The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's "Motion for Summary Judgment" filed on May 30, 2012. See Docket No. 16. The Plaintiff, Shelly Puklich, filed a response on August 1, 2012. See Docket No. 23. The Defendant filed a reply brief on August 2, 2012. See Docket No. 24. For the reasons set forth below, the Court grants the Defendant's motion.
Shelly Puklich is employed as a mail processing clerk by the United States Postal Service ("USPS") in Bismarck, North Dakota. Puklich filed a complaint alleging gender discrimination, sexual harassment, and retaliation for reporting this activity while she worked for USPS. See Docket No. 1. The Defendant filed a motion for summary judgment seeking to dismiss all of the claims asserted by Puklich. See Docket No. 16. Puklich filed a brief response in opposition to the motion on August 1, 2012. See Docket No. 23.
A. GENDER DISCRIMINATION AND SEXUAL HARASSMENT
Puklich has presented claims for gender discrimination and sexual harassment in her complaint. However, Puklich failed to present any factual or legal arguments or evidence in opposition to the Defendant's motion concerning those particular claims. Rather, Puklich appears to have abandoned her claims of gender discrimination and sexual harassment, stating that this case "is about retaliation." See Docket No. 23, p. 1. When a party fails to properly address assertions made by the opposition in a motion for summary judgment, the Court has the discretion to treat the assertions as undisputed facts and grant summary judgment if the movant is entitled to it. Fed.R.Civ.P. 56(e). The record reveals the Defendant presented competent evidence in support of the motion for summary judgment. Left unopposed, the evidence demonstrates there are no genuine issues of material fact concerning the claims of gender discrimination and sexual harassment. Accordingly, the Court grants the Defendant's motion for summary judgment as to Puklich's claims of gender discrimination and sexual harassment.
Puklich contends that the 2009 elimination of three "bid job" positions and a subsequent reposting of the three new jobs-resulting in a change in scheduled days off for the three postal clerks-was done in retaliation for Puklich's prior EEO activity in 2004 and 2007. Puklich alleges the Defendant unlawfully retaliated against her after she reported workplace discrimination and sexual harassment to the Equal Employment Office. "Title VII makes it unlawful for the employer to 'discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge' of discrimination against the employer." Tyler v. Univ. of Ark. Bd. of Trs, 628 F.3d 980, 985 (8th Cir. 2011) (quoting 42 U.S.C. § 2000e-3(a)). It is well-established that Title VII's anti-retaliation provision prevents employers from retaliating against employees who have acted to vindicate their statutorily protected rights by reporting harassment or discrimination in the workplace. Bannum v. Mo. Dep't of Corr., 518 F.3d 542, 547 (8th Cir. 2008).
Puklich's retaliation claim is based on circumstantial evidence and, as such, the McDonnell Douglas three-part burden-shifting analysis is used to determine whether she presents a viable claim for retaliation. Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8th Cir. 2004). Under McDonnell Douglas, Puklich must first establish a prima facie case for retaliation which includes showing that:
(1) she engaged in protected conduct;
(2) she was subjected to a materially adverse action that would deter a reasonable employee from making a charge of employment discrimination; and
(3) there is a causal nexus between the protected conduct and the adverse action.
Tyler, 628 F.3d at 985 (original citations omitted). If Puklich establishes a prima facie case, the burden shifts to the Defendant to rebut the claims by advancing a legitimate, non-retaliatory reason for the adverse employment action. Id. at 987-89. If the Defendant does so, Puklich must then show the proffered reason is pretext for intentional retaliation in order to avoid summary judgment.
As previously noted, Puklich essentially contends the Defendant retaliated against her by "reposting" her position on March 19, 2009. The record reveals the Defendant eliminated three "bid job" positions, including Puklich's position, and reposted three new "bid job" positions, one of which Puklich secured. The net result of the reposting was that Puklich's work schedule was modified. The record reveals the Defendant "reposts" positions, rather than simply ...