United States of America v. Robertson Fire Protection District

Filing 69

MEMORANDUM AND ORDER Accordingly, IT IS HEREBY ORDERED that defendants' motion for partial summary judgment [#41] is granted in part and denied in part. Parts I and II are granted. Part III is denied as moot. IT IS FURTHER ORDERED that plaintiffs motion for partial summary judgment [#44] is denied. Signed by District Judge Catherine D. Perry on December 16, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

STEVE WILSON,
Intervenor Plaintiff,
vs.
ROBERTSON FIRE PROTECTION
DISTRICT, et al.,
Defendants.

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Case No. 4:12CV1232 CDP

MEMORANDUM AND ORDER
The United States has brought suit against Robertson Fire Protection District (the
District), alleging that it retaliated against employee Steve Wilson because he refused to
engage in discrimination against two African American firefighters and provided
testimony favorable to the firefighters in their discrimination suit against the District.
Shortly after the United States filed its complaint, Wilson moved to intervene as plaintiff,
add his own claims, and add District fire chief David Tilley as a defendant. I granted his
motion.
The action is now before me on two motions for partial summary judgment.
Defendants seek a judgment that any allegedly retaliatory acts that took place outside the

300-day Title VII filing period or outside the four-year statute of limitations under 42
U.S.C. § 1981 cannot be part of this suit. Possibly in the alternative, defendants initially
sought summary judgment that Wilson failed to exhaust his administrative remedies as
required by the Missouri Administrative Procedures Act, Mo. Rev. Stat. § 536.010 et
seq., and that some or all of the plaintiffs’ claims are therefore barred.1
Plaintiff United States seeks summary judgment that the District’s extension of a
“last chance agreement” governing Wilson’s employment was a materially adverse
action; that no rational trier of fact could fail to find a causal connection between the
extension of the LCA and Wilson’s protected activity; and that therefore, the United
States has established, as a matter of law, a prima facie case that the District retaliated
against Wilson.
For the reasons described below, I will grant in part defendants’ motion and deny
plaintiff’s motion.
I.

Summary Judgment Standard
The summary judgment standards are well established, and they do not change

when both parties have moved for summary judgment. See Wermager v. Cormorant
Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). In determining whether to grant either

1

It appears that the defendants withdrew their request for summary judgment on this issue in their reply
briefs. See Defs.’ Reply to Wilson, Doc. 67, p. 7 n.1; Defs.’ Reply to United States, Doc. 68, pp. 3–4.
As stated below, I will deny as moot this portion of their motion.

–2–

party’s motion, the court views the facts – and any inferences from those facts – in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of establishing that
(1) it is entitled to judgment as a matter of law and (2) there are no genuine issues of
material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, however, the non-moving party may not rest on the
allegations in its pleadings but must, by affidavit and other evidence, set forth specific
facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e). Where a
factual record taken as a whole could not lead a rational trier of fact to find for the
nonmovant, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.
II.

Background2
September 2006 Disciplinary Actions
Steve Wilson, who is white, began working for the District as a firefighter in 1980.

Eventually, he was promoted to battalion chief, a position two ranks below the fire chief.
In September 2006, the District took a series of disciplinary actions against Wilson. On
September 6, it demoted Wilson to private, the lowest rank of any firefighter within the
District. The letter informing Wilson of his demotion, signed by Chief Tilley, states that
he would have “no opportunity for advancement in rank for a period of five years.”

2

The following facts are undisputed unless otherwise indicated.

–3–

(Doc. 43-4.) The District then suspended Wilson twice, on September 11 and September
19. Finally, on September 21, 2006, the District terminated Wilson.
The parties dispute the reasons behind the District’s decisions to demote, suspend,
and ultimately fire Wilson. Defendants argue that the decisions were motivated by
Wilson’s violation of District rules and Missouri state law. Plaintiffs contend they were
motivated by Wilson’s refusal to engage in discriminatory conduct toward two African
American firefighters, Ephraim Woods, Jr. and Lamont Downer.
Last Chance Agreement
At that time, District employees ranked as battalion chief or below, including
Wilson, were represented by the International Association of Firefighters Local 2665:
Professional Fire Fighters of Eastern Missouri. Wilson grieved his demotion,
suspensions, and termination through the union. In October 2006, Wilson and the
District entered into a last chance agreement (LCA). The LCA required Wilson to accept
his demotion and suspensions and to “maintain job performance and conduct” in
accordance with the District’s rules, regulations, policies, and procedures. (Doc. 42-2.)
The LCA indicated that it would be reviewed after one year, in October 2007.
The LCA was accepted by the District’s Board of Directors, which conditioned its
acceptance on Wilson’s referral to the Employee Assistance Program for counseling and
that he have “no opportunity to serve in any capacity above backup Engineer” or to “bid
–4–

for Engineer by seniority”3 until after the one-year review in October 2007. The Board
declared that those restrictions “may or may not be removed” at the time of the one-year
review. (Id.) The three Board members, as well as Wilson and Chief Tilley, signed the
LCA; Wilson thus explicitly accepted the Board’s conditions.
Wilson returned to the District under the terms of the LCA, working as a backup
engineer at the rank of private. In October 2007, at the one-year review, the District
extended the LCA until June 2008. The letter informing Wilson of the extension states
that the “primary reason” was “because of not having a reasonable amount of time to
evaluate your performance due to your extensive absences in 2007.”4
On February 21, 2008, while the LCA was still in effect, Wilson’s shift supervisor
conducted an evaluation of Wilson’s performance, rating it as “exceeding the
supervisor’s expectations on nearly all performance factors.” (Doc. 45-9.)
EEOC Charge of Discrimination
A week after the performance evaluation, on February 28, 2008, Wilson filed a
charge of discrimination with the EEOC and the Missouri Commission on Human Rights,
alleging that the District and Chief Tilley had tried to involve him “in a pattern of
discrimination against Black employees of the District.” Wilson alleged that his

3

“Engineer” is the term used for the firefighter who drives the fire truck.
Wilson apparently took two months of sick leave in 2007. (See First LCA Extension, Defs.’ Ex. FF;
EEOC Amended Charge Narrative, Defs.’ Ex. II, p. 131, ¶ 12.)
4

–5–

demotion, suspension, termination, denial of promotion, and probation with the LCA,
which had “been extended for no legitimate reason” were motivated by his association
with, and refusal to engage in discriminatory conduct toward, the District’s African
American employees. In the section marked “Cause of Discrimination Based On,”
Wilson checked boxes for “race” and “retaliation.” In the space marked “Date
Discrimination Took Place,” Wilson wrote, “Various acts in late 2007” and checked a
box marked “Continuing Action.” (See EEOC/MCHR Charge, Doc. 42-3, p. 2.)
Woods and Downer Lawsuit
Meanwhile, the United States had filed suit against the District, alleging that it had
discriminated against Woods and Downer, two African American firefighters, on the
basis of their race. As part of that lawsuit, on March 10, 2008, the United States deposed
Wilson. During his deposition, Wilson testified that since approximately 1990, he had
been acting as the District’s computer administrator. He stated that shortly after Woods
and Downer had been terminated, Chief Tilley directed him to “go through the two
niggers[’] computers to find any dirt you can, like porn, or anything you can find,
because I’m sure there’s something there.” (Wilson Dep. 13:1-7, Doc. 42-1.) Wilson
testified that he refused because “it just didn’t sound right.” (Id. 17:9.) Defendants
dispute that this conversation occurred.

–6–

The District’s Board of Governors met on March 25, 2008, and discussed Wilson’s
deposition. The Board concluded that Wilson had lied. The following day, March 26,
2008, District assistant chief Maynard Howell began preparing a document that listed
issues with Wilson’s job performance from March 3, 2008 to April 6, 2008.
Firefighter Training Conference
During the first week of April 2008, Wilson and other District employees attended
a firefighter training conference in Indianapolis. On April 2, before the conference took
place, assistant chief Howell emailed Wilson, stating that if Wilson chose to stay in a
downtown hotel, rather than the airport hotel the District had booked, he would not be
reimbursed for the expense. Wilson went ahead and stayed with his spouse at the
downtown hotel. Wilson had done this on prior occasions at similar conferences.
(Wilson Aff., Doc. 55-6.) On April 21, Howell sent Wilson another email, stating:
I told you on two separate occasions not to get a room . . . It is apparent that
you chose to ignore my directive to utilize the room that we had reserved for
you. This type of action could jeopardize you attending future classes. Also
you can consider this a verbal warning for not following my directive to
utilize the room that we had reserved. In the event that the Fire District is
billed for the two nights that you failed to stay where instructed, further
discipline may be warranted. I emailed you on April 2, 2008 with this
information, and I also gave you a hard copy of the email . . .
(Doc. 45-15.) At some point before issuing this warning, Howell told the District’s
Board about this issue.

–7–

Deposition Transcripts
Later that month, on April 29, 2008, the Board approved a settlement in the Woods
and Downer lawsuit. The United States Department of Justice issued a press release
about the settlement on May 23, 2008. Sometime later, Chief Tilley directed assistant
chief Howell to place the deposition transcripts from the lawsuit in the battalion chief’s
office, where they were available for review by other District employees. On June 5,
2008, Wilson emailed his battalion chief to ask that the depositions be moved. Once the
Board knew the depositions were available for general viewing, it decided to have them
moved.
Boot Incident
Shortly before that, on June 3, 2008, Wilson had complained to the battalion chief
that he had found gravel and dirt in one of his bunker boots. Wilson stated that he had no
time to clean out the boot before going on a call, so he waited until afterward, then swept
the particles down a firehouse drain. The battalion chief emailed assistant chief Howell
and Chief Tilley to inform them of Wilson’s complaint, and Tilley directed Howell to
conduct an investigation. In a memo to Tilley, Howell stated that he spoke with Wilson
and the battalion chief about the incident, as well as to each shift of firefighters about
tampering with one another’s personal belongings. In that same memo, Howell reported

–8–

that he accused Wilson of lying during his deposition.5 He concluded his memo by
stating that Wilson was “making a false allegation [about the dirt and rocks in his boot]
based on the lack of evidence that could be documented.” (Doc. 45-8, p. 4.)
On June 10, 2008, the District conducted another review of Wilson’s performance,
rating it as “generally meeting supervisor’s expectations on most performance criteria,”
one level below the previous review. (Doc. 45-19, p. 6.)
Extension of LCA
On June 30, 2008, Wilson’s battalion chief hand-delivered to Wilson two letters
from Chief Tilley, per Tilley’s instructions. One letter alerted Wilson that although the
Woods and Downer deposition transcripts were public and would be made available for
review upon request, the District did “not intend to promote review” and had moved them
to Tilley’s office in response to Wilson’s request. In that letter, Tilley thanked Wilson
for bringing the matter to his attention. The other letter, also signed by Tilley,
indefinitely extended the LCA governing Wilson’s employment. It did not give any
rationale for the extension.

5

Howell wrote, “I told him that he lied on his deposition about me when I came over and told him to
get whatever information he had on Woods & Downer because we had to provide that to the Justice
Department. I told him in his deposition that he said I told him to get whatever dirt he could find on
Woods & Downer. He said the court reporter copied it down wrong because that is not what he said.
We then ended our discussion.” (Doc. 45-8, p. 3.)

–9–

Amended EEOC Charge
On August 22, 2008, Wilson filed an amended charge of discrimination with the
EEOC and the MCHR. He included a narrative describing the allegedly retaliatory
actions the District and Chief Tilley took against him in 2006 and 2007. These actions
included those I described above, plus several additional incidents.6
Wilson also recounted allegedly retaliatory incidents that occurred since his
February 28 filing. He alleged that after he gave his deposition, Chief Tilley “gathered
all personnel on all shifts and showed all the firefighters” Wilson’s February 2008 EEOC
charge. He also alleged that he signed up to take a test for an open position of assistant
chief/training officer, but no one contacted him about taking the test. The testing did
occur, and another firefighter got the job. Finally, he alleged that the firefighters’
schedules had been “shifted around” so that he would almost never be allowed to drive
the fire truck, which he alleged “represents an opportunity for career advancement.”
The parties agree that Wilson was officially removed from the LCA on March 13,
2009.

6

Wilson recounts, among other things, the following: during the October 2006 meeting in Tilley’s
office in which Wilson signed the LCA, Tilley allegedly stated that if Wilson did not help the younger
firefighters as Tilley requested, or did something Tilley did not like, or if Wilson’s wife ran for the
District’s Board of Directors as she was contemplating, “this is you.” Tilley then pushed a heavy book
off his desk. (See Doc. 58-35, pp. 130–31.) Later, after Wilson returned from sick leave in 2007, his
“Battalion Chief’ letters on the back of his jacket had been torn off and looked unprofessional. In
August 2007, Wilson requested to take part in a “fire marshal mentoring program” wherein the retiring
fire marshal would mentor his successor. Tilley denied Wilson’s request, citing the terms of the LCA.

– 10 –

Complaints
The United States filed suit against the District on July 11, 2012, bringing one
claim of retaliation under Title VII, 42 U.S.C. § 2000e, et seq. In the complaint, the
United States alleged that because Wilson had refused to engage in discrimination against
Woods and Downer and had provided deposition testimony in their favor, the District had
“subject[ed] him to a probationary status, and repeatedly continu[ed] that probationary
status, that prevented him from being promoted or using his seniority rights to obtain an
Engineer position.” It alleged that even after removing Wilson from the LCA, the
District “maintains Wilson on a defacto probationary status that prevents or limits his
ability to fairly seek promotions or advancement.” (Compl., ¶¶ 37, 39, 41.)
On September 9, 2012, Wilson intervened as plaintiff and filed an additional
complaint, adding Tilley as a defendant. Similarly to the United States, he brought a
Title VII retaliation claim against the District. Wilson also brought a claim against both
the District and Tilley for violating 42 U.S.C. § 1981 by engaging in the series of
allegedly discriminatory acts that he had described in his amended EEOC charge. Wilson
sought compensatory damages from the District and both compensatory and punitive
damages from Tilley.

– 11 –

III.

Defendants’ Motion for Partial Summary Judgment
I will address defendants’ motion for partial summary judgment first. Defendants

initially sought summary judgment on three issues: the filing period under Title VII, the
statute of limitations under 42 U.S.C. § 1981, and the exhaustion of administrative
remedies requirement under the Missouri Administrative Procedures Act, Mo. Rev. Stat.
§ 536.010 et seq.
As defendants have apparently conceded that MAPA does not apply to the claims
in this case,7 I will deny as moot that portion of their motion. See also MAPA, Mo. Rev.
Stat. § 536.100 (judicial review provided for persons who exhaust administrative
remedies “unless some other provision for judicial review is provided by statute”; MAPA
does not “prevent any person from attacking any void order of an agency at any time or
in any manner that would be proper in the absence of this section”); Krohn v. Forsting,
11 F. Supp. 2d 1082, 1085 (E.D. Mo. 1998) (“As an initial matter, the Court rejects as
meritless defendants’ unsupported argument that the requirements of Missouri
administrative procedure law should be grafted onto plaintiff's federal [FMLA] claim.”).

7

In one of their reply briefs, defendants wrote, “Defendants understand that exhaustion of the
provisions of the Missouri Administrative Procedures Act may not be required in order for a plaintiff to
file suit under 42 U.S.C. [§] 1981 or Title VII.” In the other, defendants wrote in a subheading:
“Defendants’ Arguments Made Pursuant to the Missouri Administrative Procedures Act Do Not Apply
to the United States.”

– 12 –

A.

Title VII Filing Period
Although not through the procedures contemplated by MAPA, exhaustion of

administrative remedies is a prerequisite for filing actions in federal court alleging claims
under Title VII. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.
1994); see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974) (Title VII
“specifies with precision the jurisdictional prerequisites that an individual must satisfy
before he is entitled to institute a lawsuit.”). If an individual also files with an
appropriate state or local agency, he has 300 days from the date of an alleged unlawful
employment practice to file a discrimination charge with the EEOC. See Hutson v. Wells
Dairy, Inc., 578 F.3d 823, 825 (8th Cir. 2009). He must file an EEOC discrimination
charge before proceeding to federal court. Williams, 21 F.3d at 222.
In this case, Wilson filed his first EEOC charge on February 28, 2008. Because he
filed with both the EEOC and the applicable state agency, the Missouri Commission on
Human Rights, his charge was timely only as to discrete retaliatory acts that occurred on
May 4, 2007 or later.8
The parties do not dispute this; they only dispute what I should do about it.
According to plaintiffs’ separate briefs in opposition, as well as an email attached as an
exhibit, neither plaintiff is basing any Title VII claim on allegedly retaliatory acts that
8

Neither the United States nor Wilson is bringing a hostile work environment claim under Title VII.
See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).

– 13 –

occurred before this date. (See Docs. 54, p. 3, 54-5, p. 1, 60, p. 4). Defendants argue that
I should therefore grant this portion of their motion; plaintiffs believe denying it as moot
is the better course of action. I agree with defendants that granting this portion of their
motion, as uncontested, is more appropriate. However, in their reply brief, defendants
suggest that, by granting the motion, I would bar plaintiffs from “adducing evidence” at
trial of events that occurred before the statutory period. This is not so. See Morgan, 536
U.S. at 113 (300-day filing period does not bar plaintiffs from using prior discriminatory
acts as background evidence in support of a timely claim). Admissibility of evidence is
more appropriately addressed at trial or in a motion in limine. In any event, the parties
have not briefed, and I decline to decide, any issue of admissibility at this time.
B.

Section 1981 Statute of Limitations
Section 1981, like Title VII, prohibits employers from retaliating against

employees for opposing racial discrimination. See CBOCS W., Inc. v. Humphries, 553
U.S. 442, 454–55 (2008); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1146
(8th Cir. 2012). The Eighth Circuit has held that the retaliation analysis underlying Title
VII and Section 1981 claims is the same and that, therefore, courts “may look to Title VII
precedent to inform our analysis of the elements under § 1981.” Sayger v. Riceland
Foods, Inc., 735 F. 3d 1025, 1030 (8th Cir. 2013).

– 14 –

Claims brought under Section 1981 are governed by a four-year statute of
limitations. See 28 U.S.C. § 1658; Jackson v. Homechoice, Inc., 368 F.3d 997, 999 (8th
Cir. 2004). Retaliation claims may be based on either a discrete act of discrimination,
such as demotion or termination, or a “continuing violation,” such as the provision of a
hostile work environment. See, e.g., Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 929 (8th
Cir. 2007). To succeed under either theory, a plaintiff must show that he suffered a
materially adverse action. For the purpose of a retaliation claim, an employment action is
materially adverse if “a reasonable employee in the plaintiff’s position might have been
dissuaded from making a discrimination claim because of the employer's retaliatory
actions.” Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir. 2007) (citing Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). A materially adverse action need not
necessarily “affect the terms or conditions of employment,” see Clegg, 496 F.3d at 928,
but it must produce “an injury or harm.” Burlington N., 548 U.S. at 67.
If an individual bases a retaliation claim on a discrete act – such as a demotion –
that act must have occurred within the four-year period before he brought suit. However,
if an individual alleges that he was subject to a hostile work environment, his claim will
not be time-barred “so long as all acts which constitute the claim are part of the same
unlawful employment practice and at least one act falls within the time period.” Morgan,
536 U.S. at 122.
– 15 –

Here, defendants argue that Wilson was – at most – subjected to a series of discrete
acts, and therefore may only base his Section 1981 retaliation claim on actions that
occurred after August 7, 2008, four years before Wilson moved to file his intervenor
complaint in this suit. Wilson, however, contends that his retaliation claim is based on
the “cumulative effect of individual acts” that are all part of the same unlawful
employment practice. He argues that his employment was governed by the Last Chance
Agreement until March 13, 2009, and that having to work under an LCA with no end date
“was surely adverse to Wilson and would deter any employee resisting discrimination.”
Because the continuation of the LCA fell within the four-year statute of limitations
governing Section 1981 claims, Wilson believes that under a “continuing violation”
theory, he should be able to seek relief for all the allegedly retaliatory acts he suffered.
I disagree. Even assuming all the retaliatory acts are part of the same unlawful
employment practice, none of them occurred within the four-year statute of limitations.
The continuation of the LCA is the only timely act Wilson mentions, and that is not an
act at all. The decision to extend an employee’s probationary status could constitute a
materially adverse action, by itself or in conjunction with other acts. See, e.g., Bicknell v.
City of St. Petersburg, No. 8:03CV1045, 2006 WL 560167, at *9 (M.D. Fla. Mar. 7,
2006) (extension of employee’s probation was arguably adverse because it delayed her
promotion). But the mere fact that an employee’s probation continued into the four-year
– 16 –

period preceding his lawsuit – without any action whatsoever by the employer – is an
effect of an allegedly retaliatory act (or series of acts) and not an act in itself. It cannot
support a continuing violation theory.
In Delaware State College v. Ricks, the Supreme Court held that the applicable
limitations period began to run when the plaintiff was denied tenure, not when his
employment was terminated a year later. 449 U.S. 250, 258 (1980). Termination of
employment at the plaintiff’s university was a “delayed, but inevitable, consequence of
the denial of tenure.” Id. at 257–58. Therefore, the alleged discrimination occurred “at
the time the tenure decision was made and communicated” to the plaintiff. This was the
case “even though one of the effects of the denial of tenure – the eventual loss of a
teaching position – did not occur until later.” Id. at 258 (emphasis in original). Likewise,
in this case, the District’s decisions to extend the LCA in October 2007 and June 2008
are the relevant acts, not the fact that the LCA remained in place until March 2009. It is
true that the definition of “materially adverse” is broader in retaliation cases than in
discrimination cases. See Clegg, 496 F.3d at 928. But this more expansive definition
does not encompass “act.” Maintaining the status quo, without more, is not an act
sufficient to support a claim of continuing retaliation. See Ricks, 449 U.S. at 257. (“Mere
continuity of employment, without more, is insufficient to prolong the life of a cause of
action for employment discrimination.”); DeNovellis v. Shalala, 124 F.3d 298, 309 (1st
– 17 –

Cir. 1997) (although plaintiff had been reassigned to sham detail and the reassignment
had not been remedied by the time the applicable limitations period began, court’s focus
“is the date the employer made the allegedly discriminatory decision to detail him, even
though the decision's effects still persisted after that effective date”).
Accordingly, I will grant this portion of defendants’ motion for partial summary
judgment.
IV.

Plaintiffs’ Motion for Partial Summary Judgment
Plaintiff United States seeks summary judgment that the District’s extension of the

LCA governing Wilson’s employment was a materially adverse action; that no rational
trier of fact could fail to find a causal connection between the extension of the LCA and
Wilson’s protected activity; and that therefore, the United States has established, as a
matter of law, a prima facie case of retaliation against Wilson. Absent direct evidence of
retaliation, an employee may prove retaliation by using the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See
Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005). Under this
burden-shifting framework, “an employee has the initial burden of establishing a prima
facie case of retaliation.” Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir.
2010). To establish a prima facie case, an employee must show: (1) he engaged in
protected conduct; (2) he suffered materially adverse employment action; and (3) the
– 18 –

materially adverse action was causally linked to the protected conduct. Id. at 1077–78.
Though the McDonnell Douglas burden-shifting framework describes additional steps,
the United States’ motion for partial summary judgment only concerns its initial burden
to establish a prima facie case.
A.

Extension of LCA Not Materially Adverse As A Matter of Law
As described above, an action is “materially adverse” if “a reasonable employee in

the plaintiff’s position might have been dissuaded from making a discrimination claim”
because of it. Higgins, 481 F.3d at 589. In this case, the United States argues that the
June 2008 extension of the LCA governing Wilson’s employment was, as a matter of
law, materially adverse. The extension limited Wilson’s ability to obtain a promotion by
including a condition that he have “no opportunity to serve in any capacity above backup
Engineer.” (Doc. 42-2.) The United States argues, therefore, that it constituted an
“adverse employment action” under even the more stringent standard governing Title VII
discrimination (as opposed to retaliation) claims. See Clegg, 496 F.3d at 928–29.
According to the United States, because the extension of the LCA affected the terms of
Wilson’s employment, it must be considered a materially adverse action.
Defendants respond that the extension “changed nothing with respect to Wilson’s
employment status, pay, terms or conditions; it merely continued the status quo which
had existed between the parties since Wilson voluntarily entered the LCA in 2006.”
– 19 –

(emphasis in original). Further, defendants point out that, according to the terms of the
demotion notice Wilson received in September 2006, he already could not seek
promotions for a period of five years.
In Lewis v. City of Chicago Police Department, a female police officer volunteered
to work a security detail for a meeting of the International Monetary Fund. 590 F.3d 427,
436 (7th Cir. 2009). She considered the detail to be useful training and an opportunity to
earn overtime pay. The defendant police department denied her request. When
defendant moved for summary judgment, the district court found a question of fact about
whether its action was “materially adverse.” After a jury trial, the police officer appealed
to the Seventh Circuit, arguing that the failure to assign her to the IMF detail was
“materially adverse as a matter of law, and so the court should not have posed the
question to the jury.” Id. at 436.

The Seventh Circuit rejected this argument,

holding that the material adversity of any given action is sometimes a question of law and
sometimes a question of fact:
It is true that some cases present obvious examples of materially adverse
actions being taken against employees. For example, courts should not
generally task juries with determining whether terminations, demotions or
salary cuts are materially adverse actions. But there are times where the
question is not so obvious, and this case presents one of those instances.
Id. (holding that there were questions of fact about how much overtime pay and training
the IMF detail would really have provided); see also Burlington N., 548 U.S. at 71
– 20 –

(holding that reassignment of job duties was not “automatically actionable” but
upholding jury’s finding that it was materially adverse in that case).
In this case, there are facts and inferences in dispute that, like in Lewis, prevent
summary judgment on the issue of whether the extension of the LCA was “materially
adverse.” For example, Wilson was working under the October 2007 LCA extension
when he filed his first EEOC charge, which might tend to show that a reasonable
employee would not have been discouraged from filing a discrimination claim while
working under the LCA. However, unlike its predecessor, the June 2008 LCA extension
was indefinite and did not provide Wilson with any rationale or deadline for review. This
might tend to make it more likely that it would discourage a reasonable employee from
making a discrimination claim. Further, there is a question of fact about whether the
LCA and its extensions superseded the 2006 demotion notice, which might have limited
Wilson’s opportunities for advancement in the same way the LCA did. In short, I find
that when I take both the facts and their concomitant inferences in the light most
favorable to the defendants, genuine issues of material fact remain and the United States
is not entitled to summary judgment on this issue.
B.

Causal Connection Not Established As A Matter of Law
Even assuming there were no issues of fact preventing a finding that the June 2008

LCA extension was materially adverse, I could not find that the United States had shown,
– 21 –

as a matter of law, a causal connection between that act and Wilson’s protected activities.
Again, there are issues of fact – and inferences that may be drawn from those facts – that
preclude summary judgment. For example, the parties agree that some three months
passed between Wilson’s latest protected activity (testifying on behalf of Woods and
Downer) and the extension of the LCA. Further, that the LCA would be reviewed in June
2008 was already established. Both of these facts weigh in favor of no causal connection.
See, e.g., Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 980, 986 (8th Cir. 2011) (no
inference of retaliation based on temporal proximity alone when interval is measured in
months).
However, “all was not well” during that three-month period between Wilson’s
deposition and the extension. Heaton v. The Weitz Co., Inc., 534 F.3d 882, 888 (8th Cir.
2008). One of Wilson’s superiors began keeping a log of problems with Wilson’s
employment the day after the District’s Board of Governors was informed about the
deposition and concluded that Wilson had lied. Seemingly minor incidents, such as
Wilson finding gravel in his boot, were reported to the Board during that time, and
Wilson received a performance evaluation that – although not negative – was lower than
those he had received previously. A reasonable jury could find that “there was a pattern
of adverse actions against [Wilson] beginning shortly after [his protected activity] . . . and
lasting until” the June 2008 extension. Id. On the other hand, a reasonable jury might
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weigh this evidence lightly and might ultimately find that the United States has failed to
show even an inference of causation. See Guimaraes v. SuperValu, Inc., 674 F.3d 962,
972 (8th Cir. 2012) (“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge.”).
In short, the United States is not entitled to summary judgment on the causal connection
between Wilson’s protected activity and the June 2008 LCA extension.
C.

Prima Facie Case of Retaliation Not Established As A Matter of Law
Because the United States has not shown that it is entitled to summary judgment,

as a matter of law, on the material adversity of the June 2008 LCA extension or on the
causal relationship between Wilson’s protected conduct and that extension, it has not
shown that it has established a prima facie case of retaliation. Therefore, I will deny the
third request of its summary judgment motion.
V.

Conclusion
For the reasons stated above, I will grant summary judgment to defendants on the

issues of the Title VII filing period and the 42 U.S.C. § 1981 statute of limitations. I will
deny as moot defendants’ request for summary judgment on the issue of exhaustion of
administrative remedies under the Missouri Administrative Procedures Act. I will deny
in its entirety plaintiffs’ motion for partial summary judgment.
Accordingly,
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IT IS HEREBY ORDERED that defendants’ motion for partial summary
judgment [#41] is granted in part and denied in part. Parts I and II are granted. Part III is
denied as moot.
IT IS FURTHER ORDERED that plaintiffs’ motion for partial summary
judgment [#44] is denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 16th day of December, 2013.

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