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Black v. O'Rourke

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

June 18, 2018

LC BLACK, Plaintiff,
PETER O'ROURKE, Acting Secretary, United States Department of Veterans Affairs, [1] Defendant.



         Plaintiff LC Black brings this action under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, alleging that the Department of Veterans Affairs (VA) unlawfully discriminated against him in his employment on account of his race, color, gender, and age, and in retaliation for earlier complaints of discrimination. The VA moves for summary judgment on Black's claims. I will grant the motion.


         Plaintiff Black is an African American male, born in 1952, who worked for the VA Medical Center at its Jefferson Barracks warehouse facility for about thirty months before his employment was terminated on September 20, 2014.

         Black claims that in February 2014, the VA failed to act when he reported that a coworker broke his finger, and again failed to act in April 2014 when he reported that a volunteer employee attacked him and used a racial slur against him. Believing that the VA's failure to act constituted discrimination and harassment because of his age and race, Black contacted an EEO counselor in May 2014. Mediation on Black's claim of discrimination was held on July 24, 2014, and an agreement was reached that same date.

         On July 30, 2014, Kenneth Van Buren, a VA coworker, reported to the VA Police that Black threatened him with a box cutter. The VA placed Black on administrative leave that same date. The VA Police filed a claim with the Office of Inspector General and sought charges against Black for unlawful use of a weapon and conduct unbecoming a federal employee. The OIG rejected both charges. The United States Attorney's Office likewise rejected the case. The VA Police then asked St. Louis County officials to prosecute, and criminal charges were filed. Black was arrested on the charges on August 15, 2014, after which the VA notified Black of his proposed removal from VA employment. On the same date that the VA provided this notice to Black, he filed a formal EEO complaint of discrimination. The VA thereafter terminated Black's employment, effective September 20, 2014.

         Black claims that the VA's failure to act in February and April 2014 created a hostile work environment on account of his age and race. He also claims that the VA caused him to be arrested in retaliation for his complaint of discrimination, and ultimately terminated his employment because of his race, age, and in retaliation for his earlier complaints.

         In its motion for summary judgment, the VA contends that the evidence fails to show that the conduct Black complains of was on account of any discriminatory animus based on race, age, or protected conduct; and, further, that legitimate, non-discriminatory and non-retaliatory reasons supported any adverse employment action. The VA argues that because Black cannot show these reasons to be pretext for discrimination or retaliation, it is entitled to summary judgment. I agree.

         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). I must view the evidence in the light most favorable to the nonmoving party and accord him the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007).

         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 his 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.

         If the nonmoving party fails to properly address an assertion of fact made by the movant, the Federal Rules of Civil Procedure permit me to consider the fact undisputed. Fed.R.Civ.P. 56(e)(2). The Local Rules of this Court, however, require it. Under Local Rule 4.01(E), moving parties must include a statement of uncontroverted material facts with their memorandum, with citations to the record if the fact(s) are established by the record.

Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.

E.D. Mo. L.R. 4.01(E) (emphasis added). Accordingly, I deem admitted any statement of fact that Black did not specifically controvert in response to the VA's motion.

         Evidence Before the Court on the Motion

         The following recitation of undisputed facts giving rise to Black's claims is taken from the VA's Statement of Uncontroverted Material Facts, Black's response, and my independent review of the record in this case.

         Broken Finger, February 2014

         On February 2, 2014, coworker Robert Ford helped Black unload pallets from a truck at the VA's Jefferson Barracks warehouse facility, stacking the pallets as they were unloaded. When Ford threw a pallet on top of a stack, it landed on Black's hand and broke his finger. Black believes that Ford had issues with his temper, that management was aware of these issues, and that there was shared concern that Ford's temper may eventually cause injury to someone.

         Black reported the incident to his supervisor, Lonnie Crumpton, but Crumpton took no action against Ford. Black does not claim that Ford's conduct itself was discriminatory. Instead, he argues that management's lack of response to Ford's dangerous behavior was on account of his age and race, testifying at his deposition that there could be no other reason. Black was the only African American working in the warehouse at that time, and he was sixty-three years old.

         Assault, April 2014

         On April 25, 2014, a younger, white volunteer employee at the VA pushed Black against the wall and directed expletives and a racial epithet toward Black. Black sustained minor injuries to his arm and shoulder as a result. Black called the VA Police, who responded and took statements from Black and the volunteer employee regarding the incident. The police escorted the volunteer employee off the premises and issued him a verbal warning. Perceiving the volunteer employee to have a mental disability, the police issued no citation to him.

         Black's direct supervisor, Eddie Irby, and Black's second line supervisor, Crumpton, thereafter contacted the volunteer office and instructed that that employee could no longer work at the warehouse and ...

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