Downs v. Shinseki

Filing 99

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Downs' Objections are OVERRULED and the Magistrate Judge's R&R is ACCEPTED and made the findings of fact and conclusions of law of this court. Downs' remaining claims are hereby DISMISSED WIT H PREJUDICE. Entry of this Memorandum & Order shall constitute judgement in the case. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 9/23/2013. (xc:Pro se party by electronic notification.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
STEPHEN A. DOWNS,

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Plaintiff,
v.
ERIC K. SHINSEKI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS,
Defendant.

Case No. 3:10-cv-00661
Judge Aleta A. Trauger
Magistrate Judge Griffin

MEMORANDUM AND ORDER
Pending before the court is the Magistrate Judge’s August 14, 2013 Report and
Recommendation (Docket No. 95) (“R&R”), which recommends that the defendant’s Motion for
Summary Judgment be granted and that the plaintiff’s case be dismissed with prejudice. The
plaintiff, Stephen Downs, proceeding pro se, timely filed Objections to the R&R (Docket No.
96), to which the defendant filed a Response (Docket No. 97), and Downs filed a Reply (Docket
No. 98).
Downs is a disabled veteran who maintains six causes of action against the Department
of Veterans Affairs (“VA”).1 Broadly, he accuses the VA of (1) discriminating against him on
the basis of age by refusing to hire him for certain posted VA employment vacancies; and/or (2)
retaliating against him for complaining about the VA’s allegedly discriminatory conduct.
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and

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In two previous Orders, the court dismissed several other claims by Downs. (Docket
Nos. 25 and 43.)
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recommendation to which a specific objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the
report in general is not sufficient and will result in waiver of further review. See Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995). However, issues are not waived if the magistrate judge
fails to warn the party of the potential waiver. See Mattox v. City of Forest Park, 183 F.3d 515,
519-20 (6th Cir. 1999).
Here, Downs has asserted several objections, only some of which are sufficiently specific
to warrant further analysis.
First, based on his personal inability to access the documents through PACER, Downs
argues that the Magistrate Judge may have failed to review the documents filed by Downs at
Docket No. 87. Whatever personal difficulties Downs may have had in opening the documents,
the document is in fact electronically accessible by the court, and it is clear from the R&R that
the Magistrate Judge considered the referenced documents in reaching a decision.2
Second, Downs argues that the court improperly dismissed Count I of his Complaint.
However, the court dismissed Count I from this case in a Memorandum and Order over a year
ago. (See Docket No. 43, Mar. 31, 2012 Memorandum & Order). Thus, Count I was not the
subject of the pending R&R, and Downs accordingly is foreclosed from re-arguing the merits of
the court’s earlier decision here.
Third, Downs objects to the dismissal of his claim that he was “blacklisted” by the VA,

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The court notes that many of the referenced pages contain documents were filed
elsewhere in the record, including Kathy Lee’s sworn statements to an EEO Investigator.
(Compare Docket No. 87 at pp. 4-24, with Docket No. 91, Ex. 1.)
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which the Magistrate Judge construed as a retaliation claim. However, this objection does not
specify what aspect of the R&R Downs believes was erroneous. The court finds that this
objection is not sufficiently specific and, therefore, is waived.
Fourth, Downs objects that the Magistrate Judge improperly made credibility
determinations in the R&R. Downs does not identify any particular aspects of the R&R that
allegedly reflect credibility determinations. The court finds that this objection is not sufficiently
specific and, therefore, is waived.
Fifth, Downs objects to the Magistrate Judge’s recommendation that Downs’ claims of
discrimination and/or retaliation with respect to the File Clerk position (Vacancy Announcement
2009-120-NV – Count III) be dismissed. Although the basis for this objection is not entirely
clear, Downs appears to argue that the jury should have had the opportunity to determine
whether his “other than honorable discharge” (in September 1981) provided a valid basis for his
termination, in light of his earlier “honorable discharge” (in December 1978).3 According to
unrebutted evidence in the record, the VA has a general internal policy that it will not employ
applicants with military service records that contain a discharge that is other than honorable or
that contains indications of other dishonorable conduct. Although Downs subjectively believes
that his earlier honorable discharge should trump the later “other than honorable” discharge,” he
has not provided sufficient evidence to create a genuine dispute of material fact as to whether the
VA’s legitimate, non-discriminatory reason for terminating him (the existence of the other-than-

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As set forth in the R&R, Downs served in the military through December 14, 1978,
when he received an honorable discharge. He re-entered active service on November 25, 1980.
On September 15, 1981, he was discharged “under other than honorable conditions,” due to
“administrative discharge conduct triable by court-martial.”
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honorable discharge on his record) was a pretext for age discrimination and/or retaliation for
engaging in protected activity. The Magistrate Judge’s analysis of this issue is persuasive and is
expressly adopted herein.4
Sixth, Downs objects to the dismissal of his claims relative to the Program Support
Specialist Position (Vacancy Announcement 2009-397-NV – Count IV) for “the same” reasons
as Count III. As best the court can discern, Downs argues that the VA “continued” to retaliate
against him with respect to unspecified protected conduct. Downs does not identify the grounds
on which the Magistrate Judge allegedly erred with respect to this claim, nor does he cite to any
legal authority, record evidence, or specific facts concerning this theory of liability. The court
finds that this objection is not sufficiently specific and, therefore, is waived.
Seventh, Downs objects to the Magistrate Judge’s recommendation that his claims related
to the Service Representative Position (Vacancy Announcement 2010-292A-NV– Count V) be
dismissed. Downs appears to argue that the VA violated unspecified rules concerning
applications from veterans who are more than 30% disabled. Downs does not identify the
supposed laws and policies to which he refers, nor does he explain how this issue would rebut

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Downs also argues that the temporal proximity between his unspecified “protected
conduct” and the VA’s refusal to hire him as a File Clerk demonstrates pretext. As an initial
matter, Downs did not clearly articulate this argument to the Magistrate Judge and, therefore, has
waived his right to raise it here. See Murr v. United States, 200 F.3d 895, 901 n.1 (6th Cir.
2000); The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 n.2 (6th Cir. 2010). Furthermore,
Downs does not identify the protected conduct to which he refers, meaning that the objection is
non-specific and, therefore, waived. Even if the court were to assume that Downs is referring to
the EEO complaint he filed in January 2008 relating to a vacancy announcement that is no longer
at issue in this case, the claim would still fail. Downs received notice that he did not receive the
File Clerk position on or about April 15, 2009 (see Docket No. 73, Ex. 3), over one year after
initiating EEO proceedings. Particularly in light of this significant temporal gap, the “temporal
proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim.”
Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir. 2007).
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the defendant’s legitimate, non-discriminatory reasons for its refusal to hire him for that position.
Downs also argues that it was inconsistent for the VA to permit him to be interviewed for the
Service Representative Position and yet ultimately conclude that he would not be hired because
his interview score was too low. As explained in the R&R, these are not inconsistent positions.
In spite of the other than honorable discharge notation, the VA only interviewed Downs as a
condition of the mediation of his earlier EEO complaint. Downs’ interview score was too low to
make the initial hiring cut.5 After six of the initial 32 vacancies were not filled, the VA
backfilled those six vacancies with eligible candidates who had applied for other job
announcements. Although Downs complains that the VA utilized this process specifically to
avoid hiring him, the court agrees with the Magistrate Judge that the argument is purely
speculative: Downs presented no evidence establishing that the practice was irregular or unusual,
that the job certificates corresponding to the other hired candidates were for positions other than
a Service Representative Position, or that the other candidates had lower scores than he.
To the extent Downs purports to raise additional objections, including, inter alia, his
generalized objection that the Magistrate Judge improperly disregarded his “affidavits,
declarations, pleadings, interrogatories, etc.,” those objections are not specific and, therefore, are
waived.
Accordingly, for the reasons stated herein, Downs’ Objections are OVERRULED and
the Magistrate Judge’s R&R is ACCEPTED and made the findings of fact and conclusions of
law of this court. Downs’ remaining claims are hereby DISMISSED WITH PREJUDICE.

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Indeed, as the Magistrate Judge found in the R&R, Downs did not offer any evidence
showing that the interview score was inaccurate or contrived.
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Entry of this Memorandum & Order shall constitute judgement in the case.
It is so ORDERED.
Enter this 23rd day of September 2013.
_____________________________
ALETA A. TRAUGER
United States District Judge

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