govinfo:USCOURTS-moed-4_23-cv-01415-0

UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF MISSOURI 
 EASTERN DIVISION 
 
ROSALIND M. CROSS, ) 
) 
Plaintiff, ) 
) 
v. )      Case No. 4:23-CV-1415-ZMB 
  ) 
EDWARD FORST,1 Archivist, ) 
National Records Administration, ) 
) 
Defendant. ) 
 
MEMORANDUM AND ORDER 
Before the Court is Defendant Edward Forst’s Motion for Summary Judgment. Doc. 44. 
Even after considering the record in the light most favorable to Plaintiff Rosalind M. Cross, the 
Court concludes that Forst is entitled to summary judgment on all claims and grants his motion.  
BACKGROUND 
I. Factual Background2 
Cross worked at the National Archives and Records Administration (NARA) for 35 years, 
the last 30 of which she held the position of Management Consultant. Doc. 45 (“SUMF”) ¶ 1. On 
February 28, 2019, Cross abruptly resigned via email, effective the next day. Id. ¶ 4. Not long 
before her retirement, she  had contacted the EEO counselor ’s office and  raised discrimination 
complaints against several NARA managers— Donald Greenlee, her immediate supervisor, along with 
his supervisors, Jason Hardy (her former supervisor) and Scott Levins. Id. ¶¶ 5–6, 12–14, 20, 23, 25. 
 
1 Edward Forst became acting Archivist of the United States on April 3, 2026. Pursuant to Federal Rule of Civil 
Procedure 25(d), Forst is substituted for his predecessor, Colleen Shogan. 
 
2 The facts in this section are undisputed, largely due to Cross’s failure to object to the bulk of the SUMF. See Docs. 45, 
51; E.D. MO. L.R. 4.01(E) (“All matters set forth in the moving party’s Statement of Uncontroverted Material Facts 
shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.”).  
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Specifically, Cross claims that these supervisors discriminated against her on the basis of age and 
retaliated against her through conduct fall into two broad categories: (1) making her work environment 
more difficult,3 and (2) excessive criticism.4 Id. ¶ 30. After receiving a rating of “unacceptable” 
on several reviews for work completed in 2017 and 2018, Docs. 46-3, 46-5, 46-6, Cross voluntarily 
resigned before any other actions were taken against her, SUMF ¶ 4; Doc. 54 ¶ 115. In the past, she 
has filed numerous EEOC complaints and several lawsuits in this Court. SUMF ¶¶ 25–32, 34–35.  
II. Procedural Background 
In January 2019, Cross filed her latest EEOC complaint  alleging age discrimination and 
retaliation. Doc. 46- 1 at 2. After receiving a  right-to-sue letter, id. at 12–13, Cross brought this 
action in November 2023. Doc. 1. Then-Defendant Shogan filed an answer to the Complaint, and 
the Court entered a case-management order. Docs. 9, 10. Following discovery and an unsuccessful 
mediation, Doc. 35, Forst moved for summary judgment, Doc. 44. Cross filed a cross-motion for 
summary judgment, Doc. 47, which the Court struck as untimely because Cross requested neither 
an extension nor leave to file out of time, Doc. 48. The motion for summary judgment became ripe 
in February 2026. Doc. 52, 53.  
Forst argues that Cross fails to make a prima facie case of age discrimination or retaliation, 
even drawing all inferences in her favor. Doc. 46 at 4–8, 11–14. Moreover, even if she had, Cross 
cannot show that NARA lacked a legitimate, nondiscriminatory justification for its actions. Id. at 
9–10. Cross’s rebuttal is brief, alleging that there are sufficient material factual disputes requiring 
denial of Forst’s motion for summary judgment. Doc. 52 at 1.  
 
3 This category includes Cross’s claims that: she was not allowed to take classes pertaining to her job, her supervisors  
excluded her from work-related meetings and decisions, her office space physically isolated her from teammates, she 
worked with a lack of guidance, her co-workers speculat ed about her retirement, her supervisors and co- workers 
taunted her, and she received a lack of responses to her work-related questions. Doc. 45 ¶ 30.  
 
4 This category includes Cross’s claims that: supervisors gave her more detailed “critical elements” than her co-workers, 
she completed work withheld from publication, and her work was increasingly scrutinized and criticized. Doc. 45 ¶ 30.   
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LEGAL STANDARD 
Summary judgment must be granted where “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). “When deciding a motion for summary judgment, a court is required to view disputed 
facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in its 
favor.” Sherr v. HealthEast Care Sys., 999 F.3d 589, 597 (8th Cir. 2021) (citation omitted). Courts 
may not “weigh the evidence, make credibility determinations, or attempt to discern the truth of any 
factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation omitted). 
Instead, “the focus is on whether there are genuine issues of material fact for trial. ” Sherr, 999 
F.3d at 597 (citation omitted). “A genuine issue for trial exists when a reasonable jury could return 
a verdict for the nonmoving party.” Huber v. Westar Foods, Inc., 139 F.4th 615, 620 (8th Cir. 2025) 
(quotation omitted). “Substantive law in the relevant area dictates which facts are material, as only 
disputes over facts that might affect the outcome of the suit under the governing law will properly 
preclude the entry of summary judgment.” Sherr, 999 F.3d at 597 (quotation and alteration omitted). 
While the initial burden to prove summary judgment rests with the movant, once the motion is properly 
supported, “the plaintiff has an affirmative burden to designate specific facts creating a triable 
controversy.” Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 714 (8th Cir. 2004).  
DISCUSSION 
While Cross identifies several minor factual disputes with Forst’s SUMF , none are 
material, and the remaining undisputed facts make it clear that  Cross has no viable  age-
discrimination claim or retaliation claim. Cross was not meeting NARA’s legitimate performance 
expectations, and there was no adverse employment action taken against Cross before she 
voluntarily retired in 2019. The Court will first tend to several housekeeping matters before  
addressing Cross’s substantive claims. 
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I. Initial Housekeeping 
Firstly, as noted above, Cross ha s admitted the majority of the facts in Forst’s SUMF by 
not specifically oppos ing them. See E.D. MO. L.R. 4.01(E). And even many of the “contested” 
facts stem from Cross’s misleading excerpts from deposition transcripts. See, e.g.,  Doc. 54 ¶ 63. 
Indeed, some of the omitted portions of the transcript would warrant the consideration of sanctions 
if this case were to continue. See also McGehee v. Synchrony Bank, No. 4:26-CV-345-MTS, 2026 
WL 775887, at *1 n.* (E.D. Mo. Mar.  19, 2026) (“Though Plaintiff is pro se , she still may be 
sanctioned as Rule 11 provides.”). While Forst appears to have contextualized or rebutted the vast 
majority of Cross ’s opposing facts, the Court will consider Cross to have sufficient ly opposed 
portions of paragraphs 30, 33, 43, 47, 63, 111, and 114–17 in the  SUMF because she is  a self-
represented litigant. However, as explained below, none of the disputes are  over material facts 
because none dispute her deficient performance or the lack of an adverse employment action. 
Next, as part of her summary-judgment opposition, Cross once again attempted to file her 
untimely motion for summary judgment  without leave. The Court previously rejected this filing 
because Cross submitted it after the dispositive-motion deadline without even attempting to show 
good cause. Doc. 48; see Cheeks v. Belmar, 162 F.4th 899, 907 (8th Cir. 2025) (emphasizing that 
the application of the good-cause standard “not optional”). Had Cross requested an extension or 
justified her untimeliness, the Court may well have allowed the filing. But the Court will not permit 
Cross to circumvent this requirement by, once again, filing the untimely motion without leave.  
Lastly, despite primarily alleging discrimination based on age, Cross’s Complaint asserts 
claims exclusively under Title VII, Doc. 1 ¶¶  79–145, which does not cover age discrimination,  
see 42 U.S.C. § 2000e-2(a)(1) (forbidding discrimination in hiring and firing based on “race, color, 
religion, sex, or national origin”). At times, Cross has referenced race and sex, but she exhausted 
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her claims of discrimination only on the basis of age. See Doc. 46-1 at 2, 10. Because “a document 
filed pro se is to be liberally construed,” see Rivera v. Bank of America, N.A., 993 F.3d 1046, 1050 
(8th Cir. 2021), the Court will treat Cross’s Complaint as if it asserted ADEA claims.5 
II. Age Discrimination 
With that housekeeping complete, the Court turns to  Cross’s age-discrimination claims. 
Doc. 1 ¶¶ 82, 88, 108, 117, 143. These claims fail because Cross does not establish any adverse 
employment action or that she met her employers ’ legitimate performance standards before she 
voluntarily retired in 2019.  
The ADEA provides that “a ll personnel actions affecting employees or applicants for 
employment who are at least 40 years of age . . . shall be made free from any discrimination based 
on age .” 29 U.S.C. § 633a(a)(1). Cross “must first make out a prima facie claim of age 
discrimination by establishing that ‘(1) she was at least forty years old, (2) she was meeting her 
employer’s legitimate performance expectations, (3) she suffered an adverse employment action, 
and (4) similarly[] situated employees outside the class were treated more favorably.’” Clayton v. 
U.S. Postal Serv., No. 4:23- CV-1186-SRC, 2025 WL 917197, at *9 (E.D. Mo. Mar. 26, 2025) 
(quoting Thomas v. Corwin, 483 F.3d 516, 528 (8th Cir. 2007)). The burden then shifts to Forst to 
show that there was a “legitimate, nondiscriminatory reason for [his] actions.” Id. If Forst succeeds 
at step two, then the burden once again shifts back to Cross “to show a genuine issue of material 
fact that [Forst’s] stated reason for the action was pretextual.” Id.  
Here, Cross’s claims fail at step one . She fails to establish either that she met her 
employer’s legitimate performance expectations (the second prong) or that she suffered an adverse 
employment action (the third prong). As such, Cross has failed to make a prima facie case.  
 
5 To the extent Cross did intend to raise claims of race or sex discrimination despite her failure to exhaust, the Court’s 
analysis below is equally applicable because “claims of discrimination brought under Title VII and the ADEA are 
subject to the same an alysis.” Robinson v. Urb. Strategies, Inc. , No. 4:25-CV-863 CDP, 2026 WL 369352, at *2 n.2 
(E.D. Mo. Feb. 10, 2026) (citing Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995)). 
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a. Employer’s Legitimate Performance Expectations 
Caselaw on the performance prong is fairly sparse in the Eighth Circuit. But courts 
generally have held that employees fall short of legitimate performance expectations where they  
fail to follow instructions or otherwise perform at  required standards. See e.g. , Mani v. Becerra, 
2025 WL 43172, at *6  (D. Md. Jan. 7, 2025)  (finding failure to meet employer’s expectations 
where the employee did not  follow instructions or  perform to agency standards); Gibson v. 
Interstate Blood Bank ADP-UCS Bio-Blood Component, 2014 WL 3082708, at *9–10 (N.D. Ind. 
July 7, 2014) (same where employee did not perform required duties). Here,  undisputed facts in 
the record make clear that Cross fell short of NARA’s legitimate performance expectations. 
Cross received three evaluations from two super visors in 2018, each of which found that 
she was failing to meet NARA’s expectations. See Docs 46-3, 46-5, 46-6. The first—a mid -year 
evaluation from Hardy —indicated that Cross was “below fully successful” and noted several 
performance shortcomings. See Doc. 46 at 6; Doc. 46-3. Later that year, after Greenlee took over 
her supervision, Cross received an interim evaluation  (standard practice when an employee is 
reassigned). Doc. 46- 5 at 1 ; Doc. 45 ¶  52. That evaluation also found Cross’s performance 
“unacceptable” for the same reasons as her mid -year review. Doc. 46- 5 at 1. Later in 2018, she 
received another “unacceptable” evaluation, with the evaluation noting discrepancies in data Cross 
was tasked with monitoring, her failure to review or validate certain contract information, and her 
lateness in handling certain tasks, Doc. 46- 6 at 2 –4. Cross offers no evidence rebutting these 
assessments or showing that she was meeting her employer’s legitimate performance expectations. 
While she seemingly argues that performing these assessments was an attempt to drive her out, 
see Doc. 51 at 5–6, that argument fails for the reasons set out below. Accordingly, Cross’s age-
discrimination claim fails on this basis alone.  
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b. Adverse Employment Action and Constructive Discharge 
Even if Cross had  shown that she was meeting legitimate performance expectations, she 
separately fails to establish any adverse employment action. While Cross never explicitly makes 
this argument at summary judgment, she gestures to it in multiple counts of her complaint, Doc. 1 
¶¶ 21, 84, 90, 110, 119, 145. The Court liberally construes her Complaint to have alleged that she 
suffered constructive discharge through her to voluntarily retirement from NARA. See Doc. 1 
(“The standards set for Ms. Cross were essentially to force her to resign/retire  . . . .”). But even 
drawing all reasonable inferences in her favor, Cross  has not identified anything in the record to 
show that her decision to voluntarily retire amounted to a constructive discharge.  
“An adverse employment action is a tangible change in working conditions that produces 
a material employment disadvantage.” Sellers v. Deere & Co., 791 F.3d 938, 942 (8th Cir. 2015) 
(quotation omitted) . And “ not everything that makes an employee unhappy is an actionable 
adverse action.” Ellis v. Donahoe , No. 4:13 -CV-238-CDP, 2014 WL 7335161, at *5 (E.D. Mo. 
Dec. 19, 2014) (citation omitted). Indeed, “minor changes in duties or working conditions, even 
unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to 
the level of an adverse employment action.” Id. (citation omitted). And the record is bare of any 
indication that she experienced any “material employment disadvantage.” Id.  
Cross alleges that she was forced into early retirement by fear of losing her job. Doc. 1 
¶ 78. Generally, voluntary retirement is not considered an adverse employment action. Rickard v. 
Swedish Match N. Am., 773 F.3d 181, 186 (8th Cir. 2014) . However, voluntary retirement can 
amount to an adverse employment action if it is the result of a “constructive discharge.” Id. Proving 
a constructive discharge requires the employee  to demonstrate that “(1) a reasonable person in 
[her] situation would find [her] working conditions intolerable, and (2) the employer intended to 
force [her] to quit.” Id. Cross has failed to satisfy either prong.  
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There is no thing to suggest  that a reasonable person in Cross’s shoes would find their 
working conditions intolerable. Cross raises many issues in an effort to prove the conditions were 
unbearable, including: (1) her co-workers asking about her retirement, (2) lack of guidance, (3) 
lack of responses to work-related questions, (4) exclusion from work-related meetings, (5) being 
assigned to a  purportedly inexperienced supervisor, (6) having completed work withheld from 
publication, (7) taunting from co-workers, and (8) physical  isolation from other team members . 
But these allegations are either directly undermined by the undisputed facts in the SUMF or 
represent examples of the “petty slight[s] or minor annoyance[s] that do[] not rise to the level of 
an adverse employment action.” See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 987 (8th Cir. 
2011) (citation omitted); see also SUMF ¶¶ 61–91, 99–113.  
Her remaining allegations, while  perhaps more significant, still do not prove that her 
working conditions were intolerable. Cross claims that she: ( 9) was not allowed to take classes 
pertaining to her job, (10) was given more critical elements than other team members, (11) retired 
in fear of potential job loss, and (12) that her work was scrutinized and criticized more than others. 
SUMF ¶ 33, 46-1 at 4. The final three allegations stem from the fact that she was failing to meet 
her superiors’ expectations, and the increased detail in her evaluations  reflected her superiors’ 
attempts to provide explicit guidance to try and make her a more productive member of their team. 
SUMF ¶¶  92–98. But “[a]n unfavorable evaluation is actionable only where the employer 
subsequently uses the evaluation as a basis to detrimentally alter the terms and conditions of the 
recipient’s employment.” Warr v. Hagel , 14 F. Supp. 3d 1244, 1252 (E.D. Mo. 2014)  (citation 
omitted). And there is no evidence indicating that Cross’s employment was negatively affected by 
these evaluations. While she asserts that receiving a rating of “Unacceptable” placed her at risk of 
potential dismissal at some point down the road, Doc. 51 at 3–7, she does not rebut  the SUMF’s 
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assertion that none of her supervisors believed she was at risk of termination, SUMF ¶¶ 115, 116, 
118. And even assuming that being denied the opportunity to take classes was an adverse 
employment action, but see Box v. Principi, 442 F.3d 692, 697 (8th Cir. 2006), the record clearly 
shows a non-pretextual rationale for why she was not accepted for the  classes (i.e., they were not 
appropriate for her skill level or experience). See Doc. 54 ¶ 43. 
Cross further argues that NARA’s failure to follow its own guidance proves that he r 
supervisors were attempting to force her into retirement. Doc 51 at 5 –7. True, a plaintiff can 
demonstrate pretext for an adverse employment decision by showing “that an employer  failed to 
follow its own policies .” Findlator v. Allina Health Clinics , 960 F.3d 512, 515 (8th Cir. 2020)  
(citation omitted). And Forst does not dispute  that the supervisors failed to follow the letter of 
NARA’s policy, which requir es a “memo of expectations” for any underperforming employee 
which lays out ways for them to improve. Doc. 53 at 11. But even assuming that this failure cleared 
the first two steps of the analysis, Cross still fails to demonstrate a dispute of material fact that the 
failure to follow this policy was pretextual age discrimination (and the same is true for her claims 
of a hostile work environment and retaliation). Indeed, the detailed feedback Cross received from 
her superiors was roughly equivalent to what was required by a “memorandum of expectations.” 
Compare Doc. 51 at 7 (excerpts of NARA interim guidance setting out requirements for a 
memorandum of expectations) , with Docs. 46-3 (Cross’s 2018 mid-year progress review), 46- 5 
(Cross’s interim performance review), 46-7 (Cross’s 2018 annual review). Accordingly, Cross has 
failed to demonstrate a dispute of material fact sufficient to defeat summary judgment on her age-
discrimination claims.
6  
 
6 Further, even if Cross had met her burden of establishing  a prima-facie case, the Court notes that Forst has 
demonstrated legitimate, non-discriminatory reasons for the supervisors’ actions, and Cross has done nothing to show 
that the actions were pretextual.  
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III. Hostile Work Environment Claim 
Cross also claims that she suffered “harassment,” which appears to be a claim of  “hostile 
work environment (non- sexual).” See Doc. 1  ¶ 82, 88, 108, 117, 143; see also Doc. 46 at 4. To 
demonstrate a hostile work environment, Cross must show that she was “a member of the class of 
people protected by the statute, that [s he] was subject to unwelcome harassment, that the 
harassment resulted from [her]  membership in the protected class, and that the harassment was 
severe enough to affect the terms, conditions, or privileges of [her]  employment.” See Moses v. 
Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 921–22 (8th Cir. 2018) (quotation omitted). 
While Forst concedes that Cross is a member of a protected class, he is correct that Cross fails to 
demonstrate any of the remaining factors. Doc. 46 at 11. Aside from some alleged comments from 
her co-workers asking about her retirement, there are no facts in the record that substantively link 
any purported harassment on Cross’s part to her age. As for the retirement comments, Cross offers 
no support in the record other than her bare allegations, nor does she dispute that  none of her  
superiors recall hearing about any such comments . SUMF ¶¶ 107–112. More importantly, “[n]ot 
all unpleasant conduct creates a hostile work environment. Rather, the plaintiff must show  
that . . . the conduct was severe and pervasive.” Parker v. United States Dep’t of Agric., 129 F.4th 
1104, 1113 (8th Cir. 2025) (quotation omitted). And absent “anything more than bare allegations, 
[Cross] cannot establish the required nexus to prove her harassment claims.” Id.  (quotation 
omitted). Accordingly, the Court will grant summary judgment on this claim.  
IV. Retaliation Claim 
 
Cross’s last claim is for retaliation. Doc. 1 ¶¶ 81, 87, 108, 113, 143. While the Complaint 
is unclear as to whether Cross is bringing this claim under Title VII or the ADEA, the two statutes 
are substantively identical, and the analysis is the same. See  42 U.S.C. § 2000e- 3; 29 U.S.C. 
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§ 623(d); Eastman v. Donahoe, No. 4:10-CV-906-FRB, 2011 WL 5374729, at *6 (E.D. Mo. Nov. 
8, 2011) (applying the same standard to ADEA and Title VII retaliation claims). To prove a claim 
for retaliation, Cross must show that “ (1) she engaged in statutorily protected activity; (2) she 
suffered an adverse employment action; and (3) there was a causal connection between the 
protected activity and the adverse action. ” Hester v. Dep’t of Treasury, 137 F.4th 684, 689 (8th 
Cir. 2025) (citation omitted). Cross’s previous discrimination complaints are a protected activity. 
See SUMF ¶ 3; Parker, 129 F.4th at 1114.  But for the reasons stated above, there is no evidence 
that Cross suffered an “adverse employment action,” let alone one that was causally related to her 
prior EEOC complaints, warranting summary judgment on her final claim.  
CONCLUSION 
 Accordingly, the Court GRANTS  Defendant Edward Forst’s [44] Motion for Summary 
Judgment. A separate Judgment will accompany this order.  
 So ordered this 19th day of May 2026. 
 
 
   
 ZACHARY M. BLUESTONE 
 UNITED STATES DISTRICT JUDGE 
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