Vargo v. St. Louis, Missouri, City of

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment (Doc. No. 32 ) is GRANTED. A separate judgment will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on August 1, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MAGDALENA VARGO,
Plaintiff,
v.
CITY OF ST. LOUIS,
Defendant.

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Case No. 4:15-cv-520-AGF

MEMORANDUM AND ORDER
This employment discrimination matter is before the Court on Defendant’s motion
for summary judgment (Doc. No. 32). Plaintiff responded to the motion (Doc. No. 37),
and Defendant replied (Doc. No. 41). For the reasons set forth below, Defendant’s
motion will be granted.
BACKGROUND
Plaintiff Magdalena Vargo was employed from 1987 through May 2010 by the
City of St. Louis, where she worked as a Zoning Specialist before being promoted in
2000 to Lead Zoning Specialist. (Doc. No. 38 at 1.) The City of St. Louis’s zoning
section is responsible for approving building and occupancy permits for individuals and
businesses in the city. Id.
Since 2002, Plaintiff’s immediate supervisor was Mary Hart Burton, the Zoning
Administrator. Plaintiff had served as acting Zoning Administrator prior to Burton’s
taking over the position, and testified that she believed herself more qualified for the
Zoning Administrator position when it was awarded to Burton. (Vargo Dep., August 28,

2012, 170:16-171:9.) Burton had a bachelor’s degree in architecture and a master’s
degree in city planning. Plaintiff held an associate’s degree, but not a bachelor’s degree.
(Doc. No. 38 at 1-2.)
During her employment with Defendant, Plaintiff’s job performance was not
without incident. In 2004, Burton noted on Plaintiff’s performance rating that Plaintiff
needed to improve her customer service skills following a complaint received about
Plaintiff by the mayor’s office. (Doc. No. 38 at 8.) Although the parties dispute the
details of the interaction, Burton testified that she felt that Plaintiff’s behavior when
approached about the complaint was disrespectful and threatening. In 2006, Burton
received at least one additional customer complaint about Plaintiff, and held a counseling
session with Plaintiff to address the complaint. Id. Burton also directed Plaintiff to take
a customer service training class at that time; Plaintiff complained to Burton’s superiors
about having to take the class. In 2007, Plaintiff received “unsuccessful” ratings in three
of the five areas of evaluation: customer service, judgment, and work quality. (Doc. No.
38 at 9.) Burton’s comments in the evaluation suggested that Plaintiff needed to improve
handling customers “politely and professionally.” Id.
In 2010, as a part of budget cuts, the Lead Zoning Specialist position was
eliminated, and Plaintiff was laid off. Plaintiff was 62 years old at the time she was laid
off. Thereafter, on June 21, 2010, Plaintiff filed her first Charge of Discrimination with
the Equal Employment Opportunity Commission (“EEOC”), alleging she was laid off on
the basis of national origin and age, and as retaliation. Plaintiff subsequently filed a
lawsuit predicated on her termination, which was tried to a jury in Missouri state court in
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October 2013, with judgment entered in favor of the City of St. Louis. The judgment was
affirmed by the Missouri Court of Appeals in February 2015. Vargo v. City of St. Louis,
456 S.W.3d 99, 100 (Mo. Ct. App. 2015). Also in 2010, following being laid off from
her position with Defendant, Plaintiff applied for Social Security Disability benefits on
the basis of irritable bowel syndrome, as well as related symptoms and conditions. (Doc.
No. 40 at 7.)
In 2011, the City of St. Louis’s Building Division had an opening for a Plan
Examiner position.

This position required an undergraduate degree in planning,

architecture, engineering, or a related field. The position was to be filled pursuant to the
City of St. Louis’s Civil Service Rules, wherein an appointing authority submits a request
to the Director of Personnel. (Doc. No. 38 at 3-4; Doc. No. 33-3.) The Director of
Personnel then “certifies” a list of the names of the top six qualified candidates, from
which the appointing authority fills the vacancy. A Building Division employee who
held the Zoning Specialist position and a bachelor’s degree was hired to fill the Plan
Examiner position, creating a vacancy for the position of Zoning Specialist. (Doc. No. 38
at 3-4.)
The City of St. Louis’s Civil Service Rules mandate that persons laid off from a
position enjoy the right of certification to the same class of position, should one become
available. (Doc. No. 38 at 4; Doc. No. 33-6.) After Plaintiff’s termination in 2010, she
had been placed on such a “Reemployment from Layoff” list, and on August 5, 2011, the
City of St. Louis sent Defendant a letter informing her she had been certified to the list of
six candidates to fill the vacant Zoning Specialist position. (Doc. No. 38 at 5; Doc. No.
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40 at 3.) Plaintiff was also asked to set up an interview for the position. In addition to
Plaintiff, and by permission of the Department of Personnel, the list of certified
candidates for the filled Plan Examiner position was also used for the newly-vacant
Zoning Specialist position. Therefore, the certified list of candidates for the Zoning
Specialist position included Plaintiff and the five unselected candidates for Plan
Examiner. Id. The Zoning Specialist position required either a bachelor’s degree or two
or more years of experience working in zoning; Plaintiff was the only candidate on the
certified list that did not have a bachelor’s degree in architecture, city planning,
engineering, or a related field. Id.
Burton, as the appointing authority, was allowed to select the candidate that would
be offered the Zoning Specialist position. She interviewed all six candidates, including
Plaintiff, over the telephone. Id. at 6. She hired Denis Beganovic, a 26 year old male,
from the list of certified candidates.

Defendant asserts, and Burton testified, that

Beganovic was hired because he had experience working with the Regional Planning
Group and state Planning Group, had experience with graphic mapping and with holding
large public meetings, held a bachelor’s degree in planning from Missouri State
University, and was fluent in Bosnian (which would presumably enable him to
communicate with St. Louis’s substantial Bosnian population). Id. at 6 (citing Burton’s
testimony at Plaintiff’s Missouri state court trial on her previous claims of discrimination;
see Doc. No. 33-1 at 265-266). Plaintiff argues that Burton did not hire Plaintiff because
Plaintiff was over the age of 60, and because Burton was retaliating against Plaintiff for
filing the earlier charge of discrimination. Id. Defendant does not dispute that Burton
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believed Plaintiff to be qualified for the position at the time of her decision. Id. at 7.
However, Defendant also alleges that Burton believed Plaintiff to be difficult to
supervise, argumentative, and resistant to the Zoning Section’s movement toward
computerization. Id.
On January 5, 2012, Plaintiff was found to be permanently and totally disabled by
an administrative law judge (“ALJ”). The ALJ determined that Plaintiff had been able to
perform her past work for the City of St. Louis because of her proximity to restroom
facilities, but that her condition had worsened since her employment. (Id. at 10; Doc. No.
33-11.) The ALJ determined that Plaintiff could not maintain competitive employment
and that she was “unable to perform any past relevant work.” Id. Plaintiff was awarded
Social Security Disability benefits retroactive to April 25, 2010, and agreed in her
deposition that the findings of the ALJ accurately described her medical condition. (Doc.
No. 38 at 11; Vargo Dep., 87:18-22.)
In February 2012, Plaintiff submitted another Charge of Discrimination to the
EEOC, this time relating to Defendant’s decision to hire Beganovic instead of Plaintiff.
The EEOC investigated Plaintiff’s Charge of Discrimination and issued a determination
on November 29, 2013, finding reasonable cause to believe that Plaintiff’s allegations
regarding age and retaliation discrimination were true.1

(Doc. No. 39-14.) Plaintiff

brought her instant lawsuit on February 23, 2015, in Missouri state court, and it was
subsequently removed to federal court pursuant to 28 U.S.C. § 1331.
1

Plaintiff’s suit

Defendant objects that the EEOC Determination constitutes hearsay and is not
admissible, and moreover, is irrelevant to Plaintiff’s claims of employment
discrimination.
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alleges discrimination based on age and retaliation in violation of the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff also asserted a Missouri
state law claim of intentional infliction of emotional distress.
SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered “if the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “Summary judgment is appropriate when, viewing the facts in the light most
favorable to the non-movant, there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Metro. Prop. & Cas. Ins. Co. v. Calvin, 802
F.3d 933, 937 (8th Cir. 2015). In opposing summary judgment, a plaintiff may not
“simply point to allegations” in the complaint, Howard v. Columbia Pub. Sch. Dist., 363
F.3d 797, 800 (8th Cir. 2004), or “rest on the hope of discrediting the movant’s evidence
at trial,” Matter of Citizens Loan & Sav. Co.), 621 F.2d 911, 913 (8th Cir. 1980). Rather,
the plaintiff “must identify and provide evidence of specific facts creating a triable
controversy.” Howard, 363 F.3d at 800 (citation omitted).
ARGUMENTS OF THE PARTIES
In moving for summary judgment, Defendant first argues that Plaintiff cannot
carry her burden of proving a prima facie case of discrimination because she was and is
not qualified to perform the job of Zoning Specialist. In support of this argument,
Defendant explains that Plaintiff’s application for, and subsequent award of, Social
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Security Disability benefits on the basis of her irritable bowel syndrome demonstrates
that she was not capable of performing the job. Defendant points out that the ALJ’s
decision on January 5, 2012, found Plaintiff to be permanently and totally disabled and
unable to return to any prior work. Plaintiff also agreed in her deposition that the ALJ’s
findings fairly and accurately described her medical condition. (Doc. No. 38 at 11;
Vargo Dep., 87:18-22.)
In the alternative, Defendant argues that even if Plaintiff does make a prima facie
showing of discrimination, Defendant had legitimate and nondiscriminatory reasons for
its decision not to hire Plaintiff as a Zoning Specialist. Defendant cites Plaintiff’s history
of conflict with her customers and superiors, and Burton in particular, in support of this
argument. Defendant also argues that Plaintiff was the only candidate in the certified list
of six submitted for the Zoning Specialist position who did not have a bachelor’s degree
in a useful or related field, and cites the selected candidate’s knowledge of government,
experience with public meetings, and fluency in Bosnian as legitimate, nondiscriminatory
reasons that he was a superior candidate.
Defendant argues that Plaintiff’s retaliation claims should be barred for the same
reasons: Plaintiff was not able to perform the job of Zoning Specialist, and even if she
could have performed it, there were legitimate, non-retaliatory reasons to select another
candidate. Moreover, Defendant argues that the fact that Plaintiff filed a Charge of
Discrimination in 2010 and was subsequently not hired for a Zoning Specialist position
some 14 months later does not support a causal connection between protected action
(filing the charge) and the allegedly discriminatory action. Finally, Defendant argues that
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Plaintiff’s state law claim of intentional infliction of emotional distress is barred by the
doctrine of sovereign immunity because Defendant is a public entity, and Plaintiff cites
no exception to this rule of law.
In response, Plaintiff argues that she was fully capable of performing the Zoning
Specialist position at the time she applied for it. Citing case law that an award of Social
Security Disability benefits does not always preclude an allegation of workplace
discrimination, Plaintiff argues that Defendant could have offered her a “reasonable
accommodation” that would have allowed her to perform the job successfully. Plaintiff
argues that if she had been able to use the restroom frequently, she could have performed
the job of Zoning Specialist. She argues that, having performed the job in the past, she
knows that the job could have been performed in spite of her disability. Plaintiff argues
that she has been able to work as a volunteer despite her disability, and that she has
applied for one other position—also a zoning position for a municipal government—
despite her disability. With regard to her retaliation claim, Plaintiff asserts that the 14
months between her filing of a Charge of Discrimination (the protected activity) and her
non-hiring by Defendant is irrelevant, because her application for Zoning Specialist was
Defendant’s first “opportunity to retaliate against her.” (Doc. No. 37 at 6.)
Arguing that she has established prima facie cases of discrimination based on age
and retaliation, Plaintiff next argues that any alternative reaons offered by Defendant are
pretextual. Plaintiff argues that Beganovic could not have been more qualified than she,
because she had held the exact position for almost two decades, had been employed in the
department for some 23 years, and had been promoted from Zoning Specialist to Lead
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Zoning Specialist. Plaintiff also cites a history of generally positive performance reviews
(with the exceptions already noted). Plaintiff argues that she was to be given “priority,”
as a former employee who had been laid off, pursuant to Defendant’s policy. Finally,
Plaintiff argues that the reasons Defendant (through its agents) have given for not hiring
Plaintiff have been inconsistent throughout the life of the litigation, with her purportedly
subpar job performance only being invoked in recent filings.
Notably, Plaintiff offered no response to Defendant’s argument that Plaintiff’s
state law claim of intentional infliction of emotional distress is barred by the doctrine of
sovereign immunity.
In its reply brief, Defendant argues that Plaintiff cannot rely on her own selfserving statements that she was capable of performing the job of Zoning Specialist as
countervailing evidence that Plaintiff could perform the position of Zoning Specialist,
despite being found disabled.

Defendant also argues that Plaintiff confuses the

Americans with Disabilities Act (“ADA”)—under which an employer may be required to
offer a reasonable accommodation—with the ADEA, under which Plaintiff’s claim is
actually asserted, and which does not require an employer to offer a reasonable
accommodation, but instead requires that a plaintiff be able to perform the job to an
employer’s expectations. Therefore, Defendant argues that the cases cited by Plaintiff—
which concern the ADA—are wholly inapposite or are consistent with Defendant’s
position.
With regard to the retaliation claim, Defendant’s reply briefing again suggests that
because she was not qualified for the position, her argument fails. Moreover, Defendant
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argues that its stated reasons for not hiring Plaintiff have not been inconsistent, and that
there is no evidence of pretext.
DISCUSSION
Age Discrimination
Plaintiff has submitted no evidence of direct age discrimination. “A plaintiff may
establish her claim of intentional age discrimination through either direct evidence or
indirect evidence. [W]here the plaintiff presents indirect evidence of discrimination, the
court analyzes her claim under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Tusing v. Des Moines Indep. Cmty. Sch.
Dist., 639 F.3d 507, 515 (8th Cir. 2011) (internal citations omitted).
Under the McDonnell Douglas analysis, the plaintiff has the initial burden to
establish a prima facie case of age discrimination. Once she has done so, “the burden of
production then shifts to the employer to articulate a legitimate non-discriminatory reason
for its employment action.” Id. (quotation and citation omitted). If the employer offers
such a reason, “[t]he burden . . . shifts back to the plaintiff to demonstrate by a
preponderance of the evidence that the stated non-discriminatory rationale was a mere
pretext for discrimination.” Id. (quotation and citation omitted).
To establish a prima facie case of age discrimination based on a failure to hire, a
plaintiff must prove “(1) that the plaintiff was in the protected age group (over 40); (2)
that the plaintiff was otherwise qualified for the position; (3) that the plaintiff was not
hired; and (4) that the employer hired a younger person to fill the position.” Id. (quotation
and citation omitted). Defendant’s first argument for summary judgment focuses solely
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on the second factor—whether Plaintiff has failed to properly establish that she is
otherwise qualified for the position, in light of Plaintiff’s receipt of Social Security
Disability benefits, which are predicated on her being totally and completely disabled.
The Social Security Act defines as disabled a person who is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment[.]” 42 U.S.C. § 1382c(a)(3)(A). Plaintiff’s disabled status therefore creates a
genuine conflict with her position in the instant suit that she was qualified for the position
of Zoning Specialist.
In Lloyd v. Hardin County, Iowa, 207 F.3d 1080 (8th Cir. 2000), the Eighth
Circuit addressed whether an individual found completely disabled can properly maintain
a discrimination claim (albeit, in the context of the ADA as opposed to the ADEA).
Applying the standard set by the Supreme Court in Cleveland v. Policy Management
System Corp., 526 U.S. 795 (1999), the Eighth Circuit explained that its precedent
rejected a per se approach and instead allowed that “a plaintiff may, for purposes of an
ADA claim, resist a motion for summary judgment, despite a prior representation of total
disability [and a finding by an ALJ of the same], by presenting ‘strong countervailing
evidence’ that he or she is in fact qualified to perform the essential functions of his or her
job.” Lloyd, 207 F.3d at 1083 (8th Cir. 2000) (quoting Downs v. Hawkeye Health Servs.
Inc., 148 F.3d 948, 951 (8th Cir.1998)). Moreover, the Eighth Circuit explained that a
plaintiff “must additionally overcome the presumption created by his prior allegation of
total disability for purposes of obtaining Social Security disability benefits.” Id. at 1084.
It also cited the district court’s reasoning that absent strong countervailing evidence,
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“prior representations of total disability will generally carry sufficient weight to grant
summary judgment against the plaintiff.” Id. at 1083 (internal citation and quotation
marks omitted). Although the plaintiff in Lloyd argued that he could perform the job at
issue with a reasonable accommodation, the Court explained:
[T]he restructured job proposed by Lloyd would necessarily
entail reallocating one or more of the essential functions of
[the] job, which he cannot perform with or without reasonable
accommodation. Therefore, Lloyd has failed to provide an
explanation “sufficient to warrant a reasonable juror’s
concluding that [the plaintiff] could nonetheless ‘perform the
essential functions” of [the] job[.]
Id. at 1084-85 (internal citations omitted). Thus, the Eighth Circuit concluded that the
plaintiff’s explanation for his inconsistent assertions failed to overcome the presumption,
created by his prior allegation of total disability and the Social Security Administration’s
determination of the same, that he was not qualified to perform the job and thus, he could
not maintain a claim of discrimination. Id.
Although Lloyd addressed inconsistency with a prior finding of disability in the
context of an ADA case, courts have extended this analysis to cases brought under the
ADEA. Detz v. Greiner Industries, Inc., 346 F.3d 109, 117 (3d Cir. 2003), like the case
at bar, involved a plaintiff who was released from employment and found disabled by the
Social Security Administration, and subsequently brought an ADEA claim against his
former employer. Attempting to reconcile his claim with his disabled status, the plaintiff
argued that he was capable of performing the job he had previously held because it was
tailored to his physical limitations, but that he could not hold any other job; “[i]n other
words, [the plaintiff argued] there was only one job in the economy that he was capable
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of performing.”

Id. at 114.

In finding the plaintiff’s positions irreconcilable, and

affirming summary judgment, the Third Circuit explained:
While Cleveland only specifically addressed a conflict
between SSDI and ADA claims, the analysis is not limited in
its application to cases involving those particular statutory
and administrative schemes. Like an assertion that one is a
“qualified individual” for ADA purposes, a declaration that
one is a “qualified individual” under the ADEA is a “contextrelated legal conclusion.” Therefore, a prima facie showing
under the ADEA that conflicts with earlier statements made
to the SSA is subject to the same analysis, as the reasoning of
the Court in Cleveland also applies in the context of the
ADEA.
Id. at 117.
The Court agrees with the Third Circuit’s reasoning and application of the
Cleveland standard for assessing irreconcilable positions taken in ADEA claims by those
found disabled, and finds it to be a compatible and logical extension of the Eighth
Circuit’s precedent as set forth in Lloyd. See also Johnson v. ExxonMobil Corp., 426
F.3d 887, 892–93 (7th Cir. 2005), as amended (Nov. 21, 2005) (affirming summary
judgment on an ADEA claim where the claimant had applied for Social Security
Disability insurance and attested to being unable to work, and finding that the plaintiff’s
“statement . . . that he was unable to work facially contradicted any claim that he was
performing to his employer’s legitimate expectations”).
Therefore, applying Lloyd to Plaintiff’s ADEA claims in the instant matter, the
Court must decide whether Plaintiff has offered strong countervailing evidence to
overcome the presumption created by her prior allegation of total disability. Plaintiff has
argued that she would have been able to perform the role of Zoning Specialist, because
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she knew from experience that she would be located in close proximity to a bathroom.
Plaintiff alleges she was successfully performing the position at the time she was laid off,
including for a short time after April 25, 2010, the disability onset date alleged by
Plaintiff and determined by the ALJ. This single, self-serving representation appears to
be Plaintiff’s only evidence for her argument, supported in the record only by Plaintiff’s
own deposition testimony.

Defendant argues that this self-serving testimony is

insufficient to create a genuine issue of fact for purposes of summary judgment.
The Court determines that, even if it considers Plaintiff’s statements, they do not
constitute “strong countervailing evidence” that Plaintiff could perform the job of Zoning
Specialist, sufficient to rebut the presumption created by the ALJ’s finding that Plaintiff
is permanently and totally disabled. As Defendant highlights, the record also suggests
that Plaintiff must sometimes use the bathroom “ten times in the morning,” has regular
difficulty sleeping, and sometimes must lay down two or three times per day. (Doc. No.
38 at 11.)

Moreover, the ALJ determined that Plaintiff’s disabling condition had

worsened since she left employment with Defendant. (Doc. No. 33-11 at 7-8.) Plaintiff
herself agreed that the findings of the ALJ—including the specific finding that Plaintiff’s
past work exceeds her residual functional capacity—fairly and accurately described her
medical conditions. Id. at 11.
In light of the record as a whole, no reasonable juror could conclude that
Defendant’s own assurances that she can perform the job constitute “strong
countervailing evidence” to rebut the presumption created by the ALJ’s explicit finding
that Plaintiff is permanently and totally disabled, and cannot “maintain competitive [full
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time] employment[.]” Id. at 10. Like the plaintiffs in Lloyd and Detz, Plaintiff here has
relied on her own assessment of her ability to perform the job; and like the plaintiffs in
Lloyd and Detz, she has failed to offer evidence sufficient to rebut the presumption that,
based on her disabled status, she is unable to perform the essential functions of the job.
Therefore, she cannot establish a prima facie case of discrimination, and her claims must
fail as a matter of law.
Furthermore, even were the Court to conclude that Plaintiff met her burden of
establishing a prima facie case, Defendant would still be entitled to summary judgment.
Under McDonnell Douglas, to rebut the presumption created when the plaintiff meets the
requirements of the prima facie case, a defendant must articulate a legitimate,
nondiscriminatory reason for not hiring the plaintiff. McDonnell Douglas, 411 U.S. at
802.

Here, Defendant has articulated a legitimate nondiscriminatory reason for its

decision not to rehire Plaintiff; namely, Plaintiff’s history of conflict with her customers
and supervisors, including her disagreement with Burton, and the qualifications of
Beganovic, who brought additional qualifications (such as his Bosnian language skills) to
the position.
In response, Plaintiff has not offered affirmative evidence of pretext, but has
argued only that Defendant’s “inconsistent” reasons for not hiring Plaintiff are sufficient.
In fact, the Court finds that Defendant and its agents have consistently offered that
Plaintiff was not hired because another candidate was more qualified. See, e.g., Burton
Dep., Sep. 21, 2012, 83-85, and Oswald Dep., Sep. 21, 2012, 36. Additional justification
of Defendant’s reasoning as the case progressed, to specify that Plaintiff’s history of
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conflicts and poor performance was a part of the calculus that she was not as qualified as
the selected candidate, does not, on its own, constitute evidence of pretext. For this
additional reason, summary judgment is appropriate.
Retaliation
For similar reasons, judgment will also be entered for Defendant on Plaintiff’s
cause of action for retaliation. Again, Plaintiff presented no direct evidence of retaliation,
so the Court applies the McDonnell Douglas burden shifting standard. See Jackson v.
UPS, Inc., 643 F.3d 1081, 1087–88 (8th Cir. 2011). Plaintiff “first must demonstrate a
prima facie case of retaliation to survive summary judgment.” Id. at 1088. To meet this
burden, Plaintiff must show that (1) she engaged in a protected activity; (2) Defendant
subsequently took an “adverse employment action” against her; and (3) there was a
causal connection between the protected activity and the adverse employment action. Id.
In a failure-to-rehire retaliation case, the case law again requires that a plaintiff
demonstrate she is qualified for the position in question. See, e.g., Green v. City of St.
Louis, Mo., 507 F.3d 662, 666 (8th Cir. 2007) (finding in the context of a failure-to-rehire
case that “[t]o establish a prima facie claim for discriminatory failure to hire, a plaintiff
must show that ‘he applied and was qualified for a job for which the employer was
seeking applicants’”) (emphasis added). The Court again finds the Detz and Lloyd
analysis applicable, and as explained above, Plaintiff has failed to offer evidence that she
was qualified for the position despite the Social Security Administration’s finding that
she was permanently and totally disabled. Therefore, Plaintiff has failed to establish a
prima facie case of retaliation.
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Furthermore, and also as described above, even assuming a prima facie case of
retaliation had been established, Defendant has offered legitimate and nondiscriminatory
reasons for its hiring decision, and Plaintiff has not offered evidence of pretext.
Summary judgment is therefore warranted with regard to Plaintiff’s claims for retaliation
under Title VII and the ADEA.
State Law Claim of Intentional Infliction of Emotional Distress
Plaintiff failed to offer any opposition to Defendant’s argument that sovereign
immunity bars Plaintiff’s claim for intentional infliction of emotion distress, and neither
is the Court independently aware of any exception to the sovereign immunity doctrine
that should apply to Plaintiff’s claim. See Mo. Rev. Stat. § 537.600. “Under Missouri
law, sovereign immunity is waived only in cases involving injuries directly resulting
from the negligent act of a public employee arising out of the operation of a motor
vehicle within the course of the person’s employment, or for injuries caused by the
condition of a public entity’s property.” Shell v. Ebker, 2006 WL 1026982, at *10 (E.D.
Mo. Apr. 14, 2006) (citing Mo. Rev. Stat. § 537.600.1(1)-(2)). Public entities also may
waive their sovereign immunity to the extent that they are covered by liability insurance.
Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008). But none of
these exceptions apply to Plaintiff’s claim for intentional infliction of emotional distress.
Therefore, judgment will also be entered for Defendant on this claim.

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CONCLUSION
IT IS HEREBY ORDERED that the Defendant’s Motion for Summary Judgment
(Doc. No. 32) is GRANTED. A separate judgment will accompany this Memorandum
and Order.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of August, 2016.

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