Byerly v. Lew
Filing
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ORDER granting 26 Sealed Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 12/1/16. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PHYLLIS F. BYERLY,
Plaintiff,
v.
JACOB J. LEW, SECRETARY, U.S.
DEPARTMENT OF THE TREASURY
(INTERNAL REVENUE SERVICE),
Defendant.
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Case No. CIV-15-630-C
MEMORANDUM OPINION AND ORDER
Plaintiff was employed as a management assistant in the Stakeholder Partnership
Education and Communication Department for Defendant. Asserting that she had been
treated improperly in relation to her employment, Plaintiff brought the present action
asserting claims for violation of the Age Discrimination in Employment Act, 29 U.S.C.
§ 621, et seq. (“ADEA”), and/or because of a perceived disability in violation of § 501 of the
Rehabilitation Act of 1973. The parties do not dispute much of the operative facts; rather,
any disagreements hinge more on their various interpretation of the facts. As is appropriate
at this stage, the Court will view the facts in the light most favorable to Plaintiff.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). “[A] motion for summary judgment should be granted
only when the moving party has established the absence of any genuine issue as to a material
fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir.
1977). The movant bears the initial burden of demonstrating the absence of material fact
requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper disposition of the claim. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries this initial burden,
the nonmovant must then set forth “specific facts” outside the pleadings and admissible into
evidence which would convince a rational trier of fact to find for the nonmovant.
Fed. R. Civ. P. 56(e). These specific facts may be shown “by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex, 477 U.S. at
324. Such evidentiary materials include affidavits, deposition transcripts, or specific
exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992).
“The burden is not an onerous one for the nonmoving party in each case, but does not at any
point shift from the nonmovant to the district court.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998). All facts and reasonable inferences therefrom are construed
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS
In order to prevail on her ADEA claim, Plaintiff must first establish a prima facie
case. To do so, she must establish that she was over 40 years of age, that she was performing
satisfactory work, that she was subject to an adverse employment action, and that she was
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treated differently from similarly situated employees who were substantially younger than
her. Adamson v. Multi Cmty. Diversified Svcs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008).
In order to prevail on her claim under the Rehabilitation Act Plaintiff must show she:
(1) is a disabled person as defined by the ADA; (2) is qualified, with or
without reasonable accommodation, to perform the essential functions of the
job held or desired; and (3) suffered discrimination by an employer or
prospective employer because of that disability. In order to demonstrate
“discrimination,” a plaintiff generally must show that he has suffered an
adverse employment action because of the disability.
EEOC v. C. R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011)(internal citations
omitted).*
Assuming, without deciding, that Plaintiff can satisfy the other elements of a prima
facie case, her failure to offer evidence from which a reasonable jury could find adverse
employment action is decisive in this case. Plaintiff sets forth eight events which she asserts
are adverse actions that should provide the basis to establish her prima facie case:
(1) Defendant perceived her as disabled and made a series of unsolicited requests that
Plaintiff make application for formal reasonable accommodations when she neither desired
nor requested accommodation; (2) made repeated requests to Plaintiff for her retirement
plans; (3) wrongfully represented that Plaintiff had made errors on an operational review
when the errors in fact were made be another person; (4) required her to unnecessarily
duplicate work in tedious and laborious meetings with her supervisor to review line by line
*
The elements for a violation of the Rehabilitation Act are the same as those for
violation of the ADA. See Wilkerson v. Shenseki, 606 F.3d 1256, 1262 (10th Cir. 2010).
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certain data entries; (5) allowed workplace threats of a co-worker to go unheeded and
unaddressed; (6) denied her pre-approved annual leave to attend a funeral; (7) failed to
promote her in the same manner as other employees; (8) and removed her from an alternative
work schedule of working four ten-hour days and required her to return to working five
eight-hour days. Plaintiff also complains that Defendant wrongfully disclosed certain health
information.
As Defendant recognizes, the Tenth Circuit has been clear that the anti-discrimination
laws do not “‘establish a general civility code for the workplace.’” Hernandez v. Valley
View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (quoting Morris v. City of Colo.
Springs, 666 F.3d 654, 663-64 (10th Cir. 2012)). Rather, an adverse employment action
“constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
“A mere inconvenience or an alteration of job responsibilities” is not “an adverse
employment action” and “personality conflicts between employees are not the business of
federal courts.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998); Vore v.
Ind. Bell Tel. Co., Inc., 32 F.3d 1161, 1662 (7th Cir. 1994). None of the alleged adverse
employment actions offered by Plaintiff changed her employment status in the manner
required by the law – it did not reduce her pay, affect her benefits, or alter her job
responsibilities. While certainly from Plaintiff’s perspective many of the matters may have
been inconvenient or may have caused her some degree of irritation, they simply do not rise
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to the level of adverse action protected by federal law. Indeed, Plaintiff fails to offer any
case law or legal argument demonstrating that any court anywhere has found actions of the
type referenced herein to support a cause of action.
The sole possible exception is Plaintiff’s allegation that Defendant repeatedly asked
her about her retirement plans. However, even when viewed in the light most favorable to
Plaintiff, and viewed in context of the supporting documentation, it is clear that Defendant’s
requests were related more to determining budgeting and staffing matters, rather than any
intent to discriminate against Plaintiff based on her age. Because the evidence presented,
even when viewed in the light most favorable to Plaintiff, does not support the existence of
an “adverse employment action,” Plaintiff has failed to establish a prima facie case and
Defendant is entitled to judgment.
Plaintiff also complains that the manner in which her internal EEOC complaints were
handled violated the applicable law.
Plaintiff filed an EEOC complaint raising the
complaints addressed herein. While that complaint was pending, Plaintiff filed a second
EEOC complaint. Plaintiff now complains because that second complaint was dismissed,
arguing that act was retaliatory. However, as the Defendant has demonstrated, all of the
assertions set forth in the second complaint were considered by the Administrative Law
Judge (“ALJ”) when addressing the first EEOC complaint; thus Plaintiff cannot raise any
complaint that her concerns were not addressed. Second, Plaintiff has brought all of those
allegations before this Court; thus, she cannot demonstrate any harm resulting from the
dismissal even if, on some basis, it was improper.
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In short, even when viewed in the light most favorable to Plaintiff, none of the
allegations raised by Plaintiff in this action rise to the level of employment activity that is
prohibited by federal law. Rather, at best, Plaintiff’s assertions demonstrate some degree of
workplace disagreement and/or frustration with the manner in which Plaintiff’s supervisor’s
management skills were applied to her. Because Plaintiff cannot demonstrate that she
suffered any adverse employment action, judgment in favor of Defendant is warranted.
For the reasons set forth herein, The Secretary’s Sealed Motion for Summary
Judgment (Dkt. No. 26) is GRANTED. A separate judgment will issue.
IT IS SO ORDERED this 1st day of December, 2016.
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