United States District Court, E.D. Oklahoma
ORDER AND OPINION 
A. White, United States District Judge.
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].
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]. Plaintiff
received a Notice of Right to Sue letter from the Equal
Employment Opportunity Commission (hereinafter
“EEOC”) on March 6 2017.
before the court is Defendant's motion for summary
judgment [Docket No. 68].For the reasons set forth below, the
motion is hereby granted.
Standard of Review
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.
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).
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).
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).
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