Byer v. Shulkin

Filing 41

MEMORANDUM AND ORDER that Defendant's motion for summary judgment (Filing 33) is granted, and Plaintiff's action is dismissed with prejudice. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER C. BYER,
Plaintiff,
v.
ROBERT L. WILKIE, Secretary of the
United States Department of Veterans
Affairs,
Defendant.

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4:17CV3160
MEMORANDUM
AND ORDER

I. INTRODUCTION
Plaintiff, Roger Byer (“Byer”), an employee of the United States Department of
Veterans Affairs (“VA”), claims he was discriminated against on the basis of his age, sex,
and disability, and further claims the VA retaliated against him after he filed a complaint of
discrimination. Defendant, Robert L. Wilkie, in his official capacity as VA Secretary,1 has
filed a motion for summary judgment with respect to all claims (Filing 33).
A. Claim I (Age Discrimination)
As alleged in Byer’s amended complaint, the age discrimination claim is brought
under the Age Discrimination in Employment Act (“ADEA”). (Filing 8, pp. 1, 9-10)
Although both parties refer the court to 29 U.S.C. § 623(a)(1), which declares that “[i]t shall
be unlawful for an employer ... to ... discriminate against any individual with respect to his

1

See 42 U.S.C. § 2000e-16(c) (providing that proper defendant in Title VII action
brought by federal employee is “the head of the department, agency, or unit”); 29 U.S.C. §
794a(a)(1) (Rehabilitation Act provision incorporating § 2000e-16 by reference); Ellis v. U.S.
Postal Serv., 784 F.2d 835, 838 (7th Cir. 1986) (applying § 2000e-16(c) to ADEA action).
See also Hamilton v. Nicholson, No. 8:03CV443, 2007 WL 1290132, at *3 (D. Neb. Mar.
12, 2007) (only proper defendant in action brought by VA employee under Title VII,
Rehabilitation Act, and ADEA was VA Secretary).

compensation, terms, conditions, or privileges of employment, because of such individual’s
age,” the United States is not an “employer” as defined by the Act. See 29 U.S.C. § 630(b)
(stating that the term “does not include the United States”). The applicable ADEA provision
is this case, rather, is 29 U.S.C. § 633a(a),2 which provides that “[a]ll personnel actions
affecting employees ... who are at least 40 years of age ... in [federal] executive agencies ...
shall be made free from any discrimination based on age.”
As set forth in the parties’ Rule 26(f) planning conference report, Byer bases his age
discrimination claim on the following factual allegations:
Mr. Byer is over 62 years of age. For years, he performed at or above a
satisfactory level. He was hyper-monitored by his supervisor, issued a “cease
and desist letter” concerning his contact with co-employees, criticized for his
“perfectionist” attitude, and targeted by his supervisor for menial, nonsubstantive administrative issues. In addition, Mr. Byer’s supervisor instigated
a conflict between Mr. Byer and Rebecca Luther, which the individuals were
able to resolve by bypassing their supervisor and speaking to one another
without supervisory input. Mr. Byer suffered on the job stress, pressure, and
anxiety to such a degree that he required medical attention and was ordered to
take leave from his job on repeated, extended occasions.
(Filing 13, pp. 2-3)
B. Claim II (Sex Discrimination)
As alleged in Byer’s amended complaint, the sex discrimination claim is brought
under Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment
Opportunity Act of 1972). (Filing 8, pp. 1, 11-12) Although both parties refer the court to
42 U.S.C. § 2000e-2(a), which declares that “[i]t shall be unlawful for an employer ... to ...
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s ... sex,” the United States is not an

2

As originally enacted in 1967, the ADEA covered only private-sector employees.
P.L. 90-202, § 11(b), 81 Stat. 602. In passing the Fair Labor Standards Amendments of 1974,
P.L. 93-259, § 28(b)(2), 88 Stat. 74, Congress extended the Act’s protection to federal
employees. Section 663a is patterned directly after Title VII’s federal-sector provision. See
Lehman v. Nakshian, 453 U.S. 156, 163 (1981).
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“employer” as defined by the Act. See 42 U.S.C. § 2000e(b) (stating that the term “does not
include ... the United States”). Instead, the applicable statute is 42 U.S.C. § 2000e-16(a),
which provides that “[a]ll personnel actions affecting employees ... in [federal] executive
agencies ... shall be made free from any discrimination based on ... sex ....”
Byer’s amended complaint also includes a request for an award of damages under
Neb. Rev. Stat. § 48-1119(4) for the alleged sex discrimination. (Filing 8, p. 12, ¶ 50) This
provision of the Nebraska Fair Employment Practice Act (“NFEPA”) has no application in
this case. See Neb. Rev. Stat. § 48-1102 (stating that the term “employer” shall not include
the United States).
As set forth in the parties’ Rule 26(f) planning conference report, Byer bases his sex
discrimination claim on the following factual allegations:
Mr. Byer is male and was supervised by females. Despite exemplary
performance for several years, his new female supervisor evaluated his
performance far below his standard level. For years, he performed at or above
a satisfactory level. Other female co-workers were not subjected to the same
hyper-monitoring and surveillance, were not disciplined for talking to other
co-workers, were not required to travel as frequently as Mr. Byer. Mr. Byer
suffered on the job stress, pressure, and anxiety to such a degree that he
required medical attention and was ordered to take leave from his job on
repeated, extended occasions.
(Filing 13, p. 2)
C. Claim III (Disability Discrimination)
As alleged in Byer’s amended complaint, the disability discrimination claim is brought
under the Rehabilitation Act of 1973. (Filing 8, pp. 1, 12-13) The Act provides that “[n]o
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
any Executive agency [of the United States].” 29 U.S.C. § 794(a). The Rehabilitation Act
incorporates the standards of the Americans with Disabilities Act of 1990 (“ADA”) to
determine whether a violation has occurred. See 29 U.S.C. § 794(d).

-3-

Byer’s amended complaint also includes a request for an award of damages under
Neb. Rev. Stat. § 48-1119(4) for the alleged disability discrimination. (Filing 8, p. 13, ¶ 55)
Again, however, the NFEPA does not apply to Byer’s federal employment discrimination
claims.
As set forth in the parties’ Rule 26(f) planning conference report, Byer bases his
disability discrimination claim on the following factual allegations:
Mr. Byer has 100% service rated disability, which includes a ventral hernia,
PTSD, severe anxiety disorder, and traumatic brain injury. Ms. Byer disclosed
and discussed his disabilities with his supervisor. Despite this knowledge, she
required Mr. Byer to participate in a meeting that he advised her was the type
of confrontation that triggered his PTSD. He had no prior warning of the
confrontational nature of the meeting and his supervisor failed to control the
attacks on Mr. Byer despite her knowledge of his disability. He followed his
supervisor’s directions that same day when asked to deliver files to his coworkers after work, despite being informed the co-workers were “out to get
him.” Mr. Byer was physically and emotionally broken by the time the day
was over. He broke down into tears and had to seek medical help the following
morning. Mr. Byer’s medical provider ordered Mr. Byer not to work under the
conditions at the VA for six-months but Mr. Byer was only able to secure six
weeks leave. His leave was misclassified but his supervisor deemed that fact
insignificant. He was assigned additional travel on his return, and he also had
work to complete that accrued during his absence. He requested an option of
telecommuting and his supervisor flatly rejected the idea stating it would
“never happen.”
Also, on his return, Mr. Byer learned his supervisor failed to investigate the
conflicts he experienced with co-worker Rebecca Luther. Although his
supervisor found these conflicts sufficient to put in place a “cease and desist”
order, she informed Mr. Byer she did not have sufficient information to
investigate. His supervisor regularly held meetings with Mr. Byer in which she
repeatedly informed him that no one wanted to work with him, associate with
him, or even talk to him. Again, he required medical attention and was ordered
to take leave from his job on repeated, extended occasions.
(Filing 13, pp. 3-4)

-4-

D. Claim IV (Retaliation)
A federal employee who is a victim of retaliation due to the filing of a complaint of
age discrimination may assert a claim under the federal-sector provision of the ADEA.
Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008).
In 1972, Congress extended the protections of Title VII to employees of the federal
government and specified that “[t]he provisions of section 2000e-5(f) through (k) of [Title
VII], as applicable, shall govern civil actions brought hereunder” by federal employees. 42
U.S.C. § 2000e-16(d). This federal-sector provision does not expressly incorporate Title
VII’s anti-relation provision, 42 U.S.C. § 2000e-3(a), but “does incorporate a remedial
provision, § 2000e-5(g)(2)(A), which authorizes relief for a violation of § 2000-3(a).”
Gomez-Perez, 553 U.S. at 487-8 & n. 4 (acknowledging, without deciding, question of
“whether Title VII bans retaliation in federal employment”).
Under Eighth Circuit precedent, retaliation claims under the Rehabilitation Act and
the ADA are treated interchangeably. Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013)
(but noting that “the textual basis for the claim is not well explained in our cases”) The ADA
provides that “[n]o person shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
Byer’s amended complaint also cites the NFEPA as authority for a retaliation claim
(Filing 8, pp. 13, 15), but, as already discussed, that state law does not apply here.
As set forth in the parties’ Rule 26(f) planning conference report, Byer bases his
retaliation claim on the following factual allegations:
Mr. Byer informed VA management he wanted to (and then did) file a
discrimination and/or harassment charge against his co-worker, Luther. He was
subjected to repeated and ongoing counseling sessions, given a performance
improvement plan for the first time in his career, and issued a cease and desist
order. No other employee at the VA was treated in this manner: being targeted
by management for confronting management on the charged issues, and then
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filing a charge against the VA for its continual and ongoing discrimination and
harassment. In fact, both the union president and Steele-Lufcy encouraged Mr.
Byer to file an EEOC charge. When Mr. Byer filed an EEOC charge against
Luther, the VA retaliated. His supervisor at the VA gave him a written warning
on July 26, followed by a cease and desist order on July 29. 2016. No other
employee has been issued a cease and desist order. The cease and desist order
was in immediate response by Steele-Lufcy as soon as Mr. Byer questioned
her about the identical comments she made to both Luther and Mr. Byer about
their presence in the workplace.
(Filing 13, p. 4)
E. Defendant’s Position
Defendant contends “Byer cannot establish a prima facie case of either discrimination
or retaliation because he cannot establish that he suffered an adverse action” and, moreover,
“[e]ven if Byer could meet his burden, Defendant had legitimate, nondiscriminatory business
reasons for all actions it took regarding Byer and Byer cannot establish pretext.” (Filing 35,
pp. 1-2)
F. The Court’s Determination
After careful consideration of the parties’ pleadings (Filings 8, 11), briefs (Filings 35,
38, 40), and evidentiary materials (Filings 34, 37), the court finds there is no genuine issue
of material fact, and concludes Defendant’s motion for summary judgment should be granted
in its entirety. The court therefore will dismiss Plaintiff’s action with prejudice and enter final
judgment.
II. STATEMENT OF FACTS
Under the court’s local rules, “[t]he moving party must include in the brief in support
of the summary judgment motion a separate statement of material facts about which the
moving party contends there is no genuine issue to be tried and that entitles the moving party
to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement of facts should consist
of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings,
discovery responses, deposition testimony (by page and line), or other materials that support
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the material facts.” NECivR 56.1(a)(2) (underling in original); see Fed. R. Civ. P. 56(c)(1)
(“A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by ... citing to particular parts of materials in the record, ....”).
“The party opposing a summary judgment motion must include in its brief a concise
response to the moving party’s statement of material facts. Each material fact in the response
... must include pinpoint references to [evidentiary materials] upon which the opposing party
relies, and, if applicable, must state the number of the paragraph in the movant’s statement
of material facts that is disputed.” NECivR 56.1(b)(1); see Fed. R. Civ. P. 56(c)(1). “Properly
referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1) (underlining in original);
see Fed. R. Civ. P. 56(e)(2) (“If a party ... fails to properly address another party’s assertion
of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes
of the motion ....”).
In this case, Defendant’s brief includes a 94-paragraph statement of material facts
(hereinafter designated by paragraph number as “SMF #”). (Filing 35, pp. 2-22) Byer has
responded to each numbered paragraph. (Filing 38, pp. 1-36)
Pursuant to Federal Rule of Civil Procedure 56, the court finds that the following
material facts are supported by the record and are not genuinely in dispute:
A. Background/Chain of Command
1. At all relevant times, Byer was an Employment Coordinator (GS-12) with the
Department of Veterans Affairs Regional Office (“VA”), Veterans Benefits Administration,
Vocational Rehabilitation and Employment (“VR&E”) Division located in Lincoln,
Nebraska. (Filing 8, p. 2, ¶ 7; Filing 34-1, Steele-Lufcy Decl. ¶¶ 3, 14).
2. Byer was born in 1955. (Filing 8, p. 1, ¶ 2).
3. Byer is a veteran and alleges he has a 100% service-connected disability. He further
claims that he suffers from Post-Traumatic Stress Disorder (“PTSD”), depression, and
anxiety and has been diagnosed with ventral hernia, as well as back, knee and shoulder
-7-

disabilities. He states that he is able to perform his job with minimal accommodations. (Filing
8, p. 2, ¶ 8).
4. The Vocational Rehabilitation and Employment (“VR&E”) Division assists Service
members and Veterans with service-connected disabilities to prepare for, obtain, and
maintain suitable employment; start their own business; or receive independent-living
services. VR&E assists with job training, employment accommodations, resume
development, and job seeking skills. Additionally, VR&E provides services to assist
Veterans and Service members in starting their own businesses or independent living services
for those who are severely disabled and unable to work in traditional employment. (Filing
34-1, Steele-Lufcy Decl. ¶ 9).
5. During the relevant timeframe, the VR&E Division in Lincoln consisted of a
Vocational Rehabilitation Employment Officer (GS-13), a Program Analyst (GS-12), six
Vocational Rehabilitation Counselors (GS-12) (“Counselors”), an Employment Coordinator
(GS-12), and a Program Support Assistant (GS-6). (Filing 34-1, Steele-Lufcy Decl. ¶ 10).3
6. Melissa Steele-Lufcy was the Vocational Rehabilitation Employment Officer and
Byer’s immediate supervisor during the relevant timeframe. Supervisor Steele-Lufcy oversaw
the Employment Coordinator and the Counselors. Supervisor Steele-Lufcy is a female. She
was born in 1968, and she is disabled. (Filing 34-1, Steele-Lufcy Decl. ¶¶ 3, 6, 8).4
7. Jason Rogers was the Assistant Director of the Lincoln Regional Office. He was
Ms. Steele-Lufcy’s direct supervisor and he had oversight over the VR&E Division. (Filing
34-1, Steele-Lufcy Decl. ¶ 7).

3

Byer “does not dispute these statistics,” but states they are “irrelevant to his claims
based on disability, sex, age, and retaliation.” (Filing 38, p. 2) To the extent this statement
is intended as a relevancy objection, it is overruled.
4

In response, Byer states that Steele-Lufcy is 13 years younger than Byer. (Filing 38,
p. 3) Defendant does not dispute this fact. (Filing 40, p. 3) The remainder of Byer’s response
is argumentative, and not facts that are supported as required by NECivR 56.1(b)(1).
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8. The six Counselors were all females and younger than Byer. In 2016, four of the
Counselors were over forty years of age. Three of these Counselors were born in 1956 or
1958. (Filing 34-1, Steele-Lufcy Decl ¶ 11).
9. The VR&E employees worked out of offices in Lincoln, Omaha, Bellevue and
Sidney, Nebraska. (Filing 34-1, Steele-Lufcy Decl. ¶ 12). During the relevant timeframe,
Byer worked in the Omaha office on Monday, Wednesday, and Friday and in the Lincoln
Office on Tuesday and Thursday. This rotation allowed Byer to meet with the Counselors,
to conduct orientation sessions for Veterans, and to meet with Veterans and employers in
both locations. (Filing 34-1, Steele-Lufcy Decl. ¶ 16).
10. As the Employment Coordinator, Byer’s responsibilities included collaborating
with Counselors to determine job readiness of Veterans, providing employment case
management services to job-ready Veterans, calculating and processing employment
adjustment allowance (EAA) payments for eligible Veterans, conducting preliminary on-site
visits and analysis of employers’ work environments, working with potential employers to
establish workforce strategies that include career-suitable employment of Veterans, and
conducting labor market research. Byer identified and partnered with potential employers
within Nebraska to train and hire Veterans. He participated in job fairs to promote the hiring
of Veterans. Byer was also responsible for assisting employers with implementing reasonable
accommodations and establishing employment policies for veterans with serious employment
handicaps. (Filing 34-1, Steele-Lufcy Decl. ¶ 15 & Attch A).5
11. The Counselors provided a wide range of rehabilitation and personal adjustment
counseling and case management services, including coordination of rehabilitation, training,
and employment services to disabled Veterans. Counselors assessed data from medical,
psychological, and vocational evaluations and developed individualized rehabilitation and
employment plans to assist Veterans to prepare for and obtain suitable employment
commensurate with their interests, aptitudes, and abilities. Once the Counselors developed

5

Byer disputes SMF 10, stating “he testified in his deposition that he had not seen the
position description and was not familiar with its contents.” (Filing 38, p. 4). Defendant has
properly authenticated the position description through the declaration of Steele-Lufcy.
Byer’s deposition testimony does not create a genuine issue of material fact.
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a plan of services and the basic rehabilitation and training services with the Veteran were
completed, the Veteran progressed from training status and moved on to Job Ready Status.
(Filing 34-1, Steele-Lufcy Decl. ¶ 20).6
6

Byer does not specifically dispute SMF 11, which is deemed admitted. Byer’s
response reads as follows:
Mr. Byer summarized the vocational counselor responsibilities based on his
experience with counselors, stating they work with
the veterans after the orientation is conducted, to review their
career scope assessments, their rehabilitation needs, inventory,
to get a full snapshot of where the veteran is and to try to
develop a plan for a successful outcome. They should not be
allowing a veteran to go in a direction that has a potential to
exasperate their service-connected disability. And so once they
get them in a plan of services, then they work with the veteran
to the duration of what their plan is to get them to where they
come to where they’re job ready, and then at that point, that’s
where I start working with them all together to go through for a
successful outcome. That’s kind of a shortened version of it.
(Byer Dep. 41:1-116.) Further, as to “job ready” status, employment
Counselors alone do not make the decision as to whether a veteran is “job
ready.” (Byer Dep. 54:13-55:11.) The Counselors in 2016 presented files to
Mr. Byer to review for job readiness and he would address any questions or
concerns at that point. If the file was missing documentation, plans were
outdated, or Mr. Byer spotted other issues, the file was sent back to or
remained with the Counselor.
The determination of “job ready” status in 2016 was a subject of controversy.
Mr. Byer demanded Counselors present him with veterans and files that
satisfied administrative rules and regulations. (Byer Dep. 55:15-58:9.) Mr.
Byer would not accept cases from the Counselors if the files did not comply
with regulations; Counselors pushed back.
Q
And the counselors felt that they had completed
the case files, but you didn’t think so?
A
Well, they weren’t completed. There was no
thinking. It was pretty clear that they were not within standard.
-10-

12. Once a Veteran was determined to have reached Job Ready Status, Byer took over
the Veteran’s file from the Counselor with the case transferred both physically and
electronically to Byer’s caseload. Byer then provided employment services and assisted the
Veteran in either finding a job or maintaining the job he/she had obtained. Byer also
authorized monthly Employment Adjustment Allowance payments (EAA payments) to the
Veteran to provide some financial assistance during the transition from training services to
job search services. The calculation and scheduling of the EAA payments was a significant
portion of Byer’s daily job duties. (Filing 34-1, Steele-Lufcy Decl. ¶ 21).7

(Byer Dep. 58:4-9.) A check list was developed, with significant input by Mr.
Byer, to guide the Counselors in satisfying the requirements for “job ready”
status. The checklist was implemented as policy and adopted as a standard
operating policy for the Lincoln Service Center. Byer Dep. 63:3-65:10.)
(Filing 38, pp. 5-6)
7

Byer disputes SMF 12 by stating that his “job duties included EAA payments but
that was not a significant portion of his duties.” (Filing 38, p. 6 (emphasis in original)) By
way of further response, Byer states “[h]e was responsible for counseling and scheduling,
reviewing, and preparing the veterans for appointments,” and references s portion of his
deposition testimony (Byer Dep. 35:3-24):
On Fridays and Mondays, I will call the veterans and remind them of
their appointments. I also e-mail them reminding them of their appointments.
I do both. When I’m following up with the veterans for employment adjusted
allowance payments, I call them and I talk to them. I sometimes go out and I
meet them. I have met them on Offutt Air Force Base to get paperwork and
things from them, and then Tuesdays I do orientations In Lincoln. So I always
meet the veterans there and give them an overview of veterans – what the
Veterans Affairs is, and what the voc. rehab program is. They watch an
18-minute video, and then I do a PowerPoint that covers the video, and then
they go with their counselor. On Wednesdays I do the same down at the
Zorinsky Federal Building.
And Thursday I go down to Lincoln to cover – Actually, I transport
goods from Zorinsky down and I talk to veterans there, and then I get my stuff
prepared for Friday and Monday.
(Filing 38, pp. 6-7) This testimony does not directly contradict Steele-Lufcy’s statement that
EAA payments were “a significant portion of Byer’s daily job duties.”
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13. From at least June 2013, the Counselors and Byer frequently disagreed on whether
a Veteran had reached Job Ready Status. Byer frequently told Supervisor Steele-Lufcy that
several of the Counselors had not completed all the paperwork or case management steps
necessary for job readiness declaration and case transfer. The Counselors told Supervisor
Steele-Lufcy that Byer only accepted cases to Job Ready Status where the Veteran had
already secured employment and he would not accept any cases that required him to assist
the Veteran with job search activities. According to the Counselors, Byer blocked them from
declaring the Veteran job ready and transferring a case to Byer. This disagreement directly
affected performance measures for the Counselors. (Filing 34-1, Steele-Lufcy Decl. ¶ 22).8
14. During the relevant timeframe, VR&E had a Standard Operating Procedure (SOP)
for processing cases for job readiness assessment and employment services. The SOP
provided instruction and procedure for reviewing cases for Job Ready Assessment, preparing
cases for Job Ready Declaration, staffing cases between the Counselors and Byer for Job
Ready Status, and relating to Veterans participating in the program. (Filing 34-1,
Steele-Lufcy Decl. ¶ 23 & Attch. B). The VR&E Division also developed a Case
Management Checklist to identify specific requirements for the Counselors and Byer to
complete a Veteran file for Job Ready Status. (Filing 34-1, Steele-Lufcy Decl. ¶ 24).9

8

Byer disputes SMF 13, but his response does not create a genuine issue of material
fact. Byer states:
Neither Mr. Byer nor the rehab counselors independently determine whether
a veteran is job ready. (Byer Dep. 52:10-22.) When Mr. Byer received a
Counselor’s file on a veteran and found the file missing documentation, based
on outdated plans and missing other data, he could not move forward with the
veteran. (Byer Dep. 55:21-56:3.) At that point, Mr. Byer learned the
counselor[s] were calling their union to report Mr. Byer. (Id. at 56:3-7.)
(Filing 38, p. 8)
9

Byer disputes SMF 14 by stating that “the Government’s use of the phrase ‘[d]uring
the relevant time frame’ is not helpful or material, as the Government never defines that
phrase.” (Filing 38, p. 8) To the extent this statement is intended as an objection, it is
overruled. Byer further states:
In fact, Mr. Byer was originally responsible for developing the checklist
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15. [Generally speaking],10 the Counselor prepared the case file using the Case
Management Checklist and other supporting documents to show that the Veteran had reached
Job Ready Status. The Counselor and Byer discussed the case file information and the
Counselor’s determination of the Veteran’s readiness to enter into Job Ready Status. Byer
would agree or disagree with the Counselor’s determination and they discussed issues that
needed to be remedied in order for the Veteran to proceed to Job Ready Status. If additional
actions were needed, the Counselor and Byer met again to determine readiness to move into
the Job Ready Status after the needed actions were remedied. If at any time the Counselor
and Byer were unable to come to an agreement on job readiness, Steele-Lufcy reviewed the
case with the Counselor and Byer and made a final determination of Job Readiness. (Filing
34-1, Steele-Lufcy Decl. ¶ 25 & Attch. B).

because of the Counselor’s failures to present him with veterans who were, in
fact, job ready. My Byer originally presented a draft of the checklist to the
union. He developed the checklist as follows:
I went to the regulations and copied what I saw in the
regulations, what needed to – what follow – what – Because
M28R gives examples, or not examples, but gives specifications
of what’s needed and whether to go forth, and I also went to
some other website that state vocational counselors and things
I believe to put things together to come up to cover your bases
for job readiness
(Byer Dep. 60:1-9.) Mr. Byer’s supervisor spoke to the counselors and
coordinators about the standard operating procedure and checklist. (Byer Dep.
63:20-64:22.)
(Filing 40, pp. 8-9) It is undisputed that Byer was part of the VR&E Division. (SMF 1)
10

Defendant’s SMF 15 uses the introductory clause, “As is relevant to this case.”
(Filing 35, p. 6) Byer objects that he “cannot tell whether a particular Counselor is being
referenced plus he cannot determine which ‘case file’ is being referenced.” (Filing 38, p. 9)
Defendant responds that Steele-Lufcy “was not referencing one specific case,” but “was
simply describing the general process for presentation and approval of a ‘job ready’ status
determination.” (Filing 40, p. 4) With that understanding, Byer’s objection is overruled. For
clarity, the court has altered the introductory clause accordingly.
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B. April 28, 2016 Team Meeting
16. The VR&E Division held monthly training sessions to meet the required National
and Local elective training curriculum requirements. Supervisor Steele-Lufcy determined the
training topics with input from all staff members in the Division. (Filing 34-1, Steele-Lufcy
Decl. ¶ 30).11
17. On April 28, 2016, a Training Meeting was held for the purpose of training the
entire Division. All of the Division attended in person except Counselor Nelson, who
attended by telephone. Part of that training was on general changes to VR&E policies and
standard practices relevant to the entire Division, and part of the meeting was for training
relevant to just the Counselors. Supervisor Steele-Lufcy planned to use the meeting to
improve the employees’ ability to work together and get along as team members, because the
employees had recent issues maintaining effective and professional communications between
staff members and toward Supervisor Steele-Lufcy. At the end of the agenda, there was time
for the employees to raise other ad hoc issues as they thought necessary. (Filing 34-1,
Steele-Lufcy Decl. ¶ 31).12
18. After the general training was complete, Byer asked to be excused so he could
complete work on the employment services cases. Since the remaining portion of the
discussion focused on the Counselors’ work duties, Supervisor Steele-Lufcy agreed to his
request. (Filing 34-1, Steele-Lufcy Decl. ¶ 32).13
11

Byer does not dispute SMF 16, but states it is not material. (Filing 38, p. 10) To the
extent this statement is intended as a relevancy objection, it is overruled.
12

Byer “objects to SMF 17 because SMF 17 is comprised of an entire paragraph of
multiple sentences, contrary to this District’s rules on summary judgment. NECivR. 56.1
(a)(1),(2).” (Filing 38, p. 10) This objection is overruled. The local rule calls for short
paragraphs, not necessarily single sentences. Byer makes the same objection with respect
SMF’s 19, 29, 67, 71, 76, 77, 85, and 86. (Filing 38, pp. 11, 15, 28, 33-34). Those objections
are likewise overruled.
13

Byer does not dispute the first sentence, and “agrees he requested and was granted
permission to leave the training session to work on case closures he needed to complete.”
(Byer Dep. 99:7-14.)” (Filing 38, p. 10). Because Byer has not presented any facts in
refutation of the second sentence, it is deemed admitted. “Defendant does not dispute the
-14-

19. At the end of the counselor training, Counselor Rebecca Luther raised a new issue.
She was concerned with Byer returning files to her and disagreeing with her on whether a
Veteran should be transferred to Job Ready Status. Ms. Luther thought her files were
complete and the Veterans had reached Job Ready Status, so the files should be passed on
to Byer for his employment services. Other Counselors generally agreed with Ms. Luther and
wanted to discuss the issue further as well. Supervisor Steele Lufcy stated that this discussion
could not occur without the presence and input of Byer. The group asked to have Byer rejoin
the group meeting so that the topic could be discussed by all parties at this time instead of
waiting until the next monthly meeting. (Filing 34-1, Steele-Lufcy Decl. ¶ 33).14
20. Supervisor Steele-Lufcy asked Byer to return to the meeting so that the issue could
be discussed by the entire group. Byer said would prefer not to come to the group and said
he needed to be prepared before being asked to discuss work topics. Supervisor Steele-Lufcy
requested Byer rejoin the group and he agreed. (Filing 34-1, Steele-Lufcy Decl. ¶ 34).15
21. Byer was frustrated when he returned to the room. Supervisor Steele-Lufcy
opened the discussion by stating that the staff wanted to review the process for declaring a
Veteran’s case as Job Ready and transferring the case to Byer. (Filing 34-1, Steele-Lufcy
Decl. ¶ 35).16

additional facts offered by Byer in response to SMF 18.” (Filing 40, p. 4)
14

Byer responds that he “was not present, and the Counselors attacked his well-known
dedication to holding himself and his co-workers to the required rules and regulations for
determining job ready status.” (Filing 38, p. 11) Because no evidence is cited in support of
this statement, it will not be considered. See NECivR 56.1(b)(1); Fed. R. Civ. P. 56(c)(1).
15

Byer disputes SMF 20, stating he “had no option but to return to the meeting as
directed by Supervisor Steele-Lufcy,” and “had previously disclosed precisely how such
situations impacted him.” (Filing 38, p. 11) (citing his deposition testimony: “Because I had
shared about how I could not handle tense situations, loud noises, and being put under
scrutiny, and in sharing those, it seemed like everything was used in that perspective of the
things that really annoyed me to make me feel bad or ashamed or feel not a part of.” (Byer
Dep. 232:16-22)). These statements do not create a genuine issue of material fact.
16

Byer disputes SMF 21, stating: “Steele-Lufcy did not re-open the meeting, Rebecca
Luther took control when Mr. Byer returned. She was loud; she leaned in toward Mr. Byer
-15-

22. Ms. Luther began to discuss the files and her concerns with Byer returning the
files to her as incomplete. (Filing 34-1, Steele-Lufcy Decl. ¶ 35). Ms. Luther brought up the
work environment and the services provided to the Veterans. (Filing 34-3, Wagner Decl.
Attch. A, Byer Depo. 105:25 - 106:15). Ms. Luther and Byer were several feet apart. Ms.
Luther did not swear, nor did she refer to Byer’s sex, age, or disability. (Filing 34-3, Wagner
Decl. Attch. A, Byer Depo. 108:22 - 109:20).17
23. The discussion quickly became heated between Byer and Ms. Luther, and Byer
had difficulty maintaining his composure. (Filing 34-1, Steele-Lufcy Decl. ¶ 35; Filing 34-3,
Wagner Decl. Attch. A, Byer Depo. 100:1-5; 105:15-24).18

when she shouted at him. No other counselors spoke up nor did Steele-Lufcy. (Byer Dep.
107:6-12.)” (Filing 38, p. 12) The cited deposition testimony only supports Byer’s statement
that other counselors and Steele-Lufcy did not “speak up” at the meeting. SMF 21 therefore
is deemed admitted.
17

Byer “disputes the Government’s characterization of Luther’s confrontation of and
personal attack on Mr. Byer when Steele-Lufcy returned him to the general meeting,” and
states: “Luther did not simply begin discussing the Job Ready process; she raised her voice,
hands on hips, and verbally launched into Mr. Byer, making him feel ‘intimidated, anxious’
and as if he was ‘being put on display in front of her co-workers to belittle’ Mr. Byer. (Byer
Dep. [107]:19-108:12.)” (Filing 38, p. 12) However, Byer testified Luther “started to talk
about moving cases” before raising her voice, which caused Byer to raise his voice in
defense. (Filing 37-2, p. 27 (Byer Dep. 105:15-24)) Byer could not remember what Luther
was talking about, except that “[i]t was about the work environment and the veterans.” (Id.
(Byer Dep. 105:25-106:15)) Byer also states, without citing any supporting evidence, that
“Steele-Lufcy was present but did nothing to control the situation.” (Filing 38, p. 12) Byer’s
statements do not create a genuine issue of material fact.
18

“Byer agrees that he was unable to maintain his composure in the face of Luther’s
shouting.” (Filing 38, p. 12) He states: “Before returning to the meeting, Mr. Byer told
Steele- Lufcy he was not prepared to return to the group, he needed to know what was on the
agenda, so he was not unprepared. (Buyer Dep. 99:18-100:8.) Mr. Byer did not explode or
engage in violent act – he started crying. (Byer Dep. 274:7-14)” (Filing 38, pp. 12-13) These
statements do not create a genuine issue of material fact.
-16-

24. After a few minutes, Byer left the room. (Filing 34-1, Steele-Lufcy Decl. ¶ 35;
Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 101:3-8, 106:25-107:4).19
25. A few minutes later, Byer returned to the meeting after he composed himself, and
the meeting finished shortly thereafter. (Filing 34-1, Steele-Lufcy Decl. ¶ 36; Filing 34-3,
Wagner Decl. Attch. A, Byer Depo. 100:5-8, 109:23 - 110:17).
26. Supervisor Steele-Lufcy did not make any comments that were disparaging,
derogatory, humiliating or “making fun” of Byer. (Filing 34-1, Steele-Lufcy Decl. ¶ 37).20
27. Byer told Supervisor Steele-Lufcy after the meeting that he felt uncomfortable in
the meeting. Supervisor Steele-Lufcy admitted that her attempt at team building did not result
in a successful discussion of an expressed group issue to arrive at a group consensus. (Filing
34-1, Steele-Lufcy Decl. ¶ 38).
28. No employees, including Byer, were disciplined as a result of this meeting. This
meeting did not affect their title, salary, benefits, status, or job responsibilities. (Filing 34-1,
Steele-Lufcy Decl. ¶ 39).21

19

Defendant’s SMF 24 also states: “Supervisor Steele-Lufcy stated both parties
needed to lower their voices, not talk over one another and listen to each other’s points of
view on the issue, and encouraged the discussion to be professional.” (Filing 35, p. 8) This
statement is effectively placed in dispute by Byer’s deposition testimony that Steele-Lufcy
did not “speak up” during this portion of the meeting. (See Byer’s response to SMF 21) but
even assuming that Steele-Lufcy did not speak up, the meeting did constitute an adverse
employment action. (See SMF 28)
20

Byer “acknowledges that Steele-Lucy did not make disparaging comments directly
to Mr. Beyer.” (Filing 38, p. 14) The remainder of Byer’s response is argumentative and not
supported by any citations to the record; therefore, it will not be considered as an opposing
statement of material facts. See NECivR 56.1(b)(1); Fed. R. Civ. P. 56(c)(1).
21

Byer’s response to SMF 28 is argumentative and not supported by any citations to
the record; therefore, it will not be considered as an opposing statement of material facts. See
NECivR 56.1(b)(1); Fed. R. Civ. P. 56(c)(1).
-17-

C. Classification of Byer’s Leave after His Return from FMLA Leave
29. On April 29, 2016, Mr. Byer came to see Supervisor Steele-Lufcy and told her that
his doctor had advised Byer not to return to work for six weeks.22 Byer submitted a leave
request and some documentation, and Supervisor Steele-Lufcy provided Byer with the forms
for the Family Medical Leave Act (FMLA). Byer planned to follow up with the VA time and
attendance coordinator, Scott Micek, to determine the best way to plan his leave requests.
Byer wanted to take a combination of paid leave and leave without pay so that he would
remain in leave accrual status as long as possible. (Filing 34-1, Steele-Lufcy Decl. ¶ 40).
30. Byer was on FMLA leave from April 29, 2016, to June 10, 2016. (Filing 34-1,
Steele-Lufcy Decl. ¶ 41).
31. When Byer returned to work following his FMLA leave, he noticed his time
records did not designate that the unpaid Leave Without Pay (LWOP) was pursuant to the
FMLA. (Filing 34-3, Wagner Decl, Attch. A, Byer Depo. 140:2-16).
32. Byer notified Supervisor Steele-Lufcy and Human Resources of the error and the
FMLA status was corrected on Byer’s leave records. (Filing 34-1, Steele-Lufcy Decl. ¶ 42;
Filing 34-2, Norris Decl. ¶¶ 34-35; Filing 34-3, Wagner Decl, Attch. A., Byer Depo. 140:24
-141:1).23

22

The amended complaint (Filing 8, p. 6, ¶¶ 21-22) indicates Byer’s physician
recommended he take six months off of work. In his deposition, Byer testified the reference
to six months was incorrect, and that his doctor instead recommended six weeks off of work.
(Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 115:10-116:23).
23

Byer disputes SMF 32, stating: “In fact, Steele-Lufcy told Mr. Byer that the leave
designation ‘was no big deal.’ (Byer Dep. 141:18-15.) Despite her casual dismissal of the
error, Mr. Byer followed up with a Human Resources representative who informed him that,
‘Yes, it is a big deal.’ (Byer Dep. 141:18-142:2.) Nonetheless, the only action in response to
the error Mr. Beyer pointed out as to FMLA leave was taken by Mr. Byer himself and trying
to get the leave designation corrected. (Byer Dep. 142:3-12.)” (Filing 38, p. 15) To the extent
Defendant has raised a relevancy objection to this statement (see Filing 40, pp. 5-6), the
objection is overruled. Byer’s statement, however, does not refute Defendant’s SMF 32.
-18-

33. Byer testified that the error in the FMLA designation did not make any difference
in his case. (Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 141:2-9). There was no action
taken against Byer for the lack of FMLA designation on his leave, and it did not affect the
type of leave Byer used. (Filing 34-2, Norris Decl. ¶ 36; Filing 34-3, Wagner Decl, Attch.
A., Byer Depo. 142:3-12).24
D. Required Travel after Return from FMLA Leave in June 2016
34. As the sole Employment Coordinator for Nebraska, Byer was required to travel
as part of his work. (Filing 34-1, Steele-Lufcy Decl. ¶ 17 & Attch. A, pp. 1-2). Byer traveled
around Nebraska for outreach activities to meet with Veterans, training facilities, and
employers and disseminate information about the VA employment-related programs and
services. He met with potential employers of Veterans at job fairs and other outreach
activities. On a few occasions, Byer traveled to meet with an employer to negotiate a
non-paid work employment readiness training opportunity for Veterans to get work
experience. Byer could travel to meet with Veterans at their worksites or at common spaces
out in the community. Byer rarely had overnight travel and he would receive compensatory
time for day trips which required travel outside of his normal business hours. (Filing 34-1,
Steele-Lufcy Decl. ¶¶ 17-18, Attch. A, pp. 1-2).25

24

Byer disputes SMF 33 by stating that “[t]he Government only cites part of Mr.
Byer’s deposition testimony in support of its statement.” (Filing 38, p. 16) Byer’s complete
answer to the question of “what difference did that [correction to the FMLA designation on
his time card] make?” was as follows:
Well, in the grand scheme of things, when you look at the paperwork, it didn’t
make any difference, but if we was going to justify why a person was gone, if
something came down to legal actions, where was he at? Leave without pay?
What was he doing? Why wasn’t he here? Why didn’t he take leave? Why
didn't he do this? FMLA would show that there was a Family Medical Leave
Act that was put in because of a condition, so, therefore, you would have
justification being gone with leave without pay.
(Filing 37-2, pp. 35-36 (Byer Dep. 140:24-141:17))
25

Byer disputes SMF 34, as well as SMF’s 35, 39, and 41, by citing his testimony that
he “very seldom” had to travel to outreach functions until after he returned from FMLA
-19-

35. The Counselors were required to travel on an “as-needed” basis to training, for
meetings with Veterans and school officials, and to coordinate purchases for the Veterans’
approved training programs. Counselors were not required to travel to public informational
outreach or employment related events. (Filing 34-1, Steele-Lufcy Decl. ¶ 19).
36. During Byer’s FMLA absence from April 29, 2016, through June 10, 2016,
Supervisor Steele-Lufcy authorized the EAA payments to the Veterans and worked with the
Counselors on Byer’s cases involving new Veterans, or questions for Veterans that were in
the program or preparing for case closure. (Filing 34-1, Steele-Lufcy Decl. ¶ 43).26
37. Prior to and during Byer’s absence, the National VR&E Systematic Technical
Accuracy Review (STAR) Team in Nashville, Tennessee, identified fiscal errors in some of
Byer’s cases. Supervisor Steele-Lufcy held these cases in Byer’s office awaiting his return
so that he could make the required corrections, if possible given the error in question, or at
least to review the fiscal errors and learn from them so as to correct his calculation errors in
the future. (Filing 34-1, Steele-Lufcy Decl. ¶ 44).27
38. Upon Byer’s return following his FMLA leave, he worked out of the Omaha and
Lincoln offices, reviewing his cases and catching up on emails. He also had his normal
Veteran tasks that were his usual work responsibilities. (Filing 34-1, Steele-Lufcy Decl. ¶
45).28
leave, when “it seemed like it was all of a sudden. Go here. Go here. Go here. Get this done.
Get this done. Why is this not done? Why have you not done this? It was an ongoing thing
when I came back.” (Filing 38, pp. 17-19 (citing Byer Dep 120:15-25)). Byer’s testimony
does not directly refute Defendant’s statements of material facts.
26

Byer does not dispute SMF 36, but states it is immaterial. (Filing 38, p. 18) To the
extent this statement is intended as a relevancy objection, it is overruled.
27

Byer does not dispute SMF 37, assuming that the phrase “Byer’s absence” is a
“reference to his period of FMLA leave from April 29, 2016 through June 10, 2016.” (Filing
38, p. 18). Defendant confirms this was the intent. (Filing 40, p. 6)
28

Byer adds that his “physician authorized and requested that the Government provide
Mr. Byer with additional FMLA Leave for June 13, through June 17 so he could ‘try and
ease back in the work environment and the stress.’” (Filing 38, p. 18 (citing Byer Dep.
-20-

39. On July 7, 2016, Byer traveled to Kearney to complete an Outreach event as part
of his job duties. This outreach was at the request of the Counselor in that service area. This
travel was authorized as a day trip and Byer received compensatory time for his time outside
of his regular work hours. (Filing 34-1, Steele-Lufcy Decl. ¶ 46).
40. On July 8, 2016, Byer met with a Veteran at his job site in the Omaha area early
in the morning. Compensatory time was approved for Byer for his time outside of his work
hours. (Filing 34-1, Steele-Lufcy Decl. ¶ 47).29
41. Supervisor Steele-Lufcy did not require Byer to travel when he returned from
FMLA leave, except for that which was part of his job duties or of the type of travel that was
required of him prior to his FMLA leave. (Filing 34-1, Steele-Lufcy Decl. ¶ 48).
42. At no time did Byer tell Supervisor Steele-Lufcy that he was unable to travel,
including after he returned from his FMLA leave. His paperwork that allowed his return to
work did not preclude travel. (Filing 34-1, Steele-Lufcy Decl. ¶ 49).
E. July 8, 2016 Leave Without Pay (LWOP)
43. Leave Without Pay (LWOP) is unpaid leave and it is discretionary with the
agency. LWOP must be requested by an employee. (Filing 34-2, Norris Decl. ¶ 13 & Attch.
A, p. 1, ¶ 2).
44. LWOP is requested in the same manner and for the same purposes as annual leave
and sick leave. LWOP may be granted even though the employee has a sick or annual leave
balance. (Filing 34-2, Norris Decl. ¶ 15 & Attch. B, p. 8, Section 10(B)).

118:5-21)) In fact, the Government did approve additional FMLA leave for Byer for June 13
through June 17. (Filing 34-2, Norris Decl. ¶ 37)
29

Byer does not dispute SMF 40, but states it is immaterial. (Filing 38, p. 19) To the
extent this statement is intended as a relevancy objection, it is overruled.
-21-

45. Federal regulations provide that the accumulation of nonpay status hours,
including LWOP, during a leave year can affect the employee’s accrual of annual leave and
sick leave. (Filing 34-2, Norris Decl. ¶ 19, 5 C.F.R. § 630.208(a)).
46. Byer requested and was approved for 70 hours of LWOP during the six-week
absence from April 29, 2016, through June 10, 2016. He also used paid annual leave (50
hours), paid sick leave (101 hours and 15 minutes) and compensatory time (18 hours and 45
minutes). (Filing 34-1, Steele-Lufcy Decl. ¶ 41; Filing 34-2, Norris Decl. ¶ 30 & Attch D).
47. Byer continued to accrue his annual and sick leave without reduction during his
6-week absence. Mr. Byer was never in a status that he was unable to accrue leave in 2016.
(Filing 34-2, Norris Decl. ¶ 40).
48. After his FMLA leave, and because he continued to earn leave, Byer had a
remaining balance of 16 hours and 45 minutes of sick leave and 65 hours of annual leave
available for him to use on June 13, 2016. (Filing 34-2, Norris Decl. ¶ 32).
49. On July 8, 2016, Byer took two hours of sick leave pursuant to the FMLA. (Filing
34-1, Steele-Lufcy Decl. ¶ 52 & Attch. D; Filing 34-2, Norris Decl. ¶¶ 38-39).
50. Byer did not take LWOP on July 8, 2016. (Filing 34-1, Steele-Lufcy Decl. ¶ 54;
Filing 34-2, Norris Decl. Attch. D, p. 2).
51. In addition, Byer also requested and was approved for one hour of compensatory
time on July 8, 2016, because he had worked with a veteran early in the day. (Filing 34-1,
Steele-Lufcy Decl. ¶ 53 & Attch. E).
52. Supervisor Steele-Lufcy has not required anyone to take LWOP, but she has
granted requests for LWOP from Byer and other employees when they have made such
requests. (Filing 34-1, Steele-Lufcy Decl. ¶¶ 41, 50, 55 & Attch. C).
53. The VA allows employees to utilize advanced annual leave or sick leave under
certain situations. (Norris Decl. ¶ 23 & Attch. A, p. 3, ¶ 5(c)(4)).

-22-

54. In order to take advanced sick leave, an employee must have exhausted all of the
employee’s earned sick leave. Likewise, in order to take advance annual leave, an employee
must exhaust all of the employee’s earned annual leave. (Filing 34-2, Norris Decl. ¶ 27).
55. At the end of Byer’s six-weeks of FMLA leave, Byer still had a positive balance
of earned sick leave and earned annual leave. Byer had not exhausted all of his earned leave,
so he was not eligible for advanced leave. (Filing 34-2, Norris Decl. ¶¶ 32, 41).
F. July 26, 2016 Counseling Memo
56. In 2015 and 2016, the VA utilized a National Performance Standard for
Employment Coordinators and another standard for the Counselors. (Filing 34-1,
Steele-Lufcy Decl. ¶ 58).
57. The National Performance Standard for Employment Coordinators set forth five
critical elements (production, timeliness, quality of work, customer service, and program and
data integrity) and one non-critical element (cooperation and organizational support). The
National Performance Standard identified specific measures for each element, and the
quantifiable results that an individual should achieve during a rating period to be fully
successful. If an employee failed to meet any of the elements, the employee was required to
submit compelling mitigating reasons why the element was not met and to identify additional
actions to achieve the results set forth in the element. (Filing 34-1, Steele-Lufcy Decl. ¶ 59
& Attch. F).
58. Under Critical Element 3 - Quality of Work, the standard was accuracy. The
National Performance Standard required the Rater [to] review at least three cases (in each
quality category) for each Employment Coordinator each quarter. Fiscal Accuracy is a
measure of correctness in fiscal payment computations and transactions during the rating
period. The National Performance Standard specified that the standard for Fiscal Accuracy
is 90 percent. (Filing 34-1, Steele-Lufcy Decl. ¶ 60 & Attch. F, p. 3).
59. Every month, the National VR&E Systematic Technical Accuracy Review
(STAR) Team office in Nashville, Tennessee sent a printout of cases that were randomly
selected for review to verify the fiscal transactions were processed correctly, including
-23-

payments to Veterans. Supervisor Steele-Lufcy received this list of cases targeted for review.
If there were not enough case files to review for the particular element, Lisa Chellew, the
VR&E Division Program Analyst, pulled additional case files from the employee at random.
Program Analyst Chellew reviewed the case files and determined whether errors were
present, and what policies were in effect for the particular element. She prepared a statistical
analysis of the employee’s files for the relevant time period when compared to the National
Performance Standard. Supervisor Steele-Lufcy reviewed the sampling of each employee’s
files and met with each employee to discuss their performance. (Filing 34-1, Steele-Lufcy
Decl. ¶ 61).
60. In 2016, Supervisor Steele-Lufcy had an individual meeting with each of the
Counselors and with Byer on a weekly basis to review their cases and their performance
standings. (Filing 34-1, Steele-Lufcy Decl. ¶ 62).
61. If a VR&E employee was not meeting the National Performance Standard for
fiscal accuracy or other measurement, Supervisor Steele-Lufcy routinely issued a Letter of
Counseling to the employee that identified their actual performance scores in relation to the
required National Performance Standard scores. (Filing 34-1, Steele-Lufcy Decl. ¶ 63).
62. The Letter of Counseling was designed to help an employee demonstrate
acceptable performance through expanded reviews and guidance. The Letter of Counseling
is referred to as a pre-Performance Improvement Plan, or pre-PIP memo. The Letter of
Counseling is not a Performance Improvement Plan (PIP). Instead, a Letter of Counseling
is a preliminary step to help identify areas and issues targeted for improvement. (Filing 34-1,
Steele-Lufcy Decl. ¶ 64).
63. In late April or early May 2016, Supervisor Steele-Lufcy reviewed the STAR
Team list of cases and the statistical analysis through March 2016. The STAR Team
identified significant accuracy errors in the case files for three of the Counselors and Byer.
Supervisor Steele-Lufcy consulted with Human Resources on how to address these errors,
and Human Resources recommended that Supervisor Steele-Lufcy issue Letters of
Counseling to all four employees. (Filing 34-1, Steele-Lufcy Decl. ¶ 65).

-24-

64. Between May and August of 2016, Supervisor Steele-Lufcy issued Letters of
Counseling to the three VR&E Counselors because their performance fell below the National
Performance Standard for accuracy. In September 2016, each of these three individuals was
placed on a PIP because their performance did not sufficiently improve after the Letters of
Counseling. (Filing 34-1, Steele-Lufcy Decl. ¶ 66).
65. In late April or early May 2016, Supervisor Steele-Lufcy reviewed Byer’s case
files and determined that he fell below the Fiscal Accuracy Standard based on fiscal accuracy
computation errors regarding the processing and submission of EAA payments. (Filing 34-1,
Steele-Lufcy Decl. ¶ 67).
66. Since Mr. Byer was on FMLA leave from April 29, 2016, through June 10, 2016,
Supervisor Steele-Lufcy consulted with Lindsey Rodysill, Human Resources Management,
on when to provide the Letter of Counseling to Byer in light of his extended leave. Ms.
Rodysill recommended Supervisor Steele-Lufcy wait 30 days after Byer’s return to issue the
Letter of Counseling. (Filing 34-1, Steele-Lufcy Decl. ¶ 68).
67. On July 14, 2016, after Byer had been back at work for 30 days, Supervisor
Steele-Lufcy issued a Letter of Counseling to Byer based on his performance. The Letter of
Counseling notified Byer that his Fiscal Accuracy from October 1, 2015 (the beginning of
the appraisal period) through March 31, 2016 was 78.5 percent, which was 11.5 percent
below the required standard of 90 percent for Fiscal Accuracy. (Filing 34-1, Steele-Lufcy
Decl. ¶ 69 & Attch. G). The Letter of Warning [sic] notified Byer that failure to meet his
standard may result in a performance based action that may include a Performance
Improvement Plan. Byer was also notified that he would be given an additional 30 days to
demonstrate acceptable performance in the area of Quality of Work and that to assist in
getting back to his standard, he would be placed on expanded reviews to assist him in getting
back to his standard. (Filing 34-1, Steele-Lufcy Decl. Attch. G, p. 2).30
30

Byer claims “the Government’s review of his performance changed from before he
took FMLA leave and after,” as he testified:
Prior to this time, there was nothing until I filed the EEOC and we went and
moved forward, and when I came back, then it seemed like I was being
scrutinized on everything I did. I did – Like I say, when I came on board, I was
-25-

68. In addition to the Letter of Counseling, Supervisor Steele-Lufcy met with Mr.
Byer and reviewed his case files to provide additional training and oversight of his
performance. (Filing 34-1, Steele-Lufcy Decl. ¶ 70).31
69. In July, Supervisor Steele-Lufcy reviewed more of Byer’s case files, taking into
consideration that he was on leave during some of this time. As of the end of June 2016,
Byer’s year-to-date performance was at 84.2 percent, which was 5.8 percent below the
required standard for Fiscal Accuracy. Supervisor Steele-Lufcy issued a second Letter of
Counseling dated July 26, 2016, to Byer, and met with Byer to review more of his case files
and provide guidance on how to correct the fiscal errors, or prevent future errors from
occurring. (Filing 34-1, Steele-Lufcy Decl. ¶ 71 & Attch. H).32
70. Byer testified that he believed his Fiscal Accuracy rate of 84.2% was accurate.
(Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 186:12 - 187:2).
71. Byer’s Fiscal Accuracy improved each month under Supervisor Steele-Lufcy’s
mentoring and guidance. Byer’s Fiscal Accuracy for August 2016 was 100 percent; however,
his average for the Fiscal Year to date was 88.4 percent, which was 1.6 percent under the
required standard for Fiscal Accuracy. Therefore, Supervisor Steele-Lufcy issued Byer a

given exceptional, outstanding, outstanding, exceptional, and I had had no
counseling or anything on job performance or errors or anything, and when I
came back, it seemed like I was being put under a lot of scrutiny and a lot of
criticism about doing things inappropriately or wrong, and it just –
(Filing 38, p. 35 (quoting Byer Dep. 177:14-25) Defendant does not dispute that Byer did not
receive a Letter of Counseling until after he returned from FMLA leave. (Filing 40, p. 7)
31

Byer disputes SMF 68 by stating he “does not recall meeting with Steele-Lufcy,
other than getting a written warning from her.” (Filing 38, p. 25) Because no evidence is
cited in support of this statement, it will not be considered. See NECivR 56.1(b)(1); Fed. R.
Civ. P. 56(c)(1).
32

Byer testified Steele-Lufcy “was pointing out that my accuracy was still not meeting
standards and that it had improved, though, and keep up the positive focus.” (Filing 38, p.
26; Filing 37-2, p. 47 (Byer Dep. 187:20-23) Defendant does not dispute this additional fact.
(Filing 40, p. 7)
-26-

third Letter of Counseling dated September 23, 2016, for his performance from October 1,
2015 through July 31, 2016. (Filing 34-1, Steele-Lufcy Decl. ¶ 72 & Attch. I).33
72. Supervisor Steele-Lufcy provided the Letter of Counseling to Byer and met with
him to discuss the letter and his cases. Byer wrote on the Letter of Counseling: “Melissa has
informed me [my] Fiscal Accuracy has improved, and there were no errors last month. [She]
believes [I] will meet performance standards. Therefore, another month of continued
monitoring should prove to be positive. Although this is difficult to accept, and I accept with
hesitation, [I] do accept with anticipated positive outcome.” (Filing 34-1, Steele-Lufcy Decl.
¶ 73 & Attch. I, p. 2).34
73. On October 25, 2016, Supervisor Steele-Lufcy reviewed additional cases assigned
to Byer for Fiscal Accuracy. Byer’s Fiscal Accuracy for the 4th quarter of 2016 was 100
percent, which raised his annual level of performance for Fiscal Accuracy to 91.7 percent.
This met the National Performance Standard to qualify for a Fully Successful rating. (Filing
34-1, Steele-Lufcy Decl. ¶ 74).

33

In response to a question as to whether the performance notices helped him meet the
performance requirement, Byer testified: “By looking at the pictures, I mean by the status,
it shows I improved, but it hindered fulfillment going towards it the way it was presented,
but it did help me meet the standard. So, yes, it helped.” (Filing 38, p. 26; Filing 37-2 (Byer
Dep. 194:1-5.)) When asked if his concern with the Letter of Counseling memo was that it
“was not issued until you were back on board for 30 days,” Byer testified:
That’s the first I had known that I was that far below standards, and it would
have been nicer to know way back forward [sic] so we could work towards it
instead of coming back after it’s been (unintelligible) and having this put down
and saying, You’re not meeting standards and then progressive investigation,
so to speak, showing I’m not meeting them. It was a lot of stress
(Filing 38, pp. 26-27; Filing 37-2, p. 49 (Byer Dep. 194:6-195:10))
34

Byer states SMF 72 is “[u]ndisputed as to the writing on the Letter of Counseling.”
(Filing 38, p. 27) The remainder of SMF 72 is not specifically disputed, and is deemed
admitted because no evidence to the contrary has been cited by Byer.
-27-

74. Byer was not placed on a PIP because his performance improved after he received
the three Letters of Counseling. (Filing 34-1, Steele-Lufcy Decl. ¶ 75).35
75. The Letters of Counseling [issued] to Byer were beneficial and served their
purpose because Byer’s performance improved, and Supervisor Steele-Lufcy rated Byer as
fully successful on his 2016 annual review. (Filing 34-1, Steele-Lufcy Decl. ¶ 76; Filing
34-3; Wagner Decl. Attch. A, Byer Depo. 187:9-23; 191:9-16; 193:18-194:5).36
G. July 29, 2016 - Notice to Limit Workplace Interactions with Co-worker
(Referred to by Byer as a “Cease & Desist” Letter)
76. Byer and Counselor Luther, his co-worker at the Omaha office, had a history of
personality conflicts. These conflicts seemed to increase after other Omaha staff retired, or
were assigned to work outside of the Omaha Zorinsky building. Byer complained to
Supervisor Steele-Lufcy on multiple occasions about office interactions with Ms. Luther. Ms.
Luther also complained to Supervisory Steele-Lufcy on multiple occasions that Mr. Byer was
difficult to get along with. (Filing 34-1, Steele-Lufcy Decl. ¶ 77).37

35

Byer states SMF 74 is “[u]ndisputed as to the fact that Mr. Byer was not placed on
a PIP.” (Filing 38, p. 28) The remainder of SMF 74 is not specifically disputed, and is
deemed admitted because no evidence to the contrary has been cited by Byer.
36

Byer disputes SMF 75 by stating that “[t]he first two portions of Mr. Byer’s
deposition testimony cited by the government does not address whether the documents were
perceived by Mr. Byer as ‘beneficial’ or ‘served their purpose.’” (Filing 38, p. 28) Defendant
responds that SMF 75 does not concern Byer’s perceptions, and suggests that inserting the
word “issued” before “to Byer” would remove any ambiguity. (Filing 40, p. 8) The court
accepts this suggestion and finds that SMF 75, as thus modified, is fully consistent with the
cited evidence.
37

In response to SMF’s 76 and 77, Byer references two portions of his deposition
testimony which do not contradict either statement of material fact. (Filing 38, pp. 28-29).
Byer’s testimony, preceded by counsel’s questions, reads:
Q
Why, why did you have a difficult relationship with Rebecca
Luther prior to July 29th, 2016?
A
Because of all the other incidents that we have previously
discussed, how she would be confrontational, trying to find information out
-28-

77. Supervisor Steele-Lufcy consulted with Ms. Rodysill, Human Resources
Management, on steps that she could take to resolve the conflict between Byer and Ms.
Luther. (Filing 34-1, Steele-Lufcy Decl. ¶ 78). Based on that consultation, Supervisor
Steele-Lufcy made repeated offers and attempts to resolve their conflicts, including:
a. The April 28, 2016, ad-hoc portion of the meeting with the entire division
was an attempt to address conflicts in how the case files were handled. (Filing 34-1,
Steele-Lufcy Decl. ¶ 78; Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 214:6-16).
b. Supervisor Steele-Lufcy met jointly with Byer and Ms. Luther to discuss
their working relationship. (Filing 34-1, Steele-Lufcy Decl. ¶ 78; Filing 34-3, Wagner
Decl. Attch. A, Byer Depo. 214:17-25).

and raise her voice, and just – it was just very, very tense. And on this day –
(Filing 37-2, p. 51 (Byer Dep. 202:13-20))
Q
And so at this point, end of July, when [Steele-Lufcy] issued the
memo to you, Exhibit 27, that you and Rebecca Luther should only talk about
your work-related issues. Is this a way to address the difficulties that you and
Rebecca Luther were having?
A
Based on what I know now, I would say no.
Q
Because?
A
Because once Rebecca and I started talking and we found out
what had been said against each one of us, pitting us against one another to
move on, and how everybody else was told the same thing about me and me
about the and it just kind of escalated, and when she tried to have us talk, she
kept on. She told her to tell me all the bad things and told me to tell her all the
bad things, and when you do that, you just continue to add fuel to the fire, and
it doesn't move no further.
(Filing 37-2, p. 54 (Byer Dep. 215:25- 216:21) (incorrectly cited as page 283 by Byer))
-29-

c. Supervisor Steele-Lufcy met individually with Byer and Ms. Luther to
discuss her expectations for professionalism in the workplace and to resolve their
conflicts with each other. (Filing 34-1, Steele-Lufcy Decl. ¶ 78).38
d. Supervisor Steele-Lufcy responded to emails and phone calls from Byer and
Ms. Luther when they complained about actions taken by the other person.
(Filing34-1, Steele-Lufcy Decl. ¶ 78).
78. Additionally, Supervisor Steele-Lufcy offered to meet with Byer and Ms. Luther
on several occasions to mediate any issues between them and to improve office
communications, but Byer refused to accept these meetings. (Filing 34-1, Steele-Lufcy Decl.
¶ 78 & Attch. J).39
79. Despite these efforts, Byer and Ms. Luther continued to report conflicts with each
other. (Filing 34-1, Steele-Lufcy Decl. ¶ 78).40
80. Byer testified that Supervisor Steele-Lufcy attempted to resolve the conflict
between Byer and Ms. Luther prior to issuing the Notices to Limit Work Place Interactions.
(Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 215:19-24).41

38

Byer disputes SMF 77c by referencing his response to SMF 76. However, the
testimony referenced in SMF 76 does not contradict SMF 77c.
39

Byer disputes the use of the term “mediate,” based on the testimony which is
referenced in his response to SMF 76. (Filing 38, pp. 30-31) However, that testimony does
not contradict SMF 78.
40

Byer again references the testimony cited in response to SMF 76 and claims
“Steele-Lufcy was actually fueling the issues between Mr. Byer and Luther ... and pitting
Luther and Mr. Byer against one another.” (Filing 38, p. 31) Byer’s testimony does not
directly contradict SMF 79.
41

In response, Byer cites a portion of his deposition testimony where he opines that
the Notice to Limit Work Place Interactions (or “cease and desist” memo) was issued in
response to the filing of his EEOC complaint about one month previously. (Filing 38, p. 31
(citing Byer Dep. 237:2-25) This testimony does not directly contradict SMF 80.
-30-

81. On July 12, 2016, Byer urgently contacted Supervisor Steele-Lufcy outside of his
weekly coaching session. Byer stated that Ms. Luther came to his office and was verbally
aggressive, and he was concerned that Ms. Luther would come to his door and block him in
his office. Supervisor Steele-Lufcy and Byer discussed strategies that he could use to ensure
that he felt safe in his office and what steps he should take if Ms. Luther approached him in
his office and the conversation became inappropriate or unprofessional. (Filing 34-1,
Steele-Lufcy Decl. ¶ 79 & Attch. J).
82. On or about July 22, 2016, and in emails over the next few days, Supervisor
Steele-Lufcy again offered to mediate a meeting to address the conflicts between Ms. Luther
and Byer, but Byer was not willing to meet. (Filing 34-1, Steele-Lufcy Decl. ¶ 80).42
83. Sometime between July 26 and July 28, 2016, Byer called Supervisor Steele-Lufcy
about another incident with Ms. Luther and said that he could not take it anymore. Just after
Supervisor Steele-Lufcy hung up with Byer, Ms. Luther called her and complained about
Byer. (Filing 34-1, Steele-Lufcy Decl. ¶ 81).
84. Supervisor Steele-Lufcy discussed the most recent conflict with Ms. Rodysill. In
response to the history between Byer and Ms. Luther, and because Byer was expressing
concerns about his safety and Ms. Luther’s continuing actions and statements to him,
Supervisor Steele-Lufcy decided to direct both Byer and Ms. Luther that they were only to
limit contact with each other to business-related issues only. (Filing 34-1, Steele-Lufcy Decl.
¶ 82).43
85. On July 29, 2016, Supervisor Steele-Lufcy issued Byer a Notice to Limit Work
Place Interactions with Co-Worker (Rebecca Luther) to Only Required Work Related Topics
and Issues. The Notice directed Byer to limit his work place interactions with Ms. Luther

42

Byer states SMF 82 or SMF 83 are “[u]ndisputed,” but he again references his
deposition testimony which was cited in response to SMF 76. (Filing 38, pp. 32-33)
43

Byer states SMF 84 is “[u]ndisputed as to the actions taken by Steele-Lufcy.”
(Filing 38, p. 33) Because Byer does not cite any contradictory evidence, SMF is deemed
admitted in its entirety.
-31-

(including phone conversations, face-to-face interactions, written correspondence, text
messages, IM messages, emails, etc.) to only those matters relative to the performance of his
duties. The notice informed Byer that disciplinary action could result if he failed to adhere
to the directives outlined in the memorandum. The notice did not remove Byer’s
responsibility to continue to meet with and work in physical proximity with Ms. Luther as
needed to execute the duties of his position. The notice remained in effect indefinitely. Byer
acknowledged receipt of this Notice by email. (Filing 34-1, Steele-Lufcy Decl. ¶ 83 & Attch.
K).
86. On August 1, 2016, Supervisor Steele-Lufcy issued to Ms. Luther a Notice to
Limit Work Place Interactions with Co-Worker (Roger Byer) to Only Required Work
Related Topics and Issues. The directives issued in the notice were the same as the directives
issued in the notice to Byer. Ms. Luther acknowledged receipt of this notice by her signature
on August 2, 2016. (Filing 34-1, Steele-Lufcy Decl. ¶ 84 & Attch. L).
87. The notices issued to Byer and Ms. Luther did not affect their title, salary,
benefits, status, or job responsibilities. (Filing 34-1, Steele-Lufcy Decl. ¶ 85).44
88. Supervisor Steele-Lufcy had not issued this type of notices to other employees
because she only had this extensive level of conflict between Byer and Ms. Luther. (Filing
34-1, Steele-Lufcy Decl. ¶ 86).45.

44

In response, Byer claims that “Steele-Lufcy intended to use the cease and desist
memo as a cover up of her efforts to provoke issues between Luther and Mr. Byer, as well
as issues between Mr. Byer and the rest of his co-workers.” (Filing 38, p. 34) He cites his
own deposition testimony in which he states he called Steele-Lufcy before the “cease and
desist memo” was issued and asked her, “What is this I hear you’re telling Rebecca and me
the same things against each other going?” and “[s]he wouldn’t talk no more.” (Filing 37-2,
p. 64 (Byer Dep. 254:2-5)) This testimony does not directly support Byer’s “cover up” claim,
which is speculation, and does not refute SMF 87 in any way.
45

Byer disputes SMF 88 by again incorporating his response to SMF 76. Such
response does not contradict SMF 88.
-32-

H. Byer’s EEO Contact and Complaint Processing
89. On June 17, 2016, Byer made an informal complaint of discrimination with the
VA’s Office of Resolution Management (ORM). This complaint was designated VA No.
200J-0334-2016104140. (Filing 34-3, Wagner Decl. Attch. A., Byer Depo Ex. 31).
90. On June 26, 2016, Byer submitted information for his informal complaint of
discrimination. In this document, Byer requested a “job modification or accommodation to
limit face to face interaction with Rebecca (Luther).” (Filing 34-3, Wagner Decl. Attch. A.,
Byer Depo. 162:8 - 164:10 & Ex. 17, p. 2).
91. On September 19, 2016, Byer signed a formal Complaint of Employment
Discrimination. (Filing 8, ¶ 35; Filing 34-3, Wagner Decl. Attch. A, Byer Depo. Ex. 31).
I. Miscellaneous
92. Since Byer submitted his discrimination complaint [in] 2016, his salary has
increased and his benefits, including insurance, retirement, and 401K, have not decreased.
(Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 40:8-14; 47:5-13).
93. Supervisor Steele-Lufcy was aware that Byer had some service connected
disabilities. (Filing 34-1, Steele-Lufcy Decl. ¶ 13).46
94. None of the actions Supervisor Steele-Lufcy took with regard to Byer were based
on his sex, age, [or] disability. (Filing 34-1, Steele-Lufcy Decl. ¶ 87).47
46

Steele-Lufcy further states she “was unaware of what specific disabilities he
suffered.” (SMF 93) However, Byer testified he “let her know about my disabilities” on a trip
to Grand Island “shortly after her arrival here.” (Filing 38, p. 36; Filing 37-2, p. 19 (Byer Dep
75:1-22))
47

Defendant’s SMF 94 also states that Steele-Lufcy’s actions were not taken because
Byer “engaged in equal employment opportunity (‘EEO’) activity.” (Filing 35, p. 22) Byer
disputes this statement by claiming that his “work was scrutinized more closely and his job
responsibilities increased after he filed his EEO claim.” (Filing 38, p. 36). Although Byer
cites no supporting evidence for this statement, his responses to SMF’s 34 and 37 include
-33-

III. STANDARD OF REVIEW
“A party may move for summary judgment, identifying each claim or defense—or the
part of each claim or defense—on which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law” Fed. R. Civ. P. 56(a). The
plain language of the rule “mandates the entry of summary judgment ... against a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must view the evidence in the
light most favorable to the non-moving party, giving that party the benefit of all inferences
that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649,
652-53 (8th Cir. 1997). It is not the court’s function to weigh evidence in the summary
judgment record to determine the truth of any factual issue; the court merely determines
whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc., 186
F.3d 1099, 1101 (8th Cir. 1999).
The moving party bears the burden of showing there are no genuine issues of material
fact. See Celotex, 477 U.S. at 322. This burden “may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id., at 325; see Fed. R. Civ. P. 56(c).
“The nonmoving party must then come forward with specific facts showing that there
is a genuine issue for trial, either by citing to parts of the record showing that there is a
genuine dispute for trial or by demonstrating that the moving party has not established the
absence of a genuine dispute or cannot produce admissible evidence supporting the absence
of a dispute.” United States v. STABL, Inc., 800 F.3d 476, 483 (8th Cir. 2015) (citations
omitted). “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 v. City of Rochester, 643
claims that his work was scrutinized more closely, and that he was required to travel more,
after he returned from FMLA leave about a month after filing the EEOC complaint.
-34-

F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Ricci v. DeStefano, 557 U.S. 557, 586
(2009)).
IV. DISCUSSION
To survive a motion for summary judgment with a Title VII claim, a plaintiff must
show either direct evidence of a Title VII violation or create an inference of discrimination
or retaliation under the McDonnell Douglas burden-shifting framework.48 Shirrell v. St.
Francis Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015).
Direct evidence of discrimination requires “a specific link between the [alleged]
discriminatory animus and the challenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actually motivated the employer’s
decision.” Id. (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)
(alteration in original). “Direct evidence includes ‘evidence of conduct or statements by
persons involved in the decisionmaking process that may be viewed as directly reflecting the
alleged discriminatory attitude, where it is sufficient to support an inference that
discriminatory attitude more likely than not was a motivating factor.’” Shaffer v. Potter, 499
F.3d 900, 904 (8th Cir. 2007) (quoting Schierhoff v. GlaxoSmithKline Consumer Healthcare,
L.P., 444 F.3d 961, 966 (8th Cir. 2006)).
In the absence of direct evidence, the McDonnell Douglas framework applies, which
requires a plaintiff to make a prima facie case of discrimination or retaliation. Shirrell, 793
F.3d at 887. If a plaintiff satisfies this burden, the defendant then has the burden of showing
a legitimate, non-discriminatory reason for the challenged action. Id. If the defendant offers
such a reason, the burden shifts back to the plaintiff to show the defendant’s proffered reason
is a pretext. Id. Proof of pretext, coupled with a strong prima facie case, may suffice to create
a triable question of fact. Torgerson, 643 F.3d at1046.

48

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
-35-

ADEA and Rehabilitation Act claims are analyzed in the same manner as Title VII
claims.49 See, e.g., Hutson v. McDonnell Douglas Corp., 63 F .3d 771, 776 (8th Cir. 1995)
(ADEA); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (Rehabilitation Act),
abrogated on other grounds by Torgerson, 643 F.3d at 1031.
In this case, Byer has presented no direct evidence of discrimination, whether based
on his age, sex, or disability, and no direct evidence of retaliation. All of his claims therefore
must be analyzed using the McDonnell Douglas burden-shifting framework.
A. Discrimination Claims
1. Byer Cannot Establish a Prima Facie Case of Discrimination
To establish a prima facie case of employment discrimination under the ADEA, a
plaintiff must show (1) he is over 40, (2) he was qualified for the position, (3) he suffered an
adverse employment action, and (4) substantially younger, similarly situated employees were
treated more favorably.” Faulkner, 906 F.3d at 734.
Byer was born in 1955, and Defendant does not contend he is unqualified for his
position as the Employment Coordinator for the VR&E Division at the VA’s Lincoln
Regional Office. Defendant only argues that Byer cannot establish the third and fourth
elements of his ADEA claim. (Filing 35, pp. 25-26)

49

While the Eighth Circuit has “applied McDonnell Douglas to ADEA claims when
addressing them along with other discrimination claims, it is unclear whether McDonnell
Douglas technically applies to the ADEA because the ADEA has a ‘but-for’ causation
standard rather than the mixed motives standard used in other statutes. It is clear, though, that
a plaintiff who fails to meet the lower standard of Title VII ... necessarily fails to meet the
ADEA’s standard as well.” Heisler v. Nationwide Mut. Ins. Co., 931 F.3d 786, 794-95 (8th
Cir. 2019). The Rehabilitation Act also has a “but-for” causation standard. See Amir v. St.
Louis Univ., 184 F.3d 1017, 1029 n. 5 (8th Cir. 1999) (“Rehabilitation Act claims are
analyzed in a manner similar to ADA claims except that the Rehabilitation Act imposes a
requirement that a person’s disability serve as the sole impetus for a defendant’s adverse
action against the plaintiff.”) (emphasis in original); 29 U.S.C. § 794(a).
-36-

To establish a prima facie case of employment discrimination under Title VII, “a
plaintiff must show (1) he is a member of a protected class, (2) he met his employer’s
legitimate expectations, (3) he suffered an adverse employment action, and (4) the
circumstances give rise to an inference of discrimination.” Faulkner v. Douglas Cty.
Nebraska, 906 F.3d 728, 732 (8th Cir. 2018).
For purposes of the pending motion for summary judgment, “Defendant does not
challenge Byer’s membership in a protected group.” (Filing 35, p. 26) And while Byer’s
job performance is certainly relevant to Byer’s claim that his supervisor subjected him to
“hyper-monitoring and surveillance,” Defendant only argues that Byer cannot establish a
prima facie case of sex discrimination because he did not suffer an adverse employment
action and was not treated differently from similarly situated female employees. (Filing 35,
pp. 25-36)
To establish a prima facie case of employment discrimination under the Rehabilitation
Act, Byer must show that: (1) he was disabled, (2) he was qualified to do the essential job
function with or without reasonable accommodation, and (3) he suffered an adverse action
due to his disability. Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016).50
Defendant does not dispute that Byer was disabled or that he was qualified for his
employment position. Defendant only argues that Byer cannot establish the third element of
his disability discrimination claim. (Filing 35, pp. 25-26)

50

“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 does not.” Id.
Byer only claims disparate treatment, although the amended complaint indicates Byer
“requested a meeting with Steele-Lufcy and asked her about an accommodation.” (Filing p.
7, ¶ 25) Byer testified at his deposition that after returning from FMLA leave, he asked either
to be allowed to telework two days a week or to work fewer hours. The telework request was
granted, and Byer withdrew his request for part-time employment. (Filing 37-2, pp. 36-39
(Byer Dep 144:23-152:5)
-37-

a. Byer did not suffer an adverse employment action
An adverse employment action is a “tangible change in working conditions that
produces a material employment disadvantage.” Jones v. City of St. Louis, 825 F.3d 476, 480
(8th Cir. 2016).51 “This might include 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.” Id. “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.” Wilkie v. Dep’t of Health & Human
Services, 638 F.3d 944, 955 (8th Cir. 2011) (citation omitted). Merely being unhappy with
employment changes is not enough to constitute an adverse employment action. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016). “Petty slights and minor
annoyances in the workplace, as well as personality conflicts and snubs by co-workers, are
not actionable.” Sutherland v. Missouri Dep’t of Corrections, 580 F.3d 748, 752 (8th Cir.
2009).
i. April 28, 2016 Team Meeting
Byer first complains about the April 28, 2016 team meeting, where he and one of the
counselors, Rebecca Luther, got into a heated discussion about file handling. Byer criticizes
his supervisor for allowing this discussion to occur when he was unprepared, and for not
“speaking up” during the meeting.52 Byer was not disciplined as a result of this meeting, and

51

Byer argues this is not the correct standard, and cites an Eleventh Circuit decision,
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998). (Filing 38, p. 36) That
decision, however, involved a Title VII retaliation claim. As will be discussed subsequently,
the Eighth Circuit has applied a different standard to retaliation claims since the Supreme
Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006) (resolving circuit split).
52

Byer also alleges that his supervisor, Melissa Steele-Lufcy, phoned him as he was
driving home afterwards to ask him “to return to a meeting point and pick up credentials
forgotten by one of his co-workers,” and that he agreed even though “Steele-Lufcy had
informed [him] the two co-workers he was delivering the forgotten credential to were ‘out
to get him.’” (Filing 8, p. 6, ¶ 19) This request also was not an adverse employment action.
Byer testified that the credentials belonged to Anna Sabina-Stratton, and that he arranged to
-38-

it did not affect his title, salary, benefits, status, or job responsibilities. (SMF 28) While Byer
contends he was so affected by the meeting that his doctor recommended six weeks off work,
an employee’s use of leave time is not an adverse employment action. See Jackman v. Fifth
Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 805 (8th Cir. 2013) (“[R]ather than an
adverse action, the favorable employment benefits ... afforded by the State of Iowa to
Jackman allowed her to take a substantial amount of leave instead of requiring her to quit her
job).
ii. Misclassification of Byer’s Leave
Byer further alleges that “the VA timekeeper failed to classify his time [off] as FMLA
leave” (Filing 8, p. 6, ¶ 24), but it is undisputed that the error was corrected and Byer
suffered no harm. (SMF 29-33) See Freelain v. Village of Oak Park, No. 13 CV 3682, 2016
WL 6524908, at *5 (N.D. Ill. Nov. 3, 2016) (finding no adverse action where defendant
mistakenly classified plaintiff’s absences as “self sick,” but subsequently corrected the
errors), aff’d sub nom. Freelain v. Vill. of Oak Park, 888 F.3d 895 (7th Cir. 2018); Formella
v. Brennan, 817 F.3d 503, 516, n. 2 (7th Cir. 2016) (finding no adverse action where
defendant marked plaintiff absent without leave, but the timekeeping errors were corrected
and plaintiff received payment for that time); Dressler v. New York City Dep’t of Educ., No.
10 CIV. 3769 JPO, 2012 WL 1038600, at *8 (S.D. N.Y. Mar. 29, 2012) (“A corrected
administrative error without attendant deleterious effect does not constitute an adverse
employment action.”).
iii. Required Travel after Return from FMLA Leave
Byer also complains that after returning to work from FMLA leave, he “was ordered
to travel to western Nebraska, southern Nebraska, and elsewhere in addition to all the
accumulated work during his six (6) week absence.” (Filing 8, p. 6, ¶ 23) This was not an
adverse employment action. As the sole Employment Coordinator for Nebraska, Byer’s job
duties required travel to meet with veterans, training facilities, employers, and organizations
to explain the VA employment-related programs and help veterans find work or get work
meet her and Rebecca Luther at a convenience store; the encounter was brief and there was
no discussion. (Filing 37-2, pp. 28-29 (Byer Dep 111:9-114:15)
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experience. Supervisor Steele-Lufcy worked on Byer’s cases during his absence, but she left
Byer the case files where the National STAR Team had identified fiscal errors in his office
so that Byer could correct his errors or at least learn from them. About a month after Byer
returned from his FMLA leave, he traveled for an outreach activity in Kearney and also
traveled to meet a Veteran at his job site in the Omaha area. Byer received compensatory
time for the travel time outside of his work hours. This work, including travel, was clearly
part of Byer’s job duties to provide employment services to veterans. Byer never told his
supervisor that he was unable to travel, nor did his paperwork preclude travel after his FMLA
leave. (SMF 34-42)
Byer correctly points out that an increased workload that materially changes an
employee’s duties can constitute an adverse employment action. (Filing 38, pp. 36-37 (citing
Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 631 (8th Cir. 2016); Sellers v. Deere & Co.,
791 F.3d 938, 944 (8th Cir. 2015)). The Eighth Circuit in Kelleher found that the employee
did not experience an adverse employment action despite being switched from a stocker to
a cashier because the cashier position did not materially change the terms or conditions of
her employment. 817 F.3d at 631. In Sellers, the increase in the plaintiff’s workload was
significant—the employee was required to begin supervising three employees, took over job
responsibilities of another employee out on sick leave, was delegated additional projects and
given tasks at the last minute, and his part-time employee assistant was reassigned. 791 F.3d
at 944. Even with these significant workload increases, the Eighth Circuit found no adverse
employment action because the additional job duties did not constitute a material change in
the terms and conditions of the position. Id. In Byer’s case, none of the acts complained of
resulted in an increased workload, let alone one that materially changed the terms and
conditions of his position as the Employment Coordinator.
iv. July 8, 2016 Leave Without Pay
Byer alleges he was forced to take leave without pay (“LWOP”) in lieu of advanced
annual or sick leave on July 8, 2016. (Filing 8, ¶¶ 29-30) However, Byer’s leave records
establish that Byer requested and took two hours of paid FMLA sick leave, not LWOP, on
July 8, 2016. Steele-Lufcy testified that, as a manager, she does not require anyone to take
LWOP, but she has granted LWOP requests made by employees. Byer did not request or
receive LWOP on July 8, 2016. He requested 2 hours of sick leave and received 2 hours of
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sick leave. Even if Byer had requested advanced leave for July 8, 2016, it would have been
denied because an employee is not allowed advanced leave until his or her leave balances are
depleted. Byer had both sick leave and annual leave balances after he returned from his
6-week FMLA absence, so he was not eligible for advanced leave. (SMF 49-55)
v. July 26, 2016 Counseling Memorandum
Byer claims discrimination because of a counseling memo he was issued on July 26,
2016, notifying him that his quality of work was unacceptable. (Filing 8, ¶¶ 31, 38) As an
Employment Coordinator, Byer was required to meet the National Performance Standards
for his position, including the critical element of Quality of Work. (SMF 56-58) The Letter
of Counseling notified Byer that his performance for the period was 5.8 percent below the
National Performance Standard for Fiscal Accuracy. (SMF 69) Byer does not dispute the
accuracy of the analysis. (SMF 70) This does not constitute an adverse action.
“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.” Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058 (8th Cir. 2007) (finding that plaintiff
could not make out a prima facie case of discrimination because the terms and conditions of
the plaintiff’s employment were not affected); see also Singletary v. Missouri Dep’t of Corr.,
423 F.3d 886, 891 (8th Cir. 2005) (finding no adverse action where employee placed on
administrative leave pending investigation maintained his pay, grade, and benefits and, once
the investigation concluded, was promptly returned to his original position); Burchett v.
Target Corp., 340 F.3d 510, 518 (8th Cir. 2003) (finding that “negative performance review
is not in itself an adverse employment action,” unless “the employer subsequently uses that
review to alter the terms or conditions of employment to the detriment of the employee.”).
In the present case, the Letter of Counseling does not constitute and adverse action
because it did not affect Byer’s title, salary, benefits, status, or job responsibilities. Byer was
not placed on a Performance Improvement Plan (“PIP”). Instead, the Letter of Counseling
was beneficial because it helped Byer improve his performance and meet the National
Performance Standard by the end of the rating period, so he was rated Fully Successful.
(SMF 74-75).

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vi. July 29, 2016 Notice To Limit Workplace Interactions With Co-Worker
Finally, Byer alleges discrimination through a so-called “cease and desist” letter
issued on July 29, 2016, which limited his interaction with Rebecca Luther. (Filing 8, ¶¶ 33,
38). Luther was issued the same Notice to Limit Work Place Interactions with Co-Worker
on August 1, 2016. (SMF 86) The Notices directed Byer and Luther to limit their work place
interactions with each other to only those matters relative to the performance of their duties.
(SMF 85). The Notice did not adversely affect Byer’s title, salary, benefits, status, or job
responsibilities. (SMF 87) This was not an adverse employment action.
b. Byer Was Not Treated Differently Than Similarly Situated Employees
To create an inference of discrimination based upon disparate treatment, the plaintiff
must show he was treated differently than similarly situated persons who were not members
of the protected class. Faulkner, 906 F.3d at 732. “[T]he test for whether someone is
sufficiently similarly situated, as to be of use for comparison, is rigorous.” Beasley v. Warren
Unilube, Inc., 933 F.3d 932, 938 (8th Cir. 2019) (quoting Johnson v. Securitas Sec. Servs.
USA, Inc., 769 F.3d 605, 613 (2014) (en banc)). The plaintiff must establish “that he and the
employees outside of his protected group were similarly situated in all relevant respects.” Id.
This means that the plaintiff and the potential comparators must have “dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances.” Id.
Byer alleges as part of his sex discrimination claim that “[t]he female employees
supervised by Steele-Lufcy were not subjected to the same level of scrutiny and
performance.” (Filing 8, p. 12, ¶ 47) The evidence establishes this is not true. Steele-Lufcy
conducted individual meetings with Byer and all of the Counselors on a weekly basis to
review their cases and their performance standings. (SMF 60). She routinely issued a Letter
of Counseling to any VR&E employee who was not meeting the National Performance
Standards. (SMF 61). In 2016, Steele-Lufcy issued Letters of Counseling to three of the
Counselors because their performance fell below their National Performance Standard
measures. (SMF 64). In fact, she placed those three Counselors on PIP’s, but she did not
place Byer on a PIP because his performance improved after receiving the Letters of
Counseling. (SMF 64, 74).
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Byer also alleges he “was assigned extra work, principally involving travel, that
female Vocational Rehabilitation counselors were generally not assigned.” (Filing 8, p. 12,
¶ 47) However, Byer was the sole Employment Coordinator for Nebraska. The duties
assigned to Byer were different from the duties assigned to the Counselors. (SMF 10, 11).
Byer was required to travel around Nebraska as part of his job duties for Outreach activities
and to meet Veterans and employers. (SMF 34). The Counselors were not required to travel
to public information outreach or employment related events. (SMF 35). Because Byer and
the Counselors were not similarly situated as to their travel requirements or their duties to
veterans, no inference of discrimination arises.
Finally, Byer alleges that “Steele-Lufcy instigated conflict between Mr. Byer and his
female co-workers,” and “[h]e was disciplined thereafter and the female co-workers were
not.” (Filing 8, p. 12, ¶ 47) Presumably, this is a reference to the Notice to Limit Work Place
Interactions with Co-Worker, as Byer alleges in connection with his retaliation claim that no
other employee has been given a “cease and desist” order. (Filing 8, ¶¶ 58, 60). To the
contrary, the undisputed evidence establishes that Rebecca Luther received the same
directives as Byer instructing her to limit her interactions with Byer to only those matters
relative to the performance of her official duties. (SMF 84-86). Steele-Lufcy has not issued
such a Notice to any other employees because no other employees had the amount of conflict
that existed between Byer and Luther. (SMF 88).
Defendant’s unrefuted evidence that shows that Byer was not treated differently than
similarly employees with respect to these alleged adverse employment actions. A plaintiff
facing a summary judgment motion cannot “get to a jury without ‘any significant probative
evidence tending to support the complaint.’” Buettner v. Arch Coal Sales Co., 216 F.3d 707,
718 (8th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “To
avoid summary judgment, the non-movant must make a sufficient showing on every essential
element of its claim on which it bears the burden of proof.” Id.
2. Defendant Has Offered Legitimate, Non-Discriminatory Reasons for Actions
“After a plaintiff makes a prima facie showing of liability, the employer must produce
evidence that it had a legitimate, nondiscriminatory reason for its actions.” Eferebo v. Prime
Therapeutics, LLC, No. 8:09CV406, 2011 WL 13190195, at *2 (D. Neb. Mar. 15, 2011)
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(quoting Lyoch v. Anheuser-Busch Companies, Inc., 139 F.3d 612, 614 (8th Cir. 1998)). “The
burden to articulate a nondiscriminatory justification is not onerous, and the explanation need
not be demonstrated by a preponderance of the evidence.” Torgerson, 605 F.3d 584, 596 (8th
Cir. 2010) (quoting Floyd v. State of Mo. Dept. of Soc. Servs., Div. of Family Servs., 188 F.3d
932, 936 (8th Cir. 1999)).
As already described in the statement of material of facts, Defendant has articulated
legitimate, non-discriminatory reasons for having Byer rejoin the April 28, 2016 team
meeting to discuss the counselors’ concerns about files being returned to them, for requiring
Byer to travel to Kearney for an outreach event on July 7, 2016, and to meet with a veteran
at his job site in Omaha on July 8, 2016, for not allowing Byer to take advanced leave on July
8, 2016, for issuing a counseling memo on July 26, 2016, after Byer was determined not to
be meeting the national performance standard for fiscal accuracy, and for issuing Byer a
notice to limit his interactions Rebecca Luther on July 29, 2016.
Thus, even if Byer could make out a prima facie case of age, sex, or disability
discrimination, he must additionally “show that the employer’s actions were a pretext for
discrimination.” Lyoch, 139 F.3d at 614. To establish pretext, a plaintiff must “substantiate
[his] allegations with sufficient probative evidence [that] would permit a finding in [his]
favor based on more than mere speculation, conjecture, or fantasy.” Eferebo, 2011 WL
13190195, at *2 (quoting Putman, 348 F.3d at 733-34).
3. Byer Cannot Establish Pretext
Byer has offered no evidence showing that Defendant’s reasons for the actions he
complains about were pretextual. Byer’s subjective beliefs that he was discriminated against
because of his age, sex, or disability are insufficient to show pretext. See Wogou v. Omaha
Pub. Power Dist., No. 8:10CV291, 2012 WL 1677420, at *6 (D. Neb. May 14, 2012); see
also Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514, 516 (8th Cir. 2011)
(stating standard of review and noting that to prove pretext, a plaintiff must show that
employer’s stated reason was false and that age was the real reason for the adverse
employment action); Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639, 643 (8th Cir. 2008)
(holding that a showing of pretext requires more than merely discrediting the asserted reason
for terminating an employee; circumstances must permit a reasonable inference of
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discriminatory animus); Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 917
(8th Cir.2006) (plaintiff’s discrimination claim failed when her evidence of pretext was
“entirely speculative”).
4. Byer Was Not Subjected to a Hostile Work Environment
Byer alleges that “demeaning, disrespectful and harassing conduct by his female
supervisor was a regular component of [his] day-to-day work environment,” and that his
“disabilities were exacerbated by the harassment he suffered at the hands of his co-workers
and supervisor Steele-Lufcy.” (Filing 8, pp. 11, 13, ¶¶ 44, 54) Although not alleged in his
amended complaint, Byer also asserts in his brief that “throughout his employment Mr.
Byer’s co-workers always called [him] ‘senior citizen,’ (Byer Dep. 227:7- 228:22).” (Filing
38, p. 40) To the extent Byer is attempting to assert a hostile work environment claim,
whether because of his age, sex, or disability, he has not demonstrated that there is a factual
basis for such a claim.
“Hostile work environment harassment 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.’” Banks v. Deere, 829 F.3d 661, 666 (8th Cir. 2016) (citing Jackman, 728 F.3d
at 804). “This demanding standard requires extreme conduct rather than merely rude or
unpleasant conduct.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014)
(internal quotations and citation omitted). “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 v. Jewell, 831 F.3d 1051, 1057 (8th Cir. 2016).
To prevail on a hostile work environment claim, Byer must present evidence “that he
is a member of the class of people protected by the statute, that he was subject to unwelcome
harassment, that the harassment resulted from his membership in the protected class, and that
the harassment was severe enough to affect the terms, conditions, or privileges of his
employment.” Moses v. Dassault Falcon Jet-Wilmington Corp, 894 F.3d 911, 921-22 (8th
Cir. 2018) (ADA and ADEA claims); Mahler v. First Dakota Title Ltd. P’ship, 931 F.3d 799,
806 (8th Cir. 2019) (Title VII claim). The final element includes both objective and
subjective components: In order to show that the harassment affected a term or condition of
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employment, “the conduct must be sufficiently severe or pervasive to create an environment
that a reasonable person would find hostile or abusive and that actually altered the conditions
of the victim’s employment.” Hales v. Casey’s Mktg. Co., 886 F.3d 730, 735 (8th Cir. 2018)
(quoting Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997)). Courts are not
required to delve into a plaintiff’s personal background when assessing the objective severity
of harassment. Id., at 736 (holding district court did not abuse its discretion in excluding
evidence of plaintiff’s previous sexual assault and her related therapy as being irrelevant to
her Title VII hostile work environment claim).
Byer must show that he was “singled out” because of his gender, age, or disability.
Palesch v. Missouri Comm’n on Human Rights, 233 F.3d 560, 567 (8th Cir. 2000). There is
no competent evidence to show that the alleged harassment by Byer’s supervisor, SteeleLufcy, or his co-worker, Rebecca Luther, was motivated by discriminatory animus. Byer
testified there were no comments made by any of his co-workers to indicate that his gender
was the basis for their disagreements, and no comments by Steele-Lufcy to indicate that his
gender was the reason she was scrutinizing his performance or ordering him to have no
contact with Luther. (Filing 37-2, p. 58 (Byer Dep 230:9-231:2)) Byer could only speculate
that gender may have been a factor “[b]ecause [he] was a male in a more female-dominant
environment.” (Id. (Byer Dep 230: 3-8)) Byer mentioned during his deposition that his coworkers would call him “senior citizen,” but said this was done “[i]n gist,” and admitted,
“I even call myself a senior citizen.” 53 (Id., at p. 57 (Byer Dep 227:1-228:1)) An employee’s
admission that conduct was not abusive is fatal to the employee’s workplace harassment
claim. See Mahler, 931 F.3d at 807 (citing Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040,
1047-48 (8th Cir. 2005)). With respect to his disability, Byer testified, “it seemed like
everything was used in that perspective of the things that really annoyed me to make me feel
bad or ashamed or feel not a part of.” (Filing 37-2, p. 58 (Byer Dep 232:11-22)) Again, this
is only speculation and conjecture, which is not sufficient to create a material issue of fact
concerning whether he was subjected to workplace harassment because of his membership
in a protected class. See Palesch, 233 F.3d at 567-68; Kneibert v. Thomson Newspapers,
Mich., Inc., 129 F.3d 444, 455 (8th Cir.1997) (party opposing summary judgment must

53

At the time of the events alleged in his amended complaint, Byer was 61 years of
age and three of the six counselors were 58 or 60 years of age. (SMF # 8)
-46-

provide sufficient probative evidence to permit a verdict in its favor rather than relying on
conjecture and speculation).
Even if there were sufficient evidence that the alleged harassment resulted from
Byer’s membership in a protected class, the offending conduct, when considered altogether,
did not rise to the level of severity required to support a hostile work environment claim. “To
decide whether a work environment is objectively offensive, [the court] examine[s] all the
circumstances, including the frequency of the discriminatory conduct, its severity, whether
it is physically threatening or humiliating or a mere offensive utterance, and whether the
conduct unreasonably interfered with the employee’s work performance.” See Clay v. Credit
Bureau Enterprises, Inc., 754 F.3d 535, 541 (8th Cir. 2014) (quoting Singletary, 423 F.3d
at 892-93) A reasonable person would not perceive Byer’s work environment as hostile. See
id. (African-American employee was not subjected to sufficiently severe or pervasive racebased harassment based on 30 alleged incidents, including racially derogatory comments, and
disparate discipline, to support hostile work environment claim).
B. Retaliation Claim
1. Byer Cannot Establish a Prima Facie Case of Retaliation
Byer claims that after contacting the EO Office on June 17, 2016, and making a
charge against his co-worker, Rebecca Luther, he was retaliated against when the VA issued
him a letter of warning on July 26, 2016,54 followed by a “cease and desist” order on July 29,
2016. (Filing 8, p. 14, ¶¶ 59, 60).55

54

There were, in fact, three Letters of Counseling issued to Byer: on July 14, July 26,
and September 23, 2016. (SMF 67, 69, 71)
55

In the amended complaint, Byer also claims retaliation when his supervisor,
knowing of his disabilities, “sent him into a confrontational meeting where other co-workers
were attacking him.” (Id., ¶ 61). The only evidence of such a meeting, however, is the team
meeting that took place on April 28, 2016. Byer admits that “[a]t the time of the April 2016
Team Meeting, Byer had not engaged in any protected activity and, therefore Supervisor
Steele-Lufcy could not have retaliated against him.” (Filing 38, p. 42)
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To establish a prima facie case of retaliation, Byer must show that (1) he engaged in
a statutorily protected activity, (2) he suffered an adverse action, and (3) there was a causal
connection between the adverse action and the protected activity. Bunch v. Univ. of Arkansas
Bd. of Trustees, 863 F.3d 1062, 1069 (8th Cir. 2017) (Title VII retaliation); Stewart v. Indep.
Sch. Dist. No. 196, 481 F.3d 1034, 1042 (8th Cir. 2007) (ADEA and ADA retaliation).
Defendant does not dispute that Byer engaged in a protected activity by making an informal
complaint of discrimination on June 17, 2016, but argues that Byer cannot prove the second
and third elements. (Filing 35, p. 37)
a. Byer Did Not Suffer an Adverse Employment Action
Prior to the Supreme Court’s 2006 Burlington Northern decision, the Eighth Circuit
took a relatively restrictive approach to the phrase “adverse employment action,” holding that
there needed to be “tangible change[s] in duties or working conditions that constituted a
material employment disadvantage.” AuBuchon v. Geithner, 743 F.3d 638, 642 (8th Cir.
2014) (quoting Manning v. Metro. Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir.1997)). In
its Burlington Northern decision, the Supreme Court characterized this standard as the
“ultimate employment decision” standard, limiting retaliatory conduct to acts like “hiring,
granting leave, discharging, promoting, and compensating.” 548 U.S. at 60 (quotations,
alterations, and citations omitted). The Burlington Northern Court articulated a new objective
standard for determining what constitutes an “adverse employment action.” Id. at 68. The
Court held that an employee demonstrating an adverse employment action must “show that
a reasonable employee would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 67 (quotations and citations omitted).
“[A]n adverse employment action must be material, not trivial.” AuBuchon, 743 F.3d
at 644 (citing Burlington Northern, 548 U.S. at 68). The Eighth Circuit has held that “[t]o
avoid the triviality pitfall, the retaliation must produce some ‘injury or harm.’” Id. (quoting
Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 644 (8th Cir. 2009)).
As a result, we have determined that commencing performance evaluations,
sending critical letters that threatened discipline, falsely reporting poor
performance, and failing to mentor and supervise employees did not establish
a prima facie case of retaliation absent materially adverse consequences to the
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employee. [Littleton, 568 F.3d at 644] (collecting cases). In other postBurlington Northern cases, we have determined as a matter of law that certain
employer actions were not materially adverse because they did not result in
sufficient “injury or harm” to the employee in question. See Lisdahl [v. Mayo
Found., 633 F.3d 712, 721-22 (8th Cir. 2011)] (threats pertaining to job
security, denial of vacation time, and public ridicule); Sutherland v. Mo. Dept.
of Corr., 580 F.3d 748, 752 (8th Cir. 2009) (reclassification of performance
from “highly successful” to “successful” not accompanied by reduction in pay,
salary, benefits, or prestige); Recio v. Creighton Univ., 521 F.3d 934, 939-40
(8th Cir. 2008) (extended duration of employer-mandated counseling, failure
to notify of job vacancy, changes in work schedule, denial of opportunity to
teach certain classes, maintenance of cold temperature in office, and faculty
shunning); Gilbert [v. Des Moines Area Cmty. Coll., 495 F.3d 906, 917-18 (8th
Cir. 2007) (demotion of provost for plagiarizing, letter directing provost to
improve performance, prevention of selecting guest speaker, and assignment
to open cubicle); Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 929 (8th Cir.
2007) (failure to provide training and orientation, denying access to work
tools, failure to reinstate to prior position, addition of negative reports and
reprimands to personnel file, exclusion from meetings, and denial of training).
Importantly, we have also determined that a supervisor’s warnings that “did
not threaten termination or any other employment-related harm” do not
constitute material adverse employment action. Hill v. City of Pine Bluff, Ark.,
696 F.3d 709, 715 (8th Cir.2012).
Id. In AuBuchon, the Eighth Circuit determined that while a supervisor’s warnings to the
plaintiff about not engaging in sexual harassment “were reckless and inconsiderate, they ...
did not result in sufficient ‘injury or harm’ because he never ‘threaten[ed] termination or any
other employment-related harm.’” Id. (quoting Hill, 696 F.3d at 715). The Court also found
the plaintiff’s other complaints about accelerated work deadlines, extra work assignments,
and insufficient performance reviews, “whether considered individually or collectively, fail
to rise to the level of unlawful retaliation because they constitute ‘petty slights or minor
annoyances that often take place at work and that all employees experience.’” Id. at 645
(quoting Burlington Northern, 548 U.S. at 68).
A reasonable employee would not have found the Letters of Counseling or the Notice
to Limit Interactions with Co-Worker to be materially adverse actions. Neither of these
actions caused any “injury or harm” to Byer. In fact, the Letter of Counseling proved
beneficial because Byer’s performance improved thereafter, allowing him to be rated as
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“fully successful” on his 2016 annual review. (SMF 75) Byer received an increase in salary
and no decrease in benefits. (SMF 92) While Byer claims to have been “stressed” by the
Letter of Counseling, his three co-workers who also received Letters of Counseling around
the same time (SMF 64) undoubtedly felt the same. The so-called “cease and desist” order
of July 29, 2016, was not a disciplinary action, but was consistent with a request Byer
submitted on June 26, 2016, in connection with his informal discrimination charge, that he
receive a “job modification or accommodation to limit face to face interaction with Rebecca
(Luther).” (SMF 90)
b. There Was No Causal Connection
To establish a causal connection, Byer must prove that “the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the employer.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (Title VII). The ADEA
and the Rehabilitation Act (applying ADA principles) likewise require a showing of “butfor” causation. See Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (ADEA);
Hustvet v. Allina Health Sys., 910 F.3d 399, 412 (8th Cir. 2018) (ADA). It is not enough that
retaliation was a “substantial” or “motivating” factor in the employer’s decision. Blomker v.
Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016).56
Byer cannot show that the Letter of Counseling would not have been issued in the
absence of Byer’s protected activity. It is undisputed that Supervisor Steele-Lufcy had an
individual meeting with each of the Counselors and with Byer on a weekly basis during 2016
to review their cases and their performance standings, and that she routinely issued Letters
of Counseling to employees who were not meeting the National Performance Standard for
fiscal accuracy or other measurement. (SMF 60, 61). It is also undisputed that Byer was not
meeting the National Performance Standard on each of the dates he was issued a Letter of
Counseling. (SMF 67, 69, 71)

56

The Eighth Circuit applies “the familiar McDonald Douglas burden-shifting
analysis even when the applicable standard of proof requires a showing of but-for causation.”
Donathan v. Oakley Grain, Inc., 861 F.3d 735, 740 (8th Cir. 2017); see Shirrell v. St. Francis
Med. Ctr., 793 F.3d 881, 888 (8th Cir. 2015) (applying the McDonnell Douglas framework
to a Title VII retaliation claim using the but-for standard articulated in Nassar.).
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Similarly, Byer cannot show that the Notice to Limit Interactions with Co-Worker
would not have been issued if he had not made a charge of discrimination against Rebecca
Luther on June 17, 2016. The evidence shows that Byer and Luther had a history of
personality conflicts. (SMF 76) Steele-Lufcy had tried a number of ways to resolve their
conflict, including holding the discussion at the April 28, 2016 team meeting, meeting with
Byer and Luther jointly and individually, and responding to emails and phone calls from
Byer and Luther in which they complained about the other person. (SMF 77). Steele-Lufcy
also offered to mediate on several occasions, but Byer refused. (SMF 78) On July 12, 2016,
Byer contacted Steele-Lufcy to complain that Luther had come to his office and was verbally
aggressive. (SMF 81) On or about July 22, 2016, and in emails over the next few days,
Steele-Lufcy again offered to mediate a meeting to address the conflicts between Byer and
Luther, but Byer was not willing to meet. (SMF 82) Sometime between July 26 and July 28,
2016, Byer called Steele-Lufcy about another incident with Luther, saying he “could not take
it anymore.” This was followed immediately by a call from Luther complaining about Byer
(SMF 83) It was at this point in time that Steele-Lufcy, in consultation with Human
Resources, decided to limit Byer’s and Luther’s contact with each other to work-related
matters. (SMF 84)
“Generally, more than a temporal connection between the protected conduct and the
adverse employment action is required to present a genuine factual issue on retaliation.”
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004) (quoting Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (en banc)). While plaintiffs may
use circumstantial evidence to prove causation, “[t]he more time that elapses between the two
events ... the weaker the inference of causation.” Jensen v. IOC Black Hawk Cty. Inc., 745 F.
App’x 651, 654 (8th Cir. 2018) (quoting Robinson v. Am. Red Cross, 753 F.3d 749, 756 (8th
Cir. 2014)). “In such cases a plaintiff must present additional evidence of a causal link, which
can include ‘escalating adverse and retaliatory action.’” Id. (quoting Robinson, 753 F.3d at
756). In the present case, as in Jensen, there is no such evidence; “the record only indicates
that management attempted to de-escalate any hostility among employees that arose from
[the plaintiff’s] complaint” of discrimination against a co-worker. Id. (affirming district
court’s grant of summary judgment in favor of employer). See also Brunckhorst v. City of
Oak Park Heights, 914 F.3d 1177, 1184-85 (8th Cir. 2019) (“Even if Brunckhorst had not
complained of discrimination until [five days before his termination], a temporal connection
by itself is not sufficient to establish a causal connection. Instead, the City proceeded to work
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with Brunckhorst after that date. It did not terminate his employment until he continuously
rejected the City’s proposed accommodations and did not return to work. His retaliation
claim thus fails.”) (citation omitted).
2. Defendant Has Offered Legitimate, Non-Retaliatory Reasons for Actions
As outlined above, Byer’s supervisor had legitimate, non-retaliatory reasons for
issuing the Letters of Counseling and Notice to Limit Interactions with Co-Worker. Thus,
even if Byer could establish a prima facie case of retaliation, by making a sufficient showing
an adverse action and causation, to avoid summary judgment he must also demonstrate that
the proffered reasons are pretextual. See Mahler, 931 F.3d at 805.
3. Byer Cannot Establish Pretext
“While the proof necessary to establish a prima face case is minimal, [Byer] must
present ‘more substantial evidence’ to establish pretext because ‘evidence of pretext ... is
viewed in light of the employer’s justification.’” Id. (quoting Gibson v. Geithner, 776 F.3d
536, 540 (8th Cir. 2015)). Byer must “present evidence that (1) creates a question of fact as
to whether [the employer]’s proffered reason was pretextual and (2) creates a reasonable
inference that [the employer] acted in retaliation.” Lacey v. Norac, Inc., 932 F.3d 657, 660
(8th Cir. 2019) (quoting Smith v. Allen Health Systems, Inc., 302 F.3d 827, 833 (8th Cir.
2002)). He must show that the employer’s proffered reason was “unworthy of credence.”
Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005) (quoting Smith v. Allen
Health Sys., 302 F.3d 827, 834 (8th Cir. 2002)). Byer has failed to make such a showing.
Defendant’s evidence establishes that Steele-Lufcy determined in late April or early
May 2016 that Byer was not meeting the National Performance Standard for fiscal accuracy
regarding EAA payments, and was prepared to issue a Letter of Counseling except for the
fact that Byer was on FMLA leave from April 29 to June 10, 2016. (SMF 65, 66) That Byer
filed a discrimination charge against Luther before the Letter of Counseling was issued is a
“mere coincidence in timing.” Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 436–37
(8th Cir. 2016) (quoting Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th
Cir. 2002)). Defendant’s evidence also establishes that Steele-Lufcy’s efforts at resolving the
conflict between Byer and Luther pre-dated the discrimination charge, and that the “cease
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and desist” order was issued within days after both employees again complained to her about
one another’s conduct. Byer even alleges in his amended complaint, and testified at his
deposition, that Steele-Lufcy had encouraged him to file the EEO charge against Luther.
(Filing 8, p. 14, ¶ 58; Filing 37-2, pp. 40-41 (Byer Dep 159:1-162:6)
V. CONCLUSION
Byer cannot establish a prima facie case of discrimination or retaliation under Title
VII, the ADEA, or the Rehabilitation Act. In addition, Defendant has offered legitimate,
non-discriminatory and non-retaliatory reasons for the VA’s actions, which Byer cannot
show were pretexts for discrimination or retaliation.
Accordingly,
IT IS ORDERED:
1.

Defendant’s motion for summary judgment (Filing 33) is granted, and
Plaintiff’s action is dismissed with prejudice.

2.

Judgment shall be entered by separate document.

DATED this 2nd day of October, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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