Kennedy v. McDonald

Filing 68

MEMORANDUM AND ORDER - The Motion for Summary Judgment, ECF No. 48 , filed by Defendant David Shulkin is granted. This action is dismissed, with prejudice. The Motion to Strike, ECF No. 62 , filed by Defendant David Shulkin is denied as moot. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

TERRY KENNEDY,
Plaintiff,

8:15CV389

vs.
DAVID J. SHULKIN, MD, Secretary,
Department of Veterans Affairs;

MEMORANDUM
AND ORDER

Defendant.

This matter is before the Court on the Motion for Summary Judgment, ECF No.
48, and the Motion to Strike, ECF No. 62, filed by Defendant David Shulkin (“Shulkin”).
For the reasons stated below, the Motion for Summary Judgment will be granted and
the Motion to Strike will be denied as moot.
BACKGROUND
Terry Kennedy (“Kennedy”), the Plaintiff and an African-American, began working
as a Police Officer for the Police Service of the Veterans Affairs Medical Center in
Omaha, Nebraska (“Omaha VA”), in March 2009. In January 2011, Kennedy was
promoted from Police Officer to Sergeant, and in January 2012, he was promoted from
Sergeant to Lieutenant. The Police Service Command Staff was composed of the Chief
of Police, Deputy Chief of Police, and two Captains. As one of four Lieutenants,
Kennedy served as a first-line supervisor to the Sergeants and Police Officers assigned
to his shift. Lieutenants also were generally responsible for planning daily duty
schedules and ensuring that their shifts were sufficiently staffed to meet the minimum
coverage requirements of the Omaha VA.

In May 2013, the Chief of Police, Mark Kula, was removed from his position for
medical reasons. Thereafter, the Deputy Chief of Police, Ron Feather (“Feather”),
became the Acting Chief of Police, and Captain Jason Brdicko (“Brdicko”) became the
Acting Deputy Chief of Police. At that time, the Omaha VA Police Service was operating
with four rotating twelve-hour shifts—two day shifts (6 a.m. to 6 p.m.) and two night
shifts (6 p.m. to 6 a.m.). Roughly every three months, the officers on the day shifts
switched to the night shifts and the officers on the night shifts switched to the day shifts.
One Lieutenant was assigned to each of the four shifts and, as of May 2013, Kennedy
was assigned a night shift.
Throughout 2013 and 2014, the Police Service struggled with a staffing shortage
after job classification authority was removed from local VA human resources offices to
the Centralized Classification Unit (“CCU”) in Minneapolis, Minnesota. There were
several vacancies at the Police Service in 2013 and 2014, but hiring new officers was
given low priority by the CCU. As a result, it took up to eight months for the Police
Service to get a classified position description from the CCU, which made it difficult to fill
vacancies.
Kennedy was unhappy with many of the decisions made, and actions taken, by
his supervisors, Feather and Brdicko, between May 2013 and February 2014. He
resigned from his position on March 22, 2014, and accepted another position with the
Office of Security and Law Enforcement in Little Rock, Arkansas.
Proposed Changes to Kennedy’s Shift, Hours, and Schedule
On July 8, 2013, Captain Ross Venditte sent out an email with new shift
assignments and Kennedy was again assigned to the night shift, even though his shift
2

was scheduled to rotate to the day shift on or about July 8. His shift was also assigned
one less officer than the other three shifts. However, the new assignments were never
implemented. Instead, Feather and Brdicko proposed a permanent schedule that
consisted of three ten-hour shifts, rather than four rotating twelve-hour shifts. The three
shifts included a day shift (6 a.m. to 4 p.m.), a swing shift (11 a.m. to 9 p.m.), and a
night shift (8 p.m. to 6 a.m.). The proposal was put to a vote and the officers approved
the three-shift schedule which was implemented in early August. At that time, the Police
Service had only three Lieutenants on staff and each was able to choose a shift based
on seniority. Kennedy was given the swing shift, his second choice. Due to staffing
shortages, however, the swing shift was given one less officer than the other shifts,
because the swing shift overlapped with the other shifts on all but four hours. Kennedy
was unhappy about the initial proposal to extend his tour on the night shift and the
decision to provide the swing shift with fewer officers.
Even after switching to the three-shift schedule, the Police Service continued to
have staffing problems, particularly on the swing shift. In early November 2013, Feather
and Brdicko proposed altering the swing shift hours to 2 p.m. to 12 a.m. in order to
ensure minimum coverage. The altered hours were set to begin on December 2, 2013,
but this proposal was not implemented after some of the swing-shift officers expressed
concerns.
On February 4, 2014, Feather and Brdicko suggested another change to
Kennedy’s schedule in order to address persistent staffing problems. They decided to
change Kennedy’s days off from Saturday, Sunday, and Monday, to Tuesday,
Wednesday, and Thursday. This schedule change, however, also was not implemented.
3

Kennedy contacted an Equal Employment Opportunity (“EEO”) Counselor on February
5, 2014, regarding his concerns that Feather and Brdicko were discriminating against
him based on his race and retaliating against him for prior complaints to an EEO
counselor.
Vacant Captain Position
When Brdicko became Acting Deputy Chief of Police in May 2013, Feather
decided to have the Lieutenants on the day shift fill Brdicko’s vacant Captain position
because it was a day shift position. This arrangement lasted for one month before
Feather decided that he, Brdicko, and the other permanent Captain, Ross Venditte,
would cover the vacant Captain position’s responsibilities, rather than the Lieutenants.
Kennedy was on the night shift and not given an opportunity to rotate into the Captain
position during that time. On July 22, 2013, Kennedy contacted an EEO counselor
because he was not promoted to Acting Captain and not temporarily rotated into the
vacant Captain position.
Off-Duty, Part-Time Employment
At some point “[i]n the fall of 2013,” Kennedy and several other Omaha VA Police
Service officers were terminated from their part-time employment as security guards at
No Frills Supermarket after Feather called the store manager to inquire about their job
duties there. Def.’s Br. Summ. J., ECF No. 51, Page ID 549. Feather claims that the
store manager explained the security jobs required the authority to enforce state and
city ordinances on No Frills Supermarket property, as well as the use of federally issued
police credentials. Feather claims he then informed the store manager that VA Police
Officers have no authority to enforce state law or city ordinances and that it is contrary
4

to VA policy for them to use their police credentials in their employment with No Frills
Supermarket. Kennedy disputes Feather’s statement and claims that Feather sought to
have him fired for racial and retaliatory purposes. Kennedy Aff., ECF No. 59-1, Page ID
647 ¶ 7 & Page ID 653 ¶ 28. Kennedy again contacted an EEO counselor, on
December 5, 2013, regarding Feather’s contact with his part-time employer.
CCTV and Eleventh Floor Access
Also in the fall of 2013, Feather sent an email to all Lieutenants and Sergeants
instructing them to stop using an office located on the eleventh floor of the Omaha VA
facility. On November 7, 2013, Feather asked that Kennedy and other officers return
their keys to that office, but Kennedy didn’t return his keys and continued to use the
office. Accordingly, Brdicko continued to send out emails instructing officers to stop
using the eleventh floor office.
On January 31, 2014, Feather temporarily suspended access to the closedcircuit television (“CCTV”) for all Lieutenants, Sergeants, and Police Officers to
investigate potential violations of the CCTV policy. After an investigation was
conducted, access was restored to all Lieutenants, Sergeants, and Police Officers.
Kennedy perceived Feather’s decision to revoke eleventh floor and CCTV access as
both discriminatory and retaliatory.
Miscellaneous Conflicts
On one occasion, Kennedy reported another officer to the Command Staff for
threatening a co-worker. In his affidavit Kennedy stated “I believe that Acting Chief
Feather told [the reported officer] about my report,” and that the reported officer became
“insubordinate” toward Kennedy as a result. Kennedy Aff., ECF No 59-1, Page ID 651 ¶
5

22. Kennedy claims that Feather then deliberately chose not investigate the reported
officer in an effort to discriminate and retaliate against Kennedy. He further claims
Feather and Brdicko regularly refused to communicate with him and that on another
occasion, they “barg[ed] into an office where [Kennedy] was conducting training with
[another officer]” in an effort to “gather dirt” on him. Kennedy Aff., ECF No. 59-1, Page
ID 648 ¶ 9. Kennedy also cites an instance on February 6, 2014, where Brdicko
“slandered” him by “calling [him] incompetent in front of other officers.” Kennedy Aff.,
ECF No. 59-1, Page ID 649 ¶ 15.
Police Service Credentials and Firearms Authority
On February 6, 2014, Kennedy saw a physician due to stress he was
experiencing at work. After the visit to his physician, Kennedy called Captain Ross
Venditte and informed him that he would not be returning to work for 30 days because
he had been placed under a doctor’s care. Feather then suspended Kennedy’s firearms
authority and credentials. Brdicko also sent Kennedy a notice alerting him of the
decision and that Kennedy would need to provide a physician’s statement confirming his
fitness to return to work. Although Kennedy acknowledges that VA policy grants the
Chief of Police the discretion to suspend an officer’s firearm credentials, he asserts the
policy was selectively enforced in order to discriminate and retaliate against him.
Kennedy never returned to the Omaha VA Police Service after February 6, 2014.
Instead, he officially resigned on March 22, 2014, to accept employment at the Office of
Security and Law Enforcement in Arkansas. He applied for this position in October of
2013.

6

Kennedy claims race discrimination, retaliation, and hostile work environment
under Title VII, citing the foregoing decisions and courses of action taken by Feather
and Brdicko between May 2013 and February 2014. Shulkin’s Motion for Summary
Judgment argues that Kennedy’s race discrimination and retaliation claims should be
dismissed because Kennedy has provided no evidence of a materially adverse
employment action. Shulkin also argues that Kennedy’s hostile work environment claim
should be dismissed because the evidence does not show that he was subjected to
race-based harassment.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for
summary judgment, the Court will view “the record in the light most favorable to the
nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d
920, 923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof
at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th
7

Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving
party need not produce evidence showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting
Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged
by ‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s
case.” St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001)
(quoting Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine i ssue for
trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643
F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual
dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson
State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of
Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at
1042). Otherwise, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,” there is no “genuine issue of
8

material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076
(quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION
Title VII of the Civil Rights Act prohibits employment discrimination on the basis
of race. 42 U.S.C. § 2000e-2(a). Title VII also prohibits retaliation against an employee
“because he has made a charge, testified, assisted, or participated in . . . an
investigation, proceeding, or hearing under 42 U.S.C. § 2000e-3(a).
“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 Douglas1 burden-shifting framework.”
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). Similarly,
“[d]irect evidence of retaliation” requires “a specific link between a materially adverse
action and the protected conduct, sufficient to support a finding by a reasonable fact
finder that the harmful adverse-action was in retaliation for the protected conduct.” Lors
v. Dean, 746 F.3d 857, 865 (2014). “‘[D]irect refers to the causal strength of the proof,
not whether it is ‘circumstantial’ evidence.” Guimaraes v. SuperValu, Inc., 674 F.3d 962,
972 (8th Cir. 2012).

1

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

9

Absent 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 the plaintiff establishes a prima facie case, “a presumption of
discrimination [or retaliation] arises and the burden shifts to [the defendant] to present
evidence of a ‘legitimate, nondiscriminatory reason for’ its adverse employment action.”
Banks v. Deere, 829 F.3d 661, 666 (8th Cir. 2016) (quoting McDonnell Douglas, 411
U.S. at 802). “If [the defendant] meets that burden, the presumption disappears and [the
plaintiff] must prove [the defendant’s] proffered justification is merely a pretext for
discrimination.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir.
2015).
I. Race Discrimination
Kennedy has provided no direct evidence of race discrimination. There are no
racially discriminatory statements, comments, remarks, or other evidence indicating a
“specific link” between racial animus and any of the decisions made by Feather or
Brdicko. Shirrell, 793 F.3d at 887. Although Kennedy offers statements from his
coworkers, Scarlet Schwab and Korey Jones, that they believed Feather and Brdicko
made decisions with racial animus, their statements are conclusory and lack detail.
Neither Kennedy’s affidavit nor his coworkers’ affidavits 2 draw a specific link between a
particular course of action and racial animus. Kennedy must, therefore, satisfy the

2

The Court also notes that Officer Korey Jones’s statements are both unsigned and unsworn. As
such, Kennedy cannot rely on Korey Jones’s statements to oppose a motion for summary judgment.
Risdal v. Nixon, 589 Fed. App’x 801, 803 (8th Cir. 2014) (unsworn statements may not be relied upon by
the district court at the summary judgment stage).

10

McDonnell Douglas burden-shifting framework by first establishing a prima facie case of
race discrimination.
“To establish a prima facie case for race discrimination, 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 (for example, similarly situated employees outside the
protected class were treated differently).” Gibson v. Am. Greeting Corp., 670 F.3d 844,
853-54 (8th Cir. 2012). Shulkin contends, and the Court agrees, that Kennedy has
presented no evidence of an adverse employment action.
“An adverse employment action is defined as a tangible change in working
conditions that produces a material employment disadvantage.” Jones v. City of St.
Louis, Mo., 825 F.3d 476, 480 (8th Cir. 2016) (quoting Jackman v. Fifth Judicial Dist.
Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013)). This includes, but is not limited
to, “termination, cuts in pay or benefits, and changes that affect an employee’s future
career prospects, as well as circumstances amounting to a constructive discharge.” Id.
However, “minor changes in duties or working conditions, even unpalatable or
unwelcome ones, which cause no materially significant disadvantage, do not rise to the
level of an adverse employment action.” Jackman, 738 F.3d at 804.
Kennedy was not terminated or suspended, neither his pay nor his benefits were
reduced, and there was no significant change in his job duties or responsibilities.
Although Kennedy points out that he was, at some point, ordered to focus on managing
his swing shift scheduling rather than conducting training exercises and drafting
departmental memos, there is no evidence that such an order amounted to anything
11

more than a minor change in duties. See id. (explaining minor changes in job duties do
not constitute materially adverse employment action). Kennedy, however, maintains that
he suffered an adverse employment action because he was constructively discharged.
Pl.’s Br. Summ. J., ECF No. 58, Page ID 631 (stating Kennedy “was forced to switch
jobs as a result of the extreme mental distress he went through”).
“Constructive discharge occurs when an employer deliberately renders the
employee’s working conditions intolerable, thereby forcing him to quit,” and “[j]ust like
any other discharge, a constructive discharge is an adverse employment action.”
Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007) (applying
constructive discharge analysis to the materially adverse employment action element of
Title VII race discrimination claim). “To prove a case of constructive discharge, a plaintiff
must show (1) a reasonable person in his situation would find the working conditions
intolerable, and (2) the employer intended to force him to quit.” Id. The intent
requirement may be satisfied with “evidence that [the plaintiff’s] resignation was a
reasonably foreseeable consequence of the employer’s actions.” Quinn v. St. Louis
Cty., 653 F.3d 745, 752 (8th Cir. 2011).
Kennedy argues the following courses of action taken by Feather and Brdicko
collectively resulted in his constructive discharge: suspending his firearms authority and
credentials, proposing to extend his tour on the night shift, proposing to alter his hours
and days off, criticizing Kennedy’s job performance in front of other officers, revoking
Kennedy’s CCTV and eleventh floor access, understaffing Kennedy’s shift, and failing to

12

investigate one of Kennedy’s insubordinate officers.3 Pl.’s Br. Summ. J., ECF No. 58,
Page ID 630-31. Kennedy cannot establish either of the constructive discharge
elements with the foregoing actions.
The proposed changes to Kennedy’s shift and days off were, ultimately, never
implemented, and access to the eleventh floor and CCTV was revoked from all
Lieutenants, Sergeants, and Police Officers. Thus, there was nothing objectively
intolerable about these decisions. Further, it was not objectively intolerable for Kennedy
to surrender his badge, service weapon, and credentials until he returned from his
voluntary thirty-day leave of absence with a satisfactory physician’s statement because
he would have had no use for them while on extended leave.
With respect to the criticism of Kennedy’s job performance, Kennedy simply
states in his affidavit that on one occasion “Deputy Chief Brdicko slandered me and
created a hostile working environment by shouting at me and calling me incompetent in
front of other officers.” Kennedy Aff., ECF No. 59-1, Page ID 649 ¶ 15. Kennedy
similarly states that Feather “refus[ed] to properly investigate and or discipline” an
officer who became “insubordinate” in order to racially discriminate against him.
Kennedy Aff., ECF No. 59-1, Page ID 651 ¶ 22. This evidence lacks detail and does not
satisfy the burden of establishing objectively intolerable working conditions or that
Feather and Brdicko intended to force Kennedy to quit, even when considered
collectively. See O’Brien v. Dep’t of Agric., 532 F.3d 805, 810-11 (8th Cir. 2008)

3

Although Kennedy continues to reference his termination from his part -time employment and
lack of rotation into the vacant Captain position at the Omaha VA as evidence of race discrimination, the
Court has previously ruled that such evidence may only be used as background evidence in support of a
hostile work environment claim. See Memorandum and Order, ECF No. 21, Page ID 301-02.

13

(explaining that the burden of establishing intolerable working conditions is “substantial”
and that “the bar is quite high”) (citing Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir.
2007) (stating the conditions must be “sufficiently extraordinary and egregious”).
It is undisputed that Kennedy’s shift was understaffed, but it is also undisputed
that the Omaha VA Police service was experiencing significant staffing shortages
throughout the department. Kennedy does not dispute that the reason for assigning his
swing shift one less officer than the day and night shifts was because the swing shift
overlapped with the day and night shifts for all but four hours. Pl.’s Br. Summ. J., ECF
No. 58, Page ID 604 ¶ 36. As such, Kennedy has not established that Feather and
Brdicko assigned him one less officer with the intent of forcing him to quit.
Not only do the actions Kennedy complains of, when viewed collectively, fail to
establish a constructive discharge, they also fail to establish any adverse employment
action when viewed independently. See, e.g., Carpenter v. Nw. Airlines, Inc., 47 Fed.
App’x 424, 426 (8th Cir. 2002) (finding that a critique of an employee’s poor job
performance was not an adverse employment action); Stoddard v. Eastman Kodak Co.,
309 Fed. App’x 475, 479 (2nd Cir. 2009) (finding criticism of an employee’s job
performance is not adverse employment action, even where the employee considered it
excessively harsh); McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)
(concluding that revoking an officer’s badge, service weapon, and credentials after she
voluntarily took extended sick leave is not an adverse employment action in the context
of a Title VII race discrimination claim); Hughes v. Stottlemyre, 454 F.3d 791, 797 (8th
Cir. 2006) (finding a schedule change that required an employee to work undesirable
days and hours was not an adverse employment action).
14

Accordingly, Kennedy has produced no evidence of a materially adverse
employment action and has, therefore, failed to establish a prima facie case of race
discrimination under Title VII.
Retaliation
The evidence shows no specific link between Kennedy’s protected conduct and
any of the actions taken by Brdicko or Feather. Therefore, there is no direct evidence of
retaliation and Kennedy must satisfy the McDonnell Douglas framework by first
establishing a prima facie case of retaliation.
“To establish a prima facie case of retaliation, a plaintiff must show that: ‘(1) she
engaged in statutorily protected conduct; (2) she suffered an adverse employment
action; and (3) a causal connection exists between the two.’” DePriest v. Milligan, 823
F.3d 1179, 1187 (8th Cir. 2016) (quoting Fiero v. CSG Sys., Inc., 759 F.3d 874, 880 (8th
Cir. 2014)). Shulkin contends Kennedy has presented no evidence of an adverse
employment action to support a retaliation claim. The Court agrees.
Adverse employment action must be “materially adverse, which in [the retaliation]
context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id; Jackman, 728 F.3d at 804-05. Thus, the
adverse employment action standard is broader for retaliation claims than discrimination
claims. See Burlington, 548 U.S. at 68.
The Parties do not dispute that Kennedy engaged in protected conduct on July
22, 2013, and December 5, 2013; and Kennedy also claims he engaged in protected
conduct on November 17, 2013, by communicating his concerns of discrimination and
hostile work environment to Brdicko and Feather. Kennedy further contends that the
15

following courses of action were both materially adverse and the causal result of his
protected activity: understaffing his swing shift; proposing to alter his hours and change
his days off; abruptly interrupting Kennedy’s training session; avoiding communication
with Kennedy; ordering Kennedy to focus on shift coverage rather than training and
memo drafting; criticizing his job performance; revoking his CCTV and eleventh floor
access; suspending his firearms authority and credentials, and failing to investigate and
discipline an insubordinate officer.
As the Court previously noted, the proposals to extend Kennedy’s tour on the
night shift, alter his swing shift hours, and change his days off were never implemented.
The CCTV and eleventh floor access was revoked for all Lieutenants, Sergeants, and
Police Officers, not just for Kennedy. Thus, evidence of those actions and decisions do
not, as a matter of law, establish a materially adverse employment action. See Fercello
v. Cty. of Ramsey, 612 F.3d 1069, 1080-81 (8th Cir. 2010) (citing Baloch v.
Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008) (proposed suspension was not
materially adverse because the suspension was not actually served)); See AuBuchon v.
Geitner, 743 F.3d 638, 645 (8th Cir. 2014) (citing Burlington, 548 U.S. at 68) (“petty
slights or minor annoyances that often take place at work and that all employees
experience” do not constitute unlawful retaliation). A reasonable jury could not find that
avoiding communication with Kennedy, criticizing his ability to staff his shift, and
unexpectedly barging in on a training session, amounted to materially adverse
employment actions. See Knapp v. Ruser, 145 F. Supp. 3d 846, 861-62 (D. Neb. 2015)
(cessation of communication with an employee does not approach any semblance of

16

adverse employment action) (citing Burlington, 548 U.S. at 68) (“Title VII . . . does not
set forth a general civility code for the American workplace”).
Suspending Kennedy’s credentials and having him turn in his badge and service
weapon during a voluntary leave is also not a materially adverse employment action.
Simmons v. Dep’t of Cent. Mgmt. Servs., No. 02 C 9492, 2004 WL 2584801, at *7 (N.D.
Ill. Nov. 10, 2004) (“Requiring Plaintiff to turn in her badge and weapon while not on
active duty during her injury leave of absence does not constitute an adverse
employment action.”). Title VII “protects an individual not from all retaliation, but from
retaliation that produces an injury or harm,” Burlington, 548 U.S. at 67, and Kennedy
has provided no evidence that suggests he was harmed or injured in any way by the
suspension of his credentials and firearms authority while on extended voluntary leave.
Similarly, ordering Kennedy to focus on ensuring coverage for his shift, and
refusing to investigate another officer for insubordination, do not amount to materially
adverse employment actions. The evidence provides very little detail regarding these
complaints and no basis to conclude that Kennedy was harmed or injured. See
Burlington, 548 U.S. at 68 (a plaintiff claiming retaliation must show harm that is more
than merely trivial). Based on the evidence, a reasonable jury could not find that
providing Kennedy’s swing shift one less officer than the other shifts “might well have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Id.; See Peace-Wickham v. Walls, 409 Fed. App’x 512, 523 (3rd Cir. 2010) (concluding
that evidence of continued understaffing does not constitute materially adverse
employment action).

17

Kennedy has provided no evidence that he suffered a materially adverse
employment action and has, therefore, failed to establish a prima facie case of
retaliation under Title VII.
Hostile Work Environment
Kennedy claims that the actions and decisions of Feather and Brdicko created a
hostile work environment.
“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) (quoting
Jackman, 728 F.3d at 804). To prevail on a hostile work environment claim, a plaintiff
must “establish that (1) he is a member of a protected group; (2) he was subject to
unwelcome race-based harassment; (3) the harassment was because of membership in
the protected group; and (4) the harassment affected a term, condition, or privilege of
employment.” Banks, 829 F.3d at 667 (quoting Malone v. Ameren UE, 646 F.3d 512,
517 (8th Cir. 2011)).
Kennedy has produced no racially motivated comments, remarks, insults, or
actions to establish his allegation that he was subjected to race-based harassment. See
Pl.’s Br. Summ. J., ECF No. 58, Page ID 640-42. Kennedy simply argues that his
coworkers—Officer Schwab, Officer Jones, and former Chief Kula—“felt” and “believed”
he experienced race discrimination, but “[t]o survive summary judgment, [Kennedy]
must substantiate his allegations with more than ‘speculation, conjecture, or fantasy.’”
Ngrime v. Douglas Cty., No. 8:07CV387, 2009 WL 2486426, at *6 (D. Neb. Aug. 12,
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2009) (quoting Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037 (8th Cir. 2004)).
Although, Officer Schwab stated that she heard race-based comments while she
worked at the Omaha VA, she was unable to provide any details or a specific instance
where such comments were directed at Kennedy. Schwab Aff., ECF No. 59-1, Page ID
685 (“it’s been so long ago . . . I really can’t give you [an example] that would be
correct”). “[T]he alleged harassment must be so intimidating, offensive, or hostile that it
poisoned the work environment,” and on the evidence provided, no reasonable jury
could find that Kennedy suffered race-based harassment at all, let alone race-based
harassment to such a high degree. Blomker v. Jewell, 831 F.3d 1051, 1057 (8th Cir.
2016).
CONCLUSION
Kennedy has failed to produce any direct evidence of race discrimination or
retaliation and he has failed to establish a prima facie case for either claim. He has
similarly failed to provide any evidence that he was subjected to race-based harassment
at the Omaha VA. Therefore, his Title VII claims of race discrimination, retaliation, and
hostile work environment will be dismissed.
Finally, the Court will deny Shulkin’s Motion to Strike, which was filed
contemporaneously with the Reply Brief. Officer Korey Jones’s statements and
affidavits cannot be relied upon to oppose the Motion for Summary Judgment; and the
remaining evidence, regardless of its admissibility, does not sufficiently establish
Kennedy’s claims. The Motion to Strike is, therefore, moot.
Accordingly,
IT IS ORDERED:
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1.

The Motion for Summary Judgment, ECF No. 48, filed by Defendant David
Shulkin is granted;

2.

This action is dismissed, with prejudice;

3.

The Motion to Strike, ECF No. 62, filed by Defendant David Shulkin is
denied as moot; and

4.

A separate judgment will be entered.

Dated this 19th day of July, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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