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Jenkins v. Eric Ken Shinseki Secretary of the Dep't of Veterans Affairs

July 30, 2010


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for a ruling on the Motion for Summary Judgment (#40) filed by Defendant, Eric K. Shinseki, Secretary of the Department of Veterans Affairs. The court has closely reviewed the arguments and supporting documentation filed by both parties. Following this careful and thorough review, Defendant's Motion for Summary Judgment (# 40) is GRANTED.


Since 1987, Plaintiff, John Paul Jenkins, has been employed in the housekeeping division at the Illiana Heath Care System, formerly known as the Danville Veterans Administration Hospital (VA Hospital). In April 2007, the VA Hospital established a third shift housekeeping position and eliminated the identical second shift housekeeping position. The new position was created because supervisors in the Supply, Processing and Distribution (SPD) section of the VA Hospital, the department responsible for the sterilization and maintenance of surgical instruments as well as the distribution of medical supplies within the hospital, informed management that housekeeping would need to start cleaning surgical units during the third shift rather than the second shift. The newly instituted position paid only 40 cents more per hour and was not considered a promotion as no change in grade, step or other position of employment occurred. On April 17, 2007, an announcement was issued within the housekeeping section regarding the new post. The announcement also indicated the position would replace the corresponding second shift surgical housekeeping position.

Two employees applied for said position: Plaintiff and the VA Hospital employee whose second shift position was being eliminated due to the change. The record indicates the second applicant possessed the additional skills and training required for the new position as the job entailed the same duties and responsibilities as the employee's previous position. Plaintiff, in contrast, did not have such additional skills as his general housekeeping position did not require them. At the time of application, Plaintiff stated that if he did not receive the third shift position he wished to transfer from first shift to second shift. However, as the job posting indicated, the new third shift position eliminated the corresponding second shift position. Therefore, it was impossible for the VA to satisfy Plaintiff's secondary request at the time.

Having been with the VA Hospital since 1975, Marion Fellers (Fellers) has known Plaintiff since his hiring in 1987. Of the management positions held by Fellers, the most recent include general supervisor of housekeeping from 1997 -- 2006 and Chief of the Environmental Sanitation Section from October 2006 until his retirement in June 2009. In April 2007, two supervisors in the VA Hospital's SPD section advised Fellers and one of his housekeeping foremen, Mr. Jesse LeSure (LeSure), of the new surgical housekeeping position. Fellers recommended to his supervisor, Chief of Facilities Management Andrew Green (Green), that the second shift housekeeper receive the new position. Fellers' recommendation was based on a variety of factors including: 1) the position entailed the same duty assignment the second shift housekeeper was currently and successfully performing; 2) the second shift housekeeper's position was being eliminated and the employee in that position would need to be assigned to another position if possible; 3) said applicant wished to transfer to third shift for personal reasons; and 4) Fellers was less satisfied with Plaintiff's efficiency, effectiveness and productivity as compared to the other applicant.

Taking the aforementioned factors into account, Green accepted Fellers' recommendation and appointed the second shift housekeeper to the new position on May 14, 2007. According to Green's declaration, he concurred with Fellers"s suggestion based on the following: 1) information provided by Plaintiff's supervisors working under Green's direction over a period of several years; 2) as Plaintiff's ultimate supervisor, Green was acquainted with Plaintiff's marginal housekeeping work habits; 3) Green was more satisfied with the second shift housekeeper's skills and quality of work; and 4) Plaintiff's ultimate lack of efficiency, effectiveness and productivity as compared to the other applicant.

The record also indicates Green hired the second shift housekeeper in an effort to promote the efficiency of the VA Hospital's housekeeping service and foster an amiable and productive work environment. Had Plaintiff been appointed to the new position, he would have been supervised by the same VA Hospital employee he accused of sexual harassment and a hostile work environment in April 2006.*fn2 As this individual was the only third shift housekeeping supervisor at the time of Plaintiff's application, a different supervisor was not an option.*fn3 Thus, in an effort to: 1) maintain an efficient and amiable work environment; and 2) prevent another situation in which Plaintiff believed he was subjected to sexual harassment and a hostile work environment, the second shift applicant was accepted to the third shift surgical housekeeping position.

Finally, said supervisor informed Green via email that due to Plaintiff's lack of dependability as evidenced by his continual tardiness and occasional departure from his assigned post during work hours, he was "not comfortable with John Jenkins coming to PM Shift." These sentiments were based on: 1) Plaintiff's annual leave usage which indicated he frequently arrived 1/4 to 1 1/2 hours late to work; and 2) between September and November 2005, Plaintiff was observed talking to a woman in the parking lot away from his station during work hours. The supervisor also stated he was "fearful any type of corrective action on my part [Plaintiff] would consider retaliation for his EEO complaint." Thus, Green ultimately determined it would be an unwise management decision to place Plaintiff under the same supervisor.

Though Plaintiff's secondary request to transfer to second shift was not immediately fulfilled, the record indicates he was the next housekeeper to receive a transfer to second shift. The transfer took effect in November 2007 with Plaintiff falling under the supervision of LeSure.



Under Fed. R. Civ. P. 56(b), a defending party "may move, with or without supporting affidavits, for summary judgment on all or part of the claim." Summary judgment should be "rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). As the Supreme Court noted in Celotex Corp. v. Catrett, one of the primary purposes of the summary judgment rule is to "isolate and dispose of factually unsupported claims or defenses." 477 U.S. 317, 323-24 (1986).

When evaluating a motion for summary judgment, a district court has a singular task: "to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The moving party has the burden of supplying proper documentary evidence to demonstrate the absence of a genuine issue of material fact. Schmidt v. Runyon, 20 F. Supp. 2d 1246, 1248 (C.D. Ill. 1998). In determining if a genuine issue of material fact exists, a court is to believe the evidence of the non-movant and "all justifiable inferences ...

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