United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Mark Esper's
Motion for Summary Judgment. (Doc. No. 16). Plaintiff Lillie
Harris brought this employment action pro se, claiming
discrimination on the basis of race and gender under Title VII,
42 U.S.C. § 2000e et seq., and age under the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq.
the outset, the Court will address the response filed by
Plaintiff to Defendant's motion for summary judgment.
Initially, Plaintiff did not file a timely response, and the
Court on its own review of the file granted Plaintiff an
extension of time to do so. In her filing, she raises the
issue of her lack of representation by an attorney. She also
states that “[a]ll documented evidence in support of my
claim was repeatedly presented over a ten-year period.”
(Doc. No. 20).
is no constitutional right or statutory right to appointed
counsel in civil cases.” Phillips v. Jasper Cty.
Jail, 437 F.3d 791, 794 (8th Cir. 2006). Here, the Court
notes that the record, including the administrative
proceedings during which Plaintiff was represented, contains
sufficient information for the Court to rule on the merits of
Defendant's motion. Thus, to the extent Plaintiff
requests appointment of counsel, that request will be denied.
also referenced several medical conditions, to which the
Court is sympathetic. However, Plaintiff did not ask for any
additional time to file a response due to those conditions,
and the Court must rule on those matters that are properly
before it, particularly where, as here, the matter has been
litigated over the course of ten years. Thus, for the reasons
set forth below, Defendant's motion for summary judgment
will be granted.
relevant times to this action, Plaintiff, an African American
female, was a GS-6 level Human Resources Assistant for the
Army at the Human Resources Command (“HRC”)
Facility in St. Louis. In or around 2007, management
conducted an “equalization study” and determined
that some of the positions at St. Louis HRC needed to be
“upgraded” to align more closely with an HRC
located in Alexandria. Employees who were interested in the
“upgraded” positions were required to submit
their resumes on Resumix, a computer software program that
conducts an automated word search of the candidate's
resume and assign a score to the candidate based on his or
her knowledge, skills, and abilities. Resumix determines
which candidates are “best qualified” and should
be referred for the position.
applied for upgraded positions under four vacancy
announcements. On March 27, 2008, Defendant determined that
Plaintiff was not qualified for a GS-7 human resources
assistant position (“GS-7 position”) based on her
listed typing speed. On April 11, 2008, Plaintiff was
determined to be ineligible for another position in human
resources at the GS-9 level (“GS-9 position”)
based on a “time-in-grade” requirement for that
position. A white female, who was younger than Plaintiff, was
selected for the GS-7 position, and another white female,
approximately the same age as Plaintiff, was selected for the
March 28, 2008 and May 1, 2008, Plaintiff was not referred
for the remaining two positions following a determination by
the Resumix system that she was “not in the group of
best qualified candidates.” (Doc. No. 18-6). Plaintiff
claims that the candidates who were determined to be
“best qualified” received assistance from
Lieutenant Colonel Gena Bonini- Plaintiff's immediate
supervisor-who provided those candidates with a list of
“buzz words” that would ensure that the Resumix
system would identify them as “best qualified.”
In her deposition, Plaintiff stated that she did not remember
which employees received these “buzz words, ” nor
could she identify the specific “buzz words”
provided. Plaintiff contacted an Equal Employment Opportunity
Commission counselor regarding her failure-to-promote claims
on August 5, 2008.
around 2010, HRC facilities located in St. Louis, Missouri,
Alexandria, Virginia, and Indianapolis, Indiana were closed
pursuant to the Defense Base Closure and Realignment Act
(“BRAC”). The action was a “transfer of
function, ” meaning that Defendant was required to
provide job opportunities at a new location to employees of
the closed facilities. Thus, Defendant offered all employees
at St. Louis HRC transfers to a facility at Fort Knox.
Employees who accepted the transfer opportunity would be
placed in the same series and grade that they held at HRC St.
Louis. Employees who declined transfer were not eligible to
receive Voluntary Separation Incentive Pay
(“VSIP”), pursuant to a Department of Defense
bargaining unit at St. Louis HRC requested that employees who
were not interested in relocating be given the option to
participate in the “Job Swap
Program” with other agencies in the area. However,
management decided not to use the Job Swap Program because
there were few Department of Defense or federal agencies left
in the area, and thus, few positions available. Instead,
Defendant encouraged employees who were not willing to
transfer to register in the “Priority Placement
Program.” In October 2010, Plaintiff declined
transfer to Fort Knox, and she also declined participation in
the Priority Placement Program. Thereafter, Defendant issued
a Notice of Separation effective October 22, 2010.
October 26, 2010, Plaintiff joined an Equal Employment
Opportunity Commission (“EEOC”) administrative
class complaint, alleging discrimination, in that St. Louis
HRC employees were not offered the Job Swap program or VSIP
benefits due to the demographics of the office compared with
other HRC locations. That action was dismissed on May 10, 2011,
for failure to satisfy the four required elements for a class
action. All class members were advised of their rights to
pursue an individual complaint of discrimination. (Doc. No.
101 at 7).
September 12, 2011, Plaintiff, who was represented by
counsel, filed a formal complaint with the EEOC, alleging
that Defendant discriminated against her on the basis of race
(African-American), sex (female), and age (66), when: (1) she
was not offered the Job Swap (“Complainant's
Memorandum in Opposition to Agency's Motion for Decision
without a Hearing, ” Doc. No. 1-1, at 14). Program and
$25, 000 VSIP, in connection with BRAC actions; and (2)
Defendant failed to promote Plaintiff.
complaint was initially dismissed as untimely because
Plaintiff had failed to present her claims to an EEO
counselor within forty-five days. However, the EEOC Office of
Federal Operations (“OFO”) overruled the
decision, determined that Plaintiff had timely initiated EEO
counselor contact, and remanded the complaint for
investigation. On August 4, 2015, the EEOC issued a final
agency decision on Plaintiff's claims, finding no
discrimination. This decision was affirmed by the OFO on
August 9, 2017, and Plaintiff's request for
reconsideration was denied on January 25, 2018.
filed this lawsuit pro se on April 30, 2018, claiming
discrimination on the basis of race, sex, and age, for
Defendant's failure to (1) promote Plaintiff on four
occasions; and (2) offer VSIP and/or participation in the Job
Swap Program due to race and gender bias.
17, 2019, Defendant filed this motion for summary judgment,
arguing that Plaintiff fails to present a prima facia case
for discrimination, and she fails to present any evidence
that Defendant's legitimate, nondiscriminatory reasons
given for the above-referenced actions were pretext.
Defendant also argues that Plaintiff's failure to promote
claims should be dismissed for failure to ...