United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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” 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.
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.
STANDARD OF REVIEW
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).
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.
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.
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