United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiff's Motion for
Summary Judgment (DN 33), Plaintiff's Motion for Default
Judgment (DN 56), and Defendant's Partial Motion to
Dismiss (DN 54). The motions are ripe for adjudication. For
the reasons that follow, Plaintiff's motions are DENIED
and Defendant's motion is GRANTED IN PART and DENIED IN
Gail Marie Phoenix (“Phoenix”) was employed by
the Department of the Army during the time period relevant to
this lawsuit. On August 2, 2016, she contacted an Equal
Employment Opportunity counselor (“EEO
counselor”) regarding alleged discriminatory actions by
her employer, and on August 31, 2016, she filed the Formal
Complaint of Discrimination (DA Form 2590) (“Formal
Complaint”). (Compl. Ex. 2, at 2, DN 1-2). On July 7,
2017, the Equal Employment Opportunity Commission
(“EEOC”) issued a right-to-sue letter to Phoenix.
(Compl. Ex. 1, DN 1-1).
filed this action pro se, alleging discrimination and
retaliation against her in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17, and 42 U.S.C. § 1983. (Compl. 4, 5, 12).
extent this Court possesses jurisdiction over Phoenix's
claim, it is based on federal question jurisdiction. See 28
U.S.C. § 1331.
Plaintiff's Motion for Summary Judgment
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. Fed.R.Civ.P. 56(a). The moving party bears
the initial burden of stating the basis for the motion and
identifying the evidence demonstrating an absence of a
genuine dispute of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). If the moving party
satisfies its burden, the nonmoving party must then produce
specific evidence proving the existence of a genuine dispute
of fact for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
the Court must view the evidence in the light most favorable
for the nonmoving party, the nonmoving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the nonmoving party must
present facts proving that a genuine factual dispute exists
by “citing to particular parts of the materials in the
record” or by “showing that the materials cited
do not establish the absence . . . of a genuine
dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[nonmoving party's] position will be insufficient”
to overcome summary judgment. Anderson, 477 U.S. at
Phoenix presents no direct evidence of retaliation, the
burden shifting framework articulated in McDonnell
Douglas v. Green, 411 U.S. 792 (1973), applies. See
Scott v. Donahoe, 913 F.Supp.2d 355, 364 (W.D. Ky.
2012) (citing Chen v. Dow Chem. Co., 580 F.3d 394,
402 (6th Cir. 2009)). To prove a prima facie claim of
retaliation under Title VII, Phoenix must prove that:
“(1) [s]he engaged in activity protected by Title VII;
(2) the exercise of h[er] civil rights was known to the
defendant; (3) thereafter, the defendant took an employment
action adverse to the plaintiff; and (4) there was a causal
connection between the protected activity and the adverse
employment action.” Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citation
omitted). “The burden of establishing a prima facie
case is not an onerous one.” Lewis-Smith v. W. Ky.
Univ., 85 F.Supp.3d 885, 906 (W.D. Ky. 2015) (citing
Nguyen, 229 F.3d at 563).
Phoenix is able to make out a prima facie case, the burden
shifts to her employer to proffer a legitimate nonretaliatory
reason for its decision. Rogers v. Henry Ford Health
Sys., 897 F.3d 763, 772 (6th Cir. 2018) (quoting
Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th
Cir. 2009)). If her employer does so, “the plaintiff
must then prove by a preponderance of the evidence that the
reasons offered by the employer were pretextual.”
Id. (citation omitted).
points to five categories of “adverse acts” on
the part of her employer that purportedly give rise to her
retaliation claims: (1) the nonapproval of her time card; (2)
delay in her request for a work accommodation and the
purported disclosure of her medical condition; (3) job
application rejections; (4) a low performance evaluation; and
(5) the questioning of her security clearance.
Phoenix alleges that the nonapproval of her time card for the
period between December 11, 2016, and December 24, 2016 was
an adverse retaliatory act. Esper, however, has proffered a
declaration from Jeffrey Bryson, the individual responsible
for approving her time card, to the effect that Phoenix's
time card was not approved for two reasons: (1) she did not
submit her time card by the prescribed deadline; and (2) she
reported inaccurate hours. (Bryson Decl. ¶¶ 17-18,
DN 41-1). The evidence of record Phoenix cites to does not
dispel Bryson's first assertion; the time card in no way
indicates that Phoenix submitted it within the prescribed
time period. (Pl.'s Mot. Summ. J. Ex. 1, DN 33-1).
Moreover, Phoenix failed to respond to Bryson's second
assertion, i.e. that she reported inaccurate hours. ...