Chambers v. Secretary of Veterans Affairs, No. 1:2012cv00274 - Document 20 (S.D. Ohio 2013)
Court Description: ORDER granting defendant's 14 Motion for Summary Judgment. This action is hereby Dismissed on the docket of the Court. Any appeal of this matter would not be taken in good faith, and therefore Deny plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Karen L. Litkovitz on 8/21/2013. (art)
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- ------ Chambers v. Secretary of Veterans Affairs Doc. 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION JULIUS E. CHAMBERS, Plaintiff, Case No. 1: 12-cv-274 Litkovitz, M.J. (consent) vs. SECRETARY OF VETERANS AFFAIRS, Defendant, ORDER Plaintiff Julius E. Chambers brings this action prose against defendant Eric Shinseki, Secretary of the United States Department of Veterans Affairs (Secretary), alleging the Secretary discriminated against him on the basis ofhis disability and age in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., 1 and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. This matter is before the Court on the Secretary's motion for summary judgment (Doc. 14), plaintiffs response in opposition (Doc. 16), and the Secretary's reply. (Doc. 19). I. Facts Plaintiff is an honorably discharged veteran of the United States Marines over the age of 40 who suffers from diabetes. (Doc. 3 at 3, Complaint; Doc. 14, Ex. Bat 5-7, Plaintiffs Deposition Transcript). Plaintiffwas hired by the Veterans Administration Medical Center (VAMC) as a probationary vending machine clerk under a temporary 90-day appointment. (Doc. 14, Ex. C, 2, Declaration of Emily Sexton; Doc. 14, Ex. D, 3, Declaration of Gary Slucher). As a vending machine clerk, plaintiffs duties included cleaning, maintaining, and stocking vending machines. (Doc. 14, Ex. D, 3). At the time plaintiff was hired, the VAMC had already adopted and was implementing a computer program for the vending machines which 1 As explained irifra, plaintiff's disability discrimination claims are cognizable under the Rehabilitation Act of 1973, 42 U.S.C. § 791 et seq., rather than the ADA because he brings this action against the federal government. Dockets.Justia.com required vending machine clerks to utilize a hand-held electronic device to monitor stock. Id. While plaintiff successfully performed his vending machine clerk duties prior to implementation ofthe hand-held devices, he had substantial difficulty in learning the new system. (Doc. 14, Ex. Bat 14-15; Doc. 14, Ex. C, 2-3; Doc. 14, Ex. D, 3). Because plaintiff was considered a dedicated employee, Gary Slucher, Canteen Chief at the VAMC, decided to transfer plaintiff to retail to see if he would be more successful in that area. (Doc. 14, Ex. C, 4; Doc. 14, Ex. D, 1, 4). As a retail associate, plaintiffs duties included running a cash register, making sales and refunds, and stocking supplies. (Doc. 14, Ex. C, 5). Plaintiff had ongoing performance difficulties in the retail associate position, such as doing work other than running the cash register and following instructions as to other tasks. !d. Also, plaintiffs female co-workers registered complaints that plaintiff made comments about their ages and of a sexual nature that caused them to feel uncomfortable. (Doc. 14, Ex. C, Doc. 14, Ex. D, 8; 4). Emily Sexton, Assistant Canteen Chief, conferred with the Retail Store Manager, Roberta Fitters, about these complaints and plaintiffs performance. (Doc. 14, Ex. C, 1, 9). Upon being presented with these issues by Ms. Sexton, Mr. Slucher decided to not extend plaintiffs temporary appointment at the VAMC. (Doc. 14, Ex. C, 9; Doc. 14, Ex. D, 6). Mr. Slucher opted to not renew plaintiffs appointment rather than "terminate" his employment to avoid harming plaintiffs chances of obtaining future employment. (Doc. 14, Ex. D, 6). Mr. Slucher was not aware that plaintiff suffered from diabetes or that he needed to take insulin or sugar pills to manage his illness at the time he made the decision to not renew plaintiffs appointment. (Doc. 14, Ex. D, 7). Ms. Sexton was aware that plaintiff had diabetes and carried insulin with him, but was not aware that plaintiff needed to take sugar to manage his diabetes. (Doc. 14, Ex. 2 C, 6). Ms. Sexton states she never received a request for an accommodation from plaintiff for his diabetes or complaints about plaintiffs work activities involving his diabetes. (Doc. 14, Ex. C, 6-7). Plaintiffs verified complaint alleges the following: I am diabetic. I was told I had to deal with my condition on my own time. I had asked for time to check my blood sugar and to give myself shots and take sugar pills. These requests were denied. I have been discriminated against and terminated in violation of the ADA. I am over the age of 40. I was qualified for my position. I was told I was not learning a computer program fast enough and I was temporarily replaced by a significantly younger employee. I was discriminated against and terminated in violation of the ADEA. (Doc. 3 at 3). 2 Plaintiff testified that Ms. Fritter repeatedly harassed him for taking sugar pills during his tenure as a retail associate and told him to check his sugar levels on his own time. (Doc. 14, Ex. Bat 19, 21, 25). II. Summary Judgment Standard of Review The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). Assertions of undisputed facts must be supported by citations to particular parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The party opposing a properly supported summary judgment motion "'may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a 2 For summary judgment purposes, plaintiffs verified complaint carries the same weight as would an affidavit. El Beyv. Roop, 530 F.3d 407,414 (6th Cir. 2008). However, plaintiffs response to the motion for summary judgment, which he labels an affidavit (Doc. 16 at 1, 5), is not notarized or made under penalty of perjury. Therefore, plaintiffs unsupported assertions are not admissible evidence and the Court may not consider them in ruling on the motion for summary judgment. See Fed. R. Civ. P. 56(c)(4); 28 U.S.C. § 1746. See also Finch v. Xavier University, 689 F. Supp.2d 955, 962 (S.D. Ohio 2010) (the Court may not consider as evidence affidavits that are not notarized or sworn under penalty of perjury). 3 genuine issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (internal quotation omitted). A principal purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party need not support his motion with evidence disproving the opposing party's claims. Rather, the moving party need only point out there is an absence of evidence supporting such claims. Harstel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). Nor is the Court duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992). Rather, the burden is on the non-moving party to "present affirmative evidence to defeat a properly supported motion for summary judgment," Street v. JC. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the nonmovant's favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The Court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The Court must assess "whether there is the need for trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id at 250. "If the evidence is merely colorable, ... or is not significantly probative, ... the court may grant judgment." Anderson, 477 U.S. at 249-50 (citations omitted). 4 III. Analysis The Secretary seeks summary judgment on plaintiffs disability and age discrimination claims. As to plaintiffs disability claim, the Secretary asserts he is entitled to summary judgment as a matter of law because plaintiff cannot demonstrate that he was treated differently than any other employee or was terminated as a result of his diabetes. The Secretary further contends that summary judgment on plaintiffs ADEA claim is appropriate because plaintiff cannot rebut the Secretary's non-discriminatory reason for ending his employment at the VAMC. The Court will first analyze plaintiffs disability discrimination claims. A. Plaintiffs Disability Discrimination Claims At the outset, it is necessary to determine the precise disability claims raised by plaintiff. The Secretary asserts that "since [plaintiff] did not request reasonable accommodations, his claim of disability discrimination is one of disparate treatment." (Doc. 14 at 7). The undersigned disagrees with the Secretary's interpretation and finds that plaintiff has alleged two distinct disability claims: a failure to accommodate claim and a wrongful termination claim. Plaintiffs complaint provides that his disability discrimination claims arise from his termination and the Secretary's alleged refusal to accommodate his need to manage his diabetes while at work. See Doc. 3 at 3 ("I am diabetic. I was told I had to deal with my condition on my own time. I had asked for time to check my blood sugar and to give myself shots and take sugar pills. These requests were denied. I have been discriminated against and terminated in violation of the ADA."). The Court therefore construes plaintiffs complaint as alleging both a failure to provide reasonable accommodation claim and a wrongful termination claim. Nevertheless, for the following reasons, the Secretary is entitled to summary judgment on both claims. 5 Because plaintiff seeks recovery and redress for disability discrimination by the federal government, his claims are cognizable under the Rehabilitation Act of 1973, 29 U .S.C. § 791 et seq., rather than the ADA as alleged in the complaint (Doc. 3 at 3). See 42 U.S.C. § 12111(5)(B)(i) (excluding the United States government from the definition of an "employer" under the ADA); Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007) ("The Rehabilitation Act, not the Americans with Disabilities Act (ADA), constitutes the exclusive remedy for a federal employee alleging disability-based discrimination."). Nevertheless, the Rehabilitation Act explicitly incorporates the legal standards of the ADA, see 29 U.S.C. § 791(g), and judicial decisions applying the ADA are applicable to Rehabilitation Act cases. See Doe v. Salvation Army in US., 531 F.3d 355, 357 (6th Cir. 2008) (citing Brenneman v. MedCentral Health Sys., 366 F.3d 412,418 (6th Cir. 2004)). 3 Under the Rehabilitation Act, "[ n ]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance .... " 29 U.S.C. § 794(a). Disability discrimination under the Rehabilitation Act, which incorporates the standards of the Americans with Disability Act, includes: 3 Title 29 C.F.R. § 1614.203(b) provides: The standards used to determine whether section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has been violated in a complaint alleging nonaffirmative action employment discrimination under this part shall be the standards applied under Titles I and V (sections 50 I through 504 and 510) of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201), as such sections relate to employment. These standards are set forth in the Commission's ADA regulations at 29 CFR part 1630. 6 not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. 42 U.S.C. § 12112(b)(5)(A). To prevail on his failure to accommodate claim, plaintiff must first establish a prima facie case by showing: (1) he is an individual with a handicap ... ; (2) he is qualified for the position ... ; (3) the agency was aware of his disability; (4) an accommodation was needed, i.e., a causal relationship existed between the disability and the request for accommodation; and (5) the agency failed to provide the necessary accommodation. Once the plaintiff has presented a prima facie case, the burden shifts to the employer to demonstrate that the employee cannot reasonably be accommodated, because the accommodation would impose an undue hardship on the operation of its programs. DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir. 2004) (quoting Gaines v. Runyon, 107 F.3d 1171, 1175-76 (6th Cir. 1997) (citations omitted)). It is undisputed that plaintiff has diabetes mellitus. The Secretary argues there is no evidence suggesting that this condition substantially limits plaintiff such that it qualifies as a disability under the Rehabilitation Act. However, federal regulations provide that diabetes "will, as a factual matter, virtually always be found to impose a substantial limitation" on endocrine function. 29 C.P.R. § 1630.2(j)(3)(ii)-(iii). The Court will assume, for purposes of the motion for summary judgment, that plaintiffs diabetes constitutes a disability under the Act. Even assuming plaintiff is disabled within the meaning of the Rehabilitation Act, summary judgment is nevertheless appropriate because plaintiff has failed to establish "an accommodation was needed" for his diabetic condition. DiCarlo, 358 F.3d at 419. Plaintiff testified that rather than face admonishment from Ms. Fitter for monitoring his blood sugar throughout the day, he was able to "compress" his monitoring into less time. (Doc. 14, Ex. Bat 7 20-21 ). Plaintifftestified he would monitor his blood sugar right before he started work, during his break, at lunch time, and then when he went home in the evening. !d. Plaintiff also testified that he never formally asked for an accommodation from Ms. Fitters "because she told me I had to do it on my time so like I said, I just compressed it to my break time and my lunch time and things like that." !d. at 21-22. There is simply no evidence that plaintiff needed an accommodation for his diabetes to perform the essential functions ofhis job. See 29 C.F.R. § 1630.2(o)(1)(ii) (defining reasonable accommodation to include "modifications or adjustments .. . that enable a qualified individual with a disability to perform the essential functions of that position"). Plaintiff's testimony indicates he was fully able to perform his job without accommodation. Nor has plaintiff presented evidence that the self-imposed changes in the monitoring of his blood sugar interfered with the essential functions of his job or adversely impacted his health. Plaintiff's sworn testimony demonstrates that he was able to manage his diabetes on his own by re-scheduling his routine and that he did not require any reasonable accommodation from the Secretary. Because there are no genuine issues of fact as to whether plaintiff needed an accommodation for his diabetes, the Secretary is entitled to summary judgment on this claim. The Court now turns to plaintiff's disability termination claim. To establish a wrongful termination claim under the Rehabilitation Act, a plaintiff must show that 1) he is disabled; 2) he is otherwise qualified for the position, with or without reasonable accommodation; 3) he suffered an adverse employment action; 4) the employer knew or had reason to know of plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced. Spence v. Donahoe, 515 F. App'x 561, 567-68 (6th Cir. 2013) (citing DiCarlo v. Potter, 358 F.3d 408, 418 (6th Cir. 2004)). The fifth element of the prima facie case may also be established by evidence showing 8 "similarly situated non-protected employees were treated more favorably." !d. (citing Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007)). Once the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a non-discriminatory explanation for the employment action. Jones, 488 F.3d at 404. If the defendant does so, the burden shifts back to the plaintiffto prove that the defendant's explanation is pretextual. !d. A plaintiff must prove that his disability was a but-for cause of the employer's adverse employment action. Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 323 (6th Cir. 2012). Assuming, for argument's sake, that plaintiff has established a prima facie case under the Rehabilitation Act, plaintiff has nevertheless failed to show that the Secretary's stated nondiscriminatory reason for not renewing his employment is pretextual. The Secretary has put forth evidence of a non-discriminatory reason for not renewing plaintiffs employment, namely plaintiffs inability to follow instructions on the job and to complete requisite job duties, and employee complaints about plaintiffs on-the-job conduct. See Doc. 14, Ex. C, Ex. D, Doc. 14, 4-6. Plaintiff has failed to proffer any evidence rebutting the Secretary's non- discriminatory basis for ending his appointment at the VAMC. In the absence of any rebuttal evidence, there is no genuine issue of material fact as to the Secretary's legitimate basis for not renewing his employment. See Hibbler v. Regional Medical Ctr. at Memphis, 12 F. App'x 336, 340 (6th Cir. 2001) (employer entitled to summary judgment where employee fails to rebut legitimate, nondiscriminatory reason for termination). Accordingly, the Secretary is entitled to summary judgment on plaintiffs wrongful termination disability discrimination claim. B. Age Discrimination Claim The ADEA prohibits an employer from discharging or otherwise discriminating against any individual in the terms or conditions of his employment because of his age. 29 U.S.C. § 9 623(a)(l). In an age discrimination case, whether a plaintiff seeks to prove his case by direct or circumstantial evidence, he has the burden of persuasion to demonstrate "that age was the 'butfor' cause of his employer's adverse action." Geiger v. Tower Automotive, 579 F.3d 614, 621 (6th Cir. 2009) (citing Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 178 n.4 (2009)). Where a plaintiff seeks to establish his age discrimination claim by circumstantial evidence, the claim may be analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). See Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 n.2 (6th Cir. 2010) (citing Geiger, 579 F.3d at 622). A plaintiff may establish a discrimination claim by either direct or circumstantial evidence. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010). "Direct evidence of discrimination is 'that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions."' Wexler v. White's Fine Furniture, Inc., 317 F.3d 564,570 (6th Cir. 2003) (en bane). "Circumstantial evidence, on the other hand, is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred." !d. A plaintiff who lacks direct evidence of discrimination may establish a prima facie case of discrimination through circumstantial evidence by showing that: 1) he is a member of a protected class; 2) he suffered an adverse employment action; 3) he was qualified for the position lost or not gained; and 4) he was replaced by an individual outside the protected class. Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). The fourth prong is modified for an age discrimination claim to require replacement by a "substantially" or "significantly" younger person, which may include an individual within the protected class. 0 'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,312-313 (1996); Grosjean v. First Energy Corp., 349 F.3d 10 332, 335 (6th Cir. 2003). Plaintiff may also establish the fourth prong of a prima facie case of discrimination by showing that he was treated less favorably than a similarly-situated individual outside the protected class. See Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002). If the plaintiff establishes a prima facie case, the employer can overcome the prima facie case by articulating a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Ifthe employer carries its burden, the plaintiff must show that the reasons offered by the employer were not its true reasons but were a pretext for discrimination. !d. at 804. The Secretary contends that he is entitled to summary judgment on plaintiffs age discrimination claim because plaintiff cannot establish the fourth prong of his claim - that he was treated differently than younger employees- nor can he rebut the Secretary's proffered nondiscriminatory reason for not renewing plaintiffs employment. The undersigned agrees. As to plaintiffs inability to establish a prima facie case, the undersigned notes that upon review of plaintiffs complaint, it is apparent that plaintiffs age discrimination claim involves his transfer from vending machine clerk to retail associate subsequent to the implementation of the computer inventory program and not the Secretary's non-renewal of his appointment at the VAMC. See Doc. 3 at 3 ("I am over the age of 40. I was qualified for my position. I was told I was not learning a computer program fast enough and I was temporarily replaced by a significantly younger employee."). "Reassignments without changes in salary, benefits, title, or work hours usually do not constitute adverse employment actions." Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002). Here, plaintiff testified that while he could not fully recall, he did not believe that he was paid a different wage for the retail position. (Doc. 14, Ex. Bat 17). Nor is there evidence that plaintiffs benefits changed or that the change of title 11 from "vending machine clerk" to "retail associate" was a demotion. As for working different hours, it appears that plaintiffs job became less demanding after the transfer as he no longer had to, per his testimony, arrive early and stay late to accomplish his duties. See Doc. 14, Ex. Bat 12-14. Accordingly, plaintiff has failed to demonstrate that the transfer to the retail store was an adverse employment action and he cannot establish a prima facie case of age discrimination. To the extent that plaintiffs age discrimination claim stems from the Secretary's nonrenewal of his temporary employment, plaintiff has failed to put forth evidence that he was replaced at the sales position by a "substantially" or "significantly" younger person for purposes of his prima facie case. O'Connor, 517 U.S. at 312-313; Grosjean, 349 F.3d at 335. There is simply no evidence in the record from which the Court can conclude that the Secretary hired a person younger than plaintiff to fill his position as a retail sales associate. Without demonstrating this requisite element, plaintiffs age discrimination claim fails as a matter of law. Lastly, as noted above in regard to the disability claim, even ifplaintiffhad established a prima facie age discrimination claim, the Secretary is entitled to summary judgment because plaintiff has failed to rebut the proffered non-discriminatory basis for his non-renewal. As with the disability discrimination claims, upon satisfying his prima facie burden and being presented with a legitimate non-discriminatory basis for the non-renewal, plaintiff was required "to show that the [Secretary's] non-discriminatory explanation is a mere pretext for intentional age discrimination." Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). Plaintiff has failed to raise a genuine issue of fact that his temporary employment was not renewed due to performance and conduct problems. See Doc. 14, Ex. C, Doc. 14, Ex. D, 4-6. Indeed, in his brief in opposition plaintiff does not even address the Secretary's evidence or assert that his age was the basis for his non-renewal. See Doc. 16 at 5-8 (the only discussion 12 of age in plaintiffs brief is that his co-workers at the retail store were "young"). The Secretary is entitled to summary judgment on plaintiffs age discrimination claim as plaintiffhas failed to establish a prima facie case or rebut the Secretary's non-discriminatory basis for not renewing his employment. III. Conclusion For the above-stated reasons, the Secretary's motion for summary judgment (Doc. 14) is GRANTED. This action is hereby DISMISSED on the docket ofthe Court. The Court certifies pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of this Order would not be taken in good faith and plaintiff is therefore denied leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997). IT IS SO ORDERED. Date:s/u}3 I Karen L. Litkovitz United States Magistrate Judge 13 SENDER: • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. X B. Received by (Printed Name) l 0 Addressee C. Date of Delivery D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 1. Article Addressed to: :rv \,· ".s E . CJ'\ At'V'l.b t.,......$ Po 0 o)L J fc7 Ct l"\-t., o H 45" 2.:3 3.Sfjvice Type Mail 0 Registered 0 Insured Mail 0 Express Mail 0 0 Return Receipt for Merchandise C.O.D. 4. Restricted Delivery? (Extra Fee) 2. Article Number (Transfer from seNice label) 3811, February 2004 7011 3500 0001 5345 9374 0 Yes
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