Holston v. The City of Hope, Arkansas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

KIM HOLSTON PLAINTIFF

v. Case No. 4:17-cv-04005

THE CITY OF HOPE, ARKANSAS;

CATHERINE COOK, in her Individual and

Official Capacity as City Manager; and

LARRY YORK, in his Individual and Official

Capacity as Public Works Director DEFENDANTS

MEMORANDUM OPINION

Before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 27). Plaintiff has

responded. (ECF No. 38). Defendants have replied. (ECF No. 41). The Court finds this matter ripe

for consideration.

BACKGROUND

This case is an employment discrimination and civil rights action brought under Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Americans with Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12112; and 42 U.S.C. § 1983. Plaintiff Kim Holston is an epileptic,

African American female who alleges that Defendants discriminated against her during the course of

her employment on the basis of her race, sex, and disability.

Defendant City of Hope, Arkansas (“the City”) maintains wastewater treatment facilities for

the purpose of treating and disposing of the City’s raw sewage. Plaintiff was hired by the City in

January 1987, as a laboratory technician in the City’s Wastewater Department. In 1992, the City

promoted Plaintiff to Assistant Superintendent of the Wastewater Department, and in 1999, Plaintiff

was again promoted to the position of Wastewater Superintendent. As Wastewater Superintendent,

Plaintiff oversaw the City’s two wastewater treatment plants, wastewater collection lines, and

manholes.

Defendant Cook—a Caucasian female—has been employed by the City since 1990, serving

as City Manager since 1996. As City Manager, Defendant Cook oversees all City operations and

reports to the City’s Board of Directors. Defendant York—a Caucasian male—has served as the

City’s Public Works Director since 2009. As Public Works Director, Defendant York oversees

several of the City’s departments, including the Wastewater Department.

Plaintiff started having seizures in April 2014. On October 4, 2014, Plaintiff suffered a severe

grand mal seizure, requiring her to be hospitalized for three days.1 Due to complications from this

seizure, Plaintiff took sick leave from October 28, 2014, through July 3, 2015. While Plaintiff was

out on sick leave, Defendant York became more involved in the day-to-day operation of the

Wastewater Department.

Defendants contend that after Defendant York became more hands-on in the Wastewater

Department, he discovered that the wastewater facilities were in a state of disrepair, operating poorly,

and struggling to comply with environmental laws. Defendants attribute the substandard state of their

wastewater facilities to Plaintiff mismanaging her department and not performing her job duties as

Wastewater Superintendent. Defendants further state that the deterioration of their wastewater

facilities had obviously been going on for years, not just in the time that Plaintiff had been out on sick

leave. However, Plaintiff alleges that the City had an antiquated sewer system slated for major

overhauls and that Defendants were well aware that the facilities were in disrepair. Plaintiff also

alleges that she was adequately performing her job duties, with Defendants urging her to keep the

ailing wastewater system running at maximum capacity despite any potential consequences.

1 “A grand mal seizure causes a loss of consciousness and violent muscle contractions. It’s the type of seizure most people

picture when they think about seizures.” Mayo Clinic, Grand Mal Seizure, https://www.mayoclinic.org/diseases-

conditions/grand-mal-seizure/symptoms-causes/syc-20363458 (last visited December 16, 2019).

While Plaintiff was on sick leave, Defendant York brought in Michael Arney—a Caucasian

male—and Scott Ross—an African American male—to help run the Wastewater Department. Arney

was serving as the Superintendent of the Street Wastewater Department and took over the running of

the Wastewater Department, essentially combining the two departments. Ross, who had been

previously employed by the Wastewater Department under Plaintiff, was brought in as a plant

operator.

On July 13, 2015, Plaintiff was released to return to work with the following restrictions: no

driving, climbing, or heavy work, office work only, and no starting and stopping pumps, engines, or

generators to control flow of raw sewage. Plaintiff alleges that when she returned to work, she was

relegated to sitting in an office and told to do nothing because she had been replaced by Arney and

Ross. Specifically, Plaintiff alleges that Arney had assumed all of her administrative duties and that

Ross was performing all of her physical duties. Plaintiff also alleges that she was willing and able to

perform her job duties, but that Defendant York was upset that she was allowed to return to work and

told her to stay out of Ross’s way because he was now in charge of the wastewater facilities.

In the fall of 2015, Plaintiff thought she would have to have surgery and knew she would be

terminated if she was absent from work past February 2016 because she had used all of her available

sick leave. Plaintiff expressed her concerns to Defendant Cook and told her that she was thinking

about retiring.

In October 2015, Plaintiff communicated to Defendant Cook that she was going to retire at

the end of the calendar year. Defendant Cook allowed Plaintiff to use her remaining sick leave and

vacation time to extend her employment through her January anniversary date in order to obtain

another year of service in the state retirement system. Plaintiff’s retirement date was set for February

1, 2016.

On December 3, 2015, Plaintiff turned in an unsigned return to work note, from Dr. Victor

Biton, stating that she had no work restrictions at that time, and that if any seizures with altered

awareness occur, restrictions may apply. Plaintiff then informed Defendant Cook that she was no

longer going to retire. Defendant Cook responded to Plaintiff via letter.

In the letter, Defendant Cook detailed how Plaintiff had recently informed Defendant Cook

that she had been diagnosed with epilepsy, was continuing to experience seizures, had a tumor on her

brain, was experiencing memory loss, had been referred to a brain surgeon, and had indicated that she

would be retiring in February 2016. Defendant Cook further explained that she could not accept Dr.

Biton’s return to work note because Dr. Biton was not the physician who signed Plaintiff’s previous

return to work note, and she had no knowledge that Dr. Biton was aware of the essential functions of

Plaintiff’s job or the location at which she worked. Defendant Cook affirmed Plaintiff’s retirement

date of February 1, 2016.

Defendants state that the decision to accept Plaintiff’s decision to retire was entirely

Defendant Cook’s and that Defendant Cook was not influenced by anyone else in that decision.

Defendants further state that Defendant Cook encouraged Plaintiff to go ahead and retire because

Defendant Cook believed that Plaintiff was unable to perform her required job duties and because it

had become apparent that Plaintiff had not been satisfactorily performing her job duties in the past.

Conversely, Plaintiff argues that she never had poor job performance reviews, that she was given no

opportunity to resume her job duties when she returned, and that Defendant York influenced

Defendant Cook’s decision to not allow her to return to work.

Plaintiff retired on February 1, 2016. On February 2, 2016, Plaintiff filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”), contending that the

City discriminated against her on the basis of her sex, race, and disability. On August 31, 2016, the

EEOC sent Plaintiff a notice-of-right to sue letter. On January 31, 2017, Plaintiff filed this lawsuit,

alleging claims of employment discrimination and civil rights violations. Defendants filed their

Motion for Summary Judgment and supporting documents (ECF Nos. 27-29) on October 11, 2019,

arguing that they are entitled to summary judgment on all of Plaintiff’s claims. Plaintiff opposes the

motion.

LEGAL STANDARD

“Summary judgment is appropriate 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.” Hess v. Union Pac. R.R.

Co., 898 F.3d 852, 856 (8th Cir. 2018) (citation omitted). Summary judgment is a “threshold inquiry

of . . . whether there is a need for trial—whether, in other words, there are genuine factual issues that

properly can be resolved only by a finder of fact because they reasonably may be resolved in favor of

either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material only

when its resolution affects the outcome of the case. Id. at 248. A dispute is genuine if the evidence

is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and all

reasonable inferences that arise from the evidence in a light most favorable to the nonmoving party.

Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving party

bears the burden of showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The

nonmoving party must then demonstrate the existence of specific facts in the record that create a

genuine issue for trial. Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). However, a

party opposing a properly supported summary judgment motion “may not rest upon mere allegations

or denials . . . but must set forth specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 256.

“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). Accordingly, the Court

applies the same summary judgment standard to discrimination cases as it does to all others.

DISCUSSION

Plaintiff claims that Defendants violated Title VII, the ADA, and her civil rights pursuant to

section 1983 by not allowing her to return to full duty and forcing her to retire from her employment

with the City because of her race, sex, and disability. The Court addresses each of Plaintiff’s claims

below.

I. Title VII Claims

Title VII of the Civil Rights Act of 1964 “provides remedies to employees for injuries related

to discriminatory conduct and associated wrongs by employers.” Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 342 (2013). Under Title VII, it is unlawful for an employer to discriminate

against an individual with respect to “compensation, terms, conditions, or privileges of employment”

because of that person’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

To survive a motion for summary judgment on a Title VII claim, a plaintiff must either offer direct

evidence of discrimination or create an inference of discrimination under the McDonnell Douglas

burden-shifting framework. Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014); Griffith v. City of Des

Moines, 387 F.3d 733, 736 (8th Cir. 2004).

Plaintiff has provided no direct evidence of discrimination on any of her claims, and thus, she

must create an inference of discrimination under the McDonnell Douglas burden-shifting

framework.2

2 Certain comments allegedly made by Defendant York could be construed as direct evidence of discrimination. However,

as discussed below, these comments are too far removed in time to be direct evidence of discrimination. Moreover,

Plaintiff does not cite to these comments as direct evidence of discrimination and instead attempts to create an inference

To create an inference of discrimination under McDonnell Douglas, the plaintiff must first

make a prima facie case of discrimination. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th

Cir. 1996). If the plaintiff makes this showing, the burden shifts to the defendant to present evidence

of a legitimate, non-discriminatory reason for the action it took. Id. If the defendant makes this

showing, the plaintiff must then show that the defendant’s proffered reason is merely a pretext for

illegal discrimination. Id.

A. Race Discrimination

The Court now addresses Plaintiff’s race discrimination claim. As discussed above, Plaintiff’s

race discrimination claim is subject to McDonnell Douglas analysis.

1. Prima Facie Case

As stated above, Plaintiff bears the initial McDonnell Douglas burden of establishing a prima

facie case of race discrimination. She must demonstrate that: (1) she is a member of a protected

class; (2) she suffered an adverse employment action; (3) she was meeting her employer’s legitimate

job expectations; and (4) the circumstances give rise to an inference of discrimination (for example,

if a similarly situated employee outside the protected class was treated differently). Takele v. Mayo

Clinic, 576 F.3d 834, 838 (8th Cir. 2009); Tolen v. Ashcroft, 377 F.3d 878, 882 (8th Cir. 2004). In

establishing a prima facie case, “the plaintiff’s burden ‘is not onerous.’” McGinnis v. Union Pac.

R.R., 496 F.3d 868, 873 (8th Cir. 2007) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981)). However, a failure to establish any element of a prima facie case defeats a Title

VII discrimination claim. Tatum v. City of Berkeley, 408 F.3d 543, 550-51 (8th Cir. 2009).

Defendants concede that Plaintiff, an African American, is a member of a protected class.

However, Defendants argue that (1) there was no adverse employment action; (2) Plaintiff was not

of discrimination via McDonnell Douglas on each of her claims.

meeting the City’s legitimate job expectations; and (3) there are not sufficient facts to give rise to an

inference of unlawful race discrimination.

i. Adverse Employment Action

Defendants argue that Plaintiff did not suffer an adverse employment action because she

voluntarily chose to retire. Plaintiff’s response does not address this argument, and thus, the Court

finds that Plaintiff did not suffer an adverse employment action. See Satcher v. Univ. of Ark. at Pine

Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th Cir. 2009) (“[F]ailure to oppose a basis for summary

judgment constitutes waiver of that argument.”). Moreover, retirement only amounts to an adverse

employment action when an employer forces an employee to choose between early retirement or

continuing to work under intolerable conditions, like the threat of termination without benefits. Smith

v. World Case Ins. Co., 38 F.3d 1456, 1461 (8th Cir. 1994).

In the case at bar, Plaintiff voluntarily decided to retire, publicly announced her decision, and

met with Defendant Cook to schedule her retirement so she would receive an extra year of service in

the state retirement system. There are no facts in the summary judgment record indicating that

Defendants forced Plaintiff to retire with the threat of making her work conditions intolerable. Rather,

Defendant Cook refused to allow Plaintiff to later renege on her decision to retire after her retirement

plans had been finalized. Therefore, the Court finds that Plaintiff did not suffer an adverse

employment action. Consequently, Plaintiff cannot establish a prima facie case and the Court’s

analysis could end here. However, the Court will nonetheless address the remaining prima facie

elements.

ii. Meeting Legitimate Job Expectations

Defendants argue that Plaintiff was not meeting her job expectations as Wastewater

Superintendent because they found the wastewater facilities in poor condition when Plaintiff went on

sick leave in October 2014. Plaintiff has failed to address this argument or cite any binding authority

on this issue. Consequently, the Court finds that Plaintiff has failed to prove that she was meeting

her legitimate job expectations. See Satcher, 558 F.3d at 735. Thus, Plaintiff has failed to establish

the third element of her prima facie case.

iii. Inference of Unlawful Race Discrimination

The Court now turns to the final prima facie element—whether the facts of this case give rise

to an inference of unlawful race discrimination. Plaintiff makes three arguments that this element is

satisfied.

First, Plaintiff argues that Defendant York commented that she should not have been hired

because she was a woman, called her a “black bitch,” and stated that she had “screwed the city out of

paying for her degrees.” Defendants dispute that any such comments were made, but contend that

even if Plaintiff’s allegations are true, these statements do not give rise to an inference of unlawful

race discrimination.

Upon consideration, the Court agrees with Defendants. “Not all comments that may reflect a

discriminatory attitude are sufficiently related to the adverse employment action in question to

support an inference of discrimination.” Yates v. Douglas, 255 F.3d 546, 549 (8th Cir. 2001) (quoting

Simmons v. Oce-U.S.A., Inc., 174 F.3d 913, 915 (8th Cir. 1999)). The comments in question were

allegedly made in either 2008 or 2009, years before Plaintiff retired in 2015. Thus, the Court finds

that any comments allegedly made by Defendant York are too far removed in time from the events at

issue in this case and do not give rise to an inference of unlawful discrimination. See id. (finding

offensive comments made one to two years before adverse employment action were not evidence of

discrimination).

Second, Plaintiff argues that Defendant Cook makes race-based decisions. Specifically,

Plaintiff argues that Defendant Cook spoke with her about placing Nathaniel Holyfield, an African

American, as Superintendent of the Sanitation Department. Plaintiff alleges that Defendant Cook

expressed a belief that because Holyfield was African American, he would do a better job managing

the Sanitation Department, which consisted of mostly African American employees. Defendants

dispute that Defendant Cook made these statements. However, even if the Court assumes arguendo

that Defendant Cook did say as much, this would mean that Defendant Cook treated members of

Plaintiff’s protected class—African Americans—more favorably, not less favorably, based on the

protected class status. Accordingly, these alleged statements do not give rise to an inference of

discrimination.

Finally, Plaintiff argues that she received disparate treatment compared to two similarly

situated Caucasian City employees—Edith McBride and Jimmy Bush. “The test for whether

employees are similarly situated . . . is rigorous.” Cronquist v. City of Minneapolis, 237 F.3d 920,

928 (8th Cir. 2001). Plaintiff bears the burden of showing that employees used for comparison are

similarly situated in all relevant respects. Ghane v. West, 148 F.3d 979, 982 (8th Cir. 1998). “The

individuals used for comparison must have dealt with the same supervisor, have been subjected to the

same standards, and engaged in the same conduct without any mitigating or distinguishing

circumstances.” Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1044 (8th Cir. 2007). In

addition, the individuals used for comparison must have held the same position. See Fercello v. Cnty.

of Ramsey, 612 F.3d 1069, 1082 (8th Cir. 2010). Employees are not similarly situated if one has a

more extensive disciplinary history than the other. See Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th

Cir. 2003) (“Three other individuals are not similarly situated because [the plaintiff] did not establish

that the circumstances of their misconduct were comparable in severity or frequency to [her]

infractions.”); Moss v. Texarkana Ark. Sch. Dist., 240 F. Supp. 3d 966, 974 (W.D. Ark. 2017).

Upon review, the Court finds that Plaintiff’s comparators are not similarly situated. Plaintiff

has put forth no evidence that either comparator shared the same supervisor, was subject to the same

standards, engaged in the same conduct, held the same or similar positions, had similar tenures, or

had similar roles or responsibilities. In fact, the evidence shows that McBride and Bush were

employed by the City’s Police Department and differed from Plaintiff in all of these aspects. This

precludes a finding that McBride and Bush are similarly situated to Plaintiff. See Morgan, 486 F.3d

at 1044; Ghane, 148 F.3d at 982. Therefore, the Court finds that Plaintiff has failed to demonstrate

an unlawful inference of discrimination by Defendants.

In sum, the Court finds that Plaintiff has failed to establish a prima facie case of race

discrimination.

2. Legitimate Non-Discriminatory Reason

Assuming arguendo that Plaintiff has made her prima facie case, the McDonnell Douglas

burden shifts back to Defendants, who must “articulate a legitimate, non-discriminatory reason for

the adverse employment action.” Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 435 (8th Cir.

2016). This is a light burden, as it is “one of production, not persuasion; it can involve no credibility

assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Defendants

state that Plaintiff voluntarily retired and that they accepted Plaintiff’s decision to retire because after

she went on sick leave, they discovered that the wastewater facilities were in poor condition and that

she had not been performing her job duties. This is sufficient to shift the McDonnell Douglas burden

back to Plaintiff to prove pretext.

3. Pretext

Plaintiff argues that Defendants’ proffered reason for accepting her retirement is mere pretext

for discrimination because (1) she received disparate treatment when compared to similarly situated

Caucasian employees; and (2) she had been competently performing her job duties as Wastewater

Superintendent for years.

As to Plaintiff’s disparate treatment argument, the Court reiterates its earlier finding that

Plaintiff’s comparators are not similarly situated, and thus, Plaintiff cannot show pretext on this basis.

Plaintiff’s argument that she had been adequately performing her job duties for years is likewise not

demonstrative of pretext. A “strong showing that the plaintiff was meeting his employer’s reasonable

expectations at the time of termination may create a fact issue as to pretext when the employer claims

that the employee was terminated for poor or declining performance.” Ridout v. JBS USA, LLC, 716

F.3d 1079, 1084 (8th Cir. 2013). However, Plaintiff relies on past performance rather than

performance at the time of her retirement and has admitted that there were issues with her

department’s performance before she began suffering seizures and went on sick leave. Plaintiff has

also failed to cite any summary judgment evidence regarding her job performance at any time during

her employment. This alone is fatal to Plaintiff’s argument. See Barge v. Anheuser-Busch, Inc., 87

F.3d 256, 260 (8th Cir. 1996). As such, the Court finds that Plaintiff has failed to prove pretext.

Overall, the Court finds that Plaintiff has failed to make her prima facie case and failed to

prove pretext. Therefore, Defendants are entitled to summary judgment on Plaintiff’s race

discrimination claim.

B. Sex Discrimination

The Court now turns to Plaintiff’s sex discrimination claim. Plaintiff has not offered direct

evidence of sex discrimination, and thus, her sex discrimination claim is also subject to McDonnell

Douglas analysis.

1. Prima Facie Case

To establish a prima facie case of sex discrimination, Plaintiff must establish (1) she was a

member of a protected class, (2) she was qualified for her job, (3) she suffered an adverse employment

action, and (4) there are facts that give rise to an inference of gender discrimination. Holland v. Sam’s

Club, 487 F.3d 641, 644 (8th Cir. 2007). Defendants concede that Plaintiff, a female, is a member of

a protected class. However, Defendants contend that Plaintiff has failed to prove any of the other

elements of her prima facie case.3

i. Qualified for Her Job

Defendants argue that Plaintiff was not qualified to perform her job based on the discovered

state of their wastewater facilities after Plaintiff took sick leave. However, Defendants later allowed

Plaintiff to return as Wastewater Superintendent after discovering the poor condition of the

wastewater facilities. Therefore, for the purpose of summary judgment, the Court assumes that

Plaintiff was qualified to perform her job. However, as discussed below, Plaintiff has failed to prove

the remaining elements of her prima facie case.

ii. Adverse Employment Action

As discussed above, retirement only amounts to an adverse employment action when an

employer forces an employee to choose between early retirement or continuing to work under

intolerable conditions, like the threat of termination without benefits. Smith, 38 F.3d at 1461. There

are no facts in the summary judgment record indicating that Defendants forced Plaintiff to retire with

the threat of making her working conditions intolerable. To the contrary, it is undisputed that Plaintiff

voluntarily chose to retire when she believed she did not have enough sick leave to recover from a

potential upcoming surgery and that Defendants did not allow her to later renege on the decision after

her retirement plans had been finalized. Therefore, the Court finds that Plaintiff did not suffer an

adverse employment action.

iii. Inference of Unlawful Gender Discrimination

Plaintiff appears to argue that the circumstances of this case permit an inference of gender

discrimination because she was treated disparately than similarly situated male City employees.

3 Plaintiff acknowledges that her sex discrimination claim is subject to McDonnell Douglas analysis and recites the prima

facie elements of sex discrimination in her briefing. However, Plaintiff does not argue several elements of her prima

facie case and is largely unresponsive to Defendants’ summary judgment arguments.

Specifically, Plaintiff alleges that she received disparate treatment compared to Jimmy Bush and Scott

Ross.

It is Plaintiff’s burden to prove that comparators are in fact similarly situated. See Morgan,

486 F.3d at 1044; Ghane, 148 F.3d at 982. Plaintiff has failed to set out facts or evidence that either

comparator shared the same supervisor, were subject to the same standards, engaged in the same

conduct, held the same or similar positions, had similar tenures, or had similar roles or responsibilities.

Moreover, even if Plaintiff had carried her burden, the Court finds that she is not similarly situated to

Bush and Ross. Bush was employed by the City’s Police Department and his employment with the

City differed from Plaintiff’s in all material aspects. Although Ross was employed in the Wastewater

Department, he was a plant operator whereas Plaintiff was the Wastewater Superintendent. There are

no facts in the summary judgment record suggesting that Plaintiff and Ross shared the same

supervisor, were subject to the same standards, engaged in the same conduct, held the same or similar

positions, had similar tenures, or had similar roles or responsibilities. Therefore, the Court finds that

the circumstances of this case do not permit an inference of unlawful discrimination based on

disparate treatment.

In short, the Court finds that Plaintiff has failed to make a prima facie case of gender

discrimination. However, assuming arguendo that Plaintiff did carry her prima facie burden, the

Court will finish its McDonnell Douglas analysis.

2. Legitimate Non-Discriminatory Reason

Assuming arguendo that Plaintiff has made her prima facie case, the McDonnell Douglas

burden shifts back to Defendants, who must “articulate a legitimate, non-discriminatory reason for

the adverse employment action.” Blackwell, 822 F.3d at 435. This is a light burden, as it is “one of

production, not persuasion; it can involve no credibility assessment.” Reeves, 530 U.S. at 142.

Defendants state that Plaintiff voluntarily retired and that they accepted her decision to retire because

after she went on sick leave, they discovered that the wastewater facilities were in poor condition and

that she had not been performing her job duties. This is sufficient to shift the burden shifts back to

Plaintiff to prove pretext.

3. Pretext

Plaintiff appears to argue that Defendants’ proffered reason for accepting her retirement is

mere pretext for discrimination because (1) she received disparate treatment when compared to

similarly situated male employees; and (2) she had been competently performing her job duties as

Wastewater Superintendent for years. The Court finds both arguments unpersuasive.

Regarding Plaintiff’s disparate treatment argument, the Court has found that Plaintiff’s

comparators are not similarly situated. Plaintiff’s argument that she had been adequately performing

her job duties for years also fails to demonstrate pretext. A “strong showing that the plaintiff was

meeting his employer’s reasonable expectations at the time of termination may create a fact issue as

to pretext when the employer claims that the employee was terminated for poor or declining

performance.” Ridout, 716 F.3d at 1084. However, Plaintiff again relies on past performance rather

than performance at the time of her retirement and admitted that there were issues with her

department’s performance before she began suffering seizures and went on sick leave. As such, the

Court finds that Plaintiff has failed to prove pretext.

In sum, the Court finds Plaintiff has failed to prove her prima facie case and pretext.

Accordingly, the Court finds that Defendants are entitled to summary judgment on Plaintiff’s sex

discrimination claim.

II. ADA Claim

The ADA makes it unlawful for a covered employer to discriminate against any qualified

individual on the basis of disability. Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013) (internal

quotation omitted). The Eighth Circuit recognizes two kinds of claims under the ADA: (1) reasonable

accommodation claims; and (2) discriminatory disparate treatment claims. Fenney v. Dakota, Minn.

& E.R.C., 327 F.3d 707, 711-12 (8th Cir. 2003). If a party alleges a discriminatory disparate treatment

claim, then the traditional McDonnell Douglas burden-shifting framework applies. Id. at 712. On

the other hand, if a party makes a reasonable accommodation claim, courts apply a modified burden-

shifting analysis. Id.

Plaintiff’s Complaint clearly alleges a claim for disparate treatment. However, Plaintiff has

asserted a reasonable accommodation claim—for the first time—in her response to Defendants’

Motion for Summary Judgment. The Court declines to address Plaintiff’s newly raised reasonable

accommodation claim at this late stage in the litigation. See N. States Power Co. v. Fed. Transit

Admin., 358 F.3d 1050, 1057 (8th Cir. 2004) (stating parties cannot “manufacture claims, which were

not pled, late in the litigation for the purpose of avoiding summary judgment”); see also Rodgers v.

City of Des Moines, 435 F.3d 904, 910 (8th Cir. 2006) (holding that district court properly refused to

consider unpled allegations raised in a response to a summary judgment motion). Accordingly, the

Court will only consider Plaintiff’s disparate treatment claim and apply the traditional McDonnell

Douglas analysis.

1. Prima Facie Case

“To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate

(1) her condition qualifies as a disability within the meaning of the ADA; (2) she is qualified to

perform the essential functions of the job, with or without reasonable accommodation; and (3) she

has suffered an adverse employment action due to her disability. Samuels v. Kan. City Mo. Sch. Dist.,

437 F.3d 797, 801 (8th Cir. 2006).

i. Disabled Within the Meaning of the ADA

An individual is defined as disabled within the meaning of the ADA if they suffer from

physical or mental impairment that substantially limits one or more major life activities. Gutridge v.

Clure, 153 F.3d 898, 900 (8th Cir. 1998). It is undisputed that Plaintiff was diagnosed with epilepsy

and that when she returned to work, she was under restrictions preventing her from driving and

performing manual labor. Therefore, the Court finds that Plaintiff has satisfied the first element of

her prima facie case.

ii. Qualified to Perform the Essential Functions of the Job

Defendants argue that Plaintiff was not qualified to perform her job based on the discovered

state of their wastewater facilities after she took sick leave. However, Defendants allowed Plaintiff

to return as Wastewater Superintendent after discovering the poor condition of the wastewater

facilities. Therefore, for the purpose of summary judgment, the Court assumes that Plaintiff was

qualified to perform the essential functions of her job. However, as discussed below, Plaintiff has

failed to prove the final element of her prima facie case.

iii. Adverse Employment Action

As discussed throughout, retirement only amounts to an adverse employment action when an

employer forces an employee to choose between early retirement or continuing to work under

intolerable conditions, like the threat of termination without benefits. Smith, 38 F.3d at 1461. There

is no evidence that Defendants forced Plaintiff to work under intolerable conditions or that Defendants

ever attempted to terminate Plaintiff’s employment after she returned from sick leave. Instead, the

summary judgment record indicates that Plaintiff chose to retire and that Defendants did not allow

her to back out of her decision after her retirement plans had been finalized. Therefore, the Court

finds that Plaintiff did not suffer an adverse employment action.

Accordingly, the Court finds that Plaintiff has failed to establish a prima facie case of

disability discrimination. However, assuming arguendo that Plaintiff can overcome her prima facie

burden, the Court will complete the McDonnell Douglas analysis.

2. Legitimate Non-Discriminatory Reason

Defendants, must “articulate a legitimate, non-discriminatory reason for the adverse

employment action.” Blackwell, 822 F.3d at 435. This is a light burden, as it is “one of production,

not persuasion; it can involve no credibility assessment.” Reeves, 530 U.S. at 142. Defendants state

that Plaintiff voluntarily retired and that they accepted her decision to retire because after she went

on sick leave, they discovered that the wastewater facilities were in poor condition and that she had

not been performing her job duties. This proffered reason is sufficient to shift the McDonnell Douglas

burden back to Plaintiff to prove pretext.

3. Pretext

To demonstrate pretext, a plaintiff must present sufficient evidence to demonstrate both “that

the employer’s articulated reason for the adverse employment action was false and that discrimination

was the real reason.” Wilking v. Cnty. of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998) (citation omitted)

(emphasis in original). “This burden will not be met by simply showing that the reason advanced by

the employer was false; rather, [the plaintiff] must demonstrate that a discriminatory animus lies

behind the defendants’ neutral explanations.” Roxas v. Presentation Coll., 90 F.3d 310, 316 (8th Cir.

1996). Specifically, the plaintiff “must do more than simply create a factual dispute as to the issue of

pretext; he must offer sufficient evidence for a reasonable trier of fact to infer discrimination.”

Mathews v. Trilogy Commc’ns., Inc., 143 F.3d 1160, 1165 (8th Cir. 1998).

Plaintiff does not argue that Defendants’ proffered reason for accepting her retirement is

merely a pretext for discrimination. Rather, she devotes significant space in her briefing to arguing

that Defendants failed to reasonably accommodate her disability. As discussed above, the Court will

not entertain this newly raised claim. Moreover, the summary judgment record clearly indicates that

Defendants’ decision to place Plaintiff on office duty when she returned to work was based on a

doctor’s restrictions. Even with these restrictions, the City did not demote Plaintiff or reduce her pay.

Therefore, the Court finds that Plaintiff has failed to prove pretext.

Overall, the Court finds that Plaintiff has failed to prove her prima facie case and pretext and

that Defendants are entitled to summary judgment on Plaintiff’s ADA claim.

III. Section 1983 Claims

Finally, the Court turns to Plaintiff’s section 1983 claims.

Plaintiff’s section 1983 claims for race and sex discrimination are subject to McDonnell

Douglas analysis. See Ottman v. City of Independence, Mo., 341 F.3d 751, 756 (8th Cir. 2003)

(applying McDonnell Douglas to a section 1983 claim). As discussed above, Plaintiff has failed to

create an inference of race and sex discrimination under McDonnell Douglas. Moreover, “an ADA

violation is not actionable under [section] 1983.” Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034,

1038 (8th Cir. 1998).4

Accordingly, Defendants are entitled to summary judgment on Plaintiff’s section 1983 claims.

CONCLUSION

For the above reasons, the Court finds that Defendants’ Motion for Summary Judgment (ECF

No. 27) should be and is hereby GRANTED. Plaintiff’s case is DISMISSED WITH PREJUDICE.

A separate Judgment consistent with this Opinion will be entered.

IT IS SO ORDERED, this 6th day of January, 2020.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

4 Because the Court has found no constitutional violation occurred, it does not address Defendants’ qualified immunity

arguments.