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Kemp v. Peake

January 29, 2008

LARRY D. KEMP, AN INDIVIDUAL, PLAINTIFF,
v.
JAMES B. PEAKE, SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, A FEDERAL AGENCY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

I. Introduction

Larry D. Kemp, a white male born on June 28, 1948, worked for the Department of Veterans Affairs at the Agency's Jefferson Barracks National Cemetery ("JBNC") from January 10, 1993, until August 6, 2004, when he was discharged. On April 6, 2006, Kemp, pro se, filed suit in this District Court against James B. Peake, Secretary of the United States Department of Veterans Affairs. Kemp's complaint alleges age discrimination against Peake. The Court now rules on Peake's fully-briefed summary judgment motion, beginning with an overview of relevant facts and the governing legal standards.

II. Key Facts*fn2

Kemp began working for JBNC, in January 1993, initially working as a cemetery caretaker. Kemp was promoted three times, ultimately achieving the position of Cemetery Caretaker Supervisor in April, 1999.

After being appointed to this supervisory position, Kemp was the subject of several disciplinary actions. His initial discipline was in October, 2000, when he was reprimanded by Assistant Cemetery Director Jan Klahs for disrespectful conduct at the committal service of a deceased veteran. In March, 2002, Kemp was suspended without pay for twenty days for use of profane language and disrespectful conduct. In July, 2003, he was suspended without pay for thirty days for disrespectful conduct towards a supervisor.

In May, 2004, Kemp received a negative performance evaluation by Ralph Church, Director of JBNC. Kemp then filed a grievance with Church's supervisor, George M. Webb, Director of Memorial Service Network IV. Kemp complained that Church had, for years, retaliated and discriminated against him and had conspired to terminate his employment at JBNC.

In June, 2004, Church proposed to terminate Kemp from his employment based on charges that he was disrespectful and inappropriate to subordinate employees. The proposed removal letter allowed Kemp fourteen days to respond to Webb, who was the deciding official. Kemp timely submitted a written response, denying the charges and explaining how the incidents at issue occurred. Webb upheld Church's proposal and informed Kemp that his employment would be terminated, effective August 6, 2004. The decision letter advised Kemp of his right to file an appeal either to the Merit Systems Protection Board ("MSPB") or under the Agency's discrimination complaints procedure. Instead, Kemp requested retirement, which was immediately approved. In a Notification of Personnel Action, the nature of the action specified was "Retirement-Voluntary," and the effective date was August 6, 2004. The reason given for retirement was "to obtain retirement benefits."

On September 13, 2004, Kemp filed a formal complaint of discrimination, which was denied because the Agency found that he had failed to establish a prima facie case of discrimination. On June 24, 2005, Kemp appealed the Department's decision with the MSPB. The Administrative Judge sustained the charge of disrespectful and inappropriate conduct as to both of Church's specifications, and found that Kemp failed to meet his burden of proof by either direct or indirect evidence that his removal was based on age discrimination. On Petition for Review, filed September 22, 2005, the Board issued its Final Decision affirming the Administrative Judge's initial decision. Kemp then filed a petition with the Equal Employment Opportunity Commission, which concurred in the MSPB's final decision, finding no discrimination. The Commission informed Kemp of his right to file a civil action in federal district court, and the case currently at bar followed.

III. Legal Standard Governing Summary Judgment Motions

Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions, and affidavits leave no genuine issue of material fact, and 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, 322-23 (1986). In determining whether a genuine issue of material fact exists, the Court views the record in the light most favorable to -- and draws all reasonable inferences in favor of -- the non-moving party.

Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial.

Oest v. Illinois Department of Corrections, 240 F.3d 605, 610 (7th Cir. 2001). The non-movant must do more than demonstrate some factual disagreement between the parties. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996).The issue in dispute must be material. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001).

Stated another way, only disputes that could affect the outcome of the suit under governing law properly preclude the entry of summary judgment. Outlaw at 837 (citing McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (A factual dispute is "genuine" only when there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in his favor.).

IV. Analysis

A. Age Discrimination Claim

The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a), prohibits employers from discriminating against individuals on the basis of their age. Horwitz v. Bd. of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 610 (7th Cir. 2001). Specifically, the ADEA provides, "It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age[.]" 29 U.S.C. § 623(a)(1).

Kemp, who was 56 years old at the time that he was allegedly discharged from his employment, contends that he performed his job satisfactorily, that he was "discriminated against because of his age," and that "his employment was terminated in part due to age discrimination," all in violation of the ADEA. As noted above, the ADEA prohibits employers from discriminating against employees on the basis of their age. 29 U.S.C. § 623(a).*fn3

To succeed on a discrimination claim under the ADEA, a plaintiff must show that his termination or other adverse employment action would not have occurred "but for" his employer's motive to discriminate on the basis of age. Horwitz, 260 F.3d at 610 (citing Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1402 (7th Cir. 1996)).Age discrimination can be proved through either the direct method or the ...


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