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Atkins v. Nicholson

March 9, 2009

FREDDIE R. ATKINS, PLAINTIFF,
v.
R. JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Chief Judge James F. Holderman

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Freddie Atkins brought this action under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and the Equal Pay Act, 29 U.S.C. §§ 206 et seq., against R. James Nicholson, the Secretary of Veterans Affairs (the "VA"). In his complaint, Atkins alleged that he was treated differently than a female employee in the same unit who performed the same tasks he performed and that he subsequently was harassed, demeaned, and subjected to a hostile environment in retaliation for complaining about the differential treatment. For the reasons set forth below, the court grants the defendant's motion for summary judgment [25].

Background

The events at issue in this lawsuit took place while Atkins, a federal employee, was working as a housekeeping aid at the Hines VA Medical Center in Hines, Illinois. The facts from the parties' Local Rule 56.1 statements are as follows:

Atkins began working as a housekeeping aid in the 9 East area of Building 200 at the Hines VA Medical Center in approximately 1999 or 2000. In August 2002, Atkins was transferred to 9 West, where he worked until March 2006. According to Atkins, 9 West was a "step-down unit" where he was required to clean patient monitors that were used to measure vital signs, a duty that Atkins says warranted a WG-3 salary. Atkins' pay grade at all times relevant to this lawsuit was WG-2.

Atkins made three separate complaints to three different VA departments concerning events that occurred while he was assigned to 9 West. First, on March 16, 2006, Atkins contacted a VA Equal Employment Opportunity (EEO) counselor to complain about "discrimination" arising out of a reassignment announced by Sandre Sparks, one of Atkins' supervisors, in early March 2006. Specifically, on or about March 2, 2006, Sparks informed Atkins that his work unit would be moving from 9 West to 10 West due to an upcoming renovation of the ninth floor. Sparks also informed Atkins that he would not be moving to 10 West with his work unit but instead would be reassigned to another area. On or about March 27, 2006, Atkins' work unit, including Atkins, relocated from 9 West to 10 West. Approximately one month later, Atkins was notified by memorandum that he was being reassigned from 10 West to 10 East. Second, on April 6, 2006, Atkins sent an email to the chief of the VA's Environmental Management Section alleging that Sparks harassed Atkins about a personal locker that Atkins kept in the 1074 storage closet. Third, on May 15, 2006, Atkins filed a formal administrative complaint of discrimination with the VA Office of Resolution Management. In his administrative complaint, Atkins alleged three claims: (1) that his original assignment to 9 East in 1999 or 2000 was retaliation for EEO activity by him in 1997 and 1998; (2) that he was subjected to gender discrimination because, when Atkins originally was assigned to 9 East in 1999 or 2000, he replaced a female housekeeping aid, Ella Wright, who was a WG-3, but Atkins was not promoted to WG-3 even though he performed the same or similar duties as Wright; and (3) that his reassignment from 10 West to 10 East in May 2006 was retaliation because it was meant to undo his allegedly improper and retaliatory assignment to a WG-3 area years before.

During the VA's administrative investigation, Atkins also claimed that he had been subjected to a hostile work environment after he contacted the EEO counselor in March 2006. According to Atkins, six specific events constituted a hostile environment: (1) on or about March 31, 2006, Sparks approached Atkins at his locker, asked to inspect his work area, and told Atkins that everything on VA property belonged to the VA; (2) on or about April 7, 2006, Sparks instructed Atkins to dust and wet mop by the elevators at 2:15 p.m., a time when Atkins was preparing to go home; (3) on or about April 20, 2006, Sparks changed Atkins' assignment at 8:15 a.m. even though Atkins had already received a different work assignment from his immediate supervisor earlier that morning; (4) on or about April 21, 2006, Atkins was told by his immediate supervisor, Curtis Holland, that Sparks wanted Atkins to clean up the 1074 storage closet and remove certain items; (5) on May 5, 2006, Sparks issued a memorandum to Atkins stating that he had been absent from his work for 37 minutes without supervisory permission; and (6) on May 24, 2006, Holland issued a second memorandum to Atkins for failure to attend a scheduled training session the day before.

Sparks and Holland responded to Atkins' allegations by affidavit. As to Atkins' discrimination claim, Sparks and Holland explained that Atkins was not paid at the WG-3 level while working in 9 West or earlier because Atkins never applied for a WG-3 position even though he was encouraged to do so by Sparks and other supervisors. Sparks and Holland further explained that Ella Wright was paid at the WG-3 level because she submitted a proper application, went through a panel review process, and was ultimately selected for WG-3 status through a merit promotion system. Although Holland admitted that Atkins performed some WG-3 work while in 9 West, he explained that "blending" occurred between WG-3 employees who worked within a specialty unit and the WG-2 employees who worked just outside a specialty unit. Holland also explained that some confusion existed within management about precisely which areas were WG-3 areas due to changes in management and reorganizations over the years.

Atkins admitted at his deposition that his supervisors encouraged him to apply for a WG-3 position but that he never applied. Atkins asserts now, however, that he should have been promoted with no action on his part because he was on extended detail. Hines VA policy provides that a detail is the temporary assignment of an employee to a different position for a specified period, with the employee returning to his or her regular duties at the expiration of the detail. There is no change in an employee's civil service or pay status while on detail. When a detail will exceed 45 days, a temporary promotion should be made after the 45th day if the employee meets legal and technical requirements. When an employee is detailed to a higher grade position for a period of more than ten consecutive work days, he must be temporarily promoted and the employee should be paid for the temporary promotion beginning the first day of the detail. Managers and supervisors are responsible for keeping details within the shortest practical time limits, ensuring the time limits set forth are not exceeded, arranging details to another service to include other officials administratively concerned, and submitting a "Standard Form 52, Request for Personnel Action," for details for more than 30 days.

As to Atkins' retaliation claim arising from his reassignment from 10 West to 10 East, Sparks explained that reassignment of Atkins was necessary because two other housekeeping aids with more seniority than Atkins were already working on 10 West and neither of the aids wanted to move. Holland concurred with Sparks' decision to reassign Atkins to 10 East because, Holland explained, Atkins was a WG-2 and had raised an issue about being improperly assigned to a WG-3 area. With Atkins' concerns in mind, reassignment of Atkins from 10 West to 10 East made sense because 10 East was a WG-2 area.

As to Atkins' hostile environment claim, Sparks and Holland explained that Sparks routinely inspected work areas for all of his employees, not just Atkins, in order to make sure that Sparks was getting a good day's work out of them. Sparks and Holland also explained that the 1074 supply closet where Atkins kept his personal locker was not meant for personal use and was needed for housekeeping supplies and equipment. As a result, Sparks directed Atkins to remove his personal locker from the closet and offered him a proper locker on the second floor, but Atkins refused. Sparks and Holland also explained that Atkins' use of the 1074 supply closet was a safety hazard because it contained chemicals and housekeeping equipment but could not be unlocked by anyone other than Atkins if there was a problem.

When asked about Sparks giving Atkins an assignment near the end of his shift on one day and then changing his assignment on another morning, both Sparks and Holland explained that assignment adjustments were commonplace and necessary for Atkins and other workers because of changing circumstances that arise during a shift. Atkins himself agreed that Sparks had changed his assignment and the assignments of other employees on other occasions.

When asked about the memorandum that was issued to Atkins for being absent from work for 37 minutes, Sparks explained that he did not recall the specific incident but noted that he had counseled Atkins several times about coming back late from lunch. Sparks then surmised that he had issued the memorandum as a last resort to get Atkins to change his behavior. Consistent with Sparks recollection, Holland explained that Sparks is an "energetic guy" who "does all employees that way" when they are late or out of their area. Holland also explained that he issued Atkins a second memorandum regarding Atkins' failure to attend a training class because Holland had informed Atkins about the training, told Atkins that it was mandatory, and instructed him to attend. Nevertheless, Atkins failed to attend, so Holland "wrote him up."

After the VA issued a final agency decision finding no discrimination or retaliation, Atkins brought this lawsuit against the VA under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and the Equal Pay Act, 29 U.S.C. §§ 206 et seq. In his complaint, Atkins alleged generally that he was treated differently than female employees in the same unit who performed the same tasks he performed and that he subsequently was harassed, demeaned, and subjected to a hostile environment ...


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