Jones v. Gibson et al

Filing 38

MEMORANDUM OPINION & ORDER: (1) Pla's 34 Motion to Appoint Counsel is DENIED for the same reasons as stated in the Court's orders on his prior, similar motions ( 12 and 28 ). (2) Dft's 31 Motion for Leave to Seal Document is DENIED. (3) Dfts' 32 MOTION to Dismiss or in the alternative MOTION for Summary Judgment is GRANTED. (4) Judgment will be entered by separate order. Signed by Judge Joseph M. Hood on September 30, 2016. (AWD) cc: COR,Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DAMIAN L. JONES,
Plaintiff,
v.
ROBERT A. MCDONALD, Secretary
of Veterans Affairs, et al.,
Defendants.

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Civil Case No.
14-CV-361-JMH

MEMORANDUM OPINION & ORDER

***

This matter is before the Court upon Defendant’s Motion to
Dismiss or, in the Alterative, for Summary Judgment [DE 32].1

In

response, Plaintiff has made a renewed motion for appointment of
counsel

[DE

34].

The

Court

has

carefully

considered

both

requests for relief and concludes (1) that, while Plaintiff is
untrained in the law, his motion for appointment of counsel
should be denied for the same reasons as the Court denied his
previous requests for the same relief and (2) that Defendants’

1

The Court considers, as well, Defendants’ Motion to Seal [DE 31] the
Memorandum in Support of its Motion to Dismiss or, in the Alternative, for
Summary Judgment, as well as the materials offered in support of that Motion
on the grounds that they contain personal information about Plaintiff and his
employment.
The Court is of the opinion that these materials have come to
light because of Plaintiff’s decision to file suit about his employment and
that, while they address matters specific to Plaintiff and his employment,
they are not suitable for sealing because they do not contain personal
information subject to seal like social security numbers, bank account
information, etc. Defendants’ Motion to Seal will be denied.

1

Motion to Dismiss or, in the Alterative, for Summary Judgment
[DE 32] should be granted for the reasons stated below.
I.
On March 27, 2013, Jones, who is African-American, signed a
VCS

Employment

Jones

Services

performed

Veterans

the

Canteen

Contract.

duties

Service

of

a

As

a

Food

(“VCS”)

VCS

contract

Service

in

Worker

Lexington,

worker,
at

the

Kentucky.

Plaintiff was an independent contractor, not a federal employee.
He served in this position until June 29, 2013.
a

federal

employee,

appointed

Clerk

as

(Vending

an
at

He then became

excepted
the

VCS

not-to-exceed

temporary

Supply

in

Lexington,

Kentucky.

His temporary employment as a Supply Clerk (Vending)

was extended until October 5, 2013, based on the staffing needs
of

the

VCS,

at

which

time

his

terminated due to overstaffing.

temporary

employment

was

His Notifications of Personnel

Actions effective June 30, 2013, and September 7, 2013, state,
“REASON FOR TEMPORARY APPOINTMENT: *TEMPORARY STAFFING NEEDS ON
THE VETERANS CANTEEN SERVICE.”
At

some

point,

Sherri

Whittaker,

American, became Plaintiff’s supervisor.

who

is

also

African-

The record suggests

that she and Jones had several occasions on which to speak about
his performance as an employee at the canteen and that some of
these conversations would best be described as “charged.”

Most

of those conversations are immaterial to the matter before the
2

Court

today,

but

at

least

one

is

relevant

to

Plaintiff’s

averment that he was subjected to racial discrimination at the
job which resulted in the termination of his employment.

When

asked in his EEO Affidavit whether there was direct evidence of
discrimination related to his race, Jones stated that Whitaker
told him that she was there to “clean out all the niggers.”

In

his Amended Complaint, Plaintiff avers that Whittaker called him
into her office on September 14, 2013, for a conference and
informed

him

niggers!”

that

“[s]he

was

there

to

sweep

out

all

the

When asked why Whitaker would make that statement,

Jones said, “I really don’t know why.

When I first met her, she

– we really didn’t come across like she was – act like she was
upset just to be there.

So she had told me that she had heard

that I was stealing out of machines and all that stuff.
made

that

statement,

but

I

really

don’t

And she

understand

why.”

Whittaker’s testimony suggests that she does not recall this
conversation.
Nonetheless, it is undisputed that Plaintiff’s employment
at the canteen was terminated.
Action

effective

TERMINATION:

October

His Notification of Personnel

5,

2013,

reads,

STAFFING NEEDS HAVE EXPIRED.”

“REASON

There are two types

of termination for temporary appointments like his:
and

because

the

appointment

expired.

In

FOR

Jones’s

for conduct
case,

his

temporary employment was not renewed once it expired because
3

there

was

an

overstaff

situation

based

on

the

table

of

organization that Canteen Services uses to determine staffing.
When

the

overstaffing

situation

arose,

Whitaker

contacted

an

individual named Skip Snyder in the human resources department
and asked him who the last person to come in was and when their
contract ended.

Snyder informed Whitaker that Jones was the

last temporary employee to be hired and that his contract ended
on

October

5,

2013,

and

she

has

testified

that

neither

Plaintiff’s race nor any prior EEO activity were a factor when
making the decision to terminate Plaintiff’s employment at the
canteen.

Jones was informed that his termination was due to

overstaffing.
II.
Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A genuine dispute of material fact exists only when, assuming
the truth of the non-moving party's evidence and construing all
inferences from that evidence in the light most favorable to the
non-moving party, there is sufficient evidence for a trier of
fact to find for that party. See Ciminillo v. Streicher, 434
F.3d

461,

464

(6th

Cir.

2006).

A

non-moving

party

cannot

withstand summary judgment, however, by introduction of a “mere
scintilla” of evidence in its favor. Id.
4

For the reasons set

forth below, the Court concludes that Defendants are entitled to
judgment as a matter of law.
III.
As

an

Whittaker

initial
in

dismissed.

her

The

discrimination

matter,

individual

only
and

proper

Plaintiff’s
and

official

party

retaliation

claims

capacities

Defendant

claim

against

in

brought

a
by

Sherri

must

Title
a

be
VII

federal

employee or a former federal employee is the head of the agency
in

his

or

her

official

capacity.

42

U.S.C.

§

2000e-16(c).

Thus, the only proper party Defendant is Robert A. McDonald in
his official capacity as Secretary of Veterans Affairs.2

IV.
Title VII makes it unlawful for an employer to discriminate
against an employee relative to that employee’s compensation,
terms, conditions, or privileges of employment on account of the
employee’s race. See 42 U.S.C. § 2000e-2(a)(1); Singfield v.
Akron Metro. Hous. Auth., 389 F.3d 555, 561 (6th Cir. 2004).
Title VII claims of racial discrimination may be proven either
by direct evidence or by circumstantial evidence. Johnson v.
Kroger

Co.,

319

F.3d

858,

864–65

2

(6th

Cir.

2003)

(citation

Plaintiff has named Sloan D. Gibson as defendant in this matter, but Robert
A. McDonald has been appointed to the position and has served as Secretary of
Veterans
Affairs
throughout
the
pendency
of
this
suit.
See
http://www.va.gov/opa/bios/bio_mcdonald.asp.
Accordingly,
he
shall
be
substituted for Gibson as a defendant in this action.

5

omitted).
evidence

“In

discrimination

which,

if

cases,

believed,

direct

requires

the

evidence

is

that

conclusion

that

unlawful discrimination was at least a motivating factor in the
employer's

actions.”

Jacklyn

v.

Schering–Plough

Healthcare

Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Moreover,
“direct evidence of discrimination does not require a factfinder
to draw any inferences in order to conclude that the challenged
employment action was motivated at least in part by prejudice
against the protected group.” Johnson, 319 F.3d at 865. For *442
example, “a corporate decision maker's express statement of a
desire to remove employees in the protected group is direct
evidence of discriminatory intent.”3 Nguyen v. City of Cleveland,
229 F.3d 559, 563 (6th Cir. 2000).

For the purpose of this

Memorandum Opinion and Order, the Court recognizes that there
may

be

an

issue

of

material

fact

with

respect

to

whether

Plaintiff’s supervisor ever made the statement attributed to her
but accepts as true that Plaintiff’s supervisor announced to him

3

“In order to set forth a claim of discrimination, a plaintiff
must show that he has suffered an adverse employment action;
that is, he must establish that he has suffered a ‘materially
adverse’ change in the terms or conditions of employment because
of the employer's action.” Nguyen v. City of Cleveland, 229 F.3d
559, 562 (6th Cir. 2000) (citing
Kocsis v. Multi–Care
Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996)). Here, the
termination of Plaintiff’s employment qualifies as an adverse
employment action.

6

that she was at the Canteen “for the purpose of cleaning out the
niggers.”
why

people

Without delving into the meaning of that statement or
say

what

they

do,

the

Court

will

simply

assume

without deciding for the purposes of this Memorandum Opinion and
Order that such a statement is direct evidence of discriminatory
intent.4
However,

once

a

plaintiff

shows

that

the

prohibited

classification – here, race -- played a motivating part in the
employment

decision,

the

burden

of

both

production

and

persuasion shifts to the employer to prove that it would have
terminated the plaintiff’s employment even if it had not been
motivated by impermissible discrimination. Nguyen, 229 F.3d at
563 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244–45
(1998); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078,
1081

(6th

Cir.

1994)).

In

this

instance,

the

undisputed

material facts demonstrate that Defendants would have terminated
Plaintiff’s employment even if it had not been motivated by
4

The Court also recognizes that Plaintiff’s supervisor was
African-American, as was Plaintiff.
This does not create a
presumption that she lacked the necessary animus to discriminate
against Plaintiff.
See Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 76 (1998) (“[I]n the related context of
racial discrimination in the workplace we have rejected any
conclusive presumption that an employer will not discriminate
against members of his own race. Because of the many facets of
human motivation, it would be unwise to presume as a matter of
law that human beings of one definable group will not
discriminate against other members of their group.”)(quoting
Castaneda v. Partida, 430 U.S. 482, 499 (1977)).
7

impermissible discrimination.
canteen

was

overstaffed,

Once it was determined that the
Whitaker

sought

to

remedy

the

overstaffing situation by terminating the employment of the last
employee who was hired.

She was informed that Jones was the

least senior temporary employee, whose temporary contract was
expiring or expired in any event.
supports

the

conclusion

Thus, the undisputed evidence

Jones

was

not

reappointed

to

his

temporary position due to overstaffing and the expiration of his
contract – not because of racial animus.

As the most recent

hire with an expired contract, he was the first person to be let
go.

Even

if

Plaintiff

discriminatory

intent,

demonstrating

that

has

presented

Defendants

it

would

have
have

employment absent that intent.

direct

borne

evidence

their

terminated

of

burden

of

Plaintiff’s

Accordingly, Plaintiff’s claim

fails, and their Motion for Summary Judgment will be granted.
V.
Plaintiff also avers that his employment was terminated in
retaliation

for

his

complaints

to

the

EEOC.

In

order

to

establish a prima facie case of retaliation, Jones must show
that: (1) he engaged in protected activity; (2) the employer had
knowledge of the protected activity; (3) he suffered an adverse
employment action; and (4) a causal connection exists between
the protected activity and the adverse employment action.
v. United Parcel Service, Inc., 501 F.3d at 713.
8

Clay

The causal

connection is a “but for” causal connection.

Laster v. City of

Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014) (citing Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)
(holding that a retaliation claim “must be proved according to
traditional principles of but-for causation,” which “requires
proof that the unlawful retaliation would not have occurred in
the absence of the alleged” protected activity)).
In

this

instance,

Plaintiff

cannot

sustain

his

burden

because there is no suggestion that his employer knew of his
complaints

to

the

union

on

September

4,

2013,

or,

for

that

matter his contact with an EEO counselor on October 8, 2013, or
his formal complaint of discrimination on November 14, 2013,
before terminating his employment on October 5, 2013. Further,
the

undisputed

material

facts

reveal

that,

once

it

was

determined that the canteen was overstaffed, Whitaker sought to
remedy the overstaffing situation by terminating the employment
of the last employee who was hired.

Only after she was informed

that

temporary

Jones

was

the

least

senior

employee,

whose

contract was expiring or expired in any event, did she terminate
his employment.
aware

of

his

Thus, whether because his employer was not
protected

activity

or

because

the

undisputed

evidence supports the conclusion Jones was not reappointed to
his temporary position due to overstaffing not retaliation, his

9

claim

fails

and

summary

judgment

in

favor

of

Defendants

is

appropriate.
For all of the reasons stated above, Plaintiff’s claims
must fail.
Accordingly, IT IS ORDERED:
(1)

That Plaintiff’s Motion for Appointment of Counsel [DE

34] is DENIED for the same reasons as stated in the Court’s
orders on his prior, similar motions [see DE 12 and 28].
(2)

That Defendants’ Motion to Seal [DE 31] is DENIED;

(3)

That

Defendants’

Motion

to

Dismiss

or,

in

Alternative, for Summary Judgment [DE 32] is GRANTED.
(4)

That judgment will be entered by separate order.

This the 30th day of September, 2016.

10

the