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Harris v. Esper

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

October 16, 2019

LILLIE HARRIS, Plaintiff,
v.
MARK T. ESPER, Secretary, Department of the Army, Defendant.

          MEMORANDUM & ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This 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[1] 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.

         From 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).

         “There 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.

         Plaintiff 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.

         I. Background[2]

         At all 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.[3] 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.

         Plaintiff 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 GS-9 position.

         On 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.

         In or 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 rule.[4]

         The 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”[5] 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.”[6] 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.

         On 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.[7] 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).

         On 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.

         Plaintiff's 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.

         Plaintiff 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.[8]

         On July 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 ...


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