Webster v. Shinseki et al
Filing
94
MEMORANDUM DECISION AND ORDER granting 47 Defendant's Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendant and close the case. Signed by Judge Dale A. Kimball on 6/28/2016. (eat)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DANA W. WEBSTER,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
vs.
Case No. 2:13CV95DAK
ROBERT A. McDONALD, Secretary of
the Department of Veterans Affairs
Judge Dale A. Kimball
Defendants.
This matter is before the court on Defendant’s Motion for Summary Judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. On June 1, 2016, the court held a hearing on
the motion. At the hearing, Plaintiff was represented by Loren M. Lambert, and Defendant was
represented by Jeffrey E. Nelson. The court has carefully considered the materials submitted by
the parties, as well as the facts and law relevant to the motion. Now being fully advised, the
court issues the following Memorandum Decision and Order.
BACKGROUND
Plaintiff Dana Webster began working as a police officer at the Salt Lake City Veterans
Affairs Medical Center (“VAMC”) in January 2002. Webster is currently employed as a police
officer at the Puget Sound VA Health Care System in Seattle, Washington.
Webster brought the present action because he was denied several promotions while
employed at the Salt Lake VAMC. In 2009, Webster applied for but was not selected for eight
promotion opportunities. Webster was also not selected to attend a firearms training course and
was not selected as the police department’s firearms instructor.
Webster alleges that the Salt Lake VAMC’s decisions were the result of age
discrimination and/or retaliation for his involvement as a witness in a fellow officer’s
discrimination matter. Webster also alleges that he was subjected to a hostile work environment
while he was employed at the Salt Lake VAMC.
Defendant does not dispute that Webster was over 40 years of age when he applied for the
promotions, he met the qualifications for the positions, he was not selected for the promotions,
and younger applicants were selected. Defendant also does not dispute that Webster was
interviewed in connection with a coworker’s EEO complaint on October 29, 2009, and he was
later denied promotions on December 31, 2009, and February 17, 2010.
Police Chief Albert Bell was the deciding official for the promotions that Webster applied
for in 2009. Bell began his employment with the Salt Lake VAMC in March 2009, having
previously worked at Hill Air Force base. Bell testified that he evaluated candidates not only for
competence as a police officer but also the ability to interact effectively with their subordinates.
For the selection of each position, Bell selected a three-member panel to interview the candidates
for the promotions. Bell gave each interviewer a printed set of 15 interview questions designed
to elicit information about the candidates’ experience and skills as law enforcement officers and
their potential ability to lead and motivate other officers. The panel members asked each
candidate the same 15 questions and independently rated the candidate’s answer to each question
on a scale of 0-5. The scores were then totaled and each candidate received a score up to a
maximum of 225 (75 from each of the three interviewers).
The interview panel for Promotion No. 2069-2010 consisted of Captain Ronald Beard
and Lieutenant Wayne Vouvalis from the VA police department, and James Stritikus, the
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VAMC’s Emergency Management Coordinator. The panel interviewed eight candidates and
unanimously rated Horald Hess the highest, with a total score of 204. Webster rated second with
a total score of 157.
The interview panel for Promotion No. 2131-2010 consisted of Captain Beard, Lieutenant
Vouvalis, and VAMC Patient Advocate Stacey Parsons. The panel interviewed only the four
candidates who had qualified for the position under the Veterans Employment Opportunities Act
(“VEOA”). Webster was not interviewed for this promotion because he was not a VEOA
candidate for the position. When interviewing for a promotion, the VA creates a certificate
including the applicants who qualify in each eligibility category. The selecting official is not
required to interview all candidates, but if he decides to interview any applicant on a particular
certificate, he is required to interview all the candidates listed on that certificate. Bell determined
to interview the four candidates listed on the VEOA certificate. The panel unanimously rated
Michael Knowles the highest with a total score of 206.
Bell adopted the recommendations of the interview panels for Promotion Nos. 2069-2010
and 2131-210 and selected Horald Hess and Michael Knowles, who had received the highest
ratings by the interview panels.
Shortly after Bell began working at the Salt Lake VAMC, Bell told Webster that he had
the authority from VAMC Associate Director Robin Korogi to rid the department of all
undesirable officers through any means necessary. Although Bell did not mention age, Webster
testified that another officer, Tony Auriemma told Webster that Bell wanted to replace all the
older officers. Auriemma testified that Bell used the term “older people” in reference to the
people who predated his arrival, regardless of age. Another officer, Steven Anderson, also heard
Bell refer to the “old guys,” but he said he was sure that he meant the officers who were still
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there, not age. Anderson said that his perception was that all of the officers, but Webster,
interpreted it that way.
At Webster’s deposition, he claimed that in October 2009 he overheard Bell tell a visitor
from Hill Air Force Base that “he was going to promote some more of his people as soon as he
got rid of some of the older officers.” Webster could not identify the visitor and failed to
mention this statement in his EEO complaint, his EEO affidavit, his Complaint in this case, or in
response to interrogatories in this case. Bell denies that he said it.
There is no evidence demonstrating that Bell actually removed older officers from the
department. Only two officers were terminated during Bell’s one-year tenure at the VAMC. The
first officer was 29 years of age. The second officer was hired by Bell in April 2009, when the
officer was 48, and resigned in lieu of termination in December 209, at the age of 49.
In relation to the selection of candidates for promotion, James Stritikus, who participated
in the interviews for Promotion No. 2069-2010, testified that the interviewers did not discuss the
applicants’ ages and that he did not take age into consideration in his evaluation of the
applicants. Stacey Parsons, who participated in the interviews for Promotion No. 2131-2010,
testified that the interviewers did not discuss the applicants’ ages and that the applicants’ ages
did not influence her rating of their qualifications.
Stritikus and Parsons also testified that there was no discussion of Webster’s participation
in another officer’s EEO Complaint during the interviews for the promotions. Stritikus testified
that he did not know that Webster had participated in an EEO matter. Bell also testified that he
was unaware that Webster had been interviewed on the other officer’s EEO complaint.
However, Webster disputes Bell’s testimony, alleging that Bell should have known who was
interviewed in relation to the EEO matter.
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On his own claim, Webster contacted an Equal Employment Opportunity Counselor
regarding his complaints of discrimination and retaliation on January 29, 2010. Webster filed an
administrative Complaint of Employment Discrimination on March 11, 2010, in which he
alleged that he had been discriminated against based on age, gender, and retaliation, and that he
had been subjected to a hostile work environment. After further communication with Webster,
the Regional EEO Officer accepted three claims for investigation and processing: (1) whether
Webster was treated in disparate manner based on age, sex, or retaliation when he was not
selected for the position of Supervisory Police Officer on December 24, 2009; (2) whether
Webster was treated in a disparate manner based on age, sex, or retaliation when he was not
selected for Lead Police Officer on December 31, 2009, and (3) whether Webster was subjected
to a hostile work environment. Webster has since dropped his claim for sex discrimination.
The VA’s Office of Resolution Management investigated Webster’s claims and produced
a report of the investigation. The parties conducted discovery, including written discovery and
depositions. After completing discovery, the parties filed cross motions for summary judgment.
The Federal Administrative Law Judge Daniel E. Leach issued a Decision Without Hearing,
granting the VA’s motion and denying Webster’s motion. ALJ Leach concluded that
“complainant is unable to establish that because of his age (DOB 1955) or prior EEO activity”
that he suffered discrimination as alleged in his complaint.
DISCUSSION
Defendant’s Motion for Summary Judgment
1. Timeliness of Claims
A federal government employee must timely exhaust administrative remedies before
bringing suit under the ADEA or Title VII. Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001).
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This includes the requirement that the employee consult an EEO counselor “within 45 days of the
date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1).
A. Discrete Claims
Each discrete incident of alleged discrimination, such as a failure to promote, is a separate
“unlawful employment practice” for which administrative remedies must be exhausted. Martinez
v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003). Because Webster first consulted an EEO
Counselor on January 29, 2010, the 45-day period began on December 15, 2009, and ended on
January 29, 2010. Although Webster applied for eight promotions during 2009, only two are
administratively exhausted and properly before the court.
There is no evidence to support an extension of the 45-day time limit provided in 29
C.F.R. § 1614.105(a)(2) for not being notified or aware of the time limit. Defendant has
submitted evidence, including Webster’s deposition testimony and Webster’s employment
records, demonstrating that Webster received several trainings specifically on how and when to
make an employment claim.
Moreover, contrary to Webster’s assertion, the Regional EEO officer did not make a
finding that Webster’s claims were timely. The Regional EEO officer determined that only two
of Webster’s promotion claims and his hostile environment claims could be investigated and
processed because his other claims were untimely. The VA did not waive its defense for failure
to exhaust administrative remedies by accepting three of Webster’s claims for investigation.
There is also no basis for excusing Webster from the 45-day time limit based on alleged
threats that he should not make outside complaints. There is no authority for this proposition and
no evidence of any alleged threats. The only evidence in the record suggests that Webster made
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several complaints while employed at the VAMC from 2003 to 2010. These serial complaints
provide no inference that Webster feared the consequences of filing claims.
In addition, Webster’s only protected EEO activity occurred on October 29, 2009, when
he provided information in connection with Officer Zumwalt's EEO proceeding. Webster claims
thirteen protected activities beginning in 2003, but none of these other activities related to EEO
claims. Webster’s retaliation claim, therefore, can only be based on alleged retaliation following
his participation in the EEO matter.
Webster argues that he participated in the other officer’s EEO matter before October 29,
2009, but the undisputed facts do not support his claim. Webster was not a participant in the
other officer’s EEO complaint when it was filed merely because he may have become a witness.
The officer’s EEO complaint does not contain a list of witnesses and Webster is not mentioned.
B. Hostile Work Environment Claim
In contrast to the discrete employment decisions that occur at a defined point in time, a
hostile work environment occurs over a period of time during which the claimant is subjected to
a workplace “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff
alleging a hostile work environment must exhaust his administrative remedies by consulting an
EEO counselor within 45 days of at least one event that is part of the hostile work environment.
29 C.F.R. § 1614.105(a)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18
(2002).
The only events Webster relies on within the 45-day time period are his failures to be
selected for promotion. The court agrees with Defendant that notifications that Webster had not
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been selected for promotions are not examples of severe intimidation, ridicule, or insult. Rather,
they are discrete decisions that are independently actionable and that must be independently
administratively exhausted. Discrete acts that a plaintiff relies on in support of discrimination or
retaliation claims, such as failures to promote, are distinct from a hostile work environment
claim, which “must be based on severe and pervasive discriminatory intimidation or insult.”
Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C. 2003); Nurridin v. Goldin, 382 F. Supp. 2d 79,
108 (D.D.C. 2005) (“[T]he bulk of the ‘hostile’ events on which plaintiff relies are the very
employment actions he claims are discriminatory or retaliatory; he cannot so easily bootstrap
discriminatory claims into a hostile work environment claim.”) Webster, therefore, has failed to
allege any act of intimidation, insult, or ridicule discriminating or retaliating against him during
the 45-day period and his hostile work environment claim is untimely.
Accordingly, Webster’s only timely raised claims are his failure to be selected as lead
officer claim (Promotion No. 2069-2010) and his failure to be selected as supervisory officer
claim (Promotion No. 2131-2010).
2. ADEA Claim
Defendant moves for summary judgment on Webster’s claim of age-based discrimination
under the Age Discrimination in Employment Act of 1967 (“ADEA”). The ADEA provides that
“[a]ll personnel actions affecting employees or applicants for employment who are at least 40
years of age . . . in executive agencies . . . shall be made free from any discrimination based on
age.” 29 U.S.C. § 633a(a). Webster bears the burden of establishing that age was a “determining
factor” in the Salt Lake VAMC’s decisions not to promote him. Lucas v. Dover Corp., 857 F.2s
1397, 1400 (10th Cir. 1988).
Defendant does not dispute that the circumstances of Webster’s timely claims meet the
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criteria for a prima facie case under the ADEA. Webster was over 40 years of age when he
applied for the promotions, he met the qualifications for the positions, he was not selected for the
promotions, and younger applicants were selected.
Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to produce evidence that its actions were taken for legitimate, nondiscriminatory
reasons. Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 252-55 (1981); Sandoval v.
City of Boulder, 388 F.3d 1312, 1321 (10th Cir. 2004). Once the defendant satisfies its burden of
showing that its actions were taken for legitimate, nondiscriminatory reasons, the burden shifts
back to the plaintiff to establish that the employer’s explanation for the adverse action is a pretext
for discrimination. Burdine, 450 U.S. at 253; Sandoval, 388 F.3d at 1321.
Defendant argues that it has met its burden of providing a legitimate, nondiscriminatory
reason for not selecting Webster for either promotion and that Plaintiff has failed to rebut that
reason by raising an inference of pretext. Police Chief Albert Bell was the deciding official for
the positions Webster applied for in 2009. Bell believed that Webster was a skilled police officer
but felt that he lacked the essential interpersonal skills. Several other officers involved in the
selection process also testified that Webster lacked interpersonal skills.
The candidates for promotion were interviewed by panels of interviewers selected by
Chief Bell. Each interviewer received a printed set of 15 interview questions, none of which
related to age. The panel members asked each candidate the same 15 questions and
independently rated the candidates’ answers to each questions on a scale of 0-5. The scores were
then totaled. For both promotions, the candidate Bell selected for the promotion was the
candidate who received the highest total points from the panel. The court concludes that
Defendant has met its burden of putting forth a legitimate, nondiscriminatory reason for its
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employment actions.
Therefore, the burden shifts back to the plaintiff to establish that the employer’s
explanation is a pretext for discrimination. Burdine, 450 U.S. at 253. None of the interviewers
testified that age was taken into consideration in their evaluation of the candidates. Webster,
however, relies on a statement from fellow officer Anthony Auriemma to try to show that Bell
had a discriminatory motive. Webster testified that Auriemma stated that Bell stated, when he
arrived at the VAMC in March 2009, that he “wanted to replace all the older officers with
younger officers.” Auriemma testified that Bell’s use of the term “older” did not refer to age, but
referred to officers who were in the department when Bell arrived. Moreover, Bell allegedly
made the statement not long after he joined to department, it was not made in connection with or
at the time of the decision-making on either of the promotions Webster sought.
During discovery in this case, Webster also claims that he heard Bell tell a visitor from
Hill Air Force base, where Bell had been previously employed, that he was “going to promote
some more of his people as soon as he got rid of some of the older officers.” Defendant claims
that Webster’s reliance on this statement is unavailing because Webster never mentioned this
statement in his EEO Complaint, in the EEO discovery, in his EEO motions, in his Complaint in
this case, or in response to written discovery in this case. Although Defendant contends that the
court should disregard this allegation as an attempt to create a sham fact issue, the statement is no
different than the statement Auriemma allegedly heard and the evidence in the record is that Bell
used the term to refer to officers who were at the VAMC before he was hired. See Franks v.
Nimmo, 96 F.2d 1230, 1237 (10th Cir. 1986) (“[T]he utility of summary judgment as a procedure
for screening out sham fact issues would be greatly undermined if a party could create an issue of
fact merely by submitting an affidavit contradicting his own prior testimony.”) Moreover, this
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one ambiguous statement was not directed at Webster and was not stated in connection with the
two promotions at issue.
Webster also attempts to use statistical information to support his claim of age
discrimination. However, the comparison of ages between officers joining the department and
those leaving the department, voluntarily and involuntarily, is of no relevance to Webster’s
claim. Moreover, by including voluntarily retiring officers, the statistics become meaningless.
Bell was involved with the termination of only two officers during his tenure at the VAMC, a 29year-old officer and a 49-year-old officer. This information does not provide a basis from which
a reasonable jury could infer disparate treatment based on age.
Webster’s burden is to produce evidence that establishes not only that the agency’s
decision-maker did not believe the reasons given for the challenged decisions, but also that the
decision-maker’s real reason was discriminatory. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993). There is no evidence that Chief Bell’s reason for not promoting Plaintiff was false.
Even if Bell may have made a statement that he wanted to get rid of older officers, there is no
evidence that Bell got rid of any of the older officers. Webster was not terminated. And,
significantly, Bell did not make the statement in connection to the promotions in question and it
does not undermine the fact that Bell relied on the highest score from the interview panel.
Webster claims that the individuals Bell selected to be on the interview panel did not like
him, but there is no evidence that anyone on the interview panel did not like him based on his
age. In fact, there is no evidence that the interview panel considered age at all. Therefore, the
court concludes that Defendant is entitled to summary judgment as a matter of law on Webster’s
age discrimination claim.
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3. Retaliation Claim
Defendant also moves for summary judgment on Defendant’s retaliation claim, asserting
that there is no evidence that Webster’s failure to be promoted was based on his participation in
protected activity. Federal employees are protected from retaliation for opposing a
discriminatory employment practice or making a charge of discrimination. Dossa v. Wynne, 529
F.3d 911, 915 (10th Cir. 2008). To establish a prima facie case of retaliation under Title VII, the
plaintiff bears the burden of showing “(1) that he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected activity and the materially
adverse action.” Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th
Cir. 2006).
Defendant does not dispute that the circumstances of Webster’s timely claims meet the
criteria for a prima facie case of retaliation. Webster participated in an EEO proceeding on
October 29, 2009, when he provided information to an EEO investigator in connection with
fellow Officer Ryan Zumwalt’s EEO complaint and he was not selected for the promotions he
applied for in December 2009.
Because Webster’s retaliation claim is based on the same promotion decisions as his age
discrimination claim, Defendant relies on the same nondiscriminatory reasons for its selection of
other candidates for the promotions that it relied on for purposes of the age discrimination claim.
The court concludes that these reasons meet Defendant’s burden of production for the retaliation
claim as well. Therefore, the issue is whether Plaintiff has established that Defendant’s
explanation for the adverse action is a pretext for discrimination. Burdine, 450 U.S. at 253.
“To raise an inference of pretext in the face of the employer’s legitimate,
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nondiscriminatory explanation, the plaintiff must undermine the employer’s credibility to the
point that a reasonable jury could not find in its favor.” Jaramillo v. Colorado Judicial Dep’t,
427 F.3d 1303, 1310 (10th Cir. 2005). A proffered reason is not pretextual “unless it is shown
both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor
Ctr., 509 U.S. at 515. “[A] plaintiff must produce evidence that the employer did more than get
it wrong. He or she must come forward with evidence that the employer didn’t really believe the
proffered reasons for the action and thus may have been pursuing a hidden discriminatory
agenda.” Id.
Webster argues that he was more qualified than the officers who were selected for the
promotions instead of him. However, the court must “proceed with caution when considering the
relative merits of individual employees.” Jaramilo, 427 F.3d at 1308. An employer can decide
which qualifications are most important to it, and “it is not for the court . . . to assess which
qualities should ‘weigh[] more heavily’ for an employer.” Pendleton v. Holder, 697 F. Supp. 2d
12, 18 (D.D.C. 2010). To establish a discriminatory animus, a plaintiff must demonstrate that the
disparity in the candidates’ qualifications are so overwhelming that they “jump off the page and
slap [the court] in the face.” Jaramillo, 427 F.3d at 1309. Bell and other officers who were
deposed did not dispute Webster’s skills as an officer but felt he lacked the necessary
interpersonal skills to lead other officers. The evidence Webster submits regarding the other
officers’ qualifications does not show that Webster’s qualifications were overwhelmingly
superior. The evidence from the interview panels show that the candidates selected responded
well on the topics deemed important. The court cannot second-guess which characteristics an
employer finds most valuable in certain leadership positions.
Webster also argues that Bell improperly influenced the interview panel but both Beard
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and Vouvalis testified that neither Bell nor the VAMC management provided any input as to who
should be selected. The panel members from outside the Va police department also testified that
they were not influenced by Bell or anyone else. In addition, Webster claims that Bell selected
panel members unfavorable to him, but there is no evidence that their opinions of him were
unfavorable based on a retaliatory intent. The evidence demonstrates that there were many
problems within the police department. But Webster has not demonstrated how any of those
problems relate to retaliation against him for being interviewed with respect to another officer’s
EEO Complaint. Even if some of the members on the interview panel did not select Webster
based on personal animus or retaliation, it is not enough unless Webster ties the retaliation to his
participation in protected activity.
Defendant argues that Webster cannot establish a retaliatory basis for Defendant’s failure
to promote him because Bell testified that he did not know that Webster had been interviewed by
the EEO investigator for Officer Zumwalt’s EEO complaint. Webster claims, however, that Bell
should have known everyone who was interviewed in connection with the complaint. Bell could
not have retaliated against Webster for something he was not aware of at the time he made the
promotion decisions. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th
Cir. 2003) (“In order to prevail, Raad must present evidence from which a reasonable trier of fact
could conclude that the school principals who refused to hire her were aware that she had
engaged in protected activity.”); Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000)
(“The critical issue here, however, is whether the person who made the decision to terminate
[plaintiff’s] employment was aware of the discrimination allegations at the time, because absent
such knowledge [plaintiff] lacks a causal link between the termination and the complaint of
discrimination.”). However, even if the court assumes that Bell knew that Webster was
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interviewed in connection with the other officer’s EEO Complaint, Webster has not shown that
Bell knew anything about what Webster said in connection with the complaint. Therefore, there
is no evidence that Bell knew that there was anything Webster had said that he would retaliate
against.
Moreover, Webster claims that Bell started retaliating against him prior to his protected
activity, which is clearly not possible. Webster claims that Bell retaliated against him for
complaints Webster filed between 2003 and 2007 before Bell worked at the Salt Lake VAMC.
There is no evidence that complaints filed while Bell was not working at the VAMC played any
role in Bell’s decision. Moreover, Webster’s prior complaints did not allege violations of the
ADEA or Title VII. Therefore, the court concludes that Webster has not produced evidence that
would allow a reasonable jury to conclude that Defendant’s reasons for not selecting him for
promotion were pretext for discrimination. Accordingly, the court grants Defendant’s motion for
summary judgment on Webster’s retaliation claim.
4. Hostile Environment Claim
To the extent the Webster’s hostile work environment claim could be considered timely
the court concludes that he has not demonstrated that a rational jury could find that his workplace
“was permeated with discriminatory intimidation, ridicule, and insult,” that was “sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Sandoval, 388 F.3d 1326-27. A plaintiff must show more than just a
working environment that he considers hostile. He must establish that he was targeted for
harassment because of his protected status. Id. Webster has not shown that he was subjected to
severe and offensive conduct based on his age or his EEO participation. Webster’s claims fall
short of the intimidation, ridicule, and insult tied to age and protected activity that is necessary to
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prove a claim. Therefore, even if the hostile work environment claim could be considered
timely, the court concludes that Defendant is entitled to summary judgment.
CONCLUSION
Based on the above reasoning, Defendant’s Motion for Summary Judgment is
GRANTED. Because this order disposes of all the claims at issue in the case, the Clerk of Court
is directed to enter judgment in favor of Defendant and close the case. Each party shall bear his
own fees and costs.
DATED this 28th day of June, 2016.
BY THE COURT:
___________________________________
DALE A. KIMBALL
United States District Judge
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