Decision Date18 February 2010
Docket NumberCase No. 4:06CV1692SNLJ.
Citation690 F. Supp.2d 850
PartiesKathleen S. STIPE, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Defendant.
CourtU.S. District Court — Eastern District of Missouri

Kathleen S. Stipe, Madison, IL, pro se.

Stephen S. Davis, Office of U.S. Attorney, St. Louis, MO, for Defendant.


STEPHEN N. LIMBAUGH, JR., District Judge.

Pro se plaintiff has filed this employment discrimination action alleging numerous instances of discrimination in violation of the Age in Discrimination Act (ADEA), 29 U.S.C. § 621 et. seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq.1 This matter is before the Court on defendant Secretary's motion for summary judgment 46, filed September 11, 2009. All responsive pleadings, including plaintiff's amended response, have now been filed and the matter is ripe for disposition.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). Although summary judgment should seldom be granted in employment discrimination cases, it is proper in those cases wherein the plaintiff fails to establish a factual dispute on an essential element of the case. Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1205 (8th Cir.1997), citing Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995). "Although summary judgment is to be used sparingly in employment discrimination cases, it is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim." Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000) (citations omitted). The Eighth Circuit has "repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based. Summary judgment is not appropriate unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998) (citations omitted); see, Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003) citing Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999). However, it is clear that to survive summary judgment, a plaintiff must support his/her allegations with sufficient probative evidence to permit a finding in the plaintiff's favor based upon more than mere speculation, conjecture, or fantasy. Putman v. Unity Health System, Inc., 348 F.3d 732, 733-34 (8th Cir.2003) quoting Wilson v. Int'l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995); Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir.2003)(plaintiff's theory of age discrimination failed "because this theory is supported more by contentions and speculation than evidence, it is insufficient to withstand summary judgment.").

Although the Court is required to view the facts in the light most favorable to the nonmoving party, it should not accept "unreasonable inferences or sheer speculation as fact.". Howard v. Columbia Public School District, et al., 363 F.3d 797 800 (8th Cir.2004). A plaintiff may not "simply point to allegations made in her complaint but must identify and provide evidence of `specific facts creating a triable controversy.'" Howard, at 800 quoting Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076, 1085 (8th Cir.1999). Furthermore, a plaintiff may not simply provide a massive record expecting the Court to sift through it in an effort to find support for the plaintiff's allegations. Howard, at 800-01 (citations omitted). The Court is only obligated to consider "admissible evidence and disregard portions of various affidavits and depositions that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions in fact.". Howard, at 801 citing Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th Cir.2003).

Before setting forth the Court's findings of fact, the Court must address the plaintiff's amended response 61 which appears to be a combination of cited administrative regulations and caselaw, as well as her "responses" to the defendant's statement of uncontroverted material facts 49. As noted by the defendant in his reply brief 64, plaintiff's revisions still do not set forth proper factual responses as required under Local Rule 4.01(E) nor do they raise any genuine issues of fact.2 Even as revised, for example, plaintiff's responses to defendant's factual statement numbers 1-16, 28, 29, 32, 33, 35, 37, 38, 39, 40-43 fail to contain any reference to the evidentiary record before the Court. Many of the plaintiff's revised responses are nothing more than her unsupported speculations, argument, or some type of legal conclusion; for example, her responses to defendant's factual statement numbers 16, 17, 28, 29, 33, 34, 36, 37, 39, and 44. As to # 34, plaintiff simply states "See Plaintiff's Exhibit BB". This is not acceptable to the Court. Thus, the Court finds the following facts not in dispute or resolved by the Court based upon the evidentiary record before it. The following facts are those established by the administrative record, the written transcriptions of administrative proceedings, affidavit(s), and other miscellaneous documents submitted by the parties, and said evidence viewed in the light most favorable to the non-movant (plaintiff).3

Administrative Review History

Plaintiff Stipe, during the relevant time-period, was employed by the VA as an Education Case Manager, GS-10, Education Customer Service Division, Veteran's Affairs Regional Office in St. Louis, Missouri. On or about June 5, 2004 plaintiff filed a formal EEO complaint alleging disability discrimination due to a hostile work environment. Gov. Exhibit A.4 Pursuant to her request, the EEO allowed plaintiff to amend her complaint in January 2005 to include additional instances of alleged harassment due to her "disability". Gov Exhibit B. On March 30, 2005 the plaintiff again amended her EEO complaint to add claims of age discrimination and retaliation (for the filing of an EEO complaint). Gov. Exhibit C.

The VA's Office of Resolution Management (ORM) conducted "an appropriate investigation" of the plaintiff's complaint in its entirety. Upon completion of its investigation, the ORM forwarded its investigative file to the VA's Office of Employment Discrimination Complaint Adjudication (OEDCA). On or about August 22, 2005, the VA issued its Final Agency Decision (FAD) regarding the plaintiff's mixed EEO complaint. Gov. Exhibit D.

In its FAD, the VA addressed each of the plaintiff's thirty-two (32) instances/claims of discrimination and concluded that she had failed to establish that she was discriminated against based on age, disability, or reprisal. Among other things, it found that plaintiff was chronically tardy, had made a physical threat against a supervisor, had been accommodated (for an alleged back problem) by allowing plaintiff to choose her "tour of duty" and allowed time to stand by her desk (as opposed to sitting for extensive periods of time), and was not subjected to any slurs or objectionable language.

Plaintiff appealed the FAD to the Merit Systems Protection Board (MSPB), which reviewed the adverse agency charges of plaintiff's excessive unexcused tardiness and disrespectful conduct on non-discrimination grounds.5 Gov. Exhibit E. In its initial decision, the MSPB upheld the VA's adverse employment actions of disciplining the plaintiff, and ultimately, terminating her employment as an appropriate response to the plaintiff's conduct. As for the plaintiff's age, disability and retaliation discrimination claims, the MSPB found that the plaintiff had failed to support any of her claims of discrimination.

Plaintiff then filed a petition for review of the MSPB's initial decision with the full Board.6 On or about August 2, 2006, the MSPB issued its final decision. Gov. Exhibit F. The MSPB (full Board) found no new significant evidence to...

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