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Ray v. McDonald

United States District Court, E.D. Tennessee, Greeneville

May 3, 2017

DORTHY KAY RAY, Plaintiff,
ROBERT A. McDONALD, Secretary, Department of Veterans Affairs, Defendant.



         The plaintiff brought this action for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 (“ADEA”) against her employer, the Department of Veterans Affairs. The plaintiff alleges sex and age discrimination by disparate treatment and that she was subjected to a hostile work environment. The defendant filed a motion for summary judgment, [Doc. 22], asking this Court to dismiss all claims against him because the plaintiff is unable to sustain any sex or age discrimination action. The plaintiff initially failed to respond to the defendant's motion for summary judgment within the time allowed by the Rules of Civil Procedure or the local rules. Fifty-five days after the defendant filed its motion, the Court ordered the plaintiff respond to the dispositive motion or indicate her lack of opposition to the relief sought. [Doc. 21]. The plaintiff then filed a short, two-page response to the motion, making no legal argument, but rather presenting the Court with the procedural posture of the case and objecting to a couple of the defendant's statements of material fact. [Doc. 27]. The defendant replied. [Doc. 33]. This matter is ripe for review. For the reasons that follow, the defendant's motion for summary judgment, [Doc. 22] is GRANTED.

         I. FACTS

         In 1992, at the age of 41, plaintiff began working as a diagnostic radiology technologist (“DRT”) at the James H. Quillen Veterans Administration Medical Center (“VAMC”) in Mountain Home, Tennessee. Plaintiff continued to work as a DRT until her retirement on November 7, 2012, when she applied for disability benefits, alleging that she was unable to work due to knee and back conditions. Around the year 2000, the plaintiff requested that her hours be reduced to a part-time schedule. This request was granted and the plaintiff worked a standard part-time schedule of 20 hours per week, not including additional overtime hours. The plaintiff never applied for any open full-time DRT position after requesting to work only part-time. Since the year 2009, the plaintiff refused to work the third/midnight shift, one of the three shifts of each 24-hour period. However, between 2009 and 2011, the plaintiff's income increased due to the amount of extra/overtime shifts that she worked. From 2009 to 2012, Randy Shoun was the plaintiff's first-line supervisor as Supervisory DRT and Mary Jane McKinney was the plaintiff's second-line supervisor as Chief Technologist. Dr. Salman Qayum, M.D. was the Head of the Radiology Department at the VAMC during this time.

         Around 2011, the VAMC determined that its patients could be better served if DRT's were cross-trained on basic computed tomography (“CT”) modalities in an effort to improve response times for some victims. According to McKinney, newly-hired DRTs were cross-trained first while current employees were cross-trained as training opportunities became available that fit within the employees' work schedules. Cross-training occurred informally while the DRT was on-duty and as patient numbers and modality coverage allowed. The plaintiff did not receive the CT cross-training before her retirement.

         In her complaint, the plaintiff alleges discrimination based on her sex and age which constituted disparate treatment and a hostile work environment. The alleged discrimination is based on some decisions by “Management”[1] which she defined as McKinney and Shoun, and some comments allegedly made by a co-worker, Ron Zimmern and Dr. Qayum, head of the Radiology Department. The complaint alleges the following incidents as her factual basis for relief:

1. In 2009, plaintiff's request to work on the Magnetic Resonance Imaging (“MRI”) modality, which “should have been chosen according to seniority, ” was denied “due to her age and sex.”
2. In November 2009, Shoun gave plaintiff an “unjustified performance rating” which was subsequently upgraded to “exceptional.”
3. From April 2010 to June 2011, plaintiff was “refused to work overtime which was again chosen according to seniority” and management chose instead “predominately less senior, younger males” to work the overtime shifts.
4. In July 2010, the plaintiff was questioned by “management” about her retirement plans.
5. In October 2010, Shoun gave plaintiff an “unjustified performance rating.” After additional meetings regarding the x-ray mistakes used to compute her rating, the plaintiff's performance rating was subsequently upgraded. Plaintiff alleges that the mistakes on the x-rays used to give her lower rating were “falsified” by Shoun.
6. From June 13, 2011 to the time of her retirement on November 7, 2012, the plaintiff was “denied overtime opportunity which violated the seniority system.” The Court notes that according to her testimony, plaintiff was on medical leave from May to October 2012, thereby more appropriately making this allegation that she was wrongfully denied overtime from June 13, 2011 to May 2012.
7. Plaintiff was refused an opportunity to cross-train on the CT machines violating the seniority system, thereby denying her “advancement and increased compensation.” 8. At a July 12, 2011 monthly staff meeting, Dr. Qayum made a comment about “older employees being set in their ways” when discussing changes in the department. Further, Ron Zimmern was allowed to “rant and rave” about older employees not doing their job without any interruption from management.
9. On July 20, 2011, plaintiff had an interaction with Zimmern wherein she believed it necessary to call security. Following the interaction, management “failed to correct” Zimmern's behavior and he was not disciplined whereas she was verbally counseled.
10. Upon returning from medical leave in October 2012, she was refused a “light duty” assignment and was asked to perform tasks she was physically unable to perform.

         Because the plaintiff did not address factual or legal arguments in her response, the Court must rely upon the complaint and deposition to determine the plaintiff's allegations for sex and age discrimination. Upon reviewing the allegations, the Court categorizes these allegations into seven categories: (1) 2009 denial of request to work MRI modality; (2) denial of overtime; (3) “unjustified performance ratings”; (4) questioning about retirement; (5) denial of cross-training; (6) comments regarding older employees being set in their ways and Zimmern's comments about older employees at the monthly staff meeting; and (7) plaintiff was verbally disciplined while a male employee was not for an incident.


         Summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Id. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797, 800 (6th Cir. 2000). This Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. If this Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

         The party opposing a Rule 56 motion may not simply rest on the mere allegations or denials contained in the party's pleadings. Anderson, 477 U.S. at 256. Instead, an opposing party must affirmatively present competent evidence sufficient to establish a genuine issue of material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial is not established by evidence that is merely colorable, or by factual disputes that are irrelevant or unnecessary. Id. at 248-52.

         II. ANALYSIS

         Title VII makes unlawful an employer's decision “to discharge any individual, or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ADEA prohibits discrimination and retaliation based on an employee's age where the employee is over 40 years old. 29 U.S.C. §§ 623(a)a, 623(d); Gomez-Perez v. Potter, 553 U.S. 474, 481 (2008). The plaintiff alleges she was subjected to age and sex discrimination by disparate treatment and a hostile work environment based on her sex and age. To prevail on a sex discrimination claim under Title VII or an age discrimination claim under the ADEA, the plaintiff must establish her claims through either direct or circumstantial evidence.

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