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Gafford v. McDonald

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

December 15, 2016

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



         This matter is before the Court on cross-motions for summary judgment filed by Defendant Robert A. McDonald (Doc. 35) and Plaintiff Terry Gafford (Doc. 39). The motions are fully briefed and ready for disposition. For the following reasons, Defendant's motion for summary judgment will be granted, Plaintiff's motion for summary judgment will be denied, and judgment will be entered in favor of Defendant.

         I. Background

         The following facts are undisputed except where indicated.[1] On March 29, 2009, Plaintiff, an African-American man, started a one-year probationary term of employment as an Education Program Specialist with the Employee Education System (“EES”) of the Department of Veterans Affairs (“VA”) (Doc. 41 (Defendant's Reply to Plaintiff's Response to Defendant's Statement of Uncontroverted Facts) at ¶3). At all relevant times, Plaintiff's first-level supervisor was Mary Fakes (Id. at ¶4).

         Plaintiff was assigned to a group of employees named “VISN 11, ” which was comprised of Plaintiff; Lisa Goldstein, an Education Service Representative (“ESR”) who was the team leader; and Cherie Bolden, a Program Support Assistant (“PSA”) who provided the team support (Id. at ¶¶18, 25). Fakes also supervised another group of employees called “VISN 15” of which Jen Shearon, an ESR; Jeff Rainey, an Education Program Specialist; and Deborah Ray, a PSA, were members (Id. at ¶¶25, 62, 64; Doc. 36.22).

         On June 29, 2009, Fakes rated Plaintiff at “fully successful or better” on his 90-day performance review, which required her to assess, inter alia, whether Plaintiff's “[r]elationships with supervisors, co-workers, and others within the organization [were] consistently courteous and cooperative in nature and contribute[d] to the effective operation of the work unit and team function” (Doc. 38.11). Fakes's appraisal did not allege that Plaintiff had engaged in inappropriate behavior or communications with other EES employees (Id.).

         On July 28 and 29, 2009, employees of VISN 11 and VISN 15 participated in an off-site, team-building retreat (Doc. 41 at ¶¶24-25). During the retreat, the employees discussed rumors that Fakes had been hiring her friends and former co-workers for positions at EES and that some EES employees were afraid of Fakes (Id. at ¶26). On August 13, 2009, several employees of VISN 11 and VISN 15 attended an after-work going-away party for a departing EES employee. During the party, some of the employees discussed the rumors regarding Fakes's hiring practices and their belief that she was showing favoritism to her friends and former co-workers (Id. at ¶28).

         On August 14, 2009, Plaintiff met with Fakes and informed her that his co-workers had expressed concern that she was showing favoritism to her friends by hiring them to work at EES. He did not identify the co-workers who had voiced concern, and he did not allege that Fakes had violated Title VII or that she had been discriminating against EES employees or applicants on the basis of their race, national origin, or religion (Docs. 36.2 at 13-16; 36.13 at 7-10; 41 at ¶¶31-35).[2]

         In August 2009, Wayne Surratt became Plaintiff's second-level supervisor (Doc. 41 at ¶48). Plaintiff's employment with the VA was terminated on October 22, 2009; the effective date of his termination was November 7, 2009 (Id. at ¶6). A termination memorandum from Surratt to Plaintiff, dated October 22, 2009, stated the following as the basis of Plaintiff's termination:

On May 6, 2009, [Fakes] verbally counseled you regarding your inappropriate behavior and communications with fellow employees. On May 18, 2009, [Fakes] had a follow-up conversation with you to address inappropriate communications with fellow employees. On June 29, 2009 you were again verbally counseled for inappropriate communication with fellow employees. On August 14, 2009 you were again verbally counseled that involving yourself in matters that do not involve you is inappropriate. On August 17, 2009 you were verbally counseled for inappropriate conversations with fellow employees, disclosure of information obtained in confidence to others and involving yourself in situations that do not pertain to your employment within [EES].

(Doc. 36.5). Plaintiff denies that he was ever verbally counseled by Fakes, and notes that Fakes did not document any of the alleged counseling sessions on her calendar (Docs. 38.16; 41 at ¶¶21-23, 40, 42). Defendant has submitted notes which he claims were prepared by Fakes and which purport to document various times she verbally counseled Plaintiff (Doc. 36.10). Defendant has also submitted notes that Fakes took during an October 16, 2009 meeting attended by Fakes, Surratt, and a VA human resources representative. The notes reveal that, as of that date, Surratt “want[ed Plaintiff] gone, ” and he was concerned Plaintiff would not “screw up” if he were put on notice and given an opportunity to improve his behavior. The notes also reflect that the human resources representative expressed concern that a third-party might later question why Plaintiff was not put on notice before he was terminated (Doc. 36.18).[3]

         On January 21, 2010, Plaintiff filed an EEO complaint alleging that Defendant had discriminated against him based on his age and race, and had retaliated against him as well; his EEO complaint did not allege discrimination or retaliation on the basis of his status as a veteran (Docs. 36.6; 41 at ¶7). During his deposition and administrative hearing, Plaintiff testified, inter alia, that when he reported his co-workers' concerns to Fakes, he did not know the identities of the friends to whom she had allegedly shown favoritism, and that he had assumed her friends were Caucasian (Docs. 36.2 at 12-14; 36.13 at 24-26).

         Fakes testified to the following relevant facts at Plaintiff's administrative hearing (Doc. 36.2). On May 6, 2009, Eunice Beckwith, another EES employee who reported to Fakes, informed Fakes that Plaintiff had been rude and unprofessional to EES staff. According to Fakes, Beckwith told her that Bolden, the PSA who supported Plaintiff, had complained about Plaintiff's behavior. Fakes then spoke with Beckwith, who expressed concern about Plaintiff's “rude tone and abrupt conversations” with her (Doc. 36.2 at 24). Fakes further testified that she then met with Plaintiff and, inter alia, advised him that other employees had reported to her that he had been “speaking down to them or giving orders, ” and recommended that he consider taking a different approach with his co-workers (Id. at 28). Fakes followed up with Plaintiff a few weeks later, and advised him that EES fostered more of a “team” approach, as opposed to “giv[ing] an order and walk[ing] away” (Id. at 29). Plaintiff does not deny that Beckwith and Bolden voiced concerns to Fakes about him and the way he was interacting with support personnel; he does however dispute the accuracy of Defendant's allegation that his behavior was actually inappropriate (Doc. 41 ¶¶18-19).

         Fakes further testified that, in August 2009, Plaintiff approached her and told her that he “had had words with” one of his co-workers at the going-away party (Doc. 36.2 at 30, 34-35). According to Fakes, Plaintiff informed her that one of his co-workers complained about Fakes's hiring practices at the party; that he told the co-worker he had heard similar complaints about Fakes's hiring practices during confidential discussions at the retreat; that the co-worker, who he would not identify, told him not to involve himself in business that did not involve him; and that the co-worker had yelled at him in his office the next morning (Doc. 36.2 at 30-33). Fakes also testified that Plaintiff told her she needed to “take care of” the rumors about her hiring practices (Id. at 33-34). Upon further investigation, Fakes learned that Deborah Ray, a member of VISN 15, had discussed, during the retreat, the allegations that Fakes was showing improper favoritism in her hiring decisions. According to Fakes, Ray became “very upset” when she approached her to discuss what Plaintiff had told her, as everything at the retreat was to have remained confidential. Ray was concerned that confidential discussions with her co-workers had not remained confidential (Doc. 36.2 at 39-40). Fakes's investigation also identified Christa Hummel, an employee who did not report to her, as the employee with whom Plaintiff had the disagreement at the going-away party. When Fakes approached Hummel about what Plaintiff had told her, Hummel also became “very upset” and stated that Plaintiff should not have told Fakes about the discussion of Fakes's hiring practices at the going-away party (Id. at 40-41).

         Plaintiff's EEO claim was denied after an administrative hearing (Docs. 41 at ¶¶9-11; 36.7), and on September 12, 2014, he filed suit in this Court, asserting three claims for relief (Doc. 1). First, he alleged that Defendant discriminated against him based on his race and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Second, he claimed that Defendant discriminated against him based on his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Third, he asserted that Defendant discriminated against him based on his previous military service in violation of the Uniform Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. (Id.). Defendant moved to dismiss Plaintiff's original complaint, which Plaintiff opposed (Docs. 3-4, 6-7, 10-11). The Court granted the motion in part, and dismissed Plaintiff's claim of military-status discrimination under USERRA for failure to exhaust his administrative remedies and lack of subject matter jurisdiction, and dismissed his ADEA claim without prejudice for failure to state a claim (Doc. 12). On October 14, 2015, Plaintiff filed his now-operative, second amended complaint, in which he asserts claims of race discrimination and retaliation in violation of Title VII, age discrimination in violation of the ADEA, and “veteran status” discrimination in violation of USERRA (Doc. 19).

         Now pending are the parties' cross-motions for summary judgment (Docs. 35-39, 41, 43). Defendant argues that he is entitled to summary judgment because Plaintiff has not established a prima facie case of age discrimination, race discrimination, or Title VII retaliation, and because the Court lacks jurisdiction over his USERRA claim. Defendant further argues, that even assuming Plaintiff has made out prima facie cases of age and race discrimination, he has failed to show that Defendant's proffered ...

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