Henderson v. Shulkin

Filing 24

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment (ECF No. 11 ) is GRANTED, and summary judgment is entered in favor of Defendant Robert L. Wilkie on Plaintiff Darryl Lee Henderson's Complaint. An appropriate Judgment is entered herewith. Signed by Magistrate Judge John M. Bodenhausen on 3/5/19. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRYL LEE HENDERSON,

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Plaintiff,
v.
ROBERT L. WILKIE,1 Secretary
Department of Veterans Affairs,
Defendant.

No. 4:17 CV 2555 JMB

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Robert L. Wilkie’s Motion to Dismiss or,
Alternatively, for Summary Judgment (ECF No. 14). Plaintiff Darryl Lee Henderson
(“Plaintiff”) filed opposition thereto and the issues are fully briefed. The parties consented to the
jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). For the reasons set forth below,
the Court grants Defendant’s Motion for Summary Judgment.
Plaintiff brings this action pro se, alleging that his employer, the Department of Veterans
Affairs (“VA”), unlawfully discriminated against him in his employment on account of his race,
color, gender, and disability. Plaintiff brings his claims pursuant to Title VII and the
Rehabilitation Act of 1973, alleging that the VA failed to promote him and to accommodate his
disability, retaliated against him for prior Equal Employment Opportunity (“EEO”) activity,
subjected him to a hostile work environment, and harassed him. Plaintiff uses the “Employment
Discrimination Complaint” form and lists the following as conduct complained of: failure to

1

Robert L. Wilkie was confirmed as Secretary of Veteran Affairs on July 23, 2018. Pursuant to
Fed. R. Civ. P. 25(d), Wilkie is automatically substituted for Dr. David J. Shulkin as the
defendant in all pending Veterans Affairs’ cases.
1

promote, failure to accommodate, retaliation, harassment, and other (“Bullying”). (ECF No. 1)
On the following page, Plaintiff checked race, color, gender, and disability as the reasons for the
discriminatory conduct. (Id.) Defendant moves for dismissal or, in the alternative, for summary
judgment on Plaintiff’s claims.
Although not entirely clear from his Complaint, it appears that Plaintiff alleges some of
the same adverse employment claims addressed in his EEO administrative case, as well as
additional claims. Plaintiff has organized his Complaint by describing the alleged discriminatory
conduct and, at the conclusion, listing the “Violations” (i.e. disability discrimination, harassment,
etc.). The following is a list of the alleged discriminatory conduct set forth in Plaintiff’s
Complaint supporting his adverse employment claims, with the “violations” listed in parenthesis.
1. Plaintiff argues that he was not properly represented during the EEO administrative
process. (ECF No. 41-1 at ¶ 1) (No “violations”)
2. Plaintiff alleges that he wrongfully received a “fully successful” rating on his 2011 and
2012 evaluation. (Id. at ¶ 2) (“Violations: Equal Pay/Compensation, Harassment,
Retaliation, Gender, Intimidation”)
3. Plaintiff contends that he was denied the proper documentation to dispute his 2011 and
2012 annual ratings. (Id. at ¶ 3) (“Violations: Equal Pay/Compensation, harassment,
retaliation, gender”)
4. Plaintiff alleges that he was not allowed to take breaks, including lunch, without first
informing three individuals; and even after discussing his need for breaks at regular
intervals; he still did not receive regular lunch breaks. (Id. at ¶ 4) (“Violations:
Disability, Harassment, Retaliation, gender”)

2

5. Plaintiff alleges that Brown harassed him during retraining by standing behind his chair
and leaning over him. Plaintiff also alleges that Brown harassed him when she
questioned him regarding certain documents and accused him of not completing his
work. (Id. at ¶ 5) (“Violations: Harassment, Retaliation, gender”)
6. Plaintiff alleges that his PIV badge could not be released because of criminal charges
from 2007. (Id. at ¶ 6) (“Violations: harassment, race/color, retaliation, gender”)
7. Plaintiff alleges that he was questioned as to his whereabouts after being instructed to
retrieve his PIV badge before reporting to work. (Id. at ¶ 7) (“Violations: harassment,
retaliation, gender”)
8. Plaintiff alleges that he was issued a letter of counseling for “not going through the chain
of command.” Plaintiff also alleges that he was wrongfully accused of sexual
harassment. (Id. at ¶ 8) (“Violations: harassment, race/color, retaliation, gender.”)2
(Id. at 6-14)
In support of his lawsuit, Plaintiff attached as an exhibit, the July 6, 2017, U.S. Equal
Employment Opportunity Commission’s (“EEOC”) Decision (ECF No. 1-1), affirming the
Administrative Judge’s (“AJ”) Findings of Fact and Conclusions of Law in the Discrimination
Complaint of Darryl Henderson and Robert McDonald, Secretary Department of Veterans
Affairs, dated December 23, 2015 (hereinafter “EEOC Opinion”).3 (ECF No. 14-1) In that case,
Plaintiff alleged hostile work environment claims based on disability and reprisal for prior EEO

2

The allegations regarding Plaintiff being marked tardy in January and February 2013, and
Plaintiff receiving no response for a requested copy of the investigative report, were investigated
and the subject of the underlying EEO administrative case but were not included in Plaintiff’s
Complaint.

3

The Court will take judicial notice of the EEOC administrative decision as it is a matter of
public record. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012).
3

activity based on ten alleged factual incidents occurring between November 8, 2012, and June
24, 2013. (Id. at 2-3)
I.

Background
Plaintiff is an African American male with diabetes, who worked for the Health

Administration Service at the St. Louis VA Medical Center as a Medical Support Assistant, GS5, starting in 2009. (ECF No. 14-1 at 5, EEOC Opinion) After reporting a hostile work
environment in May 2013, Plaintiff was reassigned to the John Cochran Division of the St. Louis
VAMC as Primary Care Support. In September 2013, Plaintiff started working as a Program
Support Assistant, GS-6, in Primary Care Service at John Cochran. After working in that
capacity for fourteen months, Plaintiff was assigned to the Jefferson Barracks Division and
worked in Building 53. (Id.)
Katonya Riddle (“Riddle”), Supervisor, Health Administration Services, GS-7, was his
first level supervisor in early 2012, and she reported to Kristina McManus (“McManus”),
Assistant Chief of the Health Administration Services. (Id. at 6) McManus reported to
Geraldine Smith (“Smith”), Chief of the Health Administration Service, and Smith retired in
April 2015. (Id. at 6)
II.

The Uncontroverted Facts Material to Motion
The following recitation of undisputed facts giving rise to Plaintiff’s claims is taken from

Defendant’s Statement of Uncontroverted Material Facts, the EEOC Opinion, and the
undersigned’s independent review of the record in the case. The Court largely adopts the
Statement of Undisputed Material Facts submitted by Defendant in support of his motion. This
statement of facts is supported by references to the Complaint and the EEOC Opinion. Plaintiff
has not disputed Defendant’s statements of the facts or the EEOC Opinion and offers only

4

speculation, personal opinion, and legal conclusions, which are insufficient to defeat the pending
motion. Although Plaintiff submitted a statement of uncontroverted material facts, Plaintiff failed
to respond to or controvert the facts submitted by Defendant numbered 1-52. As a result, for
purposes of this motion, Plaintiff is deemed to have admitted all of Defendant’s facts which were
not specifically converted. See Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) (If the
opposing party does not raise objections to a movant’s statement of facts as required by Local
Rule 4.01(E), “a district court will not abuse its discretion by admitting the movant’s facts.”);
Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir. 2005) (where plaintiff did not convert
defendant’s statement of material fact, it was deemed admitted under E.D. Mo. Local Rule
4.01(E)).
At all times relevant to this cause, Plaintiff was employed by the VA. Beginning in 2009,
Plaintiff worked at the St. Louis VA Medical Center. (ECF No. 14-1 at 5) After reporting a
hostile work environment to management, Plaintiff was reassigned to the John Cochran Division
VA Medical Center in May 2013.
On January 17, 2013,4 Plaintiff sought EEO counseling but when that matter was not
resolved, Plaintiff filed a formal EEO complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that he was subjected to a harassment/hostile work environment
based on his disability (diabetes) and that he suffered reprisal for EEO activity as evidenced by
incidents beginning on November 8, 2012, and ending on June 24, 2013. (Id. at 2-3) On March
13, 2013, after the EEOC partially accepted the complaint for investigation and dismissed his
claim regarding his November 2012 rating of record as a discrete act which was untimely filed.
Plaintiff filed another amendment on April 10, 2013 and then a third amendment on July 9, 2013.
4

The record shows no prior EEO activity before Plaintiff initiated contact with the EEO office
on January 17, 2013. (Id. at 5)
5

In his EEO Complaint, Plaintiff again alleged that he was subjected to discrimination in the form
of hostile work environment based on disability and reprisal for prior EEO activity on incidents
occurring between November 8, 2012, and June 24, 2013. (Id. at 4) Plaintiff presented no
evidence or testimony during the EEO’s investigation of the complaint. (Id. at 31)
On December 11, 2013, Plaintiff timely filed a request for a hearing before an EEOC
Administrative Judge (“AJ”). At the hearing, Plaintiff confirmed that his reprisal claim is based
on the instant EEO complaint, but he provided no other evidence of any earlier EEO activity.
(Id. at 5) Plaintiff testified that in July 2012, he advised Riddle that he had diabetes and that he
provided her a doctor’s note. (Id. at 6) Riddle testified that she does not recall Plaintiff telling
her that he had diabetes, requiring the need for more frequent and/or consistent breaks, but she
received a doctor’s letter regarding his breaks with no notation indicating his disability.5 (Id. at
12) In that letter, Plaintiff’s doctor stated that Plaintiff “is under my care for his health problems
and he will benefit from getting his breaks at regular intervals so that he can use this time for
brief walks to improve his health to prevent complications.” (Id. at 9-10) In response to
Riddle’s January 29, 2013, email providing him reasonable accommodation paperwork and
copied to McManus and Smith, Plaintiff stated that “I am requesting that my breaks and lunch be
consistent because I am a diabetic.” (Id. at 28)
“When asked about the 2012 performance rating, Riddle stated that [Plaintiff] had a
number of scheduling errors and in customer service he did not get along with his peers,
Supervisor Riddle, and sometimes was not ‘friendly’ to his patients.” (Id. at 7) Riddle further
5

In an email to Riddle dated January 22, 2013, Plaintiff stated: “This is beginning to get real
troublesome to me, I have to wait for someone to relieve me or I have to call and find person #,
person #, person #, person # before I can leave. This is something I have never heard of and if it
is in the employee manual I want a copy. Yes I am waiting for my relief to go on break, shortage
of staff is not my problem.” (Id. at 11)
6

testified that she was unaware of his EEO activity on January 8 or February 28, 2013, when she
marked Plaintiff tardy6 but she was aware of his EEO activity when she questioned Plaintiff
about his extended absence from his work station on February 14, 2013. (Id. at 2, 30) On
February 14, 2103, after Plaintiff picked up his renewed PIV badge, Riddle testified that she
questioned Plaintiff about where he had been all morning. (Id. at 18) Riddle testified that no
disciplinary action resulted from Plaintiff’s absence. (Id.) Riddle testified that she reports
tardiness with every employee she supervises when an employee is one to seven minutes late.
(Id. at 14) Riddle further testified that she became aware of Plaintiff’s EEO complaint when the
EEO office contacted her during its investigation. (Id. at 20)
Andrea Hoopes (“Hoopes”), a supervisory human resources specialist, testified that on
February 6, 2013, she told Plaintiff that his PIV badge could not be renewed because of
unresolved criminal charges and met with Plaintiff in a common area with other people for safety
reasons. (Id. at 17) Hoopes testified that Plaintiff was very accusatory about what was being
done. Hoopes testified that a mistake had been made and apologized for the mistake. (Id.)
Hoopes testified that she was unaware of Plaintiff’s EEO activity on February 6, 2013 when he
discussed issues with his PIV badge with her, and she was not aware of his disability. (Id. at 7,
28)
Smith testified that on April 8, 2013, she issued a letter of counseling to Plaintiff for
going outside the chain of command with inappropriate emails and comments therein. (Id. at 18)
The AJ found that Plaintiff “has failed to show that his counseling was issued because of his
disability and EEO activity, and not because he continuously copied inappropriate individual on
emails after repeatedly being instructed not to. [Plaintiff] also failed to show that any other
6

Plaintiff testified that he was tardy about one minute on January 18, 2013 and about three
minutes on February 28, 2013. (Id. at 13)
7

employees behaved in a similar manner and were not also disciplined.” (Id. at 36-37) The letter
indicated “that it is the procedure … that staff follow their internal chain of command and are
courteous and respectful to their managers” and in closing “if [Plaintiff] did not show significant
improvement in his behavior she may recommend further disciplinary actions up to and
including removal from Federal Service.” (Id.) Plaintiff acknowledged that other individuals
have been disciplined for going outside of the chain of command. (Id. at 20) Smith testified via
affidavit that she became aware of Plaintiff’s complaint when notified on October 21, 2013, and
his diabetes from Plaintiff’s email regarding his time away from his desk. (Id. at 2, 6, 29)
McManus testified that she became aware of Plaintiff’s EEO complaint when notified by
the EEO Office on January 24, 2013, and she learned of Plaintiff’s disability from his January
29, 2013, email requesting his breaks and lunches be scheduled at consistent times to
accommodate his diabetes. (Id. at 3, 20-21, 30, 35) Brown testified that she was not aware of
Plaintiff’s EEO Complaint until notified of the investigation in October 2103, and she was not
aware of Plaintiff’s disability. (Id.) Keith Repko, the Associate Medical Center Director,
testified via affidavit that he became aware of Plaintiff’s EEO Complaint in April 2013 but he
was not aware of Plaintiff’s disability. (Id. at 7, 14) After reviewing Plaintiff’s attendance
record, Repko found that every time Plaintiff had been charged as tardy, Plaintiff had been over
the threshold of what the agency considers tardy. (Id.)
On March 17, 2014, the AJ issued an Order summarizing the Initial Conference, stating
that there was no discovery in this matter as none had been requested, and affirming the
dismissal of Plaintiff’s performance rating claim for untimely counselor contact but the AJ ruled
the issue could be addressed as background to Plaintiff’s harassment claim. The AJ denied the
agency’s motion for summary judgment finding material facts in dispute.

8

On December 23, 2015, the AJ issued the EEOC Opinion, including Findings of Fact and
Conclusions of Law, on Plaintiff’s discrimination complaint, finding Plaintiff failed to establish
discrimination based on disability or retaliation. (ECF No. 14-1 at 1, 37) The AJ’s EEOC
Opinion addressed Plaintiff’s allegations that he was discriminated against based on his
disability, failed to receive an accommodation, and retaliated against for prior EEO activity when
the following events occurred:
1. On November 8, 2012, Riddle issued Plaintiff a rating of fully successful on his annual
rating of record;
2. On December 10, 2012, Plaintiff was denied documentation through which he would have
disputed his fully successful performance rating;
3. On January 9, 2013, Plaintiff was allegedly told that he was not allowed to take breaks
unless he first informed three other individuals;
4. On January 18 and February 28, 2013, Riddle marked Plaintiff as tardy/late in the
electronic pay system;
5. On January 25, 2013, no action was taken by Smith when Theresa Brown (“Brown”), a
coworker, allegedly acted in an insulting, disrespectful and intimidating manner toward
Plaintiff;
6. On January 31, 2013, Brown was once again rude to Plaintiff and accused him of not
doing his work and questioned him about some missing documents;
7. Because of old false criminal charges in 2007, on February 6, 2013, Plaintiff’s PIV badge
could not be released, and he had to clear the issue with the FBI before he could obtain his
badge;

9

8. On February 14, 2013, after instructing Plaintiff to retrieve his PIV badge from another
campus before reporting to work, Riddle questioned Plaintiff regarding his whereabouts that
morning;
9.

On April 8, 2013, Smith issued Plaintiff a letter of counseling; and

10. On June 7 and 24, 2013, management did not provide Plaintiff a copy of the
investigative report concerning an alleged privacy violation as requested.
(Id. at 6-21)
The AJ found that Plaintiff presented no evidence of any connection between his alleged
protected status and the conduct he alleged to be discriminatory harassment and no evidence of
any connection between his EEO activity and the conduct he alleged to be retaliation. (Id. at 2223, 29-37) The AJ also found that
Supervisor Riddle testified that [Plaintiff] did not talk to her about his diabetes.
Even when he gave her the doctor’s note about his breaks, he did not state that he
had diabetes. Similarly, Hoopes, Brown, and Repko all testified not know about
[Plaintiff’s] diabetes. McManus, Smith, and Riddle became aware about
[Plaintiff’s] diabetes after [Plaintiff] response to the January 29, 2013 email.
Moreover, a review of the doctor’s statement dated January 3, 2103 does not refer
to diabetes.
(Id. at 28)
On January 5, 2016, the VA, Office of Employment Discrimination Complaint
Adjudication, sent the Final Order to Plaintiff, including a statement explaining his right of
appeal and his right to file a civil action. (ECF No. 21-1)
On July 6, 2017, the EEOC entered its Decision, affirming the AJ’s December 23, 2015
EEOC Opinion, finding that substantial evidence supports the AJ’s determination that Plaintiff
had not proven discrimination by the VA. (ECF No. 1-1) In that Decision, a provision explained

10

Plaintiff’s right to file a civil lawsuit within ninety calendar days from receipt of the final EEOC
decision. (Id.)
III.

Standards of Review
As a threshold matter, pro se pleadings are to be liberally construed and are held to less

stringent standards that those drafted by an attorney. Smith v. St. Bernards Reg’l Med. Ctr., 19
F.3d 1254, 1255 (8th Cir. 1994). This means “that if the essence of an allegation is discernible
… then the district court should construe the complaint in a way that permits the layperson’s
claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777,
787 (8th Cir. 2015) (quoted case omitted).
The Court must determine whether to address Defendant’s motion as a motion to dismiss
filed pursuant to Federal Rule of Civil Procedure 12(b)(6) or a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56. “If matters outside the pleadings ‘are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017) (quoting
Fed.R.Civ.P. 12(d)). In support of his motion, Defendant provides the Court with an exhibit, the
United States Equal Employment Opportunity Commission’s December 23, 2015, Findings of
Fact and Conclusions of Law (ECF No. 14-1, Exh. A) Although this document is embraced by
the pleadings, in an abundance of caution, the Court will treat Defendant’s motion as a motion
for summary judgment filed pursuant to Rule 56.7
The standards applicable to summary judgment motions are well settled. Pursuant to
Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment if all
7

It has been established, however, that public records can be considered without such a
conversion becoming necessary. Administrative records have consistently been deemed public
records and have been considered on motions to dismiss. See, e.g., Faibisch v. Univ. of
Minnesota, 304 F.3d 797, 802-03 (8th Cir. 2002).
11

of the information before the court shows “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op, Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden
of clearly establishing the non-existence of any genuine issue of fact that is material to a
judgment in its favor). Once this burden is discharged, if the record shows that no genuine
dispute exists, the burden then shifts to the non-moving party who must set forth affirmative
evidence and specific facts showing there is a genuine dispute on a material factual issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations, but by
affidavit and other evidence must set forth specific facts showing that a genuine issue of material
facts exists. Fed.R.Civ.P. 56(c). The non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. V.
Zenith Radio Corp. 475 U.S. 574, 586 (1986). A dispute about a material fact is genuine only “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). A party resisting
summary judgment has the burden to designate the specific facts that create a triable question of
fact, see Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004), and “must
substantiate allegations with sufficient probative evidence that would permit a finding in the
plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
If the nonmoving party fails to properly address an assertion of fact made by the movant,
the Federal Rules of Civil Procedure permit the court to consider the fact undisputed.

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Fed.R.Civ.P. 56(e)(2). The Local Rules of this Court, however, require it. Under Local Rule
4.01(E), moving parties must include a statement of uncontroverted material facts with their
memorandum, with citations to the record if the fact(s) are established by the record.
Every memorandum in opposition shall include a statement of material facts as to
which the party contends a genuine issue exists. Those matters in dispute shall be
set forth with specific references to portions of the record, where available, upon
which the opposing party relies. The opposing party also shall note for all
disputed facts the paragraph number from movant’s listing of facts. All matters
set forth in the statement of the movant shall be deemed admitted for purposes of
summary judgment unless specifically controverted by the opposing party.
E.D.Mo.L.R. 4.01(E).

Accordingly, any admitted statement of fact that Plaintiff did not

specifically convert in response to Defendant’s motion will be deemed admitted.
Defendant has, in accordance with the Court’s Local Rule, submitted a Statement of
Uncontroverted Material Facts, which is supported by references to the record.

Although

Plaintiff filed a response to Defendant’s Statement, he does not contravene any facts and fails to
support his denials with any specific references to admissible evidence in the record. Instead,
Plaintiff recites the allegations in his Complaint and fails to offer any evidence in support of his
discrimination claims. Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 74.01 of this Court’s Local Rules, Defendant’s facts are therefore deemed admitted.

Also,

Plaintiff does not cite to any record evidence to support his assertions in his Statement of
Uncontroverted Material Facts (ECF No. 23). These bare assertions are insufficient to establish
a genuine dispute of fact. “To establish a genuine factual issue, a party ‘may not merely point to
unsupported self-serving allegations.’ Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th
Cir. 2008) (internal quotation and citation omitted). ‘Instead, the [party] must substantiate [its]
allegations with sufficient probative evidence that would permit a finding in [its] favor.’ Id.
(internal quotation and citation omitted).” Residential Funding Co., LLC v. Terrace Mortgage

13

Co., 725 F.3d 910, 915 (8th Cir. 2013). None of Plaintiff’s statements are sworn. Banks v.
Deere, 829 F.3d 661, 667-68 (8th Cir. 2016). Because Plaintiff has failed to offer any evidence
in support of his position and he has failed to contravene Defendant’s material facts, the facts are
considered undisputed. See Odom v. Tripp, 575 F. Supp. 1491, 1493 (E.D. Mo. 1983).
IV.

Discussion
As an initial matter, although Plaintiff listed “failure to promote” as part of the nature of

the instant case and race, color, and gender as a basis of discrimination in his form Complaint
filed in this action (ECF No. 1 at 4-5), he failed to exhaust his administrative remedies. A
review of the underlying administrative record shows only allegations of a hostile work
environment based on disability, failure to accommodate, and reprisal for prior EEO activity,
occurring between November 8, 2012, and June 24, 2013. (ECF No. 14-1 at 2-3)
“Allegations outside the scope of the EEOC charge . . . circumscribe the EEOC’s
investigatory and conciliatory role, and for that reason are not allowed.” Boyd v. BJC Health
Sys., 2018 WL 620484, at *3 (E.D. Mo. Jan. 29, 2018). Thus, Plaintiff failed to exhaust his
administrative remedies as to his failure to promote claim because he only complained of
disability discrimination, failure to accommodate,8 and retaliation in his EEO Complaint and
during the EEO administrative process. “While a subsequent federal lawsuit need not mirror the
administrative charges, the sweep of any subsequent judicial complaint may be [only] as broad
as the scope of the EEOC investigation which could reasonably be expected to grow out of the
charges of discrimination. Allegations outside the scope of the EEOC charge circumscribe the

8

The AJ found in the EEOC Opinion that “[a]lthough [Plaintiff] did not state that he was
alleging a failure to accommodate, he has alleged that management prevented him from taking
breaks according to his doctor’s instructions due to his disability which constitutes a claim of a
failure to accommodate” and addressed this claim on the merits. (ECF No. 14-1 at 23-24 and 2829)
14

agency’s investigatory and conciliatory role, and further fail to provide the agency notice of the
charge.” Harris v. Potter, 2007 WL 892429, at *4 (E.D. Mo. Mar. 22, 2007) (internal quotation
omitted).
There is nothing in the administrative case to put Defendant on notice that Plaintiff was
also alleging race, color, and gender as a basis for discrimination. “Administrative remedies
must be exhausted before a federal employee may bring an employment discrimination claim
against a federal employer.” McAlister v. Sec’y of Dept. of Health and Human Servs., 900 F.2d
157, 158 (8th Cir. 1990). Failure to exhaust such remedies is fatal to claims of federal
employment discrimination. Id. It thus appears that Plaintiff failed to exhaust these claims. See
Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994) (the scope of a civil suit may be
as broad as the scope of the administrative investigation which could reasonably be expected to
grow out of the charge of discrimination but it cannot be broader). Defendant is therefore
entitled to summary judgment to the extent Plaintiff contends he was subjected to race, color,
and gender discrimination and discriminated against by Defendant’s failure to promote.
Likewise, Plaintiff’s allegations concerning the processing and litigating of the
administrative complaint (ECF No. 1 at ¶ 1) and a 2016 incident while Brown retrained him (Id.
at ¶ 5) were also not raised in the administrative proceeding initiated by Plaintiff. Plaintiff has
failed to present to Defendant these other claims of discrimination raised in his Complaint, so
Plaintiff has failed to establish a genuine issue of material fact as to those claims. Accordingly,
the Court will grant summary judgment as to these claims because Plaintiff failed to exhaust
these claims by presenting them for administrative review.

15

Regarding Plaintiff’s properly exhausted claims, absent direct evidence of discrimination,
the Court must apply the familiar McDonnell Douglas9 burden-shifting analysis when analyzing
Plaintiff’s claims of employment discrimination. Grant v. City of Blytheville, Ark., 841 F.3d
767, 773 (8th Cir. 2016). Under this framework, Plaintiff must first establish a prima facie case
of discrimination. If Plaintiff meets this burden, the burden shifts to Defendant to articulate a
legitimate, non-discriminatory reason for the adverse employment action. If Defendant meets
this burden of production, Plaintiff must then prove by a preponderance of the evidence that the
legitimate reasons offered by Defendant are not its true reasons, but are pretext for
discrimination. Id. at 773. At all times, Plaintiff bears the ultimate burden of proving that he
was unlawfully discriminated against. Rose-Maston v. NME Hosp., 133 F.3d 1104, 1107-08
(8th Cir. 1998).
A. Disability Discrimination
Plaintiff, a federal employee, alleges disability discrimination. The Rehabilitation Act is
the exclusive remedy for a federal employee alleging disability-based discrimination. Ellis v.
Donahoe, 2014 WL 7335161, at *1 n.2 (E.D. Mo. Dec. 19, 2014). “The Rehabilitation Act
provides, ‘No otherwise qualified individual with a disability … shall, solely by reason of her or
his disability, … be subjected to discrimination … under any program or activity conducted by
… the [VA].’” Peeples v. Potter, 354 F.3d 761, 765 (8th Cir. 2004) (quoting 29 U.S.C. § 794(a))
(all but last alterations in original). “Discrimination under … the Rehabilitation Act
encompasses both disparate treatment because of a disability and failure to provide reasonable
accommodations to a qualified individual’s known disability.” Withers v. Johnson, 763 F.3d
998, 1003 (8th Cir. 2014). “The former requires proof of discriminatory intent, while the latter

9

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
16

does not.” Id. An adverse employment action under the Rehabilitation Act is a “tangible change
in working conditions that produces a material employment disadvantage.” Dick v. Dickinson
State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016). These include such actions as “termination,
cuts in pay or benefits, and changes that affect an employee’s future career prospects.” Id.
Conversely, job reassignment without a pay or benefit reduction is insufficient to constitute an
adverse employment action. Id.
1. Disparate Treatment
In this case, Plaintiff’s disability discrimination claims can only survive summary
judgment if there is a genuine issue of material fact as to whether Plaintiff’s disability was a
contributing factor involving the instances cited by Plaintiff as evidence of discrimination. None
of the incidents cited by Plaintiff as evidence of discrimination rises to an adverse employment
action. Likewise, Plaintiff has failed to allege a causal connection that he was discriminated
against solely because of his diabetes. Indeed, the record shows that neither Brown nor Hoopes
was aware of Plaintiff’s diabetes and that McManus, Riddle, and Smith only became aware of
Plaintiff’s diabetes as of January 29, 2013, from his email.
As to his “fully successful” rating on his 2011 and 2012 evaluation, Riddle was not aware
of his diabetes until after completing Plaintiff’s performance appraisal. Plaintiff received the
same performance rating given by a previous supervisor but when making his 2012 appraisal,
Riddle was aware of Plaintiff making a number of scheduling errors, not getting along with his
peers, sometimes not being friendly to his patients, and instances of tardiness. (ECF No. 14-1 at
2, 7, 8-9, 31) This fully successful appraisal predated anyone knowing about Plaintiff’s
disability. Further, a poor performance rating does not constitute an adverse employment action
provided it has no tangible effect upon the recipient’s employment. Goodrich v. Mo. Dep't of

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Soc. Servs., Family Support Div., 2014 WL 793772, at *5 (E.D. Mo. Feb. 27, 2014).
Significantly, Plaintiff has not alleged that the “fully successful” rating resulted in an adverse
employment action.
As to the alleged denial of certain documents which allegedly dispute his “fully
successful” rating, this incident predated anyone knowing about Plaintiff’s disability and would
not constitute an adverse employment action. (Id. at 2, 8-9, 31)
As to the alleged requirement to notify three other employees before taking breaks,
Plaintiff stated in an email that shortage of staff is not his problem, and on the instant record,
Defendant has provided evidence in the form of Riddle’s affidavit that Plaintiff did not have to
inform three people before taking a break, but Plaintiff had to find someone to cover his desk and
answer phone calls. In an email, Riddle explained to Plaintiff his break times and advised
Plaintiff “that if no one is at his desk at those appointed times he is to pick up the telephone and
call me …, Theresa Brown …, or Shantella … or pager…. This will allow one of us to find
clinic coverage for his breaks.” (Id. at 10) The undisputed record shows that as soon as
management became aware of his diabetes, the issues with Plaintiff’s breaks did not reoccur.
(Id. at 2, 10-13, 32) This incident predated anyone knowing about Plaintiff’s diabetes, and
Riddle testified that Plaintiff was never required to call three people before taking a break, he
had to wait to be covered by another employee for coverage. Further, this action, if true, does
not amount to an adverse employment action. “A mere inconvenience without any decrease in
title, salary, or benefits’ or that results in minor changes in working conditions does not meet this
standard” of an adverse employment action. Williams v. True Mfg., 2015 WL 4546618, at *3
(E.D. Mo. July 28, 2015).
As to Plaintiff being marked tardy on two occasions, the record shows Plaintiff was in

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fact tardy and admitted to being so. Further, Riddle testified that she reports tardiness with every
employee she supervises when an employee is one to seven minutes late.
As to no disciplinary action being taken against Brown for allegedly insulting and
intimidating Plaintiff and then being rude to Plaintiff and accusing him of not doing his work,
these incidents pre-date her knowledge of Plaintiff’s diabetes.
As to the incident involving Plaintiff’s PIV badge renewal, Hoopes in her affidavit
averred that she was unaware of Plaintiff’s disability on February 6, 2013, when he discussed
issues with his PIV badge with her. Hoopes testified that a mistake had been made and
apologized for the mistake.
As to Riddle questioning Plaintiff about his extended absence from his work station on
February 14, 2013, Riddle did not discipline Plaintiff.
As to Smith issuing a letter of counseling for going outside the chain of command with
inappropriate emails and comments therein, Plaintiff testified that other individuals had been
disciplined for going outside of the chain of command. This was not an adverse action.
As to the management’s alleged failure to respond to Plaintiff’s request for investigative
report related to a data breach, many employees personal information was also compromised.
In his Motion for Rebuttal to Statement of Uncontroverted Material Facts (ECF No. 23),
Plaintiff disputes the actions of Defendant’s management without any evidence that the actions
are related to his disability. Plaintiff does not cite to any record evidence to support his
assertions or substantiate his allegations with sufficient probative evidence. These bare
assertions are insufficient to establish a genuine issue of fact. Anda, 517 F.3d at 531. The Court
also notes that Plaintiff’s Statement of Material Facts is not supported by any citation to record
evidence. On this record, the Court cannot find that Plaintiff has established a prima facie case.

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“[A] plaintiff may not merely point to unsupported self-serving allegations, but must substantiate
his allegations with sufficient probative evidence that would permit a finding in his favor without
resort to speculation, conjecture or fantasy.” Reed v. City of St. Charles, Mo., 561 F.3d 788,
791-92 (8th Cir. 2009) (citation and quotation marks omitted). Plaintiff offers only speculation
that Defendant’s actions were on account of his disability. As discussed above, Plaintiff has not
proven any adverse employment action needed to maintain this claim-- he has not shown that he
suffered a material change in employment status.
Plaintiff offers only speculation that Defendant staff’s actions were on account of his
disability. To survive a motion for summary judgment, however, Plaintiff must substantiate his
allegations with sufficient probative evidence that would support a finding in his favor “based on
more than mere speculation, conjecture, or fantasy.” Clay v. Credit Bureau Enters., Inc. 754
F.3d 535, 539 (8th Cir. 2014) (internal quotation marks and citations omitted). Because Plaintiff
does not support his allegations with any probative evidence and relies only on speculation to
show that the alleged discriminatory conduce was based on his disability, he has failed to
establish a prima facie case of hostile work environment. Defendant is therefore entitled to
summary judgment on this claim. Id. at 541.
2) Failure to Accommodate
Plaintiff also makes a failure to accommodate claim. Under the Americans with
Disabilities Act, to state a claim for failure to accommodate, the plaintiff must allege that “1) the
employer knew about the employee’s disability; 2) the employee requested accommodations or
assistance for his or her disability; 3) the employer did not make a good faith effort to assist the
employee in seeking accommodation; and 4) the employee could have been reasonably

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accommodated bur for the employer’s lack of good faith.” E.E.O.C. v. Prod Fabricators, Inc.,
763 F.3d 963, 971 (8th Cir. 2014).
The undisputed record shows that before January 25, 2013, Defendant’s management was
unaware of Plaintiff’s diabetes because Plaintiff never shared his diabetes’ diagnosis and he
failed to seek accommodations for his diabetes until that time. Riddle testified that she did not
recall Plaintiff telling her he had diabetes necessitating more frequent and/or consistent breaks
but she received a doctor’s letter regarding his breaks with no notation indicating his disability.
(ECF No. 14-1 at 12) In that letter, Plaintiff’s doctor stated that Plaintiff “is under my care for
his health problems and he will benefit from getting his breaks at regular intervals so that he can
use this time for brief walks to improve his health to prevent complications.” (Id. at 9-10) In
response to Riddle’s January 29, 2013, email providing him reasonable accommodation
paperwork and copied to McManus and Smith, Plaintiff stated that “I am requesting that my
breaks and lunch be consistent because I am a diabetic.” (Id. at 28) Similarly, McManus and
Smith became aware of Plaintiff’s diabetes after the January 29, 2013, email, and Hoopes,
Brown, and Repko all testified that they did not know about Plaintiff’s diabetes.
Defendant has shown there are no genuine issues of material fact in dispute, and has
established as a matter of law that Plaintiff fails to show a failure to accommodate on the part of
Defendant.
B. Retaliation
Plaintiff next alleges that Defendant unlawfully discriminated against him in his
employment in retaliation for his EEO activity. Plaintiff’s seeking EEO counseling
constituted protected activity for the purposes of his retaliation claim. The undisputed
evidence before the Court shows Plaintiff first engaged in a protected activity by seeking

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counseling on January 17, 2013. At the hearing, Plaintiff confirmed that his reprisal
claim is based on the instant EEO complaint and provided no other evidence of any prior
EEO activity. (ECF No. 14-1 at 5) To the extent Plaintiff claims that he was denied
advancement in retaliation for engaging in protected conduct, the undisputed evidence
shows that Plaintiff never sought or applied for any promotion or advancement during the
relevant time period. Nor has Plaintiff identified any advancement or opportunities
allegedly denied him. Plaintiff therefore has failed to establish a prima facie case that he
was denied advancement in retaliation for engaging in protected conduct. See Shannon
v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996).
Title VII prohibits employers, including the federal government, from retaliating against
employees for engaging in activity that is protected under Title VII. 42 U.S.C. §§ 2000e-3(a)
and 2000e-16(a). A claim of retaliation pursuant to Title VII is not based upon discrimination,
but instead upon “an employer’s action to punish an employee who makes a claim of
discrimination.” Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1037 (8th Cir. 2005). Plaintiff “first
must demonstrate a prima facie case of retaliation to survive summary judgment.” See Jackson
v. UPS, Inc., 643 F.3d 1081, 1088 (8th Cir. 2011). To meet this burden, Plaintiff must show that
1) he engaged in a protected activity; 2) Defendant subsequently took an “adverse employment
action” against him; and 3) there was a causal connection between the protected activity and the
adverse employment action. Id. The anti-retaliation provision “protects an individual not from
all retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 67 (2006).
The Eighth Circuit has held that to be materially adverse, retaliation cannot be trivial; it
must produce some ‘injury of harm” and found that commencing performance evaluations, or

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sending a critical letter that threatened “appropriate disciplinary action,” or falsely reporting poor
performance, or “lack of mentoring and supervision” were actions that did not establish a prima
facie case of retaliation, absent showings of materially adverse consequences to the employee.
Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 644 (8th Cir. 2009).
If Plaintiff cannot show a causal link between his protected conduct and the
adverse employment action, summary judgment is proper. Erenberg v. Methodist Hosp.,
357 F.3d 787, 793 (8th Cir. 2004). Here, Defendant argues, and the undisputed evidence
shows, that there was no adverse employment action and no causal connection exists
between the filing and pendency of Plaintiff’s EEO Complaint, and the alleged adverse
employment action. “An adverse employment action is defined as tangible changes in
working conditions that produce 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 F.3d 800, 804 (8th Cir. 2013).
“However, minor changes in duties or working conditions, even unpalatable or
unwelcome ones, which cause no materially significant disadvantage, do not rise to the
level of an adverse employment action.” Id.; see also Wedow v. City of Kansas City,
Mo., 442 F.3d 661, 671 (8th Cir. 2006) (“Mere inconvenience without any decrease in
title, salary, or benefits” or “that results only in minor working conditions does not meet
this standard.”).
The November 8, 2012, rating of fully successful on Plaintiff’s annual rating
record occurred before Plaintiff sought EEO counseling so he had not engaged in any
protected activity at that time. Moreover, “[a] poor performance rating does not in itself

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constitute an adverse employment action because it has not tangible effect upon the
recipient’s employment.” Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850,
854 (8th Cir. 2000). “An unfavorable evaluation is actionable only where the employer
subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions
of the recipient’s employment.” Id. Plaintiff has failed to present any evidence “tending
to show the evaluation was relied upon to effect any material change in the terms or
conditions of his employment.” Hughes v. Stottlemyre, 454 F.3d 791, 796-97 (8th Cir.
2006). Indeed, Plaintiff has not even alleged that the “fully successful” rating resulted in
an adverse employment action.
Next, the fact that Plaintiff could not take breaks without informing three other
persons does not amount to a materially adverse employment action as it did not result in
a change in his employment status. “A mere inconvenience without any decrease in title,
salary, or benefits or that results in minor changes in working conditions does not meet
this standard.” Williams v. True Mfg., 2015 WL 4546618, at *3 (E.D. Mo. July 28,
2015).
Likewise, Plaintiff cannot establish that he suffered an adverse employment
action arising from the other challenged conduct – being marked tardy, not taking action
against Brown, being accused of not doing his work, his PIV badge not being released,
being questioned about his location, receiving a letter of counseling, and not receiving a
copy of the investigative report – because these incidents did not result in a material
change in the terms or conditions of his employment. Plaintiff has not produced any
evidence to indicate Defendant’s employment actions were retaliatory in nature. “A
party’s unsupported self-serving allegation that her employer’s decision was based on

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retaliation does not establish a genuine issue of material fact.” Jackson, 643 F.3d at
1088.
Plaintiff offers only speculation that the Defendant’s actions were in retaliation
for his EEO activity. Plaintiff has failed to present any evidence showing that he suffered
an adverse employment action and therefore, Defendant is entitled to summary judgment
on his retaliation claim.
C. Hostile Work Environment
Plaintiff claims that he was subjected to a hostile work environment based on disability
and/or in retaliation of his EEO activity. “Hostile work environment occurs ‘[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Jackman, 728 F.3d at 805 (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). To prevail on his claim of hostile work environment based on his disability
or retaliation for his EEO activity, Plaintiff must show that: 1) he is a member of a class
protected by the statute; 2) he was subject to unwelcome disability or retaliation for his EEO
activity-based harassment; 3) the hostile work environment occurred because of his membership
in the protected class; and 4) the hostile work environment affected a term, condition, or
privilege of employment. See Banks, 829 F.3d at 667. If any essential element of this prima
facie case is not supported by specific facts sufficient to raise a genuine issue for trial, the Court
must grant summary judgment to Defendant. Grant, 841 F.3d at 773.
“The standards for a hostile environment are demanding, and conduct must be extreme
and not merely rude or unpleasant to affect the terms and conditions of employment.” Blomker
v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016). When evaluating a hostile environment, the

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court should look at the totality of the circumstances, “whether such conduct was physically
threatening or humiliating as opposed to a mere offensive utterance, and whether the conduct
unreasonably interfered with the employee’s work performance.” Id. at 1057. “A plaintiff must
establish that discriminatory intimidation, ridicule, and insult permeated the workplace.” Wilkie
v. Dep’t of Health & Human Servs., 638 F.3d 944, 953 (8th Cir. 2011). “Title VII does not,
however, create a cause of action for all unpleasant or abusive behavior in the workplace.”
Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997).
In sum, the other challenged conduct includes Plaintiff receiving a rating of fully
successful, Plaintiff being marked tardy, Defendant not taking action against Brown, Plaintiff
being accused of not doing his work, his PIV badge not being released, Plaintiff being
questioned about his location, Plaintiff receiving a letter of counseling, and Plaintiff not
receiving a copy of the investigative report. “‘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, 8 31 F.3d at 1057 (quoting Scusa v. Nestle U.S.A. Co., 181 F.3d
958, 967 (8th Cir. 1999)). “[M]erely rude or unpleasant” conduct [is] insufficient “to affect the
terms and conditions of employment.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410,
420 (8th Cir. 2010)
The Eighth Circuit has required much more severe and pervasive conduct that that
alleged in this case. Ottman v. City of Independence, 341 F.3d 751, 760 (8th Cir. 2003)
(reversing the denial of a summary judgment and “conclud[ing] the district court erred in finding
a triable issue for the jury” where a coworker made sexist and belittling comments to, about, and
around plaintiff “on a weekly, of not daily, basis.”). There is no evidence that any disabilitybased or retaliatory harassment rose to such level that it poisoned the work environment.

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The Court will assume, without deciding, that Plaintiff has established the first two
prongs of this claim. Nonetheless, Plaintiff has not advanced any facts from which the Court can
find a basis to establish the third prong—that the harassment resulted from his membership in a
protected class. To determine whether the harassment affected a term, condition, or privilege of
a plaintiff’s employment, the court must consider the totality of the circumstances, including the
severity of the conduct, whether it is physically threatening or humiliating, and whether it
unreasonably interferes with the plaintiff’s job performance. Sellers v. Deere & Co., 791 F.3d
938, 945 (8th Cir. 2015). Nor has Plaintiff proven that the harassment was severe enough to
affect the terms, conditions, and privileges of his employment. “The Supreme Court has
cautioned courts to be alert for workplace behavior that does not rise to the level of actionable
harassment.” Moses v. Dassault Falcon Jet-Wilmington Corp, 894 F.3d 911, 922 (8th Cir.
2018). Here, the complained-of conduct, while inappropriate and sometimes embarrassing for
Plaintiff, cannot be said to have affected a term, condition, or privilege of employment.
Here, Plaintiff offers no evidence to substantiate a claim of hostile work environment.
Plaintiff offers only speculation that Defendant’s failure to act was on account of his disability
and/or in retaliation of his EEO activity. To survive a motion for summary judgment, however,
Plaintiff must substantiate his allegations with sufficient probative evidence that would support a
finding in his favor “based on more than mere speculation, conjecture, or fantasy.” Clay v.
Credit Bureau Enters., Inc., 754 F.3d 535, 539 (8th Cir. 2014) (internal quotation marks and
citations omitted). Because Plaintiff does not support his allegations with any probative
evidence and relies only on speculation to show that the alleged harassment was based on his
disability and/or in retaliation of his EEO activity, he has failed to establish a prima facie case of

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hostile work environment. Accordingly, Defendant is entitled to summary judgment on
Plaintiff’s claims of hostile work environment. Id. at 541.
D. Conclusion
Based on the foregoing analysis, the record clearly establishes that there are no genuine
disputes as to any material facts.
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss or, Alternatively, for
Summary Judgment (ECF No. 11) is GRANTED, and summary judgment is entered in favor of
Defendant Robert L. Wilkie on Plaintiff’ Darryl Lee Henderson’s Complaint.
An appropriate Judgment is entered herewith.
Dated this 5th day of March, 2019.
/s/John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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