Meredith v. McDonald

Filing 28

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the motion for summary judgment filed by defendant Department of Veterans Affairs 20 is GRANTED. A separate Judgment is entered this date in accordance with this Memorandum and Order. Signed by District Judge Catherine D. Perry on 11/10/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARIAN MEREDITH,
Plaintiff,
v.
ROBERT MCDONALD, Secretary,
Department of Veterans Affairs,
Defendant.

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No. 4:15CV1007 CDP

MEMORANDUM AND ORDER
Plaintiff Marian Meredith works at the Department of Veterans Affairs (VA)
as a radiologic technologist specializing in ultrasounds. She brings this lawsuit
against the VA claiming that it discriminated against her in her employment on
account of her age and race, and in retaliation for engaging in protected activity.
She also claims that the VA subjected her to harassment and a hostile work
environment. The VA now moves for summary judgment on all of Meredith's
claims. Because the undisputed facts show that conduct of which Meredith
complains does not rise to the level of actionable discriminatory conduct, I will
grant the motion.
Background
Plaintiff Marian Meredith is an African-American woman who was over
forty years of age at all times relevant to this lawsuit. She began working at the

VA in 1999 as a radiologic technologist in ultrasound, CT, and angiography but
worked primarily in ultrasound. She continues to work at the VA, exclusively as
an ultrasound technologist.
In March 2008, a new Siemens 64-slice CT scanner was installed at the VA.
Siemens provided training on the equipment to permanent and temporary
technologists whose primary modality was CT imaging. Amy Martinez, a white
woman, was a temporary technologist who trained on the Siemens equipment.
She had worked at the VA as a temp tech since 2005, but the VA hired her as a
permanent employee in February 2009. Some longtime VA technologists,
including Meredith, were not trained on the equipment.
In early 2009, the supervisor of Nuclear Medicine at the VA asked some
technologists if they were interested in taking on the responsibilities of Special
Imaging supervisor, a position which had recently become vacant. There was no
increase in pay associated with these additional responsibilities. The position
oversaw ultrasounds, CT, and angiography. After a number of technologists
declined, Martinez was asked and she accepted. Meredith was not asked if she was
interested in the position. Martinez, who was thirty-one years old, became acting
supervisor on March 6, 2009. Meredith was fifty-six years old.
Meredith complained to her union of being passed over for the acting
supervisor position and, in April 2009, she initiated contact with an EEO counselor
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regarding the matter. She thereafter began experiencing unwelcome remarks and
unpleasant conduct at work. She filed a formal complaint of discrimination on
July 31, 2009, alleging race and age discrimination in relation to the acting
supervisor position. She also claimed that she had been retaliated against for filing
an EEO complaint. On November 25, 2009, Meredith amended her EEO
complaint to include an additional claim relating to proposed disciplinary action.
Eighteen months after being appointed acting supervisor, which included
supervisor training, Martinez applied for and was promoted to a permanent
supervisory position. This permanent position included an increase in pay.
Meredith did not apply for the permanent position because she did not have the
required training.
Meredith pursued her claims of discrimination and retaliation through the
EEO process and obtained a Final Agency Decision on March 5, 2013. Her appeal
of the decision was denied on October 8, 2014, and her request for reconsideration
was denied on March 27, 2015. She brought this lawsuit on June 25, 2015.
In this action, Meredith claims that she was subjected to adverse
employment action on account of her age, in violation of the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (ADEA); on
account of her race, in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq. (Title VII); and in retaliation for engaging in
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protected conduct, in violation of Title VII. She also claims that she was subjected
to harassment and a hostile work environment on account of these factors, in
violation of Title VII and the ADEA.
The VA moves for summary judgment, arguing that Meredith cannot make a
prima facie case of discrimination on any of her claims and, further, that any action
it took was based on legitimate nondiscriminatory reasons. I will grant the motion.
Summary Judgment Standard
Summary judgment must be granted when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “There is no
‘discrimination case exception’ to the application of summary judgment, which is a
useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial.” Torgerson, 643 F.3d at 1043.
Initially, the moving party must demonstrate the absence of an issue for trial.
Celotex, 477 U.S. at 323. Once a motion is properly made and supported, the
nonmoving party may not rest upon the allegations in her pleadings or in general
denials of the movant's assertions, but must instead come forward with specific
facts showing that there is a genuine issue for trial. Id. at 324; Torgerson, 643 F.3d
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at 1042. I must view the facts in the light most favorable to the nonmoving party,
“but only ‘if there is a genuine dispute as to those facts.’” RSA 1 Ltd. P'ship v.
Paramount Software Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015) (quoting
Torgerson, 643 F.3d at 1042). “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.” Torgerson, 643 F.3d at 1042 (internal quotation marks and citations
omitted).
Evidence Before the Court on the Motion
At all times relevant to Meredith’s complaint, Dr. Barbara Sterkel was Chief
of Diagnostic Imaging Services at the VA and was Meredith’s second-line
supervisor. Bob Adams was the supervisor of Nuclear Medicine at the VA. He
has never had any supervisory authority over Meredith in Radiology, but he
sometimes helped the Radiology supervisor. When Martinez became acting
supervisor of Special Imaging in March 2009, she became Meredith’s immediate
supervisor.
When the Special Imaging supervisor position became vacant in early 2009,
Adams asked some VA technologists if they would be interested in taking on
additional duties to cover the supervisor’s position. Adams was advised that the
problems that needed to be addressed in the department were CT-related problems,
so he directed his inquiry to full-time CT technologists. Adams did not ask
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Meredith if she was interested in volunteering for the supervisory position. He was
aware that Meredith had performed some work in CT but that she primarily
worked as an ultrasound technologist.
Three CT technologists declined Adams’ offer to take on supervisory duties.
Martinez accepted the offer. At the time, Martinez was a full-time CT technologist
and had worked with the new Siemens CT. Meredith asserts that only two
technologists were offered the acting supervisor position before the offer was
extended to Martinez – Randy Karfs, a white ultrasound technologist; and Dennis
Moynihan, a white CT technologist.1 Meredith points to no admissible evidence to
support this assertion. Meredith contends that she and James Love should have
been offered the position, given that they had seniority over Moynihan and
Martinez.
Love, an African-American CT technologist under the age of forty, testified
at Meredith’s EEOC hearing that he could not recall whether he was offered the
position, but he was not interested in taking on the job. Karfs testified that he was
not offered the position.2
Meredith initiated EEO contact in April 2009 and complained that she was
1

Although Moynihan’s exact age in March 2009 is unknown, it is undisputed that he was over
forty years old. Karfs was fifty-seven years old.
2
To support its motion, the VA submitted the transcripts of Meredith’s December 2012 and
January 2013 EEOC hearings, which I may consider as evidence. My consideration of these
transcripts should not be construed as my affirmance or reversal of the EEOC’s findings,
however. Indeed, in my review of the issues in this case, I have not considered or relied on the
EEOC’s decisions.
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not considered for the supervisory position because of her age and race. After
making this complaint, Meredith began experiencing unwelcome remarks and was
subject to unpleasant conduct and disciplinary action. While none of the remarks
involved Meredith’s age or race,3 Meredith claims that the following conduct
shows continued discrimination, constituted retaliation, and created a hostile work
environment:
1)

Change in Tour of Duty – July 9, 2009
Meredith primarily worked at the VA’s St. Louis location, and her tour of

duty, i.e., her shift, was from 7:00 a.m. to 3:30 p.m.
Beginning in 2000 or 2001, ultrasound services were offered approximately
once a month at the Jefferson Barracks (JB) location. Meredith volunteered to be
the ultrasound technologist at JB because no one else wanted this assignment. Her
hours at JB were from 7:00 a.m. to whenever she finished, which was usually
around noon. She would then take leave for the remainder of the day. The
frequency of services at JB eventually increased and, by 2009, Meredith worked at
the JB location every Thursday.
Beginning July 9, 2009, the JB assignment was rotated through three
ultrasound technologists in order to include a new technologist who had recently

3

Deft’s Exh. B, Meredith EEO testimony at pp. 9-10.
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begun working at the VA.4 This resulted in Meredith working at the JB location
every third Thursday instead of every Thursday as before. When Meredith worked
at the St. Louis VA on Thursdays, her shift was from 8:00 a.m. to 4:30 p.m.
2)

Martinez Confrontation – July 20, 2009
When Meredith was leaving the VA at the end of her shift on July 20, 2009,

she noticed an open scanning room. She went in to turn off the lights and close
down the room. Martinez and Dan McCallum, a quality assurance specialist, were
in the room, performing a CT scan on a patient. When Meredith came into the
room, Martinez told her that she would be on call that evening beginning at 5:00
p.m. instead of at 8:00 p.m. Meredith questioned why she had not been told earlier
about this schedule change and asked if she would have to relieve Martinez.
Meredith admits that she and Martinez then “went back and forth” after which
McCallum intervened and told them to calm down given that a patient was in the
room.5 Martinez sat down and resumed scanning the patient. Meredith continued
to question Martinez regarding what she was expected to do, but Martinez did not
respond. McCallum then told Meredith to leave the room.
Although Meredith left the scanning room, she remained at the VA and
continued to work because another patient was scheduled to be scanned. After
Meredith processed the patient, Martinez took the patient to the scanning room to
4
5

This new technologist, Nancy Lloyd, was a fifty-one-year-old white woman.
Deft’s Exh. A, Meredith depo. at pp. 60-61.
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continue in the preparation and to perform the scan. After Martinez completed the
scan, Meredith left the VA and went home.
Since Meredith exceeded her scheduled shift by over two hours, she put in
for compensatory time the following day. Both Martinez and Dr. Sterkel denied
the request. An administrator eventually approved Meredith’s request.
On August 5, 2009, Meredith was informed that a reprimand had been
proposed for her disrespectful conduct toward Martinez.
3)

Resident Confrontation – July 31, 2009
While on call on July 31, 2009, Meredith received a telephone call at home

from a resident physician regarding a need for Meredith to come in to perform a
CT scan. Meredith admittedly “got a little smart” with the resident during this
telephone conversation.6 Meredith then went into work and performed the scan.
After completing the scan, the resident with whom Meredith had spoken on
the phone came into the room and asked Meredith why she spoke the way she did
on the telephone. The resident became angry with Meredith, but Meredith did not
argue back because of her previous experience with Martinez. After the resident
left, Meredith loaded the scans into the network to send to the requesting
physician, but she was upset while doing so. Meredith received error messages
during this process because the images were improperly loaded. Meredith called
6

Deft’s Exh. A, Meredith depo. at p. 78.
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the requesting physician and explained that she was having problems sending the
images, but the physician stated that she could see them. Because the physician
could see the images, Meredith thought the initial upload was successful. She then
finished case editing the images and loaded them to another part of the network.
4)

Proposed Reprimand – August 21, 2009
On August 21, 2009, Dr. Sterkel issued a proposed reprimand to Meredith

based on three charges: 1) disrespectful conduct in relation to the July 20 and July
31 incidents; 2) failure to follow policy and proper procedure in relation to the July
31 CT scanning and case editing of images; and 3) failure to carry out and willful
resistance to a proper order in relation to her failure to timely complete CT
reconstructions training.7
On September 15, 2009, Meredith received a reprimand on these charges.
5)

CT Room Confrontation – October 2, 2009
On October 2, 2009, Meredith was part of team performing CT scans. For

one of the scheduled scans, she relinquished her seat to another technologist
because she was not trained to perform the particular type of scan. She then left
the scanning room for a period of time. Upon her return, another scan was
scheduled for which she was not trained, so she asked for and was given CT

7

In a Statement dated July 9, 2009, Meredith and other technologists were informed that they
needed to complete post-processing for CT reconstructions training by August 10, 2009.
Meredith refused to sign the Statement. (Pltf’s Exh. 12; Deft’s Exh. R.)
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reconstructions to practice on. While she was working on reconstructions, she was
told to return and run the next scan because it was a type that she was trained to do.
When Meredith returned to the scanning room to perform the scan, the
seated technologist forcibly slid her chair over to Meredith – almost striking her –
and said that she, and not Meredith, would be running the scan. Meredith left the
room and reported the incident to Dr. Sterkel. Dr. Sterkel and Meredith reentered
the scanning room, after which Dr. Sterkel spoke to Meredith in a rude and
condescending manner. These condescending remarks were made to Meredith in
front of the other technologists and Martinez, who had also come into the room.
Surprised that Dr. Sterkel said nothing to the technologist who almost struck her
with her chair, Meredith stated that it appeared that black technologists were
subject to different rules than white technologists. Meredith then told Dr. Sterkel
that she did not feel well, upon which Dr. Sterkel told her to leave. Meredith went
to another room and began to write an incident report on the matter, but Dr. Sterkel
came in and continued to tell her to leave.
6)

Proposed Suspension – October 27, 2009
On October 27, 2009, Dr. Sterkel issued a proposed three-day suspension to

Meredith based on three charges: 1) endangering the safety of others on October 5,

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2009, through carelessness or negligence8; 2) creating a disruptive workplace, in
relation to the October 2 incident; and 3) creating a divisive and antagonistic work
atmosphere, in relation to the October 2 incident. Dr. Sterkel rescinded this
proposed suspension on January 12, 2010.
On January 14, 2010, Dr. Sterkel issued a proposed reprimand for the
conduct charged in the October 27 proposed suspension. Additional conduct from
October 5 was also charged, and specifically, that Meredith would not cooperate to
insure patient safety by verifying that the proper test was being performed on the
patient. Dr. Sterkel rescinded this proposed reprimand on February 2, 2010.
Prior to filing her EEO complaint, Meredith had never been reprimanded for
her performance at the VA. After February 2, 2010, Meredith has not been subject
to any reprimands or suspensions for her performance at the VA.
7)

Other Instances of Harassment/Hostile Work Environment
In addition to the above discrete instances of alleged discrimination and

harassment, Meredith contends that she was subjected to harassment in October
2008 when VA management sought input from fellow employees regarding her
membership on the VA’s Professional Standards Board.9 Some employees
indicated that they wished for her to be removed from the board. Meredith was not
8

During CT training on October 5, 2009, Meredith failed to give a ten-second notice to another
technologist to exit the room prior to scanning. The technologist had previously exited the room,
and Meredith was not aware that she had returned. (Deft’s Exh. A, Meredith depo. at p. 136.)
9
The board’s duties included reviewing applications and making recommendations with respect
to the promotion and boarding of technologists. (Deft’s Exh. A, Meredith depo. at p. 155.)
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removed at that time but was removed in October 2009 after receiving the
September 15 reprimand.
On September 9, 2009, Meredith questioned Sylvia Ivy, Dr. Sterkel’s
secretary, regarding missing paperwork that an ultrasound student was supposed to
have before testing. According to Meredith, Ivy did not want to be bothered, but
Meredith kept asking her about the paperwork. Ivy became angry and yelled at
Meredith and then went into her office and slammed the door. This occurred in a
hallway in front of patients and other employees.
Discussion
1.

Race Discrimination
A.

Failure to Train for Supervisory Position

Meredith claims that she was not considered for the position of acting
supervisor on account of her race and thus was denied the opportunity to train for a
permanent supervisor’s position, which resulted in lost opportunity for career
advancement and future salary increases.
A claim of unlawful race discrimination may be established through direct or
indirect evidence. Putman v. Unity Health Sys., 348 F.3d 732, 734 (8th Cir. 2003).
Because Meredith’s claim is not based on any direct evidence of discrimination, I
must apply the familiar burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Russell v. Men’s Wearhouse, Inc., 170 F.3d
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1156, 1157 (8th Cir. 1999) (per curiam). Therefore, in order to survive the VA’s
motion for summary judgment, Meredith must first establish a prima facie case of
discrimination. If she is able to do so, the VA may rebut the prima facie case by
articulating a nondiscriminatory reason for its action. Meredith must then show
that the VA’s proffered reason is merely pretext for discrimination. At all times,
Meredith bears the ultimate burden of proving that she was unlawfully
discriminated against. Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104, 1107-08
(8th Cir. 1998).
In the circumstances of this case, Meredith can establish a prima facie case
of race discrimination on this claim if she can show: 1) she is a member of a
protected class; 2) she was qualified; 3) she suffered an adverse employment
action; and 4) she can provide facts that give rise to an inference of unlawful
discrimination. Robinson v. American Red Cross, 753 F.3d 749, 754 (8th Cir.
2014). In its argument that Meredith cannot establish a prima facie case, the VA
argues only that Meredith did not suffer an adverse employment action given that
her responsibilities, salary, and benefits were not affected by her failure to be
appointed as acting supervisor. This argument misses the point. Meredith
contends that by being denied the opportunity to serve as acting supervisor, she
was denied training that would have eventually led to career advancement as a
permanent supervisor with accompanying increases in pay. Discriminatory failure
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to train that results in a loss of future career prospects is itself an adverse
employment action. Id. at 755. Because the VA provides no other basis upon
which to find that Meredith cannot make a prima facie case, I will assume without
deciding that she has done so.
The VA, however, has articulated a legitimate, nondiscriminatory reason for
its action, and Meredith has failed to show this reason to be pretext for
discrimination. Specifically, the undisputed evidence shows that the VA sought
out persons who worked full-time as CT technologists to fill the position of acting
supervisor. Testimony adduced at the EEOC hearing shows the imaging
department to have had problems in the CT area, which was why the sitting
supervisor was asked to step down. Because of these problems, the VA looked to
those who had extensive CT experience to take on some supervisory
responsibilities. While Meredith had some experience as a CT technologist, her
primary imaging modality was ultrasound. Extending job responsibilities to
employees more qualified to fill a specific need is a legitimate, nondiscriminatory
reason for the VA’s action here. Rose-Maston, 133 F.3d at 1110; cf. Torgerson,
643 F.3d at 1047 (complainants lacked in qualifications when compared to higher
ranking candidates).
Although Meredith does not quarrel with the VA’s position that Martinez
had more CT experience, she argues that the VA’s contention that it sought
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persons with this experience is pretext for discrimination. To support this
argument, Meredith claims that the VA offered the position to Randy Karfs, who is
white and an ultrasound technologist; and failed to offer it to James Love, who is
black and a CT technologist. Contrary to Meredith’s assertion, however, Karfs
testified at the EEOC hearing that he was not offered the position and indeed was
not qualified for the position given that he was an ultrasound technologist. To the
extent Meredith points to the testimony of Sam Briley, who testified that he
overheard Karfs being offered the position,10 Meredith cannot rely on hearsay
statements to defeat summary judgment. Tuttle v. Lorillard Tobacco Co., 377 F.3d
917, 923-24 (8th Cir. 2004). See also Crews v. Monarch Fire Prot. Dist., 771 F.3d
1085, 1092 (8th Cir. 2014) (“At summary judgment, the requisite ‘genuine dispute’
must appear in admissible evidence.”).11
With respect to James Love, Bob Adams testified at the EEOC hearing that
he talked to Love about taking the position but that Love was not interested in it.
Love himself testified that, while he could not recall whether or not he was offered
the position, he nevertheless was not interested. Meredith offers no evidence to
support her bare assertion that Love was not offered the position. Unsupported and
speculative allegations are insufficient to defeat summary judgment. See Moody v.
10

See Deft’s Exh. L, 1/18/2013 EEO trans., vol. II, at p. 253.
The VA challenges Meredith’s reliance on this inadmissible hearsay. (ECF #27 at p. 7.) See
Fed. R. Civ. P. 56(c)(2).
11

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St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (to withstand summary
judgment, plaintiff must substantiate allegations with sufficient probative evidence
that would permit a finding in his favor based on more than mere speculation,
conjecture, or fantasy); Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d
1025, 1028 (8th Cir. 2006) (speculation and conjecture are insufficient to defeat
summary judgment).
Accordingly, Meredith has failed to show that the VA’s legitimate,
nondiscriminatory reason in not offering her the acting supervisor position was
pretext for race discrimination. The VA is therefore entitled to summary judgment
on this claim.
B.

Other Discreet Instances

To the extent Meredith alleges that she was subjected to other discreet
instances of discrimination as set out above, the VA argues that Meredith cannot
make a prima facie case of discrimination in these instances given that she did not
suffer any adverse employment action. The VA’s argument is well taken.
“An adverse employment action is defined as a tangible change in working
conditions that produces a material employment disadvantage, including but not
limited to, termination, cuts in pay or benefits, and changes that affect an
employee's future career prospects, as well as circumstances amounting to a
constructive discharge.” Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728
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F.3d 800, 804 (8th Cir. 2013). Minor changes in working conditions with no
reduction in pay or benefits do not constitute adverse employment actions. Jones
v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002). Nor does disrespect by
supervisors and coworkers. Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969 (8th Cir.
1999). Here, the minor change in Meredith’s work location and tour of duty on
Thursdays and her verbal altercations with Martinez, the resident physician, and
her coworker produced no materially significant disadvantage to the terms of her
employment. Meredith did not experience any cut in pay or benefits, nor was
subjected to a change in job responsibilities. Nor were any future career prospects
or pay negatively affected by these instances. Accordingly, they do not rise to the
level of adverse employment actions. Jackman, 728 F.3d at 804.
Further, “[f]ormal criticisms or reprimands that are not accompanied by
additional disciplinary action such as a negative change in grade, salary or other
benefits, do not constitute adverse employment actions.” Donnelly v. St. John's
Mercy Med. Ctr., 635 F. Supp. 2d 970, 993 (E.D. Mo. 2009) (citing Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058 (8th Cir. 2007); Higgins v.
Gonzales, 481 F.3d 578, 587 (8th Cir. 2007)). Here, the proposed reprimands and
suspension, and indeed the formal reprimand issued in September 2009, did not
result in tangible changes in the terms or conditions of Meredith’s work.
Therefore, they do not constitute adverse employment actions for purposes of her
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claims of discrimination. See Elnashar, 484 F.3d at 1058 (“A reprimand is an
adverse employment action only when the employer uses it as a basis for changing
the terms or conditions of the employee's job for the worse.”).
Accordingly, because Meredith cannot establish a prima facie case of
discrimination on these claims of wrongful conduct, the VA is entitled to summary
judgment on the claims.
2.

Age Disccrimination
Meredith’s claims based on age discrimination fail for similar reasons.
A.

Failure to Train for Supervisory Position

The ADEA prohibits an employer from discriminating on the basis of age if
that person is over forty years old. 29 U.S.C. §§ 623(a), 631(a); Chambers v.
Metropolitan Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003). A claim of
unlawful age discrimination may be established through direct or indirect evidence.
Bearden v. International Paper Co., 529 F.3d 828, 830 (8th Cir. 2008). Meredith
does not proffer any direct evidence of adverse employment action taken on
account of her age. Accordingly, because any evidence of age discrimination
would be indirect, I must apply the McDonnell Douglas burden-shifting analysis.
See Riley v. Lance, Inc., 518 F.3d 996, 1000 (8th Cir. 2008).
To establish a prima facie case of age discrimination in this case, Meredith
must show that she: 1) was at least forty years old; 2) suffered an adverse
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employment action; 3) was meeting her employer's legitimate expectations at the
time of the adverse employment action; and 4) was passed over for someone
substantially younger. Gibson v. American Greetings Corp., 670 F.3d 844, 856
(8th Cir. 2012). Once Meredith establishes a prima facie case, the burden shifts to
the VA to provide a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the VA provides such a reason, the burden returns to
Meredith to prove the reason to be mere pretext for discrimination. Id.
“Furthermore, to succeed in proving age discrimination, a plaintiff must show, by a
preponderance of the evidence, that age was the ‘but-for’ cause of the challenged
adverse employment action.” Id. (internal quotation marks and citation omitted).
Again, assuming Meredith presented sufficient evidence to make out a prima
facie case of age discrimination, she has failed to present adequate proof to
overcome VA’s proffered legitimate, nondiscriminatory reason for its employment
action – offering the acting supervisor position to only full-time CT technologists
because of the problems in the CT department. “When an employer articulates a
nondiscriminatory reason for an [employment action,] the factual inquiry proceeds
to a new level of specificity.” Gibson, 670 F.3d at 856 (internal quotation marks
and citation omitted) (alteration in Gibson). “The showing of pretext necessary to
survive summary judgment requires more than merely discrediting an employer's
asserted reasoning for [an employment action]. A plaintiff must also demonstrate
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that the circumstances permit a reasonable inference of discriminatory animus.”
Id. (internal quotation marks and citation omitted) (alteration in Gibson).
Meredith generally claims that by being denied the opportunity to become
acting supervisor, she was denied the opportunity to train for the permanent
supervisor position – thereby limiting her chances for a promotion – while the
acting supervisor position was offered to a younger person with less seniority.
This general allegation, with nothing more, is not “sufficient, specific evidence of
disparate treatment to survive summary judgment.” Anderson v. Durham D & M,
L.L.C., 606 F.3d 513, 524 (8th Cir. 2010). See also Bearden, 529 F.3d at 832
(plaintiff’s asserted belief that she was replaced by younger employee was
insufficient to establish inference of age discrimination). This is especially true
here, where Meredith avers that other persons whom she believes were offered the
position – but declined – were likewise within the protected class, that is, they
were over forty years of age and not substantially younger than she. Cf. Haigh v.
Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011) (no evidence of discriminatory
attitude toward age when employer hired persons well above ADEA’s protected
age). It is unlikely that the VA would offer the position to an older employee and
then discriminate on the basis of age. “[S]uch evidence creates a presumption
against discrimination.” Id. at 470 (internal quotation marks and citation omitted).
Accordingly, Meredith has failed to show that the VA’s legitimate, non- 21 -

discriminatory reason in not offering her the acting supervisor position was pretext
for discrimination based on her age. The VA is therefore entitled to summary
judgment on this claim.
B.

Other Discreet Instances

The VA claims that, as with Meredith’s race discrimination claims, Meredith
cannot show that she suffered an adverse employment action with respect to the
other instances of alleged discrimination, and thus cannot establish a prima facie
case of age discrimination with respect to these claims.
An “adverse employment action” is defined the same under the ADEA as it
is under Title VII, that is, “a tangible change in working conditions that produces a
material employment disadvantage.” Thomas v. Corwin, 483 F.3d 516, 528 (8th
Cir. 2007) (internal quotation marks and citation omitted). As demonstrated
above, the actions of which Meredith complains did not result in any adverse
employment actions for purposes of her claims of discrimination. Accordingly, the
VA is entitled to summary judgment on these claims of age discrimination as well.
3.

Retaliation
Meredith claims that the negative conduct she experienced was in retaliation

for her engaging in protected activity, and specifically, for filing an EEO complaint
and pursuing a charge of discrimination against the VA in relation to the selection
of Martinez as acting supervisor. The VA argues that Meredith cannot establish a
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prima facie case of retaliation. For the following reasons, the VA’s argument is
well taken.
A claim of retaliation is properly analyzed under the McDonnell Douglas
framework. Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010).
Accordingly, Meredith has the initial burden of establishing a prima facie case of
retaliation. Id. To establish a prima facie case, Meredith must show: 1) that she
engaged in protected conduct; 2) that she suffered materially adverse employment
action, action that would deter a reasonable employee from making a charge of
discrimination; and 3) that the materially adverse action was causally linked to the
protected conduct. Id. at 1077-78; see also Weger v. City of Ladue, 500 F.3d 710,
726 (8th Cir. 2007) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006)). The VA contends that the conduct of which Meredith complains
here does not rise to a level to be considered materially adverse, nor can it be
shown to be causally linked to Meredith’s charge of discrimination.
For alleged retaliatory conduct to be “materially adverse,” Meredith must
show that the action would deter a reasonable employee from making or
supporting a charge of discrimination. White, 548 U.S. at 68; Fercello, 612 F.3d at
1077-78. Petty slights, minor annoyances, and simple lack of good manners,
which often take place at work and which all employees experience, will not create
this level of deterrence and thus do not constitute materially adverse actions.
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White, 548 U.S. at 68. Employees may have to withstand colleagues who do not
like them, are rude, and may be generally disagreeable people. “However, [a]
court's obligation is not to mandate that certain individuals work on their
interpersonal skills and cease engaging in inter-departmental personality conflicts.”
Somoza v. University of Denver, 513 F.3d 1206, 1218 (10th Cir. 2008) (cited
approvingly in Recio v. Creighton Univ., 521 F.3d 934, 941 (8th Cir. 2008)). “The
antiretaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.” White, 548 U.S. at 67. Without
evidence of harm, instances of unpleasant and disagreeable conduct cannot
constitute materially adverse action under White. Devin v. Schwan’s Home Serv.,
Inc., 491 F.3d 778, 786 (8th Cir. 2007), abrogated on other grounds by Torgerson,
643 F.3d 1031 (8th Cir. 2011).
Meredith has failed to demonstrate that any harm she experienced from the
incidents described above was so significant that a reasonable person would be
deterred from engaging in protected activity. See Devin, 491 F.3d at 786. Indeed,
the undisputed evidence shows the contrary. Despite the disagreeable conduct of
which Meredith complains, she nevertheless continued to pursue her claims of
alleged discrimination through final agency action, including appellate disposition.
She even amended her EEO complaint during the course of her pursuit and
obtained some favorable results, including rescission of both a proposed reprimand
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and proposed suspension. And she has experienced no disciplinary action since.
To the extent Meredith complains of conduct that occurred prior to her
initiating EEO contact in April 2009, this conduct cannot be considered causally
linked to Meredith’s protected activity. See Devin, 491 F.3d at 787; see also
Stewart v. Independent Sch. Dist. No. 196, 481 F.3d 1034, 1046 (8th Cir. 2007) (no
allegedly adverse actions that preceded complaint to the EEO could have been in
retaliation for the later-filed complaint).
Finally, Meredith’s claim of retaliation is weakened by her own admitted
antagonistic behavior related to the claimed unpleasant encounters, namely, her
continuing to question Martinez on July 20, 2009, after being told to stop; “getting
smart” with the resident physician on July 31, 2009, when asked to come in to
perform a CT scan; and continuing to question Ivy in front of patients and
employees on September 9, 2009, after Ivy made it apparent that she did not want
to be bothered. Cf. Fercello, 612 F.3d at 1081 (plaintiff’s argument that
unwelcome conduct was retaliatory in nature was “particularly weak” given
evidence that plaintiff herself had conflicts with coworkers and supervisors).
The undisputed evidence shows that the conduct of which Meredith
complains did not produce injury or harm so significant that it would deter a
reasonable employee from making or supporting a charge of discrimination.
Therefore, the complained-of conduct was not materially adverse, and Meredith
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has failed to establish a prima facie case of retaliation. The VA is therefore
entitled to summary judgment on Meredith’s claim of unlawful retaliation.

4.

Hostile Work Environment
Finally, Meredith claims that the VA’s discriminatory animus toward her

resulted in harassment and a hostile work environment.
To establish a claim of harassment or hostile work environment, Meredith
must show: 1) that she belongs to a protected group; 2) that she was subject to
unwelcome harassment; 3) a causal nexus exists between the harassment and her
protected group status; and 4) the harassment affected a term, condition, or
privilege of employment. Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 634
(8th Cir. 2016). The conduct must have been severe or pervasive enough to create
an objectively hostile or abusive work environment. Hesse v. Avis Rent A Car
Sys., Inc., 394 F.3d 624, 629 (8th Cir. 2005). “The critical issue is whether
members of [a protected group] are subjected to unfavorable employment
conditions to which members of the other [group] are not.” Id. at 630.
“Generalized harassment in the workplace is not illegal[.]” Id.; see also Breeding
v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158-59 (8th Cir. 1999), abrogated
on other grounds by Torgerson, 643 F.3d 1031 (8th Cir. 2011).
The VA argues that it is entitled to judgment as a matter of law on this claim
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given that Meredith cannot show that a term, condition, or privilege of her
employment was affected by the claimed instances of workplace harassment, or
that the harassment was causally linked to her protected status. This argument is
well taken.
Meredith cannot show that the alleged harassment was on account of her
age, race, or prior EEO conduct. Although she has identified “numerous incidents
of friction between [herself] and [her] coworkers,” her claim of hostile work
environment fails because she has provided no evidence that the workplace friction
was because of her protected status in any group. See Wallin v. Minnesota Dep’t of
Corr., 153 F.3d 681, 688 (8th Cir. 1998).
Nor has Meredith shown that the harassment affected a term, condition, or
privilege of her employment. In making this determination, I must consider the
totality of the circumstances, including the frequency and severity of the conduct,
whether it was physically threatening or humiliating, and whether it unreasonably
interfered with Meredith’s job performance. Sellers v. Deere & Co., 791 F.3d 938,
945 (8th Cir. 2015). In this case, Meredith has identified less than ten instances of
challenged conduct that occurred over the course of one year. Although the
majority of these instances occurred within a four-month period – from July to
October 2009 – the alleged conduct was not so severe that it unreasonably
interfered with Meredith’s job performance. While Meredith complains that some
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condescending remarks were humiliating because they were made in front of
patients and other employees, she has not shown them to be so extreme that they
altered her working conditions, or that they demonstrated anything more than mere
rudeness. See Blomker v. Jewell, 831 F.3d 1051, 1057 (8th Cir. 2016). See also
Devin, 491 F.3d at 788 (finding allegations “amount[ed] to a frustrating work
environment rather than an objectively hostile work environment.”); Breeding, 164
F.3d at 1159 (concluding that unfair criticism and being yelled at did not amount to
actionable harassment). To the extent Meredith’s coworker aggressively shoved
her chair toward Meredith in July 2009, this isolated physical incident was not so
extreme that it unreasonably interfered with Meredith’s work performance.
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). “’More than a few
isolated incidents are required,’ and the alleged harassment must be ‘so
intimidating, offensive, or hostile that it poisoned the work environment.’”
Blomker, 831 F.3d at 1057 (quoting Scusa, 181 F.3d at 967). There is no evidence
of such a poisoned work environment here.
There is no actionable claim for harassment or hostile work environment
where, as here, the evidence shows the complained-of conduct to be based on interdepartmental politics and personality conflicts rather than on discriminatory
animus. Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003).
While Meredith has shown why she perceived her work environment to be
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unpleasant on occasion, she has not shown that any instances of harassment were
related to her age, race, or prior EEO conduct. Nor has she shown that this
workplace conduct affected a term, condition, or privilege of her employment.
Accordingly, the VA is entitled to summary judgment on this claim.
Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that the motion for summary judgment filed
by defendant Department of Veterans Affairs [20] is GRANTED.
A separate Judgment is entered this date in accordance with this
Memorandum and Order.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 10th day of November, 2016.

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