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Daud v. National Multiple Sclerosis Society

United States District Court, W.D. Missouri, Western Division

July 10, 2018

SAKEENA DAUD, Plaintiff,



         Pending is Defendant National Multiple Sclerosis Society's motion for summary judgment. Doc. #43. The Court grants the motion.

         I. BACKGROUND[1]

         In January 2016, Plaintiff Sakeena Daud responded to a job advertisement seeking an “Operations Administrator” at the Defendant's Mid-America Chapter in Kansas City, Missouri. The advertisement stated “[t]he primary responsibility of this role is office administration support to ensure general operations are efficient, in compliance with Society policies, and meet state regulations. This role will provide support in the functional areas of executive assistance, human resources, finance and accounting, risk management, and general office maintenance such as mail handling, data entry, and inventory management….” The advertisement generally identified the role's allocation of time as being 25% finance and accounting, 40% office and equipment management, 10% human resources, 15% support for chapter president, and 10% volunteer engagement.

         After passing an initial screening, Defendant asked Plaintiff to complete a formal application, which she did. Plaintiff interviewed with Chapter President Jenna Neher, and Vice President for Community Engagement & Services Susan Engel. Plaintiff wore a hijab to the interview, but Neher and Engel did not comment on Plaintiff's hijab, religion, skin color, or race. Although Plaintiff later testified she perceived “weird vibes” or “off-putting vibes” from Neher, and thought she may not get the job, she cannot identify a specific comment or action. Senior Human Resources Director Kimberli Baltzer made a formal offer of employment, which Plaintiff accepted. Plaintiff started working as an Operations Administrator for Defendant on April 4, 2016.

         Various events and circumstances led to Plaintiff's termination one year later, on April 5, 2017. Throughout her year-long employment, Plaintiff alleges she complained about Neher's treatment of her, and generally alleges the office atmosphere was discriminatory towards her. Plaintiff complained Neher and/or others talked down to her, made her feel alone and not part of a strong team, dismissed her in front of other co-workers, did not provide a supportive atmosphere, and intimidated or pressured her. Plaintiff also complained Neher improperly requested access to and control of cash and other financial records on-site, and Neher improperly requested access to personnel files held on-site. Plaintiff lodged additional complaints because she felt the organization and its employees did not appreciate her, devalued her work, and/or minimized her and her role in the organization. Plaintiff also complained about the amount of work that was assigned or fell to her in her role.

         Plaintiff also found fault with her office space. When Plaintiff began working for Defendant, Neher indicated Plaintiff would be serving as a receptionist, but would also have a “home base” office in the same space occupied by Defendant's former finance staffer and where several financial and operations files were located. Plaintiff felt Neher was segregating her because the office was located in a back corner, and near the restrooms.[2] Near the end of May 2016, Plaintiff voiced frustration with her office placement after a phone call was interrupted by someone using the restroom next to her office. Plaintiff conferred with Data Management Associate Kim Luger, who had been training Plaintiff, and Plaintiff relocated to an office “close by” without seeking or obtaining Neher's approval.

         In November 2016, Plaintiff moved her office again without seeking approval from Neher. Although she was required to oversee the reception area, Plaintiff complained that requiring her to sit at the front desk or in a nearby office was setting her up for failure. Plaintiff argued this second move would be better because she was working on an ongoing project that required her to spread out financial records. In addition to moving her office twice without approval, Plaintiff refused to move her office in March 2017 when Defendant asked to her move closer to the reception area.

         Plaintiff also complained about her role's limited involvement in recruiting and assignment of volunteers. For example, in June and July 2016, one of Plaintiff's tasks was to work with, among others, Volunteer Engagement Coordinator Leanne Mersmann to prepare for the Bike MS fundraiser. Although Plaintiff had other tasks, she expressed a desire to do more and wanted a “more hands on approach with helping recruit volunteers.” Plaintiff asked Mersmann for the ability to track volunteers' progress in Defendant's system, and requested access to a database to do so. Plaintiff was told to send potential volunteers to Mersmann because Mersmann's job was to recruit and schedule volunteers. Mersmann shared a spreadsheet to enable Plaintiff to track volunteers for registration, money counting, and packets (all tasks assigned to Plaintiff), but apparently did not give Plaintiff access to a larger, comprehensive database of volunteers. Although Plaintiff stated she had “some people that would like to volunteer, ” the record does not indicate she forwarded any names to Mersmann at that time.

         Although the Court will more fully discuss the circumstances below, Plaintiff applied for a promotion to an “Operations Manager” position in November 2016. Plaintiff was interviewed twice, but was not selected to advance for a final interview. Plaintiff alleges her religion, race, and color played a factor in Defendant's decision not to promote her.

         Several events occurred in the last two months of Plaintiff's employment. Plaintiff surreptitiously recorded two phone calls with supervisors in which she discussed her role at the organization. In one call, Plaintiff refused a directive to re-locate her office closer to the reception area. Additionally, after becoming aware of a volunteer recruitment email sent by Plaintiff without approval from Defendant's marketing team, Plaintiff was given a set of expectations regarding her continued efforts to recruit volunteers. She was directed not to perform work beyond her assigned tasks because it would overlap with work already being done by others. Plaintiff escalated her concerns about her role, and what she was being told to do, to Baltzer. The two met to discuss Plaintiff's concerns on or about March 28, 2017. Plaintiff was not satisfied with their discussion. Another meeting with Plaintiff, Baltzer, and Plaintiff's direct supervisor, [3] was scheduled to take place on April 4, 2017, but Plaintiff refused to meet because her previous concerns were not adequately addressed. Given what Defendant characterizes as a “months-long” accumulation of performance issues and Plaintiff's failures to collaborate effectively, as well as Plaintiff's refusal to engage to address her concerns, Defendant decided to terminate Plaintiff's employment and did so on April 5, 2017.

         The denial of a promotion and Plaintiff's termination form the bases of this suit. Plaintiff, proceeding pro se, alleges these actions violate Title VII and 42 U.S.C. § 198. Defendant moves for summary judgment on each of Plaintiff's claims.

         II. STANDARD

         A moving party is entitled to summary judgment on a claim only if there is a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Wierman v. Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984). “[A] nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).

         The Court notes Plaintiff repeatedly relies on allegations in her complaint to controvert Defendant's statement of facts and to support her statement of additional material facts. A party “cannot simply rely on assertions in the pleadings to survive a motion for summary judgment.” Krein v. DBA Corp., 327 F.3d 723, 726 (8th Cir. 2003). Accordingly, the Court cannot consider allegations in the complaint unless Plaintiff cites to admissible evidence in the record establishing those facts.


         A. Title VII Exhaustion To exhaust administrative remedies entitling a plaintiff to bring a cause of action under Title VII, the plaintiff must “give notice of all claims of discrimination in the administrative complaint.” Stuart v. Gen. Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). A plaintiff can only seek relief “for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.” Id. at 631. The administrative complaint must be construed liberally, but a civil suit can be only be as broad “as the scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination.” Id. Each discrete discriminatory act, such as a termination, failure to promote, denial or transfer, or refusal to hire, constitutes a separate actionable offense and must be identified in the administrative charge. Dahdal v. Wells Fargo Fin., No. 04-0415CV-W-GAF, 2005 WL 2008648, at *5 (W.D. Mo. Aug. 17, 2005) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).

         Defendant argues Plaintiff failed to exhaust her Title VII wrongful termination claim because her EEOC charge did not identify her termination. Plaintiff's EEOC charge, filed twelve days after her termination, states: “I was employed by the above named employer from on or about April 4, 2016 until on or about April 5, 2017. I believe I was subjected to a difference in terms and conditions of employment and denied a promotion based on my race, bi-racial, color, religion, Muslim, and retaliation in violation of Title VII...” Doc. #44-57. While the charge identifies a failure to promote claim, her termination is not identified. See Woelbling v. R.C. Wilson Co., 966 F.Supp. 858, 862 (E.D. Mo. 1997) (distinguishing denial of a promotion as not similar or reasonably related to discriminatory termination allegations). Even interpreting Plaintiff's charge “with the utmost liberality, ” the Court finds Plaintiff failed to exhaust her Title VII wrongful termination claim. Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1998). Accordingly, the Court grants Defendant's motion for summary judgment on Plaintiff's Title VII wrongful termination claim for this reason alone.[4]

         B. Discrimination on basis of religion, race, or color (Counts I - V)

         Plaintiff asserts Defendant failed to promote her, in violation of Title VII and 42 U.S.C. § 1981, because of her religion (Count I), race (Counts II & III), and color (Counts IV & V). Defendant argues Plaintiff fails to establish a prima facie case of discrimination on any basis under either statute. To survive a motion for summary judgment, a plaintiff must present admissible evidence directly indicating unlawful discrimination, or create an inference of unlawful discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Rooney v. Rock-Tenn Converting Co., 878 F.3d 1111, 1115 (8th Cir. 2018). The standard for section 1981 claims and Title VII claims is identical. Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th Cir. 2014). Plaintiff has not presented direct evidence of discrimination. Accordingly, the Court considers her claims under the McDonnell Douglas burden-shifting framework.

         To establish a prima facie case of failure to promote, a plaintiff must show she (1) is a member of protected group, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) the circumstances of that adverse employment action give rise to or permit an inference of unlawful discrimination. See, e.g., Robinson, 753 F.3d at 754; Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1068 (8th Cir. 2017). Defendant concedes the first three elements, but argues the causation element is not met.

         In November 2016, Defendant created four new “Operations Manager” positions, to which Operations Administrators nation-wide would report. Plaintiff applied for the Operations Manager position. After receiving applications, Defendant's Recruiter Zoe Spivak conducted initial screening interviews via telephone with eight applicants, all employees of Defendant at that time. Plaintiff ...

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