McClanahan

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

DAJUAN MCCLANAHAN, )

)

Plaintiff, )

)

v. ) Case No. 4:23-cv-00431-RK

)

SECRETARY OF THE TREASURY, )

)

Defendant. )

ORDER

Before the Court is Defendant Secretary of the Treasury’s motion for summary judgment.

(Doc. 40.) This motion is fully briefed. (Docs. 40, 45, 47.) After careful consideration and for

the reasons explained below, the Court ORDERS that Defendant’s motion for summary judgment

is GRANTED.

Background1

This case arises out of Plaintiff DaJuan McClanahan’s employment as a Tax Examining

Clerk for the Internal Revenue Service (“IRS”) in 2021. In 2021, in addition to his role as Tax

Examining Clerk on Team 34405, Plaintiff was selected as Team 34405’s Backup Work Leader

and an On-the-Job Instructor. At the time, Plaintiff’s second-level supervisor was Michelle

Allen—Department Manager, and his third-level supervisor was Sherry Mueller—Program

Manager.

On April 30, 2021, at 1:00 a.m., a co-employee—Marlon Brown—and Plaintiff had an

interaction in which Mr. Brown physically threatened Plaintiff and used derogatory slurs (one of

which pertained to Plaintiff’s sexual orientation, the other to his race). Plaintiff complained to a

supervisor about this incident, and Ms. Allen submitted the paperwork to begin an Anti-

Harassment investigation. An investigation was completed with the assistance of Ms. Mueller,

and Plaintiff and Mr. Brown were directed to have no contact as a result of the investigation.2

1 The facts included herein are those that the Court concludes are uncontroverted. Plaintiff attempts

to controvert a significant number of facts by challenging the admissibility of the evidence, the knowledge

of the affiant or document producer, or arguing a failure to prove a negative. The Court attempts to address

the most relevant arguments but is largely unpersuaded by Plaintiff’s attempts to controvert the record.

2 Plaintiff attempts to contest the foregoing facts by arguing that Ms. Allen’s investigation affidavit,

(Doc. 40-3), is not based on personal knowledge. However, her answer explicitly states that “to her

Two months later, on June 29, 2021, after having a discussion with Plaintiff, Ms. Allen

requested that Plaintiff transfer from Team 34405 to Team 34402. That same day, Plaintiff emailed

Ms. Allen that he had decided to remain on Team 34405. Ms. Allen then emailed Plaintiff on June

30, 2021, stating that “[i]ts [sic] fine that you want to remain in Team 34405,” but that “training is

over” and Plaintiff would “[n]o longer be utilized as [On-the-Job Instructor].” (Doc. 45-6 at 1.)

Then, around July 27, 2021, Plaintiff requested that his work shift be changed from nights

to days.3 Ms. Mueller approved Plaintiff’s request for a shift change on July 28, 2021. (Doc. 40-

4 at 5 (“[Ms. Mueller] approved Mr. McClanahan’s request to go to dayshift 1040X and assigned

him to an upstairs team to prevent any overlapping encounters between him and Brown.”).)

On August 4, 2021, Ms. Mueller generated a one-page memorandum reflecting that the

investigation had ended with a determination that the incident between Plaintiff and Mr. Brown

“was due to an ongoing, mutually disrespectful behavior between [Plaintiff] and Marlon Brown.”

(Doc.40-9 at 1.) There is a notation on this form that “Employee Refused to Sign 8/6/21.” (Id.)4

The memorandum advised Plaintiff that “[t]he directive to have no contact with Marlon Brown

remains in effect indefinitely.” (Id.)

Finally, on September 2, 2021, Plaintiff sent an email to Ms. Mueller stating that “effective

immediately I will be switching teams and moving back downstairs to Katherine Minard’s team.

I have made the decision to move teams because every [sic] since Lisa Meyers has been back in

the office, I have been met with nothing but corrective actions . . . . ” (Doc. 40-12 at 2.) Later that

knowledge” Plaintiff and Mr. Brown were directed to have no contact. And, as a supervisor of Plaintiff,

she would need to know which co-workers Plaintiff was permitted to work with. Moreover, Ms. Mueller’s

investigative affidavit independently establishes this fact. (Doc. 40-4 at 9.) Plaintiff provides no evidence

in the summary judgment record controverting the fact that he and Mr. Brown were told to have no contact.

3 Plaintiff attempts to controvert this fact by challenging the ultimate admissibility of Doc. 40-7

which appears to be a letter from Plaintiff to management requesting the shift change. Plaintiff argues that

it lacks foundational requirements to be admissible. However, the standard for evidence at the summary

judgment stage is “whether it could be presented at trial in an admissible form.” Smith v. Kilgore, 926 F.3d

479, 485 (8th Cir. 2019). The information contained in the unsigned letter and its foundational basis could

be inquired into and established at trial through Plaintiff’s trial testimony. Significantly, Plaintiff did not

submit any evidence such as an affidavit suggesting that he did not request a shift change (and, in his

complaint, he pleaded that he requested a change to the day shift).

4 Plaintiff disputes this fact because Plaintiff’s signature does not appear on the form. Significantly,

Plaintiff did not submit an affidavit or other evidence showing that he did not receive this form. Defendant’s

evidence establishes that Plaintiff was presented with the form and refused to sign it. Plaintiff did not

properly controvert the fact in the record.

day, Department Manager Latifah Hisham responded, “Mr. McClanahan, it appears you are

unaware that you do not inform upper management that you will be changing team. The

Operations manager Sherry Mueller, assigned you to that team and that is where you will remain.”

(Id.) Plaintiff responded that “I have ADHD,” and that Lisa Meyers’ team was distracting to him;

he then said again “I will be moving downstairs to Katherine Minard’s team.” (Id. at 1.)

Plaintiff initiated informal EEO counseling on or about September 7, 2021.5 The EEO

Report of Counseling reflects five situations Plaintiff relied on in bringing his complaint against

the IRS to the EEO counselor:

1. 4/30/2021, Counselee reported co-worker for yelling derogatory slurs at him.

2. 6/29/2021, Counselee was moved from team 34405 to 34402.

3. 6/30/2021, Counselee was demoted because he didn’t want to switch teams

[referring to the loss of duties as Backup Work Leader and On-the-Job

Instructor].

4. 7/27/2021, Counselee had to request change in TOD [time of day] because he

felt unsafe at work.

5. 8/4/2021, Managerial Investigation/Counseling Memo.

(Doc. 40-13 at 2.) While Plaintiff attempts to controvert the record as to his informal EEO

counseling by stating “Defendant’s summarization of the five separate occasions of harassment

does not accurately reflect the record,” Plaintiff does not provide any evidence contradicting or

supplementing these five instances of alleged harassment, which appear in the EEO Report of

Counseling.

Plaintiff then proceeded to file a formal administrative complaint, which he signed on

October 18, 2021. In his formal administrative complaint of discrimination, Plaintiff alleged

discrimination based on disability and retaliation by checking boxes on the form, but Plaintiff did

not check the box for “Sex/LGBT” as a basis of discrimination. On November 5, 2021, based on

Plaintiff’s informal EEO counseling and written formal administrative complaint, the IRS

identified for investigation five bases of alleged discrimination being asserted by Plaintiff. The

following claims were accepted for investigation:

1. on September 2, 2021, management denied his reasonable accommodation

request to transfer from the night shift 1040-X to the day shift 1040-X;

5 Plaintiff attempts to contest the precise date of filing the informal counseling request. The Court

finds that the precise date of initiation is immaterial to its analysis herein.

2. on several dates, he was subjected to various acts of harassment, including but

not limited to:

a. on April 30, 2021, a coworker yelled derogatory slurs at him; and

b. on August 6, 2021, he received a counseling memorandum regarding

the managerial investigation into an incident that occurred on April 30,

2021, stating that management found that his actions contributed to a

hostile work environment and directed him not to have any contact with

the relevant coworker.

(Doc. 40-15 at 1.) Additional claims were dismissed and were not investigated:

3. on June 29, 2021, management informed him that he would be transferred from

Team 34405 to Team 34402; and

4. On June 30, 2021, he was informed that he would no longer be utilized as a

Back-up Work Leader/On the Job Instructor (OJI).

(Id. at 2.) In the letter accepting the formal complaint, the IRS informed Plaintiff that:

If you believe that the claims are incorrectly identified, you may notify Samara

Abell . . . within five days of your receipt of this letter . . . . If you do not contact

this office within five calendar days, it will be assumed that the claims were

correctly stated.

Pursuant to 29 C.F.R. § 1614.106(d), you may amend the complaint at any time

prior to the end of the investigation to include issues or claims that are like or related

to those raised in the complaint.

(Id. at 3, 5.) As reflected in the IRS’s Final Agency Decision, Plaintiff did not object or seek to

amend his claims.6

Further facts as set forth below as necessary.

Legal Standard

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a movant is entitled to

summary judgment if the movant shows that “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” In this context, a fact is material if it

“might affect the outcome of the suit under the governing law,” and a dispute is genuine if “a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

6 Plaintiff concedes this fact is reflected in the Final Agency Decision. Plaintiff then states that

“whether Plaintiff objected to or sought to amend his claims cannot be established through the record by

claiming the record is devoid of such evidence” and “Defendant cannot provide a negative without

Plaintiff’s testimony.” (Doc. 45 at 6.) Again, the Court is not persuaded. Defendant established a lack of

objection to the claims as stated by the IRS and a lack of amendment. If Plaintiff’s testimony would have

controverted that fact, Plaintiff should have submitted an affidavit or other evidence to properly contest

such facts as required by Rule 56 of the Federal Rules of Civil Procedure.

477 U.S. 242, 248 (1986). In applying this standard, the Court must view the evidence in the light

most favorable to the nonmoving party, giving that party the benefit of all inferences that may be

reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-88 (1986); Recio v. Creighton Univ., 521 F.3d 934, 938 (8th Cir. 2008) (citation omitted).

Thus, the relevant inquiry is whether “there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”

Anderson, 477 U.S. at 250.

“Rule 56(c)(1) of the Federal Rules of Civil Procedure provides that ‘[a] party asserting

that a fact . . . is genuinely disputed must support the assertion’ with evidence, or with pleadings

such as interrogatory answers and admissions. Failing to properly support the assertion permits

the court ‘to consider the fact undisputed for purposes of the motion.’” Arnold v. McClinton, 112

F.4th 598, 601 (8th Cir. 2024) (quoting Fed. R. Civ. P. 56(e)(2)). The nonmoving party may not

rest on the allegations in its pleadings, but must, by affidavit and other evidence, set forth specific

facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c); see also Thomas

v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (noting mere allegations, unsupported by specific

facts or evidence beyond a nonmoving party’s own conclusions, are insufficient to withstand a

motion for summary judgment). In so doing, the nonmoving party “cannot create sham issues of

fact in an effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated FM Ins., 49 F.3d

399, 402 (8th Cir. 1995).

“The district court must base its determination regarding the presence or absence of a

material issue of factual dispute on evidence that will be admissible at trial.” Smith v. Kilgore, 926

F.3d 479, 485 (8th Cir. 2019) (quoting Firemen’s Fund Ins. v. Thien, 8 F.3d 1307, 1310 (8th Cir.

1993)). “[T]he standard is not whether the evidence at the summary judgment stage would be

admissible at trial—it is whether it could be presented at trial in an admissible form.” Id. (quoting

Gannon Int’l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012); citing Fed. R. Civ. P. 56(c)(2)).

Discussion

I. Count 1 – Sexual Orientation Discrimination/Hostile Work Environment

In Count 1 of the Complaint, Plaintiff asserts sexual orientation discrimination/hostile work

environment in violation of Title VII, 42 U.S.C. § 2000e, et seq. Defendant argues that it is entitled

to summary judgment on this claim because Plaintiff did not administratively exhaust any claim

of sexual orientation discrimination. Plaintiff counters that Defendant has not met its burden to

prove the affirmative defense of failure to exhaust and that Defendant “cannot prove a negative

without testimony from Plaintiff” whether he did or did not exhaust his administrative remedies.

(Doc. 45 at 7.)

“Plaintiffs in discrimination cases against government agencies must exhaust their

administrative remedies prior to filing a civil action in federal district court.” Watson v. O’Neill,

365 F.3d 609, 614 (8th Cir. 2004). “[F]ailure to exhaust is an affirmative defense which must be

proved by the defendant.” Blomker v. Jewell, 831 F.3d 1051, 1062 (8th Cir. 2016). Under the

applicable federal regulations, there is an informal stage and formal stage of administrative

consideration for federal employment discrimination allegations. Initially, an aggrieved employee

must contact a counselor employed by the relevant government agency to attempt informal

counseling and resolution of the matter. 29 C.F.R. § 1614.105(a)(1). Then, if informal resolution

is not reached, the employee must file a formal complaint of discrimination. 29 C.F.R.

§ 1614.106(b).

Here, Plaintiff initiated informal counseling around September 7, 2021, and then filed a

formal administrative complaint around October 20, 2021. In the EEO report of (informal)

counseling, the EEO counselor identified “Disability – Mental” and “Retaliation/Reprisal,” as the

bases or types of discrimination Plaintiff alleged. (Doc. 40-13 at 1.) The EEO counselor did not

check the box for “Sexual Orientation” discrimination. (Id.) In Plaintiff’s formal complaint of

discrimination, Plaintiff marked the boxes for “Disability” and “Retaliation/Reprisal.” (Doc. 4-14

at 3.) Plaintiff did not check the box for “Sex-LGBT” discrimination. (Id. at 3.) Plaintiff did not

fill out box 14, which requested a narrative of the “action taken against you that you believe was

discriminatory.” (Id. at 2.)

Thus, while Plaintiff did engage in the informal and formal administrative process as to his

disability and retaliation claims, Plaintiff did not properly exhaust his sexual orientation

discrimination claim. The Eighth Circuit consistently requires that a subsequent complaint in a

federal lawsuit be limited only to those allegations asserted at the administrative level:

Allowing a complaint to encompass allegations outside the ambit of the predicate

EEOC charge would circumscribe the EEOC’s investigatory and conciliatory role,

as well as deprive the charged party with proper notice of the charge, as surely as

would an initial failure to file a timely EEOC charge.

Watson, 365 F.3d at 614 (quoting Williams v. Little Rock. Mun. Water Works, 21 F.3d 218, 223 (8th

Cir. 1994)). In Williams, the Eighth Circuit concluded that Williams failed to exhaust a claim for

race discrimination where he “fail[ed] to check the box for race discrimination” and his “EEOC

charge does not even hint of a claim of race discrimination.” Williams, 21 F.3d at 223. More

recently, in Weatherly v. Ford Motor Co. the Eighth Circuit affirmed a district court’s ruling that

Weatherly’s claims for reasonable accommodation and disability were not exhausted because

“Weatherly marked only the box next to ‘RETALIATION’ on the relevant form.” 994 F.3d 940,

945 (8th Cir. 2021).

Here, Plaintiff failed to mark the box for “Sex-LGBT” discrimination in his formal

administrative complaint of discrimination. In addition to failing to check the box, Plaintiff failed

to fill out the narrative portion of the formal complaint; thus, the formal complaint is completely

lacking in any allegations pertaining to sexual orientation discrimination.7 Therefore, pursuant to

Williams and Weatherly, the Court concludes that Plaintiff did not exhaust the administrative

process as to his sexual orientation discrimination claim in Count 1.

Accordingly, Defendant’s motion for summary judgment is GRANTED as to Count 1.8

II. Count 2: Retaliation in Violation of Title VII

In Count 2, Plaintiff alleges retaliation in violation of Title VII, 42 U.S.C. § 2000e-3. The

precise contours of Plaintiff’s claim are unclear. Defendant construes Plaintiff’s claim in Count 2

as a retaliation claim based on a hostile work environment. (Doc. 40 at 13 (citing Doc. 1 at ¶ 46

(“The continuing series of events planned and carried out by Defendant IRS, as described above,

are retaliatory in response to protected activity.”).) Plaintiff does not contest this characterization

of Count 2 in his suggestions in opposition. (See Doc. 45 at 8-9.) Thus, the Court follows the

parties’ lead and construes Count 2 as a retaliation claim based on a hostile work environment; in

other words, that in retaliation for protected activity, Plaintiff was subjected to a hostile work

environment. Defendant thus argues that Plaintiff fails to show retaliation premised on hostile

7 The Eighth Circuit has found that merely checking a box may not be sufficient to exhaust

administrative processes. See Slayden v. Ctr. for Behav. Med., 53 F.4th 464, 469 n.4 (8th Cir. 2022) (“The

fact that Slayden checked a box for ‘retaliation’ on his charge is not enough to overcome the fact that his

charge describes no retaliation.”). Here, Plaintiff neither checked the “Sex-LGBT” box in his formal

complaint nor described any discrimination based on his sexual orientation in the narrative portion of the

form, which he left blank.

8 Defendant is also entitled to summary judgment on Count 1 for the reasons discussed below with

regard to Plaintiff’s failure to establish evidence rising to the level of a hostile work environment.

work environment because the instances of harassment alleged are sporadic rather than severe and

pervasive.

“[R]etaliation claims under Title VII [can] be based on a hostile work environment and

need not be based solely on discrete adverse employment actions.” Mahler v. First Dakota Title

Ltd. P’ship, 931 F.3d 799, 807 (8th Cir. 2019). In the Eighth Circuit:

Hostile work environment claims are limited in nature, requiring a high evidentiary

showing that the plaintiff’s workplace is permeated with discrimination,

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.

Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008). To establish the required degree

of severity and pervasiveness of the harassment, the conduct is analyzed under “both objective and

subjective components”; the harassment must be “severe or pervasive enough to create an

objectively hostile or abusive work environment and the victim must subjectively believe [his]

working conditions have been altered.” Blomker, 831 F.3d at 1056. To support a claim for

retaliation more generally (whether based on hostile work environment or a discrete act) “a

plaintiff must show (1) that he or she engaged in statutorily protected activity; (2) an adverse

employment action was taken against him or her [or plaintiff was subjected to a hostile work

environment]; and (3) a causal connection exists between the two events.” Blackwell v. Alliant

Techsys., Inc., 822 F.3d 431, 436 (8th Cir. 2016) (internal quotation marks omitted).

Here, the Court finds that Plaintiff has not established either (1) the level of pervasive and

severe harassment necessary to support a retaliation claim based on hostile work environment, or

(2) the necessary causal connection between any protected activity and the alleged harassment.

Defendant identifies four incidents Plaintiff suggests contribute to workplace harassment in the

complaint:

1. The interaction with Mr. Brown on April 30, 2021, during which Mr. Brown used

derogatory slurs;

2. The June 29, 2021, request by Ms. Allen that Plaintiff change working teams, which

Plaintiff asserts led to him losing his extra responsibilities of Backup Work Lead and

On-the-Job Instructor;

3. The August 4, 2021, memorandum finding that Plaintiff and Mr. Brown were both at

fault for the April 2021 interaction; and

4. The September 2, 2021, request by Plaintiff to be moved from the night shift to the day

shift.

(Doc. 40 at 14.) In response, Plaintiff does not identify any further instances of alleged harassment

in support of his retaliation claim based on hostile work environment. Plaintiff instead again

argues that Defendant “attempts to provide a negative through documents without testimony of

Plaintiff.” (Doc. 45 at 8.) As best as the Court can discern, it appears that Plaintiff is arguing that

Defendant cannot defeat summary judgment on Plaintiff’s retaliation claim by arguing that there

are no other instances of harassment and that those in the record are insufficient to establish hostile

work environment.

Plaintiff’s argument suffers from a fatal flaw. The burden is on Plaintiff to make out a

prima facie case for retaliation based on hostile work environment. See Gibson v. Am. Greetings

Corp., 670 F.3d 844, 851 (8th Cir. 2012) (affirming summary judgment in favor of defendant on

claims of race and age discrimination where plaintiffs did not “produce[] sufficient evidence to

make out a prima facie case”). In the summary judgment record, Defendant supported with

evidence facts about the alleged harassment and IRS’s conduct which the Court concludes below

is insufficient to establish hostile work environment. It was then Plaintiff’s burden in opposing

summary judgment to provide evidence to the contrary by properly controverting Defendant’s

statement of facts or by properly supporting new assertions in Plaintiff’s additional statement of

uncontroverted facts. Plaintiff did not do this. Instead, Plaintiff briefly argues that Mr. Brown’s

comments during the April 2021 incident, Plaintiff being asked to move teams, and the fact that

Plaintiff’s supervisor know of his ADHD are sufficient to establish hostile work environment.9

The Court disagrees.

First, as to the April 2021 interaction between Plaintiff and Mr. Brown, Plaintiff has not

shown that this alleged harassment occurred after any protected activity, such as complaining of

discrimination to management. Thus, it is unclear how this instance could be retaliatory. See

9 Plaintiff’s entire argument related to hostile work environment, (which covers Counts 2-4),

appears in three short paragraphs which amount to just over a page of text. (See Doc. 45 at 8-9.) Courts

frequently find that failure to address arguments or oppose basis for summary judgment constitutes waiver

of those arguments. See Norfolk S. Ry. Co. v. Mayor City of Liberty, No. 4:25-cv-00064-DGK, 2026 WL

523415, at *4 (W.D. Mo. Feb. 25, 2026) (citing Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d

731, 735 (8th Cir. 2009) (finding a “[f]ailure to oppose a basis for summary judgment constitutes a waiver

of that argument”)). To the extent Plaintiff failed to respond to Defendant’s arguments, opposition to those

arguments are waived.

Florida v. Heartland Behav. Health Servs., No. 09-cv-5080-RED, 2010 WL 4220498, at *5 (W.D.

Mo. Oct. 20, 2010) (“Employment actions undertaken before Plaintiff engaged in her protected

activity cannot be retaliation for the subsequent protected activity.”). Second, this single instance

of workplace harassment is insufficient to rise to the level of a hostile work environment. Bailey

v. Augustine Med., No. 01-695 ADM/AJB, 2003 U.S. Dist. LEXIS 1963, at *28 (D. Minn. Feb. 7,

2003) (“A single offensive utterance does not create an actionable hostile work environment (citing

Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997))). Moreover, this was a single instance

of conduct by a co-worker, rather than a supervisor. To establish a hostile work environment

claims based on the actions of co-workers, Plaintiff must “present evidence that the employer knew

or should have known about the harassment and failed to respond in a prompt and effective

manner.” Anderson v. Durham D&M, LLC, 606 F.3d 513, 519 (8th Cir. 2010) (internal quotation

marks omitted). Here, Plaintiff has not pointed to any evidence in the record that the IRS knew or

should have known about the asserted harassment by Mr. Brown until after it occurred. The IRS

responded to Plaintiff’s complaint by initiating an investigation and ordering no contact between

Plaintiff and Mr. Brown.

The interaction with Mr. Brown is related to another of Plaintiff’s complaints—that the

investigation ended with a determination that both Plaintiff and Mr. Brown were at fault. As

Defendant points out, Plaintiff requested the investigation and Plaintiff does not identify any

deficiency in the investigation. It is unclear how the investigation amounts to an act of harassment.

Plaintiff also does not provide any evidence suggesting or leading to the inference that the IRS

made its investigation determination because of any protected activity by Plaintiff.

Plaintiff fairs no better explaining how the other instances of alleged harassment rise to the

level of a hostile work environment. As to the request to change teams, the record shows that

Plaintiff asked to stay on the current team and that management accommodated this desire. The

fact that Plaintiff would “no longer be utilized as On-the-Job Instructor” appears to stem from

Plaintiff’s decision to remain; moreover, these special job responsibilities were only originally set

to last until August 11, 2021 (less than a month and a half later than when they actually ended).

(Doc. 45-6 at 1.) And again, Plaintiff fails to suggest what the causal relationship between any

protected activity and this “harassment” is. Thus, even considering these events together, the Court

finds that they do not rise to the level of a hostile work environment and that Plaintiff has failed to

show that any of these actions were caused by or in retaliation of any protected activity.10

Accordingly, Defendant’s motion for summary judgment is GRANTED as to Count 2.

III. Counts 3 & 4: Americans with Disabilities Act

In Counts 3 and 4, Plaintiff alleges disability discrimination and retaliation in violation of

the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Defendant argues that Plaintiff

cannot assert a cause of action against the IRS, a federal government employer, under the ADA.

Plaintiff responds that the Court should construe the claims as arising under the Rehabilitation Act.

The ADA’s employment discrimination provisions do not apply to the federal government

as an employer. See 42 U.S.C. § 12111(5)(B)(i). Thus, Plaintiff cannot pursue claims arising from

his federal employment under the ADA. See Carroll v. Potter, 163 F. App’x 450, 450 (8th Cir.

2006) (“[W]e agree with the district court that Carroll could not file suit under the ADA to redress

alleged discrimination occurring during his tenure as a federal employee.”). Courts routinely

dismiss ADA claims brought by federal employees. See, e.g., Loos v. Napolitano, 665 F. Supp. 2d

1054, 1057 (D. Neb. 2009) (concluding federal employee was not entitled to recover under ADA);

Ebner-Cupples v. Potter, No. 4:05-cv-1448-RWS, 2007 WL 541712, at *6 n.4 (E.D. Mo. Feb. 16,

2007) (“Ebner-Cupple[s] cannot assert a claim under the ADA because relief under the ADA is not

available for federal employees.”); Smythe v. Potter, No. 4:05-cv-1471 FRB, 2006 WL 2927545,

at *3 (E.D. Mo. Oct. 11, 2006) (“[A]s a federal employee, plaintiff is unable to obtain relief under

the ADA against the United States on his claim of disabilities discrimination.”).

While the plaintiffs in Loos and Ebner-Cupples also asserted disability claims under the

Rehabilitation Act, and thus proceeded as to those claims, the plaintiff in Smythe v. Potter only

asserted a disability discrimination claim pursuant to the ADA. Nevertheless, the Eastern District

of Missouri dismissed Smythe’s ADA claim against the United States Postal Service for failure to

state a claim. Smythe, 2006 WL 2927545, at *3. The court declined to construe Smythe’s claim

as arising under the Rehabilitation Act or any other statutory authority, noting:

In consideration of the instant motion, the undersigned is mindful that plaintiff is

represented by counsel in these proceedings. As such, plaintiff’s Complaint,

drafted by counsel, is not entitled to the liberal construction generally accorded pro

se pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also, e.g.,

10 Neither party addresses Plaintiff’s retaliation claim in relation to discrete-act retaliation (rather

than hostile work environment). Even if the Court were to construe it in this way, Defendant would be

entitled to summary judgment because of the causation issues noted above.

Fray v. Schuetzle, 78 F.3d 359, 361 n.2 (8th Cir. 1996) (mindful that petition was

prepared by counsel, court believes it should adjudicate only those claims upon

which relief was actually sought).

Id. at *3 n.1; see also Hill v. McDonough, No. 4:21-cv-00466-RK, 2023 WL 2061246, at *7 (W.D.

Mo. Feb. 16, 2023) (granting summary judgment in favor of defendant sua sponte where Hill

alleged age and disability discrimination under Title VII, which does not cover age and disability

discrimination, and Hill did not assert claims under the ADEA or ADA in the complaint), aff’d No.

23-1797, 2024 WL 2890977 (8th Cir. June 10, 2024).

In light of the foregoing authority and the fact that Plaintiff has been represented by counsel

in this case, the Court declines to liberally construe the complaint as asserting claims under the

Rehabilitation Act. Accordingly, Defendant’s motion for summary judgment is GRANTED as to

Counts 3 and 4.11

Conclusion

Accordingly, after careful consideration and for the reasons explained above, the Court

ORDERS that Defendant’s motion for summary judgment, (Doc. 40), is GRANTED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: April 20, 2026

11 Even if the Court were to construe Plaintiff’s claims in Counts 3 and 4 as arising under the

Rehabilitation Act, the Court notes that Plaintiff did not make any argument in its suggestions in opposition

to summary judgment or cite to any evidence in the record in support of a prima facie case under the

Rehabilitation Act. (See Doc. 45 at 9-10.)

Additionally, to the extent these claims are based on hostile work environment, as Defendant

construes them without objection or any other indication to the contrary by Plaintiff, Defendant would also

be entitled to summary judgment for the reasons explained above in relation to Plaintiff’s Title VII

retaliation claim, specifically, that Plaintiff failed to demonstrate severe and pervasive conduct which rises

to the level of hostile work environment.