United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION GRANTING DEFENDANT'S MOTION FOR
D. SMITH, SENIOR UNITED STATES DISTRICT JUDGE.
is Defendant National Multiple Sclerosis Society's Motion
for Summary Judgment. Doc. #27. For the following reasons,
Defendant's motion is granted.
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.
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 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
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
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.
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.
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).
Parties' Summary Judgment Facts, Responses Thereto, and
addressing the substance of the parties' summary judgment
arguments, it is necessary to examine some concerns regarding
the parties' summary judgment facts, responses thereto,
Defendant's Fact 11
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
Plaintiff's Responses to ...