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Daud v. National Multiple Sclerosis Society

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

July 15, 2019

SAKEENA DAUD, Plaintiff,
v.
NATIONAL MULTIPLE SCLEROSIS SOCIETY, Defendant.

          ORDER AND OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ORTRIE D. SMITH, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending is Defendant National Multiple Sclerosis Society's Motion for Summary Judgment. Doc. #27. For the following reasons, Defendant's motion is granted.

         I. BACKGROUND [1]

         Plaintiff Sakeena Daud was employed by Defendant National Multiple Sclerosis Society from April 2016 to April 2017. In May 2017, Plaintiff filed her first lawsuit against Defendant alleging Defendant discriminated and retaliated against her when it denied her a promotion and terminated her employment. Daud v. Nat'l Multiple Sclerosis Soc., No. 4:17-cv-00378-ODS (“Daud I”). In Daud I, the Court granted summary judgment in favor of Defendant on all of Plaintiff's claims. Daud I (Doc. #49). Plaintiff did not appeal the Court's decision, and the time for doing so has passed.

         This is the second lawsuit filed by Plaintiff against Defendant. In her Complaint, Plaintiff alleges the same claims she asserted in Daud I but includes one additional claim. Doc. #5. The new claim arises from events occurring in Mach 2018 when Plaintiff applied for employment with DST Systems Inc. On March 20, 21, 22, and 23, 2018, DST[2] attempted to verify Plaintiff's employment with Defendant by calling The Work Number, a third party hired by Defendant to respond to employment verification requests. The Work Number receives information about Defendant's employees via a software program Defendant uses for payroll. Defendant does not separately provide employment verification information to The Work Number.

         Although it made several calls to The Work Number, DST was unable to verify Plaintiff's employment with Defendant. Defendant has no record or knowledge of any request to verify Plaintiff's employment received being made to The Work Number or its national or local chapter offices. On March 26, 2018, Plaintiff was able to verify her employment with Defendant by providing DST with a paystub and/or W-2 from her employment with Defendant. Plaintiff was hired by DST in April 2018.

         On March 27, 2018, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights. Doc. #5-2, at 2. Therein, she alleges that on or about March 26, 2018, a prospective employer, despite repeated attempts, was unable to verify her employment with Defendant. Id. Plaintiff claims Defendant gave her “an unfavorable job reference in retaliation for filing a charge of discrimination in violation of Title VII.” Id. On April 24, 2018, the EEOC issued a right to sue letter to Plaintiff. Id. at 1. Shortly thereafter, Plaintiff commenced this lawsuit. With regard to the claim arising in Mach 2018, the Complaint asserts a prospective employer made several attempts to verify Plaintiff's employment with Defendant, but Defendant refused to verify her employment. Doc. #5, ¶¶ 59, 78. The Complaint, unlike the Charge of Discrimination, does not allege Defendant gave Plaintiff an unfavorable job reference.

         In November 2018, the Court dismissed with prejudice all of Plaintiff's failure to promote, discriminatory discharge, and retaliatory discharge claims because those claims were barred by res judicata. Doc. #15. The Court also dismissed Plaintiff's defamation claim due to her failure to sufficiently plead such a claim, and the Court's inability to discern a viable basis for the claim. The Court concluded Plaintiff failed to administratively exhaust a Title VII discrimination claim related to the events occurring in March 2018, and therefore, she could not bring such a claim. However, the Court found Plaintiff administratively exhausted a Title VII retaliation claim arising from the same conduct. That is the only claim remaining in this lawsuit. Defendant now seeks summary judgment in its favor on that claim.

         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).

         III. DISCUSSION

         A. Parties' Summary Judgment Facts, Responses Thereto, and Exhibits

         Before addressing the substance of the parties' summary judgment arguments, it is necessary to examine some concerns regarding the parties' summary judgment facts, responses thereto, and exhibits.

         (1) Defendant's Fact 11

         In Fact 11, Defendant states Plaintiff recorded a phone call to The Work Number on an unknown date and was advised of the steps a prospective employer needs to take to verify Plaintiff's employment with Defendant, and what information was available to the prospective employer. Doc. #28, at 8. In support of this fact, Defendant references an exhibit that it describes as “Transcript of Recording of S. Daud Call to The Work Number on Unknown Date.” Id. Defendant indicates this exhibit is attached as Exhibit 8. Id. But Exhibit 8 is not a transcript of a phone call. Doc. #28-8. Instead, it appears to be messages or notes from Kimberli Baltzer, Defendant's Senior Director of Human Resources. Id. Pursuant to the Court's Local Rules, if a party's summary judgment motion refers to “facts contained in another document…, the party must attach a copy of the relevant excerpt.” L.R. 56.1(d). Because Defendant failed to attach the sole source supporting Fact 11, the Court cannot and has not considered Fact 11.

         (2) Plaintiff's Responses to ...


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