United States District Court, E.D. Arkansas, Western Division
ANDREW L. HORTON, Plaintiff,
ERIK K. SHINSEKI, Secretary of Veterans Affairs, Defendant.
ORDER AND OPINION
KRISTINE G. BAKER, District Judge.
On March 15, 2013, plaintiff Andrew L. Horton filed this action against defendant Eric K. Shinseki, as the then-Secretary of Veterans Affairs (the "Secretary"),  alleging discrimination, retaliation, and harassment on the basis of race, color, and sex (Dkt. No. 1). Before the Court is the Secretary's motion for summary judgment (Dkt. No. 17), to which Mr. Horton responded (Dkt. No. 22). For the reasons below, the Court grants the Secretary's motion for summary judgment.
I. Factual Background
The following facts are taken from the Secretary's statement of uncontested facts (Dkt. No. 19). Mr. Horton did not file a response admitting or denying specifically the facts in the Secretary's statement of uncontested facts but stated that "most of the information... presented was incorrect, the dates are incorrect" (Dkt. No. 22). Mr. Horton has not cited to the record, or pointed to a lack of record evidence, to support his general statement. For these reasons, the Court accepts the Secretary's statement of uncontested facts, where supported by the record or not specifically contested by Mr. Horton, as true to resolve this motion. See Robinson v. American Red Cross, 753 F.3d 749, 754-55 (8th Cir. 2014) (considering facts in movant's statement of uncontested facts to be undisputed where non-movant failed to submit responses to movant's statement, through a "separate, short and concise statement of the material facts as to which it contends a genuine dispute exists to be tried, " as required by this Court's Local Rule 56.1).
Mr. Horton, an African American male, is currently employed as the housekeeping aide supervisor at the Central Arkansas Veterans Healthcare System in Little Rock, Arkansas. He filed this employment discrimination action when he was not considered for or selected as the textile care distribution supervisor. The textile care distribution supervisor position was advertised through USA Jobs and open to agency employees only. Applications were accepted from December 21, 2011, through January 4, 2012.
Deniese Evans, as the Chief of Environmental Services, was the selecting official for the supervisor position for which Mr. Horton applied. Mr. Horton filed prior Equal Employment Opportunity ("EEO") complaints against Ms. Evans in 2005 and testified before an administrative investigative board in July 2010. Charlie Reed was the human resource staffing specialist responsible for reviewing and screening applications for the position to make sure that applicants submitting applications met the qualifications for the job so as to enable those applicants' names to be placed on the selection certificate. At the time Mr. Reed worked on the position for which Mr. Horton applied, Mr. Reed did not know Mr. Horton, had never met him, and did not know of Mr. Horton's prior EEO activity or testimony.
USA Jobs found Mr. Horton to be ineligible for the position because he either did not submit an occupational questionnaire, which was part of the application package, or did not answer all of the required questions in the questionnaire. Because USA Jobs found Mr. Horton ineligible, USA Jobs did not rate Mr. Horton for the position. As a result, Mr. Reed did not place Mr. Horton's name on the selection certificate. Mr. Horton appears to argue that Ms. Evans and Mr. Reed conspired to compromise his application, though Mr. Horton admits that he has no evidence to support this theory (Dkt. No. 18-1, at 45).
Mr. Reed placed the names of two other male applicants on the selection certificate. Unlike Mr. Horton, USA Jobs found eligible and rated both applicants whom Mr. Reed placed on the selection certificate. Ms. Evans selected one of those applicants, who is Caucasian, for the position.
II. Legal Standard
Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
"There is no discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (citations omitted). Accordingly, this Court applies the same summary judgment standard to discrimination cases as it does to all others.
A. Race Discrimination
Because Mr. Horton presents no direct evidence of race discrimination, he must attempt to create an inference of unlawful discrimination under the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012). Under the McDonnell Douglas analysis, "the plaintiff bears the burden of establishing a prima facie case of discrimination." McGinnis v. Union P. R.R., 496 F.3d 868, 873 (8th Cir. 2007). If a plaintiff makes out a prima facie case, he creates a presumption of unlawful discrimination, and the burden shifts to the defendant to come forward with evidence of a legitimate, ...