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Keith Ullrich v. Eric K. Shinseki

March 8, 2011

KEITH ULLRICH, PLAINTIFF,
v.
ERIC K. SHINSEKI, UNITED STATES
SECRETARY OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

JUDGE CAPUTO)

MEMORANDUM

Presently before the Court is Defendant's Motion for Summary Judgment. (Doc. 25.) For the reasons discussed below, the Motion will be granted.

BACKGROUND

Plaintiff is a Safety Officer at the Veterans Affairs Medical Center ("VAMC") in Wilkes Barre, PA. Plaintiff and Judity O'Leary, another VAMC employee, are the parents of a daughter. A custody order in place from July 17, 2007 states that neither parent can bring the daughter to their place of employment, unless it is to a work-sanctioned event. On January 7, 2009, Plaintiff called Janice Boss, the director of the VAMC, and asked if he could bring his daughter to work until Plaintiff's parents could pick her up because her school was closed due to inclement weather. Having forgotten about the language in the custody order, Ms. Boss told Plaintiff that he could bring his daughter to work until Plaintiff's parents could pick her up. Later that day, Ms. O'Leary went to the VAMC police, told Sgt. Gabriel about the Plaintiff's violation of the custody order, and Sgt. Gabriel completed a Uniform Incident Report. Chief Donnelly then saw the incident report and a short time later he ran into Plaintiff at the hospital. Chief Donnelly stated in his Declaration that he askedPlaintiff about the existence of the court order, and Plaintiff told him there was no such order in place. Plaintiff denies having told him there wasn't an order. In late January or early February, Ms. O'Leary contacted Ms. Boss and complained to her that the hospital was aiding Plaintiff in breaking the court order. Ms. Boss then instructed Chief Donnelly to look into whether there was such an order in place. Chief Donnelly told Ms. Boss that Plaintiff had told him there wasn't any order, but then a copy of it was provided to Ms. Boss. Ms. Boss then questioned Plaintiff, who told her that he had told Chief Donnelly about the order. Cassandra Davis, Plaintiff's supervisor, then questioned Plaintiff and Chief Donnelly about what Plaintiff had told Chief Donnelly regarding the court order. Plaintiff told Ms. Davis that he had told the Chief about the order, while the Chief said that Plaintiff had denied there was an order in place. Ms. Davis believed Chief Donnelly's version of the events and reported to Ms. Boss. Ms. Davis, after consulting with VAMC's Labor Relations\Employee Relations Section about what would be appropriate disciplinary action for Plaintiff's lack of candor, proposed Plaintiff be suspended for five days without pay on March 13, 2009. Plaintiff and his attorney sent written responses to Ms. Davis in which they claimed that Plaintiff had been truthful and that Plaintiff was being discriminated against. Plaintiff was suspended on April 23, 2009 for five days. Plaintiff filed his Complaint on April 19, 2009. (Doc. 1.) In his Complaint, Plaintiff brought claims for Hostile Work Environment (Count I); Discrimination (Count II); and Retaliation (Count III). Defendant then filed a Motion for Summary Judgment on January 3, 2011. (Doc. 25.) The motion has been briefed by both sides and is ripe for review.

LEGAL STANDARD

Summary judgment is appropriate if "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

DISCUSSION

As an initial matter, Plaintiff has failed to adequately counter Defendant's Statement of Material Facts ("Def. SMF"), as per Local Rule 56.1. As a result, all of these facts are deemed ...


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