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Phoenix v. Esper

United States District Court, W.D. Kentucky, Louisville Division

November 14, 2019

DR. MARK T. ESPER, Secretary of the Army DEFENDANT


         This 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 PART.

         I. BACKGROUND

         PLAINTIFF 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).

         Phoenix 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).


         To the extent this Court possesses jurisdiction over Phoenix's claim, it is based on federal question jurisdiction. See 28 U.S.C. § 1331.


         A. Plaintiff's Motion for Summary Judgment

         In 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).

         While 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 252.

         Because 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).

         If 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).

         Phoenix 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.

         First, 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. ...

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