Poullard v. McDonald
| Decision Date | 21 July 2016 |
| Docket Number | No. 15–1962,15–1962 |
| Parties | Leroy S. Poullard, Plaintiff–Appellant, v. Robert A. McDonald, Secretary, United States Department of Veterans Affairs, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy A. Bridge, Attorney, St. Charles, IL, for Plaintiff–Appellant.
Michael J. Kelly, Jr., Assistant U.S. Attorney, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.
Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
, Circuit Judge.
Since 2004, plaintiff Leroy Poullard has worked at the North Chicago Veterans Affairs Medical Center as a training specialist in the Education Department. He received a promotion to the GS–11 pay grade in 2006, but since then, he has received neither a permanent promotion nor a raise in his pay grade. He brought this suit against the Secretary of the U.S. Department of Veterans Affairs alleging that this refusal to promote him or increase his salary constituted discrimination based on sex and race (Poullard is African-American). He also says that he was subjected to unlawful retaliation and a hostile work environment based on the same lack of pay and recognition, as well as a number of other incidents.
The district court granted the Secretary's motion for summary judgment, concluding that many of Poullard's claims were time-barred based on his failure to timely exhaust certain administrative remedies. On the timely claims, the court held that Poullard had not suffered an adverse employment action and that a reasonable jury could not find that the alleged harassment was sufficiently severe or pervasive to support a hostile work environment claim. We affirm. Based on the evidence Poullard has presented, we assume that he may not have been managed well or fairly. But even when viewed through a summary judgment lens, that evidence does not support a claim for unlawful discrimination, retaliation, or harassment.
We review the facts that follow in the light most favorable to Poullard, resolving disputes and drawing all reasonable inferences in his favor. Liu v. Cook County , 817 F.3d 307, 309 (7th Cir. 2016)
, citing Coleman v. Donahoe , 667 F.3d 835, 842 (7th Cir. 2012).
In 2004, plaintiff Leroy Poullard began working as a training specialist in the Education Department at what is now called the Captain James A. Lovell Federal Health Care Center in 2004. In 2006, he received a promotion to grade GS–11. By all accounts, he performed his job well, taking on a number of managerial tasks he says were beyond his grade level and receiving very positive evaluations. In October 2006, his performance evaluation called him a “one-person Education Department.” He received a number of cash awards in 2006 and 2007 to reward him for the extra work, but he did not receive a promotion. Believing that this was due to discrimination, Poullard contacted the Office of Resolution Management in May 2007 and filed a formal complaint against his then-supervisor, Marianne Semrad, alleging race and sex discrimination as well as disability discrimination and retaliation. After he filed the complaint, he received a temporary promotion to GS–12, but when it expired, he returned to the GS–11 level.
We pause here to discuss the administrative process applicable in this case, which is important to the timeliness of plaintiff's claims. Poullard is a federal employee. As a first step in resolving his claims of unlawful discrimination, he was required to try to resolve the matter informally by consulting an Equal Employment Opportunity counselor. 29 C.F.R. § 1614.105(a)
. The regulations require an employee to initiate contact with the counselor within 45 days of the allegedly discriminatory matter. § 1614.105(a)(1)
. If informal counseling fails, the employee must then file a formal complaint. See § 1614.106. Then, if the employee wishes to file a civil action, he may do so either within 90 days of receiving notice of the agency decision or, if he chooses to appeal to the Equal Employment Opportunity Commission, within 90 days of the EEOC's resolution of his appeal. 42 U.S.C. § 2000e-16(c). With respect to the 2007 complaint of discrimination, Poullard both contacted a counselor and filed a timely formal complaint. After a final agency decision against him, he did not file an action in federal court.
Meanwhile, in October 2007, a number of staffing changes took place in the Education Department. Semrad left her position as associate director for facility support, and Mary Ann Cardinali took over that role. In November 2007, Richard Holt became the acting chief of the Education Department, and in July 2008, Dr. Norma Mailand replaced Holt and became the assistant department head for education and training, a GS–13 position. These transitions left Mailand as Poullard's direct supervisor and Cardinali as his second-line supervisor.
Poullard did not apply for the supervisory position that Mailand eventually received. He did not satisfy the time-in-grade prerequisite of one year in service at the GS–12 grade. According to Poullard, however, after Mailand's appointment he continued to perform the extra managerial duties for which he had previously been responsible, including preparing the annual budget and drafting the department's strategic plans. Despite the extra work, his classification and compensation remained at the GS–11 level.
Poullard repeatedly questioned the department's refusal to compensate him for the duties that were beyond his grade classification, though it is undisputed that he never actually applied for another promotion. On February 26, 2010, and again on March 24, 2010, Poullard sent Mailand e-mails itemizing his assigned tasks that he believed were above his grade level. Mailand directed a VA classification specialist to evaluate those tasks. The classification specialist concluded that the tasks were appropriate for a GS–11 employee, and Poullard did not receive a reclassification or increased pay. Poullard does not claim that this decision was discriminatory.1
While the dispute about Poullard's classification and pay was ongoing, other incidents relevant to his claims occurred. In October 2008, Cardinali held a meeting of department employees. At one point, she ordered that the tape recorder in the room be turned off and said, “I know people in Washington, D.C. and if you file a complaint, they are going to send it back to me and I'm going to deal with you.” She also said that management intended to “get the monkeys off their back[s]” and threw a toy monkey at Poullard, apparently in reference to a Harvard Business Review article entitled “Management Time: Who's Got the Monkey?” In a separate incident, Mailand referred to Poullard as a “sugar daddy.” On a different occasion, after viewing an older photograph of Poullard taken when he had had an afro hairstyle, Mailand said that he was a “better person” than he had been before.
On March 5, 2010, Poullard contacted the Office of Resolution Management and reported that he had been forced to perform managerial duties and responsibilities beyond his GS–11 grade level. On April 17, he filed a timely formal complaint. He claimed that Mailand had discriminated against him by ensuring he had more assignments than other training specialists and forcing him to perform above-grade tasks without compensation or recognition. He also alleged he had been subjected to a hostile work environment and retaliation, pointing to the following incidents in addition to the uncompensated extra assignments and above-grade tasks:
In July 2012, the Office of Employment Discrimination Complaint Adjudication for the VA found that Poullard had failed to prove discrimination. Poullard did not appeal to the EEOC but instead filed this civil action in district court on September 19, 2012, alleging race and sex discrimination, hostile work environment, and retaliation.
The Secretary moved for summary judgment, and the district court granted the motion. Poullard v. Shinseki , No. 12 C 7497, 2015 WL 1428105 (N.D. Ill. Mar. 26, 2015)
. Judge Lefkow held that all claims arising from events addressed in Poullard's first formal complaint were time-barred by his failure to file a civil action after receiving a final decision from the EEOC on March 26, 2010. Id. at *5. She also held that all alleged acts of discrimination that occurred before January 19, 2010 (45 days before Poullard contacted a counselor on March 5, 2010) were time-barred. Id.
Poullard argued that at least some of his claims were rendered timely by the Lilly Ledbetter Fair Pay Act of 2009, which provides that an “unlawful employment practice” occurs each time a person is paid pursuant to a discriminatory compensation decision or practice. 42...
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