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Gates v. Cardillo

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

May 16, 2019

LINDA GATES, Plaintiff,
v.
ROBERT CARDILLO, Director, National Geospatial Intelligence Agency, Defendant.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE

         This 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 prejudice.

         I. Background

         On 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 as follows.[1]

         Plaintiff 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.).[2] 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).

         Between 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 18).[3] 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. 44-12).

         On 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).

         On 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).

         On 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. 44-17).

         On June 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).

         Gates 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. 42).

         II. Summary Judgment Standard

         Pursuant 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).

         III. ...


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