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Washington v. Wilkie

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

August 22, 2019

ROBERT L. WILKIE, as Secretary, U.S. Department of Veteran Affairs, Defendant.



         Plaintiff Leo Dion Washington filed an Amended Complaint alleging discrimination on the basis of his age, color, race, sex, and disability and retaliation and harassment by his former employer, the U.S. Department of Veteran Affairs (the “VA”). The VA moves for summary judgment on all of Washington's claims, arguing that Washington abandoned his age and sex discrimination claims during the administrative process, that nine of the ten claims were untimely, and that he cannot state a prima facie case as to the other claims. The Court held oral argument on June 3, 2019. For the reasons stated herein, the Court grants the VA's motion for summary judgment [52].

         Rule 56.1 Statement

         While Washington did not file a response brief, he did file a response to the VA's Rule 56.1(a) Statement along with supporting exhibits. Washington did not clearly mark new facts that he included, so most of his response to the VA's Rule 56.1(a) Statement does not comply with Local Rule 56.1(b). Despite this, the Court exercises its discretion and accepts those new facts that Washington properly supported with citations to the record. However, the Court must also note that Washington did not dispute the vast majority of the facts that are supported by evidence and set forth in the VA's Rule 56.1(a) Statement. Washington attempts to dispute the evidence, but fails to include relevant and admissible evidence supported by the record. See Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1139 (7th Cir. 1997) (referring to Local Rule 56.1's predecessor rule, the court affirmed the district court's taking as true uncontroverted facts alleged in the movant's statement and supported by references to the record); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009). Thus, the Court deems admitted the following paragraphs of the VA's Rule 56.1 Statement: 1-14, 16-17, 19-64. The Court notes that Washington disputes the language that the VA used to summarize the administrative EEO claims he brought. Clearly the VA and Washington use different words, but the meaning is the same, so the Court finds there is no material dispute as to paragraph 18 of the VA's Rule 56.1(a) Statement.


         Washington is an African-American man who began his employment with the VA in 2003 as a GS-4 clerk. Over the years, he held several positions at VA facilities in Hines, Illinois, eventually being promoted to a GS-13 lead contract specialist position at the Hines VA National Acquisition Center (“VA NAC Hines”) in October 2010.

         In June 2013, Washington sought Equal Employment Opportunity (“EEO”) counseling alleging that the VA discriminated against him on the basis of race, sex, age and mental disability, retaliated against him, and subjected him to harassment, based on nine incidents that allegedly occurred at his VA NAC Hines workplace three years earlier in June 2010. Washington filed a formal administrative complaint in July 2013. The VA denied Washington's claims as untimely, which Washington appealed. The EEOC Office of Federal Operations reversed the VA and remanded the case for further investigation by the VA. Following the remand, Washington added a tenth alleged workplace incident that occurred in April 2014.

         Washington's administrative EEO claims were that during his employment between June 2010 and December 2011 and ongoing, he: (1) received discriminatory disciplinary counseling while an American male employee did not receive counseling for a similar workplace disturbance; (2) was discriminatorily assigned to a remedial course, but a European American male employee was not similarly assigned; (3) was subjected to a disciplinary detail; (4) was reassigned to segregated seating, while an African-American female was moved from the same area; (5) was reassigned to segregated seating, away from his Caucasian coworkers after he told the Chief of Contracting a Caucasian coworker had harassed him; (6) was segregated from interactions with other employees; (7) was subjected to defamatory actions affecting his professional wellbeing, but a European American employee who engaged in similar conduct was not; (8) was retaliated against for EEO participation and subjected to an ongoing discriminatory seating arrangement; and (9) was subjected to interference with his right to appeal. Washington later added a tenth allegation that his duties were increased on April 25, 2014.

         While represented by counsel in the administrative EEO proceedings, Washington dropped his age and sex discrimination claims. After the EEO investigation, the VA moved for summary judgment on all of Washington's claims. The EEOC administrative judge granted the motion, finding that the nine 2010 claims were untimely, but regardless there was no merits evidence to support denying the motion on any of the ten claims listed above.

         Despite filing an Amended Complaint in 2017 that alleged broader allegations, Washington testified at his deposition that his claims are limited to the ten above claims that he asserted during the administrative EEO proceedings. He further testified at his deposition that the first nine claims occurred before he sought EEO counseling in 2013 and did not happen again after June 2010.

         As part of the investigation of Washington's allegation that his duties were increased in April 2014, the EEO investigator interviewed Jane Stroder, Washington's supervisor. Stroder testified that Washington's duties did not change in April 2014 and that Washington had been managing the subcontracting plan for the VA for some time before Stroder became his supervisor. Stroder further testified that around that time Washington received one additional task that he been assigned to a more junior white, female contract specialist because that employee had been incurring a large amount of overtime. Washington and Stroder explained that Washington's GS-13 contract specialist position description encompassed the additional task. Washington also testified that there was no procedure or rule limiting the amount of work assigned to him and that there was an overall increase in workload in his unit in April 2014 that impacted all his co-workers. Washington remains employed at the VA NAC Hines as a GS-13 lead contract specialist.

         Legal Standard

         Summary judgment is proper when “the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” McGreal v. Vill. of Orland Park, 850 F.3d 308, 312 (7th Cir. 2017), reh'g denied (Mar. 27, 2017) (internal citations and quotations omitted); Fed.R.Civ.P. 56(a). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Washington, the non-moving party, fails to respond as set forth in Local Rule 56.1(b), the Court cannot automatically grant summary judgment, but still reviews the facts and draws all reasonable inferences in the light most favorable to the non-moving party. See Cracco, 559 F.3d at 632; Cady v. Sheahan, ...

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