United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Robert Cardillo's
(“Defendant”) Motion for Summary Judgment (Doc.
42). The Motion is fully briefed and ready for disposition.
The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title
28 U.S.C. § 636(c) (Doc. 8). For the following reasons,
Defendant's Motion will be GRANTED and
this action will be DISMISSED, with
April 26, 2017, pro se Plaintiff Linda Gates
(“Gates”) filed this action for employment
discrimination in the Circuit Court of St. Louis County
Missouri (Doc. 3). On August 28, 2017, Defendant timely
removed the matter to this Court (Doc. 1). On March 22, 2018,
the Court granted Defendant's Motion to Dismiss and
afforded Gates an opportunity to file an amended complaint
within thirty days of the date of the Order (Doc. 12). On
April 18, 2018, in compliance with the Court's Order,
Gates timely filed an amended complaint alleging employment
discrimination pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”) and the American with
Disabilities Act of 1990, as amended, 42 U.S.C. §§
12101, et seq. (“ADA”) for the
termination of her employment, terms and conditions of her
employment differing from those of similar employees,
harassment, and other conduct, specifically “bullying,
” because of her disability which she notes as her need
to wear a defibrillator (Doc. 13). The undisputed facts are
Linda Gates was hired by the National Geospatial Intelligence
Agency (“NGA”) effective October 24, 2010 as a
Contract Specialist-DAWIA (Defense Acquisition Work
Improvement Act) (Doc. 44-2). Gates indicated on her resume
that she was an experienced Contract Specialist (Doc. 44-21
at 12). Gates' position was for a probationary period of
two years (Doc. 44-21 at 6). On October 27, 2010, Gates
suffered a cardiac arrest while on duty at NGA (Doc. 44-4).
Gates returned to work in early January 2011 (Doc. 44-7; Doc.
44-21). However, as a result of the incident, Gates has an
internal defibrillator (Doc. 44-4). Upon her return, Gates
completed a NGA Form 6200-1, Medical History & Respirator
Questionnaire indicating, in relevant part, that she had an
Implantable Cardioverter Defibrillator (“ICD”)
implanted in November 2010 (Doc. 44-7). As a result of the
defibrillator, Gates ability to sleep as well as her ability
to walk were affected during her time at NGA (Doc. 44-22 at
11). Specifically, Gates testified at her deposition that her
sleep was impacted but that the exact nature of the impact
was “personal” (Id.). Gates further
testified that she cannot “walk miles”
(Id.). There remains a dispute of fact regarding
whether Gates discussed any alleged disability with her
supervisors during her employment (Doc. 44-21 at 39-40; Doc.
44-22 at 6; Doc. 44-23 at 5, 7; Doc. 44-24 at 6, 14; Doc.
44-25 at 4-5, 24). Nevertheless, Gates was referred to an
office within NGA upon her return and the office offered
Gates accommodations which are not identified in the record
(Doc. 44-21 at 39; Doc. 44-23 at 7; Doc. 44-24 at 7; Doc.
44-25 at 4-5). Gates declined any accommodation (Doc. 44-21
at 39; Doc. 44-24 at 7; Doc. 44-25 at 21-22).
Gates' return in January 2011 and roughly May 2011, there
is no evidence of any negative feedback regarding Gates'
performance (Doc. 44-21 at 36; Doc. 44-25 at 9). On May 3,
2011, Gates' first-line supervisor, Lynne Ware
(“Ware”), provided Gates with her Mid- Point
Review Comments in a face-to-face meeting (Doc. 44-6; Doc.
44-21 at 18, 35, Doc. 44-25 at 18). Gates was not given a
performance rating at the time nor did the review contain any
negative comments regarding Gates' performance (Doc.
44-21 at 18; Doc. 44-24 at 13; Doc. 44-25 at
On July 28, 2011, Ware met with Gates to discuss Ware's
concerns with Gates' performance (Doc. 44-10). In a
Memorandum for Record memorializing the meeting, Ware
indicated that “[t]his meeting was held to discuss
specific areas in [Gates'] performance plan where
improvements need to be made” prior to the end of the
rating cycle “so that [Gates] would have time to
address [Ware's] concerns prior to the end of the rating
cycle” (Doc. 44-10). Ware specifically advised Gates
that if Ware were to give her a rating at the time of
meeting, she would give Gates a “Minimally Successful
rating” (Doc. 44-10). Ware asked Gates “if there
was anything [Ware] could do to help her improve her
performance” (Doc. 44-10). The following day, on July
29, 2011, Gates requested to meet with, and met with,
Gates' second-line supervisor Deputy Chief Patricia
Hughes (“Hughes”) (Doc. 44-6; Doc. 44-11; Doc.
44-13). Hughes reiterated the information presented to Gates
by Ware (Doc. 44-14). Also, on July 29, 2011, Ware sent an
email to Gates confirming their discussion on July 28, 2011
and noting that, while she would rate Gates in the
“Minimally Successful range” if Ware had to do so
that day, “[i]f there is anything I can do to help you
improve in these areas, please let me know” (Doc.
August 3, 2011, in response to Ware's confirmation email,
Gates requested a meeting with Ware and Hughes to get
“an understanding as to what I'm not doing to meet
my performance plan in order to receive a Minimally
Successful range . . .” (Doc. 44-13). On August 10,
2011, Ware and Hughes met with Gates and asked whether there
was anything they could do to help Gates (Doc. 44-14; Doc.
44-24 at 15). In October 2011, Gates received an overall
rating of Minimally Successful on her 2011 Final Close-Out
Evaluation (Doc. 44-25 at 80).
November 2, 2011, Ware submitted Feedback Sheets on the five
employees she supervised to the Chief of NGA ACS, Susan
Pollmann (“Pollmann”) (Doc. 44-6; Doc. 44-15).
The other four employees under Ware's supervision were
performing at “Successful” or
“Excellent” levels (Doc. 44-15). However, Gates
was performing at a “Minimally Successful” level
and Ware noted that she made “[e]rrors and mistakes . .
. not  expected of someone at her experience level”
(Doc. 44-15; Doc. 44-25 at 19). On that same day, Pollmann
met with Gates to discuss her evaluation (Doc. 44-23 at 3,
7). Pollmann reviewed the evaluation with Gates and
“asked [Gates] to think of the rating not as a failure
but as our commitment to help her cover the gaps and become
successful” (Doc. 44-23 at 7).
April 30, 2012, Gates received a second Mid-Point Review
covering the period of October 1, 2012 through March 31, 2012
(Doc. 44-16; Doc. 44-8). On May 9, 2012, Ware met with Gates
to discuss the Mid-Point Review (Doc. 44-17). Ware positively
commented on Gates' abilities in the Customer
Collaboration, Engagement and Collaboration, Personal
Leadership and Integrity Objectives (Doc. 44-16). However, in
the Execution and Documentation objective, Ware indicated
that “Ms. Gates lack proficiency in execution of
routine contractual actions” (Doc. 44-16). Ware
indicated that she was “not seeing improvement”
in the objectives of Accountability for Results,
Communication, and Critical Thinking (Doc. 44-16; Doc.
7, 2012, during her probationary two-year period, Gates was
terminated (Doc. 44-1; Doc. 44-2; Doc. 44-21 at 7). The
termination letter indicated in relevant part, “[b]ased
on your performance, I have concluded that it is not in the
best interest of NGA to finalize your appointment”
(Doc. 44-1 at 1). Gates was subsequently allowed to retire
from federal service in lieu of termination, also effective
June 7, 2012 (Doc. 44-2).
filed an Equal Employment Opportunity (“EEO”)
complaint on July 18, 2012 alleging discrimination on the
basis of her physical disability “due to forced
retirement through the initial termination of employment that
occurred on 7 June 2012” (Doc. 44-3; Doc. 44-4 at 1;
Doc. 44-5). The NGA Office of Diversity and Equal Employment
Opportunity sent Gates a Notice of Acceptance of
Discrimination Complaint identifying Gates' claim as
being “discriminated against by the [NGA] on the basis
of disability (physical) when on June 7, 2012 you were forced
to retire in lieu of termination of your employment”
(Doc. 44-5). Although Plaintiff had the opportunity to
contest the characterization of her claim within five days of
receipt of the Notice, Plaintiff did not notify the NGA
Office of Diversity and Equal Employment Opportunity that her
claim was incorrectly identified (Doc. 44-5; Doc. 44-21 at
13-14). During the EEO investigation, Gates characterized her
limited major life activity as “heart
limitations” and specifically indicated that,
“[t]he limited major life activity limitation is
running a marathon and lifting offer [sic] 40 pounds”
(Doc. 44-18 at 4; Doc. 44-22 at 5). Otherwise, Gates stated
that her need to wear a defibrillator “. . . does not
affect my ability to do my job” (Doc. 44-18 at 4; Doc.
44-22 at 8). A Final Agency Decision was entered on August
27, 2014, finding no evidence of discrimination (Doc. 44-18).
A decision by the Office of Federal Operations, Equal
Employment Opportunity Commission (“OFO”) was
issued on November 1, 2016, affirming the Final Agency
Decision (Doc. 44-19). The OFO denied Gates' Request for
Reconsideration on February 2, 2017 and indicated Gates'
right to file a civil action (Doc. 44-20). Defendant now
moves for summary judgment on Plaintiff's claims (Doc.
Summary Judgment Standard
to Federal Rule of Civil Procedure 56(a), a court may grant a
motion for summary judgment if “there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden
is on the moving party. City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th
Cir. 1988). Once the moving party demonstrates that there is
no genuine issue of material fact, the nonmovant must do more
than show there is some doubt as to the facts. Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Instead, the nonmoving party bears the
burden of setting forth affirmative evidence and specific
facts by affidavit and other evidence showing a genuine
factual dispute that must be resolved at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex, 477 U.S. at 324. “A dispute about a
material fact is ‘genuine' only ‘if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Herring v.
Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.
2000) (quoting Anderson, 477 U.S. at 248). In ruling
on a motion for summary judgment, all reasonable inferences
must be drawn in a light most favorable to the non-moving
party. Woods v. DaimlerChrysler Corp., 409 F.3d 984,
990 (8th Cir. 2005). The evidence is not weighed and no
credibility determinations are made. Jenkins v.
Winter, 540 F.3d 742, 750 (8th Cir. 2008).