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Sawyer v. Nicholson

November 1, 2010

LATASHA SAWYER, DARREN STEELE, RENEE GUSTAFSON, AND LAWRENCE GREEN, PLAINTIFFS,
v.
JIM NICHOLSON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Five employees in the police services unit at the Jesse Brown VA Medical Center and the Office of Veteran Affairs brought this action against the Department of Veterans Affairs, alleging a discriminatory and retaliatory work environment. One of the employees voluntarily dismissed her claims. Pending before the Court are Defendant's motions for summary judgment [75, 78, 86, 92] as to the four remaining Plaintiff-employees. For the following reasons, the Court grants in part and denies in part Defendant's motion for summary judgment [78] on Plaintiff Sawyer's claims for retaliation in violation of Title VII (Count IV) and for hostile work environment-sexual harassment in violation of Title VII (Count II); grants in part and denies in part Defendant's motion for summary judgment [75] on Plaintiff Green's claims for breach of a settlement agreement in violation of Title VII (Count VII) and for retaliation in violation of Title VII (Count VI); denies Defendant's motion for summary judgment [86] on Plaintiff Steele's claim for retaliation in violation of Title VII (Count IV); and grants Defendant's motion for summary judgment [92] in its entirety as to Plaintiff Gustafson's claims. Counts II (as to Sawyer), IV (as to Steele), and VI (as to Green) remain pending.

I. Background

A. Procedural History

On October 31, 2006, Plaintiffs Latasha Sawyer, Darren Steele, Donna Watkins, Renee Gustafson, and Lawrence Green filed a nine-count complaint against Defendant Jim Nicholson, in his official capacity as Secretary of the Department of Veteran Affairs, and six additional defendants employed by the Department of Veteran Affairs. On April 24, 2007, Plaintiffs filed an eleven-count amended complaint. On May 14, 2007, Plaintiff Watkins voluntarily dismissed all of her claims against Defendants and is no longer a party in this suit. On October 19, 2007, the judge previously assigned to this matter dismissed Counts I and VIII of Plaintiffs' amended complaint, leaving Defendant Nicholson as the only remaining Defendant in this case. On May 19, 2009, Plaintiff Steele voluntarily dismissed his claim for hostile work environment-sexual harassment in violation of Title VII (Count III). Thus, the only remaining claims in this case are Plaintiff Sawyer's claim for hostile work environment-sexual harassment in violation of Title VII (Count II); claims by Plaintiffs Sawyer, Steele, and Gustafson for retaliation in violation of Title VII (Count IV); Plaintiff Gustafson's claim for race and sex discrimination in violation of Title VII (Count V); Plaintiff Green's claim for retaliation in violation of Title VII (Count VI); and Plaintiff Green's claim for breach of a pre-determination settlement agreement in violation of Title VII (Count VII). Defendant Nicholson has moved for summary judgment on all remaining claims.

B. Factual History

In view of the numerous parties in this case, the Court sets forth a brief summary of the allegations in this case, prior to addressing the specific factual backgrounds of each Plaintiff. Plaintiffs and Defendant were, at all relevant times, employed by the Department of Veteran Affairs ("VA") and worked at a police services unit that provided security services to the Jesse Brown VA Medical Center ("JBVA") and to the Office of Veteran Affairs, located in Chicago, Illinois. Plaintiff Sawyer worked for the VA as a secretary to Jerry Brown, the police chief at JBVA.*fn1 Sawyer alleges that she was sexually harassed by Brown (Count II), and that, after she complained of the harassment, the VA repeatedly retaliated against her (Count IV). Plaintiff Steele, a police officer, alleges that after he cooperated with investigators regarding other employees' EEO complaints, he was falsely accused of patient abuse, suspended, reassigned from jobs, and had his weapon taken away (Count IV). Plaintiff Gustafson originally was a police officer in the police services unit but later was promoted to a police supervisory position in the Office of Veteran Affairs. Gustafson alleges that she was suspended and pressured to change her testimony after she served as a witness on behalf of Plaintiff Steele at an Administrative Investigation Board hearing (Count IV) and was denied mandatory supervisory training and not promoted to the lieutenant rank due to her race (Caucasian) and sex (female) (Count V). And finally, Plaintiff Greene, also a police officer, alleges that Defendant retaliated against him for engaging in EEO activity (Count VI) and that Defendant breached an EEO settlement agreement arising from a prior EEO action (Count VII).

1. Latasha Sawyer

Latasha Sawyer began working at the JBVA in May 2003 as an automation clerk in the Environmental Services department.*fn2 While in Environmental Services, she did not have any problems with harassment, discrimination, or retaliation. In September 2004, Jerry Brown, Chief of Police at the JBVA, hired Sawyer as a secretary for the police services unit.*fn3 The police services unit was predominantly male, employing only six women out of a total of forty employees. In her position, Sawyer's responsibilities included administrative duties, time cards, purchasing, and organizing technical support. From the start of her employment at the JBVA through August 2005, her performance appraisals demonstrated that she was meeting all of Defendant's employment expectations.

Sawyer alleges that Chief Brown began sexually harassing her in September 2004 and continued to do so through the time she initiated an EEO claim in August 2005. According to Sawyer, Chief Brown made sexually explicit comments about Sawyer's body, such as: (1) "They're pointing to me saying hi"; (2) "I know you're in here because your headlights are on"; (3) "no your big titty ass didn't"; (4) "It gets cold and they stand up and look right at you"; (5) "Oh, it must be cold in here because your headlights are on"; and (6) "I bet you do all kinds of stuff with those lips." Sawyer also testified that Brown sexually harassed her by making inappropriate comments about his own body and sex life, such as: (1) discussing his "tube steak" in front of her; (2) telling Sawyer his wife lived out of town; (3) stating "she just wants my tube steak; and (4) telling Sawyer that women were calling and leaving him messages because they wanted "some of his tube steak."

Another way in which Sawyer alleges that Brown sexually harassed her was to make references to Sawyer engaging in sexual acts, including: (1) asking Sawyer, "What are you doing with tint on your car [windows]? With those lips of yours, no telling what you be doing. I know why you got the tint;" (2) making allegations that Sawyer was "messing around with" Darren Steele, a co-worker; (3) alleging that Sawyer was engaging in a "threesome" with a male and female co-worker; (4) asking Sawyer if she was involved in "running a train" on Darren Steele; (5) stating "You [Sawyer] would feel better if you had a little of my tube steak"; and (6) stating that Sawyer "just wanted to be wolf packed." Plaintiff Darren Steele testified that he witnessed Brown say some of the above-referenced comments to Sawyer. Donna Watkins also told an EEO counselor that she heard Brown make inappropriate comments to or around or about Sawyer.

In response to Brown's behavior, Plaintiff testified that she first tried changing the subject when he would make inappropriate comments. Plaintiff further testified that she would say: "Why do you have to say that? Don't say that"; or "Look, this behavior is not right, and its making me feel uncomfortable. You're making these comments around officers, and I don't want them to think that I'm this type of person." Then, on August 10, 2005, Sawyer had a meeting with Brown and again advised Brown that his comments were unwelcome and offensive. Sawyer asked him to stop talking to her in a demeaning manner and limit their conversations to business-related issues. After Sawyer requested the meeting, Brown made a comment that Sawyer needed to "go home and get some."

On or around August 15, 2005, Brown informed Sawyer via e-mail that he would be conducting an audit of Sawyer's purchases for the last sixty days. Following Brown's decision to relieve Sawyer of her purchasing duties, Sawyer did not go to work on August 16 and 17. Viewing the record in the light most favorable to Sawyer, it appears as if Sawyer properly called in and requested sick leave, but she was charged with being AWOL (the first occurrence during her employment at the VA). On August 18, Geraldine Webb heard a commotion in Brown's office, heard Sawyer cuss, saw Sawyer exiting Brown's office crying, heard Sawyer express disbelief that she had been charged with being AWOL and remark, "I'll get his ass. I'll go upstairs and get the white man on his ass." When Sawyer explained that she had taken sick leave for those two days, the AWOL status was removed from her record.

On August 19, Brown relieved Sawyer of her purchasing duties, although Sawyer had e-mailed Brown on August 17. There is conflicting evidence whether Sawyer requested that she be relieved of her purchasing duties, or whether she wanted to keep them. There is no evidence that Brown had ever removed any of Sawyer's duties or requested an audit of her purchases prior to their meeting on August 10, 2005.

On August 19, 2005, Sawyer made contact with the EEO office to initiate a claim of sexual harassment against Brown.*fn4 Brown was apprised of the allegations. Within a few days of Sawyer's EEO complaint, the VA reassigned Sawyer to Emergency Management Services*fn5 and convened an independent Administrative Investigation Board ("AIB") to investigate Sawyer's allegations. The AIB investigation was separate from the EEO action. Associate Director Blakely identified three required corrective actions that were to be documented into the AIB record by the end of December 2005: (1) that the Acting Director initiate appropriate disciplinary actions toward Brown; (2) that the Acting Director initiate consultation between the police services unit and the National Center of Organizational Development, and (3) that Brown provide officers with written Standard Operating Procedures and training. There was no documentation, and no entries in the AIB record, to reflect that any of these actions were taken.

On August 25, 2005, the Office of the Inspector General received an anonymous complaint involving allegations that Sawyer used her computer at work to process income tax returns for employees and personal associates, and that non-VA employees were reporting to Sawyer's work station to have their tax returns processed. After an investigation, the AIB found the anonymous complaint to be unsubstantiated.

On August 29, the EEO counselor closed the informal complaint process on Sawyer's sexual harassment claim. On September 14, 2005, Sawyer filed a formal EEO complaint of sexual harassment and reprisal, alleging that the sexual harassment had been ongoing throughout her time in the police services unit and that she had suffered reprisal since August 10, when she demanded that Brown stop his behavior.

On September 22, 2005, Sawyer went to see Dr. Feldman in the Women's Health Clinic at JBVA for depression as a result of a sex trauma. Because of the nature of her "stress" (her sexual harassment claim), she was referred to an outpatient clinic. At the clinic, Sawyer gave the counselor a physician's report to fill out. According to Sawyer, the counselor told her in a subsequent phone call that she could not fill out the report due to a conflict of interest which arose from the fact that the JBVA was its parent facility. The counselor advised her to go to a private physician. On October 7, 2005, Sawyer contacted the EEO counselor to add a claim based on the clinic's refusal to fill out the paperwork.

Sawyer and another JBVA employee viewed Emergency Management Services as a "dumping ground" for employees who were on their way "out the door." Sawyer's stay there was brief. When she alerted VA officials that she was uncomfortable in Emergency Management Services, she was reassigned to a position answering calls for Hurricane Katrina disaster relief. In October, when the position ended, the VA offered Sawyer a position at the JBVA information desk, which she declined because she feared for her safety at the JBVA facility. She then was offered a position in the Logistics unit at the VA Lakeside campus, which she accepted. Natalie Dunn, Chief of Logistics, became her supervisor.

Dunn and Sawyer were at odds from the start. Although they were at separate facilities -- Dunn's work station was at the JBVA while Sawyer's was at the Lakeside campus -- Sawyer claims that "Dunn had [her] under surveillance." Sawyer alleges that she was required to call and notify Dunn whenever she left her office for any period of time, even to go to the bathroom, and that other supervisors would contact Sawyer at the start of each shift for attendance purposes. Dunn disputes many of Sawyer's specific allegations, but admits that she ultimately formed the opinion that Sawyer lied, played games, had a very bad attitude, wanted special treatment, and ultimately wanted to get administrative leave so that she could stay home and still get paid.

On October 12, 2005, Sawyer requested four hours of Family Medical Leave or Sick Leave to be used on October 17 and eight hours of annual leave to be used on October 18. Dunn asked Sawyer for documentation to support the leave request because Sawyer had an insufficient leave balance. On October 14, Dunn refused to approve Sawyer's request for leave. That same day, Sawyer sent a memorandum to Blakely, stating that she felt uncomfortable with Dunn's comments to her and that she felt like Dunn had her under surveillance. Also on October 14, Sawyer prepared a signed statement, recounting the following: Dunn phoned Sawyer and told her that Sawyer's complaints were "garbage," that she had a chip on her shoulder, and that Sawyer would not receive special treatment because of her EEO complaint. Sawyer also alleges that Dunn, during the course of another attendance dispute, told her: "I don't know who you think you are, but you must not know who I am. You just don't know who you're fucking with.

I deal with bitches like you every day and I am not going to let you or no one (sic) run this department. I am the one in charge. I am the one with the delegation of authority and that means I can do whatever I want to do with you * * * * I'll get a family member your age to kick your ass." Dunn denies making these statements. Sawyer filed a police report with the Chicago Police based on this alleged incident, and Dunn was questioned by a Chicago Police Department detective. Sawyer ultimately contacted the EEO counselor to add a claim of retaliation and harassment based on her interactions with Dunn and the denial of her leave request.

On November 30, 2005, the AIB -- which was convened to investigate Sawyer's complaint of sexual harassment -- issued its findings, including that "the use of profanity and telling various types of jokes appears to be the norm in the VA Police." One employee testified that officers would make remarks about women "basically every day" that "kind of" had a sexual nature, which he described as "high school stuff." He further testified that the officers discussed "who they wouldn't mind hooking up with, as they put it." Plaintiff Green testified that he knew of one time in October or November 2005 when an employee brought in a sex tape on a DVD and played in on the computer. Green ordered him to turn it off. Officer Steele reported to his supervisor that on two or three occasions, there were sexually explicit magazines in the locker room, in addition to a poster of a bikini clad woman. Donna Watkins testified, "They'll go so far as pulling your hair and saying you like that, don't you?"

After conducting an investigation into allegations of police misconduct that had been raised in an anonymous letter, the VA Inspector General's Office concluded that some officers misused the security cameras to zoom in on female body parts, including breasts, genitals, and buttocks, while women were walking through the corridors of the hospital. The Inspector recommended that the facility develop a policy as to the proper use of security cameras with specific language on prohibitions on its use. In her deposition, Sawyer testified that she did not have personal knowledge of the inappropriate use of security cameras because she did not work in that area.

After her initial EEO claim, Sawyer saw an EEO counselor to add the following retaliation claims: (1) her reassignment out of the police unit in August 2005; (2) an alleged "gag order" not to speak with her after she filed her EEO claim; (3) Dunn's inappropriate comments about Sawyer's leave requests; (4) Dunn's intimidating questions about Sawyer's whereabouts and the entry of AWOL under Dunn's supervision; (5) encountering a VA police officer observing and taking notes about Sawyer's car in the parking garage in November 2005, after she had provided information for her EEO claims; (6) an anonymous letter (written three days after her demand that the police chief stop harassing her) accusing her of using her work computer to complete tax returns; (7) AWOL entered on January 9 and 10, 2006; (8) Dunn's threats in January 2006; and (9) the VA counseling center's refusal to fill out her worker's compensation paperwork. Sawyer's reprisal claims were consolidated with her sexual harassment claim.

Sawyer also sent a letter to the VA's Chief Policy and Compliance Officer in Washington, D.C. to complain that the conduct of the EEO investigative staff was unethical and inappropriate. Sawyer complained that she was asked inappropriate and unseemly questions during her interview (such as what bra size she wears and whether she thought she had large breasts) and that the EEO investigator "had the audacity to go to the wrongdoers and notify them of [her] testimony." Sawyer warned the EEO office that she would be filing a suit and that the D.C. office also would be a named defendant. In a letter dated December 28, 2005, the VA's Chief Policy and Compliance Officer in Washington, D.C. responded to Sawyer's complaints regarding the processing of her EEO complaint by apologizing for any inappropriate comments and questions, assigning a new EEO investigator, and explaining to Sawyer that EEOC regulations require an EEO counselor to inform management officials of any allegations made against them.

In February 2006, Sawyer was notified that the AIB had investigated her claims of sexual harassment and concluded that the evidence did not substantiate her allegations. In March 2006, the VA separated the police service operations at the JBVA and Hines VA Hospital, and designated Chief Brown as the police chief at Hines VA with duties as Acting Chief at the JBVA until a replacement was selected. In May 2006, Blakely met with Sawyer to discuss whether she had any reservations about returning to her secretary position in the police unit. Sawyer was told she would be working under Martin Anderson, who recently had been selected as the Assistant Chief. Sawyer agreed to the assignment. While Martin was in training, Sawyer temporarily was under the supervision of Chief Brown. During the approximately six-week period, Sawyer "really didn't see him" much, they did not communicate except through e-mail, Brown approved Sawyer's leave requests, and he did not engage in any inappropriate comments or conduct. However, on June 13, 2006, Sawyer contacted the EEO counselor to add additional claims of retaliation and hostile work environment because she was under the temporary supervision of Chief Brown.

Assistant Chief Anderson returned from training on June 26, 2006. On July 17, Sawyer contacted an EEO counselor with complaints of hostile work environment and retaliation related to Anderson. Sawyer claimed that (1) Anderson rummaged through her desk drawers, (2) denied her access to the file cabinet which he moved into his office and kept locked when he was absent, (3) instructed her to keep her office door open at all times, (4) accusing her of four hours of AWOL in July, (5) told her that "I am trying to start off on the right foot but you are making it very hard," and (6) failed to inform her of his whereabouts or work assignments. Sawyer felt that Andersen had "temper issues," was "hostile and belligerent," and was "just totally disrespectful." She testified that he would either scream at her, put his hand up at her as a gesture to be quiet, walk away from her, or just look at her.

Andersen was equally unhappy with their working relationship. Andersen believed that Sawyer hid in her office with the door locked to avoid work, was missing half the time, would not complete assignments that he gave her, and was always on her cellphone. He instructed her to keep her door open and when she refused, he would prop the door open. He denied going through her personal items. Sawyer's reassignment to the police department lasted seven months, from May to November 2006, and she testified that she felt harassed the entire time.

In November 2006, inspectors from the VA's central office reviewed the JBVA police unit and determined that its program was the worst it had ever seen. The deficiencies included missing files and paperwork. The VA brought in a temporary acting police chief, Lee Daniels, from a VA facility in Texas to restructure the police department. Daniels and Blakely determined that Sawyer should not remain in the police unit. Blakely concluded that whenever a supervisor in any of Sawyer's assignments did not give her what she wanted, she claimed retaliation. Blakely laterally reassigned Sawyer to a clerk position in patient administrative services; although Sawyer did not want to remain in the police unit, she protested the reassignment because she was pregnant and worried about exposure to communicable diseases.*fn6

Sawyer's new duties included greeting visitors, answering phone calls, paging nurses, interacting with doctors and patients, and checking patient orders. After reassignment, Sawyer frequently claimed that she was getting sick. After five months in patient services, she felt that she "had no other choice but to leave, because it was based on my health." Sawyer resigned in April 2007.

2. Lawrence Green*fn7

The VA hired Plaintiff Lawrence Green as a police officer at the JBVA in 1990. In April 2004, the VA announced three vacancies for the supervisory police officer position, and Green applied. Green was not selected for any of the vacancies. In May 2004, Green brought an EEO action to complain that his non-selection was retaliation for a prior EEO complaint. Green received a promotion in settlement of his EEO claim, which was to become effective on August 21, 2005.*fn8 The VA notified Green that, pursuant to VA regulations, he must serve a one-year probationary period during which time he could be removed for deficient performance and returned to his original position as a police officer. Green acknowledged and signed the notice requiring him to serve the probationary period. Assuming that all went well during this probationary period, Green would rise to a GS-8 position.

Green alleges that his colleagues, including both subordinates and superiors, engaged in retaliation in response to his EEO activities from the moment that the settlement agreement took effect. According to Green's understanding of the settlement agreement, he was to be promoted on August 21, 2005. However, Green was not promoted until September 14, 2005, and he did not receive his credentials until October or November 2005. Green did not receive a supervisor manual or the ninety day orientation, including forty hours of training that supervisors are required to receive. Green also did not receive feedback to which he claims he was entitled under VA policy. Green testified that when he brought concerns about the actions of fellow officers to his superiors, his supervisors failed to investigate the allegations and instead encouraged the officers to file EEO complaints against Green. In a similar vein, Green testified that his superiors encouraged officers under his supervision to write false reports about him and not to follow Green's orders.

In September 2005, Green complained about being removed from the shift schedule.*fn9

Green was told that it did not matter that he was not on the schedule because he knew when his shifts were. All other officers were placed on the schedule during this period. In October 2005, Green had a heated argument in public with another supervisor, Lt. Manning, and both got a "butt-chewing" from the police chief in an e-mail and in person. While nothing went into either of their personnel folders as a result of the incident, Green was issued a letter of reprimand while Manning was not. Green testified that this occurred despite the fact that he was attempting to prevent Manning from verbally abusing an officer under Green's supervision.

In November 2005, Green was asked to rewrite an incident report three times. According to Defendant, Green's report was unacceptable given the seriousness of the issue and the fact that it involved "racial overtones." Green testified that the report was adequate in light of other reports that were deemed acceptable. Then, in April 2006, Green directed two officers to complete paperwork related to an arrest that Green had made. The officers refused to complete the work because Detective Smith had told them not to assist Green. According to Detective Smith, it is the duty of the arresting officer to complete any necessary paperwork; however, Green testified that it is common for supervisors to enlist the assistance of junior officers in completing paperwork and that he was supervising their efforts.Green also testified that he was threatened both by superior officers -- "You don't know who you are talking about. Anybody's a Mason. They can -- we can harm you or get you" -- and by subordinate officers -- "[W]e are going to put a fire under Green's ass and Chief Brown will back us up."*fn10

Eventually, Brown demoted Green, largely on the basis of two events. At some time around May 2006, Officer Chaney, an officer under Green's supervision, reported to Green that his bullet resistive vest was missing. Neither Green nor Chaney filed an official report stating that the vest was missing until Green made a report on the instructions of Brown on June 6, 2006. Defendant claims that it was Green's responsibility to report the missing vest and that he failed to do so in a timely manner. Green claims that it was his understanding that he was not responsible for reporting the missing vest, that it was Chaney's duty to report the vest missing, and that Chaney was going to make the report. Green testified that, despite believing he had no duty to report the vest missing or locate a replacement, he repeatedly informed his superiors of the missing vest, making it their responsibility to provide a replacement vest, as they were the only ones with the means to provide a replacement.*fn11 Defendant denies that Green ever notified his commanders.

A VA detective commenced an investigation for theft of government property. Green told the investigator that he was unaware that VA policy required all on-duty armed police officers to wear vests. Green allowed Chaney to work without a vest for twenty-five days before Green was instructed to file a uniform offense report. The memo prepared by the VA detective states that Green did not inform the police chief or assistant police chief about the missing vest; however, Green was not reprimanded at the time of the incident. In November 2006, a department-wide investigation was conducted in connection with bullet resistive vests. The investigation found that over half of the officers at the JBVA did not have fully functional bullet resistive vests and some did not have a vest assigned to them. The investigation also found that most supervisors were unaware of program requirements.

Green also was accused of failing to distribute firearms in accordance with VA policy on two occasions. According to VA policy, firearms are kept in gun lockers and are to be removed from their lockers only when the officer to whom the firearm is assigned provides the gun locker key to his or her supervisor, who then opens the gun locker and provides the firearm to the officer. Three officers reported to Brown that between June 13 and June 15, 2006, they twice arrived at the armory to find that their firearms had already been removed from their gun lockers and placed on a counter. They testified that Green used a master key to unlock each locker and remove the weapons. The officers said that they were concerned because each officer is responsible for his weapon. Green testified that these events never occurred and that it was impossible for him to have removed the guns without the officers' keys because he did not have access to a master key. According to VA policy, the master key is maintained as a controlled key, to be used only by the chief, assistant chief, and firearm instructor/armorer. Defendant offers no theory as to how Green, who was not the chief, assistant chief, or a firearm instructor/armorer, obtained a master key.

Two of the three officers who reported Green for firearm violations were officers that Green testified he overheard saying, "[W]e are going to put a fire under Mr. Green's ass, and Chief Brown will back us up" shortly before the incident. Green testified that Brown instructed the third officer to file a false report. Another officer, who Green's accusers allege was present during the incident, denied witnessing the events as alleged by the three officers when he was questioned by Detective Gilliam. Green was not disciplined for failing to distribute firearms in accordance with VA policy at the time of the incident. However, Brown did issue Green a letter of inquiry asking for Green's response to the allegations, and Green denied violating the firearms policy. Brown also notified Green in an e-mail that Green's subordinates lacked confidence in him and complained that Green publically disrespected them and lacked knowledge when they sought his advice.

Green contacted an EEO officer to complain of retaliation and a hostile work environment on July 6, 2006, and again (through his attorney) on July 20, 2006. On July 11, 2006, five days after Green contacted an EEO officer, Brown proposed that Green be demoted for (1) failing to ensure that the police operations journal was annotated with an entry of missing government property; (2) failing to prepare a VA Police Uniform Offense Report; (3) failing to ensure the safety of a subordinate officer by allowing him to work without a bullet resistive vest for twenty-five days; and (4) violating established firearm policy.*fn12 The demotion became effective on August 6, 2006, sixteen days before Green's probationary period was set to end. Green failed to challenge this decision within the ten days provided. Green states that he did not do so because he was denied access to the evidence file relating to his demotion.

Both of Green's performance reviews, in August 2005 and May 2006, found him to have met the expectations of a G-7 supervisor. He also received an incentive award in April 2006 for excellent supervisor leadership in a time of crisis, and Brown testified at his deposition that he did not have any concerns with Green's work performance. Lieutenant Tucker wrote a letter on Green's behalf stating that he believed Green was not treated fairly during his probationary period, and in particular that he was treated differently than other supervisors. Brown testified that Green was not disciplined at the time that Brown became aware of the two incidents because any such action would necessarily have resulted in Green being demoted. Contrary to Brown's reasoning, HR specialist James Lampada stated in his deposition that an officer on a probationary period is not automatically demoted if he is disciplined. Green was the only person that Brown demoted in his tenure as Police Chief at JBVA.

On September 5, 2007, Green filed a formal EEO complaint alleging hostile work environment, retaliation, and breach of the settlement agreement. Specifically, Green cited the following thirteen incidents of reprisal/harassment/hostile work environment: (1) his promotion was delayed by Chief Brown until September 2005; (2) in October 2005, Green was reprimanded and written up for a dispute with another officer, while Brown failed to issue a reprimand to the other officer; (3) in November 2005, Green prepared a report which Chief Brown rejected as unacceptable three times; (4) in April 2006, Green directed two subordinates to complete paperwork on an arrest but they refused stating that Detective Smith told them not to assist Green; (5) in June 2006, Chief Brown issued complaint letters falsely accusing Green of being out of uniform and improperly transporting x-rays; (6) on June 21, 2006, Officer Howard wrote a false report about Green, which resulted in Chief Brown disciplining Green; (7) in June 2006, Green overheard two police officers state that "we are going to put a fire under Sgt. Green's ass and Chief Brown will back us up;" (8) from April 2006 through June 2006, Green asked to be "put on the schedule" but was told that there is no need since he knows what shift he works; (9) on June 1, 2006 Detective Smith threatened Green; (10) on June 10, 2006 Chief Brown threatened Green; (11) on June 14, 2006, Officer Billingsly wrote a false report about Green as ordered by his supervisors; (12) on July 14, 2006, after Green wrote up a white police officer, Officer Tomchek, for ...


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