Hiskey v. Gtrc Services, Inc.

MOTION for summary judgment

W.D. Mo.January 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI DOREEN HISKEY, ) ) Plaintiff, ) ) vs. ) Case No. 4:16-cv-00279-BP ) GTRC SERVICES, INC., ) ) Defendant. ) DEFENDANT GTRC SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT For the reasons set forth herein and in the accompanying Suggestions in Support, Defendant GTRC Services, Inc. (“GTRC Services”) hereby moves for summary judgment pursuant to Local Rule 56.1 and Fed. R. Civ. P. 56. In this action, Plaintiff Doreen Hiskey (“Plaintiff”) asserts claims against GTRC Services for hostile work environment and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. GTRC Services is entitled to summary judgment on both of Plaintiff’s claims. Plaintiff was not, as she contends, retaliated against following her alleged complaints that her supervisor, Sutton Miller, was harassing her on the basis of her age. In truth, Plaintiff was terminated due to her failure to adhere to GTRC Services’ no-fault attendance policy. Summary judgment is proper because the undisputed evidence shows that Plaintiff cannot prove the essential elements of her claims. First, there is no evidence to support a finding that the alleged harassing comments and/or conduct by Miller created an atmosphere so “abusive” and “hostile” to justify her claim for hostile work environment, and Plaintiff has failed to present any evidence to demonstrate that Miller’s actions were motivated by Plaintiff’s age. Second, Case 4:16-cv-00279-BP Document 69 Filed 01/26/17 Page 1 of 3 2 even if the evidence did support a finding of hostile work environment, Plaintiff cannot show that GTRC Services knew of the alleged harassment, which proves fatal to her claim. With respect to Plaintiff’s claim for retaliation in violation of the ADEA, there is no evidence that Plaintiff engaged in any “protected activity” as required to prove a prima facie case of retaliation. Moreover, even if Plaintiff were able to show that she engaged in protected activity, she cannot refute GTRC Services’ legitimate, non-discriminatory basis for her termination: her clear violation of the no-fault attendance policy. Finally, during the course of discovery in this action, GTRC Services discovered evidence showing that Plaintiff engaged in misconduct during her employment that, had it been uncovered at the time of the misconduct, would have further justified her termination. Consequently, even if Plaintiff can somehow establish her harassment and retaliation claims against the weight of overwhelming evidence to the contrary, under the doctrine of after-acquired evidence her damages are limited due to this indisputable evidence of misconduct. For these reasons and the reasons set forth more fully in its accompanying Suggestions in Support, GTRC Services respectfully requests that this Court enter an order granting judgment in its favor with respect to Plaintiff’s claims for hostile work environment and retaliation in violation of the ADEA. Case 4:16-cv-00279-BP Document 69 Filed 01/26/17 Page 2 of 3 3 Respectfully submitted, BRYAN CAVE LLP By: /s/ Catesby A. Major James D. Lawrence Mo. #53411 Catesby A. Major Mo. #56944 Stephanie C. Bradshaw Mo. #67564 1200 Main Street, Suite 3800 Kansas City, MO 64105 (816) 374-3200 (telephone) (816) 374-3300 (facsimile) jdlawrence@bryancave.com catesby.major@bryancave.com stephanie.bradshaw@bryancave.com ATTORNEYS FOR DEFENDANT GTRC SERVICES, INC. CERTIFICATE OF SERVICE I certify that on this 26th day of January, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to all counsel of record. /s/ Catesby A. Major Attorney for Defendant Case 4:16-cv-00279-BP Document 69 Filed 01/26/17 Page 3 of 3