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Syed Azeem v. Eric K. Shinseki

December 28, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court is Defendant Secretary of Veterans Affairs Eric K. Shinseki's (the "VA") Motion for Summary Judgment on Plaintiff Syed Azeem's ("Azeem") retaliation claims brought under Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq. For the reasons stated herein, the motion is granted.


The following facts are taken from the parties' Local Rule 56.1 statements, deposition testimony, and exhibits, with disputes noted where applicable. Azeem is a federal employee, who, at the time of the events of this lawsuit, worked at the Edward Hines Jr. VA Hospital ("Hines Hospital"). Shinseki is named in his official capacity as Secretary of the Department of Veteran's Affairs.

Azeem was a program specialist in the radiotherapy department at Hines Hospital. At that time, the Radiotherapy Department was an outpatient clinic jointly staffed by VA employees and doctors from Loyola University Medical Center.

In early 2006, Azeem filed a formal administrative complaint alleging he was discriminated against based on his race (Asian) when the VA refused to upgrade his position following a desk audit that occurred in December 2001. The VA issued a final agency decision finding that his claim was time-barred, the Equal Employment Opportunity Commission (the "EEOC") denied his appeal, and a federal lawsuit by Azeem was dismissed on the same basis. Azeem v. Nicholson, No. 07 C 255, 2008 WL 2557463, at *4 (N.D. Ill. June 23, 2008).

The instant lawsuit stems from administrative complaints Azeem filed in April and August 2006, which alleged that his supervisors retaliated against him for complaining about race discrimination. An Administrative Law Judge granted summary judgment in favor of the VA on all of his claims. This lawsuit followed.

Azeem initially alleged several instances of retaliation, but pursues his claims in this court only as to two incidents. First, Azeem contends that in May and June 2006, he was issued a letter of counseling, a letter of detail, and removed from his duties as a Contracting Officer Technical Representative ("COTR"). The COTR job required him to monitor and validate the accuracy of bills submitted to the VA by Loyola for radiation services provided by Loyola employees working in the radiotherapy department. Next, Azeem contends he was retaliated against because he was not selected for a Lead Program Analyst position in May 2007.

As to the letter of counseling and letter of detail, Plaintiff does not clearly identify who the relevant decision-makers were, but the letter of counseling was signed by Jane Moen ("Moen"), Azeem's supervisor and a business manager at the VA, and issued after consultation with her supervisor, Dr. Brian Schmitt ("Schmitt"). The letter of detail was signed by Jeff Gering ("Gering"), then the Associate Director of Hines Hospital. Schmitt testified that the decision to detail Azeem to another position was made by the Director's Office and that he did not influence the Director's Office to transfer Azeem. Schmitt 2007 Dep. at 12:16--20.

Shortly after Azeem filed his EEO complaint regarding the VA's refusal to upgrade his position, Moen and Schmitt attended a meeting with Azeem. After the meeting, Schmitt and Moen asked Azeem to stay and spoke with Azeem about the complaint. Schmitt and Moen admit that they were upset upon learning that they had been named in the discrimination charge, and Schmitt told Azeem that it was "strictly going to be business now." Azeem maintains that Schmitt told him that he would be "on the defensive" from that point forward, although Schmitt does not remember making this particular comment.

Azeem says he interpreted this as accusatory, and felt uncomfortable and intimidated. For his part, Schmitt contends that he made the "strictly business" comment because he felt that he and Moen had gone out of their way to help Azeem with his request to upgrade his position because of their personal relationship with him. Schmitt 2007 Dep. at 25:18-26:1. Schmitt said he did nothing to retaliate against Azeem, but was generally more cautious in how he interacted with Azeem from that point forward. Id. at 26:6-11.

After Azeem reported his discomfort with the conversation to the EEO office, an EEO counselor told Moen that she had not been given authorization to speak to Azeem about the matter and should leave it to the EEO office in the future.

The letter of counseling, the letter of detail, and removal of Azeem's COTR duties followed an audit of Azeem's billing practices in the spring of 2006. The VA contends that it conducted the audit because it was concerned about recent increases in radiology costs. It maintains that it took these actions against Azeem because it found billing discrepancies during the audit and because Azeem reacted poorly to the audit findings.

The audit was ordered by Jeff Gering based on Moen's request for additional funding in the radiotherapy department. Gering asked Donna Fagan ("Fagan"), then the Associate Chief of Patient Administration Service, to perform an audit to find out why costs in that radiotherapy department were escalating. At the time he requested the audit, Gering was aware that Azeem had filed EEO complaints in the past, but Azeem was not in Gering's chain-of-command. Fagan was given discretion to determine why costs were increasing in the department. She worked with Moen on the audit. Azeem avers that Moen's attitude toward him, which had been cordial, changed following his discrimination complaint. For example, he averred, Moen and Fagan arrived at the clinic in his absence and inquired about his punctuality, which they had never done before.

The audit initially was directed at why the VA was being charged more under the contract with Loyola, but Fagan ended up focusing on Azeem's work as a COTR. Moen and Fagan found billing discrepancies, but they were unable to put a dollar figure on these discrepancies.

Azeem contends that the cost of the contract had been increasing since May 2005, but that Moen did not raise an issue about Azeem's performance until after he filed an EEO complaint. Azeem points out that the Radiotherapy Department had purchased a piece of equipment that delivered a treatment known as Intensity Modulated Radiation Therapy ("IMRT"), and notes that this equipment contributed to higher costs for the Radiotherapy Department.

At any rate, the audit did not go well for Azeem. An employee named John Clifton ("Clifton") began accompanying Moen and Fagan to the auditing sessions. When Azeem was stripped of his COTR duties, they were assigned to Clifton. Moen contends that Azeem was defensive when they discussed the audit, frequently interrupted her, and denied the existence of any problems. As a consequence, Azeem received a letter of counseling and was assigned to another position.

Azeem contends that he was eager to explain how he went about auditing the Loyola bill and did his best to cooperate with Moen. He contends that Moen and Fagan failed to provide him with specifics about the discrepancies they found, or to show him any documents. Azeem further contends that the audit was poorly done and that some of the alleged errors found by Moen and Fagan were based on their misunderstanding of the billing system Azeem used. At the conclusion of the audit, Moen prepared a summary of the findings for VA managers, and one of the concerns identified was speculation that overcharges occurred.

On May 31, 2006, Moen informed Azeem that he would no longer serve as a COTR. On June 7, 2006, Moen gave Azeem the letter of counseling and a letter of detail, the latter of which transferred him out of the Radiotherapy Department. Later that month, Gering informed Azeem that he would be detailed for a year to the Director's Service Safety Section. Azeem ...

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