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Poullard v. Shinseki

United States District Court, N.D. Illinois, Eastern Division

March 26, 2015

ERIC K. SHINSEKI, Secretary, U.S. Department of Veterans Affairs, Defendant.


JOAN H. LEFKOW, District Judge.

On September 19, 2012, Leroy S. Poullard filed suit against Eric K. Shinseki, Secretary of the U.S. Department of Veterans Affairs ("the Secretary"). (Dkt. 1 ("Compl.").) Poullard alleges that during his employment in the Education Department at the North Chicago Veterans Affairs Medical Center, he was subjected to disparate treatment on the bases of race and sex, retaliation, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ( Id. ) The Secretary moved for summary judgment on April 4, 2014. (Dkt. 39.) For the reasons stated below, the Secretary's motion is granted.[1]


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine whether any genuine fact issue exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c). In doing so, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The court may not weigh conflicting evidence or make credibility determinations. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011).

The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). If a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex, 477 U.S. at 323-24.


Poullard is an African-American male who has worked as a Training Specialist in the Education Department ("the Department") of the North Chicago Veterans Affairs Medical Center ("the VA") since 2004. (Dkt. 46 ("Def.'s L.R. 56.1") ¶ 1.) He was hired at the GS-9 pay grade on September 19, 2004 (dkt. 49 ("Pl.'s L.R. 56.1") ¶ 1) and was promoted to the GS-11 pay grade in April 2006 after a GS-11 Training Specialist left the Department. (Def.'s L.R. 56.1 ¶ 2.) At the time of his promotion, Poullard was the only Training Specialist in the Department. ( Id. ) Two individuals worked above him: his direct supervisor Kathleen Kusel, the Chief of the Department; and Kusel's superior, Marianne Semrad, the Associate Director for Facility Support. (Pl.'s L.R. 56.1 ¶ 3.)

I. Changing Job Responsibilities, 2007 EEO Complaint, and Temporary Promotion

Shortly after Poullard's promotion, Kusel retired as Chief of the Department making Semrad Poullard's direct supervisor and responsible for Kusel's duties. (Def.'s L.R. 56.1 ¶¶ 3-5.) According to Poullard, however, he, not Semrad, assumed all duties and responsibilities of the Chief of the Department, a GS-13 position. (Compl. ¶ 10.) Indeed, Semrad noted in the comments section of an October 26, 2006 performance review that Poullard had "become a one-person Education Department" as other staff retired or changed jobs. (Pl.'s L.R. 56.1 ¶ 7.) Poullard served as the administrator for the TEMPO database, "chaired" the Education and Management Committee, and had the authority to approve overtime for all employees in the Department. ( Id. ¶ 8.) Semrad, in contrast, spent less than an hour per day in the Department. ( Id. ¶ 6.)

Given his increased responsibilities, Poullard became dissatisfied and believed that he was performing the duties of a GS-13 employee without the corresponding title or compensation. (Def.'s L.R. 56.1 ¶ 6.) Although Poullard was not promoted, the Department gave Poullard a series of cash awards totaling over $12, 000 for the period of time during which he was the sole Training Specialist at the Department. (Pl.'s L.R. 56.1 ¶ 11.) Semrad testified that these payments added up to the difference between a GS-11 and a GS-12 pay grade. (Def.'s L.R. 56.1 ¶ 7.) Poullard, however, believed these payments were insufficient. ( Id. ¶ 8.)

Pursuant to the collective bargaining agreement in effect at the VA during the relevant time period, [3] an employee in Poullard's position could be promoted in two ways. First, he could apply for a promotion to a specific position. (Dkt. 52-4 Exh. 5 § 6.A.) Second, he could request a desk audit to determine whether, "due to the accretion of additional duties and responsibilities, " his position should be "reclassified at a higher grade." ( Id. § 7.A.1.) In April or May of 2007, Poullard requested a desk audit to facilitate an accretion-of-duties promotion. (Pl.'s L.R. 56.1 ¶ 15.) Poullard's request was denied. ( Id. ) Poullard contacted the VA's Office of Resolution Management on May 14, 2007 and, on June 18, 2007, he filed a formal equal employment opportunity ("EEO") complaint alleging discrimination on the bases of race, sex, disability, and reprisal. ( Id. ¶ 13.)

Shortly thereafter, in an email dated June 29, 2007, Semrad informed Poullard that, while certain duties Poullard had been performing would be used to justify a forthcoming temporary promotion, they would not appear in his GS-11 position description.[4] ( Id. ¶ 16.) At some point, Semrad also informed Poullard that he was ineligible for promotion to the position of Chief of the Department because he had not worked for one year at the GS-12 grade and thus did not satisfy time-in-grade requirements. ( Id. ¶ 23.) Poullard did not apply for the Chief position or any other position in the Department. (Def.'s L.R. 56.1 ¶ 18.) Poullard received a temporary promotion to the GS-12 pay grade in July 2007 which expired on October 28, 2007.[5] ( Id. ¶ 10.)

On March 26, 2010, the Equal Employment Opportunity Commission ("EEOC") issued a Final Agency Decision in favor of the VA on Poullard's initial EEO complaint. (Dkt. 40-2 Exh. 7.) Poullard did not file a complaint in federal court within ninety days of that decision. (Def.'s L.R. 56.1 ¶ 14.)

II. Change of Supervisors and Further Objections to Job Responsibilities

Semrad left the Department in October 2007 and was replaced by Mary Ann Cardinali. ( Id. ¶¶ 11-12.) On November 7, 2007, Richard Holt became the acting Chief of the Department, filling the position vacated by Kusel. ( Id. ¶ 16.) In a performance evaluation for the period between November 16, 2007 and July 15, 2008, Holt gave Poullard a rating of "fully successful" and observed that Poullard had "managed the department with oversight of budget, programs, staffing, and operations." (Pl.'s L.R. 56.1 ¶ 21.) Dr. Norma Mailand was appointed Assistant Department Head for Education and Training in July 2008, effectively replacing Holt as Chief of the Department. (Def.'s L.R. 56.1 ¶ 17.) Accordingly, Mailand served as Poullard's direct supervisor and Cardinali was Mailand's superior. ( Id. ¶¶ 12, 17.)

Around this time, the Department hired two new Training Specialists. ( Id. ¶ 20.) In a telephonic affidavit taken by an EEOC investigator, Mailand stated that because the new Training Specialists lacked experience after they were hired, Poullard initially performed more duties than his co-workers. (Dkt. 40-1 Exh. 4 at 00323.) According to Mailand, however, the duties were redistributed after a training and transition period. ( Id. ) Poullard disagrees and stated in a telephonic affidavit that he continually performed more tasks than the other Training Specialists between 2008 and 2010. ( Id. Exh. 1 at 00227.) Moreover, while Mailand was nominally responsible for the duties of the Chief of the Department, Poullard testified in his deposition that after Mailand's appointment in 2008 he continued to perform managerial duties and responsibilities outside of his pay grade without promotion or additional compensation. (Pl.'s L.R. 56.1 ¶ 25.)

Throughout the period during which Mailand served as Poullard's supervisor, Poullard continually objected to performing tasks outside of his pay grade (Def.'s L.R. 56.1 ¶ 23), and he requested another desk audit in February or March of 2010 (Pl.'s L.R. 56.1 ¶ 15). In response to his concerns, Mailand asked Poullard to draft a document listing the duties he believed were outside the scope of his responsibilities; Mailand then had Poullard's workload evaluated by a classification specialist. (Def.'s L.R. 56.1 ¶¶ 24-25.) Mailand testified that the classification specialist reported back to her that ...

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