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Lester v. O'Rourke

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

June 27, 2018

PETER O'ROURKE, Acting Secretary of Veterans Affairs,[1] Defendant.


          John Robert Blakey United States District Judge

         Plaintiff Rodney Lester sued his former employer, the Department of Veterans Affairs (VA), alleging that it unlawfully discriminated and retaliated against him because of his race and age. Defendant moved for summary judgment. For the reasons explained below, this Court partially grants the motion.

         I. Background

         The facts come from Defendant's Local Rule 56.1 statement of facts [29] and Plaintiff's statement of additional facts [34].

         A. Declarations as Evidence

         Many of Plaintiff's facts rely-at least in part-upon signed and dated declarations from Plaintiff and Thomas Johnson, one of Plaintiff's union representatives. See [34-1] at 2-12. Declarations may substitute for affidavits and constitute evidence if they comply with 27 U.S.C. § 1746, which requires a dated signature. See Sheikh v. Grant Reg'l Health Ctr., 769 F.3d 549, 551 (7th Cir. 2014). The Seventh Circuit has “repeatedly emphasized” that parties may not use the term “self-serving” to “denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgement.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013). As long as a competent declarant makes statements based upon personal knowledge, the declaration can support a summary judgment motion. Id. at 968; see also Fed. R. Civ. P. 56(c)(4). In short, Plaintiff and Johnson's declarations constitute admissible evidence at this point in the proceedings.

         Yet in response to every paragraph in Plaintiff's statement of additional facts that cites one of the declarations, Defendant states a variation of the following: “Deny that [Plaintiff's] allegations are supported by any evidence other than his own testimony and declaration and Thomas Johnson's declaration.” See, e.g., [35] at 3. Apparently, these purported denials indicate that Defendant believes that Plaintiff and Johnson's declarations, for whatever unspecified reason, do not constitute evidence. But as this Court explained above, Plaintiff may use those declarations as evidence to oppose the motion. Defendant's improper denials fail to controvert Plaintiff's facts, so for present purposes, this Court deems admitted any fact that Defendant denied solely by objecting to one of the declarations. See N.D. Ill. L.R. 56.1(a); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

         B. Plaintiff's Disciplinary History and EEO Complaints

         Plaintiff, a 60-year-old African-American man, worked for the VA in various jobs from 1979 to 2011. [34] at 10; [29] ¶ 3. In 1992, Plaintiff joined the IT Department at the VA's Edward Hines, Jr. Hospital as an electronics technician. [29] ¶ 6. At some unspecified point, the VA promoted Plaintiff to the position of computer electrician at Hines. Id. ¶ 8. Gordon Brown, a Caucasian man, worked as the Chief Information Officer at Hines and served as Plaintiff's second line supervisor, but never his direct supervisor. Id. ¶ 9.

         From 2005 to 2009, Defendant disciplined Plaintiff multiple times (with written reprimands and sometimes suspensions as long as 14 days) for performance and conduct issues, including unauthorized absences and failing to follow instructions. Id. ¶ 10. Plaintiff filed EEO claims against the VA for each instance of discipline and disputes the legitimacy of the disciplinary measures. [34] at 2. In December 2009, Brown sent Plaintiff three “letters of inquiry” about his continued performance and conduct issues. [29] ¶ 11. Plaintiff contends that Brown sent the letters and ordered the previous suspensions because Plaintiff filed EEO complaints about Brown. [34] at 2, 12. Plaintiff's earlier EEO complaints alleged that Brown racially discriminated and retaliated against him. See, e.g., id. at 11-12.

         Between November 2009 and February 2010, Plaintiff and Defendant participated in several mediation sessions regarding one of Plaintiff's EEO complaints. Id. at 12. Various union representatives, including Johnson, represented Plaintiff throughout the mediation. Id. at 13. At one session, a VA officer named Jeff Fears suggested that Plaintiff transfer to a different facility, the Jesse Brown VA Medical Center, because Plaintiff claimed that Brown “was going after him.” Id. at 12; [35] at 7.

         While mediation continued, Brown sent Plaintiff a notice of proposed removal in February 2010. [29] ¶ 12. The notice charged Plaintiff with, among other things, failing to complete work on time and behaving inappropriately at work. Id. Again, Plaintiff filed EEO claims against the VA for each instance of discipline and suggests that Brown disciplined him for illegitimate reasons. [34] at 3.

         After Plaintiff received Brown's notice of proposed removal, Johnson emailed Fears and asked him to stay a decision on Plaintiff's removal until he knew the outcome of Plaintiff's mediation. Id. at 13. Johnson suggested the stay because the mediation might have resulted in removing the suspensions from Plaintiff's record, which would have meant that Defendant could not use those suspensions as an “aggravating factor” to fire Plaintiff. Id.

         Plaintiff, Johnson, and Fears met for an unsuccessful mediation session in March 2010, during which Fears refused to discuss Plaintiff's pending EEO complaint or proposed removal. Id. They met again in May 2010 with an EEO representative present, and Fears again refused to discuss Plaintiff's pending EEO complaint. Id. Instead, Defendant offered Plaintiff a “Last Chance Agreement.”

         C. The Last Chance Agreement (LCA)

         As the name suggests, Plaintiff had a choice between signing the LCA and losing his job. Id. He signed the agreement (although not until September 2010). [29] ¶ 14. Per the LCA, Defendant agreed to hold Plaintiff's removal in abeyance for ten months, remove certain discipline-related documents from his file, and transfer him to another facility. Id. ¶ 16. Plaintiff agreed that Defendant had sufficient evidence supporting the charges against him to justify his removal, and agreed to “maintain satisfactory conduct and work habits” and be respectful of VA employees, patients, and visitors. Id.

         The LCA also required Plaintiff to voluntarily dismiss his pending EEO complaints and waive his right to seek relief with the EEOC or a United States district court under federal employment statutes if Defendant disciplined or terminated him pursuant to the LCA. [34] at 13-14. Johnson stated in his declaration that Defendant often uses LCAs for employees with EEO claims to force them to relinquish their claims, “even in cases where there is no valid reason to remove the employee.” Id. at 13; [34-1] at 10. Johnson also indicated that LCAs are “a trap” for employees, and that Defendant fires most employees on LCAs shortly after they sign the agreements. [34-1] at 11. Before signing the LCA, Plaintiff protested the provision that required him to voluntarily dismiss his pending EEO complaints. [34] at 13.

         D. Plaintiff's Time at ...

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