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Klopfer v. Shulkin

United States District Court, D. New Mexico

May 23, 2017

FREDERICK KLOPFER, Plaintiff,
v.
DAVID J. SHULKIN, Secretary of Veterans Affairs, Defendant.

          MEMORANDUM OPINION AND ORDER

         Plaintiff Frederick Klopfer (Plaintiff) asserts claims of employment discrimination arising out of Plaintiff's employment as a Psychologist with the Department of Veterans Affairs (VA). See Complaint for Employment Discrimination on the Basis of Age and Sex ¶¶ 1, 6 (Doc. 1) (Complaint). Defendant Secretary of Veterans Affairs (Defendant) has moved for summary judgment on all of Plaintiff's claims. See Doc. 30 (Motion). The Court has jurisdiction over the claims under 28 U.S.C. § 1331, and the parties have consented to the exercise of jurisdiction, including the entry of final judgment, by the undersigned Magistrate Judge. See 28 U.S.C. § 636(c); (Docs. 9 & 10). Having given due consideration to the memoranda and exhibits submitted by the parties and the relevant authorities, the Court finds that there are no material issues of fact in dispute and that Plaintiff has failed to submit evidence that would permit judgment in his favor. Therefore, the Court will grant Defendant's Motion for Summary Judgment.

         I. BACKGROUND[1]

         On February 13, 2011, Plaintiff was hired by the VA as a supervisory psychologist after being interviewed by two people, one male and one female, and receiving final approval from a third person, Dr. Kathleen Padilla, who became Plaintiff's supervisor. Mot. at 3, Statement of Undisputed Material Facts (UMF) ¶¶ 1-6; Ex. 1, Klopfer Depo. 8:16-9:9, 10:16-11:15, 13:3-6; Ex. 2, Notification of Personnel Action NOA. Dr. Padilla was 60 years old when she hired Plaintiff, and she believed that Plaintiff was in his mid-sixties. UMF ¶¶ 7, 11; Ex. 3, Padilla EEO Statement, 4:2-5, 5:1-6. Plaintiff was actually 62 years old when hired. See Ex. 8, Notice of Right to File Complaint. Of the five other program directors, three were over the age of 40 but Plaintiff was the oldest. UMF ¶ 10, Ex. 1, 46:11-49:2.

         While Plaintiff was the only male program director, Dr. Padilla had hired two other male employees - one was her secretary, and one worked in the finance department. UMF ¶ 10, Ex. 1, 11:8-15; Resp. ¶ 10, Ex. A, Klopfer Depo. 11:8-15. Plaintiff alleges that Dr. Padilla delayed hiring him in an attempt to get the female who had previously held that position to return. Resp. ¶ 35. Yet Plaintiff bases this allegation, which Defendant disputes, not on personal knowledge but only on what “[o]ther people told me.” Ex. A, 95:19-96:14.

         Plaintiff worked at the VA residential treatment program located in Gallup, New Mexico. UMF ¶ 8, Ex. 1, 13:21-24. All of the other VA programs were in Albuquerque, and Plaintiff was the sole person not located in Albuquerque under Dr. Padilla's supervision. UMF ¶ 9, Ex. 1, 11:4-7, 46:25-47:2. Prior to Plaintiff's employment, staff at the Gallup VA consistently participated in Albuquerque meetings via a telephone located at the Gallup facility. UMF ¶ 13, Ex. 3, 5:21-24. Dr. Padilla instructed Plaintiff to likewise telephonically attend staff meetings that were held in Albuquerque, rather than driving in from Gallup to attend in person. UMF ¶ 12, Ex. 3, 20:23-21:10. Unfortunately, there were sometimes technical problems making Plaintiff's attendance by phone difficult or impossible, including poor connections and meetings held in rooms without telephones. UMF ¶ 14, Ex. 3, 16:1-8, 20:10-19; Resp. ¶¶ 12-13. When Plaintiff was unable to attend a meeting, Dr. Padilla would criticize him but she did not yell at Plaintiff or raise her voice. UMF ¶¶ 17-18, Ex. 1, 63:4-12.

         Plaintiff's position was an excepted appointment subject to a one-year probationary period. UMF ¶¶ 3-4; Ex. 1, 23:22-24:10, Ex. 2. Defendant does not dispute that the first time Plaintiff and Dr. Padilla met, she told him that she had a sense he would need weekly supervision. Resp. ¶ 23, Ex. A, 87:1-12. Plaintiff was later criticized by Dr. Padilla for failing to meet her expectations in various aspects of his job performance, including inadequate provision and documentation of care and lack of appropriate staff supervision. UMF ¶¶ 26-27, Ex. 6, Memorandum; Ex. 7, Report of Contact. Dr. Padilla denied Plaintiff's travel and training requests, UMF ¶¶ 19-20, Ex. 3, 8:4-23, and Plaintiff asserts generally that Dr. Padilla treated him differently than the other program supervisors, Resp. ¶ 22, Ex. A, 78:8-19. Plaintiff testified that similar requests, specifically a request to take veterans to a “Stand Down” celebration, was refused when such a request had previously been approved for a younger female employee; in conclusory fashion, Plaintiff maintains that he was criticized for things that the younger female employees were not. Resp. ¶¶ 16, 22, 26, 46, Ex. A, 74:20-76:7, Ex. B, 60:21-61:1. Plaintiff felt that he was supervised more closely than the other program directors, and asserts that he was the only one written up for not meeting deadlines. Resp. ¶¶ 37-39, Ex. B, 15:14-20, Ex. D, ¶ 35. Yet Plaintiff admits he does not have personal knowledge of directives or discipline imposed on others. Reply at 7, Ex. A, 78:8-10, 92:12-16. Dr. Padilla did tell Plaintiff that she had expected that he would fulfill his duties more successfully due to his years of experience as a psychologist, but Plaintiff concedes that she did not mention his age. Resp. ¶ 43, Ex. 1, 76:23-77:13.

         On September 27, 2011, Dr. Padilla extended Plaintiff's rating period, although this did not affect the length of time during which Plaintiff was considered a probationary employee. UMF ¶ 23, Ex. 5, Memorandum. Two days later, Plaintiff contacted the EEO alleging a hostile work environment and citing a series of incidents that he considered harassment, including Dr. Padilla's criticism of his work, denial of his travel requests, and requirement that he attend Albuquerque meetings telephonically despite his difficulties with equipment. UMF ¶ 24, Ex 8. On October 7, 2011, she issued Plaintiff a written reprimand detailing his allegedly poor performance and his failure to respond appropriately to prior attempts at correction. UMF ¶ 25, Ex. 1, 85:2-11. UMF ¶ 26, Ex. 6. When she reviewed the records of Plaintiff's patients during the weekly supervision meeting on October 25, 2011, Dr. Padilla found nine records lacking appropriate documentation, and she issued a report noting the deficiency. UMF ¶ 27, Ex. 7. Plaintiff denies that these were his cases, but concedes Dr. Padilla's report. Resp. ¶ 27, Ex. B, 66:20-23.

         On November 9, 2011, Plaintiff was notified that his employment would be terminated during his probationary period for failure to follow supervisory instructions. UMF ¶ 28, Ex. 9, Letter. Plaintiff's employment with the VA was terminated effective November 25, 2011. UMF ¶ 28, Ex. 9.

         On November 10, 2011, the day after the termination notice, Plaintiff filed a formal complaint of discrimination with the EEO alleging that he had been subjected to a hostile work environment and discriminated against based his age and gender. UMF ¶ 32, Ex. 10, Notice of Corrected Partial Acceptance of EEO Complaint. At that time, Plaintiff was 63 years old. UMF ¶ 30, Ex. 8. The EEO accepted 24 listed acts for consideration in relation to Plaintiff's claim of a hostile work environment, all of which related to the telephonic meetings and Dr. Padilla's criticism of Plaintiff's job performance and denial of his travel requests. UMF ¶ 32, Ex. 10. The EEO also considered two discrete acts of alleged discrimination, namely Plaintiff's receipt of the written reprimand on October 7, 2011 and Plaintiff's termination from his employment on November 25, 2011. UMF ¶ 32, Ex. 10. Of note, it is undisputed that Dr. Padilla was unaware that Plaintiff had contacted the EEO or had filed an EEO complaint until after Plaintiff's termination. UMF ¶ 25, Ex. 1, 85:12-86:9.

         After investigation, the EEO mailed a final agency decision to Plaintiff on December 10, 2015 that denied all of Plaintiff's claims. UMF ¶ 33. Shortly thereafter, on March 10, 2016, Plaintiff timely the instant action alleging discrimination on the basis of age and sex. UMF ¶ 34; Compl. ¶ 1. Plaintiff's Complaint contains two counts, one for “age discrimination” and one for “sex discrimination, ” both of which purport to rely on Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and include allegations of disparate treatment and a hostile work environment. Compl. ¶¶ 1, 21-28. However, age is not a protected category under Title VII. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting employment discrimination because of “race, color, religion, sex, or national origin”). “Looking beyond labels to the substance of the allegations . . . so as to do justice, ” Alpine Bank v. Hubbell, 555 F.3d 1097, 1107 (10th Cir. 2009), the Court will follow the lead of Defendant, see Mot. at 9-19, and construe the Complaint as raising claims under both Title VII and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq., and setting forth theories of disparate treatment and a hostile work environment.

         Defendant has moved for summary judgment and argues that all of Plaintiff's claims must fail as a matter of law because Plaintiff has not presented evidence that the either an adverse employment action or allegedly hostile acts had any relation to Plaintiff's age or gender, nor were they sufficiently severe or pervasive to alter the conditions of Plaintiff's employment. Mot. at 2, 10.

         II. DISCUSSION

         Summary judgment may be granted 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 of law.” Fed.R.Civ.P. 56(a). The Court will draw all reasonable inferences in favor of Plaintiff, as the nonmoving party. See Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). However, Plaintiff must point to evidence, not mere allegations, which would allow a rational factfinder to enter judgment in his favor to defeat summary judgment. See Id. at 1265-66. Both Title VII and the ADEA require Plaintiff to prove that his employer intentionally discriminated against him. See Id. at 1266. This proof may be provided “through either direct evidence or circumstantial evidence that creates an inference of intentional discrimination.” Id.

         A. Hostile ...


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