Parris v. Gibson

Filing 32

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendant's motion for summary judgment [Doc. # 26 ] is granted.. Signed by District Judge Carol E. Jackson on 5/18/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JANLISA PARRIS,
Plaintiff,
vs.
ROBERT A. MCDONALD,
Secretary of the Department
of Veterans Affairs,
Defendant.

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No. 4:14-CV-1808 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the defendant’s motion to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or,
alternatively, for grant summary judgment pursuant to Rule 56.

Plaintiff has not

responded, and the time allowed for doing so has expired.
Plaintiff Janlisa Parris brings this action asserting claims of employment
discrimination against her employer, the Department of Veterans Affairs.

Plaintiff

claims that the defendant discriminated against her on the basis of race and disability,
retaliated against her for prior protected conduct, failed to accommodate her
disability, and created a hostile work environment.
I.

Background

Plaintiff began working for the Department of Veterans Affairs in April 2008 as
a GS-5 claims assistant.

Gov-0009 [Doc. #28-3].

At all relevant times plaintiff was

a Veterans Service Representative (VSR) and ultimately progressed to the GS-10
level.

Gov-0010 [Doc. #28-3].

veterans.

Id.

As a VSR, plaintiff processes claims of military

As a VSR is promoted to a higher grade level in the Agency, the

productivity and quality goals used to evaluate a VSR’s performance increase.

Id.

Plaintiff’s direct supervisor was Randy Jones, an African-American male.
Gov-00256 [Doc. #28-2]; Gov-0010 [Doc. #28-3].

Jones’s official title was

Supervisor Veterans Service Representative, but he was also referred to as a “coach.”
Gov-00256 [Doc. #28-2]; Gov-0010 [Doc. #28-3].
20–25 employees in total.

Jones supervised approximately

Gov-00256 [Doc. #28-2]; Gov-0010 [Doc. #28-3].

Jones’s job duties included running the daily operations of processing claims for
veterans, monitoring the production and quality of the claims, and monitoring
employees’ leave.

Gov-00257 [Doc. #28-2]; Gov-0010 [Doc. #28-3].

promotion to supervisor, Jones worked as a VSR with plaintiff.

Before his

Gov-00282 [Doc.

#28-2]; Pl.’s Dep. 50:22–51:1 [Doc. #28-5].
Aaron Givens, an African-American male, is the Veterans Service Center
Manager. Gov-00298 [Doc. #28-2].
was Jones’s direct supervisor.

From January 2010 until March 2011, Givens

Gov-00299 [Doc. #28-2].

Givens had previously

held positions as a coach and as a VSR. Gov-00298, 00300 [Doc. #28-2]; Gov-0010
[Doc. #28-3]. James Thomas Jr., an African-American male, worked in the Human
Resources (HR) Department of the agency’s office in St. Louis as an HR specialist from
November 2005 to January 2007, as the HR liaison from January 2007 to August
2013, and as the EEO program manager thereafter.
#28-2].

As the HR liaison, Thomas’s job duties included processing employees’

reasonable accommodation requests.
II.

Gov-00307, 00310 [Doc.

Gov-00308 [Doc. #28-2]

Summary Judgment Standard

Because defendant’s motion cites to and relies upon matters outside the
pleadings, the Court will consider the motion under the legal standard for summary
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judgment. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012)
(comparing matters outside the pleadings to documents necessarily embraced by the
complaint).

Rule 56(a) of the Federal Rules of Civil Procedure provides that

summary judgment shall be entered if the moving party shows “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”

In ruling on a motion for summary judgment, the court is required to

view the facts in the light most favorable to the non-moving party, giving that party
the benefit of all reasonable inferences to be drawn from the underlying facts.
AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).

The moving party

bears the burden of showing both the absence of a genuine issue of material fact and
its entitlement to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986).

If the moving party meets its burden, the non-moving party

may not rest on the allegations of its pleadings, but must set forth specific facts, by
affidavit or other evidence, showing that a genuine issue of material fact exists.
Gannon Intern., Ltd. v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012); Gibson v.
American Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012).

“Where the record

taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial.”

Ricci v. DeStefano, 557 U.S. 557, 586 (2009)

(quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).
Pursuant to Local Rule 4.01, a party seeking summary judgment must submit a
statement of uncontroverted material facts.
complied with this requirement.

E.D.Mo. L.R. 4.01(E).

Defendant

See Def.’s Statement [Doc. #28]. The rule further

provides that “[a]ll matters set forth in the statement of the movant shall be deemed
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admitted for purposes of summary judgment unless specifically controverted by the
opposing party.”

E.D.Mo. L.R. 4.01(E).

Plaintiff did not respond to defendant’s

motion or otherwise controvert defendant’s statement of uncontroverted material
facts.

Accordingly, the Court will deem all matters defendant set forth in his

statement that are supported by evidence in the record as admitted by plaintiff for
purposes of summary judgment.
III.

Discussion

Plaintiff’s bases her claims of discrimination on the following incidents:

(1)

Jones cancelled her downtime between January 2011 and April 2012; (2) Jones
denied her sick leave request and marked her as absent without leave on March 21
and 22, 2011; (3) Jones issued her a warning of unacceptable performance on
December 7, 2010, January 24, 2011, and February 18, 2011; (4) Jones placed her on
a performance improvement plan on March 12, 2012; and (5) Givens denied plaintiff’s
request for reasonable accommodation of her disability on November 1, 2011.
Additionally, as an overarching theory, plaintiff asserts that the discriminatory acts
she alleges were part of a conspiracy against her.

Pl.’s Dep. 46:9–62:9 [Doc.

#28-5].
(A)

Cancellation of Downtime

Plaintiff alleges that Jones discriminated against her based on race and created
a hostile work environment when he cancelled her downtime in 2011 and 2012.
Dep. 63:3–13, 66:15–68:4, 71:14–73:12 [Doc. #28-5].

Pl.’s

“Downtime” is an

extension of time granted to a VSR to process a claim beyond the amount of time
generally allowed to work on a claim.
reviewed VSRs’ use of downtime.

Gov-00259, 00270 [Doc. #28-2].

Jones

Gov-00272 [Doc. #28-2]; Gov-0011–12 [Doc.
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#28-3].

Downtime requests are awarded when there are special or abnormal

circumstances which require more time to process a claim.

Id.

The cancellation of

downtime reduces productivity level, which can impact a VSR’s performance
standards.

Gov-00264, 00269 [Doc. #28-2]; Gov-0012 [Doc. #28-3].

To establish a prima facie case of discrimination under Title VII of the Civil
Rights Act of 1964, plaintiff must show: (1) she is a member of a protected group;
(2) she was meeting the legitimate expectations of her employer; (3) she suffered an
adverse employment action; and (4) similarly situated employees who are not
members of the protected group were treated differently.
v. Green, 411 U.S. 792 (1973);

McDonnell Douglas Corp.

Box v. Principi, 442 F.3d 692, 696 (8th Cir. 2006);

Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).

In cases where direct

evidence of discrimination is absent, the burden of proof then shifts to the employer
“to present evidence of a legitimate, nondiscriminatory reason for its adverse
employment action.”

Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008).

“If the employer can articulate a nondiscriminatory reason, the burden returns to the
employee to prove that the proffered reason is pretextual.”

Id. at 831–32.

“The

ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”

Burdine,

450 U.S. at 253.
Plaintiff testified that Jones began cancelling her downtime immediately after
becoming her supervisor, something that no prior supervisor had ever done.
Gov-00284–86 [Doc. #28-2]; Pl.’s Dep 50:3–10, 74:6–14 [Doc. #28-5].

Despite

plaintiff’s allegations to the contrary, Jones also cancelled the downtime of other VSRs
under his supervision.

Pl.’s Dep. 70:1–71:13 [Doc. #28-5]; Gov-00269 [Doc.
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#28-2].

The evidence establishes that plaintiff requested more downtime than any

other VSR under Jones’s supervision,

Gov-00269 [Doc. #28-2]; Gov-0012 [Doc.

#28-3], and that she consistently used downtime incorrectly. Gov-00269 [Doc.
#28-2]; Gov-0023 [Doc. #28-3].

According to his undisputed testimony,

Jones

granted “quite a bit” of plaintiff’s downtime requests. Gov-00271 [Doc. #28-2].
Between October 2011 and February 2012, plaintiff did not meet either her
production or quality goals.
#28-5].

Gov-0210–11 [Doc. #28-1]; Pl.’s Dep. 112:20–24 [Doc.

Plaintiff blamed this on Jones’s cancellation of her downtime.

Gov-00291

[Doc. #28-2]. Plaintiff, however, admitted that the cancellation of downtime has no
effect on a VSR’s quality goals.

Gov-00294 [Doc. #28-2]; Gov-0013 [Doc. #28-3].

Plaintiff testified that she could not recall ever meeting her production goals since she
began her employment at the Agency in 2008, until she was placed on a performance
improvement plan.

Gov-00295 [Doc. #28-2].

Plaintiff complained to Givens via email regarding Jones’s cancellation of her
downtime.

Gov-00299 [Doc. #28-2].

Givens discussed the situation with Jones

and recalled Jones showing him that plaintiff had input her downtime incorrectly.
Gov-00299, 00306 [Doc. #28-2]; Gov-0012 [Doc. #28-3]. Givens was not aware of
plaintiff ever being disciplined for improperly inputting downtime. Gov-00306–07
[Doc. #28-2]. Plaintiff’s work was mitigated (i.e., she was not held accountable for
mid-year changes in production schedules) and her failure to meet her productivity
goals was not considered in several performance appraisals.

Gov-0218–31 [Doc.

#28-1]; Gov-0013–14 [Doc. #28-3].
Plaintiff has presented no evidence showing that she suffered an adverse
employment action or that she was she treated differently than similar situated
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employees. Even if plaintiff had established a prima facie case of race discrimination,
she has not demonstrated that the nondiscriminatory reason articulated by defendant
for canceling her downtime is pretextual.

Accordingly, there is no genuine issue of

disputed material fact for trial with respect to plaintiff’s race discrimination claim as it
relates to the cancellation of her downtime.
For the same reasons, plaintiff also has not established a hostile work
environment claim with respect to the cancellation of her downtime.

To establish a

hostile work environment claim, a plaintiff must show that: (1) she is a member of a
protected group; (2) she was subject to unwelcome harassment; (3) the harassment
was based on her protected-group status; (4) the harassment affected a term,
condition, or privilege of her employment; and (5) her employer knew or should have
known of the harassment and failed to take appropriate remedial action.
Tri-National Logistics, Inc., 809 F.3d 981, 985 (8th Cir. 2016).

Nichols v.

To be actionable, the

work environment must have been both objectively and subjectively offensive.
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004).

To decide

whether a work environment is objectively offensive, the court must “examine 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 the conduct unreasonably interfered with the employee’s work performance.
Id.
Plaintiff has not shown that she was subjected to unwelcome harassment.
Jones’s actions were not discriminatory or otherwise objectively offensive.

The

undisputed facts are that plaintiff misused and abused downtime, and Jones cancelled
her downtime when appropriate, just as he did with other employees.
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Plaintiff’s

allegations that Jones was rude to her on one occasion and that generally avoided
talking to her do not rise to the requisite level of objectively offensive work conditions
so as to constitute a hostile work environment.
#28-5].

Pl.’s Dep. 71:14–73:12 [Doc.

Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1128 (8th Cir.

2000) (hostile work environment claim requires proof of “[m]ore than a few isolated
incidents.”).

Therefore, defendant is entitled to judgment as a matter of law on

plaintiff’s race discrimination and hostile work environment claims arising from the
cancellation of downtime in 2011 and 2012.
B.

AWOL Designation

Plaintiff alleges that Jones and Givens discriminated against her based on race
and disability, retaliated against her for prior EEO activity, and created a hostile work
environment when Jones marked her as absent without leave (AWOL) in March 2011.
Pl.’s Dep. 77:20–79:13 [Doc. #28-5].

Plaintiff claims Jones is biased against

African-Americans and did not treat Caucasian employees the same way.
83:18–84:15 [Doc. #28-5].

Pl.’s Dep.

Plaintiff’s allegations against Givens with respect to the

AWOL designation are solely based on the role Givens held as Jones’s supervisor.
Pl.’s Dep. 78:2–18 [Doc. #28-5].
The undisputed evidence shows that plaintiff left work early on March 21, 2011,
without making the required request for sick leave.
#28-2].

Gov-00294, Gov-00265 [Doc.

Although plaintiff was initially designated as AWOL, that designation was

rescinded by Jones after plaintiff returned to work.

Gov-00266, 00289 [Doc. #28-2].

Plaintiff makes no showing that she was treated less favorably than similarly situated
employees and no showing that the initial AWOL designation was made because of her
disability.

Other than her status as a member of a protected class, plaintiff also has
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not alleged or established any other element of a hostile work environment claim with
respect to the AWOL designation.

Defendant has articulated a legitimate

non-discriminatory reason for marking her as AWOL, which plaintiff has not refuted.
Moreover, Givens’s position as Jones’s supervisor does not automatically make him
complicit in any alleged discrimination.
Plaintiff’s claim that she was retaliated against for making an EEO complaint
against Thomas is also unsupported by the record.

Plaintiff has presented no

evidence that Thomas hired a relative for a position that plaintiff was qualified for or
that either Jones or Givens was aware of her EEO claim against Thomas.
Gov-00302

[Doc. #28-2].

Gov-00273,

“A party’s unsupported self-serving allegation that her

employer’s decision was based on retaliation does not establish a genuine issue of
material fact.”

Gibson v. Am. Greetings Corp., 670 F.3d 844, 857 (8th Cir. 2012)

(quoting Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011)).
Defendant thus is entitled to judgment as a matter of law on plaintiff’s claims of
discrimination based on race and disability, retaliation for prior EEO activity, and
hostile work environment as they relate to Jones’s designation of plaintiff as AWOL in
March 2011.
C.

Warnings of Unacceptable Performance

Plaintiff alleges that the warnings of unacceptable performance that were
issued to her in 2010 and 2011 were discriminatory.

However, plaintiff admits that

she was not meeting either her productivity or quality goals before being placed on a
performance improvement plan and she does not dispute that she frequently misused
or abused downtime.

The warnings were intended to give plaintiff formal, written

notice that she was not achieving her productivity goals.
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Certainly, it is appropriate

for an employer to let an employee know when she is not meeting the employer’s
expectations.
disability.

Further, plaintiff has alleged nothing linking the letters warning to her

Thus, defendant is entitled to judgment as a matter of law on plaintiff’s

claims of discrimination and retaliation as they relate to the issuance of the warnings
of unacceptable performance.
D.

Performance Improvement Plan

Jones placed plaintiff on a 90-day performance improvement plan beginning on
March 12, 2012 after she had failed to meet cumulative productivity or quality
standards for five months.
#28-2].

Gov-0210–11 [Doc. #28-1]; Gov-00268–69 [Doc.

While an employee is on the plan, she is not allowed to work overtime or on

a compressed four-day week tour of duty, which are considered privileges reserved
for employees who are meeting their goals.

Pl.’s Dep. 108:14–20, 113:3–114:16

[Doc. #28-5]; Gov-00272, 00304 [Doc. #28-2].

Prior to being placed on the plan,

plaintiff received warnings of unacceptable performance.
#28-1].

Gov-0215–17 [Doc.

As part of the plan, plaintiff was provided additional training and assistance

on a daily basis to help her meet her goals.

Gov-0210–11 [Doc. #28-1].

After

plaintiff successfully completed her 90-day placement, she was able to return to
working overtime and a compressed schedule.

Pl.’s Dep. 111:12–112:10, 115:22–

116:11 [Doc. #28-5]; Gov-0209 [Doc. #28-1].
Plaintiff admitted that she had not been meeting her production or quality
goals.

Gov-00290–91 [Doc. #28-2]; Pl.’s Dep. 112:20–24 [Doc. #28-5].

Also, the

evidence shows that Jones placed two other employees, one Caucasian and one
African-American, on performance improvement plans for failing to meet productivity
or quality goals during the relevant time period.
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Gov-00269 [Doc. #28-2].

They,

too, were not allowed to work overtime or a compressed work schedule.

Gov-00275

[Doc. #28-2].
Plaintiff has not demonstrated the existence of a genuine issue of material fact
on her race discrimination or hostile work environment claims arising from being
placed on the performance improvement plan.

The undisputed facts in the record

indicate that Jones implemented the plan policy uniformly.

Plaintiff’s poor

performance was a legitimate non-discriminatory reason for the defendant’s action,
and plaintiff has not shown that it is pretextual.

Further, the placement on the plan

did not prevent plaintiff’s advancement within the agency, as the evidence shows that
she was later promoted. Accordingly, defendant is entitled to judgment as a matter
of law on plaintiff’s claims arising from her placement on a performance improvement
plan.
E.

Reasonable Accommodation

Next, plaintiff alleges that Givens discriminated against her based on her
disability when he denied her request for a reasonable accommodation.
93:17–94:14 [Doc. #28-5].

Pl.’s Dep.

Plaintiff also alleges Givens created a hostile work

environment by requiring her to submit a formal request with supporting medical
records to support her claim for a reasonable medical accommodation.
93:17–94:14, 97:15–104:14 [Doc. #28-5].

Pl.’s Dep.

The disabilities plaintiff alleges for

which she needed an accommodation are major depression disorder and anxiety,
which affect her abilities to focus and concentrate and cause her claustrophobia.
Gov-00277–78 [Doc. #28-2].
Because plaintiff is a federal employee, the Rehabilitation Act of 1973 is the
exclusive vehicle for judicial remedy of her disability discrimination claim.
-11-

29 U.S.C.

§§ 701–797; Gardner v. Morris, 752 F.2d 1271, 1278 (8th Cir. 1985). To establish
a prima face case of disability discrimination under the Rehabilitation Act, “a plaintiff
must show: (1) that she was disabled, (2) that she was qualified to do the essential
job function with or without reasonable accommodation, and (3) that she suffered an
adverse action due to her disability.”

Buboltz v. Residential Advantages, Inc., 523

F.3d 864, 868 (8th Cir. 2008) abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031 (8th Cir. 2011).

The Rehabilitation Act adopts the

definition of “disability” set forth in the ADA as “a physical or mental impairment that
substantially limits one or more major life activities.”
U.S.C. § 705(9).

42 U.S.C. § 12102(a)(A); 29

In a failure to accommodate case, discrimination under the

Rehabilitation Act occurs if “a covered entity [does] not make reasonable
accommodation to the known physical or mental limitations of an otherwise qualified
applicant or employee with a disability, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of its
business.”

29 C.F.R. § 1630.9(a). It is the disabled employee’s initial burden to

make her employer aware of the need for an accommodation, provide relevant details
of her disability, and, if not obvious, provide the reason that her disability requires an
accommodation.

EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 795

(8th Cir. 2007); see also Peyton v. Fred’s Stores of Ark., 561 F.3d 900, 903 (8th Cir.
2009) (“[O]rdinarily it is the plaintiff employee, rather than the defendant employer,
who

must

initiate

accommodation].”).

the

interactive

process

[of

discussing

reasonable

Once the employer is made aware of the legitimate need for an

accommodation, the employer must engage in an interactive process to determine
whether reasonable accommodations are possible.
-12-

Id.; Buboltz, 523 F.3d at 870.

“If such accommodations are possible, then the employer must reasonably
accommodate that request, but need not provide the exact accommodation
requested.” Buboltz, 523 F.3d at 870.
Plaintiff’s supervisors prior to Jones had allowed her to sit at a desk by a
window.

Gov-00278–79 [Doc. #28-2].

In November 2011, Agency employees

were being moved to different seating areas. Gov-00266 [Doc. #28-2].

Plaintiff

told Jones that she needed to be seated near a window as an accommodation for a
medical disability.

Id.

At Jones’s instruction, plaintiff completed a reasonable

accommodation request that was forwarded to Givens and Thomas for review.

Id.

Givens denied plaintiff’s formal medical disability accommodation request on the basis
that the medical evidence she submitted did not support her request. Nevertheless,
he allowed plaintiff to remain seated at her desk by a window for her comfort.
Gov-00266, 00289–90, 00306, 00308, 00314 [Doc. #28-2]; Pl.’s Dep. 103:22–104:7
[Doc. #28-5]; Gov-0248 [Doc. #28-1].
moved away from a window.

It is undisputed that plaintiff was never

Gov-00292 [Doc. #28-2]; Pl.’s Dep. 101:15–22 [Doc.

#28-5].
At the administrative hearing, plaintiff was unable to offer medical evidence to
support her claim that she had been diagnosed with claustrophobia requiring her to be
seated near a window.

Gov-00290 [Doc. #28-2].

Plaintiff acknowledged that her

physician did not include a reference to or a diagnosis of claustrophobia in her medical
records. Pl.’s Dep. 98:19–101:8 [Doc. #28-5].
Plaintiff’s claim of disability discrimination fails.

Plaintiff has produced no

evidence to establish that she has a disability under the Rehabilitation Act.

She also

failed to provide sufficient medical support to explain the relevant details of her
-13-

disability and establish a legitimate need for an accommodation.
Customer Mgmt. Grp., Inc., 491 F.3d at 795.

See Convergys

Despite this lack of support, plaintiff

received the accommodation she wanted—a desk by the window.

Even if plaintiff

had established that she is disabled, she cannot show that she suffered any adverse
employment action or a refusal to accommodate.

Therefore, defendant is entitled to

judgment as a matter of law on plaintiff’s disability discrimination claim.
F.

Conspiracy

Plaintiff testified that she filed an EEO complaint in 2009 after being denied a
promotion to a position for which Thomas’s daughter was hired.
49:8 [Doc. #28-5].

Pl.’s Dep. 47:22–

According to plaintiff, Thomas was demoted from his position as

HR director as a result of her nepotism complaint, and that his demotion gave rise to
the conspiracy against her.

Pl.’s Dep. 53:10–57:23 [Doc. #28-5]. It is undisputed,

however, that Thomas was not a director or manager of HR, nor was he demoted.
Gov-00307, 00310 [Doc. #28-2].

It is also undisputed that Thomas was not

involved in the selection or hiring decisions of any relatives.
#28-2].

Gov-00308 [Doc.

Finally, it is undisputed that neither Jones nor Givens was aware of

plaintiff’s 2009 EEO complaint against Thomas.

Gov-00273, 00302 [Doc. #28-2].

Plaintiff’s conspiracy claim has no basis in fact.
*

*

*

*

*

For the reasons set forth above,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
[Doc. #26] is granted.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 18th day of May, 2016.
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