Callaghan v. Department of Veterans Affairs

Filing 33

OPINION AND ORDER granting deft's 29 Motion for Summary Judgment, dismissing pltf's second amended complaint with prejudice; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 4/25/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
MICHAEL CALLAGHAN
v.

PLAINTIFF
No. 4:10CV01049 JLH

DEPARTMENT OF VETERANS AFFAIRS,
Eric K. Shinseki, Secretary, et al.

DEFENDANTS

OPINION AND ORDER
Michael Callaghan commenced this action against numerous defendants alleging employment
discrimination on the basis of gender and national origin. The Court granted the defendants’ Rule
12(b)(6) motions for dismissal and dismissed the action without prejudice. The Court construed
Callaghan’s motion for reconsideration as a motion for leave to amend the complaint and granted
it. Callaghan has now filed a second amended complaint against Eric K. Shinseki, Secretary of the
Department of Veterans Affairs. In this complaint, Callaghan has left out any reference to his
national origin. The Department has moved for summary judgment and Callaghan has responded.
As the Court noted in its order of dismissal, the complaint and amended complaint were not
easy to decipher. This assessment, alas, also applies to Callaghan’s second amended complaint.
Callaghan alleges that he was not promoted to the position of Bar Code Medication Administrator
Coordinator because of his sex. Callaghan also alleges that he was treated disparately and subjected
to a hostile work environment on account of his sex.
I.
A court should enter summary judgment when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). When
a nonmoving party cannot make an adequate showing on a necessary element of the case on which
that party bears the burden of proof, the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The
moving party bears the initial responsibility of demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. If the moving party meets this burden,
“the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue
for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,
1356, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). A genuine issue for trial exists only
if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson,
477 U.S. at 249, 106 S. Ct. at 2511. In deciding a motion for summary judgment, the Court views
the facts in the light most favorable to the nonmoving party and draws all inferences in his favor,
mindful that summary judgment seldom should be granted in discrimination cases where claims are
often based on inferences. Peterson v. Scott Cnty., 406 F.3d 515, 520 (8th Cir. 2005); Bassett v. City
of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) (collecting cases). But see Bainbridge v.
Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J., dissenting).
II.
“To establish a prima facie failure-to-promote claim, a plaintiff ordinarily must show ‘he or
she applied for the promotion and was rejected.’ ” McClure v. Career Sys. Dev. Corp., 447 F.3d
1133, 1135 (8th Cir. 2006) (citing Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1010
(8th Cir. 2003) (en banc)). However, failure to pursue the position may not forestall a suit where the
employer’s discriminatory practices make application futile. Id. at 1136. Callaghan originally
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applied for the Bar Code Medication Administrator Coordinator position but then retracted his
application. Callaghan explained that “as part of a conversation” he heard from an unspecified
associate chief nurse “that Sheila Sullivan and Sandra Grinder has spoken about selecting Lisa Eisele
for the BCMA Coordinator position.” Callaghan rejected an offer to interview for the position.
Based on this evidence, no reasonable fact finder could conclude that continuing to pursue the
BCMA Coordinator position would have been futile. Therefore, Callaghan cannot establish a prima
facie case of failure to promote because of discrimination based on sex.
III.
To establish a prima facie case of sex discrimination, Callaghan must prove that he: (1) is
a member of a protected class; (2) was qualified for his job; (3) suffered an adverse employment
action; and (4) alleged facts that give rise to an inference of gender or national origin discrimination.
Norman v. Union Pac. R.R. Co., 606 F.3d 455, 460-61 (8th Cir. 2010). Callaghan meets the first and
second elements.
Callaghan’s supervisor, Ms. Sandra Grinder, lowered his interpersonal skills rating to
“satisfactory” from “outstanding” on one of his proficiency reports stating that Callaghan used his
“email in a manner that others have found offensive/inappropriate.” In the report, Grinder went into
specifics without ever varying from a professional, objective tone. Callaghan offers no evidence that
other, similarly-situated female employees were given better reviews or that his review has any
negative impact on his career. Callaghan was moved to a smaller officer that he shared with another
employee and which he alleges had poor air circulation. Callaghan concedes that he was moved
because he prior office was in an area planned for renovations. After a period of between a few days

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and a few weeks, he was moved to an office which was larger than both prior offices.1 Callaghan
testified that he did not know where other employees affected by the remodeling were moved and
he offers no evidence that he was treated differently from female employees.
Callaghan also alleges that Donna Edwards, a Deputy Nurse Executive, did not provide him
with a promised reference which he needed to pursue his master’s degree. Callaghan testified that
he asked for the reference in October of 2008. He then made an appointment with Edwards two days
before the date he was to turn in the reference. According to Callaghan, Edwards told him he could
pick up the reference from her in the morning or else she would put it in his mailbox. However, he
never received it. Beyond conclusory allegations, Callaghan offers no evidence that female
employees were treated differently or that Edwards failure to provide a reference was a result of sexbased discrimination.
Callaghan testified that he was denied access to “menus and keys” which prevented him from
performing Automatic Data Processing Application Coordinator duties. Callaghan concedes that
he did not fill this position but contends that the acting ADPA Coordinator shared her duties with
him. Callaghan testified that, unlike him, another female employee, Lisa Eisele, who also performed
ADPA Coordinator duties, received her “menus and keys.” He concedes that he was able “to go to”
Eisele “and have her do those functions” which required the “menus and keys.” Finally, Callaghan
alleges that he performed ADPA Coordinator duties before or after his normal work. He complains
that, instead of being praised for these efforts, he was criticized for not seeking prior approval on
each occasion he remained at the facility past his normal shift. Callaghan contends that it would be
“very difficult” to obtain prior approval before working outside of his scheduled tour of duty. He
1

Callaghan could not recall how long he was remained in the small office.
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offers no evidence that the requirement that he obtain prior authorization was applied selectively to
him or that it was based on his sex.
Grinder’s negative comments on Callaghan’s proficiency report and criticisms regarding his
failure to obtain approval before staying at the facility past his scheduled shift times do not constitute
adverse employment actions. Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1028 (8th Cir.
2004) (citing Spears v. Mo. Dept. of Corr. and Human Res., 210 F.3d 850, 854 (8th Cir. 2000));
Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1157 (8th Cir. 1999) (criticizing an
employee for work deficiencies does not amount to an adverse employment action). Similarly, the
inconvenience of a temporary assignment to a smaller office with poor air circulation does not satisfy
the “adverse employment action” prong of the prima facie case. Fercello v. Cnty. of Ramsey, 612
F.3d 1069, 1078-79 (8th Cir. 2010); Haynes v. Reebaire Aircraft, Inc., 161 F. Supp. 2d 985, 990
(W.D. Ark. 2001) (“Changes in duties or working conditions that cause no materially significant
disadvantage, such as reassignment, are insufficient to establish the adverse conduct required to
make a prima facie case.”) (citing Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.
1994)). To the extent this move was adverse, it lasted no more than a few weeks and, therefore, was
trivial. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415,
165 L. Ed. 2d 345 (2006); Baker v. John Morrell & Co., 382 F.3d 816, 829 (8th Cir. 2004) (“not
everything that makes an employee unhappy is an actionable adverse action.”). Additionally,
Edward’s alleged failure to provide Callaghan with a reference is probably not an adverse
employment action. Mackie v. U.S. Mfg., Inc., No. C03-85-LRR, 2005 WL 1532545, *17 (N.D.
Iowa June 29, 2005) (“An employer has no duty to write letters of recommendation. . .”). Indeed,
since Callaghan was not the ADPA Coordinator, the denial of access to the “menus and keys” also
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was not an adverse employment action. Enowmbitang v. Seagate Tech., Inc., 148 F.3d 970, 973-74
(8th Cir. 1998) (“Adverse employment action is that which materially alters the terms or conditions
of the plaintiff’s employment. [The defendant’s] failure to provide [the plaintiff] a computer does
not rise above a ‘mere inconvenience’ and therefore does not constitute an adverse employment
action; whether [the defendant] wishes to give its technicians specific pieces of equipment is a
business decision that is not susceptible to judicial oversight.”) (internal citations omitted).
Consequently, Callaghan fails or likely fails to establish the third element of his prima facie case
regarding all the conduct about which he complains.
For all but one of Callaghan’s allegations, he fails to offer even a scintilla of evidence that
similar female employees were treated differently or that the actions were a result of discrimination
based on sex.2 Callaghan testified that a female coworker was given “menus and keys” while he was
not. Proof that similarly situated employees outside the protected class were treated differently raises
an inference of discrimination. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir.
2006). If Grinder’s refusal to provide Callaghan with “menus and keys” was an adverse
employment action, then Callaghan’s testimony may raise an inference of discrimination based on
gender. However, Callaghan categorically fails to raise such an inference with respect to his other
allegations.
The Department offers legitimate, nondiscriminatory reasons for its actions. Grinder testified
that both Callaghan and Eisele were performing the same ADPA Coordinator work causing

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For this reason, Callaghan also would be unable to raise a question of fact as to whether
the explanations for these actions, articulated in the Department’s brief, are pretextual. See
Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 521 (8th Cir. 2010).
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“duplicate efforts.” Grinder stated that Callaghan told her that he was overwhelmed with his duties
and so she asked Eisele to continue to perform the ADPA Coordinator work and asked Callaghan
to discontinue these duties. She also testified that she gave some of these duties to a male staff
member. Callaghan offers no evidence rebutting this testimony, indicating that these proffered
explanations have no basis in fact, or tending to establish that discrimination based on gender more
likely motivated Grinder. Anderson, 606 F.3d at 521. Thus, Callaghan cannot establish pretext.
IV.
“Hostile work environment claims are limited in nature, requiring a high evidentiary showing
that the plaintiff’s workplace is ‘permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’ ” Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 550 (8th
Cir. 2007) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295
(1993)); Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1194 (8th Cir. 2006). To establish
his prima facie case, Callaghan must prove: (1) that he was a member of a protected group; (2) the
occurrence of unwelcome harassment; (3) a causal nexus between the harassment and his
membership in the protected group; (4) that the harassment affected a term, condition, or privilege
of employment; and (5) that the employer knew or should have known of the harassment and failed
to take prompt and effective remedial action. Vajdl, 484 F.3d at 550.
Callaghan meets the first element since he is male. Grinder’s negative comments about
Callaghan on his proficiency report and criticisms about working when not scheduled without
obtaining prior approval do not amount to harassment. Spears, 210 F.3d at 855 (citing Tork v. St.
Luke’s Hosp., 181 F.3d 918, 919 (8th Cir. 1999) (unfavorable evaluations did not make conditions
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intolerable) and Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997)
(special scrutiny and criticism of employee’s conduct did not make conditions intolerable)).
Similarly, Callaghan’s temporary relocation because of remodeling, inability to get a timely
reference, and denial of “menus and keys” for ADPA Coordinator duties do not constitute
harassment. See Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997) (transfer to different
facility where employee’s title, pay, and benefits remained constant did not create intolerable
environment). Further, Callaghan offers no evidence that any of the complained about conduct was
connected to his sex or affected his employment.3 Even if it believed Callaghan’s testimony, no
reasonable jury could conclude that this conduct caused his work environment to be permeated with
severe or pervasive intimidation, ridicule, and insult so as to render it intolerable.
Callaghan also alleges in his complaint that on one occasion “a mob of staff [made]
derogatory comments outside [his] office” and that they were made at his expense and were “very
distasteful.” Callaghan, however, offers no admissible evidence, not even an affidavit, substantiating
this claim. Further, “simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment.”
Breeding, 164 F.3d at 1158. Nor has Callaghan offered any evidence showing a causal nexus
between this incident and his gender. Indeed, he does not even allege that the derogatory comments
were explicitly sexual. C.f. Noble v. Monsanto Co., 973 F. Supp. 849, 854-55 (S.D. Iowa 1997)
(“The mere fact that incidents of harassment are vulgar or explicitly sexual in nature does not,
without more, mean the harassment is necessarily based on gender.”). Callaghan’s evidence simply
3

Except Callaghan’s allegation that a female coworker was given “menus and keys.”
Although this may be some evidence of disparate treatment, it is not the sort of conduct which
renders a working environment intolerable.
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does meet the “demanding harassment standards” which a court must apply when considering hostile
work environment claims. Al-Zubaidy v. TEK Indust., Inc., 406 F.3d 1030, 1039 (8th Cir. 2005).
CONCLUSION
For the foregoing reasons, the Department of Veterans Affairs’ motion for summary
judgment is granted. Document #29. Michael Callaghan’s second amended complaint is dismissed
with prejudice.
IT IS SO ORDERED this 25th of April, 2011.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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