Cullom v. Brown
| Decision Date | 24 November 1998 |
| Docket Number | No. 96 C 1925.,96 C 1925. |
| Citation | 27 F.Supp.2d 1089 |
| Parties | Richard T. CULLOM, Plaintiff, v. Jesse BROWN, Secretary of Department of Veterans Affairs, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Armand L. Andry, Oak Park, IL, for Plaintiff.
Tony J. Masciopinto, Joseph M. Ferguson, Assistant United States Attorneys, Chicago, IL, for Defendants.
Honesty is the best policy. Honesty is the required policy. This is a case in which Defendant argues that the employee evaluations it prepared were not honest. This is a case in which Defendant readily admits that it did not follow its own written policies. This is a case in which the Defendant must live with the consequences of its actions.
The Court conducted a three-day bench trial on October 20-22, 1998, to decide whether the plaintiff, Richard T. Cullom ("Plaintiff"), was denied a promotion by the Department of Veteran Affairs, Hines V.A. Hospital ("Defendant" or "VA") in retaliation for his having previously filed Equal Employment Opportunity ("EEO") complaints against the Defendant.1 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. The answer to both questions is yes. The irony is that this conduct was taking place in Defendant's personnel department, which is responsible for properly implementing employment practices and which blatantly disregarded its own rules and procedures in its dealings with Plaintiff.
The Court has carefully considered the testimony of the seven witnesses who testified, the numerous exhibits introduced into evidence, the written submissions from the parties, and the thoughtful closing arguments of counsel. The following constitute the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Plaintiff is a 55-year-old African-American male who grew up in Detroit, Michigan. Plaintiff served as a paratrooper and was honorably discharged from the Army in 1964, at which time he began work as a laborer for Chrysler Corporation. Plaintiff held a variety of jobs at different companies in Detroit between 1966 and 1973. During that time he attended Detroit Business Institute where he received a certificate of computer training. After moving to Chicago in 1973, Plaintiff worked in a glass business for several years and then attended junior college. In 1978 he went to work as an EEO specialist for the Department of the Army. He later earned a bachelor's degree. In approximately 1987, Plaintiff obtained a lateral transfer to the Department of the Navy as a classification specialist where he was eventually promoted to the GS-11 grade. During his tenure at the Navy, he was rated as "Fully Successful" at both the GS-9 and GS-11 levels.
Plaintiff has endured a rocky employment history with the VA. He began employment with the VA at Hines Medical Center in September, 1990, as a GS-9 staffing specialist, on a temporary appointment. (Def.'s Ex. 5.) His immediate supervisor, an African-American female, concluded that his work was unacceptable and terminated Plaintiff effective March 29, 1991. (Def.'s Ex. 7.) Plaintiff filed an EEO complaint seeking reinstatement alleging that he had been discriminated against on the basis of his sex. During the year and a half the EEO complaint was pending, Plaintiff worked for Cook County as a job analyst.
Plaintiff's EEO complaint was eventually settled. Under the terms of the settlement agreement, Plaintiff was reinstated as a full-time GS-9 personnel staffing specialist effective October 18, 1992 although he was under probationary status for the first 180 days. (Def.'s Ex. 12.) The agreement set forth written performance standards for Plaintiff and expunged from the personnel files any reference to his termination.
Plaintiff's position after reinstatement had the promotion potential to GS-11 following one year of successful service as a GS-9. (Def.'s Ex. 19.) This was a non-competitive career ladder position, meaning that an increase in grade level was not dependent upon a competitive process where he would be evaluated against other people bidding for the position. Plaintiff's responsibilities included GS-11 level work, some of which he performed adequately.
Dean Lapcewich ("Lapcewich") supervised Plaintiff. Lapcewich refused to explain to Plaintiff the steps necessary for promotion to GS-11. Throughout the course of his supervision of Plaintiff, Lapcewich expressed displeasure with the quality of Plaintiff's work and periodically returned Plaintiff's work with its deficiencies highlighted. Plaintiff also requested a series of training opportunities to assist him in his new position and, as a result, Lapcewich put together a comprehensive training program for Plaintiff and authorized him to attend training courses. (Def.'s Ex. 21-24.)
Plaintiff's first performance review under Lapcewich covered the period of October 18, 1992 through March 31, 1993. This review required the signature of the employee's direct supervisor, Lapcewich, and the supervisor's boss, Peter Hennigan ("Hennigan"), the Assistant Personnel Officer. Plaintiff was given a rating of fully successful on a scale of 1) Outstanding, 2) Highly Successful, 3) Fully Successful, 4) Minimally Successful, and 5) Unacceptable. (Def.'s Ex. 29.) An employee must achieve at least a rating of fully successful to be eligible for promotion. According to Lapcewich, he had proposed a rating of minimally successful, but Hennigan, who did not testify, overruled him. Lapcewich testified that Hennigan insisted on giving Plaintiff a fully successful rating in order to avoid a future EEO proceeding with Plaintiff. Lapcewich prepared a narrative discussing Plaintiff's performance in four areas and in each area assigned a fully successful level to Plaintiff's work. (Def.'s Ex. 29.) Contrary to the written rating, Lapcewich testified that Plaintiff made numerous errors in his work, failed to demonstrate competence, and was not performing at a level which would justify a promotion to GS-11. Lapcewich did not inform Plaintiff of his personal evaluation of Plaintiff as minimally successful rather than fully successful. As a result, Plaintiff believed that he had earned a fully successful rating. On August 23, 1993, Lapcewich met with Plaintiff to discuss performance standards, however, Plaintiff refused to sign for the standards. (Pl.'s Ex. 20.)
In the summer of 1993, Plaintiff met with an EEO counselor and asserted that he was the victim of reprisal for having previously filed a complaint in that he had not been promoted to a GS-11. (Def.'s Ex. 31.) The EEO counselor conducted an investigation, and interviewed Lapcewich, Hennigan and Marvin Servais ("Servais"), Chief of Human Resources Management Service. In an interview with the EEO counselor, Lapcewich stated that Plaintiff's performance was fully successful at the GS-9 level. (Def.'s Ex. 33.) The EEO counselor was unable to settle the complaint. In September, 1993, Plaintiff filed his second EEO complaint alleging reprisal and discrimination on the part of Lapcewich, Servais and Hennigan for failing to promote him to GS-11. (Def.'s Ex. 34.) This irritated Lapcewich, who was already unhappy because his supervisors were forcing him to rate Plaintiff as fully successful.
In December, 1993, Plaintiff and Lapcewich met for the purpose of a progress review of Plaintiff's work. Plaintiff was given a progress review rating of "fully successful or better." (Def.'s Ex. 38.) Lapcewich testified that Hennigan and Servais directed him to provide such a rating despite his personal observations that Plaintiff was making too many errors. During the meeting, Plaintiff again asked when he was going to be promoted. (Def.'s Ex. 39.) The meeting deteriorated and Plaintiff left Lapcewich's office prior to the meeting's conclusion. At no time did Lapcewich ever communicate to Plaintiff orally or in writing that the rating did not represent Lapcewich's true evaluation of Plaintiff's work, nor did Lapcewich place Plaintiff on a performance improvement program, which was required in the event of a rating of minimally successful.
In the Spring of 1994, Plaintiff's second EEO complaint was settled by means of a settlement agreement dated April 1, 1994. (Def.'s Ex. 42.) The settlement called for Plaintiff to be detailed to the North Chicago VA Medical Center for nine months of training as a personnel intern. The settlement made no mention of a possible promotion to GS-11.
Plaintiff participated in the training program in North Chicago from April 25, 1994 through April 2, 1995, when he returned to Hines. While at the training program, Plaintiff was still under the technical supervision of Lapcewich, who had the responsibility for making promotion decisions affecting Plaintiff. Robert Grant was the training officer at North Chicago who supervised the training but Grant had no authority to promote Plaintiff. At no time during this training period did Lapcewich ever communicate with Grant regarding Plaintiff's progress. Because Lapcewich remained Plaintiff's supervisor through April 1, 1995, Plaintiff could not be promoted without Lapcewich's recommendation.
On May 20, 1994, approximately one month after Plaintiff began his training program, Lapcewich prepared a performance appraisal for the period April 1, 1993 through March 31, 1994. Pla...
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...for a promotion. First, it is well established that a denial of a promotion is an adverse employment action. Cullom v. Brown, 27 F.Supp.2d 1089, 1095 (N.D.Ill. 1998) (citing Williams v. Pharmacia, 137 F.3d 944, 948 (7th Cir.1998)). Second, although tenuous, Togba has included sufficient all......
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...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 V......