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Meredith v. McDonald

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

November 10, 2016

ROBERT MCDONALD, Secretary, Department of Veterans Affairs, Defendant.



         Plaintiff Marian Meredith works at the Department of Veterans Affairs (VA) as a radiologic technologist specializing in ultrasounds. She brings this lawsuit against the VA claiming that it discriminated against her in her employment on account of her age and race, and in retaliation for engaging in protected activity. She also claims that the VA subjected her to harassment and a hostile work environment. The VA now moves for summary judgment on all of Meredith's claims. Because the undisputed facts show that conduct of which Meredith complains does not rise to the level of actionable discriminatory conduct, I will grant the motion.


         Plaintiff Marian Meredith is an African-American woman who was over forty years of age at all times relevant to this lawsuit. She began working at the VA in 1999 as a radiologic technologist in ultrasound, CT, and angiography but worked primarily in ultrasound. She continues to work at the VA, exclusively as an ultrasound technologist.

         In March 2008, a new Siemens 64-slice CT scanner was installed at the VA. Siemens provided training on the equipment to permanent and temporary technologists whose primary modality was CT imaging. Amy Martinez, a white woman, was a temporary technologist who trained on the Siemens equipment. She had worked at the VA as a temp tech since 2005, but the VA hired her as a permanent employee in February 2009. Some longtime VA technologists, including Meredith, were not trained on the equipment.

         In early 2009, the supervisor of Nuclear Medicine at the VA asked some technologists if they were interested in taking on the responsibilities of Special Imaging supervisor, a position which had recently become vacant. There was no increase in pay associated with these additional responsibilities. The position oversaw ultrasounds, CT, and angiography. After a number of technologists declined, Martinez was asked and she accepted. Meredith was not asked if she was interested in the position. Martinez, who was thirty-one years old, became acting supervisor on March 6, 2009. Meredith was fifty-six years old.

         Meredith complained to her union of being passed over for the acting supervisor position and, in April 2009, she initiated contact with an EEO counselor regarding the matter. She thereafter began experiencing unwelcome remarks and unpleasant conduct at work. She filed a formal complaint of discrimination on July 31, 2009, alleging race and age discrimination in relation to the acting supervisor position. She also claimed that she had been retaliated against for filing an EEO complaint. On November 25, 2009, Meredith amended her EEO complaint to include an additional claim relating to proposed disciplinary action.

         Eighteen months after being appointed acting supervisor, which included supervisor training, Martinez applied for and was promoted to a permanent supervisory position. This permanent position included an increase in pay. Meredith did not apply for the permanent position because she did not have the required training.

         Meredith pursued her claims of discrimination and retaliation through the EEO process and obtained a Final Agency Decision on March 5, 2013. Her appeal of the decision was denied on October 8, 2014, and her request for reconsideration was denied on March 27, 2015. She brought this lawsuit on June 25, 2015.

         In this action, Meredith claims that she was subjected to adverse employment action on account of her age, in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (ADEA); on account of her race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (Title VII); and in retaliation for engaging in protected conduct, in violation of Title VII. She also claims that she was subjected to harassment and a hostile work environment on account of these factors, in violation of Title VII and the ADEA.

         The VA moves for summary judgment, arguing that Meredith cannot make a prima facie case of discrimination on any of her claims and, further, that any action it took was based on legitimate nondiscriminatory reasons. I will grant the motion.

         Summary Judgment Standard

         Summary judgment must be granted when the pleadings and proffer of evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “There is no ‘discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial.” Torgerson, 643 F.3d at 1043.

         Initially, the moving party must demonstrate the absence of an issue for trial. Celotex, 477 U.S. at 323. Once a motion is properly made and supported, the nonmoving party may not rest upon the allegations in her pleadings or in general denials of the movant's assertions, but must instead come forward with specific facts showing that there is a genuine issue for trial. Id. at 324; Torgerson, 643 F.3d at 1042. I must view the facts in the light most favorable to the nonmoving party, “but only ‘if there is a genuine dispute as to those facts.'” RSA 1 Ltd. P'ship v. Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Torgerson, 643 F.3d at 1042 (internal quotation marks and citations omitted).

         Evidence Before the Court on the Motion

         At all times relevant to Meredith's complaint, Dr. Barbara Sterkel was Chief of Diagnostic Imaging Services at the VA and was Meredith's second-line supervisor. Bob Adams was the supervisor of Nuclear Medicine at the VA. He has never had any supervisory authority over Meredith in Radiology, but he sometimes helped the Radiology supervisor. When Martinez became acting supervisor of Special Imaging in March 2009, she became Meredith's immediate supervisor.

         When the Special Imaging supervisor position became vacant in early 2009, Adams asked some VA technologists if they would be interested in taking on additional duties to cover the supervisor's position. Adams was advised that the problems that needed to be addressed in the department were CT-related problems, so he directed his inquiry to full-time CT technologists. Adams did not ask Meredith if she was interested in volunteering for the supervisory position. He was aware that Meredith had performed some work in CT but that she primarily worked as an ultrasound technologist.

         Three CT technologists declined Adams' offer to take on supervisory duties. Martinez accepted the offer. At the time, Martinez was a full-time CT technologist and had worked with the new Siemens CT. Meredith asserts that only two technologists were offered the acting supervisor position before the offer was extended to Martinez - Randy Karfs, a white ultrasound technologist; and Dennis Moynihan, a white CT technologist.[1] Meredith points to no admissible evidence to support this assertion. Meredith contends that she and James Love should have been offered the position, given that they had seniority over Moynihan and Martinez.

         Love, an African-American CT technologist under the age of forty, testified at Meredith's EEOC hearing that he could not recall whether he was offered the position, but he was not interested in taking on the job. Karfs testified that he was not offered the position.[2]

         Meredith initiated EEO contact in April 2009 and complained that she was not considered for the supervisory position because of her age and race. After making this complaint, Meredith began experiencing unwelcome remarks and was subject to unpleasant conduct and disciplinary action. While none of the remarks involved Meredith's age or race, [3] Meredith claims that the following conduct shows continued discrimination, constituted retaliation, and created a hostile work environment:

         1) Change in Tour of Duty - July 9, 2009

         Meredith primarily worked at the VA's St. Louis location, and her tour of duty, i.e., her shift, was from 7:00 a.m. to 3:30 p.m.

         Beginning in 2000 or 2001, ultrasound services were offered approximately once a month at the Jefferson Barracks (JB) location. Meredith volunteered to be the ultrasound technologist at JB because no one else wanted this assignment. Her hours at JB were from 7:00 a.m. to whenever she finished, which was usually around noon. She would then take leave for the remainder of the day. The frequency of services at JB eventually increased and, by 2009, Meredith worked at the JB location every Thursday.

         Beginning July 9, 2009, the JB assignment was rotated through three ultrasound technologists in order to include a new technologist who had recently begun working at the VA.[4] This resulted in Meredith working at the JB location every third Thursday instead of every Thursday as before. When Meredith worked at the St. Louis VA on Thursdays, her shift was from 8:00 a.m. to 4:30 p.m.

         2) Martinez Confrontation - July 20, 2009

         When Meredith was leaving the VA at the end of her shift on July 20, 2009, she noticed an open scanning room. She went in to turn off the lights and close down the room. Martinez and Dan McCallum, a quality assurance specialist, were in the room, performing a CT scan on a patient. When Meredith came into the room, Martinez told her that she would be on call that evening beginning at 5:00 p.m. instead of at 8:00 p.m. Meredith questioned why she had not been told earlier about this schedule change and asked if she would have to relieve Martinez. Meredith admits that she and Martinez then “went back and forth” after which McCallum intervened and told them to calm down given that a patient was in the room.[5] Martinez sat down and resumed scanning the patient. Meredith continued to question Martinez regarding what she was expected to do, but Martinez did not respond. McCallum then told Meredith to leave the room.

         Although Meredith left the scanning room, she remained at the VA and continued to work because another patient was scheduled to be scanned. After Meredith processed the patient, Martinez took the patient to the scanning room to continue in the preparation and to perform the scan. After Martinez completed the scan, Meredith left the VA and went home.

         Since Meredith exceeded her scheduled shift by over two hours, she put in for compensatory time the following day. Both Martinez and Dr. Sterkel denied the request. An administrator eventually approved Meredith's request.

         On August 5, 2009, Meredith was informed that a reprimand had been proposed for her disrespectful conduct toward Martinez.

         3) Resident ...

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