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Santiago v. Wilkie

United States District Court, E.D. Oklahoma

May 13, 2019

WIDALYS SANTIAGO, M.D., Plaintiff,
v.
ROBERT WILKIE, Secretary, Department of Veterans Affairs, Defendants,

          ORDER AND OPINION [1]

          Ronald A. White, United States District Judge.

         Plaintiff filed this action in the United States District Court for the Northern District of Florida on June 2, 2017 [Docket No. 1]. The action was transferred to this court on December 12, 2017 [Docket No. 14]. Plaintiff filed an Amended Complaint on September 12, 2018 [Docket No. 35].

         Plaintiff claims violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. She alleges that in 2013, she applied for two positions as a primary care physician at the VA Medical Center in Muskogee, Oklahoma, and was denied both positions on the basis of her national origin and her gender [Docket Nos. 1 and 35].[2] Plaintiff received a Notice of Right to Sue letter from the Equal Employment Opportunity Commission (hereinafter “EEOC”) on March 6 2017.

         Now before the court is Defendant's motion for summary judgment [Docket No. 68].[3]For the reasons set forth below, the motion is hereby granted.

         I. Standard of Review

         The court will grant 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.” Fed.R.Civ.P. 56(a). The court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In applying the summary judgment standard, the court views the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this stage, however, Plaintiff may not rely on mere allegations, but must have set forth, by affidavit or other evidence, specific facts in support of the Complaint. Id.

         “Conclusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003) (citation omitted).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         While at the summary judgment stage evidence need not be submitted in a form that would be admissible at trial, the substance of the evidence must be admissible. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). “[A]ffidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Similarly, “[t]estimony which is grounded on speculation does not suffice to create a genuine issue of material fact to withstand summary judgment.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 876 (10th Cir. 2004).

         Additionally, unauthenticated documents “cannot support a summary judgment motion, even if the documents in question are highly probative of a central and essential issue in the case.” Bell v. City of Topeka, Kan., 496 F.Supp.2d 1182, 1185 (D. Kan. 2007) (citation omitted). “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo, at 1199 (citation omitted).

         II. Timeliness

         Gender Discrimination Claim

         Defendant argues that it is entitled to summary judgment as to any claim for gender discrimination. Plaintiff mentioned gender discrimination in her Amended Complaint filed on September 12, 2018. Plaintiff notes that this was the first notice of any such claim, and that it was not raised or alleged at the administrative level as required by 29 C.F.R. 1614.106(c). Defendant further notes that Plaintiff has not submitted any evidentiary support for such a claim. The court agrees. Furthermore, Plaintiff does not respond to these arguments or mention a gender discrimination claim in her response or sur-reply. Summary judgment is granted as to any gender discrimination claim.

         National Origin ...


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