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Dickey v. McDonald

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

February 23, 2017

ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs, Defendant.


          Robert W. Gettleman, United States District Judge

         Plaintiff James Dickey has sued his employer, Robert McDonald, Secretary of the Department of Veterans Affairs, alleging that he was discriminated against because of his age, race, and disability, and that he continues to be retaliated against for having complained about the alleged discrimination, all in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633(a) et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., Section 1985 of the Civil Rights Act of 1871, and the Veterans Employment Opportunities Act of 1988, 5 U.S.C. § 7701 et seq. Defendant has moved for summary judgment. For the reasons described below, the motion is granted.


          Plaintiff, a black male who is more than forty years old and suffers from post traumatic stress disorder, began his career with the Department of Veterans Affairs (“VA”) in 1997 as a laborer. Plaintiff later became a truck driver, then, in 2008, he became a mental health technician, which is a GS-7 level job. Plaintiff maintains that position, at that level, to this day. As a mental health technician, plaintiff works with patients and clinicians regarding various aspects of appointment scheduling. Specifically, plaintiff sets up “grids, ” which enable clinicians to input their schedules into a computer program, calls patients to schedule appointments and remind them of upcoming and missed appointments, and helps clinicians enter their notes into a computer program. Additionally, plaintiff meets with some patients in a group setting.

         In February 2010 the VA posted a job opening for a GS-9 level Grid Manager position. Plaintiff was qualified for the job, applied, and was ultimately one of three people selected to be interviewed. Plaintiff did not get the job and was never interviewed. Instead, Benjamin Deady, a white male in his twenties, was given the position in May 2010 without having applied. Deady had a master's degree in Health Administration and was selected through the Graduate Health Administration Training Program, a VA fellowship program designed to attract “future leaders” by providing eligible recent college graduates with a one-year internship, followed by employment at the VA. Fellows such as Deady are appointed to positions rather than having to apply through the regular process.

         Deady held the Grid Manager position for just over one year, and was detailed to Washington, D.C. in July 2011. At that point, the VA determined that it was not feasible for one person to perform all of the duties of the Grid Manager and consequently reconfigured its scheduling system. After Deady's departure, many of his duties were assigned to Gwen Armster, who later retired. After Armster's departure, many of those duties were assigned to plaintiff. As of September 2011, plaintiff spends forty-percent of his working hours managing the grid.

         In May 2014, after filing a second complaint with the Equal Employment Opportunity Commission (“EEOC”), plaintiff asked his supervisor why he was not receiving a GS-9 salary. Plaintiff's supervisor suggested that a “desk audit” be conducted. A desk audit is a process through which the VA sends a classification auditor to meet with the employee requesting a raise or promotion and his or her supervisor to determine if the employee's position should be reclassified. The employee or the employee's supervisor can request a desk audit when significant changes have been made to an employee's position. At the conclusion of a desk audit, the employee's position can be upgraded, downgraded, or it can be retained. Plaintiff refused his supervisor's suggestion that a desk audit be conducted, apparently because he believed that the EEOC would investigate his job duties and pay, and because he felt he was entitled to the upgrade without a desk audit. Although plaintiff declined the desk audit, the VA's Human Resources Department performed an informal review of Plaintiff's duties, without the possibility that the review would result in a downgrade, and concluded that an official desk audit was unlikely to result in an upgrade. Plaintiff did request a desk audit in May 2016, the results of which, if any, are unknown to the court.

         Plaintiff's legal claims have evolved since he first learned that he was not being promoted to Grid Manager. A few months after Deady was appointed to the position, plaintiff filed his first complaint with the EEOC on August 9, 2010, alleging that he was discriminated against due to his age and race when he was denied the position, and retaliated against, by being rated as “exceptional” (rather than “outstanding”) in his performance evaluation, because he complained of the discrimination. After a two day hearing on the matter, the EEOC found that plaintiff failed to prove any of his claims. The VA adopted the EEOC's finding and issued a Final Agency Decision on August 22, 2012, advising plaintiff that he had ninety days to appeal the decision to a federal district court. Plaintiff did not appeal.

         On April 5, 2013, plaintiff filed a complaint with the Merit Systems Protection Board (“MSPB”) alleging that his veteran preference rights under the Veterans Employment Opportunities Act (“VEOA”) were violated twice; first, when he was not selected for the Grid Manager position, and again, when he was not promoted to a GS-9 level after he assumed some of Deady's duties upon Armster's departure. The MSPB dismissed Plaintiff's complaint as untimely on July 17, 2013, advising him of his appeal rights. Plaintiff did not appeal.

         Plaintiff filed a second complaint with the EEOC on April 7, 2014. This time, plaintiff alleged that defendant discriminated against him due to his race and age in two ways; first, by assigning plaintiff some of Deady's duties without increasing his salary to a GS-9 level; and second, by denying his request for a promotion to GS-9. Plaintiff did not request a hearing on the matter within thirty days, and the EEOC issued a final agency determination finding no discrimination on January 29, 2015. Plaintiff received the decision on February 2, 2015, and filed his complaint in the instant case on May 4, 2015.


         I. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant bears the burden of establishing both elements, Becker v. Tenebaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir. 1990), and all reasonable inferences are drawn in the non-movant's favor. Fisher v. Transco Services - Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). If the movant satisfies its burden, then the non-movant must set forth specific facts showing there is a genuine issue for trial. Nitz v. Craig, 2013 WL 593851, *2 (N.D. Ill. Feb. 12, 2013). In doing so, the non-movant cannot simply show some metaphysical doubt as to the material facts. Pignato v. Givaudan Flavors Corp., 2013 WL 995157, *2 (N.D. Ill. March 13, 2013) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Summary judgment is inappropriate when “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         II. ...

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