United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
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
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.
Before the Court on the Motion
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.
Finger, February 2014
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.
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.
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
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 ...