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Henderson v. Wilkie

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

March 5, 2019

DARRYL LEE HENDERSON, Plaintiff,
v.
ROBERT L. WILKIE, [1] Secretary Department of Veterans Affairs, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Robert L. Wilkie's Motion to Dismiss or, Alternatively, for Summary Judgment (ECF No. 14). Plaintiff Darryl Lee Henderson (“Plaintiff”) filed opposition thereto and the issues are fully briefed. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court grants Defendant's Motion for Summary Judgment.

         Plaintiff brings this action pro se, alleging that his employer, the Department of Veterans Affairs (“VA”), unlawfully discriminated against him in his employment on account of his race, color, gender, and disability. Plaintiff brings his claims pursuant to Title VII and the Rehabilitation Act of 1973, alleging that the VA failed to promote him and to accommodate his disability, retaliated against him for prior Equal Employment Opportunity (“EEO”) activity, subjected him to a hostile work environment, and harassed him. Plaintiff uses the “Employment Discrimination Complaint” form and lists the following as conduct complained of: failure to promote, failure to accommodate, retaliation, harassment, and other (“Bullying”). (ECF No. 1) On the following page, Plaintiff checked race, color, gender, and disability as the reasons for the discriminatory conduct. (Id.) Defendant moves for dismissal or, in the alternative, for summary judgment on Plaintiff's claims.

         Although not entirely clear from his Complaint, it appears that Plaintiff alleges some of the same adverse employment claims addressed in his EEO administrative case, as well as additional claims. Plaintiff has organized his Complaint by describing the alleged discriminatory conduct and, at the conclusion, listing the “Violations” (i.e. disability discrimination, harassment, etc.). The following is a list of the alleged discriminatory conduct set forth in Plaintiff's Complaint supporting his adverse employment claims, with the “violations” listed in parenthesis.

1. Plaintiff argues that he was not properly represented during the EEO administrative process. (ECF No. 41-1 at ¶ 1) (No “violations”)
2. Plaintiff alleges that he wrongfully received a “fully successful” rating on his 2011 and 2012 evaluation. (Id. at ¶ 2) (“Violations: Equal Pay/Compensation, Harassment, Retaliation, Gender, Intimidation”)
3. Plaintiff contends that he was denied the proper documentation to dispute his 2011 and 2012 annual ratings. (Id. at ¶ 3) (“Violations: Equal Pay/Compensation, harassment, retaliation, gender”)
4. Plaintiff alleges that he was not allowed to take breaks, including lunch, without first informing three individuals; and even after discussing his need for breaks at regular intervals; he still did not receive regular lunch breaks. (Id. at ¶ 4) (“Violations: Disability, Harassment, Retaliation, gender”)
5. Plaintiff alleges that Brown harassed him during retraining by standing behind his chair and leaning over him. Plaintiff also alleges that Brown harassed him when she questioned him regarding certain documents and accused him of not completing his work. (Id. at ¶ 5) (“Violations: Harassment, Retaliation, gender”)
6. Plaintiff alleges that his PIV badge could not be released because of criminal charges from 2007. (Id. at ¶ 6) (“Violations: harassment, race/color, retaliation, gender”)
7. Plaintiff alleges that he was questioned as to his whereabouts after being instructed to retrieve his PIV badge before reporting to work. (Id. at ¶ 7) (“Violations: harassment, retaliation, gender”)
8. Plaintiff alleges that he was issued a letter of counseling for “not going through the chain of command.” Plaintiff also alleges that he was wrongfully accused of sexual harassment. (Id. at ¶ 8) (“Violations: harassment, race/color, retaliation, gender.”)[2]

(Id. at 6-14)

         In support of his lawsuit, Plaintiff attached as an exhibit, the July 6, 2017, U.S. Equal Employment Opportunity Commission's (“EEOC”) Decision (ECF No. 1-1), affirming the Administrative Judge's (“AJ”) Findings of Fact and Conclusions of Law in the Discrimination Complaint of Darryl Henderson and Robert McDonald, Secretary Department of Veterans Affairs, dated December 23, 2015 (hereinafter “EEOC Opinion”).[3] (ECF No. 14-1) In that case, Plaintiff alleged hostile work environment claims based on disability and reprisal for prior EEO activity based on ten alleged factual incidents occurring between November 8, 2012, and June 24, 2013. (Id. at 2-3)

         I. Background

         Plaintiff is an African American male with diabetes, who worked for the Health Administration Service at the St. Louis VA Medical Center as a Medical Support Assistant, GS-5, starting in 2009. (ECF No. 14-1 at 5, EEOC Opinion) After reporting a hostile work environment in May 2013, Plaintiff was reassigned to the John Cochran Division of the St. Louis VAMC as Primary Care Support. In September 2013, Plaintiff started working as a Program Support Assistant, GS-6, in Primary Care Service at John Cochran. After working in that capacity for fourteen months, Plaintiff was assigned to the Jefferson Barracks Division and worked in Building 53. (Id.)

         Katonya Riddle (“Riddle”), Supervisor, Health Administration Services, GS-7, was his first level supervisor in early 2012, and she reported to Kristina McManus (“McManus”), Assistant Chief of the Health Administration Services. (Id. at 6) McManus reported to Geraldine Smith (“Smith”), Chief of the Health Administration Service, and Smith retired in April 2015. (Id. at 6)

         II. The Uncontroverted Facts Material to Motion

         The following recitation of undisputed facts giving rise to Plaintiff's claims is taken from Defendant's Statement of Uncontroverted Material Facts, the EEOC Opinion, and the undersigned's independent review of the record in the case. The Court largely adopts the Statement of Undisputed Material Facts submitted by Defendant in support of his motion. This statement of facts is supported by references to the Complaint and the EEOC Opinion. Plaintiff has not disputed Defendant's statements of the facts or the EEOC Opinion and offers only speculation, personal opinion, and legal conclusions, which are insufficient to defeat the pending motion. Although Plaintiff submitted a statement of uncontroverted material facts, Plaintiff failed to respond to or controvert the facts submitted by Defendant numbered 1-52. As a result, for purposes of this motion, Plaintiff is deemed to have admitted all of Defendant's facts which were not specifically converted. See Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) (If the opposing party does not raise objections to a movant's statement of facts as required by Local Rule 4.01(E), “a district court will not abuse its discretion by admitting the movant's facts.”); Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir. 2005) (where plaintiff did not convert defendant's statement of material fact, it was deemed admitted under E.D. Mo. Local Rule 4.01(E)).

         At all times relevant to this cause, Plaintiff was employed by the VA. Beginning in 2009, Plaintiff worked at the St. Louis VA Medical Center. (ECF No. 14-1 at 5) After reporting a hostile work environment to management, Plaintiff was reassigned to the John Cochran Division VA Medical Center in May 2013.

         On January 17, 2013, [4] Plaintiff sought EEO counseling but when that matter was not resolved, Plaintiff filed a formal EEO complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that he was subjected to a harassment/hostile work environment based on his disability (diabetes) and that he suffered reprisal for EEO activity as evidenced by incidents beginning on November 8, 2012, and ending on June 24, 2013. (Id. at 2-3) On March 13, 2013, after the EEOC partially accepted the complaint for investigation and dismissed his claim regarding his November 2012 rating of record as a discrete act which was untimely filed. Plaintiff filed another amendment on April 10, 2013 and then a third amendment on July 9, 2013. In his EEO Complaint, Plaintiff again alleged that he was subjected to discrimination in the form of hostile work environment based on disability and reprisal for prior EEO activity on incidents occurring between November 8, 2012, and June 24, 2013. (Id. at 4) Plaintiff presented no evidence or testimony during the EEO's investigation of the complaint. (Id. at 31)

         On December 11, 2013, Plaintiff timely filed a request for a hearing before an EEOC Administrative Judge (“AJ”). At the hearing, Plaintiff confirmed that his reprisal claim is based on the instant EEO complaint, but he provided no other evidence of any earlier EEO activity. (Id. at 5) Plaintiff testified that in July 2012, he advised Riddle that he had diabetes and that he provided her a doctor's note. (Id. at 6) Riddle testified that she does not recall Plaintiff telling her that he had diabetes, requiring the need for more frequent and/or consistent breaks, but she received a doctor's letter regarding his breaks with no notation indicating his disability.[5] (Id. at 12) In that letter, Plaintiff's doctor stated that Plaintiff “is under my care for his health problems and he will benefit from getting his breaks at regular intervals so that he can use this time for brief walks to improve his health to prevent complications.” (Id. at 9-10) In response to Riddle's January 29, 2013, email providing him reasonable accommodation paperwork and copied to McManus and Smith, Plaintiff stated that “I am requesting that my breaks and lunch be consistent because I am a diabetic.” (Id. at 28)

         “When asked about the 2012 performance rating, Riddle stated that [Plaintiff] had a number of scheduling errors and in customer service he did not get along with his peers, Supervisor Riddle, and sometimes was not ‘friendly' to his patients.” (Id. at 7) Riddle further testified that she was unaware of his EEO activity on January 8 or February 28, 2013, when she marked Plaintiff tardy[6] but she was aware of his EEO activity when she questioned Plaintiff about his extended absence from his work station on February 14, 2013. (Id. at 2, 30) On February 14, 2103, after Plaintiff picked up his renewed PIV badge, Riddle testified that she questioned Plaintiff about where he had been all morning. (Id. at 18) Riddle testified that no disciplinary action resulted from Plaintiff's absence. (Id.) Riddle testified that she reports tardiness with every employee she supervises when an employee is one to seven minutes late. (Id. at 14) Riddle further testified that she became aware of Plaintiff's EEO complaint when the EEO office contacted her during its investigation. (Id. at 20)

         Andrea Hoopes (“Hoopes”), a supervisory human resources specialist, testified that on February 6, 2013, she told Plaintiff that his PIV badge could not be renewed because of unresolved criminal charges and met with Plaintiff in a common area with other people for safety reasons. (Id. at 17) Hoopes testified that Plaintiff was very accusatory about what was being done. Hoopes testified that a mistake had been made and apologized for the mistake. (Id.) Hoopes testified that she was unaware of Plaintiff's EEO activity on February 6, 2013 when he discussed issues with his PIV badge with her, and she was not aware of his disability. (Id. at 7, 28)

         Smith testified that on April 8, 2013, she issued a letter of counseling to Plaintiff for going outside the chain of command with inappropriate emails and comments therein. (Id. at 18) The AJ found that Plaintiff “has failed to show that his counseling was issued because of his disability and EEO activity, and not because he continuously copied inappropriate individual on emails after repeatedly being instructed not to. [Plaintiff] also failed to show that any other employees behaved in a similar manner and were not also disciplined.” (Id. at 36-37) The letter indicated “that it is the procedure … that staff follow their internal chain of command and are courteous and respectful to their managers” and in closing “if [Plaintiff] did not show significant improvement in his behavior she may recommend further disciplinary actions up to and including removal from Federal Service.” (Id.) Plaintiff acknowledged that other individuals have been disciplined for going outside of the chain of command. (Id. at 20) Smith testified via affidavit that she became aware of Plaintiff's complaint when notified on October 21, 2013, and his diabetes from Plaintiff's email regarding his time away from his desk. (Id. at 2, 6, 29)

         McManus testified that she became aware of Plaintiff's EEO complaint when notified by the EEO Office on January 24, 2013, and she learned of Plaintiff's disability from his January 29, 2013, email requesting his breaks and lunches be scheduled at consistent times to accommodate his diabetes. (Id. at 3, 20-21, 30, 35) Brown testified that she was not aware of Plaintiff's EEO Complaint until notified of the investigation in October 2103, and she was not aware of Plaintiff's disability. (Id.) Keith Repko, the Associate Medical Center Director, testified via affidavit that he became aware of Plaintiff's EEO Complaint in April 2013 but he was not aware of Plaintiff's disability. (Id. at 7, 14) After reviewing Plaintiff's attendance record, Repko found that every time Plaintiff had been charged as tardy, Plaintiff had been over the threshold of what the agency considers tardy. (Id.)

         On March 17, 2014, the AJ issued an Order summarizing the Initial Conference, stating that there was no discovery in this matter as none had been requested, and affirming the dismissal of Plaintiff's performance rating claim for untimely counselor contact but the AJ ruled the issue could be addressed as background to Plaintiff's harassment claim. The AJ denied the agency's motion for summary judgment finding material facts in dispute.

         On December 23, 2015, the AJ issued the EEOC Opinion, including Findings of Fact and Conclusions of Law, on Plaintiff's discrimination complaint, finding Plaintiff failed to establish discrimination based on disability or retaliation. (ECF No. 14-1 at 1, 37) The AJ's EEOC Opinion addressed Plaintiff's allegations that he was discriminated against based on his disability, failed to receive an accommodation, and retaliated against for prior EEO activity when the following events occurred:

1. On November 8, 2012, Riddle issued Plaintiff a rating of fully successful on his annual rating of record;
2. On December 10, 2012, Plaintiff was denied documentation through which he would have disputed his fully successful performance rating;
3. On January 9, 2013, Plaintiff was allegedly told that he was not allowed to take breaks unless he first informed three other individuals;
4. On January 18 and February 28, 2013, Riddle marked Plaintiff as tardy/late in the electronic pay system;
5. On January 25, 2013, no action was taken by Smith when Theresa Brown (“Brown”), a coworker, allegedly acted in an insulting, disrespectful and ...

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