Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. Plaintiff Visalakshi Malladi, who is of “Asian origin from the Indian Sub-Continent,” brings this lawsuit charging defendant Secretary of Veterans Affairs (hereinafter referred to as the “VA”) with discriminating against her because of her race, sex, and national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, and because of her handicap, in violation of the Rehabilitation Act, 29 U.S.C.A. §§ 791 and 794, and with retaliating against her for engaging in protected activity, in violation of Title VII. Malladi is also seeking review of her grievances under the Administrative Procedures Act (hereinafter referred to as the “APA”), 5 U.S.C.A. §§ 702 and 706. Jurisdiction arises under 42 U.S.C.A. § 2000e-5 (Title VII), 29 U.S.C.A. § 794 (Rehabilitation Act), 5 U.S.C.A. § 702 (APA), and 28 U.S.C.A. § 1381 (general federal question) and § 1343 (civil rights). This lawsuit is now before the court on the VA Secretary’s motion for summary judgment, filed June 18, 1997. For the reasons that follow, the Secretary’s motion will be granted. However, before turning to the motion, the court is compelled to offer to the bench and bar some special introductory comments about this case. As will be evident from this lengthy memorandum opinion, this lawsuit presents a picture (which is becoming more and more frequent) of an abuse of the law and the judicial process. First, Malladi’s case is an abuse of the court. Malladi has submitted to the court scores of claims (as contained in administrative charges and sub-charges) under almost every theory she and her attorneys could uncover or imagine under statutory and ease law. Surely, Malladi and her attorneys know that she has not been the victim of race, sex, national origin, and handicap discrimination simultaneously for almost every adverse employment decision at the VA. This all-encompassing contention defies common sense. It is apparent that what she and her attorneys have done is to take a kitchen sink approach — that is, to put before the court all conceivable claims, with the hope that the court would sort and sift through them in' search of a colorable one. This trial strategy is grossly unfair to the court and all other litigants who come before it. For, the inordinate amount of time the court has had to spend sorting through Malladi’s claims has been time unavailable to analyzing other claims and fashioning relief for other individuals, many of whom may truly have been the victims of serious wrongs. Malladi’s attorneys, not the court, have the responsibility of weeding out frivolous and questionable claims. Her attorneys should have presented to the court only those claims which they believe presented colorable allegations of wrongdoings. They, not the court, should sift through her allegations and determine whether she has been the victim of discrimination and, if so, of what type and for what acts. The court understands that a person can be a victim of pervasive and multiple types of discrimination. But this understanding has reasonable limits and is not an invitation to abuse. Lawyers have an obligation, just as much as judges, to make sure that these limits are respected. When lawyers fail to meet this obligation they fail to live up to the oath they took as officers of the court. Indeed, courts cannot function as delivers of justice — they cannot give all cases the fair and careful and expeditious consideration each one deserves — when they are burdened with cases such as this one. Second, Malladi’s ease is an abuse of the opposing litigant. Malladi and her attorneys have essentially forced the YA Secretary to waste his limited taxpayer-funded resources in the defense of frivolous and marginal claims. Indeed, some of her claims are so lacking in merit that the court must conclude she has, and is, pursuing these out of vindictiveness — that is, she has used, and is using, the legal process as a sword of revenge and harassment. With her almost reflexive filing of boiler-plate administrative charges to any adverse employment action taken against her, she has essentially distorted her work environment into one in which the VA has had to devote itself to responding to her claims, rather than to tie real issues of whether she is, in fact, doing a good job and whether she and all other employees are providing services patients need. Ironically, Malladi’s kitchen-sink approach is, in the end, self-defeating. By lumping her frivolous claims with her arguably color-able claims, both she and her lawyers risk losing all credibility -with the court. By challenging almost all actions adverse to her under almost every conceivable applicable law, she risks making her entire ease seem frivolous. With such a strategy, she risks appearing before, the court.as a petty and pesky litigator, rather than as a real victim of discrimination who warrants careful and sympathetic consideration. Finally and most importantly, cases such as Malladi’s constitute an abuse of the very laws they seek to invoke. The purpose of laws banning discrimination based on race, sex, nation origin, and disability is venerable: to eliminate and redress serious acts of discrimination suffered by employees, both public and private. They were not intended, as Malladi has used them here, to be a generalized grievance process for disgruntled employees. What Malladi does here is essentially to mock the laws. In a sense, therefore, it is Malladi, and not the YA, who is guilty of a gross injustice in violation of these laws. I. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Once the party seéking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the responsibilities on the movant and the nonmovant vary depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or nonmovant bears the burden of proof at trial). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). II. BACKGROUND The court finds the relevant and salient background facts to be as follows: February 1988: Malladi was hired as a staff physiatrist — a physician who specializes in physical medicine, that is, the treatment of illness by way of physical means — by the VA in the Physical Medicine and Rehabilitation Service (PM & RS) at the Veterans Administration Medical Center in Tuskegee, Alabama (TYAMC). Stanley B. Kahane became the chief of staff of TVAMC at approximately the same time. September 1988: Malladi was designated as acting chief of PM & RS. March 1989: Malladi was appointed chief of PM & RS. December 24, 1992 to January 11, 1995: Malladi filed seven separate Equal Employment Opportunity administrative charges, commonly referred to as EEO charges, alleging that the VA discriminated against her because of her race, sex, national origin, and handicap, and that the VA retaliated against her for engaging in protected activity. March 30, 1995: The parties settled Malla-di’s seven pending administrative charges by way of a global settlement agreement. June 29, 1995: Malladi wrote a letter requesting that the Equal Employment Opportunity Office at the VA reopen the charges underlying the settlement agreement because, she alleged, multiple provisions of the settlement agreement had been breached by the VA. August 25, 1995: Malladi filed her eighth EEO charge alleging retaliation based on the following: (1) her May 1995 request to hire a staff physiatrist was denied; (2) Kahane’s administrative assistant telephoned her while she was on sick leave at her home to see if she could return to work; and (3) Kahane denied her request to cancel the outpatient rehabilitation clinic and electromyography test. Fall 1995: The TVAMC management requested a site visit team to conduct a thorough review of PM & RS because of problems it saw in the service resulting from Malladi’s refusal to accept decisions of management, failure to cooperate with management, bad relations with subordinate employees, and disputes about workload. October 23, 1995: The VA issued its ruling on Malladi’s request to reopen her underlying claims because of the breach of the settlement agreemept, concluding that it had not breached the settlement agreement. October 30, 1995: Malladi filed her ninth EEO charge alleging retaliation based on the denial of her August 1995 request to hire a staff physiatrist. November 13, 1995: Malladi appealed the VA’s ruling that it had not breached the settlement agreement to the Equal Employment Opportunity Commission (hereinafter referred to as the “EEOC”). December 14 and 15, 1995: The site visit team conducted a two-day review of PM & RS. January 2, 1996: Malladi filed her tenth EEO charge alleging (1) breach of the settlement agreement, and (2) retaliation based on improper treatment by Kahane in that he allegedly shouted at her in front of her subordinates. January 16, 1996: The site visit team issued its report. The report detailed many problems with PM & RS, including very low employee morale, substantial infighting among employees, minimal evidence of quality improvement initiatives, poor use of the coordinator position, no communication within the service or with the administration, irreconcilable differences between Malladi and the staff, no evidence of workload validation, no process for downsizing, no prioritization of patients to be seen, and no strategic plan. In addition, the report indicated that Malladi’s claims of overwork were unsubstantiated, and there were no data to support Malladi’s continual requests for an additional physiatrist. The report also included the following finding: “In discussion with the Chief of Staff, Medical Center Director and the Associate Director, a strong concern was expressed regarding the inability of the Medical Center leadership to gain cooperation with the' current Chief of PM & RS in resolving issues precipitating the site visit. This concern stems from the recent history of EEO complaints filed by the Chief, PM & RS. Since December of 1992, the Chief, PM & RS ha's registered a total of 12 EEO complaints against the Director, Chief of Staff, and Associate Director (triad) alleging discrimination on the basis of race, disability and gender. In review of EEO records, the majority of filings stem from the Chiefs perceived feeling of discrimination relating to a refusal by triad to provide additional physician staffing to PM & RS. Seven of the complaints have been resolved via a global settlement agreement signed March 30, 1995. The Chief had continued to register complaints to the EEO commission based on perceived reprisal from the triad in relation to her original complaint. As a result of the continued filing, the members of the triad feel incapacitated in providing the Chief with adequate direction and assistance in management of her service. In discussion with Dr. Torrado, the Staff Assistant for EEO, this continued filing has also burdened the EEO system at the hospital and resulted in excessive provision of resources by the EEO staff to continually review Dr. Malla-di’s complaints.” On the basis of the information it collected, the site visit team recommended, among other things, that Malladi be removed from her position as chief of PM & RS, and reassigned to another position in the hospital outside of PM & RS. January 19, 1996: Malladi received a memorandum from Jimmie L. Clay, the medical center director, informing her that she was being detailed to Ambulatory Card Service for a period not to exceed 30 days. January 22, 1996: Malladi filed her eleventh EEO charge alleging retaliation and discrimination because of her race, sex, national origin, and handicap based on statements made by her subordinate employees to the EEO counselor conducting the investigation of her ninth EEO charge. February 6, 1996: Kahane recommended to Clay that Malladi be permanently reassigned from her position as chief of PM & RS to a staff physician position in Ambulatory Care Service because he felt: (1) Malladi’s leadership was inadequate and had caused a rift within the service; (2) Malladi’s inadequate supervision of physician extender staff may jeopardize patients; (3) there was substantial infighting among the PM & RS staff; and (4) Malladi failed to work cooperatively with the TVAMC management. This recommendation relied explicitly on the findings and recommendations of the site visit team. Clay informed Malladi of her permanent reassignment, to be effective February 18, 1996. February 14, 1996: Malladi filed her twelfth EEO charge alleging retaliation and discrimination because of her race, sex, national origin, and handicap based on the following: (1) Kahane treated her inappropriately relative to her management of subordinate employees in two incidents in her service involving patient abuse and financial dealing with a patient; (2) Clay made unreasonable delays in responding to her written request for an EEO counselor’s report; (3) there was an inappropriate referral of her EEO charge to the VA central office for procedural review; and (4) there was an unfair and inappropriate request for a site visit. February 15, 1996: Kahane gave Malladi a proposed letter of admonishment for her actions in the management of subordinate employees in two incidents in her service involving patient abuse and financial dealings with a patient. March 4, 1996: Clay gave Malladi a letter of admonishment based on the proposed admonishment dated February 15,1996. March 8, 1996: This lawsuit was filed. March 12, 1996: Pursuant to the VA’s internal grievance procedures, Malladi filed formal grievances with respect to her permanent reassignment to the ambulatory care service and her letter of admonishment for her handling of patient/employee matters. March 28, 1996: Malladi filed her thirteenth EEO charge alleging retaliation and discrimination because of her race, sex, national origin, and handicap based on the following: (1) on January 19, 1996, she was detailed out of PM & RS to Ambulatory Care Service; (2) the PM & RS staff was informed that she had been detailed to another service and removed as chief of PM & RS before she was notified; (3) the site visit team’s report was biased and unfair and targeted her as chief of PM & RS and as a physiatrist; (4) her reassignment to a staff physician in Ambulatory Care Service reduced her pay by $8,250, which represented the special pay for being service chief and not a reduction in base pay; (5) Kahane authorized her former subordinate staff physiatrist, who is board eligible, to countersign her consultations, while she is board certified; (6) Clay inappropriately referred her EEO charges to the VA central office for procedural review; (7) Kahane caused the keys to the chief of PM & RS office and government scooter to be taken from her on the same day as her detail; and (8) Kahane gave her a proposed memorandum of admonishment and the subsequent memorandum of admonishment. April 17, 1996: Pursuant to the VA’s internal grievance procedures, Malladi filed a formal grievance with respect to the VA’s failure to follow rules in giving her an “unsatisfactory” rating on March 13, 1996. May 1, 1996: Larry R. Deal, the director of the Atlanta Network of VA facilities, sent Malladi a letter informing her that her April 17, 1996, grievance was excluded from processing because “[o]ur VA Manual MP-5, Part II, Chapter 8, Section B, paragraph 14(h) specifically excludes complaints arising from dissatisfaction with the proficiency rating from coverage under the grievance procedure.” He indicated that although Malladi made a specific point of taking issue with the “procedure used in the proficiency evaluation, ... it is clear that your complaint goes to the proficiency rating itself and is therefore excluded from coverage.” May 14, 1996: Shirley Cooper, the grievance examiner appointed by the VA, issued her report of findings and recommendations regarding Malladi’s grievances with respect to her permanent reassignment to the ambulatory care service and her letter of admonishment for her handling of patienVemployee matters. Cooper concluded that there was ample evidence to support both actions by TVAMC and that Malladi’s grievances were without merit. October 10, 1996: Malladi’s complaint was amended to include the allegations in her thirteenth EEO charge. December 18, 1996: The EEOC issued its ruling on Malladi’s request to reopen her underlying claims because of the breach of the settlement agreement, concluding that the VA had breached ¶ 2.d of the settlement agreement with respect to providing Malladi with management training. As a remedy, the EEOC did not order that Malladi’s underlying complaints be reopened, but that the VA should comply with ¶ 2.d. The EEOC also concluded that it needed more evidence to determine if the VA had breached ¶2.6 with respect to providing good faith consideration for Malladi to serve as acting chief of staff in the chief of staffs absence. The EEOC ordered that more evidence be provided with respect to ¶ 2.e, and has not entered another ruling. III. DISCUSSION Malladi asserts many and varied claims of discrimination in this case, in addition to seeking review of her grievances under the APA. She alleges claims of disparate treatment because of her race, sex, handicap, and national origin, and retaliation for engaging in protected activity, all of which are based on thirteen separate EEO charges with multiple factual bases. The court’s discussion of the issues begins with consideration of whether there was a breach of the global settlement agreement into which the parties entered on March 30, 1995, which governs the claims made in Malladi’s first seven EEO charges, and then continues on to a discussion of her remaining EEO charges, and the review of her grievances under the APA. A. Breach of the Settlement Agreement Malladi alleges that her first seven EEO charges, which were settled by way of a global settlement agreement entered into by the parties on March 30, 1995, should be reopened and litigated because the VA breached the agreement. She bases her argument on ¶ 4 of the agreement, which states, in relevant part, that the ‘VA agrees that, should it fail to comply with any of the terms set forth herein for reasons not attributable to acts or conduct of the complainant, it will reopen the complaint for further processing at the point in the process where processing ceased as a result of this agreement.” Malladi alleges that the VA breached the settlement agreement by: (1) not providing her with management training in accordance with ¶ 2.d; (2) not providing her with the opportunity to serve as chief of staff in accordance with ¶ 2.e; (3) failing to pay her attorney fees in a timely fashion in accordance with fl2.g; (4) failing to provide a non-diseriminatory environment in accordance with ¶ 2.h; and (5) not sending her a confirmation letter of the removal of her “appraisal of applicant” form in accordance with ¶ 2.i. Settlement of EEO charges by a settlement agreement results in a contract between the plaintiff and the defendant. This contract is thus enforced according to the rules of contract law. For there to be a breach of the settlement agreement that is sufficient to discharge a party from her obligations under the contract, and that would allow her to open up the underlying claims for further adjudication, the breach must be “material.” See Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981). “According to the original Restatement of Contracts, if the failure of one party to perform part of a contract is so material that it results in the other party not receiving substantially what he bargained for, the duty of the injured party is discharged and [she] is, thereby, wholly excused from carrying out [her] undertaking. See Restatement of Contracts § 274, 397 (1932). If, on the other hand, the failure to perform is not material, the injured party retains [her] duty to render [her] performance. See id. § 274i(l). There is still a breach of contract, but the innocent party must recoup [her] losses, if any, for such an immaterial breach through an action for damages or one of the other procedural devices designed for that purpose.” Ferrell, 662 F.2d at 1181. A non-material breach, although possibly causing some damage to the plaintiff, is not sufficient to discharge Malladi from her obligations. Not every breach of a contract amounts to a material breach. A material breach occurs only when an injured party has sustained a substantial injury by the breach. The Restatement (Second) of Contracts § 241 (1979) suggests five criteria to consider in assessing whether a breach of contract is material. The criteria involve considering: (1) the extent to which the injured party will be deprived of the benefit which she reasonably expected; (2) the extent to which the injured party can be adequately compensated for the part of that benefit of which she will be deprived; (3) the extent to which the breaching party will suffer forfeiture; (4) the likelihood that the breaching party will cure; and (5) the extent to which the behavior of the breaching party comports with standards of good faith and fair dealing. The breaches that Malladi alleges of ¶ 2.g, with respect to paying her attorney fees, and ¶ 2.i, with respect to removing the “appraisal of applicant” from her application file, do not amount to breaches of the agreement at all because the VA has performed its obligations under both provisions. The evidence with respect to ¶ 2.i is undisputed that the “appraisal of applicant” was removed from Mal-ladi’s file. Malladi contends that the VA did not send her a confirmation letter to let her know that this had happened. First, sending Malladi a confirmation letter was not a requirement according to the terms of the agreement, and thus not sending one is not a breach of the agreement. Even if sending a confirmation letter was a requirement, it is seriously doubtful that not sending one would amount to a material breach because Malladi would still have received essentially what she bargained for. With respect to ¶2^, the evidence is also undisputed that the VA has paid her attorney fees as required by the agreement. There was a seven-month delay in the payment of the money, but it was paid. If any remedy is appropriate for this delay, it is a claim for any monetary damage Malladi may have suffered, but not a release from her obligations under the agreement. The breach that Malladi alleges of ¶ 2.e, with respect to considering her for the opportunity to serve as acting chief of staff, also does not amount to a material breach of the contract. The uncontradicted evidence indicates that since the date of the settlement agreement, there has been no occasion on which there was a need for an acting chief of staff that required the consideration of service chiefs like Malladi. There was a number of instances in which there was an acting chief of staff after the parties entered into the settlement agreement, but they were all filled by the two deputy chiefs of staff, which appears to be the normal procedure followed by the VA. Only in the absence of the deputies did the VA consider the service chiefs to fill in. Thus, there is no indication that the VA did not do what it agreed to do, which was give Malladi good faith eonsider-ation should the need arise for an acting chief of staff. Therefore, there does not appear to have been any breach of H2.e, much less a material breach. The breach that Malladi alleges of ¶ 2.d, with respect to the VA providing her with the opportunity for management training, also does not amount to a material breach. The evidence is clear that Malladi has not attended any management training. She was presented with information about two different management training sessions, but this information was provided as part of the normal circulation of information the VA makes to all its service chiefs; no special effort was made to give special notice to Malladi. This may well constitute a breach of the agreement, but it definitely does not warrant the penalties that go along with a finding of a material breach; this breach can be easily cured by compelling the VA to fulfill its obligation. In its ruling, the EEOC determined that there had been a breach of the agreement with respect to this paragraph, and ordered that the VA comply with its obligation. The court agrees with this finding and order by the EEOC and finds that a breach of this sort does not amount to a material breach calling for a release of Malladi from her obligations. Malladi may well be entitled to damages for any harm caused her by the failure to provide management training, or to an order for specific performance, but that is best pursued in a separate suit based on the contract. With respect to all the foregoing allegations, Malladi is not without relief. She can always bring a separate suit for enforcement of the contract or for damages for any breach. This is the appropriate procedure for redressing a breach of a contract, which is what Malladi has created with the VA by entering into a settlement agreement. Finally, the breach alleged by Malladi of ¶ 2.h, with respect to providing her with a non-discriminatory work environment, does not justify a release of her obligations under the settlement agreement. In this case, as discussed below, the court finds that Malladi has failed to state a claim on any of her subsequent allegations of discrimination, so there has been no breach of this contract term. Moreover, even if Malladi had successfully alleged a subsequent allegation of discrimination, contract terms, such as ¶ 2.h, cannot form the basis of a release because of several difficulties they pose. First, as a practical matter, the use of such a contractual term creates an on-going threat of invalidation of the contract for one party that never ends, and never allows for a complete execution of the contract. The practical- difficulty is that the contract is never certain, and the underlying claims are always subject to being reopened and litigated. The court cannot continually revisit these claims in perpetuity with the everpresent possibility that it is going to have to litigate them. Second, a contract term such as this is generally disfavored in contract law because it allows one party to gain unfair advantage by using as consideration a legal obligation it already has and cannot escape even in the absence of an additional contract. In re Lloyd, Carr & Co. 617 F.2d 882, 890 (1st Cir.1980); see also Start v. Apple Computer, Inc., Civ. no. C95-20149 PVT, 1996 WL 161630, at *3 (N.D.Cal. March 29, 1996) (“Apple’s promise not to discriminate is a preexisting legal obligation. Apple is already legally obligated to fulfill a duty not to discriminate under federal and state law.... As such, Start is legally entitled to nondis-eriminatory, nonretaliatory treatment even in the absence of a written or oral contract. Further, Apple suffers no additional detriment in performing its legal obligation. Accordingly, Apple’s promise to perform its preexisting duty is not legal consideration, and Start’s breach of contract claim under her first theory fails.”). The reasoning is that the party under the legal obligation can take unfair advantage of the other party by getting additional benefit for doing something it is already obliged to do by law. See In re Lloyd, 617 F.2d at 890 (“The policy underlying this rule is to discourage parties under [preexisting legal] duty from using the threat of nonperformance to extort greater compensation for doing only that which they were already obligated to do.”). A term like this is also troublesome to the court because it imposes additional punishment on the party under the legal obligation for breaching its duty, when the law has already directed the redress that is appropriate. Such an arrangement makes the additional contract seem unnecessary and unfair. Finally, the law is not silent on these matters, and directs the process for dealing with claims of discrimination arising after parties have entered into a settlement agreement. In 29 C.F.R. § 1614.504(c), which covers compliance with settlement agreements and the processes for dealing with non-compliance, the regulations provide, in relevant part, that “[ajllegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate charges under § 1614.104 or § 1614.204, as appropriate, rather than under this section.” Malladi has filed individual EEO charges for all the discrimination she alleges she has suffered. The 'effect of allowing her to bring both EEO charges and to seek release from her obligations under the settlement agreement is to allow her to double-dip — that is, it will allow her to get double benefit for any particular act of discrimination. The court cannot allow her to receive this double benefit. Looking at the agreement as a whole, Mal-ladi did receive the benefit she expected under ¶¶ 2.a, 2.b, 2.c, 2.e, 2.f, 2.g, and 2.1 There may have been a breach of ¶ 2.d, but the appropriate relief for this breach is an action for damages or specific performance, and not release from all obligations under the contract. Finally, the court does not find any violations of ¶2.11, but even if it did, such violations can be redressed by the existing anti-discrimination law, and the court will not sanction a view of this term that allows for perpetual review of the contract, unfair advantages to the parties to the contract, and double-dipping for one of the parties. Considering .the foregoing, the court finds that there has not been a material breach of the settlement agreement, and that Malladi is not entitled to be released from her obligations under that contract and to litigate the claims resolved in the settlement agreement. Consequently, any claims Malladi has with respect to her first seven EEO charges will be dismissed. B. Claims of Disparate Treatment Based on Race, Sex, or National Origin Title VII prohibits discrimination in employment on the basis of race, sex, or national origin. 42 U.S.C.A. § 2000e-2 (a)(1). In this case, Malladi does not attempt to show that she was discriminated against by way of direct evidence, but rather by way of circumstantial evidence. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases” based on circumstantial evidence. St. Mary’s Honor Ctr., v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746, 125 L.Ed.2d 407 (1993). Under the McDonnell Douglas approach, a plaintiff has the initial burden of establishing a prima-facie ease of unlawful discrimination by a preponderance of evidence. St. Mary’s, 509 U.S. at 506, 113 S.Ct. at 2746-47. A prima-facie case requires “evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). The prima-facie case of disparate treatment based on race, sex, or national origin is established when an employee shows that an employer simply treats some people less favorably than others because of their race, sex, or national origin. United States v. Crosby, 59 F.3d 1133, 1135 (11th Cir.1995) (citing Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11th Cir.1994)). Under the Title VII framework set forth in McDonnell Douglas, the “[establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the defendant to show that the adverse employment actions were taken for a “legitimate, nondiscriminatory reason.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. As the Supreme Court has explained, the defendant’s burden is one of production only, not persuasion. St. Mary’s, 509 U.S. at 510-11, 113 S.Ct. at 2749. Once a defendant has articulated a nondiscriminatory reason, the presumption in favor of the plaintiff has been rebutted and disappears. Id. The disappearance of the presumption, however, does not compel summary judgment in favor of a Title VII defendant. The “ultimate question” remains the same: whether the plaintiff can persuade the trier of fact that she has been the victim of intentional discrimination. Id. at 508, 113 S.Ct. at 2747-48. “Where the defendant meets this burden, the plaintiff has the opportunity to demonstrate that the defendant’s articulated reason for the adverse employment action is a mere pretext for discrimination.” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.1997) (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825). “This demonstration merges with the plaintiffs ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Holifield, 115 F.3d at 1565. In the summary judgment context, “[t]he burden to avoid summary judgment is not to show by a preponderance of the evidence that the reasons stated were pretext.... The only issue to be considered by the judge at summary judgment is whether the plaintiff’s evidence has placed material facts [relating to the issue of pretext] at issue.” Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 921 (11th Cir.1993). 1. Statements by Subordinate Employees In her eleventh EEO charge, Malladi claims disparate treatment because of her race, sex; or national origin based on comments made by her subordinate employees to the EEO counselor investigating her ninth EEO charge. Malladi alleges that the employees’ statements were inaccurate with respect to her workload and interpersonal skills, and that they had the effect of changing her work environment and ultimately leading to her reassignment. For this claim, Malladi is unable to make out the prima-facie case of disparate treatment. For any discriminatory act to be actionable under Title VII, it must have been perpetrated by an employer or his agent. 42 U.S.C.A. § 2000e(b). Even construing the term ‘agent’ liberally, such a person must still be endowed with the traditional rights of the employer, such as the right to hire and fire the employee. Garcia v. Elf Atochem N.A., 28 F.3d 446, 451 (5th Cir.1994) (“Under this liberal construction, immediate supervisors axe Employers when delegated the employer’s traditional rights, such as hiring and firing”) (emphasis removed); see also Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir.1986) (construing the term employer to include immediate supervisors only when they “participated in the decision-making process that forms the basis of the discrimination”). It is therefore clear that “[t]here can be no liability under Title VII ... ‘for the actions of mere co-workers’” Garcia, 28 F.3d at 451 (quoting Harvey v. Blake, 913 F.2d 226, 228 (5th Cir.1990)). In this case, the employees, who Malladi alleges have perpetrated discrimination against her, do not fall within the definition of employer under Title VII. These employees do not perform any traditional employer functions, and, in fact, perform no functions that can impact the terms and conditions of Malladi’s employment; they are her subordinates. In addition, Malladi does not allege that the VA in any way acted through these employees to perpetrate its discriminatory end, but only that their comments- were significant in a change in her work environment and were considered in the final actions by the VA that led to her reassignment. Even if; this were ■ true, it would, fail to show a discriminatory motive at the time the employees’ comments were made, thus eliminating any inference that the actions were motivated by Malladi’s race, sex, or national origin. Because Malladi cannot state a pri-ma-faeie case-on this claim, judgment will be entered against her on it. 2. Failure to Allege a Similarly-Situated Non-Minority Person ■ The remainder of Malladi’s disparate-treatment claims based on race, sex, and national origin are without merit, first, because the non-minority person whom she names for comparison is not similarly-situated, or, second, because she fails even to name a. person for comparison. a. Inadequate Person Alleged For a number of her claims of disparate treatment, Malladi has alleged a person to whom she says she is similarly-situated. Under the prevailing standards, however, these individuals do not qualify. To allege disparate treatment, Malladi must show that she was treated less favorably than a similarly-situated non-minority person. Holifield, 115 F.3d at 1562 (citing Coutu v. Martin County Bd. Of County Comm’rs, 47 F.3d 1068, 1073 (11th Cir.1995)). “To make a comparison of the plaintiffs treatment to that of nonminority employees, the plaintiff must show the [she] and the employees are similarly situated in all relevant respects.” Holifield, 115 F.3d at 1562 (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir.1994); Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir.1992) (“[T]o be deemed ‘similarly-situated’, the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the'same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.”); Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir.1985)). “In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Holifield, 115 F.3d at 1562 (citing Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994)). The simple allegation that there was someone else, without an adequate showing that she is similarly-situated in all relevant respects, fails to make out the prima-facie case. i. In the first allegation in her twelfth EÉO charge, Malladi claims that she received disparate treatment because of her race, sex, or national origin as a result of inappropriate treatment by Kahane relating to her management of subordinate employees in two incidents in her service involving patient abuse and financial dealings with a patient. For this claim, Malladi has failed to make a showing that she was treated less favorably than a similarly-situated non-minority person. Malladi alleges that she received less favorable treatment than Associate Medical Center Director Rollins, who knew about the financial dealings, but against whom no action was taken. The comparison of Malladi with Rollins fails because the evidence produced shows that they were not similarly situated. Rollins does not fall in the management structure above the employees in question, where he would have had an obligation to investigate the wrong-doing alleged against them, nor below Kahane, where he would have had an obligation to report his knowledge to someone who was not his boss. Malladi, on the other hand, fills a position directly above the employees, whose actions she is responsible for supervising, and directly below Kahane, who, as the chief of staff, should be informed by her of such events. Considering the differences in their positions, one could not reasonably expect that Rollins would be treated the same as Malladi. The mere fact that he knew about the events does not suggest that he should be treated similarly to Malladi for failing to act on the information because his responsibilities at the hospital were different. Rollins and Malladi are not similarly situated, and Malladi has not alleged any evidence about .other similarly-situated persons being treated more favorably than her. Because Malladi cannot make out the prima-facie case for disparate treatment, this claim is without merit. ii. In the fourth allegation in her twelfth EEO charge, Malladi claims that she received disparate treatment because of her race, sex, or national origin as a result of an unfair and inappropriate request for a site visit. The focus in this claim is on the VA’s request for the site visit, not its reaction to or use of the findings from the visit; these latter issues are raised in Malladi’s thirteenth EEO charge. For this claim, Malladi has not presented any clear evidence about who, if anyone, was in a similar position to her, and was having similar difficulties to those alleged against her, but was not subjected to a site visit. It is alleged by the VA that the site visit was requested because of Malladi’s (1) refusal to accept management decisions, (2) failure-to cooperate with management, (3) bad relations with subordinates, and (4) workload disputes. The only person mentioned who appears to bear any resemblance to Malladi is Thomas E. Kondrak, Chief of Recreation Service. Kondrak had a complaint lodged against him on May 27,1993, by a number of his employees who sought his removal. However, a site visit was ordered upon this complaint and other issues relating to the operation of his service and its interaction with other services, and it took place on July 1 and 2, 1993. If anything, this evidence shows that Malladi was treated the same as a similarly-situated non-minority person, not less favorably. In her reply brief, Malladi states that the comparison with Kondrak is meant to show that he “received significant employee complaints about his conduct, and he remained in his position.” Perhaps this is true, but it is inapposite to this charge, because this charge is based on the request for a site visit, not the VA’s reaction to or use of the findings from the visit. With regard to the request for a site visit, Malladi was treated the same as the only similarly-situated person identified. Therefore, Malladi cannot make out the prima-facie case for this claim, and it is thus without merit. iii. In the first, third, and fourth allegations in her thirteenth EEO charge, Malladi claims that she received disparate treatment because of her race, sex, or national origin as a result of her being detailed out of PM & RS to Ambulatory Care Service on January 19, 1996; the site visit team’s report being biased and unfair and targeting Dr. Malladi as the chief of PM & RS and as a physiatrist; and a reduction in her pay for her reassignment to a staff physician position in Ambulatory Care Service, which was not a reduction in base'pay, but the loss of an increase given to her for serving as a service chief. Malladi attempts to compare her treatment in these matters to Kondrak, but his situation is not sufficiently similar to make an adequate comparison. As discussed in the previous section, Kond-rak had complaints registered against him by his subordinate employees, and had a site visit conducted of his service. When the site visit team reviewed his service, however, it gave some suggestions for improvement, but did not recommend that he be detailed from his service chief position to another job within the hospital. In addition, there is no indication that the site visit was called for the same reasons, which makes it impossible to determine if Kondrak and Malladi are similarly situated. In light of these facts, and in the absence of more evidence, this is not enough. The simple fact", by itself, that Kondrak had a site visit will not suffice. With the evidence Malladi has presented, different treatment of the two could easily be expected from the VA, and thus she cannot make out a prima-facie case of disparate treatment. Consequently, these claims are without merit. The court finds it appropriate to add a point of admonishment here for Malladi. In the her reply brief, while attempting to demonstrate the similarities between herself and Kondrak, Malladi quotes phrases from Kond-rak’s site visit team report out of context and thus gives the wrong impression of the conclusions the site visit team reached. In her brief, Malladi indicates that the site visit team made reference to the “[l]aek of a working environment” in Kondrak’s service, when the report, in its entirety, identifies a “[l]ack of a working environment that empowers employees to be creative in the delivery of direct patient care programs.” This is a substantially narrower criticism than Malladi attempts to suggest. Malladi also points to the “poor working relationship” between Kondrak and another service chief, but neglects to mention that the substantial majority of the criticisms about the “poor working relationship” are directed at the other service chief and not Kondrak. If this is the approach Malladi needs to take to draw the comparison between herself and Kond-rak, the court is even more convinced of the lack of actual evidence of the similarity, iv. In the second and seventh allegations in her thirteenth EEO charge, Malladi claims that she received disparate treatment because of her race, sex, or national origin, first, as a result of a meeting held by Clay and Kahane in which they informed the PM & RS staff that she had been detailed to another service before Malladi herself was notified, and, second, as a result of Kahane’s actions that caused the keys to the chief of PM & RS office and government scooter to be taken away from Malladi on January 19, 1996, the same day she Malladi was detailed. Malladi alleges that there was a quality control manager, named Jeff Reiter, who was detailed, whose staff was not informed beforehand, and.whose keys were not taken away so quickly, but this is all the information she provides. Malladi indicated that she did not know the circumstances surrounding the informing of Reiter’s staff or his detail, and specifically, that she had no idea if Reiter was out sick at the time his staff was to be informed, like Malladi was. Malladi also fails to allege adequate information to help the court compare Malladi to Reiter with respect to the taking of her keys. The court has no idea where Reiter fell in the management structure, who was responsible for informing his staff of his detail, or who was responsible for taking away his keys. Without more information, Reiter cannot qualify as a similarly-situated person adequate to serve as a person to whom Malladi can be compared. This claim is therefore meritless. v. In the fifth allegation in her thirteenth EEO charge, Malladi claims that she received disparate treatment because of her race, sex, or national origin as a result of Kahane’s authorizing Malladi’s former subordinate staff physiatrist to countersign her consultations, contrary to medical staff bylaws. Malladi alleges that a Dr. Pat, who was a neurologist who also did some work in surgery, was not required to have his consultations countersigned in surgery. Malladi’s own testimony indicates, however, that there was no other neurologist who worked in surgery who could countersign his consultations; he was the only neurologist working there. Dr. Pat is, therefore, not an adequate person to whom Malladi can be compared. Beyond Dr. Pat, Malladi does not indicate any other persons who were in a similar situation to hers — that is, working in a service where they were not assigned, but had clinical licensing to practice in the area of medicine. In the absence of more information, this claim is meritless. b. No Person Alleged Malladi also has a number of claims where she does not name any other person to whom she can be compared. These claims are: the second and third allegations in her twelfth EEO charge, where Malladi claims that Clay made unreasonable delays in responding to Malladi’s written request for an EEO counselor’s report, and that there was an inappropriate referral on November 7, 1995, of her charges to the VA Central Office for procedural review; the sixth allegation in her thirteenth EEO charge, where Malladi also alleges that Clay inappropriately referred EEO cases filed by Malladi since August 1995, including January 2 and 22, 1996, for procedural review; and the eighth allegation of her thirteenth EEO charge, where Kahane gave Malladi a proposed memorandum of admonishment on February 16, 1996, and a subsequent memorandum or admonishment. For all of these claims, Malladi has failed to allege any person who is similarly-situated to herself. In order to make out the prima-facie case of disparate treatment, Malladi must make this showing, or the court has no adequate person to whom it can compare her to see if she received disparate treatment. Because she has failed to allege such a person, these claims are meritless. C. Claims of Disparate Treatment Based on Handicap In each of the claims where Malladi alleges disparate treatment because of her race, sex, or national origin, Malladi also alleges that she received disparate treatment because of her handicap, in violation 'of the Rehabilitation Act. In evaluating some claims of disability discrimination that are supported by circumstantial evidence, as Malladi’s claims are, the court uses the burden-shifting framework set forth in McDonnell Douglas, and the eases that follow it, as an analytical guide. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir.1994); see supra § III.B. The first stage of the framework requires that Malladi come forward and make out the prima-facie case of disparate treatment. To make out a prima-facie case of disparate treatment under the Rehabilitation Act, Malladi must show: (1) she is a “disabled person” under the Act; (2) she is “otherwise qualified” to perform her job; (3) she was treated differently from a similarly situated non-disabled person; and (4) her employer is a recipient of federal financial assistance. Maddox v. University of Tennessee, 62 F.3d 843, 846 (6th Cir.1995); see also Heilweil, 32 F.3d at 722. Once Malladi has made out the prima-facie case, this creates a presumption that she suffered disparate treatment and shifts the burden to the VA Secretary. In the second stage of the framework, the VA can defeat the presumption of discrimination by coming forward with a legitimate, non-discriminatory reason for the actions it took. The burden for the VA Secretary is one of production only, and not persuasion. Once the Secretary has presented this evidence, the presumption disappears, and the burden shifts back to Malladi to show that the VA Secretary’s reason is a pretext for discrimination and that she was truly the victim of disparate treatment, which is the burden borne by Malladi at all stages. Elements one, two, and four of the prima-facie case are not disputed by the VA Secretary. The Secretary does not contest that Malladi is a handicapped or disabled person under the Act, that she is “otherwise qualified,” or that her employer is a recipient of federal financial assistance. The VA Secretary contends that there are only two allegations made by Malladi in all of her EEO charges where there is even a question that Malladi received disparate treatment because of her disability — Ka-hane’s completion of her “appraisal of applicant” form (as alleged in her first EEO charge) and the request for the return of the keys to the government scooter (as alleged in her thirteenth EEO charge). Although there are numerous other allegations in Malladi’s first, eleventh, twelfth, and thirteenth EEO charges, she does not contend in any of her responses to the motion for summary judgment that any of the others raise issues where Malladi was discriminated against because of her disability. The court, therefore, must conclude that Malladi cannot make out her prima-facie of discrimination under the Rehabilitation Act, and all such claims are meritless. As for the allegation that the VA discriminated against Malladi because of her disability by Kahane’s completion of her “appraisal of applicant” form, that allegation is covered by the settlement agreement entered into by the parties on March 30, 1995. The court has already determined that this claim must be dismissed because there was no material breach of that agreement. Malladi’s claim regarding the return of the keys to the government scooter is frivolous. The uncontradicted evidence shows that Malladi returned the key to her scooter along with her other keys when she was detailed from PM & RS on a Friday, and that the following Monday, when she requested that the key be returned to her, it was returned immediately. There is no evidence that the key to the scooter was asked for specifically or that it was asked for in anything but the normal course of asking for keys to be returned when they are no longer needed. Any suggestion to the contrary is belied by the fact that almost immediately upon request, the key was returned to Malla-di. And beyond that, Malladi was only without the scooter key for two days- — over a weekend — and there was not even any allegation that the scooter was needed during the time Malladi did not have its key. This claim is meritless. D. Retaliation Claims Malladi makes allegations of retaliation in all six of the EEO charges being considered by the court in this order. Title VII provides protection against retaliation for those who oppose discrimination or participate in Title VII processes. In evaluating claims of retaliation that are supported by circumstantial evidence, as Malladi’s claim are, the court uses the burden-shifting framework set forth in McDonnell Douglas, and the cases that follow it, as an analytical guide. Meeks v. Computer Assoc. Int’l, 15 F.3d 1013, 1021 (11th Cir.1994); see supra § III.B. The first stage of the framework requires that Malladi come forward and make out the prima-facie case of retaliation. To establish a prima-facie ease of retaliation, Malladi must show that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse job action; and (3) there is a causal relationship between (1) and (2). Meeks, 15 F.3d at 1021. “To recover for retaliation, the plaintiff ‘need not prove the underlying claim of the discrimination which led to [her] protest;’ however, the plaintiff must have had a reasonable good faith belief that the discrimination existed.” Holifield, 115 F.3d at 1566 (quoting Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir.1989)). Once Malladi has made out the prima-facie case, this creates a presumption that she suffered retaliation and shifts the burden to the VA Secretary. In the second stage of the framework, the VA Secretary can defeat the presumption of retaliation by coming forward with a legitimate, non-retaliatory reason for the actions it took. The burden for the VA Secretary is one of production only, - and not persuasion. Once the VA Secretary has presented this evidence, the presumption disappears, and the burden shifts back to Malladi to show that the VA Secretary’s reason is a pretext for retaliation and that she was truly the victim of retaliation, which is the burden borne by Malladi at all stages. In this case, there is no dispute that Malladi engaged in protected activity— that is, she filed EEO charges. To show that she suffered an “adverse job action,” Malladi must demonstrate that the job action affected “a term or condition of employment and [the job action] is not adverse merely because the employee dislikes it or disagrees with it.” Perryman v. West, 949 F.Supp. 815, 819 (M.D.Ala.1996). The contours of what constitutes a “term or condition of employment” are not well developed in this circuit, but Wu v. Thomas, 996 F.2d 271 (11th Cir.1993), indicated that it ipust be something like a loss of salary, benefits, or position. Id. at 273. Not all employment actions are actionable under Title VII. Id.; see also Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981) (“[T]here are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions ... of Title VII.”). Other circuits follow this general approach. See, e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997) (“ ‘Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.’ ‘Ultimate employment decisions’ include acts ‘such as hiring, granting leave, discharging, promoting, and compensating.’ ”) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995)); Jeffries v. State of Kansas, 946 F.Supp. 1556, 1567 (D. Kan. 1996) (“Although adverse job actions cover more than quantifiable losses of salary or benefits, ‘not everything that makes án employee unhappy is an actionable adverse action.’ Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). To be actionable, the adverse employment action must be ‘material:’ ‘[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.’ Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.1996) (quoting Crady v. Liberty Nat’l Bank & Trust, 993 F.2d 132, 136 (7th Cir.1993)).”). In analyzing an adverse employment action, it should be noted that “an adverse employment action does not, however, have to be an immediate economic injury. Some courts in addressing the issue of retaliation have identified a ‘range of acts as adverse, based upon the scope of their consequences.’ Boyd [v. Brookstone Corp. of New Hampshire, 857 F.Supp. 1568, 1572 (S.D.Fla.1994) ]. A term or condition of employment may be said to have been affected if there is a ‘demonstrable adverse impact on future employment opportunities or performances.’ Fortner [v. State of Kansas, 934 F.Supp. 1252, 1266 (D. Kan. 1996) ].” Perryman, 949 F.Supp. at 819. For proof of the causal link, the plaintiff “merely has to prove that the protected activity and the negative employment action are not completely unrelated,” EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993), but the employee “must at least estáblish that the employer was actually aware of the protected expression at the time the employer took adverse employment action against the plaintiff.” Holifield, 115 F.3d at 1566 (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). 1. Failure to Allege an Adverse Job Action In the six EEO charges being considered by the court in this order, Malladi has made twelve allegations of retaliation that fail to meet the very minimum requirements to make out a prima-faeie case of retaliation. In order to make out the prima-facie case of retaliation