CLD-098 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3250

___________

ZOE VICTORIA PARKER,

Appellant

v.

SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-15-cv-01910)

District Judge: Honorable Wendy Beetlestone

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 12, 2017

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

(Opinion filed: January 19, 2017)

_________

OPINION*

_________

PER CURIAM

Zoe Victoria Parker appeals from the judgment of the United States District Court 

for the Eastern District of Pennsylvania. We will summarily affirm. 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we describe its history only briefly. In April 2015, Parker filed a pro se 

complaint against her former employer, the United States Department of Veterans Affairs 

(“VA”), and Robert A. McDonald, Secretary of Veterans Affairs. Parker alleged race 

and national origin discrimination, disability discrimination, and reprisal for protected 

activity in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 

2000e et seq., and the Americans with Disability Act of 1990 (“ADA”), 42 U.S.C. §§ 

12112 et seq., arising from her removal from employment at the Coatesville Veterans 

Affairs Medical Center (“VAMC”) and related disciplinary actions.1

 Parker’s claims arise primarily from the disciplinary actions that the VA took 

after three incidents that occurred between Parker and a co-worker, Recreation Therapist 

Denise Holmes, on June 23, 2011. The first incident led to Parker and Holmes filing 

reports of patient abuse against each other. The second and third incidents involved 

Parker allegedly making sexually inappropriate comments to Holmes in the laundry 

room, and making derogatory comments about Holmes to a patient in the sun room. The 

VA empaneled an Administrative Investigation Board (“AIB”) to investigate these 

 

1 This consolidated action consists of what Parker initially filed as three different Title 

VII lawsuits, regarding: (1) her removal from VA employment effective in late 2012 

(Case No. 15-cv-01910); (2) discrimination against her on the basis of race and/or 

national original and in reprisal for prior protected EEO activity when certain actions 

were taken against her in 2011 (Case No. 15-cv-04467); and (3) the dismissal of her EEO 

claim regarding her removal (Case No. 16-cv-00774), which was dismissed because it 

merged, at Parker’s election, with her Merit Systems Protection Board appeal.
3

allegations and several others. The AIB found, among other things, that Parker violated 

the VA’s patient Abuse and Employee/Patient Boundaries policy by involving a patient 

in an on-going staff disagreement, excessively disclosing personal information to a 

patient in violation of VA policy, and sending inappropriate emails. As a result, Parker 

was fired on November 2, 2012. She unsuccessfully appealed to the Merit Systems 

Protection Board (“MSPB”).

In June 2015, McDonald filed a motion for partial dismissal, arguing that Parker 

had failed to exhaust her administrative remedies with regard to her “failure to 

accommodate” disability claim. By order entered on July 28, 2015, the District Court 

granted McDonald’s motion for partial dismissal, concluding that Parker had failed to 

properly exhaust available administrative remedies on her disability claim. The District 

Court also dismissed the VAMC as a party, explaining that the only proper defendant in a 

Title VII action brought by a federal employee is the head of the employing department.2 

In April 2016, McDonald filed a motion for summary judgment, which the District

Court granted because although Parker had established a prima facie retaliation claim, the 

VA had articulated legitimate, non-discriminatory reasons for the alleged adverse actions, 

and Parker had failed to demonstrate that those reasons served as pretext for retaliation. 

The District Court further determined that Parker had not established prima facie claims 

of race and national origin discrimination and hostile work environment. Parker appeals, 

 

2 See 42 U.S.C. § 2000e-16(c) (“[T]he head of the department, agency, or unit, as 

appropriate, shall be the defendant.”). 
4

alleging that the District Court “shifted all the burden to me; instead, of looking at how 

the Merit System Protection Board botched my case.” Appellee has filed a motion for 

summary affirmance.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm 

under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit. We 

exercise plenary review over a district court order for summary judgment. Giles v. 

Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate “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). The moving party “bears 

the initial responsibility of informing the district court of the basis for its motion, and 

identifying those portions” of the record which demonstrate the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the 

moving party meets its burden, the nonmoving party then must present specific facts that 

show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

III.

Because Parker did not specifically indicate which incidents provided the basis for 

her claims, the District Court reviewed all claims set forth in the three EEO cases she 

filed after the June 23, 2011 incident. These claims must be analyzed under the burden-
5

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 

(1973). 

Under this framework, a plaintiff seeking to establish a prima facie case of 

retaliation under Title VII must show: (1) that she engaged in a protected activity, which 

can include informal protests of discriminatory employment practices such as making 

complaints to management; (2) “adverse action by the employer either after or 

contemporaneous with the employee’s protected activity”; and (3) a causal connection 

between the protected activity and the adverse action. Daniels v. Sch. Dist. of Phila., 776 

F.3d 181, 193 (3d Cir. 2015). If a prima facie case is established, the burden of 

production shifts to the employer to present a legitimate, non-discriminatory reason for 

its actions. Id. If such a reason is offered, the burden shifts back to the plaintiff to 

demonstrate that the reason was merely pretext “and that retaliation was the real reason 

for the adverse employment action.” Id. Although the burden of production shifts, “the 

plaintiff has the ultimate burden of persuasion at all times.” Id.

We agree with the District Court that while Parker established a prima facie claim 

of retaliation with regard to some of her allegations, she failed to present any evidence 

that the VA’s legitimate, non-discriminatory reasons for the adverse actions alleged were 

pretext for retaliation. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (“[T]he 

non-moving plaintiff must demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate 

reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of 
6

credence.’”) To show pretext, Parker relied largely on allegations that her supervisors 

conspired to remove her from service and engaged the help of others to justify their 

actions, including the AIB, which conspired to “botch” the investigation. However, she 

failed to provide any direct evidence of these alleged conspiracies. While Parker alleged 

that a similarly situated employee named R.F. was given better treatment in an AIB 

investigation, as the District Court explained, R.F. was subjected to nearly the same AIB 

procedures as Parker. The fact that R.F. was cleared of the charges by the AIB, while 

Parker’s were sustained, does not without more demonstrate that she was treated 

differently. Parker also relied on alleged errors in the agency’s procedures, but as the 

District Court further explained, there are at most “minor discrepancies” that, even if true, 

could not undermine the findings of the AIB and the VA’s proffered reasons for the 

adverse actions taken against Parker. 

We also agree with the District Court’s conclusion that Parker failed to 

demonstrate pretext concerning the non-discriminatory reasons provided by the VA for 

the actions that preceded her removal. Regarding the email abuse reprimand and the loss 

of her computer privileges, Parker claimed that she received contradictory instructions. 

However, the record contained several directives that she stop sending widespread emails 

about her case. As for the First Proposed Removal, Parker complained that the VA 

credited the testimony of other employees over her own but failed to provide evidence 

that the allegations were false or that it was unreasonable to believe the consistent 

testimony of multiple other employers over her own. Parker has also failed to provide 
7

any evidence that her leave requests were denied for any reasons other than those given 

by the VA – i.e., declining to grant Parker’s one year FMLA request because the statutory 

period is only twelve weeks and refusing to grant eighteen days of advance leave because 

the VA was unsure of Parker’s future employment status. Finally, Parker has not 

demonstrated that the VA’s response to her return to work on September 19, 2012, 

including a police escort to HR and placement on Paid Non-Duty Status, was motivated 

by anything other than her disruptive behavior on that day and the wish to avoid further 

conflict until the Second Proposed Removal was decided. Accordingly, the District 

Court properly granted summary judgment for McDonald as to Parker’s retaliation claim.

IV.

We are equally unpersuaded by Parker’s race and national origin discrimination 

claims. To establish a prima facie case of race or national origin discrimination, an 

employee must show that “(1) [she] is a member of a protected class; (2) [she] was 

qualified for the position [she] sought to attain or retain; (3) [she] suffered an adverse 

employment action; and (4) the action occurred under circumstances that could give rise 

to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d 

Cir. 2008).

Here, with regard to the fourth factor,3 we agree with the District Court’s 

conclusion that Parker failed to provide support beyond mere suspicion for the inference 

 

3 There is no dispute that Parker is black and of Liberian national origin, that she was 

qualified for her position as a social work associate, or that she suffered at least one 
8

that any of the alleged adverse actions taken against her were motivated by her race or 

national origin. During her AIB testimony, Parker stated that “the black people call me 

African girl,” and discussed her belief that “the slave mentality in Coatesville is too 

heavy,” but failed to give any examples of national origin-based slurs or comments made 

by specific VA staff members, or that this bias motivated the adverse actions she alleged. 

Moreover, in her deposition for this case, Parker repeatedly refused to specifically 

identify any evidence of race or national origin discrimination, responding only vaguely 

that the papers “are my evidence,” “you have the evidence folders,” “I come up with the 

evidence,” and that she would “leave it up to the jury.” As a result, the District Court 

properly granted summary judgment for McDonald as to this issue.4

V.

For the foregoing reasons, we grant McDonald’s motion for summary action and 

will summarily affirm the judgment of the District Court.

 

adverse action. The District Court noted that while Parker did not include her removal as 

an adverse action in the only EEO complaint in which she complained of race and 

national origin discrimination, she did name her two-week suspension, which we have 

held to be an adverse action. See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 

2001).

4 Finally, we agree with the District Court’s conclusion that Parker could not establish a 

hostile work environment claim. Applying the five-part test set forth in Mandel v. M & 

Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013), the District Court determined that 

Parker failed to provide evidence that the actions she alleged were intentional 

discrimination based on her race, national origin, or prior EEO activity. Although, she 

made out a prima facie case of Title VII retaliation, the VA articulated legitimate nondiscriminatory reasons for each of its adverse actions, and Parker failed to demonstrate 

that those reasons served as pretext for retaliation.