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Vargo v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

August 1, 2016

CITY OF ST. LOUIS, Defendant.



         This employment discrimination matter is before the Court on Defendant’s motion for summary judgment (Doc. No. 32). Plaintiff responded to the motion (Doc. No. 37), and Defendant replied (Doc. No. 41). For the reasons set forth below, Defendant’s motion will be granted.


         Plaintiff Magdalena Vargo was employed from 1987 through May 2010 by the City of St. Louis, where she worked as a Zoning Specialist before being promoted in 2000 to Lead Zoning Specialist. (Doc. No. 38 at 1.) The City of St. Louis’s zoning section is responsible for approving building and occupancy permits for individuals and businesses in the city. Id.

         Since 2002, Plaintiff’s immediate supervisor was Mary Hart Burton, the Zoning Administrator. Plaintiff had served as acting Zoning Administrator prior to Burton’s taking over the position, and testified that she believed herself more qualified for the Zoning Administrator position when it was awarded to Burton. (Vargo Dep., August 28, 2012, 170:16-171:9.) Burton had a bachelor’s degree in architecture and a master’s degree in city planning. Plaintiff held an associate’s degree, but not a bachelor’s degree. (Doc. No. 38 at 1-2.)

         During her employment with Defendant, Plaintiff’s job performance was not without incident. In 2004, Burton noted on Plaintiff’s performance rating that Plaintiff needed to improve her customer service skills following a complaint received about Plaintiff by the mayor’s office. (Doc. No. 38 at 8.) Although the parties dispute the details of the interaction, Burton testified that she felt that Plaintiff’s behavior when approached about the complaint was disrespectful and threatening. In 2006, Burton received at least one additional customer complaint about Plaintiff, and held a counseling session with Plaintiff to address the complaint. Id. Burton also directed Plaintiff to take a customer service training class at that time; Plaintiff complained to Burton’s superiors about having to take the class. In 2007, Plaintiff received “unsuccessful” ratings in three of the five areas of evaluation: customer service, judgment, and work quality. (Doc. No. 38 at 9.) Burton’s comments in the evaluation suggested that Plaintiff needed to improve handling customers “politely and professionally.” Id.

         In 2010, as a part of budget cuts, the Lead Zoning Specialist position was eliminated, and Plaintiff was laid off. Plaintiff was 62 years old at the time she was laid off. Thereafter, on June 21, 2010, Plaintiff filed her first Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging she was laid off on the basis of national origin and age, and as retaliation. Plaintiff subsequently filed a lawsuit predicated on her termination, which was tried to a jury in Missouri state court in October 2013, with judgment entered in favor of the City of St. Louis. The judgment was affirmed by the Missouri Court of Appeals in February 2015. Vargo v. City of St. Louis, 456 S.W.3d 99, 100 (Mo.Ct.App. 2015). Also in 2010, following being laid off from her position with Defendant, Plaintiff applied for Social Security Disability benefits on the basis of irritable bowel syndrome, as well as related symptoms and conditions. (Doc. No. 40 at 7.)

         In 2011, the City of St. Louis’s Building Division had an opening for a Plan Examiner position. This position required an undergraduate degree in planning, architecture, engineering, or a related field. The position was to be filled pursuant to the City of St. Louis’s Civil Service Rules, wherein an appointing authority submits a request to the Director of Personnel. (Doc. No. 38 at 3-4; Doc. No. 33-3.) The Director of Personnel then “certifies” a list of the names of the top six qualified candidates, from which the appointing authority fills the vacancy. A Building Division employee who held the Zoning Specialist position and a bachelor’s degree was hired to fill the Plan Examiner position, creating a vacancy for the position of Zoning Specialist. (Doc. No. 38 at 3-4.)

         The City of St. Louis’s Civil Service Rules mandate that persons laid off from a position enjoy the right of certification to the same class of position, should one become available. (Doc. No. 38 at 4; Doc. No. 33-6.) After Plaintiff’s termination in 2010, she had been placed on such a “Reemployment from Layoff” list, and on August 5, 2011, the City of St. Louis sent Defendant a letter informing her she had been certified to the list of six candidates to fill the vacant Zoning Specialist position. (Doc. No. 38 at 5; Doc. No. 40 at 3.) Plaintiff was also asked to set up an interview for the position. In addition to Plaintiff, and by permission of the Department of Personnel, the list of certified candidates for the filled Plan Examiner position was also used for the newly-vacant Zoning Specialist position. Therefore, the certified list of candidates for the Zoning Specialist position included Plaintiff and the five unselected candidates for Plan Examiner. Id. The Zoning Specialist position required either a bachelor’s degree or two or more years of experience working in zoning; Plaintiff was the only candidate on the certified list that did not have a bachelor’s degree in architecture, city planning, engineering, or a related field. Id.

         Burton, as the appointing authority, was allowed to select the candidate that would be offered the Zoning Specialist position. She interviewed all six candidates, including Plaintiff, over the telephone. Id. at 6. She hired Denis Beganovic, a 26 year old male, from the list of certified candidates. Defendant asserts, and Burton testified, that Beganovic was hired because he had experience working with the Regional Planning Group and state Planning Group, had experience with graphic mapping and with holding large public meetings, held a bachelor’s degree in planning from Missouri State University, and was fluent in Bosnian (which would presumably enable him to communicate with St. Louis’s substantial Bosnian population). Id. at 6 (citing Burton’s testimony at Plaintiff’s Missouri state court trial on her previous claims of discrimination; see Doc. No. 33-1 at 265-266). Plaintiff argues that Burton did not hire Plaintiff because Plaintiff was over the age of 60, and because Burton was retaliating against Plaintiff for filing the earlier charge of discrimination. Id. Defendant does not dispute that Burton believed Plaintiff to be qualified for the position at the time of her decision. Id. at 7. However, Defendant also alleges that Burton believed Plaintiff to be difficult to supervise, argumentative, and resistant to the Zoning Section’s movement toward computerization. Id.

         On January 5, 2012, Plaintiff was found to be permanently and totally disabled by an administrative law judge (“ALJ”). The ALJ determined that Plaintiff had been able to perform her past work for the City of St. Louis because of her proximity to restroom facilities, but that her condition had worsened since her employment. (Id. at 10; Doc. No. 33-11.) The ALJ determined that Plaintiff could not maintain competitive employment and that she was “unable to perform any past relevant work.” Id. Plaintiff was awarded Social Security Disability benefits retroactive to April 25, 2010, and agreed in her deposition that the findings of the ALJ accurately described her medical condition. (Doc. No. 38 at 11; Vargo Dep., 87:18-22.)

         In February 2012, Plaintiff submitted another Charge of Discrimination to the EEOC, this time relating to Defendant’s decision to hire Beganovic instead of Plaintiff. The EEOC investigated Plaintiff’s Charge of Discrimination and issued a determination on November 29, 2013, finding reasonable cause to believe that Plaintiff’s allegations regarding age and retaliation discrimination were true.[1] (Doc. No. 39-14.) Plaintiff brought her instant lawsuit on February 23, 2015, in Missouri state court, and it was subsequently removed to federal court pursuant to 28 U.S.C. § 1331. Plaintiff’s suit alleges discrimination based on age and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff also asserted a Missouri state law claim of intentional infliction of emotional distress.


         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-movant, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Metro. Prop. & Cas. Ins. Co. v. Calvin, 802 F.3d 933, 937 (8th Cir. 2015). In opposing summary judgment, a plaintiff may not “simply point to allegations” in the complaint, Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004), or “rest on the hope of discrediting the movant’s evidence at trial, ” Matter of Citizens Loan & Sav. Co.), 621 F.2d 911, 913 (8th Cir. 1980). Rather, the plaintiff “must identify and provide evidence of specific facts creating a triable controversy.” Howard, 363 F.3d at 800 (citation omitted).

         ARGUMENTS ...

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