Allen v. U.S. Secretary of Defense

Filing 69

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants Motion for SummaryJudgment and Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Doc. No. 45) is GRANTED to the extent defendant seeks summary judgment on plaint iffs claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000, et seq., that she was unlawfully discriminated against in her employment on account of her race and in retaliation for engaging in protected conduct . In all other respects, defendants motion is DENIED. IT IS FURTHER ORDERED that plaintiffs Cross Motion for Summary Judgment (Doc. No. 52) is DENIED. IT IS FURTHER ORDERED that plaintiffs Motion for a Jury Trial (Doc. No. 51) is DENIED as moot. IT I S FURTHER ORDERED that plaintiffs supplemental claim of defamation under Missouri law is dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Judgment shall be entered accordingly. ORDER granting 45 Motion for Summary Judgment; denying 51 Pro Se Motion; denying 52 Motion for Summary Judgment Signed by Magistrate Judge Frederick R. Buckles on 2/8/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALICE ALLEN,

)
)
)
)
) No. 4:10CV1928 FRB
)
)
)
)
)

Plaintiff,
v.
UNITED STATES SECRETARY OF
DEFENSE,
Defendant.

MEMORANDUM AND ORDER
Presently pending before the Court are the parties'
cross-motions for summary judgment (Doc. Nos. 45, 52). All matters
are pending before the undersigned United States Magistrate Judge,
with consent of the parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff

Alice

Allen

brings

this

action,

pro

se,

pursuant to Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000, et seq., alleging that she was discriminated
against in her employment with the National Geospatial Intelligence
Agency (NGA), a branch of the United States Department of Defense,
on account of her race and in retaliation for engaging in protected
activity.

Plaintiff also brings a claim of defamation against the

NGA.
Defendant moves for summary judgment on plaintiff’s Title
VII claims arguing that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law on
plaintiff's claims.

Defendant also moves to dismiss plaintiff’s

claim of defamation under Fed. R. Civ. P. 12(b)(6), arguing that it
fails to state a claim upon which relief can be granted.
response

to

defendant's

motion,

judgment on all of her claims.
briefs and briefs in reply.

plaintiff

moves

for

In

summary

Both parties have filed responsive

Plaintiff has also filed a sur-reply

brief.
I.

Title VII Claims

Both parties move for summary judgment on plaintiff’s
Title VII claims of unlawful employment discrimination.
Pursuant to Fed. R. Civ. P. 56(c), a court may grant
summary judgment if the information before the court shows that
there are no material issues of fact in dispute and that the moving
party is entitled to judgment as a matter of law.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

Anderson v.

The burden of proof

is on the moving party to set forth the basis of its motion,
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court
must view all facts and inferences in the light most favorable to
the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986).

Once the moving party shows there are no

material issues of fact in dispute, the burden shifts to the
adverse party to set forth facts showing there is a genuine issue
for trial.
pleadings,

Id.
but

The non-moving party may not rest upon her
must

come

forward

with

affidavits

or

other

admissible evidence to rebut the motion. Celotex, 477 U.S. at 324.

-2-

Summary judgment is a harsh remedy and should not be granted unless
the movant "has established [its] right to judgment with such
clarity as to leave no room for controversy."

New England Mut.

Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977).

The

Eighth Circuit has noted, however, that "summary judgment can be a
tool of great utility in removing factually insubstantial cases
from crowded dockets, freeing courts' trial time for those that
really do raise genuine issues of material fact."

City of Mt.

Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268, 273
(8th Cir. 1988).
A.

Background
Focused

Management, Inc. (FMI), is a private business

whose purpose is to employ and provide workers to fulfill contract
assignments

with

government

agencies.

In

October

2009,

NGA

contacted FMI and requested a contract employee to work as an
administrative assistant for the period of October 2009 to June
2013.

(Gov. Exh. A.)

The NGA Tech Monitor/Point of Contact for

this position was Christine Woodard.

(Id.)

Plaintiff applied for

the position in November 2009 and was selected by FMI to perform
the employment services under the contract.

(Gov. Exh. B.)

On

December 28, 2009, plaintiff reported to NGA and began her contract
employment as an administrative assistant for NGA.

Plaintiff’s

employment ended on March 3, 2010, upon being notified by FMI that
she was being terminated from her employment as an administrative

-3-

assistant.

(Gov. Exh. H.)
Upon plaintiff’s arrival at NGA on December 28, 2009, and

thereafter, Mary B. Leible, Staff Officer with NGA, was responsible
for training plaintiff to perform the duties required in the
contracted position of administrative assistant.

In e-mails dated

January 14, 2010, Judith Packman, Supervisory Project Scientist at
NGA, informed Ms. Leible and Ms. Woodard of plaintiff’s inadequate
performance in preparing badges and in failing to follow detailed
instructions provided on January 6, 2010.
6-71; Exh. K.)

(Gov. Exh. F1 at ECF pp.

In e-mails dated January 19, 2010, Ms. Leible

reminded plaintiff to perform calendar duties and roster updates
pursuant to previous instructions provided on January 6, 2010.
(Gov. Exh. F1 at ECF p. 9.)

In an e-mail dated January 26, 2010,

Ms. Leible informed Ms. Packman and Ms. Woodard that plaintiff had
difficulty independently accessing and navigating online resources
to perform the tasks required.

Ms. Leible reported that she

advised plaintiff that it would take initiative and investigation
to learn the resources and to be able to retrieve the information
needed inasmuch as Ms. Leible did not know everything required for
plaintiff to do her job.

(Id. at

ECF pp. 13-14.)

In her

Declaration dated August 6, 2010, Ms. Leible set out additional
1

Some of the documents submitted to the Court bear multiple
and sometimes inconsistent page numbers, while other documents bear
no page numbers at all. When referring to specific pages of these
documents, the Court will identify the respective pages by the page
numbers assigned by the Court’s Electronic Case Filing system
(ECF).
-4-

performance deficiencies which occurred on February 10 and 25,
2010, relating to time sheet entries, multiple mistakes therein,
and untimely completion of the work.

(Gov. Exh. E at ECF pp. 4-5.)

Jeffrey P. Appel, Staff Officer with NGA, was responsible
for overall program management during this period of plaintiff’s
employment,

including

management

of

the

AdminServ

Program

responsible for arranging contracts to obtain secretarial and
administrative support for NGA management.
2-4.)

Written

concerns

regarding

(Gov. Exh. J at ECF pp.

plaintiff’s

performance

as

expressed by Ms. Leible, Ms. Packman and Ms. Woodard were provided
to Mr. Appel on February 3, 2010.
concerns,

Mr.

Appel

characterized

Based on these expressed
and

summarized

plaintiff’s

performance problems as follows:
––
Inability to follow written instructions
and
guidance
provided
for
accomplishing
assigned tasks.
––
Inability to complete tasks assigned in a
timely manner.
––
Inability to work with a degree of
independence,
and
significant
Government
feedback/interface is required.
––
Inability to proactively engage with
Government staff and act as an advisor to
management.
––
Has
not
demonstrated
the skills,
knowledge and abilities to support travel
planning and DTS documentation requirements.
––
Has
not
demonstrated
the
skills,
knowledge and abilities to support time and
attendance functions in DCPS.
––
Has
not
demonstrated
the skills,
knowledge and abilities to support PeopleSoft
data entry requirements.
––
Has not demonstrated proficiency in MS
-5-

Outlook calendar tools.
(Id. at ECF p. 5.)
On February 18, 2010, Mr. Appel sent a summary of plaintiff’s
performance issues to NGA contracting officers, Major Demetrius
Green and Frederica Stevens.

Mr. Appel also sent the summary to

NGA’s contract attorney, Eric Croft.

After being provided such

information, Major Green informed Mr. Appel that he concurred with
the actions to be taken with regard to plaintiff, and Mr. Croft
informed

Mr.

reasonable.

Appel

that

the

actions

to

be

taken

appeared

(Id. at ECF pp. 6-7.)

Mr. Appel provided his prepared summary of plaintiff’s
performance problems to George Jackson, President of FMI, and
formally cited such issues in an e-mail to Mr. Jackson on March 2,
2010.

(Gov. Exh. F1 at ECF p. 1; Exh. J at ECF pp. 5-6, 8-9.)2

Upon documenting plaintiff’s performance problems and addressing
such problems with FMI, Mr. Appel “requested that FMI provide staff
with the skills, knowledge and abilities to fulfill the terms of
the contract.”

(Id. at ECF p. 5.)

In a letter dated March 3, 2010, FMI informed plaintiff

2

At a discovery hearing on October 11, 2011, counsel for the
government represented that the direct report from NGA to FMI
regarding plaintiff’s performance was included in the report of
investigation prepared at the administrative level of this
proceeding. Counsel represented that the cover page of a packet of
e-mails exchanged between NGA employees constitutes this report to
FMI (Gov. Exh. F1 at ECF p. 1), and that the e-mails were attached
thereto to support this report (id. at ECF pp. 2-23).
-6-

that, effective that same date, her employment as an administrative
assistant was terminated. The letter was signed by George Jackson.
(Gov. Exh. H.)

In his Declaration dated August 6, 2010, Mr. Appel

stated that plaintiff’s employment was terminated because “FMI/Ms.
Allen experienced significant difficulty in performing assigned
tasking, which resulted in significant performance problems under
the contract.
contract.”

FMI/Ms. Allen was unable to fulfill the terms of the

(Gov. Exh. J at ECF p. 4.)
Prior to the period of employment at issue in this cause,

plaintiff worked at NGA on numerous other occasions.

From June

1978 until her retirement in September 2003, plaintiff worked at
NGA as a civilian employee.

Thereafter, plaintiff worked as a

contract employee from November 2004 to May 2005, from March 2006
to February 2008, and from August 2008 to August 2009.3

Throughout

these previous periods of employment, and specifically through July
2009,

plaintiff

participated

in

and

completed

numerous

NGA-

sponsored training courses which were required for the performance
of plaintiff’s jobs with NGA and/or for professional development.
Performance evaluations regarding plaintiff’s previous employment
with NGA show plaintiff to have met or exceeded expectations and/or
to be superior in her performance of the assigned job(s). (Pltf.’s
Exhibits, Doc. No. 54 at ECF pp. 7-15, 17-21, 25-28, 33-56, 62.)
3

Plaintiff claims that each period of employment, including
her twenty-five years as a civilian employee, ended as a result of
NGA’s discriminatory practices. (See Pltf.’s Stmnt. of Uncontr.
Mat. Facts, Doc. No. 53 at paras. 27-32.)
-7-

During the period of employment at issue in the instant
cause, that is, from December 28, 2009, through March 3, 2010,
plaintiff had pending before the EEOC a charge of discrimination
against NGA relating to a previous period of employment as a
contract employee.

(Gov. Exh. C, Pltf.’s Depo. at pp. 100-02.)

The EEOC entered an Order in that case on February 4, 2010, in
which it acknowledged plaintiff’s request for hearing. On February
23, 2010, an agency representative acting on behalf of NGA directed
discovery requests to plaintiff in relation to the case.
Sur-Reply, Doc. No. 65, Exhs. 14, 24.)

(Pltf.’s

At no time prior to

plaintiff’s termination on March 3, 2010, did Mr. Appel, Ms. Leibel
or Ms. Packman have knowledge that plaintiff was involved in
previous EEOC activity.

(Gov. Exh. E at ECF p. 3; Exh. J at ECF p.

9; Exh. K at ECF p. 3.)

Plaintiff has no direct knowledge that Ms.

Woodard was aware of her previous EEOC activity, but feels it
reasonable to believe that Ms. Woodard had such knowledge inasmuch
as “everybody knew [plaintiff] at this particular time and . . .
knew [she] was a person against discrimination[.]”

(Gov. Exh. C,

Pltf.’s Depo. at p. 32.)
Throughout this period of employment, plaintiff was the
only African-American employee in her unit of approximately thirty
persons.

(Gov. Exh. C, Pltf.’s Depo. at pp. 46-47, 104.)
Plaintiff initiated contact with the EEOC on March 5,

2010,

regarding

the

circumstances

-8-

of

her

termination

as

an

administrative assistant with NGA. At the time of such contact, an
employee had not been placed in the position previously occupied by
plaintiff.

An employee had been identified by FMI to fill the

position but, as of August 6, 2010, had not yet started work and
was awaiting security clearance.
August

2010,

Ms.

Leible

was

(Gov. Exh. J at ECF p. 10.)

performing

the

duties

In

typically

assigned to the administrative assistant position. (Gov. Exh. E at
ECF p. 8.)
B.

Discussion
1.

Independent Contractor v. Employee
Defendant first contends that plaintiff cannot recover

against NGA on her Title VII claims inasmuch as NGA was not her
“employer.” Defendant argues that FMI was plaintiff’s employer and
that plaintiff’s relationship with NGA was that of an independent
contractor assigned by FMI to perform contract work at NGA.
“The law is well established that Title VII protects
employees,

not

independent

employment practices.”

contractors,

from

discriminatory

Hunt v. State of Mo., Dep’t of Corr., 297

F.3d 735, 741 (8th Cir. 2002).

However, in determining whether an

individual is an employee or independent contractor for Title VII
purposes, courts are cautioned against relying on the existence of
a contract that refers to a party as an independent contractor,
“because an employer may not avoid Title VII by affixing a label to
a person that does not capture the substance of the employment

-9-

relationship.”
omitted).

Id.

Instead,

(internal
courts

citations

must

undergo

and
a

quotation

marks

“fact-intensive”

examination “of all aspects of the working relationship between the
parties.”

Id. (internal citations and quotation marks omitted).
To determine whether a hired party is an “employee” for

purposes of Title VII, courts consider:
“the hiring party's right to control the
manner and means by which the product is
accomplished.
Among the other factors
relevant to this inquiry are the skill
required; the source of the instrumentalities
and tools; the location of the work; the
duration of the relationship between the
parties; whether the hiring party has the
right to assign additional projects to the
hired party; the extent of the hired party's
discretion over when and how long to work; the
method of payment; the hired party's role in
hiring and paying assistants; whether the work
is part of the regular business of the hiring
party; whether the hiring party is in
business; the provision of employee benefits;
and the tax treatment of the hired party. No
one of these factors is determinative.”
Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486, 489 (8th Cir.
2003) (quoting Community for Creative Non-Violence v. Reid, 490
U.S. 730, 751–752 (1989)).
In addition, although being employed by an agency for the purpose
of providing work to a contracting business is a factor to be
considered, it is not necessarily the decisive factor in assessing
a party’s employment status with a contracting party.
F.3d at 742.

Hunt, 297

Indeed, for purposes of conferring standing to sue

under Title VII, a person may have two or more employers for the
- 10 -

same work. Id. (“nothing in the law precludes the possibility that
a person may have two or more employers for the same work.”); see
also Newsom v. Anheuser-Busch Cos., Inc., 286 F. Supp. 2d 1063,
1068 (E.D. Mo. 2003).
The undisputed facts in the present case establish that,
for purposes of Title VII, plaintiff was an employee of NGA.
Although plaintiff was selected and hired by FMI to fulfill its
contract with NGA, received her paycheck and W-2 from FMI, and
received

notice

of

her

termination

from

FMI,

the

undisputed

evidence shows that NGA exclusively controlled the manner and means
by which plaintiff actually performed the job.

Specifically, the

evidence shows that the level of skill required for the work to be
performed was set by NGA; the premises, instrumentalities and tools
of plaintiff’s work, including NGA employee files, were exclusively
provided by NGA; the duration of the job at NGA was expected to be
in excess of three years; the details of the work plaintiff
performed and was expected to perform were assigned by NGA; the
hours and days worked by plaintiff were established by NGA; and the
work performed by plaintiff was part of the regular business of
NGA.

See Hunt, 297 F.3d at 742–43 (nurses assigned by temporary

staffing agency to provide services to Missouri prisons were
employees of Missouri Department of Corrections as well as of
agency;

nurses

did

not

work

independently

and

were

under

supervision of the DOC, even though they were directly paid by the

- 11 -

agency).

Although defendant argues that it was FMI and not NGA

that terminated plaintiff, the undisputed evidence shows that NGA
documented the deficiencies in plaintiff’s performance, made such
deficiencies known to FMI, and requested that FMI “provide staff
with the skills, knowledge and abilities to fulfill the terms of
the contract.”

(Gov. Exh. J at ECF p. 5.)

See Hunt, 297 F.3d at

742 (temporary agency nurses did not work independently and were
constantly under the supervision and scrutiny of DOC).

Almost

immediately upon receipt of NGA’s report, FMI terminated plaintiff.
On these undisputed facts, it cannot reasonably be said that NGA
played no role in plaintiff’s termination.
Accordingly, on the evidence now before the Court in this
cause, plaintiff has sufficiently demonstrated that she was an
employee

of

NGA

for

independent contractor.

Title

VII

purposes,

as

opposed

to

an

Defendant’s claim otherwise is denied.

The Court therefore proceeds to review the motions for summary
judgment as they relate to the substance of plaintiff’s Title VII
claims of retaliation and race discrimination.
2.

Retaliation
Plaintiff claims that the termination of her employment

as an administrative assistant at NGA on March 3, 2010, was in
retaliation

for

her

engaging

in

protected

activity,

and

specifically, for filing with the EEOC and pursuing a charge of
discrimination against NGA in relation to prior employment as a

- 12 -

contract

employee.

Defendant

argues

that

establish a prima facie case of retaliation.

plaintiff

cannot

For the following

reasons, defendant’s argument is well taken.
To establish a prima facie case of retaliation under
Title VII, plaintiff must show 1) that she engaged in protected
conduct,

2)

that

reasonable

employees

would

have

found

the

challenged retaliatory action materially adverse, and 3) that the
materially adverse action was causally linked to the protected
conduct.

Weger v. City of Ladue, 500 F.3d 710, 726 (8th Cir. 2007)

(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)).
protected

Where a plaintiff fails to show a causal link between the
conduct

and

the

adverse

employment

action,

summary

judgment is proper. Erenberg v. Methodist Hosp., 357 F.3d 787, 793
(8th Cir. 2004).
Here,

defendant

argues,

and

the

undisputed

evidence

shows, that no causal connection exists between the filing and
pendency of plaintiff’s previous EEOC complaint and her termination
at issue in this cause.

At the time they documented plaintiff’s

multiple performance deficiencies, Ms. Leible and Ms. Packman had
no knowledge of plaintiff’s previous EEOC activity.

Nor did Ms.

Leible or Ms. Packman know of such activity at

the time of

plaintiff’s termination.

Likewise, when Mr. Appel received notice

of plaintiff’s performance deficiencies and determined to request
that FMI provide someone with the skills appropriate to perform the

- 13 -

job, he had no knowledge of plaintiff’s previous EEOC activity.
When, at the time of adverse employment action, the decision makers
are not aware of a plaintiff’s protected activity, the causation
element of establishing retaliation cannot be met.

Porter v. City

of Lake Lotawana, 651 F.3d 894, 898-99 (8th Cir. 2011); Robinson v.
Potter, 453 F.3d 990, 994 (8th Cir. 2006).
from

retaliation

does

not

insulate

Title VII’s protection

an

employee

consequences of inadequate work performance.

from

the

Smith v. Ashland,

Inc., 250 F.3d 1167, 1174 (8th Cir. 2001); Jackson v. St. Joseph
Hosp., 841 F.3d 1387, 1391 (8th Cir. 1988).
To the extent plaintiff contends that the action which
occurred in her EEOC case on February 4 and 23, 2010, put NGA on
notice of her protected activity, the undersigned notes that Ms.
Leible

and

Ms.

Packman

documented

plaintiff’s

performance

deficiencies throughout January 2010, which was prior to the action
in

the

EEOC

case.

In

addition,

Mr.

Appel

became

aware

of

plaintiff’s performance deficiencies by written notice on February
3, 2010; again, prior to the action in the EEOC case.

Cf. Smith v.

Ashland, Inc., 250 F.3d 1167, 1173-74 (8th Cir. 2001) (retaliation
claim

not

supported

by

temporal

proximity

when

plaintiff’s

performance problems were documented before complaint to EEO).
Nevertheless, “more than a temporal connection is required to
present a genuine factual issue on retaliation.”

Carrington v.

City of Des Moines, Iowa, 481 F.3d 1046, 1052 (8th Cir. 2007)

- 14 -

(internal citation and quotation marks omitted).
Plaintiff

claims

that,

because

of

her

prior

EEOC

complaints against NGA, she was known for engaging in protected
conduct and that it is thus reasonable to believe that the decision
makers were indeed aware of her prior EEOC activity at the time of
the adverse action here.

As evidence to support this contention,

plaintiff has submitted an excerpt from the deposition of Kathleen
Strebeck, who testified that plaintiff was known as a “frequent
filer”

with

testimony,

respect

however,

to
was

complaints
obtained

in

of

discrimination.

relation

to

a

Such

charge

of

discrimination plaintiff filed against defendant in 2003. (Pltf.’s
Objs., Doc. No. 62 at p. 3; Exh. 61.)

Plaintiff presents no

evidence that Ms. Strebeck played any role in her termination at
issue in this case which occurred in March 2010.

A statement made

by this non-decision maker in 2003 is “too remote in time to
support an inference of discriminatory animus” in the decision to
terminate plaintiff seven years later.
F.3d 609, 616 (8th Cir. 2004).

See Watson v. O’Neill, 365

With nothing more, plaintiff’s

unsupported assertion of her belief that the relevant decision
makers knew of her prior EEOC activity when they determined to
terminate her in March 2010 is insufficient to withstand summary
judgment.

Cf. Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997)

(statements

based

only

on

“information

and

belief”

do

not

constitute admissible evidence establishing actual knowledge of

- 15 -

facts).
Plaintiff has therefore failed to establish any genuine
issue of material fact showing a causal connection between her
previous EEOC activity and her termination in March 2010.

As such,

defendant is entitled to summary judgment as a matter of law on
plaintiff’s claim of retaliation.
3.

Race Discrimination
Plaintiff claims that the termination of her employment

as an administrative assistant in March 2010 was on account of her
race.

Defendant argues that plaintiff cannot establish a prima

facie case of race discrimination inasmuch as plaintiff cannot
demonstrate

that

similarly

situated

employees

outside

plaintiff’s protected class were treated differently.

of

For the

following reasons, defendant’s argument is well taken.
To make a prima facie case of race discrimination in the
circumstances of this case, plaintiff must show that 1) she was a
member of a protected class, 2) she was meeting her employer’s
legitimate job expectations, 3) she suffered an adverse employment
action, and 4) similarly situated employees outside the protected
class were treated differently.

Wimbley v. Cashion, 588 F.3d 959,

962 (8th Cir. 2009). To satisfy the fourth element, plaintiff must
show that similarly situated employees were accused of the same or
similar conduct and were disciplined in different ways.

Green v.

Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 913 (8th Cir.

- 16 -

2006).

Plaintiff has failed to make such a showing here.
Plaintiff contends that other employees performing the

same

work

she

performed

made

mistakes,

asked

questions,

and

otherwise engaged in the same imperfect performance as plaintiff
during her employment as an administrative assistant.

To support

this contention, plaintiff has submitted her handwritten notes
describing what she perceived to be the performance lapses of Ms.
Leible during this same employment period.
Doc. No. 62, Exh. 60.)

(See Pltf.’s Objs.,

Such unsworn statements offered to prove

the truth of the matter asserted therein are hearsay and cannot be
considered in determining the instant motions for summary judgment.
Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir.
2001).
Nevertheless, the undisputed evidence before the Court
shows that plaintiff and Ms. Leible were not similarly situated.
Ms. Leible held a position dissimilar to that of plaintiff and had
duties

significantly

dissimilar

to

those

of

plaintiff.

Specifically, Ms. Leible’s responsibilities in her position as
Staff Officer included:
Government purchase card holder providing
support to various locations; monitor Lab R&D
Deliverable
Report
and
documentation;
coordinate visits/meetings/ceremonies for IIG
St. Louis to include logistics, security
clearances, conference room reservations,
meeting invitations, etc.; member of support
team to coordinate personnel, equipment, and
furniture move for entire St. Louis InnoVision
- 17 -

department; InnoVision West Representative for
Business Continuity Team; provide Records
Management support to IIG St. Louis; prepare
Defense Travel System budget reports for IIG
business office[.]
(Gov. Exh. E at ECF p. 2.)
To the extent Ms. Leible held duties which overlapped plaintiff’s,
she was merely to “serve as back-up to the Administrative Assistant
(Id. at ECF pp. 2-3.)

in providing administrative support[.]”

Persons who work in different positions are not similarly situated.
LaCroix v. Sears, Roebuck & Co., 240 F.3d 688, 694 (8th Cir. 2001).
To the extent plaintiff otherwise makes general claims
that Caucasian employees were not terminated for asking questions,
making mistakes and being late on assignments, plaintiff has
produced no admissible evidence indicating that

she and such

employees were similarly situated and that such employees were
treated

more

favorably

than

she

in

similar

circumstances.

Unsubstantiated allegations of similarity are insufficient. Cherry
v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004).
Finally,

to

the

extent

plaintiff

relies

on

the

Declarations of Joseph Evans, Edward Allen, and Felicia Allen and
their attestations as to the characteristics of a good employee and
their understanding of the circumstances surrounding plaintiff’s
employment and termination, plaintiff admits that such declarants
do not have any direct knowledge of the relevant circumstances.
(Gov. Exh. C, Pltf.’s Depo. at pp. 79-93.)
- 18 -

Plaintiff cannot rely

on hearsay statements to defeat summary judgment.

Tuttle v.

Lorillard Tobacco Co., 377 F.3d 917, 923-24 (8th Cir. 2004).

To

the

of

extent

plaintiff

likewise

relies

on

the

Declaration

Charlotte Johnson, Ms. Johnson herself declares that she is not a
witness for plaintiff but rather is “a concern [sic] citizen and
someone like a juror.”

(Pltf.’s Exhibits, Doc. No. 54 at ECF p.

58.) Finally, to the extent plaintiff relies on the Declaration of
Mary Ann Peterson, a review of the Declaration shows Ms. Peterson
to attest to her years of teaching experience, her opinion as to
what characteristics are displayed by good students, the dates of
plaintiff’s

employment

with

NGA,

and

the

reasons

plaintiff’s termination. (Id. at ECF pp. 31-32.)

given

for

Nothing in these

Declarations provides evidence demonstrating that plaintiff was
treated differently than similarly situated employees outside of
her protected class.

Cf. Allen v. Entergy Corp., 181 F.3d 902,

905-06 (8th Cir. 1999) (conclusory affidavits devoid of specific
factual allegations rebutting moving party’s evidence cannot defeat
summary judgment).
In sum, plaintiff simply has produced no admissible
evidence indicating that a similarly situated Caucasian employee
was treated more favorably than she in similar circumstances.
Accordingly, plaintiff has failed to establish a prima face case of
race discrimination in the circumstances of this case, and her

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claim of such discrimination must fail.4
II.
In

her

Amended

Defamation
Complaint,

plaintiff

claims

that

defendant’s statements that she was not performing her employment
duties up to the level required by her position and that she
threatened a government official5 were defamatory and resulted in
her

termination

of

employment

under

the

government

contract.

(Pltf.’s Amd. Compl., Doc. No. 24 at paras. 26-33, 35-39, 51-52.)
Plaintiff claims that the statements were made “within the course
and scope of duty/employment on the government contract.”

(Id. at

para. 30.)
An action against the United States under the Federal

4

To the extent plaintiff contends that the Court should apply
a disparate impact analysis to her claim of race discrimination, a
review of plaintiff’s claim and the evidence submitted shows
plaintiff to attack the subjective decision-making process in her
employment circumstances rather than point to a facially neutral
employment practice that operates in a discriminatory manner. The
application of a disparate impact analysis is therefore
inappropriate to plaintiff’s claim of race discrimination. See
Talley v. United States Postal Serv., 720 F.2d 505, 506-07 (8th
Cir. 1983). Regardless, even if such analysis was appropriate in
this case, plaintiff cannot establish a prima facie case of
disparate impact inasmuch as she has failed to show “an
identifiable, facially-neutral personnel policy or practice” which
is causally connected to “a disparate effect on members of a
protected class[.]” Franklin v. Local 2 of the Sheet Metal Workers
Int’l Ass’n, 565 F.3d 508, 516 (8th Cir. 2009).
5

In her original Complaint, plaintiff similarly averred that
the defendant accused her of threatening a government official.
Upon plaintiff’s own motion, this averment was stricken from the
original Complaint. (See Doc. Nos. 9, 17.) Although plaintiff
makes this same averment in her Amended Complaint, neither party
has moved to strike this allegation.
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Tort

Claims

Act

(FTCA)

is

the

only

remedy

available

to

an

individual seeking redress for an injury caused by the commission
of a tort by a federal employee if the federal employee engaged in
the alleged tortious conduct while acting within the scope of their
employment.
1996).

See Heuton v. Anderson, 75 F.3d 357, 359 (8th Cir.

In such circumstances, the Attorney General certifies to

the Court that the federal employee was acting within the scope of
their employment and then notifies the Court that the United States
should be substituted as party defendant for the federal employee.
Id. at 359-60.

A plaintiff may challenge the Attorney General’s

certification, however, at which time the Court must determine
whether

the

defendant

was

acting

within

the

scope

of

their

employment when the alleged tortious conduct occurred. Id. at 360.
Here, plaintiff claims in her Amended Complaint that the
alleged defamatory conduct occurred “within the course and scope of
duty/employment on the government contract.”

Plaintiff would not

appear to challenge, therefore, that the speaker was acting within
the scope of their federal employment when the statements were
made.

The FTCA does not waive sovereign immunity for claims of

defamation, however, and thus precludes suits against the United
States for defamation.

28 U.S.C. § 2680(h); Heuton, 75 F.3d at

361; McAdams v. Reno, 64 F.3d 1137, 1144 (8th Cir. 1995).
of

defamation

dismissed.

against

the

United

States,

McAdams, 64 F.3d at 1144.

- 21 -

therefore,

A claim
must

be

The undersigned notes, however, that the Attorney General
never moved to substitute the United States as party defendant for
the named defendant in this cause, nor invoked the FTCA to defend
plaintiff’s claim of defamation.

Instead, defendant argues only

that plaintiff fails to state a claim of defamation under Missouri
law.

To refute defendant’s argument, plaintiff likewise relies on

Missouri law. To the extent plaintiff’s claim of defamation can be
construed to allege a claim arising only under state law, that is,
that the alleged defamatory remarks were made while the speaker was
not acting within the scope of their federal employment, the
undersigned

determines

to

decline

to

exercise

supplemental

jurisdiction over the claim inasmuch all claims over which this
Court has original jurisdiction will be dismissed.

28 U.S.C. §

1367(c)(3); see also Anderson v. Franklin Cnty., Mo., 192 F.3d
1125, 1131 (8th Cir. 1999); American Civil Liberties Union v. City
of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999) (when state
and federal claims are joined and all federal claims are dismissed
on a motion for summary judgment, state claims are ordinarily
dismissed without prejudice); Willman v. Heartland Hosp. East, 34
F.3d 605, 613-14 (8th Cir. 1994) (same).6

Accordingly, for all of the foregoing reasons,

6

Plaintiff, of course, is free to pursue this claim in an
appropriate state court if she so chooses.
- 22 -

IT IS HEREBY ORDERED that defendant’s Motion for Summary
Judgment and Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can Be Granted (Doc. No. 45) is GRANTED to the extent
defendant seeks summary judgment on plaintiff’s claims under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000,
et seq., that she was unlawfully discriminated against in her
employment on account of her race and in retaliation for engaging
in protected conduct. In all other respects, defendant’s motion is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s Cross Motion for
Summary Judgment (Doc. No. 52) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion for a Jury
Trial (Doc. No. 51) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s supplemental claim
of defamation under Missouri law is dismissed without prejudice
pursuant to 28 U.S.C. § 1367(c)(3).
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

8th

day of February, 2012.

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