Brasch v. Peters

• Decision Date: 21 March 2007
• Docket Number: No. 4:05-CV-222 CAS.,4:05-CV-222 CAS.
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Stanley C. BRASCH, Plaintiff, v. Mary E. PETERS, in her official capacity as Secretary of Transportation,<SMALL><SUP>1</SUP></SMALL> Defendant.

479 F.Supp.2d 1045

Stanley C. BRASCH, Plaintiff, v. Mary E. PETERS, in her official capacity as Secretary of Transportation,¹ Defendant.

No. 4:05-CV-222 CAS.

United States District Court, E.D. Missouri, Eastern Division.

March 21, 2007.

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Stanley C. Brasch, St. Louis, MO, pro se.

Jane Rund, Office of U.S. Attorney, St. Louis, MO, for Defendant.

AMENDED MEMORANDUM AND ORDER

SHAW, District Judge.

This matter is before the Court on defendant's motion to dismiss or in the alternative for summary judgment. Plaintiff opposes the motion. For the following reasons the Court will grant the, alternative motion for summary judgment with respect to all claims.

Background

Plaintiff Stanley Brasch filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., against the United States Department of Transportation for employment discrimination based on religion (Judaism), national origin (Jewish),² and retaliation. Brasch alleges twenty-nine separate acts of retaliation, disparate treatment, and discrimination which he claims have occurred and are ongoing in his employment with the Federal Aviation Administration ("FAA" or the "agency"). Plaintiff's primary claim concerns a fourteen-day suspension without pay which he received in 2002. Plaintiff asserts that he was denied due process in connection with the suspension, and that both the suspension and the denial of due process were acts of retaliation and discrimination. Defendant moves to dismiss, or in the alternative, for summary judgment, on the basis that plaintiff has failed to exhaust administrative remedies and has failed to set forth a prima facie case of discrimination or retaliation. Defendant also asserts that if the Court were to find that plaintiff established a prima facie case, plaintiff cannot show that defendant's legitimate nondiscriminatory reasons for its actions are a pretext for illegal discrimination.

Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court. Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 948 (8th Cir.1999), cert. denied, 528 U.S. 1117, 120 S.Ct. 937, 145 L.Ed.2d 815 (2000); Woods v. Dugan, 660 F.2d 379, 380 (8th Cir.1981) (per curiam). When matters outside the pleadings are presented on a motion to dismiss, as in this case, the Court may either treat the motion as one to dismiss and exclude the matters outside the pleadings, or treat the motion as one for summary judgment and provide the parties with notice and an opportunity to provide further materials. See Gibb v. Scott, 958 F.2d 814, 816 (8th Cir.1992). As defendant's motion was alternatively captioned as a motion for summary judgment, plaintiff has had adequate notice and opportunity to provide further materials. See Gibb, 958 F.2d at 816. The Court notes that plaintiff submitted 193 exhibits of his own in opposition to the motion for summary judgment. The Court will therefore address defendant's alternative motion for summary judgment.

The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988) (the moving party has the burden of clearly establishing the nonexistence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in his pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir.2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir.), cert. denied, 528 U.S. 1063, 120 S.Ct. 618, 145 L.Ed.2d 512 (1999). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir.2004). "Self-serving, conclusory statements without support are hot sufficient to defeat summary judgment." Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.1993).

The Eighth Circuit has stated that summary judgment should seldom be used in cases alleging employment discrimination. Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir.2000). Summary judgment is appropriate, however, if the plaintiff has failed to present evidence sufficient to create a jury question as to an essential element of his claim. Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055 (8th Cir.2000) (citing Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir.1997)). "In an employment discrimination case, if evidence of the employer's proffered reason for its action is undisputed, the movant is entitled to a grant of summary judgment." Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir.2000).

With these standards in mind, the Court finds the following facts as true for purposes of resolving this motion for summary judgment.

Factual and Procedural Background³

Plaintiff Stanley Brasch has been employed by the FAA as a Grade Level FV-334-I Computer Specialist since November 1997. Plaintiff filed an EEO complaint against the agency's Kansas City Regional Office where he originally worked. Plaintiff states that the EEO complaint raised issues under the USERRA concerning his taking of military leave.⁴ Pl.'s Response at 4. Through a Settlement Agreement reached between plaintiff and the FAA to resolve the EEO complaint, plaintiff was reassigned from Kansas City to the St. Louis Gateway (T75) TRACON Service Support Center ("TRACON-75 SSC") in Bridgeton, Missouri, beginning January 16, 2001. The Settlement Agreement states in part that the move to St. Louis "is for the benefit of the employee." Def.'s Ex. B at 2, ¶ 1.a. The Settlement Agreement also states that "no disciplinary actions will be taken related to Mr. Brasch's employment while assigned to the Resource Management Branch on or before the date of this Settlement Agreement. This includes Mr. Brasch's detail to the Operations Branch during this timeframe." Id., ¶ 1.c. The Settlement Agreement is dated December 21, 2000. The EEO complaint filed in Kansas City forms the basis for the issues challenged in this action as being retaliatory.

At the time plaintiff transferred to St. Louis, the TRACON-75 SSC was preparing for a move to a new building in St. Charles, Missouri. Plaintiff remained a FV-334-I Computer Specialist following the reassignment. The FV-E334-I Computer Specialist is classified as an administrative position. Plaintiff is the only FV-334-I Computer Specialist assigned to the TRACON-75 SSC, and is supervised by Supervisor David Barr. All of the other employees supervised by Barr are FV-2101 Airway Transportation System Specialists ("2101 Specialists"), who work on National Air Space equipment at the facility. The 2101 Specialists are technical, rather than administrative, positions. Plaintiff is responsible for the maintenance of computer systems, work stations, file servers and other equipment that supports the National Air Space equipment maintained by the 2101 Specialists.

Plaintiff filed an EEO complaint on February 7, 2002, alleging retaliation and discrimination regarding the following issues: (1) plaintiff's fourteen-day suspension from work without pay effective February 10, 2002; (2) denial of floating meal break times; (3) denial of "spot leave" in January 2001 and. August 2001; (4) exclusion from division telephone conferences from January 2001 through April 2002; (5) denial of work schedule adjustment requests; (6) not reimbursed for compensatory travel time in June 2001; (7) not provided PBX Telephone Systems training; (8) not selected for temporary promotion to Manager, Program Support Unit; (9) management denied his request to serve as a Volunteer Ombudsman; (10) his supervisor Barr warned or advised other employees to be careful in dealing with plaintiff; (11) the agency dictated to plaintiff what route he should drive to work; (12) management located plaintiff in a computer equipment room that is harmful to his health and refused to provide him with other office space outside the computer room in an effort to force him to become sick and lose his job; (13) in June 2002, supervisor Jane Knoche accused plaintiff of damaging a government vehicle; (14) plaintiff did not receive a cash award...