Miller v. Missouri Department of Social Services/Division of Youth Services
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment is GRANTED. [Doc. 70 .] A separate final Judgment will accompany this Memorandum and Order. Signed by Magistrate Judge Nannette A. Baker on 10/6/15. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARVA LYNNETTE MILLER,
MISSOURI DEPARTMENT OF SOCIAL
SERVICES DIVISION OF YOUTH SERVICES,
Case No. 4:13-CV-1102 NAB
MEMORANDUM AND ORDER 1
This matter is before the Court on Defendant Missouri Department of Social Services,
Division of Youth Services’ Third Motion for Summary Judgment. [Doc. 70.] Plaintiff Marva
Miller filed a Memorandum in Opposition and Defendant filed a Reply Brief. [Docs. 77, 80.]
Based on the following, the Court will grant Defendant’s Third Motion for Summary Judgment.
On June 10, 2013, Plaintiff filed this action against Defendants Missouri Department of
Social Services, Division of Youth Services, Donald Pokorny, Sonja Williams, Janet Smiley, and
Courtney Collier. [Doc. 1.] Plaintiff alleged that she was discriminated against based on her
race and disability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as
amended and claims of “whistleblower and retaliation for filing workers’ compensation claims
and complaining about a hostile work environment.”
The Court dismissed the individual
defendants in an order dated July 1, 2013. [Doc. 4.] The Court also dismissed Plaintiff’s claim
of “whistleblower and retaliation for filing workers’ compensation claims.” [Doc. 4.] Plaintiff
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c).
filed a motion for leave to file an amended complaint. [Doc. 19.] The Court denied Plaintiff’s
motion without prejudice. [Doc. 28.] The remaining Defendant Missouri Department of Social
Services, Division of Youth Services filed two motions for summary judgment. [Docs. 52, 60.]
The Court granted Defendant’s First Motion for Summary Judgment, resulting in a partial
judgment in favor of Defendant on Plaintiff’s racial discrimination and disability claims. [Doc.
68.] The Court granted the parties leave to brief the remaining issues of harassment, hostile
work environment, and retaliation 2. [Doc. 68.] Defendant filed a Third Motion for Summary
Judgment. [Doc. 70.] That motion has now been fully briefed. [Docs. 77, 80.]
Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for
summary judgment if all of the information before the court shows “there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The initial burden is placed on the moving party. City of
Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988 ) (the moving
party has the burden of clearly establishing the non-existence of any genuine issue of fact that is
material to a judgment in its favor). Once this burden is discharged, if the record shows that no
genuine dispute exists, the burden then shifts to the non-moving party who must set forth
affirmative evidence and specific facts showing there is a genuine dispute on an issue of material
fact. Miller v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Once the burden shifts, the nonmoving party may not rest on the allegations in its pleadings, but by affidavit and other evidence,
he or she must set forth specific facts showing that a genuine issue of material fact exists. Fed.
R. Civ. P. 56(c); Herring v. Can. Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). The non2
The parties were allowed to brief the remaining issues, because it appeared that the parties were confused about
what claims had been dismissed in the Court’s original order of partial dismissal.
moving party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A dispute about a material fact is “genuine” only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Herring, 207 F.3d at 1029 (quoting Miller, 477
U.S. at 248). A party resisting summary judgment has the burden to designate the specific facts
that create a triable controversy. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114
(8th Cir. 2004). Self-serving, conclusory statements without support are not sufficient to defeat
summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.
1993). In passing on a motion for summary judgment, it is not the court's role to decide the
merits. The court should not weigh evidence or attempt to determine the truth of a matter.
Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett
v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
“There is no discrimination exception to the application of summary judgment, which is a
useful pretrial tool to determine whether any case, including one alleging discrimination, merits a
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011).
employment discrimination cases are often fact intensive and dependent on nuance in the
workplace, they are not immune from summary judgment. If there is no dispute of material fact
and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is
appropriate.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1018 (8th Cir. 2011) (internal citations
Although not directly stated, the Defendant relies upon the exhibits from the previous
motions for summary judgment in support of its motion. Plaintiff does not cite to any evidence
in the record in her response. Therefore, the Court will adopt and rely upon the factual findings
made in its previous Order on the Defendant’s First and Second Motions for Summary
Judgment. [Doc. 68.] The Court will also refer to the exhibits submitted with the previous
pleadings to the extent they are relevant to the Defendant’s Third Motion for Summary
Harassment and Hostile Work Environment
First, the Court will address Plaintiff’s claims of harassment and a hostile work
environment. To prove a hostile work environment claim, Plaintiff must prove (1) she belongs
to a protected group; (2) she was subjected to unwelcome harassment based on membership in
that group, (3) the harassment affected a term, condition, or privilege of her employment; (4) her
employer knew of the harassment; and (5) the employer failed to take proper action. Stewart v.
Rise, 791 F.3d 849, 859 (8th Cir. 2015). “To be actionable, the objectionable environment must
be both objectively and subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.” Id. at 859-60. “To determine
whether an environment is sufficiently hostile or abusive [the Court looks] at all the
circumstances, including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. at 860.
In this case, Plaintiff has not met her prima facie case to establish that she was harassed
because of her race or disability or she was subjected to a hostile work environment.
Plaintiff’s deposition, she refused to identify any instances to support claims of harassment or a
hostile work-environment. [Doc. 53-3 at 21-23.] In her Complaint, Plaintiff asserts that Donald
Pokorny “allowed and helped to [incite] a hostile and discriminatory work environment while
overlooking me and two other African-American females who were more senior, experienced,
and knowledgeable in our work capacity.” [Doc. 1 at 4.] Plaintiff’s Complaint also alleges that
Sonja Williams and Janet Smiley “colluded” to cause her dismissal and generally created a
hostile work environment. [Doc. 1 at 5-6.] Finally, Plaintiff’s Complaint states that Janet
Smiley sent harassing voicemails to her personal cellphone. [Doc. 1 at 6.] In her opposition to
Defendant’s Third Motion for Summary Judgment, Plaintiff fails to provide any evidence that
the alleged conduct by her alleged “harassers” Sonja Williams and Janet Smiley was either
harassment or based on her race or a disability. Plaintiff refers to meetings and communications
about her dismissal, but nothing contained in these allegations remotely rises to the level of
supporting a claim of harassment or hostile work environment under Title VII or the Americans
with Disabilities Act, 42 U.S.C. §§ 12101, et seq. There is no evidence of racial slurs or
comments based on race or disability. 3
In her depositions and her pleadings with the Court, Plaintiff frequently states that the
Defendant has access to the information supporting her claims. Plaintiff must direct the Court to
specific facts supporting her claim or show that a genuine dispute of material fact exists. “A
district court is not required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for some specific facts that
might support the nonmoving party’s claim.” Gilbert v. Des Moines Area Cmty College, 495
F.3d 906, 915 (8th Cir. 2007). The Court will also “not mine a summary judgment record
searching for nuggets of factual disputes to gild a party’s arguments.” Id. Based on the
foregoing, the Court will grant summary judgment in favor of Defendant on Plaintiff’s
harassment and hostile work environment claims.
Plaintiff’s reliance on the 4th Circuit case Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) is
misplaced. In that case, there was direct evidence of harassment and a hostile work environment based on race. No
such evidence was presented in this case. This action is not in any way comparable to Boyer-Liberto.
To survive a motion for summary judgment on a retaliation claim, the plaintiff must show
a prima facie case of retaliation and must show the proffered legitimate non-retaliatory reasons
for her termination were pretextual. Gibson v. Geithner, 776 F.3d 536, 540 (8th Cir. 2015). “To
establish a prima facie retaliation claim under Title VII, an employee must show (1) she engaged
in protected conduct, (2) a reasonable employee would have found the retaliatory action
materially adverse; and (3) the materially adverse employment action was causally linked to the
protected conduct.” Gibson, 776 F.3d at 540. If Plaintiff makes a prima facie showing, then the
burden shifts to the Defendant to articulate a legitimate, non-retaliatory reason for the discharge.
Id. Once the Defendant does so, the burden shifts back to the Plaintiff to put forward evidence of
“Proof of pretext requires more substantial evidence than a prima facie case, because
unlike evidence establishing a prima facie case, evidence of pretext and retaliation is viewed in
light of the employer’s justification.” Gibson, 776 F.3d at 540. There are two routes for
demonstrating a material question of fact as to pretext: first a plaintiff may succeed indirectly by
showing the proffered explanation has no basis in fact; or second a plaintiff can directly persuade
the court that a prohibited reason more likely motivated the employer.” Gibson, 776 F.3d at 540.
“Pretext must be read as shorthand for indicating that a defendant’s proffered explanation for
adverse employment action is a pretext for unlawful [discrimination] not that it is merely false in
some way.” Id.
Based upon the Court’s review of the record, pleadings, and the evidence in this case, the
Court finds that summary judgment should be entered in favor of Defendant on Plaintiff’s
retaliation claim. Plaintiff asserts that the fact that the Defendant acknowledges that she was
terminated proves retaliation. The law states otherwise. The Court will assume without deciding
that Plaintiff made a prima facie case. The Defendant states that it terminated Plaintiff because
she violated Defendant’s policy regarding being absent without leave. The Court takes judicial
notice that it has previously found that this was a legitimate non-discriminatory reason for
Plaintiff’s discharge. Next, the burden shifts to Plaintiff show that the Defendant’s reason was
pretextual. Plaintiff has failed to meet that burden. Plaintiff has not presented any evidence that
Defendant’s termination decision was based on any protected activity. Also, her past good
performance reviews do not establish that her termination based on violation of attendance
policies was pretextual.
Based on the foregoing, Defendant’s Third Motion for Summary Judgment will be
The Court will deny Plaintiff’s request that “Defendant be compelled to submit
additional discovery which indicates that retaliatory, hostile and discriminatory work
environment that the Plaintiff was subjected to.” Plaintiff’s request is untimely and improperly
filed for the same reasons stated in the Court’s previous order on Defendant’s First and Second
Motions for Summary Judgment. [Doc. 68.]
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED. [Doc. 70.]
A separate final Judgment will accompany this Memorandum and Order.
Dated this 6th day of October, 2015.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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