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Fagg v. Holder

United States District Court, Eighth Circuit

October 10, 2013

MARTHA A. FAGG, Plaintiff,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Stephanie Rose, then 36 years of age, was sworn in as the United States Attorney for the Northern District of Iowa on November 24, 2009. In February 2010, plaintiff Assistant United States Attorney Martha Fagg received a "successful" rating on her performance review for 2009, and the review was signed and dated by Rose. One month later, in March 2010, Fagg, then 53 years of age, wrote a memorandum to Rose expressing concerns about Rose's replacement of the office's Civil Chief (who was 60 years old) with 35-year-old Teresa Baumann and statements Rose had allegedly made about office retirements and a "succession plan." Fagg's memorandum stated that Rose's actions and statements "could be construed as discriminatory, " "could be a prima facie case of both direct and indirect age discrimination, " and "may be construed to be hostile to individuals in this office over the age of 40 and beyond." (Filing 56-4 at CM/ECF p. 43.)

The evidence indicates that soon after sending this memorandum to Rose, Fagg experienced a heightened level of scrutiny of her work, surveillance, an audit of her past case files, a letter of reprimand, proposed suspensions, leave restriction notices, a temporary and proposed permanent transfer to another office approximately 250 miles away from her home, and ultimately termination from her 13-year employment. During this time frame, Fagg experienced health problems necessitating hospitalization, anxiety and blood-pressure medication, therapy sessions, and a driving restriction.

Fagg filed this action in March 2012, alleging two causes of action. First, Fagg claims that the defendant violated the Age Discrimination in Employment Act ("ADEA")[1] by terminating her employment because of her age and retaliating against her for engaging in conduct protected by the ADEA. Second, Fagg claims that the defendant violated the Americans with Disabilities Act, as amended, [2] and the Rehabilitation Act of 1973[3] because the actions taken against her did not reasonably accommodate her known mental and physical impairments.

The defendant has filed a motion for summary judgment (Filing 49), and the parties have filed the following evidence in support of, and in opposition to, the motion:

DEFENDANT'S APPENDIX IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Filing 49-2 to 49-9)
Exhibit 1 Complaint
Exhibit 2 Answer
Exhibit 3 Forms SF50s for Martha Fagg
Exhibit 4 Germaine excerpts of the deposition transcript of Martha Fagg
Exhibit 5 Germaine excerpts of the deposition of transcript Teresa Baumann
Exhibit 6 Germaine excerpts of the deposition of transcript Stephanie Rose
Exhibit 7 Germaine excerpts of the Sworn EEO statement of Stephanie Rose
Exhibit 8 Intra-office e-mails and memoranda
Exhibit 9 Germaine excerpts of the deposition transcript of Larry Kudej
Exhibit 10 2010 Organization Chart for the Northern Iowa U.S. Attorneys Office
Exhibit 11 Germaine excerpts of answers to Fagg's interrogatories (redacted)
Exhibit 12 Germaine excerpts of the Foundations of Leadership Documents
Exhibit 13 Germaine excerpts of the deposition transcript of Michelle Schwebach
Exhibit 14 Germaine excerpts of the deposition transcript of Kevin Fletcher
Exhibit 15 Summary of pre-2004 attendance and conduct complaints against Martha Fagg
Exhibit 16 Germaine excerpts of the deposition transcript of Tim Duax
Exhibit 17 Fagg's responses to the First Set of Requests to Admit
Exhibit 18 Letter of Reprimand
Exhibit 19 Germaine excerpts of the Larry Kudej's 2010 Performance Work Plan
Exhibit 20 Larry Kudej's draft outline concerning civil succession and continuity
Exhibit 21 Travel reimbursement sheets for Martha Fagg
Exhibit 22 E-mail from Stephanie Rose stating office priorities and goals
Exhibit 23 EARS-related documents
Exhibit 24 March 9, 2010 "Concerns" memo
Exhibit 25 Sworn EEO statement of Grant Johnson
Exhibit 26 Sworn EEO statement of Jill Julian
Exhibit 27 Court order in Kluver v. Kluver
Exhibit 28 Letter from Office of Professional Responsibility
Exhibit 29 EEO formal complaints
Exhibit 30 60-day transfer letter
Exhibit 31 Germaine excerpts of St. Luke Medical Center and Michele Boykin medical records
Exhibit 32 Fax from Dr. Barto
Exhibit 33 DOJ Form 100A Request for Reasonable Accommodation
Exhibit 34 Germaine excerpts of Martha Fagg's USA-5 report
Exhibit 35 Notice of proposed 7-day suspension (without attachments)
Exhibit 36 Notice of Management Directed Assignment
Exhibit 37 Decision letter on 7-day suspension
Exhibit 38 DOJ Form 100A Request for Reasonable Accommodation
Exhibit 39 Denial of DOJ Form 100A Request for Reasonable Accommodation
Exhibit 40 Notice of proposed 14-day suspension (without attachments)
Exhibit 41 Fagg's responses to the First Set of Requests to Admit
Exhibit 42 Germaine excerpts of the deposition transcript of Shannon Olson
Exhibit 43 Decision letter on 14-Day Suspension
Exhibit 44 Notice of proposed removal (without attachments)
Exhibit 45 Removal decision Letter
Exhibit 46 Germaine excerpts of the deposition transcript of Grant Johnson
Exhibit 47 Agency affidavit

PLAINTIFF'S APPENDIX IN SUPPORT OF RESISTANCE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Filings 56-4 & 59-1)

Plaintiff's 2007 Review 1 Plaintiff's 2008 Review 7 Rose Email re: Baumann Hiring 14 Kudej email re: Changes to Management Team 20 Baumann emails re: Dog Trip 21 Plaintiff's 2009 Review 26 Fagg email re: Dog Trip 32 Murphy Notes re: Voter Information 35 Rose emails re: Response to Memo 37 Rose email re: Fagg Memo 39 Fagg email re: OPR Referral 42 Barto Work Release 48 May, 2010 OPR Letter 49 Baumann email re: No Praise in Office 50 McNamar memos re: June 10, 2010 Accident 51 Medical Release 56 Fagg Discharge Instructions 57 Rose email re: Kudej EARS Evaluation 58 Draft Serio Subpoena 59 Fagg emails re: Attorney Subpoena Procedure 62 Fagg email re: Leave 65 Rose email re: Barber Depositions 67 Fagg emails re: Serio Subpoena 68 Baumann emails re: Fagg leave 70 Fagg emails re: Serio Subpoena 71 Leave Restriction Notice 74 Fagg response to Leave Restriction 82 Rose email re: Fagg as Federal Threat 85 Baumann EEO Testimony 87 Johnson Deposition Excerpts 92 Julian Deposition Excerpts 98

Kudej Deposition Excerpts 103 Serio Deposition Excerpts 113 Worthington Deposition Excerpts 117 Rose Deposition Excerpts 125 Duax Deposition Excerpts 147 Wright Declaration 157 Bird Declaration 162 Kudej Recommendations 168 Fagg 1/11/10 Email 170 Judge O'Brien Deposition 171 Draft PIP 175

PLAINTIFF'S SEALED APPENDIX IN SUPPORT OF HER RESISTANCE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Filing 58)

[SEALED] 1 [SEALED] 2 [SEALED] 11 [SEALED] 25 [SEALED] 29 [SEALED] 31 [SEALED] 38 [SEALED] 39 [SEALED] 40 [SEALED] 46 [SEALED] 49 [SEALED] 51 [SEALED] 52 [SEALED] 56 [SEALED] 58 [SEALED] 62 [SEALED] 64 [SEALED] 66 [SEALED] 67 [SEALED] 68 [SEALED] 72

[SEALED] 76 [SEALED] 79 [SEALED] 85 [SEALED] 86

DEFENDANT'S SUPPLEMENTAL APPENDIX IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Filing 67-1)

Pages 1-3 Gov. Appendix 260-262
Page 4 January 2, 2010 form SF-50 for Fagg
Pages 5-10 Germaine excerpts of the deposition of transcript Stephanie Rose
Pages 11-12 Affidavit of Stephanie Rose
Pages 13-14 January 4, 2010 e-mail and leave slip
Pages 15-17 Germaine excerpts of the deposition transcript of Larry Kudej
Pages 18-21 Germaine excerpts of the deposition transcript of Martha Fagg
Pages 22-24 Germaine excerpts of the deposition transcript of Tim Duax
Pages 25-28 Germaine excerpts of the deposition transcript of Teresa Baumann
Pages 29-31 Germaine excerpts of the deposition transcript of Grant Johnson
Pages 32-38 E-mails regarding DOJ approval to subpoena Attorney Serio
Pages 39-45 Subpoena and corresponded for Attorney Serio
Pages 46-48 Germaine excerpts of the deposition transcript of attorney Robert Serio
Pages 49-63 Germaine attachments to 14-day suspension letter
Page 64 March 24, 2009 Kudej Kudo
Page 65 March 4, 2010 e-mail re: issues with Fagg's Kluver settlement proposal
Page 66-68 Germaine excerpts of the deposition transcript of Kimya Jones

Suffice it to say that there are genuine issues of material fact precluding the entry of summary judgment, most importantly with regard to Defendant's motives in taking adverse employment actions against Martha Fagg.[4] While the defendant has filed evidence indicating that Fagg may have violated office policy and procedure prior to being disciplined and ultimately terminated, there is a genuine issue of material fact regarding whether the defendant's stated reasons for firing Fagg were a pretext for retaliation and discrimination. Further, Fagg has produced sufficient evidence to put witness credibility at issue.[5] Johnson v. Securitas Sec. Services USA, Inc., ___ F.3d ___, 2013 WL 4504589 (8th Cir. 2013) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.'" (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986))).

Accordingly,

IT IS ORDERED that the defendant's motion for summary judgment (Filing 49) is denied.


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