Abrego v. Wilkie

• Decision Date: 30 October 2018
• Docket Number: No. 17-3413,17-3413
• Citation: 907 F.3d 1004
• Parties: Alfredo ABREGO, Plaintiff-Appellant, v. Robert WILKIE, Secretary of Veterans Affairs, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

907 F.3d 1004

Alfredo ABREGO, Plaintiff-Appellant,

v.Robert WILKIE, Secretary of Veterans Affairs, Defendant-Appellee.

No. 17-3413

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2018

Decided October 30, 2018

Michael T. Smith, Attorney, Smith & Associates, Schaumburg, IL, for Plaintiff-Appellant.

Kathleen M. Flannery, Attorney, Patrick W. Johnson, Attorney, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before Flaum, Easterbrook, and Scudder, Circuit Judges.

Flaum, Circuit Judge.

Alfredo Abrego, a former dental assistant at a Veterans Affairs ("VA") dental clinic, brought an employment discrimination action pursuant to Title VII against the Secretary of Veterans Affairs (the "Secretary").¹ He alleged: (1) he was discriminated against based on his gender (male) and race (Hispanic); (2) he was retaliated against for filing EEO complaints; and (3) he faced a hostile work environment. The district court granted summary judgment in favor of the Secretary. We affirm.

I. Background

On June 19, 2011, Abrego began work as a dental assistant at a VA dental clinic in North Chicago, Illinois. He was initially assigned to work with Dr. William Strampe. According to Abrego, Strampe treated him poorly. He claims Strampe "harassed" him and was "short tempered." Additionally, he maintains Strampe did not allow him to schedule patients, use computer resources, or make ward visits. Based on this tension, Strampe and Abrego met with Dr. Peter Bidny, the head of the clinic, to "turn[ ] things around." However, Abrego described the meeting as "kind of unfair," and according to Strampe, Abrego interrupted Strampe, raised his voice, and abruptly left.

Despite Bidny’s warning that Abrego could be terminated during his initial probationary period for his inability to work well with others, conflict continued. On October 8, 2011, Abrego became angry when, while he was in the bathroom, Strampe knocked on the door because patients were waiting. On January 3, 2012, a patient called Abrego "retarded," and Abrego says Strampe did not support him or allow him to defend himself. And also in January, Strampe was "short tempered" after Abrego left work about an hour early due to an approaching blizzard, even though Strampe had another patient. On January 26, 2012, Bidny, Strampe, and Abrego had another meeting, and eventually, in March 2012, Abrego was assigned to a different dentist. Abrego claims Strampe treated his new female assistant more favorably; for example, he says Strampe brought her on ward exams.

On July 9, 2012, Abrego received a letter of counseling that referenced three instances of inappropriate conduct: (1) interrupting Strampe at a meeting; (2) arguing with a patient, clenching his fists when told to stop, and refusing to work with the patient in the future; and (3) shouting at a coworker. Shortly thereafter, on August 27, 2012, Abrego filed a complaint with the EEO. In it, he alleged race and sex discrimination amounting to a hostile work environment. He identified nineteen incidents from 2011 and 2012, mostly involving his interactions with Strampe.

On October 15, 2012, Abrego’s supervisor sent him a letter of inquiry. This letter asked for an explanation about three incidents: (1) telling a coworker that he "like[s] tall woman" and "everyone is the same height in bed"; (2) a discussion with coworkers about race that involved yelling; and (3) an aggressive meeting with a coworker. On December 21, 2012, Abrego received a formal reprimand for yelling at a coworker.

Although Abrego received "fully successful" ratings on his 2011, 2012, and 2013 performance evaluations, the reviews also discussed Abrego’s combative workplace behavior. On the 2011 evaluation, Strampe emphasized instances when Abrego "lost his composure and was overly resistant to working with other dentists." Likewise, on the 2012 evaluation, Strampe wrote that "Abrego has worked very hard," but there were "a number of incidents where he ha[d] lost his composure that ha[d] significantly detracted from his overall performance." Strampe concluded that to be successful, Abrego needed to "focus more on the patient and on assisting his dentist," and also "maintain[ ] a good attitude, ... maintain his composure and control his temper, ... learn to accept constructive criticism, and ... develop a respect for authority." Likewise, Bidny commented on Abrego’s "issues regarding corporate citizenship, specifically in reference to communication with Dr. Strampe ... as well as confrontations with a number of coworkers." As for his 2013 review, Abrego claims Dr. Fredrickson, the assistant director of dental services, forced the rating to be changed from "outstanding" to "fully successful."

On January 17, 2014, the VA suspended Abrego for fourteen days for illegally recording his supervisor. About a month later, on February 7, 2014, Abrego filed a second EEO complaint. He alleged that his 2013 evaluation and fourteen-day suspension were in retaliation for filing his first EEO complaint.

Starting in June 2014, Abrego had several incidents with his new supervisor, Cari Pietrzyk. The conflicts include: Pietrzyk questioning Abrego when he arrived late to the clinic; Pietrzyk attempting to locate Abrego when he was absent during work hours; Pietrzyk ending an all-assistants meeting due to Abrego’s disrespectful and disruptive behavior; Pietrzyk following up on Abrego’s incomplete assigned tasks; and Pietrzyk investigating other coworkers’ complaints about intimidation by Abrego. Additionally, tension arose because Pietrzyk told Abrego to limit time spent volunteering during work hours due to the impact his absences were having on patient care.

On August 6, 2014, Abrego’s supervisor issued him a letter of inquiry related to these conflicts. The letter asked for an explanation about three "[i]nappropriate actions against a supervisor" and four "[a]ctions where jobs [were] not done in a timely manner." On October 9, 2014, he received another letter of inquiry about conflict with Pietrzyk.

On October 3, 2014, Abrego filed a third EEO complaint. He alleged gender discrimination, retaliation, and a hostile work environment. On November 19, 2014, the clinic issued Abrego a proposed notice of removal based on the conduct outlined in the August 6, 2014 letter of inquiry. Abrego issued a written response and met with Dr. Holt, the director of the clinic, to give an oral response. Holt sustained the charges, and Abrego’s removal became effective December 19, 2014. At some point, Abrego added reference to the removal to his third EEO complaint.

In early 2015, the Office of Employment Discrimination Complaint Adjudication (the "Office") issued a final agency decision on Abrego’s August 27, 2012, and February 7, 2014 EEO complaints, ruling against him on all claims. In August 2015, the Office issued a final agency decision on Abrego’s October 3, 2014 EEO complaint. Again, it rejected all of his claims.

In February 2015, Abrego brought a complaint against the Secretary; he filed the operative first amended complaint on November 5, 2015. The complaint has six counts: Counts 1 and 4 are titled "Tile VII-Race Discrimination-Hostile Environment"; Counts 2 and 5 are titled "Title VII-Sex Discrimination-Hostile Environment"; and Counts 3 and 6 allege retaliation and a hostile workplace based on Abrego’s EEO activity. The district court summarized Abrego’s claims:

The race discrimination and hostile environment claims in Count 1, the sex discrimination and hostile environment claims in Count 2, and the retaliation and hostile environment claims in Count 3 are based on the incidents alleged in Abrego’s August 2012 and February 2014 EEO complaints. The race discrimination and hostile environment claims in Count 4 and the sex discrimination and hostile environment claims in Count 5 are based on the incidents alleged in the October 2014 EEO complaint. Lastly, the retaliation and hostile environment claims in Count 6 are based on the incidents alleged in the October 2014 EEO complaint, the November 2014 proposed letter of removal, and Abrego’s subsequent removal in December 2014.

On May 18, 2017, the Secretary moved for summary judgment, arguing Abrego could not establish a prima facie case of discrimination or retaliation and failed to show that the clinic was a hostile work environment. Additionally, the Secretary maintained that Abrego failed to administratively exhaust his discrimination claims raised in Counts 4 and 5 based on the October 2014 EEO complaint. The district court granted the Secretary’s motion. This appeal followed.

II. Discussion

We review a grant of summary judgment de novo, "construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed." Hess v. Bd. of Trs. of S. Ill. Univ. , 839 F.3d 668, 673 (7th Cir. 2016). "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. It is the responsibility of the movant to identify the particular portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party has carried this burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party must set forth specific facts showing a genuine issue for trial. Id. at 587, 106 S.Ct. 1348.

A. Waiver and Administrative Exhaustion

Prior to filing a Title VII lawsuit, "[a] federal employee must exhaust his administrative remedies," including filing a timely EEO complaint with the relevant agency. Reynolds v. Tangherlini , 737 F.3d 1093, 1099 (7th Cir. 2013). "[T]he scope of the complaint...