Cullom v. Brown

• Decision Date: 20 April 2000
• Docket Number: No. 99-1178,99-1178
• Parties: (7th Cir. 2000) Richard CULLOM, Plaintiff-Appellee, v. Jesse BROWN, Secretary, Department of Veterans Affairs, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1035

209 F.3d 1035 (7th Cir. 2000)

Richard CULLOM, Plaintiff-Appellee, v. Jesse BROWN, Secretary, Department of Veterans Affairs, Defendant-Appellant.

No. 99-1178

In the United States Court of Appeals For the Seventh Circuit

Argued September 29, 1999

Decided April 20, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 1925--Morton Denlow, Magistrate Judge. [Copyrighted Material Omitted] Before Harlington Wood, Jr., Manion, and Evans, Circuit Judges.

Manion, Circuit Judge.

After what appeared to be a successful period of employment as a civilian Navy employee, Richard Cullom accepted a position with the Hines VA Hospital as a staffing specialist. But he soon became dissatisfied with his employment situation and over a period of time he filed several EEO complaints against the Veterans Administration (VA) for discrimination. In the hope of avoiding future complaints, superiors at the hospital ordered Cullom's immediate supervisor to overrate him on his performance evaluations. This did not work. Cullom ultimately sued the VA for race and employment discrimination, this time claiming that by overrating him, it made him ineligible for a remedial program that supposedly would have accelerated his advancement to a higher grade. The district court noted that "the case presents the novel question of whether Plaintiff was retaliated against by receiving a favorable work evaluation while being refused promotion. Alternatively, the case raises the question of whether Plaintiff was retaliated against by reason of Defendant's failure to provide Plaintiff with an honest evaluation and the remedial benefits to which he was then entitled." Cullom v. Brown, 27 F. Supp.2d 1089, 1090-91 (N.D. Ill. 1998). The district court concluded that the unwarranted favorable ratings constituted retaliation in violation of Title VII, and awarded Cullom $1500 in damages plus attorney's fees and costs. We conclude that giving Cullom a rating higher than he deserved may have been a poor and even dishonest policy, but it was not unlawful retaliation. We therefore reverse.

I. Facts

Richard Cullom is a 55-year-old black man and an honorably discharged veteran. Prior to coming to the VA, he had jobs in both the public and private sectors (including one stint as an EEO specialist for the United States Army). Immediately before joining the VA, Cullom worked as a civilian for the Navy, where he was eventually promoted to the GS-11 level. While at the Navy, Cullom was rated "fully successful" at both the GS-9 and GS-11 levels.¹

As the district court noted, Cullom has had a "rocky employment history with the VA." Id. at 1091. It hired him in September 1990 as a GS-9 staffing specialist on a temporary appointment (not to exceed one year). Six months into this assignment, his immediate supervisor, a black female, thought Cullom's work was unacceptable and fired him effective March 21, 1991. Cullom filed an EEO complaint (his first), alleging that his supervisor had discriminated against him on the basis of his sex by depriving him of the proper training. The VA settled his complaint in October 1992. Under the settlement, the VA reinstated Cullom as a full-time GS-9 personnel staffing specialist, subject to a six-month probationary period. Significantly, the settlement "set forth written performance standards" for him. Id.

Although Cullom's GS-9 position, even with his probationary status, had the potential for promotion to GS-11, Cullom did not perform well. His immediate supervisor, Dean Lapcewich, was frequently displeased with his work. When Cullom requested a series of training opportunities to assist him in his new position, Lapcewich established a comprehensive training program for Cullom and authorized him to attend training courses. He also assigned Cullom a senior staffing specialist who could mentor him and provide him with on-the-job training. But despite these efforts, Cullom continued to perform poorly at the GS-9 level.

The VA has five ratings for employee performance: (1) outstanding; (2) highly successful; (3) fully successful; (4) minimally successful; and (5) unacceptable. Under the VA's Merit Promotion Plan (Merit Plan), promotion is not guaranteed. An employee must achieve a rating of at least "fully successful" to be eligible for promotion and must be in his present position for at least one year. But simply being eligible does not make advancement a sure thing. The employee must also demonstrate the ability to perform the duties of the next level.²

Lapcewich wanted to rate Cullom "minimally successful" because he felt his work contained significant and numerous errors, even after his substantial formal and informal training. Because of Cullom's probationary status, a "minimally successful" rating would most likely have resulted in his termination. At a minimum, it would have caused Cullom to be placed in a Performance Improvement Program, or "PIP." This is, in essence, a remedial program for employees who are not performing up to standards (those who receive a performance rating below "fully successful"). It affords sub-par employees the opportunity to improve or develop skills. But this "opportunity" is double-edged. Placement in a PIP also places the employee on probation, subject to termination. At oral argument, the VA pointed out that for many employees it is the last stop before dismissal.

Fearing another EEO complaint if Cullom were to receive the lower rating, Lapcewich's supervisor- -who was required to sign off on employee evaluations--rejected Lapcewich's proposed "minimally successful" recommendation. He instead directed Lapcewich to overrate Cullom as "fully successful." Lapcewich rated Cullom accordingly and did not advise him of the "minimally successful" level of performance he was really exhibiting at the GS-9 level. Lapcewich did, however, meet with Cullom to discuss performance standards, although Cullom refused to sign a form indicating that he had received the standards.

The strategy of appeasement, if it can be called a strategy, did not work. In September 1993, Cullom filed a second EEO complaint. He alleged that Lapcewich and other VA managers had retaliated against him for his prior EEO complaint by not promoting him to the level that he had held in the Navy, GS-11. He alleged Lapcewich knew about his Navy background, yet "remained completely driven to make me compete again for the grade I previously had."

In December, while Cullom's second EEO complaint was pending, Lapcewich gave Cullom his mid-year performance review. As before, Lapcewich thought Cullom was not performing at the GS-9 level. But again, aware of Cullom's complaint, higher supervisors directed Lapcewich to overrate him as "fully successful." Lapcewich did so, rather than place Cullom in a PIP on probationary status, as a lower rating would have required. Again, Lapcewich did not inform Cullom of his true level of performance. But he did tell him that he was making too many mistakes, that his work required too much review and that he took too long on a relatively minor project.

In April 1994, the VA settled Cullom's second complaint by agreeing to place him in a nine- month, off-site program designed to train "personnel interns" who were usually GS-7s. Placing Cullom in this program was the idea of Cullom's EEO investigator who concluded, after reviewing Cullom's personnel file, that the program would provide Cullom with basic personnel skills (skills Cullom had contended that he did not possess due to inadequate training). The settlement, however, did not mention the possibility of promotion to GS-11.

After the off-site training got underway, Lapcewich evaluated Cullom for the most recent rating period (which had ended shortly before Cullom's departure). He concluded that Cullom still had not been performing at the GS-9 level. Yet, for at least the third time, Lapcewich's superiors rejected his proposed rating of "minimally successful" and directed him to rate Cullom "fully successful." The undisputed motive for overrating Cullom was to placate him so he would not file another EEO complaint.

At the end of the off-site training in February 1995, the training supervisor concluded that Cullom had "successfully completed" the intern program. Although this supervisor thought that Cullom exhibited a poor attitude and that his work was worse than that of his (GS-7) training partner, he nevertheless stated that Cullom would be "an excellent candidate for placement" at a VA facility. In April, Cullom returned to the Hines facility.

In spite of efforts that could generously be described as trying to give Cullom the benefit of the doubt (for example, the VA once again assigned him a mentor), Cullom filed a third EEO complaint. He demanded performance standards and a retroactive GS-11 promotion. When Cullom and the VA were unable to resolve the complaint, Cullom filed this lawsuit, alleging he was denied a GS-11 promotion because of his race and in retaliation for his prior EEO complaints.

While the lawsuit was pending, Cullom continued to work as a GS-9, and his supervisors continued to complain about his performance. His new supervisor, Claire Hajduk, did not believe that Cullom had demonstrated the ability to perform GS-11 work, as the VA's Merit Plan requires for promotion. In November 1996, Hajduk nevertheless convinced her supervisor to sign off on Cullom's promotion by stating that she believed it might finally "jump-start" him to perform better and because she would then be better able to evaluate whether he was really unable to do GS-11 work. Again, when rating time came around, Hajduk (like Lapcewich before her) did not want to rate Cullom "fully successful." But because her supervisor would not allow a lower rating, Hajduk rated Cullom's performance as "fully successful" at his new grade of GS-11.

Finally, in November 1997, Blanche Phillips, a...