informed that she had failed to qualify as the most hits she scored was 39, which she did in two of her three rounds. Officer Maples and Sergeant Hudson also failed to qualify at LETC, and on July 3, 2012, all three employees were placed on administrative leave and recommended for termination by acting Police Chief Yolanda Motley on account of their "[f]ailure to maintain qualification in the use of agency approved firearms at an armed facility as a condition of employment." As to plaintiff, the charge that she failed to qualify contained two specifications, as follows: (1) that in May 2012, plaintiff "failed on three (3) attempts" to qualify; and (2) that after remedial training at the LETC during June 2012, she failed to qualify after three attempts. Although plaintiff orally contested the recommendation for termination, Joe Battle, Director of the Jackson VAMC, accepted the recommendation and, by letter dated October 15, 2012, advised plaintiff that she was terminated effective November 2, 2012 based on her failure to qualify, as set forth in the initial recommendation letter, i.e., on account of her alleged failures on three attempts to qualify in May and again in June 2012. Her termination came two weeks after the Equal Employment Opportunity Commission (EEOC) issued a determination in favor of the VAMC on a charge of race and age discrimination that plaintiff had filed in August 2010.
On November 16, 2012, plaintiff filed an appeal of her termination to the Merit Systems Protection Board (MSPB). Following a March 14, 2013 hearing, the administrative law judge issued an opinion sustaining the termination and rejecting plaintiff's claims of race, gender and age discrimination and retaliation. Plaintiff then timely filed the present action.
Race and Age Discrimination
While defendant has moved for summary judgment on all of plaintiff's claims, plaintiff has offered a substantive response in support of only her gender discrimination and retaliation claims. She does not address her age discrimination claim at all and offers no evidence to support such claim. As to the race discrimination claim, her memorandum of authorities does include a section entitled "Proof of race discrimination", but nothing in that section - which is a mere two sentences - suggests a valid factual or evidentiary basis for the claim. Accordingly, in view of plaintiff's failure to present any evidence in support of her claims of race and age discrimination, the court concludes that defendant is entitled to summary judgment on these claims.
Title VII makes it "an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). An employer's action is unlawful if gender was "a motivating factor" for terminating an employee. Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013) (citation omitted). In adjudicating Title VII claims of gender discrimination where there is no direct evidence of discrimination based on gender, the court applies the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003). Under this framework, a plaintiff first must make a prima facie case of unlawful gender discrimination. Id . The burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged action. Id . If it does, the plaintiff must then prove that the defendant's stated reason is pretextual. Id . See also Khalfani v. Balfour Beatty Communities, L.L.C., ___ Fed.App'x ___, 2014 WL 7229499, at *1 (5th Cir. 2014). To establish a prima facie case of gender discrimination, plaintiff must show "(1) [s]he is a member of a protected class, (2) [s]he was qualified for the position at issue, (3) [s]he was the subject of an adverse employment action, and (4) [s]he was treated less favorably because of h[er] membership in that protected class than were other similarly situated employees who were not members of the protected class, under nearly identical circumstances." Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
In the case at bar, defendant maintains that plaintiff cannot establish a prima facie case of gender discrimination because (1) she cannot establish that she was qualified for the position; and (2) she cannot establish that she was treated differently than a similarly situated person outside her protected class or replaced by someone outside her protected class. It contends that summary judgment is therefore in order.
On the issue of qualification for a position, the Fifth Circuit has suggested that an employer's argument that an employee is not qualified for a position typically is belied by the fact that the employee was hired in the first place and retained in employment. See Taylor v. Peerless Indus. Inc., 322 Fed.App'x 355, 357 n.1 (5th Cir. 2009). Thus, it has held that generally, "performance concerns are more appropriately addressed in assessing a plaintiff's assertion that an employer's articulated reason for its action was a pretext" than at the prima facie stage. See id. That is, "a plaintiff challenging his termination or demotion can ordinarily establish a prima facie case of... discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action" and that he "had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit for the position for which he was hired." Holliday v. Commonwealth Brands, Inc., 483 F.Appx. 917, 921 (5th Cir. 2012) (internal quotation marks and citation omitted). "The lines of battle may then be drawn over the employer's articulated reason for its action and whether that reason is a pretext for... discrimination." Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988). However, in the case at bar, defendant notes that qualifying with an authorized firearm is a condition of employment with the VAMC Police Department. Thus, although plaintiff initially qualified in 2002 and maintained her weapons qualification up until her injury in 2011, defendant contends that at the time of her termination, she was no longer qualified for the position as a result of her failure to qualify with her service weapon following her May 2012 release to return to normal law ...