Wilson v. Shulkin et al

Filing 53

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendant Robert Wilkie, Secretary for the Department of Veterans Affairs, motion for summary judgment 36 is DENIED without prejudice. IT IS FURTHER ORDERED that Defendant shall take Plaintiffs dep osition no later than September 20, 2019. IT IS FURTHER ORDERED that a status conference will be held in this matter on September 25, 2019 at 11:00 a.m. in Courtroom 16 South. ( Status Conference set for 9/25/2019 11:00 AM in Courtroom 16S before District Judge Rodney W. Sippel.). Signed by District Judge Rodney W. Sippel on 8/16/2019. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LYNETTE WILSON,
Plaintiff,
v.
ROBERT WILKE,1 Secretary,
Department of Veterans Affairs,
Defendant.

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Case No. 4:17 CV 2626 RWS

MEMORANDUM AND ORDER
Plaintiff Lynette Wilson is a former employee of the Department of Veterans
Affairs. Wilson alleges in her complaint that she was subjected to race, age, and
disability discrimination; retaliation; and a hostile work environment. Defendant
Robert Wilkie, Secretary for the Department of Veterans Affairs (the “VA”) has
moved for summary judgment. Because of the unique posture of this matter, I will
deny the motion for summary judgment without prejudice and allow the parties to
engage in some limited discovery.2
Wilson filed her complaint pro se. I appointed Wilson limited scope counsel
solely for the purpose of assisting her in the mediation of her lawsuit. The parties

1

Robert Wilkie became the Secretary of the United States Department of Veterans Affairs on July 30, 3018 and
should be substituted for previously-named defendant Peter O’Rourke.
2
It appears from the briefing of the summary judgment motion in this matter, and from Wilson’s opposition brief in
particular, that Wilson is abandoning her claims for race, age, and disability discrimination and is proceeding solely
on her retaliation and hostile work environment claims based on her EEO activity. If that is the case, Wilson should
plainly state her position so the VA and I will understand the scope of her ongoing claims.

were not able to settle the case. Wilson’s limited appointed counsel’ duties
concluded at the close of mediation.
Subsequently, the VA filed a motion for summary judgment. In response,
new counsel entered the case for Wilson and filed an opposition brief on her
behalf. Wilson attached an affidavit to her opposition brief which included
additional information which had not been previously disclose or subject to the
VA’s ability to test it.
In its reply brief the VA argued that Wilson’s affidavit should be excluded
from the record as a sanction for Wilson’s failure to appear at her deposition and to
the extent that it included information she had not raised at her EEO hearing. A
review of the record indicates that Wilson, proceeding pro se, did not appear at her
deposition. However, the VA indicated in an email to Wilson’s limited scope
counsel that Wilson’s deposition may be reattempted if the mediation did not
resolve the case. But Wilson’s limited scope counsel did not have any authority to
speak on Wilson’s behalf regarding the deposition. It is unclear from the record
whether Wilson was under the misconception that her limited scope counsel would
represent her at a deposition. As a result, the case is at a point where Wilson’s
deposition was never taken and the parties are disputing what weight to give
Wilson’s affidavit.
In addition, the parties rely heavily on the transcript of Wilson’s EEO
hearing as evidentiary support for their positions. While the sworn testimony in an

EEO proceeding may be used for impeachment purposes, neither of the parties in
this matter has cited case law that allows testimony at an EEO hearing to be used
as evidentiary support for its case in chief. Moreover, Wilson asserts in her first
EEO complaint, dated June 4, 2013, at issue in this case that she was subjected to
retaliation for her EEO activity. But the record is unclear what EEO activity
Wilson alleges she engaged in that is the subject of that EEO complaint. In sum,
the record in this case as it stands does not present a clear picture of Wilson’s
claims or of the VA’s grounds for summary judgment.
There is a strong judicial preference that cases should be adjudicated on the
merits. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998).
Wilson is now represented by counsel. In order to prevent prejudice to Wilson or
the VA I find that additional limited discovery needs to be conducted in this
matter. I will allow the VA to depose Wilson and if Wilson fails to appear at the
deposition she will be subject to sanctions. I emphasize that any additional
discovery will be limited in order to reach a final disposition of the case whether
through motion practice or a trial.
Accordingly,
IT IS HEREBY ORDERED that Defendant Robert Wilkie, Secretary for
the Department of Veterans Affairs, motion for summary judgment [36] is
DENIED without prejudice.
IT IS FURTHER ORDERED that Defendant shall take Plaintiff’s

deposition no later than September 20, 2019.
IT IS FURTHER ORDERED that a status conference will be held in this
matter on September 25, 2019 at 11:00 a.m. in Courtroom 16 South.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 16th day of August, 2019.