Opinion
IP 00-0263-C-T/F
March 25, 2002
ENTRY ON SUMMARY JUDGMENT MOTION
This entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Defendant has moved for summary judgment on Plaintiff's Complaint. Plaintiff opposes the motion. The court rules as follows.
I. Summary Judgment Standard
Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of proving the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the movant discharges this burden, then the nonmovant cannot rest on bare allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001). A genuine issue exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of material fact, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Id. at 255.
Affidavits must be based on personal knowledge and set forth facts that would be admissible in evidence. Fed.R.Civ.P. 56(e); Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998); Russell v. Acme-Evans Co., 51 F.3d 64, 68-69 (7th Cir. 1995).
Conclusory statements in affidavits are insufficient to create genuine issues. DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999) ("the nonmoving party is not entitled to rely on conclusory allegations, unsupported by the record") (citation omitted); Drake, 134 F.3d at 887 (Rule 56 requires "affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted") (quotation omitted). Inferences and opinions must be substantiated by specific facts. Drake, 134 F.3d at 887.
These facts are not disputed unless noted otherwise. Any factual assertions in a Statement of Material Fact ("SMF") or Statement of Additional Material Fact ("AMF") not set forth herein should be deemed immaterial, and any objections or disagreements to an SMF or AMF not specifically addressed herein should be deemed overruled.
In 1986 Jeff Moore, Jr. began working for the Veterans Affairs ("VA") Canteen Service ("VCS"), which provides food, retail, and other services for VA hospitals, including patients and guests. The canteens are self-supporting; they do not receive any government funding. The canteens are graded in terms of their ability to meet certain goals and to be financially sound. When Moore began employment with the VA, he signed a Mobility Agreement, agreeing to relocate for the convenience of the VA upon the VA's request.
Effective August 1994, the VA reassigned Moore to Marion, Indiana as a grade 13 Chief Canteen Officer. The Marion canteen was experiencing significant problems, declining sales, and had grossly over-stocked retail items. Moore reduced the hours of operation of the canteen to meet operational performance requirements. On September 12, 1997, the VA proposed to consolidate the Fort Wayne and Marion canteens, and advertised for a VC-13 Canteen Chief position to oversee the operation. Moore applied for this position, but neither Moore nor any other applicant was considered.
Moore had made project initiatives including a proposal for consolidation of the Marion canteen with the Fort Wayne canteen, but no credit was attributed to Moore for the ultimate consolidation. The deposition portions referred to by West in his response to Moore's AMF 83 do not indicate that Moore's proposals were considered in arriving at the ultimate decision to consolidate. Moore states in his AMF 83 in conclusory fashion that the Central Office ignored his proposals. His conclusory assertion, however, is insufficient to raise a genuine issue of fact. See, e.g. DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999); Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998).
Instead, on September 15 the VA received an unsolicited proposal from Dan Trunick to consolidate the Marion canteen with the Battle Creek/Saginaw/Fort Wayne consolidated canteen ("Battle Creek consolidated canteen"). Trunick was Canteen Chief for the Battle Creek consolidated canteen at the time. An analysis of the proposal revealed that significant savings could be achieved if the consolidation was approved.
Moore contends that the proposal from Trunick was not unsolicited, however, he submits no evidence to show personal knowledge about whether the proposal was unsolicited. Consequently, his disagreement with this assertion in SMF 15 is not well taken and the assertion is considered to be admitted. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; Drake, 134 F.3d at 887; Russell v. Acme-Evans Co., 51 F.3d 64, 68-69 (7th Cir. 1995). His objection to SMF 15 is OVERRULED.
Moore's AMF 92 states that he performed the functions of Area Chief Canteen Officer for the Marion and Fort Wayne canteens for eighteen months at the request of the Central Office. West denies this assertion. Its objection is SUSTAINED because the cited statement in Moore's Affidavit, paragraph 34, directly contradicts his prior deposition testimony and, therefore, fails to create a factual issue. See, e.g., Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000) ("`As a general rule, the law of this [the Seventh] circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.'") (quoting Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996)).
Ralph Shalda, VCS Chief Operating Officer, confirmed that the proposed consolidation was feasible and should proceed. James B. Donahoe, Director of the VCS, agreed with Shalda and, with the concurrence of the VA Medical Center Director at Fort Wayne/Marion, approved the consolidation of the four canteens under the operational control and supervision of the Battle Creek canteen. The decision to consolidate voided the need to fill the Marion Canteen Chief position. No promotions occurred as a result of the canteen consolidations.
Moore objects to this assertion in West's SMF 20. His objection ignores the context of the SMF, and he provides his opinion on the qualification of Carol Reece without a foundation for his personal knowledge of her qualifications. He therefore fails to raise a genuine issue of material fact as to this matter. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; Drake, 134 F.3d at 887; Russell, 51 F.3d at 68-69. West is correct that consolidation of the Marion and Battle Creek canteen supervision into one spot eliminated the need to fill the Marion canteen chief position. Regarding the appointment of Carol Reece, she became responsible for both the Marion and Fort Wayne canteens, but only after Moore had resigned from the VCS. He has not shown personal knowledge of the events surrounding her promotion. Moore's objection to SMF 20 is OVERRULED and West's objection to AMF 95(a) is SUSTAINED.
Moore disagrees with this assertion in SMF 23, and states that Carol Reece was assigned to the position of supervisor over the consolidated canteens. However, he provides no information that would show that her assignment was, in fact, a promotion. Consequently, his disagreement is OVERRULED. See DeLoach, 164 F.3d at 402.
The VA determined that the Marion canteen no longer required a grade VC-13 canteen chief position and, therefore, the position was reclassified to an associate canteen chief, grade VC-11. Since Moore was a grade VC-13 canteen chief, he was over-graded for the newly established VC-11 position in Marion. To avoid a reduction in his grade or salary, the VA was obligated to attempt to locate a suitable position for him elsewhere at his VC-13 grade. The VA had a critical operation need at the Indianapolis canteen and, therefore, determined that Moore should be reassigned to the vacant position there of Assistant Canteen Chief, VC-13.
Moore contends that he should have been allowed to accept a lower grade in accordance with Policy Letter No. 97-32, dated May 16, 1997. This is attached as part of Moore's Exhibit One. He also contends that he should have been given the option of remaining in Marion with a reduced pay change, which he contends is the result of Policy Letter No. 97-34. This Policy is attached as Exhibit 14 to West's submissions. He may also be intending to cite Policy Letter No. 97-35 which is attached as part of Exhibit One of Moore's submissions. West is correct, that is, Policy Letter No. 97-34 applies which allows reassignment "when deemed operationally necessary." (Def.'s Ex. 14.) Policy Letter No. 97-32 applies to annual rating of positions and Policy Letter No. 97-35 only applies to procedures when a change to lower grade is necessary. Thus, Moore's interpretation of these policies is incorrect and his disagreement with SMF 24 and SMF 25 should be OVERRULED. Similarly his contention in AMF 97 that he should have been given the option to remain in Marion is incorrect and is disregarded.
Moore disagrees with the assertion in SMF 26 that the VA had a critical operation need in Indianapolis because he states in his affidavit that Carol Reece declined an assignment to the Indianapolis canteen in August or September of 1997. The cited paragraph of his affidavit, paragraph 50, does not disclose how he would have been aware of that information. Consequently, it is without foundation for his personal knowledge. Likewise, his contention that there was not a critical operation need is not supported by firsthand information. His disagreement with SMF 26 is thus OVERRULED. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; see, e.g., Russell, 51 F.3d at 68-69.
Sometime between August 1997 and November 1997, Moore applied for the Chief Canteen Officer position at Detroit, but his application was rejected.
Moore points to no evidence of the date on which he applied for this position, nor does he produce evidence as to the exact date on which his application was rejected. Thus, there is no basis for the conclusion that he was rejected for this position within the relevant time period.
On or about September 15, 1997, Moore applied for the position of Area Chief Canteen Officer for the consolidated Marion and Battle Creek canteens. He was rejected for the position, and it was filled by Dan Trunick, a Caucasian male.
Moore's AMF 93 adds that Trunick's experience was comparable to Moore's, but he offers no foundation for his knowledge of Trunick's experience, and to a large extent, this assertion contradicts his prior deposition testimony. Thus, West's objection to Moore's conclusion about Trunick's experience is SUSTAINED. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; DeLoach, 164 F.3d at 402; Drake, 134 F.3d at 887. AMF 94 continues by asserting that after being rejected for the position, Moore protested internally about unfair treatment by the VA. West's objection to this AMF is SUSTAINED because Moore's assertion is vague.
The VA reassigned Moore to the Indianapolis canteen as Assistant Chief Canteen Officer, VC-13, effective November 9, 1997. Moore retained his grade and his salary increased as a result of the move to Indianapolis because it was a larger, more complex operation than that in Marion. His new position offered the same benefits as the previous one. Nevertheless, he was not happy about being reassigned. So, he determined that he was going to work only the minimum eight hours per day. After his transfer from Marion,
Moore asserts in AMF 107 that he was "forced" to accept the reassignment, but nothing in the record supports this conclusory assertion. AMF 107 also states that Reece was allowed to decline an assignment to Indianapolis in August or September 1997, but Moore has not shown personal knowledge of this matter. Thus, West's objection to AMF 107 is SUSTAINED. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; Drake, 134 F.3d at 887.
Moore objects to this factual assertion, stating that he frequently worked more than eight hours a day during his Indianapolis assignment. At pages 226 and 227 of Moore's deposition he states that he was going to just do his eight hours a day, the minimum. However, other testimony at pages 224 and 230 and 231 suggests that he did work more than eight hours a day and that his supervisor did not offer overtime or compensatory time. As a result, Moore's objection appears to be well-taken. There was nothing in his testimony as cited by West that indicated that portions of Moore's job could have used more attention. Thus, Moore's objection to SMF 32 is SUSTAINED except for the fact that he indicated he was determined that he was only going to work the minimum eight hours per day.
Moore discovered that the project initiatives which he had submitted while assigned to the Marion canteen were implemented by the VA, and the position of Area Chief Canteen Officer for the consolidated Marion and Battle Creek canteens was given to Trunick, a Caucasian male, and later, to Reece, a Caucasian female.
West objects to this assertion in AMF 98. He is correct that Moore's affidavit does not explain how Moore discovered the information, but the facts of the consolidation and placement of a Caucasian male and later a Caucasian female in positions in which they were in charge of the consolidated canteens are not disputed. These are facts that Moore could know through the workplace. West's objection to AMF 98 is therefore OVERRULED.
Elizabeth Nelson supervised Moore at the Indianapolis canteen. On December 17, 1997, she verbally counseled him about his hours of work, stating that she "could no longer condone him working only eight hours a day." She told him that as a manager, his job did not end in eight hours, and he was required to work until the job was finished. Moore did work more than eight hours a day. He demanded that Nelson give him comp time for overtime worked, but she would not.
Moore objects to SMF 34, but his objection goes to the fact that he frequently worked more than eight hours a day. He has not offered any evidence to refute West's evidence that Nelson verbally counseled him. Thus, his objection is OVERRULED.
West objects to this assertion in AMF 104, but his objection is OVERRULED. The objection goes to Moore's intent to do the minimum of eight hours a day. Regardless of his intent, the evidence establishes that Moore worked more than eight hours a day.
Moore objects to this assertion in SMF 37, stating he did not demand comp time until he had worked many overtime hours without compensation. This assertion is repeated in Moore's AMF 106. The point in time at which he requested comp time is irrelevant, and Moore's objection to SMF 37 is OVERRULED. West's objection to AMF 106 is OVERRULED as it (1) addresses Moore's intent to stick to eight hours a day, which does not contradict the fact asserted in AMF 106, and (2) concedes that Moore asked for compensatory time.
Moore applied for a job with Daimler/Chrysler in Kokomo, and after accepting a job offer there, resigned from the VA effective March 18, 1998. Moore described the situation as follows: "And I got to tell you, see, everything came together. Perfect timing. I was fed up to the max with the treatment from Canteen Service. At the time that I reached my ropes end with Canteen Service, I got a decent job where I would leave and I left." (Pl.'s Dep. at 231.) Moore's job with Daimler/Chrysler had equal or better benefits than the job at the VA, including a discount on vehicle purchases, a 401K plan, and free legal services. And, Moore was allowed to quit a second job he had been working while employed by the VA.
In AMF 101, Moore asserts that he felt compelled to resign and speculates about his future performance had he stayed with the VA. West's objection is well-taken as Moore's assertion is conclusory and speculative and, therefore, is insufficient to create a genuine issue of fact. See, Drake, 134 F.3d at 887. West's objection to AMF 101 is SUSTAINED. Similarly, in AMF 102 Moore states he did not want to end his federal career. West objects, and his objection is again well-taken as the statement is conclusory. See, Drake, 134 F.3d at 887. The objection to AMF 102 is SUSTAINED.
Moore's AMF 103 asserts that he took a reduction in pay after leaving the VA and that he had to work overtime to earn more income than at the VA. For support, he cites paragraph 46 of his affidavit. These facts are not material and in any event, are contradicted by Moore's prior deposition testimony. (Pl.'s Dep. at 222, 235, 246-47.) Thus, his statement in his later affidavit cannot raise a genuine issue of fact. See DeLoach, 164 F.3d at 402.
Prior to his resignation, Nelson had never disciplined Moore in any way, nor did she counsel him in any way other than the one occasion on December 17, 1997. She never asked him to resign, nor did she ever suggest that he should resign. Nelson never gave Moore an unfavorable performance evaluation, denied him a pay raise, or took any similar action against him.
Moore grew up in a small Mississippi town in the 1960s and 70s and was subjected to "the usual racists stuff that went on down South. . . ." (Pl.'s Dep. at 49.) He wrote a letter in October 1994 detailing a variety of allegations of discrimination in Marion, Indiana against himself and his family, involving the school, lenders, and a hotel.
Moore was enlisted in the Air Force from 1971 to 1985 where he received managers Equal Employment Opportunity ("EEO") training. This training included information about the EEO process, how to file an EEO charge and associated deadlines.
While in the Air Force Moore saw EEO posters containing information detailing EEO rights. He also received EEO training from the VA prior to his assignment in Marion, and saw EEO notices posted.
Moore first contacted an EEO counselor on December 10, 1997, to complain about alleged discrimination at the VA. However, he claims to have been subjected to discrimination by the VA since at least January 1991, when Donahoe became the VA
National Director of Canteen Services. Moore claims one such act of discrimination was a demotion in 1993.
At his deposition Moore testified he was demoted in March 1996. (Pl.'s Dep. at 106-07.) In his affidavit and his response to West's SMF, however, he states he was demoted in 1993. (Moore Aff. ¶ 12; Pl.'s Resp. SMF No. 55.) Even accepting the assertion that Moore was demoted in 1993 rather than 1996, the demotion still predates December 1997, and for the reasons discussed below, is time-barred.
Moore does not contend that he was retaliated against for filing an EEO complaint or contacting an EEO counselor.
Moore disagrees with this factual assertion and seems to be implying that his counseling on December 17 after his first meeting with the EEO counselor the proceeding day was retaliation. However, he admits that he did not complain to the EEO about retaliation. Moreover, he does not assert any facts that the person that counseled him, Nelson, was aware of the EEO complaint. Consequently, his objection to this factual assertion in SMF 56 is OVERRULED. Put simply, retaliation is not an issue in this case.
III. Discussion
Moore brings claims alleging race, sex, and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 1981 of the Civil Rights Act of 1866. West moves for summary judgment on all claims.
A. Pre-October 26, 1997 Conduct
West argues that most of Moore's claims are time-barred. Under 29 C.F.R. § 1614.105(a)(1), a federal employee who believes he has been discriminated must consult an agency EEO counselor within forty-five days of the alleged discriminatory action. 29 C.F.R. § 1614.105(a)(1). This time period acts like a statute of limitations, see Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996), and is a precondition to bringing an action under Title VII based on any such action. See, e.g., Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000). Moore first contacted an EEO counselor to complain about alleged discrimination at the VA on December 10, 1997. Many of the alleged discrimination actions about which he complains, however, occurred well before the forty-five day period, which began on October 26, 1997. He has not shown that he was unaware of the time limits for contacting an EEO counselor or otherwise prevented from making such contact within forty-five days of each allegedly discriminatory act. Indeed, the evidence shows that Moore had had EEO training and saw EEO notices posted at the VA.
The regulation states in pertinent part:
Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.29 C.F.R. § 1614.105(a)(1).
Moore argues that the continuing violation doctrine applies to the otherwise time-barred acts. This doctrine "allows a plaintiff to get relief for time-barred acts by linking them with acts within the limitations period." Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001). He relies on a decision of the Ninth Circuit for the proposition that the doctrine is applicable when one or more of the allegedly discriminatory acts falls within the limitations period. See Hashimoto v. Dalton, 118 F.3d 671, 678-79 (9th Cir. 1997). Under Seventh Circuit case law, however, the doctrine does not apply, "if the [alleged discriminatory] conduct that occurred before the limitations period was sufficient to notify the plaintiff that he had a substantial claim under Title VII. . . ." Id.; see EEOC v. N. Gibson Sch. Corp., 266 F.3d 607, 617 (7th Cir. 2001) ("the continuing violation doctrine does not apply . . . when the time-barred incident alone should have triggered the plaintiff's awareness that [his] rights had been violated.") (citation omitted).
Assuming that the Ninth Circuit applies the continuing violation doctrine more liberally than does the Seventh Circuit, this court must follow the Seventh Circuit.
Moore cannot show that the continuing violation doctrine applies. His own affidavit states that the VA in 1987 began transferring him to various positions, demoting him and denying him promotions. These acts were neither covert nor discrete, and the evidence establishes that the time-barred acts were sufficient to put Moore on notice that he may have a claim under Title VII. As stated, Moore had had EEO training both in the Air Force and at the VA, and had seen EEO notices posted. In addition, he had been subjected to "racist stuff" while growing up, and in 1994 had written a complaint about alleged discriminatory treatment of his family.
Moore argues that 29 C.F.R. § 1614.105 does not apply to his Section 1981 claims, his retaliation claim, or his constructive discharge claim. As stated earlier, a retaliation claim is not at issue in this case. The court does not understand West to argue that the constructive discharge claim is time-barred; in any event, it is not. It fails for a wholly different reason, discussed below. As for the Section 1981 claims, they are not actionable since Title VII constitutes the exclusive remedy for discrimination in federal employment. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976).
B. Discrimination Claim
Moore has no direct evidence of discrimination, so he must proceed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), framework. Under that framework, he must first demonstrate a prima facie case of discrimination. To do this, he must show, among other things, that he suffered a materially-adverse employment action, and that similarly situated employees outside of the protected class were treated more favorably. See, e.g., Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001).
West contends that Moore cannot show these things as to any alleged discrimination that occurred within the limitations period. West is right.
With respect to the Marion canteen chief position, the consolidation of the Marion canteen and Battle Creek canteen voided the need to fill this position, none of the applicants for the position were selected, and the position was not filled. Thus, Moore cannot show that his non-selection for this position was a materially-adverse action, or that others not in the protected class who applied for the position were treated more favorably.
Moore was reassigned to Indianapolis because he was over-graded for the newly created position in Marion following the consolidation of canteens. This reassignment does not constitute a materially-adverse action as Moore retained his grade and benefits, and his salary was increased. In addition, because the Indianapolis canteen was larger and more complex, it offered more opportunity for advancement. The transfer to Indianapolis cannot be considered a materially-adverse action because Moore signed the Mobility Agreement, agreeing to relocate at the VA's request. Moore's suggestion that this agreement had some time limit (see Pl.'s Dep. at 98-99) is not supported by any documentary or other admissible evidence. Furthermore, Moore has offered no evidence that any one else was similarly situated, that is, over-graded for the newly created position at Marion, nor has he offered evidence that such individuals were treated more favorably than he, that is, not reassigned.
Moore's alleged constructive discharge does not constitute an adverse action. The uncontradicted evidence establishes that Moore voluntarily resigned to take a better job at Daimler/Chrysler.
Moore argues that he was rejected for every promotion he sought after 1991 and that the "VA consistently showed a preference for Caucasian applicants who were either no more qualified than [he] or who were less qualified than [he], such as Tanya Gent, Carol Reece, Christian Ciampaglia, and David Roth." (Pl.'s Br. Resp. Def.'s Mot. Summ. J. at 14). This argument encounters several unsurmountable problems. First, with respect to Gent, Ciampaglia and Roth, the positions they filled were outside the forty-five day limitations period. Second, Moore has not offered admissible evidence to support a finding that any of these individuals, other than Ciampaglia, were less qualified or no more qualified than he. In addition, as to Reece, she filled the position about which Moore complains after he had resigned from the VA. Thus, Moore cannot show personal knowledge of the events surrounding her promotion.
Moore argues that Reece was allowed to turn down an assignment to Indianapolis, but he has offered no admissible evidence of this. He complains that Trunick's proposal to consolidate canteens was not unsolicited. He has not offered any admissible evidence to support this claim. In any event, it makes no difference whether the proposal was solicited or not. Moore seems to argue that he suffered an adverse action because the VA violated its own policy and refused to allow him to accept a reduction in grade and remain in Marion. Moore has not shown the existence of any policy which would have allowed this.
The evidence rather shows that VA policy required his reassignment.
The court finds that Moore has not come forward with sufficient evidence to establish that he suffered a materially-adverse employment action or that others similarly situated but outside the protected class were treated more favorably. Thus, he cannot demonstrate a prima facie case of discrimination. For this reason, West is entitled to summary judgment on the discrimination claims based on conduct occurring within the forty-five day period.
Even if Moore could demonstrate a prima facie case of discrimination, West has offered legitimate, nondiscriminatory reasons for its actions and Moore offers no admissible evidence to suggest they are pretexts for discrimination.
C. Constructive Discharge Claim
To establish a constructive discharge claim, a plaintiff must show first, that "that his working conditions were so intolerable that a reasonable person would have been compelled to resign," Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999) (quotation omitted), and second, that the conditions were "intolerable because of unlawful discrimination." Id. (quotation omitted). Moore can show neither. Instead, the uncontradicted, admissible evidence establishes that Moore resigned from the VA to take a better job at Daimler/Chrysler.
D. Retaliation Claim
There is no longer a retaliation claim in this case. Though Moore argues in his summary judgment response brief that he has stated a claim for retaliation, at his deposition he testified clearly and unequivocally that he was not contending the VA retaliated against him for contacting and EEO counselor or filing an EEO complaint. He cannot resurrect his retaliation claim in the face of this testimony.
IV. Conclusion
There are no genuine issues of material fact, and West is entitled to judgment in its favor on all claims as a matter of law. Therefore, West's motion for summary judgment will be GRANTED, and final judgment will be duly entered.