Dougherty v. Leidos

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SEAN P. DOUGHERTY, )

)

Plaintiff, )

)

vs. ) Case No. 4:21-cv-01163-MTS

)

LEIDOS, )

)

Defendant. )

MEMORADNUM AND ORDER

Plaintiff Sean P. Dougherty filed a pro se Complaint against his former employer,

Defendant Leidos, Inc., asserting sex and disability discrimination in violation of federal

antidiscrimination laws. See Doc. [1]. Now before the Court is Defendant’s Motion for

Summary Judgment, under Federal Rule of Civil Procedure 56, in which Defendant seeks

judgment in its favor on all of Plaintiff’s claims. Doc. [70]. After a careful review of the

briefing and of the record, and after drawing reasonable inferences in the light most favorable to

Plaintiff, the Court concludes, for the reasons explained herein, that Defendant has shown that

there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of

law. The Court therefore will grant Defendant’s Motion and enter judgment in its favor.

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56 requires federal district courts to grant a party’s

motion for summary judgment if the party “shows that there is no genuine dispute as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). As the Supreme Court has explained, the main purpose of the summary judgment

procedure “is to isolate and dispose of factually unsupported claims or defenses,” with due

regard being given to the rights of those opposing a claim or defense to demonstrate in the

manner provided by Rule 56, prior to trial, that a claim or defense has no factual basis. Celotex

Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); accord Bedford v. Doe, 880 F.3d 993, 996 (8th

Cir. 2018). Afterall, if a nonmoving party cannot assemble sufficient evidence to make out its

claim, a trial would be pointless. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see

also Celotex, 477 U.S. at 331 (Brennan, J., dissenting); Charles E. Clark, The Summary

Judgment, 36 Minn. L. Rev. 567, 578 (1952) (explaining that a trial should not be “forced upon a

litigant by one with no case at all”). While employment discrimination cases often are fact

intensive, there is no exception to the application of summary judgment or the summary

judgment standard in discrimination cases. Lovelace v. Washington Univ. Sch. of Med., 931 F.3d

698, 705 (8th Cir. 2019) (“There is no discrimination-case exception to a district court’s power

to grant summary judgment.”); Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.

2011) (en banc) (describing summary judgment as “a useful pretrial tool to determine whether

any case, including one alleging discrimination, merits a trial”).

On a motion for summary judgment, the movant—here, Defendant—bears the initial

responsibility of informing the district court of the basis for its motion and must identify the

portions of the record that it believes demonstrate the absence of a genuine dispute of material

fact. Torgerson, 643 F.3d at 1042; Bedford, 880 F.3d at 996. Since the burden of persuasion at

trial in this case would be on Plaintiff—the non-moving party here—Defendant may satisfy Rule

56’s burden of production in one of two ways. Defendant may either produce evidence negating

an essential element of Plaintiff’s case, or it may show that Plaintiff does not have enough

evidence of an essential element of his claims to carry his ultimate burden of persuasion at trial.

Bedford, 880 F.3d at 996; accord Fed. R. Civ. P. 56(c)(1). Put differently, if Plaintiff must prove

X to prevail, then Defendant, here at the summary judgment stage, can either produce evidence

that X is not so or Defendant may point out that Plaintiff lacks evidence to prove X. Bedford,

880 F.3d at 996; see also Celotex, 477 U.S. at 325 (making clear that “the burden on the moving

party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case”).

The “initial burden on the movant is ‘far from stringent’ and ‘regularly discharged with

ease.’” Bedford, 880 F.3d at 996 (quoting St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d

587, 596 (8th Cir. 2001)). Once Defendant has satisfied it, Plaintiff “must respond by submitting

evidentiary materials” of specific facts showing the presence of a genuine issue for trial.

Bedford, 880 F.3d at 996 (quoting Torgerson, 643 F.3d at 1042). Plaintiff’s response must do

more than raise some abstract doubt about the material facts, id., and he cannot rest on mere

denials or allegations, Gibson v. American Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012).

Plaintiff must instead present enough evidence that a jury could reasonably find in his favor. Id.;

Bedford, 880 F.3d at 996.

Accordingly, the Court must examine whether Defendant has satisfied its initial burden

and, if so, whether Plaintiff sufficiently responded. In doing so, the Court will view the evidence

and draw reasonable inferences in the light most favorable to Plaintiff, since he is the nonmoving

party here. Ryno v. City of Waynesville, 58 F.4th 995, 1004 (8th Cir. 2023) (“Summary

judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the

light most favorable to the nonmovant, no genuine issue of material fact exists and the movant is

entitled to judgment as a matter of law.”); Scott v. Harris, 550 U.S. 372, 378 (2007) (explaining

that when the parties’ version of events differ, “courts are required to view the facts and draw

reasonable inferences in the light most favorable to the party opposing the summary judgment

motion” (internal quotations and alterations omitted)).

II. Background

Defendant is a scientific engineering and technology applications company that works in

the areas of national security and critical infrastructure, among others. In February 2020,

Plaintiff began working for Defendant as a Network Support Specialist within the Defense

Information Systems Agency (“DISA”) building at Scott Air Force Base. Network Support

Specialists support the contract Defendant has with DISA. Plaintiff’s position was not a

cybersecurity one, and prior to his acceptance of the position, Plaintiff was informed of that fact.

A recruiter with Defendant told Plaintiff that he could apply and interview for a cybersecurity

position with Defendant after he received his Security Plus certification. The recruiter, however,

never promised Plaintiff any cybersecurity position; the recruiter told Plaintiff only that he could

apply and interview for cybersecurity roles for which he was qualified. Defendant, though, has a

policy that requires employees to have a minimum of twelve months of good standing in their

current role before an intercompany placement or transfer. As Plaintiff acknowledges, when

employees move roles shortly after starting them, it is “difficult” for both Defendant and for its

customers because Defendant must fill the position of the transferring employee who would have

taken considerable time to hire and train for the position they then are departing. Doc. [83] ¶ 6.

A. Applications for Other Positions

By March 2020, the month after Plaintiff started working at Defendant, he already had

applied for several other positions with Defendant.1 After receiving multiple applications from

Plaintiff, Defendant’s recruiter reminded Plaintiff that Defendant’s policy said employees should

1 Plaintiff applied for thirteen other positions with Defendant in the first six months after accepting his employment.

stay in their position for twelve months before seeking transfer. Undeterred, Plaintiff said that

his current position was not a good fit for him. For that reason, in April 2020, Plaintiff’s then-

supervisor assisted Plaintiff in finding a different role on Defendant’s DISA contract. The

parties dispute whether his then-supervisor explained to Plaintiff that the move would be an

exception to the twelve-month rule. In his new position, Plaintiff worked as a Network

Controller and reported to Janice Richardson. At this same time, Plaintiff also returned to

working in the DISA building, after working from home for a stretch in his prior position due to

the coronavirus pandemic. No one in the Network Controller position that reported to

Richardson worked from home during the time of Plaintiff’s employment.

B. Extended Time Off

While Plaintiff worked as a Network Controller, Defendant allowed Plaintiff to take time

off work to complete a course of training for the Security Plus certification exam and to take the

exam itself.2 Plaintiff’s supervisor informed him that he could use up to forty hours of

unaccrued paid time off to prepare for and take the exam. Doc. [87-1] at 38. Plaintiff completed

the Security Plus bootcamp on Monday, June 29, 2020, and was scheduled to take the exam on

Tuesday, July 7, 2020. Though he would ostensibly complete the test on a Tuesday, he informed

his supervisor that since he had “so much going on” it “would be best for [him] to take the whole

week [of July 6] off.” Id. at 41.

On July 6, when Plaintiff’s supervisor inquired about the test scheduled for the next day,

Plaintiff informed her that he “had to reschedule” the exam due to “a ridiculous amount of

personal stress.” Id. at 43. Despite not taking the test that week, he took the entire week off

work. Saturday, July 11, was the new scheduled test day. It turned out, though, that the

2 Plaintiff did not need a Security Plus certification in order to perform the CVN work to which he was assigned.

Doc. [83] ¶ 79.

disability service department of the test administrator, which Plaintiff needed, was not available

on the weekend. Plaintiff rescheduled again, this time for Tuesday, July 14. After Plaintiff told

his supervisor of the latest rescheduling of the test, Plaintiff’s supervisor said she would see him

on Wednesday, July 15. Id. at 46. Plaintiff finally took the test on July 14. Afterwards, he told

his supervisor he would be back to work on Friday, July 17 (not Wednesday, July 15). Alas, he

did not return to work until Monday, July 20. Doc. [83] ¶ 22. Altogether, Plaintiff submitted

over fifty-five hours of unaccrued paid time off, more than the forty hours Defendant told him he

could take.

C. COVID-19 Quarrel

The following month, in August 2020, Plaintiff ran afoul of Defendant’s COVID-19

pandemic requirements. At the time, DISA required everyone working in its building to certify

they were not experiencing any COVID-19 symptoms before entering each day, and it also

required all persons in the building to wear masks at all times unless they were eating or drinking

or unless they were at a workstation positioned at least six feet from others. On August 12,

Lindsey Liefer, a supervisor, saw Plaintiff speaking with another employee while unmasked.

Liefer told Plaintiff to put on his mask, and then she walked away. Instead of putting on his

mask as requested and required, Plaintiff summoned Liefer over to him and asked her if he

“look[ed] like a dog to [her].” Doc. [83] ¶ 30. Liefer again instructed Plaintiff to put on his

mask and he then did so.3 The very next day, on August 13, Plaintiff told Richardson, his direct

3 With his summary judgment opposition briefing, Plaintiff provided what he titled a declaration that seeks to

recharacterize this exchange. Doc. [87-10]. First, his declaration was neither made under oath nor in compliance

with 28 U.S.C. § 1746. Second, even assuming the declaration could be used to support other factual positions, it

cannot be used on this point. In his declaration Plaintiff wrote that he put on his mask “after the first time” Liefer

asked him to put it on. Doc. [87-10] ¶ 7. At least on this point, the declaration is a sham. See Button v. Dakota &

E. R.R. Corp., 963 F.3d 824, 830 (8th Cir. 2020) (explaining a sham affidavit is one that “contradicts prior

testimony” or is a “sudden and unexplained revision of testimony [that] creates an issue of fact where none existed

before”). Elsewhere, Plaintiff consistently has noted that Liefer had to tell him multiple times to put on his mask

before he finally complied. For example, months before Plaintiff filed this action, he numerically delineated what

supervisor, via a private Facebook message, that he had “been sick for the past few days,” with

symptoms that included a “[s]evere” headache, a stuffy nose, and a sore throat, along with

“breathing problems.” Doc. [87-1] at 74–75. It is generally known that these are COVID-19

symptoms.

D. The Final Written Warning

On August 14, 2020, Richardson emailed Fred Hudson “addressing Plaintiff’s numerous

performance issues.” Doc. [83] ¶ 34. Among these performance issues were that Plaintiff

reported absences after his shift started or used Facebook Messenger to report his absences

instead of proper channels; he failed to complete his timecard daily; he arrived to work late and

took excessive breaks; he was dismissive when Richardson tried to discuss his late arrivals and

excessive breaks; he was argumentative when provided with constructive feedback regarding his

work; he spent work time looking for other jobs; and when he was reminded that company policy

required him to stay in his current position for twelve months before taking a new internal

position, he responded that he was unsure he could continue to work the rest of the day because

his “anger was off the charts.” Id.

On August 31, 2020,4 Richardson issued Plaintiff a Final Written Warning that

“addressed numerous issues with his performance.”5 Id. ¶ 35–36; accord Doc. [71-13]. The

Final Written Warning cited Plaintiff’s “applying for internal jobs despite repeated reminders

about the Internal Mobility policy; failure to follow COVID guidelines; inappropriate

he called the sequence of events. He plainly wrote that Liefer asked him to put on his mask twice before he did so.

Doc. [71-24] at 6. Then, in his deposition, Plaintiff testified, under oath, that Leifer had to tell him “again” to put on

his mask. Doc. [71-4] at 37-38 (88:1–89:15). Plaintiff’s sham declaration does not create a genuine dispute of fact.

Button, 963 F.3d at 830.

4 August 31 was the first day Plaintiff reported to work since the mask incident; he was absent from August 13

through August 30. Doc. [83] ¶ 33.

5 While Plaintiff at times argues that he should not have received a final written warning since he previously had not

received a written warning, he admits that Defendant does not have a progressive discipline policy and that its

management has discretion to determine the level of discipline issued. Doc. [83] ¶ 92. And, linguistically,

something that is final need not have been preceded.

communication with management when he was not wearing his mask; failure to follow

appropriate reporting procedures when late or absent; and utilizing company time for personal

activities.” Id.

Others also were present in the meeting at which Richardson issued Plaintiff the Final

Written Warning. Besides Richardson and Plaintiff, Hudson and Paula Decaney also were

present in the meeting. Plaintiff maintains that during the meeting, Decaney said she did not like

men and that she wanted Plaintiff fired.6 This meeting was the first time Plaintiff met Decaney

in person. Prior to it, Plaintiff spoke with her on the phone one time. Plaintiff never saw or

spoke to Decaney again after the Final Written Warning meeting.

The day after the Final Written Warning meeting, Plaintiff emailed Hudson saying that

Plaintiff felt the others were targeting him and discriminating against him due to his “strong

personality and desire to succeed.” Doc. [83] ¶ 41. He added that he no longer felt

“comfortable” working in that environment. Id. His email did not mention his sex or any

disability or discrimination on those two bases. Doc. [87-21]. Plaintiff also prepared a twenty-

one-page written response to his Final Written Warning that he provided to Workplace Relations.

Doc. [71-24]; Doc. [83] ¶ 42. That twenty-one-page response never alleged or suggested

Defendant or any of its employees discriminated against Plaintiff based on his sex or any

disability. Id.

E. The Facebook Group Chat

During his Final Written Warning meeting, Plaintiff decided he “had to start collecting

evidence against [Richardson],” his supervisor. Doc. [87-4] at 53 (111:6–15). He started with a

6 While the Court is taking this fact as true given the summary judgment standard, the Court also notes that

Plaintiff’s description of Decaney’s comments have evolved over time. Compare Doc. [87-22] at 2 (Defendant

originally reporting that Decaney made a comment that “suggested she does not like men” (emphasis added)), and

Doc. [1-2] at 2 (Plaintiff’s Complaint stating that Decaney “made derogatory comments toward me that suggested

she does not like men”), with, e.g., Doc. [87-4] at 51–52 (108:25–109:1).

private Facebook group chat that Richardson had informed him about, and invited him to join, in

May 2020. In the Facebook group chat, which contained both employees and nonemployees of

Defendant, and both men and women, there were “off color and offensive” messages. Doc. [87-

1] at 11–12. Direct Facebook messages between Plaintiff and Richardson show that when

Richardson offered to invite Plaintiff into the group chat, she warned him the messages

exchanged in the group were often “off color and offensive.” Id. Unfazed, Plaintiff responded

that he “[a]bsolutely” wanted to join; he wrote that he did not “get offended by anything” and

was “very thick skinned.” Id. at 11–12. Nevertheless, shortly after Richardson issued the Final

Written Warning against Plaintiff, Plaintiff reported the existence of the group chat to Defendant.

Defendant investigated Plaintiff’s report. The same day he reported it, Plaintiff was removed

from the group, and after finding the group chat contained impertinent content, Defendant

removed Richardson from her role.7

F. Post-Richardson Report

After Richardson’s departure due to the Facebook group chat, Jeremy Sedlak assumed

her role, at least on a temporary basis. While Plaintiff “really liked” Sedlak, Plaintiff reported to

Workplace Relations Manager Gail Wesline that he felt uncomfortable; he felt like his coworkers

were watching him or talking about him. Doc. [83] ¶ 56. Plaintiff acknowledges, though, that

no one ever said anything to him about Richardson’s departure or the Facebook group chat.

Because of his apparent discomfort, on September 01, 2020, Plaintiff requested that Hudson

allow Plaintiff to work from home. Doc. [71-23] at 2–3. Hudson informed Plaintiff that there

were no telework capabilities for Plaintiff’s then-role with Defendant. Plaintiff told Hudson that

Plaintiff would not enter the DISA building until the Final Written Warning was removed from

7 Richardson resigned her position in lieu of termination. Doc. [83] ¶ 53.

his record or until Hudson and a representative from human resources would meet with Plaintiff

and his unidentified attorney. Hudson informed Plaintiff that Plaintiff could take the rest of the

week off work, but that Plaintiff needed to return to his regular schedule the following Monday.

Plaintiff did not come into work the rest of that week.

On September 07, 2020, Plaintiff sent an email to Human Resources saying that he

believed the Final Written Warning was based on “miscommunications, assumptions, and

fabrications” and that he felt he was being “targeted and discriminated against due to [his] strong

personality, desire to succeed, disability, and gender.” Doc. [83] ¶ 50; accord Doc. [71-26].

G. Plaintiff’s Diagnoses

During his onboarding process with Defendant, Plaintiff sent an email to one of

Defendant’s human resources officials, Rebecca Cox, regarding accommodations. In it, he wrote

in part:

In my initial application I did not report that I have a disability; however, when I

was six years old, I was diagnosed with a learning and reading disability. As an

adult, I don’t see myself as disabled because I have found ways to overcome these

limitations. I do want my managers to be informed of my disability in the event

that something arises, such as needing a longer period of time to read a document.

Beyond that, I don’t feel that I need any further accommodations to excel in my

new position.

Doc. [71-29]. Cox responded, asking Plaintiff to complete a reasonable accommodations form

that she attached to her email. Doc. [87-8].

Plaintiff completed the form. On it, he noted his “learning disability and ADHD,” but he

explicitly informed Defendant that he was “not requesting accommodations for these

conditions.” Doc. [71-30] at 8. The only accommodation he requested, which was a near

verbatim repeat of an example the form gave, was a “sit/stand desk” due to his “spondylolisthesis

and degenerate [sic] disk disease.” Id. That was the entirety of Plaintiff’s requests and

diagnoses he claimed. He made no mention of any issues with his eyes or his vision, and he

explicitly disclaimed any accommodations related to his cognition. It also is undisputed that

Plaintiff provided no supporting medical documentation whatsoever.

Months later, on September 4, 2020, after he had received the final written warning,

Plaintiff again completed Defendant’s accommodation request form. Plaintiff again noted his

“learning disability in reading and comprehension, along with ADHD.” Doc. [87-13]. But this

time, he requested:

Additional time to study for required certifications and learn new material.

Furthermore, I would like to request my managers and colleagues to have

patience when providing help or direction. Also, part of ADHD is forgetfulness,

so providing helpful reminders is greatly appreciated.

Id. This go-around, Plaintiff also provided documents that ostensibly sought to support his

request, three doctors’ notes dated January 23, 2003, September 21, 2010, and May 02, 2019.

Doc. [71-33]; Doc. [71-34]. The 2003 note stated Plaintiff had ADHD and requested that he

have “no time limitations” on “testing.” Doc. [71-33] at 4. The 2010 note stated that Plaintiff

had a diagnosis of ADHD and a learning disorder. Id. at 3. It noted his prognosis was “good”

and made no mention of accommodations at all. Id. The 2019 note said only that Plaintiff had a

“medical schedule A disability.” Doc. [71-34] at 2. It provided no specifics and also made no

mention of accommodations. Id.

One of Defendant’s human resources employees responded to Plaintiff that Defendant

needed medical documentation within one year of Plaintiff’s request and that the documentation

should support “the specific accommodations being requested.” Doc. [71-32] at 1. Plaintiff then

provided a note dated October 21, 2020, that cited Plaintiff’s ADHD and his “well documented

history of a learning disorder.” Doc. [71-35]. It stated Plaintiff would require

“accommodations/academic adjustments in a learning environment,” specifically he would need

“out of class testing and double time on exams.” Id. These four letters were the only doctors’

notes Plaintiff ever submitted to Defendant regarding “his requested accommodations” during

the entire tenure of his employment. Doc. [83] ¶ 75.

The only tests Defendant required Plaintiff to take were those during his orientation, well

before his request for testing accommodations. Id. ¶ 76. He completed those tests without time

constraints and without any issue. Id. He also took continuing education courses while

employed with Defendant and completed those without time constraints and without issue as

well. Id. In any event, Plaintiff resigned his employment on October 27, 2020, less than one

week after he provided the only timely doctor’s note to Defendant that discussed Plaintiff’s

necessary accommodations. Doc. [71-28] at 1.

Plaintiff also maintains that he asked Richardson, his supervisor, to reassign him to “a

workstation where the computer monitors had greater mobility,” Doc. [77] at 10, because, as he

told Richardson, he did not want to be “straining [his] eyes all day,” Doc. [71-6] at 4.

Richardson informed him that none of the workstations “w[ould] get them closer than” how

Plaintiff had them at his current desk. Id. at 3. She informed him that it was “totally ok” for

Plaintiff to move the monitors as he needed and that the font on the screen also could be

enlarged. Id. Plaintiff never requested a formal accommodation from Defendant regarding his

monitors or anything to do with his vision.

III. Discussion

Plaintiff’s Complaint brings suit under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e, et seq., and the Americans with Disabilities Act of 1990, as

amended, 42 U.S.C. §§ 12101, et seq. He alleges that Defendant discriminated against him

because of his “gender,” “disability,” and his status as a “whistleblower.” Plaintiff indicated in

his Complaint that Defendant failed to promote him, failed to accommodate his disability, made

the terms and conditions of his employment different from those of similar employees, retaliated

against him, harassed him, levied “unwarranted discipline” upon him, and “constructive[ly]

discharge[d]” him. Doc. [1] at 4.

A. Sex Discrimination

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.

§ 2000e–2(a)(1). Discrimination because of sex can manifest itself in multiple ways, and, as

noted, Plaintiff has put forward several ways in which he says Defendant discriminated against

him because of his sex. The Court will examine them in turn.

i. Harassment (Hostile Work Environment)

Plaintiff asserts that he was subject to harassment, or a hostile work environment. A

plaintiff may establish a violation of Title VII by showing that discrimination based on the

plaintiff’s sex has created a hostile or abusive work environment. Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 66 (1986). “In order to establish a claim of harassment or hostile work

environment, a plaintiff must show: ‘(1) the plaintiff belongs to a protected group; (2) the

plaintiff was subject to unwelcome harassment; (3) a causal nexus exists between the harassment

and the plaintiff’s protected group status; and (4) the harassment affected a term, condition, or

privilege of employment.’” Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 634 (8th Cir. 2016)

(quoting Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194–95 (8th Cir. 2006)). Here,

Plaintiff’s harassment claim fails because he has not shown he was subject to unwelcome

harassment.

Plaintiff points to two instances of “sexual harassment.” See Doc. [77] at 5 (Plaintiff

noting he “reported two events as alleged sexual harassment”). The first instance was when

Paula Decaney, a fellow employee, allegedly told Plaintiff that “she did not like men” and

“accused [Plaintiff] of not respecting women.” Id. The second instance was the invitation by

Richardson, Plaintiff’s supervisor, to join a private Facebook group chat that contained sexual

material and the inclusion in that group chat. Id. The Court concludes, on this record, that

neither rises to the level of harassment.

“Relevant factors for determining whether conduct rises to the level of harassment

include the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered

with an employee’s work performance.” Kelleher, 817 F.3d at 634 (quoting Pye v. Nu Aire, Inc.,

641 F.3d 1011, 1018 (8th Cir. 2011)). Decaney’s alleged statement may have offended Plaintiff,

but the statement was far from severe. It did not physically threaten Plaintiff, and Plaintiff has

not shown that it interfered with his work performance in any way. The Supreme Court has

made the “recurring point” in its cases on harassment that “simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory changes in

the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (internal citations and quotations omitted). The Court of Appeals continues to echo that

point. See, e.g., Kelleher, 817 F.3d at 634. Decaney’s single isolated statement to Plaintiff

cannot be said to be extremely serious; it simply did not meet the demanding harassment

standards under Title VII.

Regarding the Facebook group chat, the Court concludes that even if it amounted to

harassment, the uncontroverted evidence shows it was not unwelcomed harassment. Plaintiff

accepted Richardson’s invitation to join the group chat only after Richardson informed Plaintiff,

two separate times, that the group was “off color” and “offensive sometimes.” Doc. [71-4] at 14

(44:5–45:13); Doc. [71-14] at 11. Plaintiff’s acceptance after the two warnings raises the

question of whether the conduct was unwelcome. See Moylan v. Maries Cnty., 792 F.2d 746,

749 (8th Cir. 1986) (explaining that “conduct must be ‘unwelcome’ in the sense that the

employee did not solicit or invite it”). Plaintiff’s own words answer that question. When

Richardson told Plaintiff about the group, Plaintiff informed her that he was “thick skinned” and

did not “get offended by anything,” Doc. [71-14] at 12. See Moylan, 792 F.2d at 749 (explaining

that to be “unwelcome,” the employee must have “regarded the conduct as undesirable or

offensive”). His actions towards Richardson substantiated his own words; Plaintiff sent at least

two overtly sexual references to Richardson in a private message, including a bawdy joke. Doc.

[83] ¶ 19. These interactions with Richardson indisputably show he had no subjective

reservations about this type of material. See also Burns v. McGregor Elec. Indus., Inc., 989 F.2d

959, 964 (8th Cir. 1993) (considering whether the plaintiff’s actions “constitute[d] an invitation

to engage in sexual discourse”). Furthermore, Plaintiff only reported the Facebook group chat to

Defendant once Richardson issued a Final Written Warning to Plaintiff highlighting Plaintiff’s

various shortcomings; as Plaintiff put it, it was at that moment that he decided to “collec[t]

evidence against” Richardson.8 Cf. Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1108–09 (8th

Cir. 1998) (finding a plaintiff’s reaction to harassment can be sufficient to support a jury finding

that behavior was unwelcome).

8 Doc. [71-4] at 53 (111:13–15) (testifying that, during the meeting regarding his final written warning, it was “at

that point in time” that he “knew that I had to start collecting evidence against [Richardson]”); accord Doc. [77] at 3

(Plaintiff noting that “[a]fter receiving the [final written warning],” from Richardson, “[Plaintiff] reported the ‘off

color Facebook group to Leidos”).

But even if the Court found the group chat or its contents were unwelcomed harassment,

which it does not, Plaintiff has failed to show any causal nexus between the group chat (or its

“off color” and “sexually explicit” content) and his gender. See Hannoon v. Fawn Eng’g Corp.,

324 F.3d 1041, 1048 (8th Cir. 2003) (concluding first that “no reasonable jury could classify the

alleged acts as harassment” but adding that the plaintiff also “failed to establish the requisite

causal nexus between” the alleged instances and his protected group). In cases of sexual

harassment under Title VII, a plaintiff “must always prove that the conduct at issue was not

merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . .

because of . . . sex.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)

(emphasis omitted) (quoting 42 U.S.C. § 2000e-2(a)(1)); accord id. at 82 (Thomas, J.,

concurring) (emphasizing “Title VII’s statutory requirement that there be discrimination

‘because of . . . sex’”). Plaintiff has provided no evidence or support whatsoever that even hints

that he was included in the group chat or that messages within the group chat were

discrimination toward him because of his sex. And what he has provided, cuts against a finding

that it was discrimination toward him because of his sex.

Both men and women were included in the group chat. Doc. [71-24] at 12–19; see also

Oncale, 523 U.S. at 80 (“The critical issue, Title VII’s text indicates, is whether members of one

sex are exposed to disadvantageous terms or conditions of employment to which members of the

other sex are not exposed.”); Dowd v. United Steelworkers of Am., Loc. No. 286, 253 F.3d 1093,

1101 (8th Cir. 2001) (considering whether employees who were not members of same protected

group were “subjected to the same kind or intensity of harassment” in examining whether a

causal nexus existed). When Plaintiff finally reported the group chat to Defendant, he informed

them that he “fe[lt] the content [wa]s misogynistic and degrading of women,” for whom he had

“great respect.” Doc. [87-3] at 14. So, while Plaintiff may well be correct that the content

exchanged in the group chat was inappropriate, he has not shown that the group chat amounted

to discrimination against him because of his sex. See Singletary v. Missouri Dep’t of Corr., 423

F.3d 886, 893 (8th Cir. 2005) (noting “apparently indiscriminate vandalism” does not have

sufficient discriminatory character to establish a hostile work environment without proof that

discrimination “motivated the conduct”).

For these reasons, Plaintiff has failed to produce evidence from which a reasonable jury

could find in his favor on his claim for hostile work environment.9 See Gordon v. Shafer

Contracting Co., 469 F.3d 1191, 1194 (8th Cir. 2006) (“A hostile environment exists when ‘the

workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” (quoting Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560, 566

(8th Cir. 2000))).

ii. Plaintiff’s Other Theories of Sex Discrimination under Title VII

On Plaintiff’s remaining Title VII theories, he can survive summary judgment either by

(1) presenting direct evidence of discrimination, or (2) creating the requisite inference of

unlawful discrimination through the McDonnell Douglas10 analysis, including sufficient

evidence of pretext. Banford v. Bd. of Regents of Univ. of Minn., 43 F.4th 896, 899 (8th Cir.

2022); Towery v. Miss. Cnty. Ark. Econ. Opportunity Comm’n, Inc., 1 F.4th 570, 573 (8th Cir.

9 Plaintiff has not attempted to link Decaney’s statement to the Facebook group, and the Court has seen nothing in

the record that does. See Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999) (“All instances of harassment

need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of

conduct which is tied to evidence of discriminatory animus.”). There is no indication that Decaney was part of the

group, participated in the group, or even was aware of the group.

10 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2021). The Court concludes that Plaintiff has not pointed to any direct evidence of

discrimination to avoid summary judgment on his Title VII claims.

“Direct evidence of discrimination requires ‘a specific link between the [alleged]

discriminatory animus and the challenged decision, sufficient to support a finding by a

reasonable fact finder that an illegitimate criterion actually motivated the employer’s decision.’”

Shirrell v. St. Francis Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015) (quoting Putman v. Unity

Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)). The only evidence to which Plaintiff points that

arguably could show discriminatory animus is Decaney’s statement that she did not like men.

See Doc. [71-4] at 118 (245:12–14) (Q: “Other than Paula [Decaney], did anyone make

comments about your sex?” A: “Just Paula.”); see also id. at 54 (112:17–23).

Plaintiff, however, has not presented any evidence that Decaney is a decision maker.11

Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006) (remarks by employee with no

hiring authority were not direct evidence because record had no evidence the employee

influenced the hiring decisionmaker). Nor has he identified any link—let alone a specific link—

between Decaney’s remark and any adverse action that he alleges. See Torgerson, 643 F.3d at

1045–46 (“A remark by a decisionmaker, in order to be direct evidence of sex discrimination,

must show a specific link between a discriminatory bias and the adverse employment action,

sufficient to support a finding by a reasonable fact-finder that the bias motivated the action.”).

Without direct evidence of discrimination, Plaintiff can survive summary judgment on his

Title VII claims only by creating the requisite inference of unlawful discrimination through the

11 See, e.g., Doc. [71-4] at 109 (226:7–11) (testifying that Decaney “ha[d] nothing to do with my job”); Doc. [71-4]

at 105 (221:10–12) (Q: “Did you ever talk to Paula Decaney about a promotion?” A: “No.”). Doc. [71-4] at 4

(25:22–23) (testifying that he “d[id]n’t really know” what Decaney’s “title” was); Doc. [71-4] at 5 (26:1–6)

(testifying that Decaney was not Plaintiff’s supervisor and that he “d[id]n’t know, honestly” whether Decaney was a

supervisor because he had so “few encounters with her”).

McDonnell Douglas analysis. This analysis requires Plaintiff to present evidence that will

establish a prima facie case for discrimination because of his sex.

a. Failure to Promote Plaintiff

One of the ways Plaintiff alleges Defendant discriminated against him because of his sex

was by Defendant’s failure to promote him. To establish a prima facie case in a failure to

promote claim under Title VII, a plaintiff must show: (1) that he was a member of a protected

group; (2) that he was qualified and applied for a promotion to an available position; (3) that he

was rejected; and (4) that a similarly qualified employee, not part of a protected group, was

promoted instead. Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998); see

also Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1086 (8th Cir. 2011). Upon review, the

record plainly shows that Plaintiff has not made a prima facie case for failure to promote in

violation of Title VII for at least two reasons.

First, Plaintiff has not shown he was qualified for a promotion. Defendant’s internal

mobility policy states that in order to be eligible for “internal mobility, intercompany placement

or transfer,” an employee “[s]hould have a minimum of 12 months of good standing in their

current role, unless otherwise agreed upon with current supervisor. Exceptions need review by

Group Human Resource Lead.” Doc. [83] ¶ 6. Plaintiff received reminders of this policy. In

March 2020, after Plaintiff had applied for several other positions with Defendant, Marsha

Barber contacted Plaintiff to remind him of the internal mobility policy. Doc. [83] ¶ 8. Plaintiff

received another reminder from Barber and a human resources official reminding him, yet again,

of the policy. Id. ¶ 27. Plaintiff has not shown he was qualified for any available position.

Second, Plaintiff has not even attempted to show that Defendant promoted a similarly

qualified employee, not part of Plaintiff’s protected group, and the record shows it did not occur.

Plaintiff applied for thirteen positions with Defendant during or after February 2020. Of those

positions, Defendant closed nine without hiring any applicants. Of the four remaining positions

that Defendant filled, Defendant hired a male candidate for all four. Doc. [83] ¶ 81. Plaintiff

therefore is unable to make even a prima facie case of discrimination under Title VII premised

on a supposed failure to promote him.

b. Various Other Alleged Adverse Employment Actions

To establish a prima facie case of sex discrimination, Plaintiff “must show that (1) []he

was a member of the protected group; (2) []he was qualified to perform the job; (3) []he suffered

an adverse employment action; and (4) circumstances permit an inference of discrimination.”

Bell v. Baptist Health, 60 F.4th 1198, 1203 (8th Cir. 2023) (quoting Bearden v. Int’l Paper Co.,

529 F.3d 828, 831 (8th Cir. 2008)). Plaintiff has failed to establish a prima facie case of sex

discrimination because he has failed to establish that he suffered an adverse employment

action.12

“An adverse employment action is a tangible change in working conditions that produces

a material employment disadvantage.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th

Cir. 2014). “Such action ‘might include termination, cuts in pay or benefits, and changes that

affect an employee’s future career prospects’ but ‘[m]inor changes’ are not enough.” Id.

(quoting Wilkie v. Dep’t of Health & Hum. Servs., 638 F.3d 944, 955 (8th Cir. 2011)). Plaintiff

is less than clear on what, exactly, he maintains were the adverse employment actions Defendant

took against him, but it appears he claims they were a failure to train him, the final written

12 Since Plaintiff has failed to establish even a prima facie case of discrimination, Defendant is under no obligation

to articulate a legitimate, nondiscriminatory reason for any action. Banford, 43 F.4th at 899–900. Nevertheless, the

Court alternatively concludes that Defendant has articulated legitimate, nondiscriminatory reasons for the events

with which Plaintiff takes issue, and Plaintiff has failed to demonstrate the legitimate, non-discriminatory reasons

were pretextual. See Muor v. U.S. Bank Nat. Ass’n, 716 F.3d 1072, 1076 (8th Cir. 2013).

warning Defendant issued him, and what Plaintiff alleges was his constructive discharge.13 Doc.

[77] at 7–8.

1. Failure to Train

Depending on the specifics, an employer’s failure to train an employee can be an adverse

employment action. Compare Mohr v. Dustrol, Inc., 306 F.3d 636, 646 (8th Cir. 2002),

abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (“The gist of

[the plaintiff’s] Title VII claim is that over the course of her three seasons with [her employer]

she was denied the same training opportunities as male employees.”), with Griffith v. City of Des

Moines, 387 F.3d 733, 737 (8th Cir. 2004) (“An employer’s denial of an employee’s request for

more training is not, without more, an adverse employment action.”). See also Hill v. City of

Pine Bluff, 696 F.3d 709, 715 (8th Cir. 2012) (reasoning that plaintiff’s disciplinary warning did

not amount to an adverse employment action since plaintiff was not excluded from, among other

things, “training and advancement opportunities”).

Plaintiff’s Complaint alleges that he was “denied training” on large aspects of his “job

role.” Doc. [1-2] at 1. Specifically, Plaintiff argues Defendant did not train him “to perform IP

work.” Doc. [77] at 5. Assuming for the purposes of this analysis that the failure to train

Plaintiff under the circumstances amounted to an adverse employment action, Plaintiff has not

shown the circumstances permit an inference of discrimination. Circumstances that can permit

an inference of discrimination may be made by showing that an employer (1) failed to follow its

own policies, (2) treated similarly-situated employees in a disparate manner, or (3) shifted its

explanation of the employment decision. Young v. Builders Steel Co., 754 F.3d 573, 578 (8th

13 The “failure to promote can constitute an adverse employment action.” Charleston v. McCarthy, 926 F.3d 982,

990 (8th Cir. 2019) (quoting AuBuchon v. Geithner, 743 F.3d 638, 643 (8th Cir. 2014)); see also Charleston v.

McCarthy, 175 F. Supp. 3d 1115, 1123 (S.D. Iowa 2016). Because the Court concluded Plaintiff has not establish

his failure to promote claim, Plaintiff cannot successfully advance his failure to promote as the adverse action.

Cir. 2014) (citing Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)). Plaintiff has

not pointed to any such evidence. In fact, he has not disputed that Defendant trained both males

and females to perform IP work. Doc. [83] at ¶ 80.

Regardless, even if the Court were to conclude that Plaintiff made a prima facie claim of

discrimination based on the amount of training he received, that does not end the inquiry. When

a Plaintiff makes a prima facie case, it creates a presumption of unlawful discrimination and

shifts the burden of proof to the employer to present evidence of a legitimate, nondiscriminatory

reason for its adverse employment action. Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th

Cir. 2008). “If the employer can articulate a nondiscriminatory reason, the burden returns to the

employee to prove that the proffered reason is pretextual.” Id. at 831–32. Here, Defendant has

articulated a nondiscriminatory reason.

Employees working as a Network Controller, like Plaintiff, “typically begin working on

commercial vendor (‘CVN’) tasks,” which “provides employees with a foundation to build their

skill set before moving to other areas of work within the department.” Doc. [83] ¶ 79. These

other areas of work include IP tasks. Id. “Generally, employees must demonstrate that they are

able to handle tickets from the customer and coordinate testing between vendors and customers

before being trained for IP.” Id. Defendant does not dispute these facts. Id. When Plaintiff

inquired with his supervisor in October 2020 why Plaintiff had not been trained to perform IP

work, his supervisor informed him that Plaintiff “had not yet demonstrated that he had learned

everything necessary from CVN” and explained also that Defendant “could not move him to IP

training until someone else was trained to cover CVN.” Id. ¶ 80.

With these well-articulated nondiscriminatory reasons, the burden returned to Plaintiff to

prove the proffered reason is pretextual. He did not do so. Indeed, his brief uses the word

pretext or pretextual only once. Doc. [77] at 6–7 (“If Leidos meets this burden, Plaintiff then

must prove Leidos’ proffered reason is not the true reason for the adverse employment action but

is a pretext for discrimination.”). While he acknowledged his burden, he made no other

reference to it and, in no way, showed that Defendant’s well-articulated nondiscriminatory

reasons were pretextual. Accordingly, even if the Court were to strain to reach the conclusion

that Plaintiff did make a prima facie case for employment discrimination on his failure to train

theory, Defendant provided nondiscriminatory reasons that Plaintiff did not establish as pretext,

and which therefore entitle Defendant to summary judgment on Plaintiff’s theory of failure to

train.

2. Final Written Warning

Plaintiff has not identified any evidence that shows the final written warning was an

adverse employment action, and the Court has seen nothing in the record that suggests it was.

On its own, a warning typically does not amount to an adverse employment action. See Kirby v.

Brennan, 0:14-cv-00270-SRN, 2017 WL 1157093, at *8 (D. Minn. Mar. 27, 2017) (concluding

that a letter of warning was not an adverse employment action and collecting cases of other

courts that “uniformly” agree); see also, e.g., Hill v. DeJoy, 4:19-cv-01315-RLW, 2021 WL

4476695, at *18 (E.D. Mo. Sept. 30, 2021) (finding nothing in the record suggested the plaintiff

suffered an adverse employment action from a final written warning, or, “[i]n other words,” the

warning “did not affect her pay or terms or conditions of employment”); Carmon v. Saks Fifth

Ave., LLC, 4:19-cv-02855-AGF, 2021 WL 1312976, at *15 (E.D. Mo. Apr. 8, 2021) (explaining

it was “not clear” to the court that a final written warning or a negative performance evaluation

were adverse employment actions since the actions “[we]re not alleged to have affected

[plaintiff’s] pay or duties, and they did not result in her termination”); cf. Wilson v. Miller, 821

F.3d 963, 968 (8th Cir. 2016) (“Standing alone, a poor performance rating does not constitute an

adverse employment action because it has no tangible effect on the employee’s conditions of

employment.”). Plaintiff does not even advance an argument that the final written warning

affected a term or condition of his employment. He focuses only on his contention that

Defendant should not have issued the warning to him and that it contained “false accusations.”

Doc. [77] at 7. But while that contention, if true, could be relevant in a different context to

suggest a pretextual purpose, it offers him little by way of establishing the warning itself as an

adverse employment action.14

3. Constructive Discharge

Plaintiff raises only one other possible adverse employment action in his opposition to

summary judgment, constructive discharge. “Just like any other discharge, a constructive

discharge is an adverse employment action.” Carpenter v. Con-Way Cent. Express, Inc., 481

F.3d 611, 616 (8th Cir. 2007) (quoting Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 825

(8th Cir. 2006)). The trouble for Plaintiff, however, is that the undisputed facts in this case do

not even come close to establishing he was constructively discharge under Title VII. See Bell, 60

F.4th at 1203 (“The bar to show constructive discharge is high.”). “The constructive-discharge

doctrine contemplates a situation in which an employer discriminates against an employee to the

point such that his ‘working conditions become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.’” Green v. Brennan, 578 U.S. 547,

555 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); see also id. at 586

(Thomas, J., dissenting) (“The constructive-discharge doctrine enabled courts to provide a

14 This conclusion is in accord with the text of Title VII, which makes it unlawful for a private employer or a state or

local government “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1) (emphasis added). It is not at all

clear under which of those respects a mere warning in and of itself would fall.

remedy to those employees who voluntarily quit based on the fiction that their decision to quit

was not actually voluntary.”). “When the employee resigns in the face of such circumstances,

Title VII treats that resignation as tantamount to an actual discharge.” Id. at 555.

To constitute a constructive discharge, “the employer must deliberately create intolerable

working conditions with the intention of forcing the employee to quit and the employee must

quit.” Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). “A constructive

discharge arises only when a reasonable person would find the conditions of employment

intolerable.” Id.; accord id. at 495 (noting an “overwhelming compulsion to quit” is “necessary

for constructive discharge”). “To act reasonably, an employee has an obligation not to assume

the worst and not to jump to conclusions too quickly.” Id. at 494. Indeed, an employee “who

quits without giving his employer a reasonable chance to work out a problem has not been

constructively discharged.” Id.

Plaintiff was not constructively discharged for at least three reasons. First, the conditions

of employment Plaintiff identifies simply do not meet the high bar of intolerability. See, e.g., id.

at 495 (reversing judgment entered on a jury’s verdict in favor of a plaintiff and finding that,

even though evidence showed that the employer discriminated against the plaintiff on the basis

of his race, there was insufficient evidence to establish that a reasonable person would find the

working conditions intolerable); see also id. at 496 (citing Carter v. Ball, 33 F.3d 450, 459 (4th

Cir. 1994) (“Dissatisfaction with work assignments, a feeling of being unfairly criticized, or

difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person

to resign.”)).

Second, even if the Court found the conditions were intolerable, which it does not find,

Plaintiff failed to point to any evidence suggesting Defendant intentionally created the

intolerable work conditions in an effort to cause Plaintiff to resign. Vajdl v. Mesabi Acad. of

KidsPeace, Inc., 484 F.3d 546, 553 (8th Cir. 2007) (“A constructive discharge claim requires the

plaintiff to show the employer created the intolerable conditions intending to force the plaintiff to

quit.” (internal quotations omitted)).

And third, Plaintiff jumped to conclusions and quit without giving Defendant a

reasonable chance to work out Plaintiff’s issues—even though those issues plainly were not

intolerable. Defendant assigned Plaintiff to work under Len Tyler, whom Plaintiff has described

as a “very kind and understanding” person. Doc. [71-4] at 92 (190:13–14); accord id. (190:10–

12) (Q: “Did you feel like Len Tyler was going to try to get you fired?” A: “No. No.”). But

when Plaintiff inquired with Tyler what Plaintiff’s “work role duties” would be, Tyler could not

“articulate” them to Plaintiff. Doc. [77] at 8. Nor, Plaintiff laments, did Tyler know “where

[Plaintiff] would be seated” while he worked. Id. These trivial grievances fall far short of

intolerable conditions. But even assuming these conditions were intolerable, Plaintiff had an

obligation to work out the problem with Defendant and not to jump to conclusions. It is

reasonable, of course, for an employee to want to know on what projects he or she will work or

where in an office he or she will sit when starting a new position. But it is patently unreasonable

to refuse to come into work because the employee does not know before starting in the new

position. No doubt Plaintiff would have found out both what his “work role duties” would be

and where he would have sat if he had simply showed-up and worked for a day with Tyler.

Instead, Plaintiff rejected the position because, in his sole estimation, it was “not a reasonable

solution,” and he still did not feel “comfortable” with it. Id.

Having failed to show a constructive discharge, Plaintiff has failed to show any adverse

employment action. He, therefore, has not established a prima facie case of discrimination.

Gibson v. Concrete Equip. Co., 960 F.3d 1057, 1062 (8th Cir. 2020) (explaining a plaintiff must

show “[he] suffered an adverse employment action” to make a prima facie case).

B. Disability Discrimination

Under the Americans with Disabilities Act (“ADA”), “employers may not discriminate

against employees regarded as having a disability.” Voss v. Hous. Auth. of the City of Magnolia,

917 F.3d 618, 624 (8th Cir. 2019) (citing Parker v. Crete Carrier Corp., 839 F.3d 717, 724 (8th

Cir. 2016) (citing 42 U.S.C. §§ 12102(1)(C), 12112(a))). Plaintiff’s Complaint alleges that

Defendant failed to accommodate his disabilities.15 Doc. [1-2] at 2. The ADA requires

employers to make “reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability” unless doing so “would impose an undue

hardship on the operation of the” employer’s business. Lipp v. Cargill Meat Sols. Corp., 911

F.3d 537, 543 (8th Cir. 2018). When an employer fails to make such reasonable

accommodation, it discriminates against the employee. Dick v. Dickinson State Univ., 826 F.3d

1054, 1059 (8th Cir. 2016); E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 971 (8th Cir.

2014) (explaining that in a reasonable accommodation case, the discrimination is framed in terms

of “the failure to reasonably accommodate the disabled individual’s limitations,” as the ADA

requires).

15 Even construing Plaintiff’s pro se Complaint liberally, it does not allege a hostile work environment based on

disability discrimination. In Defendant’s Motion for Summary Judgment, Defendant correctly pointed out that

Plaintiff “has not made any specific allegations of harassment based on his disability.” Doc. [72] at 4 n.2. In

Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment, Plaintiff does not contest that

statement or point to anything in the record even suggesting harassment based on a disability, and the Court has seen

none in what it has reviewed in the record. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited

materials, but it may consider other materials in the record.”). Indeed, Plaintiff acknowledged that no one who

worked for Defendant ever made comments to him about any actual or perceived disability. Doc. [83] ¶ 85.

Therefore, to the extent Plaintiff purports to bring a claim of harassment under the ADA, Defendant is entitled to

summary judgment on such claim because nothing in the record establishes Plaintiff was subject to harassment

based on a disability.

To succeed on his claim for failure to accommodate his disability, Plaintiff must establish

that: (1) he was disabled under the ADA; (2) Defendant knew that he was disabled; (3) he

requested an accommodation; (4) Defendant failed to engage in a “flexible” and “informal[ ]

interactive process” with him about possible accommodations; and (5) his disability could have

been reasonably accommodated had the interactive process taken place. Garrison v.

Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019).

In Plaintiff’s Complaint he alleges he has several “medically diagnosed disabilities,”

being attention-deficit hyperactivity disorder, “learning and reading disabilities,” bi-lateral lazy

eyes, and spondylolisthesis. Doc. [1-2] at 2; accord Doc. [71-4] at 96 (195:15–24) (testifying he

has those four disabilities along with “PTSD” and “something called Intermittent Explosive

Disorder,” which he says “aren’t disabilities” and have not even been “officially diagnosed”).

The Court concludes that Plaintiff’s claim for failure to accommodate under the ADA fails.

i. Attention-Deficit Hyperactivity Disorder and “Learning and Reading

Disabilities”

During his onboarding process, Plaintiff sent an email to Rebecca Cox, a human resource

official with Defendant, regarding accommodations. In it, he wrote in part:

In my initial application I did not report that I have a disability; however, when I

was six years old, I was diagnosed with a learning and reading disability. As an

adult, I don’t see myself as disabled because I have found ways to overcome these

limitations. I do want my managers to be informed of my disability in the event

that something arises, such as needing a longer period of time to read a document.

Beyond that, I don’t feel that I need any further accommodations to excel in my

new position.

Doc. [71-29]. Cox asked Plaintiff to complete a standard reasonable accommodations form that

she attached to her email, and he did so. Doc. [87-8]. On the form, Plaintiff noted his “learning

disability and ADHD,” but he explicitly informed Defendant that he was “not requesting

accommodations for these conditions.” Doc. [71-30] at 7.

Months later, on September 04, 2020, after he had received his final written warning,

Plaintiff submitted a new reasonable accommodations form. On this second form, Plaintiff again

noted his “learning disability in reading and comprehension, along with ADHD.” Doc. [87-13].

But this time, he requested:

Additional time to study for required certifications and learn new material.

Furthermore, I would like to request my managers and colleagues to have

patience when providing help or direction. Also, part of ADHD is forgetfulness,

so providing helpful reminders is greatly appreciated.

Id. In an apparent effort to support his request, Plaintiff also provided documents, which were

three doctors’ notes dated January 23, 2003, September 21, 2010, and May 02, 2019. Doc. [71-

33]; Doc. [71-34]. The 2003 note stated that Plaintiff had ADHD and requested that he have “no

time limitations” on “testing.” Doc. [71-33] at 4. The 2010 note stated that Plaintiff had a

diagnosis of ADHD and a learning disorder. Id. at 3. It noted his prognosis was “good” and

made no mention of any accommodations. Id. The 2019 note said only that Plaintiff had a

“medical schedule A disability.” Doc. [71-34] at 2. It provided no specifics and recommended

no accommodations. Id.

Heather Brown, who worked in Employee Services, the department that spearheads

accommodations requests for Defendant, responded to Plaintiff that Defendant required medical

documentation within one year of an accommodation request and that the documentation should

support “the specific accommodations being requested.” Doc. [71-32] at 1. But even noting that

deficiency, Brown still sought to “move forward with th[e] interactive process” by asking

Plaintiff several questions on how Defendant could best accommodate Plaintiff. Id. at 2. For

example, on Plaintiff’s vague request for “helpful reminders,” Brown asked how frequently he

would like reminders. Id. She asked whether Outlook reminders might be helpful to him and

asked if he had any other tools in mind that would assist him with reminders. Id.

Eventually, Plaintiff provided Defendant a doctor’s note16 dated October 21, 2020, that

cited Plaintiff’s ADHD and his “well documented history of a learning disorder.” Doc. [71-35].

It stated Plaintiff would require “accommodations/academic adjustments in a learning

environment,” specifically, he needed “out of class testing and double time on exams.” Id.

Plaintiff resigned his employment on October 27, 2020, less than one week after he provided the

only timely doctor’s note to Defendant. Doc. [71-28] at 1.

The Court struggles to understand the basis of Plaintiff’s failure to accommodate claim

based on his attention-deficit hyperactivity disorder and his learning and reading disorder.

Plaintiff’s first mention to anyone with Defendant of these conditions stated he only “want[ed]

[his] managers to be informed of [his] disability.” Doc. [71-29]. He added that, “[b]eyond that,

[he] d[id]n’t feel that [he] need[ed] any further accommodations to excel in [his] new position.”

Id. In his first formal request for accommodations, Plaintiff specifically told Defendant that he

was not requesting accommodations related to these conditions at all. When he finally made a

request for accommodations related to these conditions, he did not provide timely medical

documentation to substantiate the disabilities he claimed. Plaintiff does not argue that Defendant

violated the ADA through its policy of requiring medical documentation; nor would such an

argument likely be successful. See Kennedy v. Superior Printing Co., 215 F.3d 650, 656 (6th

Cir. 2000) (Magill, J., for the Court) (noting an employer “need not take the employee’s word for

it that the employee has an illness that may require special accommodation”); cf. Lipp, 911 F.3d

at 546 n.9 (requiring medical verification after unplanned leave—consistent with company

policy—was “not unreasonable”). By the time Plaintiff provided the documentation, he resigned

less than one week later.

16 This letter, along with the three others mentioned above, were the only doctors’ notes Plaintiff ever submitted to

Defendant regarding “his requested accommodations” during the entire tenure of his employment. Doc. [83] ¶ 75.

Even if the Court overlooks the issue of Plaintiff’s lacking medical documentation,

Plaintiff did not identify a single instance of an accommodation related to “learning” or “testing”

that Defendant denied him. Plaintiff’s only timely doctor’s note stated that Plaintiff would

require “accommodations/academic adjustments in a learning environment,” specifically, “out of

class testing and double time on exams.” Doc. [71-35]. But the only tests Defendant required

Plaintiff to take were tests Defendant gave during Plaintiff’s orientation. Doc. [83] ¶ 76. He

completed those tests without time constraints, id., and long before he requested test-related

accommodations.

In an effort to perhaps muddy the water, Plaintiff points out that his final written warning

references his extended absence around the time he completed his Security Plus exam, which

was not even required for his position with Defendant. Even if the Court ignored the fact that

this extended absence occurred prior to his September 04, 2020 request for accommodation

related to his learning disability and ADHD (and after he specifically told Defendant he was not

requesting any accommodations related to those issues), the record demonstrates that the

extended nature of Plaintiff’s absence was not related to his disability or to the test; his absence

from work was more frolic than detour.

Plaintiff completed the Security Plus boot camp training on June 29, 2020, and was

scheduled to take the exam on Tuesday, July 07, 2020. Instead of taking the test on July 07,

Plaintiff rescheduled the test due to, as he put it, “a ridiculous amount of personal stress going on

in [his] life.” Doc. [87-1] at 43. Despite not taking the test that week, he chose not to work at

all, telling his supervisor that “it would be best for [him]” if he took “the whole week off.” Doc.

[87-1] at 41; Doc. [83] ¶ 21. Plaintiff eventually took the test through an outside vendor on

Tuesday, July 14, 2020. And though he completed the test on a Tuesday, he chose not to return

to work for the remainder of that week. Doc. [83] ¶ 22. Altogether, he took over fifty-five hours

of unaccrued paid time off, though Defendant authorized him to take no more than forty hours of

unaccrued paid time off to study for and complete the Security Plus exam. Id. ¶¶ 24–25. He did

not work at all during the weeks of June 22, June 29, July 6, or July 13, 2020. Doc. [83] ¶ 18.

The record, including his own words, shows that his present characterization of this instance is

fictional. His disability did not cause the extension of his absence beyond what Defendant

authorized. And, even if it did, Plaintiff appears to be under the mistaken assumption that the

ADA requires an employer to provide a disabled employee with indefinite leave. It does not.

Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016) (“[A]n employer

is not required to provide a disabled employee with indefinite leave.”).

ii. Spondylolisthesis

In Plaintiff’s original accommodations form, Plaintiff requested that he be given a

“sit/stand desk” due to “spondylolisthesis and degenerate [sic] disk disease.” Doc. [71-30] at 8.

Plaintiff acknowledges that he provided no medical documentation for this request to Defendant.

Doc. [83] ¶ 75. Nevertheless, Defendant informed Plaintiff that he indeed could use a sit/stand

desk. Doc. [71-4] at 96 (195:7–9). He simply needed “to purchase [it] at [his] own expense.”

Id. Plaintiff also admitted that his supervisor allowed him to walk around and stretch his legs.

Doc. [83] ¶ 77. Plaintiff’s opposition brief did not even attempt to revive his claim that

Defendant failed to accommodate his spondylolisthesis.

iii. Bilateral Lazy Eyes

Assuming Plaintiff’s bilateral lazy eyes constitute a disability under the ADA, he

acknowledges that he provided no medical documentation for this request to Defendant. Doc.

[83] ¶ 75. Indeed, he never referenced any eye issues in the two accommodations requests he

submitted to Defendant. He did, however, raise the issue with his direct supervisor, to a small

degree. Plaintiff asked “to be reassigned to a workstation where the computer monitors had

greater mobility,” Doc. [77] at 10, because, as he told his supervisor, he did not want to be

“straining [his] eyes all day,” Doc. [71-6] at 3. Plaintiff’s supervisor informed him that none of

the workstations “w[ould] get [the monitors] closer than” how Plaintiff had them at his current

desk. Id. She informed him, though, that it was “totally ok” for him to move the monitors as he

needed and that they also could enlarge the font on the screens. Id. So, even if the Court would

construe that Plaintiff’s request to his supervisor to avoid straining his eyes was an

accommodation request under the ADA, Plaintiff, in no way, explains why the supervisor’s

solution was not reasonable.

Thus, Plaintiff’s claims under the ADA fail.

C. Retaliation

Lastly, Plaintiff’s claim for retaliation. His Complaint premises his retaliation claim on

how Richardson treated him after he reported the Facebook group chat. See Doc. [1-2] at 2

(alleging, under the heading “Retaliation,” that after he reported Richardson’s Facebook group

chat, Richardson told Plaintiff he “was not allowed to talk with HR or Workplace Relations

during the workday,” and that he “needed to subtract that time from [his] timecard,” which

would “doc the time from [his] pay”); id. at 4 (alleging Richardson would “coun[t] the number of

times [Plaintiff] got up from [his] desk and the number of minutes [he] spent in the bathroom”

and that those “actions appeared to be her way of retaliating against [Plaintiff] for blowing the

whistle on her Facebook chat group”). Similarly, in his opposition to Defendant’s Motion for

Summary Judgment, he only discusses Richardson when he discusses his retaliation claim. See,

e.g., Doc. [77] at 3 (claiming Richardson “tracked” the time Plaintiff “spent in the restroom and

speaking with Human Resources”); id. at 12 (pointing out that Richardson “informed Plaintiff

that he had not yet demonstrated that he had learned everything necessary from CVN” to

progress to training for other things).

“Title VII prohibits employers from . . . retaliating against employees for opposing

unlawful employment practices, making a charge, or participating in an investigation under the

statute.” Kempf v. Hennepin Cnty., 987 F.3d 1192, 1195 (8th Cir. 2021) (citing 42 U.S.C.

§ 2000e-3(a)). And just like the other claims discussed herein, Plaintiff can defeat summary

judgment on his retaliation claim by producing “either direct evidence of retaliation” or by

“create[ing] an inference of retaliation under the McDonnell Douglas burden-shifting

framework.” Pye, 641 F.3d at 1020 (quoting Young-Losee v. Graphic Packaging Int’l, Inc., 631

F.3d 909, 912 (8th Cir. 2011)). “Direct evidence of retaliation is evidence that demonstrates a

specific link between a materially adverse action and the protected conduct, sufficient to support

a finding by a reasonable fact finder that the harmful adverse action was in retaliation for the

protected conduct.” Id. Without direct evidence, a plaintiff can establish a prima facie case of

retaliation under 42 U.S.C. § 2000e–3(a), by showing that (1) he engaged in statutorily protected

conduct; (2) he suffered an adverse employment action; and (3) a causal connection exists

between the two. Lopez v. Whirlpool Corp., 989 F.3d 656, 664 (8th Cir. 2021) (citing DePriest

v. Milligan, 823 F.3d 1179, 1187 (8th Cir. 2016)).

Plaintiff’s retaliation fails both approaches because he has not alleged—let alone

evidentiarily supported—that he suffered an adverse employment action based on retaliation.

Plaintiff acknowledges that he was able to speak to employees from Human Resources and

Workplace Relations “throughout his workday on numerous occasions.” Doc. [83] ¶ 89. He also

does not dispute that he notified Workplace Relations about Richardson’s conduct and she

stopped it. Jd. 90. He acknowledges that he “received his pay for any breaks he alleged were

‘docked’ from his time,” id.; accord Doc. [71-4] at 120 (259:25), and that Defendant has no

records reflecting that Richardson ever actually reduced Plaintiff's time or pay or records

reflecting that Plaintiff was not paid for the time he worked, Doc. [83] 491. Having shown no

adverse employment action whatsoever, his retaliation claim fails.

CONCLUSION

For these reasons,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, Doc.

[70], is GRANTED.

An appropriate Judgment will accompany this Memorandum and Order.

Dated this 31st day of July 2023. he

UNITED STATES DISTRICT JUDGE

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