United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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).
Before the Court on the Motion
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.
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.
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. 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.
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.
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,  Meredith claims that the
following conduct shows continued discrimination, constituted
retaliation, and created a hostile work environment:
Change in Tour of Duty - July 9, 2009
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
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.
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
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.
Martinez Confrontation - July 20, 2009
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. 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.
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.
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.
August 5, 2009, Meredith was informed that a reprimand had
been proposed for her disrespectful conduct toward Martinez.