# Downs v. Dennis McDonough, Secretary of the Department of Veterans Affairs

> District Court, M.D. Tennessee · March 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10439224

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

STEPHEN DOWNS, )
)
Plaintiff, )
) NO. 3:20-cv-01090
v. ) JUDGE RICHARDSON
)
DENNIS MCDONOUGH, Secretary of the )
Department of Veterans Affairs, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Pending before the Court are a motion for review filed by Plaintiff to challenge the
magistrate judge’s orders filed on October 2, 2023 at Doc. Nos. 111 and 112 (Doc. No. 115,
“Motion to Review October Orders”), another motion for review by Plaintiff in objection to the
magistrate judge’s order filed on November 14, 2023 at Doc. Nos. 111, 112, and 118 (Doc. No.
119, “Motion to Review November Order”),1 and a Report and Recommendation of the magistrate
judge (Doc. No. 121, “R&R”) to which Plaintiff has filed objections (Doc. No. 122, “Objections”).2
Because Plaintiff’s arguments in the two motions (collectively, the “Motions for Review”) and his

1 Because this later motion for review was outside the fourteen-day window to oppose the orders at Doc.
Nos. 111 and 112, the Court considers this motion as challenging only the order at Doc. No. 118. That said,
the arguments this motion raises go to the Order at Doc. No. 112 by primarily arguing that Plaintiff needs
additional time for discovery as discussed herein. The Order at Doc. No. 118 resolved a dispute (after the
magistrate judge received Defendant’s position on the matter (Doc. No. 114) as required by previous order
(Doc. No. 112)) regarding Defendant providing Plaintiff with an opportunity to review the transcript of his
deposition. Although the Court does not perceive Plaintiff as making an objection to the magistrate judge’s
handling of the transcript issue in particular, the Court nevertheless reviewed the related record and agrees
with the magistrate judge’s order at Doc. No. 118 and, in particular, the characterization that “[b]oth parties’
conduct as to th[e] issue is unacceptable.”

2 Herein, the term “Court” usually refers to the undersigned district judge, as distinguished from the
magistrate judge who issued the R&R.
Objections all substantively raise the same concern—Plaintiff’s belief he has not been afforded
proper discovery—the Court will discuss the three (collectively, “Plaintiff’s three filings”)
together, after first distinguishing the applicable legal standards. The Court then will address the
claim (for retaliation) as to which the magistrate judge expressly and intentionally declined to
make a recommendation.

I. The Motion for Review and R&R
A. Background And Legal Standard
The Motions for Review filed by Plaintiff seek reversal of the magistrate judge’s orders at
Doc. Nos. 112 and 118. Defendant did not respond to the Motions for Review.3 Pursuant to Fed.
R. Civ. P. 72(a), the Court may modify or set aside any part of a magistrate judge’s Order on a
non-dispositive matter that is clearly erroneous or is contrary to law. The “clearly erroneous”
standard applies only to factual findings, while legal conclusions are reviewed under the “contrary
to law” standard. Norfolk Cnty Ret. Sys. v. Cmty. Health Sys., Inc., No. 3:11-cv-00433, 2019 U.S.
Dist. LEXIS 112291, 2019 WL 3003647, at *1 (M.D. Tenn. Apr. 19, 2019); Equal Emp’t

Opportunity Comm’n v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605 (W.D. Tenn.
2009). This standard is deferential, and mere disagreement with the magistrate judge and/or an
assertion that the magistrate judge should have ruled differently does not rise to a clear error of
fact or a decision contrary to law. See Shabazz v. Schofield, No. 3:13-CV-00091, 2014 U.S. Dist.
LEXIS 163642, 2014 WL 6605504, at *1 (M.D. Tenn. Nov. 19, 2014) (“The Court is not
empowered to reverse the magistrate judge’s finding simply because this Court would have

3 The Court does not treat Defendant’s choice not to respond to the Motions for Review as waiving or
conceding any arguments that Defendant has in opposition as Defendant’s arguments in the underlying
briefing relied in part on the position that Plaintiff was causing the parties to engage repeatedly in
unnecessary and expensive litigation on the same issues. As will be described herein, Plaintiff is continuing
to raise the same arguments, making Defendant’s point.
decided the issue differently.”). When examining legal conclusions under the contrary to law
standard, a court may overturn any conclusions of law which contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case precedent. Vanderbilt Univ. v.
Scholastic, Inc., 321 F. Supp. 3d 830, 832-33 (M.D. Tenn. 2018).
The R&R recommends that the motion for summary judgment (Doc. No. 100, “Summary

Judgment Motion”) be granted as to Plaintiff’s Tennessee Human Rights Act (“THRA”) claim and
Plaintiff’s claims of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)
and the Age Discrimination in Employment Act (“ADEA”), and that the parties be required to
submit supplemental briefing on Plaintiff’s retaliation claim under Title VII and the ADEA.
Plaintiff, proceeding pro se, filed Objections on February 16, 2024.4 On February 23, 2024,
Plaintiff filed “Supplemental Objections and Offers of Evidence” (Doc. No. 123, “Supplement”).5
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(3). The district judge

4 Plaintiff filed his Objections on February 16, which was a few days after the deadline, so the Court
alternatively denies his objections as being submitted late (without any explanation or request for an
extension), an entirely sufficient and independent ground for denial. However, the Court will nevertheless
consider the Objections because largely the same arguments therein were raised also in the Motions for
Review, and therefore the Court can decide all of Plaintiff’s three filings on the merits via the same
discussion.

5 Plaintiff did not provide any justification for filing his Supplement (which was not timely with respect to
any pending matter on the docket to which it could possibly have been addressed) beyond his statement
that “more evidence [had] been found in a folder that he overlooked.” (Doc. No. 123 at 1). But inadvertently
overlooking evidence is not a sufficient reason for untimeliness. And plaintiffs, even ones proceeding pro
se, have to be diligent in prosecuting their cases. Accordingly, in reviewing the R&R, the Court can
disregard any arguments made therein as untimely for not being filed within the window to object to the
R&R. Alternatively, even considering it on the merits, Plaintiff’s Supplement does not provide any type of
specific objection to the R&R and in fact suggests that Plaintiff is unwilling to present probative evidence
now because he wishes to unveil at trial (and not before), as discussed below. The Supplement alternatively
could be taken as Plaintiff’s submission of the supplemental briefing recommended by the R&R, which
indeed is how it is treated in the section below.
may accept, reject, or modify the recommended disposition, review further evidence, or return the
matter to the magistrate judge with instructions. Id. Fed. R. Civ. P. 72(b)(2) provides that a party
may file “specific written objections” to a report and recommendation, and Local Rule 72.02(a)
provides that such objections must be written and must state with particularity the specific portions
of the magistrate judge’s report or proposed findings or recommendations to which an objection

is made.
B. Analysis
Plaintiff’s primary6 objection to the R&R and his arguments in his Motion for Review boil
down to the assertions that Defendant has not cooperated in discovery and that the magistrate judge
refused to intervene to allow proper discovery to occur.7 The Court has reviewed the record and
agrees with the magistrate judge’s stance on discovery as articulated in the R&R and the Orders at
Doc. Nos. 111, 112,8 and 118. In particular, the Court agrees that “the litigation in this case has
clearly been unnecessarily contentious” as a result of the actions of both parties, (Doc. No. 112 at
3); there is “no basis for an order compelling any additional discovery from Defendant or otherwise

compelling any action with respect to the laptop,” (Id. at 4); “there has been no persuasive showing

6 In addition to objecting to the lack of discovery and magistrate judge’s characterization of discovery in
the R&R, Plaintiff also objects to the magistrate judge’s characterization (in her background information
of the case) of the administrative proceedings and provides new documents he suggests will clarify the
record. Plaintiff has not explained how remedying these alleged mischaracterizations would change the
outcome of the R&R; thus, the Court does not consider them. Even so, Plaintiff’s filing consisted of
hundreds of pages of new documents without any meaningful direction to this Court as to how the
documents supported his objections.

7 The Court declines to expend the resources necessary to distinguish between the arguments or assertions
made in the Objections or the Motions to Revise because, even with the benefit of having all of these
arguments and assertions collectively considered in connection with each of Plaintiff’s three filings,
Plaintiff cannot succeed on any of the three.

8 To the extent that Plaintiff also argues that his motion to strike (which was denied by the magistrate judge
in Doc. No. 119) should have been granted, the Court concludes that the magistrate judge was correct in
denying that motion because mere disagreement (no matter how fervent) with an opposing party’s position
is an insufficient basis for a motion to strike. (Doc. No. 112 at 2).
of spoliation by Defendant that warrants any type of sanction,” (Id. at 5); “the parties have been
given sufficient time to engage in discovery,” (Id. at 6); and that “Plaintiff’s arguments are
essentially a reassertion of the arguments made in his prior discovery motions that were denied. In
denying those motions, the [magistrate judge] addressed and resolved the outstanding discovery
disputes in this case and rejected Plaintiff’s arguments,” (Doc. No. 121 at 12-13).

Plaintiff nevertheless argues that additional discovery is needed because (according to him)
he knows that Defendant is withholding requested documents because he has personal knowledge
of them inasmuch as (according to him) he had them on his work laptop when employed by
Defendant and authored some of them. Despite this alleged personal knowledge, Plaintiff has not
informed the Court with any specificity what these documents say but instead makes mere
conclusory allegations that they would support his claim. More importantly, while Plaintiff argues
for access to his work laptop to access these documents, the record reflects that Plaintiff’s profile
on his work laptop was deleted. Although the two sides have competing respective theories about
who deleted the profile, the declaration from Nathan Wetzel (describing how a profile could be

deleted and why he was of the opinion that Plaintiff deleted the profile) is more credible given the
amount and nature of the detail included, the fact that Plaintiff inappropriately retained his work
laptop after the end of his employment, and that (as noted above) Plaintiff has provided no details
about these supposedly missing documents. Plaintiff has provided no reason for the Court to
believe that Defendant deleted his profile improperly, let alone in a way rising to the level of
spoliation. Moreover, having acknowledged that these documents do not exist via the request for
a spoliation order—a request that by definition is based on the requestor’s assertion that the
spoliated information no longer exists—imposing sanctions against Defendant, Plaintiff cannot
justify the need for further discovery.
Finally, in the course of litigating the Summary Judgment Motion (as to which the Court
considers the additional filings discussed below), Plaintiff has asserted that he has not presented
evidence in support of his claim that he has and intends to present at trial. (See e.g., Doc. No. 123
at 2). This assertion creates multiple problems for Plaintiff. First, it hurts the credibility of his claim
that he has been the only good actor in discovery when he suggests to the Court that he is

withholding evidence from Defendant in discovery and from this Court as it attempts to decide the
pending matters. Second, it bolsters Defendant’s credibility both in its assertion in the underlying
briefing that Plaintiff has himself been uncooperative in the discovery process and is unnecessarily
drawing out the litigation process, and in its veiled insinuations that Plaintiff has staged the
spoliation claim. Third, even if further discovery was warranted, Plaintiff suggests additional
evidence he already has supports his claim and therefore should be presented at trial but that he
“is reluctant at this stage to give this court everything he has because some of Plaintiff’s evidence
would be used to show a jury that witnesses that will be subpoenaed and called upon to testify will
certainly commit perjury.” But at summary judgment, each side must present the evidence

necessary to create a genuine issue of material fact, lest it lose the case before ever even reaching
trial; thus, it is a risky gamble to withhold evidence on a motion for summary judgment in order
to first unveil it at trial that may not even occur (especially if the withheld evidence is necessary
for the withholding party to avoid summary judgment). Defendant’s choice not to share
“everything he has” at “this stage” (which the Court takes to mean the pretrial stage of litigation,
including the summary-judgment stage) suggests that further discovery likewise will not improve
the record for summary judgment.
The Court can find no clear error with the magistrate judge’s orders at Doc. Nos. 111, 112,
and 118, so the Motions for Review are denied.
Plaintiff made no other specific objections to the R&R. The district court should adopt the
magistrate judge’s findings and rulings to which no specific objection is filed. Ashraf v. Adventist
Health System/Sunbelt, Inc., 322 F. Supp. 3d 879, 881 (W.D. Tenn. 2018); Benson v. Walden
Security, No. 3:18-cv-0010, 2018 WL 6322332, at *3 (M.D. Tenn. Dec. 4, 2018). The Report and
Recommendation is therefore adopted and approved.

II. Plaintiff’s Remaining Claim, i.e. Retaliation in Violation of Title VII and the
ADEA.9

In adopting the R&R, the Court grants Defendant’s Summary Judgment Motion (Doc. No.
100) as to Plaintiff’s THRA claim and Plaintiff’s Title VII and ADEA claims of discrimination,
as recommended in the R&R. As to Plaintiff’s Title VII and ADEA retaliation claim—with respect
to which the Summary Judgment Motion remains pending— the Court would be inclined to require
the parties to submit supplemental briefing, just as the magistrate judge recommended, (Doc. No.
121 at 27), had not the parties already filed such briefing. With such briefing already having been
filed and with the Court thus adequately informed of the parties’ relevant positions, to conserve
judicial resources, the Court hereby revokes its referral to the magistrate judge with respect to the
Summary Judgment Motion to the extent that it remains pending. And the Court now proceeds
with deciding the Summary Judgment Motion with respect to the claim (i.e., Plaintiff’s Title VII
and ADEA retaliation claim) that remains pending.
Following the issuance of the R&R, Plaintiff filed the Supplement (Doc. No. 123), which (as
noted in a footnote above) the Court perceives to be a (tardy) expression of ongoing objections to
the R&R generally as well as Plaintiff’s briefing in response to the magistrate judge’s
recommendation for additional briefing. Defendant filed its supplemental briefing. (Doc. No. 124,

9 The R&R refers to Plaintiff’s retaliation “claim” in the singular. The Court does likewise, while being
aware that the alleged retaliation allegedly was in violation of two different statutes, i.e., Title VII and the
ADEA.
“Defendant’s Supplemental Briefing”), to which Plaintiff responded (Doc. No. 125, “Plaintiff’s
Supplemental Response”).10 Notably, to the extent that the parties were entitled to file more than
one brief, that prerogative probably belonged exclusively to Defendant, who—as the summary-
judgment movant—would have the right to reply to Plaintiff’s opposition. Because the parties did
not wait for the Court to decide whether it would adopt the R&R’s recommendation of such

additional briefing and (if so) set a briefing schedule, the Court must decide whether it will
consider both of Plaintiff’s filings. Defendant has not replied or indicated an opposition to these
filings, so the Court will consider both, especially because even the two together cannot prevent a
summary judgment against Plaintiff on the remaining claim.
A. Legal Standard
Although the R&R set forth the applicable legal standards for the retaliation claim, the
Court will briefly discuss those standards.
“In order to establish a[n indirect-evidence] prima facie case of retaliation under Title VII,
an employee must establish that (1) he or she engaged in protected activity, (2) the employer knew

of the exercise of the protected right, (3) an adverse employment action was subsequently taken

10 Plaintiff made yet another filing after issuance of the R&R (Doc. No. 126) that purports to lay out “a
timeline concerning the diligent efforts Plaintiff took to obtain and preserve the[] records to support his
claims against the agency and was data that Plaintiff knew existed, would be damaging to the agency, and
would be direct evidence of the shenanigans put on by agency actors to shield that data from Plaintiff, said
data will also show a timeline to support Plaintiff disclosures and the time and proximity when Plaintiff
was claiming abusive interference with plaintiff duties attributed to Jennifer Vedral Baron, Daniel Pacheco,
Kristi Pate, Cynthia Johnson, Emma Phillips, Trina Kamara, Jason Cook, Charles Noel.” The “timeline” is
just the email chain of his conversation with the House Committee on Veterans’ Affairs’ Subcommittee on
Oversight and Investigations in which he speaks about the same allegations he makes in this lawsuit and
suggests that the subcommittee’s internal investigation may provide him the evidence he needs to be
successful in this case.
As discussed below, in Plaintiff’s Supplemental Response (Doc. No. 125), Plaintiff makes vague
references to a timeline. But the Court understands those references to be to the “timeline” (multiple
chronologies) in his attachment to Plaintiff’s Supplemental Response, not to the timelines included in this
later, separate filing (Doc. No. 126).
against the employee,11 and (4) there was a causal connection between the protected activity and
the adverse employment action.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.
2008); accord Taylor, 703 F.3d at 336 (“[Plaintiff] does not present direct evidence of retaliation,
and, therefore, she must demonstrate by a preponderance of the evidence four elements: (1) she
engaged in a protected activity under Title VII, (2) the exercise of protected rights was known by

[her supervisor], (3) [her supervisor] took [an] adverse employment action against [Plaintiff], and
(4) there was a causal connection between the adverse employment action and the protected
activity.”). The Sixth Circuit has noted that “the burden of establishing a prima facie case of
retaliation is not onerous[.]” Hatchett v. Health Care & Ret. Corp. of Am., 186 F. App’x 543, 550
(6th Cir. 2006) (internal quotation marks and citation omitted). Contributing to such lack of
onerousness is the relatively broad notion of “adverse employment action” in the context of
retaliation claims in particular. See Niswander, 529 F.3d at 720 (“In contrast to Title VII’s
discrimination provision, the ‘adverse employment action’ requirement in the retaliation context
is not limited to an employer’s actions that affect the terms, conditions, or status of employment,

or those acts that occur in the workplace. The retaliation provision instead protects employees from
conduct that would have dissuaded a reasonable worker from making or supporting a charge of
discrimination.”) (citation and some internal quotation marks omitted).
Retaliation claims are subject to the McDonell-Douglas framework if there is no direct
evidence of retaliation. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). The Sixth
Circuit has summarized the applicability and workings of the McDonnell Douglas burden-shifting
framework as follows:

11 As reflected below, sometimes the term used in this context, synonymously with “adverse action,” is
“materially adverse action.” It appears that in this context, action constitutes an “adverse action” only if the
action is “materially” adverse to the employee.
A plaintiff may show discrimination by direct evidence, or a plaintiff lacking direct
evidence of discrimination may succeed on a Title VII claim by presenting indirect
evidence under the framework first set forth in McDonnell Douglas Corp v. Green,
411 U.S. 792, 802–03, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).
To succeed under the McDonnell Douglas framework, the plaintiff must first make
out a prima facie case of discrimination by a preponderance of the evidence. . . .
Once the plaintiff makes out a prima facie case, the burden shifts to the defendant
“to articulate some legitimate, nondiscriminatory reason for” the adverse
employment action. Should the defendant do so, the plaintiff then must prove by a
preponderance of the evidence that the stated reasons were a pretext for
discrimination.
Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (some citations
omitted).
The burden-shifting approach in McDonnell Douglas applies only to discrimination or
retaliation claims premised on so-called indirect (i.e., circumstantial) evidence.12 Redlin v. Grosse
Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019). The undersigned has explained:
When a defendant-movant challenges a plaintiff's ability to reach a jury on an
indirect-evidence theory of employment discrimination, there are a number of steps
potentially implicated, though not all of them necessarily need be addressed in the
analysis. The number of steps to be addressed depends on whether the defendant-
movant seeks to prevail at the first step, or at the second and third step, or at both
the first step and the second and third step . . . .
To prevail at the first step of McDonnell-Douglas, the defendant, as the summary-
judgment movant, must meet its initial burden of showing an absence of evidence
from which a reasonable jury could find the plaintiff established a prima facie case.
E.g., Banks v. State of Ohio, No. 94–3866, 1995 WL 118993, * 2 (6th Cir. Mar. 20,
1995). If the defendant does so, then the burden shifts to the plaintiff to show that
at trial it could “make out a prima facie case of discrimination by a preponderance
of the evidence.” Redlin, 921 F.3d at 606. If the plaintiff fails to succeed here, then
the plaintiff suffers summary judgment in favor of the defendant on the claim. But
if the plaintiff succeeds here, defendant does not prevail at the first step and is

12 “Direct evidence is such that, if true, requires the conclusion that unlawful retaliation [or discrimination]
was a motivating factor without any inferences or presumptions.” Banks v. Bosch Rexroth Corp., 15 F.
Supp. 3d 681, 693 (E.D. Ky. 2014), aff’d, 610 F. App’x 519 (6th Cir. 2015) (citing Norbuta v. Loctite Corp.,
181 F.3d 102 (6th Cir. 1999)). Indirect evidence is evidence that requires the court to make inferences to
conclude that unlawful retaliation or discrimination was a motivator for an adverse employment action.
relegated to try instead to prevail at the second and third steps of McDonnell-
Douglas.
At the second step, the defendant-movant has the burden (of production only) to
show a legitimate and non-discriminatory reason for its action(s). Brown, 814 F.
App’x at 80 (noting, on the defendant's motion for summary judgment that it is a
“burden of production [that potentially] shifts to the defendant to show a legitimate,
nondiscriminatory reason for the way it treated the plaintiff”). If the defendant
successfully shows evidence of a non-discriminatory reason for its alleged
discriminatory act, the court proceeds to the third step, where “the plaintiff must
rebut the proffered reason by producing evidence from a which a reasonable jury
could conclude that the proffered reason is actually a pretext” for unlawful
discrimination. Willard v. Huntington Ford, Inc., 952 F.3d 795, 807 (6th Cir. 2020)
(quotations omitted).
Veith v. Tyson Fresh Meat, Inc., No. 3:19-CV-01065, 2022 WL 1231229, at *9–10 (M.D. Tenn.
Apr. 26, 2022).
To summarize, to obtain summary judgment on a Title VII or ADEA claim grounded
exclusively on the so-called “indirect-evidence” theory, the defendant must either (i) show that
there is no genuine issue of material fact as to at least one of the elements of the plaintiff’s prima
facie case (such that the defendant necessarily is entitled to judgment as a matter of law based on
the absence of that element); or, failing that, (ii) (a) make an evidentiary showing13 that there was
a legitimate, nondiscriminatory reason for its alleged actions and then (b) show that there is no
genuine issue of material fact as to pretext (such that the defendant necessarily is entitled to
judgment as a matter of law based on the absence of pretext). On the other hand, the plaintiff will
avoid summary judgment if: (i) either (a) the defendant fails to meet its initial burden to show the
lack of a genuine issue of material fact as to any or more elements of the plaintiff’s indirect-
evidence prima facie case, or (b) the plaintiff presents sufficient evidence to demonstrate a genuine
issue of material fact as to any element(s) of such prima facie case as to which the defendant met

13 To be clear, the requirement here is not merely to articulate a legitimate reason, but also to present
evidence that the articulated legitimate reason was in fact the reason.
its initial burden to show the lack of a genuine issue of material fact; and (ii) either (a) the defendant
cannot make an evidentiary showing of a legitimate, nondiscriminatory reason for its alleged
actions, or, if the defendant can make such a showing, (b) the plaintiff demonstrates that there is a
genuine issue of material fact as to pretext.
B. Analysis

For purposes of summary judgment, Defendant concedes the satisfaction of the first two
requirements of the prima facie case (that the plaintiff engaged in protected activity and the
employer knew of the exercise of the protected right) and argues that Plaintiff cannot succeed on
either the third or fourth requirement.
Defendant successfully shows that Plaintiff is unable demonstrate that he experienced a
materially adverse action. In the context of a retaliation claim, an action constitutes a “materially
adverse action” if (and only if) it “produces an injury or harm.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006). Defendant asserts that Plaintiff is unable to show the requisite
injury or harm, and it supports that assertion by showing with specific citations to the record that

Plaintiff was never removed from his employment, his wages were never reduced, and he was
never charged AWOL.14 Defendant also successfully argues that Plaintiff’s harm cannot be based
on intangibles like a hindrance to Plaintiff’s professional advancement (vis-à-vis Defendant’s
negative performance evaluations of Plaintiff) because Plaintiff cannot show that any of
Defendant’s actions would have been the cause of any failed professional advancement. Plaintiff
cannot show this, Defendant argues, for the same reason that he received the poor performance

14 Defendant argues that its Statement of Undisputed Facts should be taken as unopposed; the Court does
not need to decide this issue because Defendant’s Statement of Undisputed Facts is supported with citations
to the record, which the Court incorporates by reference into any citation in the supplemental arguments.
On the other hand, Plaintiff largely fails to cite to the record as discussed below and cannot create a genuine
factual dispute via mere allegations.
evaluations: he actually performed poorly at his assigned work, thus causing his own professional
failures. Defendant gave Plaintiff many opportunities in different positions to prove himself
capable of maintaining employment, and yet—as Defendant details in its arguments—Plaintiff
was unsuccessful in every position. (Doc. No. 124 at 6-7). See Vaughn v. Louisville Water Co.,
302 F. App’x 337, 348 (6th Cir. 2008); Cecil v. Louisville Water Co., 301 F. App’x 490, 501 (6th

Cir. 2008).
Plaintiff disputes some of the facts Defendant uses in support of its argument, purportedly
with the support of a “timeline” that he says “will dispel defendant agency notion of their own
narrative of what took place[]concerning the complaint before the court[.]” (Doc. No. 125 at 3).
The Court believes that the “timeline” he is referencing here are chronologies in emails that he
wrote and submitted to Susan Baumgartner at“OAWP” (Doc. No. 125-10 at 1-3) and “Jeff Elkin,
an Attorney with the Investigation and Prosecution Division (IPD) of the U.S. Office of Special
Counsel (OSC)” (Doc. No. 125-7 at 7-8), presumably in support of his whistleblower allegations.
Though one of these emails (Doc. No. 125-10) references various exhibits, those exhibits do not

appear to be in the attachment; moreover, both email timelines, which are themselves hearsay,
consists in part of other hearsay statements (so-called hearsay within hearsay); therefore, the Court
does not need to admit or consider this alleged proof. Additionally, Plaintiff makes no specific
references to the timelines, to what evidence the timelines provide (or incorporates), or to which
facts the timelines bring into dispute—let alone to how any identified factual disputes allow him
to withstand summary judgment. Although pro se Plaintiffs are afforded greater leniency than
represented parties, the Court can neither make arguments on behalf of a party (even if pro se) nor
identify facts in the record to support a party’s claims. This is particularly true in cases like this
one, where Plaintiff has repeatedly filed numerous, often lengthy, attachments with only vague,
sweeping claims supporting their relevance.
Additionally, although Plaintiff’s Supplemental Briefing listed four categories of adverse
actions, he does not say which adverse action he is relying upon and how it supports his indirect-
evidence theory of retaliation. He then states that “adverse actions are not limited to those actions

which are economic or tangible,” but fails to identify the type of intangible adverse action he has
experienced. (Doc. No. 123 at 4). Plaintiff also states in his Supplemental Response that
Defendant’s actions “caused great emotional harm and pain to [him].” (Doc. No. 125 at 6).
However, he does not cite to any evidence of this alleged harm or pain. Accordingly, Defendant
has shown initially that Plaintiff cannot demonstrate a materially adverse action that produced an
injury or harm, and Plaintiff in response has failed to demonstrate that there is any evidence to
create a genuine issue of material fact that he was in fact injured or harmed in any way— including
in ways that are “intangible.”
Alternatively, Defendant also successfully shows that Plaintiff is unable to prove the fourth

requirement, but-for causation, because (1) his retaliation claim is based at least in part on actions
that occurred before his protected activity and therefore cannot possibly be the but-for cause of the
alleged retaliation and (2) Plaintiff’s theory is that he undertook protected activities in response to
Defendant taking adverse actions against him, not that Defendant took adverse actions in response
to Plaintiff undertaking a protected activity. (See Doc. No. 124 at 11). Defendant also points out
that Plaintiff does not have any evidence of retaliatory motive. As Defendant had indicated, all of
the evidence before the Court indicates that Defendant’s actions were prompted by Plaintiff’s poor
work performance. Plaintiff’s response has provided no evidence of retaliatory motive. In a case
like this, where retaliation cannot be directly inferred from the timing of the protected activity vis-
à-vis the alleged adverse action(s), other evidence of retaliatory motive is necessary for the plaintiff
to succeed. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (“[W]here some
time elapses between when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality.”)

As with the third element, Plaintiff fails to cite to any specific evidence on the record to
support the fourth element. Instead, he merely makes bare allegations and recites his version of
the facts, which (as noted above) are insufficient on motion for summary judgment to create a
genuine dispute of material fact. Even so, Plaintiff argues that the protected activity occurred
before the alleged retaliatory action because, prior to such action, Plaintiff disclosed Defendant’s
“misdeeds” to “several people” including “[a]n employee, a Priest, a physician and a person
outside the agency.” (Doc. No. 125 at 3). Even taking this as true, it is not clear how informing
any of these individuals would suffice to impute knowledge to Defendant of such alleged protected
activity such that Defendant would have a motive to retaliate based on such protected conduct. As

for Plaintiff allegedly informing an unnamed employee of an unnamed employer, even if the Court
were to make the shaky assumption that the employee is employed by Defendant, that employee
has an unknown rank, authority, and responsibilities; thus, the Court has no basis to impute to
Defendant the information supposedly conveyed to this employee. Plaintiff therefore cannot meet
his burden and demonstrate the fourth element of his indirect evidence prima facie case, as required
to avoid summary judgment here in the absence of direct evidence of retaliation.
Accordingly, summary judgment is granted to Defendant and against Plaintiff on the
remaining (retaliation) claim.
CONCLUSION
For the reasons set forth herein, the Motions for Review (Doc. Nos. 115, 119) are
DENIED, the R&R (Doc. No. 121) is ADOPTED.’ Consistent with the adoption of the R&R
Defendant’s Summary Judgment Motion (Doc. No. 100) is GRANTED as to Plaintiff's THRA
claim and Plaintiff’s Title VII and ADEA claims of discrimination. The referral to the magistrate
judge is REVOKED with respect to the summary judgment claim still pending after the adoption
of the R&R, namely the Title VI and ADEA retaliation claim—and having considered on the
merits the arguments as to that claim, the Court GRANTS the Summary Judgment Motion (Doc.
No. 100) as to the retaliation claim. Having done so, the Court has granted Defendant’s Summary
Judgment Motion in its entirety.
The Clerk of the Court is DIRECTED to enter final judgment under Federal Rule of Civil
Procedure 58 and close the file.

IT IS SO ORDERED.

Cli Rucherdseanr _
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

'S The Court notes that the R&R contains a scrivener’s error on the third line of its third page. Specifically,
the phrase “did to go smoothly,” (Doc. No. 121 at 3), clearly was meant to be “did not go smoothly.” The
Court also notes that the copy of the R&R accessible via PACER reflects some extraneous markings that
seem likely to be the anomalous result of the electronic processing of the document.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439224. Public record. Not legal advice.