Rasimas v. Michigan Dept. of Mental Health

• Decision Date: 28 July 1983
• Docket Number: 80-1736,Nos. 80-1735,s. 80-1735
• Citation: 714 F.2d 614
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 688, 32 Empl. Prac. Dec. P 33,758 David L. RASIMAS, Plaintiff-Appellant, Cross-Appellee, v. MICHIGAN DEPARTMENT OF MENTAL HEALTH, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 614

714 F.2d 614

32 Fair Empl.Prac.Cas. (BNA) 688,

32 Empl. Prac. Dec. P 33,758

David L. RASIMAS, Plaintiff-Appellant, Cross-Appellee, v. MICHIGAN DEPARTMENT OF MENTAL HEALTH, Defendant-Appellee,

Cross-Appellant.

Nos. 80-1735, 80-1736.

United States Court of Appeals,

Sixth Circuit.

Argued Aug. 5, 1982.

Decided July 28, 1983.

David M. Gubow, Goodenough, Smith & May, Bloomfield Hills, Mich., Ralph Sirlin (argued), Partovich & Sirlin, Southfield, Mich., for plaintiff-appellant, cross-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George L. McCargar, Jr., Craig Atchinson (argued), Asst. Attys. Gen., Lansing, Mich., for defendant-appellee, cross-appellant.

Before KEITH and JONES, Circuit Judges, and HOFFMAN, ^* Senior District Judge.

KEITH, Circuit Judge.

In this sex discrimination action David Rasimas alleged that the Michigan Department of Mental Health terminated him from his supervisory position because of his sex. The district court agreed, but found that he had not timely filed this action with the Equal Employment Opportunity Commission ("EEOC"). The court also determined that his refusal to interview for a non-supervisory position with the Michigan Department of Mental Health constituted a failure to mitigate damages. We affirm the sex discrimination finding, but reverse the timeliness and mitigation of damages determinations.

I.

On August 13, 1972, defendant-appellee Michigan Department of Mental Health ("MDMH") hired Rasimas as a Recreation Activities Training Aide 05 ("Recreation Aide") at their Northville Residential Training Center ("Northville"). ¹ Northville supervisory personnel later transferred Rasimas from recreation. He became a speech and language classroom instructor.

In the spring of 1975, Rasimas was recommended for promotion by Janet Nagy, Director of Nursing Programs, and Caron Bender Swietec, ² the supervising Mental Retardation Program Supervisor 10. Nagy, Swietec, and Maynard McDonald, the personnel officer at the Macomb Oakland Regional Center ("MORC"), were aware that Rasimas had no prior supervisory experience and that there were personnel problems at Hoover Nursing Home. ³ Nevertheless, each was confident that Rasimas could resolve the problems and gain the necessary supervisory skills from management seminars and on-the-job training. On May 18, 1975, McDonald promoted Rasimas to Mental Retardation Program Supervisor 10 ("Supervisor 10") at Hoover Nursing Home.

At an initial orientation meeting, Swietec discussed the functions of a Supervisor 10. She told Rasimas that he was required to manage the therapeutic program which had been developed for the mentally and physically handicapped children at the home. Swietec also identified several personnel problems which required corrective action. These problems included excessive numbers of personal phone calls, neglect of proper working hours, and a failure to observe the proper channels for communicating with Nagy and MORC Director David Rosen.

During the initial period of Rasimas' tenure, Nagy was away on vacation. Swietec consequently, was forced to perform many of Nagy's functions as well as her own. Rasimas meanwhile attempted to fulfill the functions of his position. Following the orientation meeting, he prepared a memorandum addressing the personnel problems Swietec had identified. The memorandum was sent to staff members and posted in the staff office. Staff members read, initialed, and returned the memorandum. Some memorandum were, however, returned defaced with graffiti. ⁴

Swietec began receiving complaints concerning the "difficult" relationship between Rasimas and the staff as early as June 5, 1975. Deborah LaFrate, a recreation aide under Rasimas' supervision, disagreed with the memorandum which had been circulated. She believed that there had never been a problem with punctuality, scheduling, or excessive numbers of personal calls. Other staff members alleged that Rasimas was insensitive to their needs and interfered with the performance of their duties.

Rasimas, by contrast, maintained that the staff was hostile and uncooperative. ⁵ Swietec concurred in Rasimas' assessment, but continued to accept complaints from staff members who had bypassed Rasimas. In the days following June 5, she conferred with Rasimas and the disgruntled staff separately. Swietec did not, however, follow "standard procedure" and conduct joint meetings with Rasimas and his staff. Such meetings had been conducted when similar problems arose for plaintiff's female predecessor.

Nagy was also aware of the all female staff's hostility toward Rasimas. She eventually met with Rasimas on two or three occasions to offer advice. Nagy found Rasimas "receptive to her suggestions." Swietec had a similar reaction, but felt Rasimas' listening skills could be improved.

At one of the June meetings, Nagy told Rasimas, in Swietec's presence, "The girls are out to get you." Swietec agreed. She believed that the females on the Herbert Hoover staff were unaccustomed to close supervision, and would be likely to react negatively to anyone in plaintiff's position. In fact, as late as June 25, 1975, Swietec noted that "about half" of the staff's complaints against Rasimas were unwarranted. She believed the staff was attempting to use Rasimas as a "scapegoat."

Nagy, meanwhile, concluded that Rasimas had not been making sufficient progress and that a written evaluation was appropriate. In a memo dated July 1, 1975, Swietec critiqued Rasimas' performance. The counseling memo described Rasimas' supervisory weaknesses as follows: 1) the exercise of poor judgment in assuring the safety of resident patients; 2) ineffectively implementing supervisory directives to enforce rules applicable to his staff; and 3) failing to take notes and disseminate information acquired at a behavioral conference. Neither Nagy nor McDonald believed that the criticisms contained in the counseling memo of July 1, 1975, constituted grounds for terminating Plaintiff.

On Saturday, July 12, 1975, Rasimas and three staff members took four resident-patients of the Hoover Nursing Home on a pre-arranged trip to Belle Isle. Near the At Belle Isle, Rasimas directed a staff attendant to stay with the sick child while she lay on a blanket. The remainder of the party spent the next hour having a picnic lunch and touring the Belle Isle Children's Zoo. Just prior to returning, LaFrate observed that the sick child appeared weak and lethargic.

                mid-point of the trip, one of the patient-residents began to vomit.   LaFrate, a recreation aide on probationary status, stated the child's condition was characterized by trembling, vomiting, and blueness near the edges of the mouth. 6  Rasimas, the driver of the van, pulled into a nearby parking lot and examined the child.   He satisfied himself that the child had a normal pulse, was breathing well, and had stopped vomiting.   Rasimas concluded that the child was experiencing a non-serious bout of motion sickness.   LaFrate and another staff member disagreed and urged that medical attention be sought.   Rasimas determined that all the child needed was rest, which could be provided at Belle Isle without disrupting the outing for the other children
                

Rasimas directed a staff attendant to take the sick child to a nurse as soon as they arrived at the Hoover Nursing Home. A nurse examined the child, but deemed it unnecessary to call a doctor.

On Monday, July 14, 1975, a nurse at the Hoover Nursing Home approached Marilyn Whitmer, a recreation aide, and gave her a second-hand account of the Belle Isle trip. Whitmer immediately contacted Swietec and requested that she hold a meeting with the staff members who participated in the Belle Isle trip. Swietec directed staff members to submit written reports describing the trip. Swietec also contacted Nagy, who in turn contacted McDonald. McDonald discussed the trip with LaFrate, the recreation aide who had disagreed with Rasimas' decision to continue the trip.

Nagy did not personally investigate the allegations against Rasimas. Nevertheless, later that afternoon she and Swietec recommended that Rasimas be dismissed. McDonald accepted the recommendations, and summarily terminated Rasimas. At no time prior to, or during July 14, had Rasimas been consulted concerning the events of the Belle Isle trip. In fact, July 14 was Rasimas' day off. He did not learn of the reports against him until the day after the termination decision had been made.

On July 15, 1975, Rasimas met with McDonald and Swietec. He was informed of the reports against him and given the option to resign or be fired. He was, however, given a few hours to consider these options and make preparations to leave. Later, Rasimas resigned and signed an employee departure report with the annotation "signed under protest".

Rasimas began looking for other employment. A short time after the termination MDMH paid Rasimas for pension contributions, accumulated sick leave, and accumulated vacation leave. MDMH hired Lynn VanBundy, a female, to replace Rasimas.

On July 28, 1975, Rasimas filed a grievance with the Michigan Civil Service Commission. On August 7, 1975, a meeting was held pursuant to Step 3 of the Michigan Civil Service Commission grievance procedure. The dismissal was affirmed.

Rasimas appealed the decision to the Step 4 level. On October 16, 1975, a hearing was held before a hearing officer. Subsequently, the Michigan Civil Service Commission directed McDonald to list the factors which caused him to terminate Rasimas. In a letter dated October 22, McDonald identified the following four factors: 1) the failure to maintain good relationships with program staff and Hoover Nursing Home staff; 2) the failure to follow supervisory instructions; 3) the failure to provide adequate precautions for the health and safety of residents; and 4) the lack of adequate progress in acquiring supervisory skills. On November 21, 1975, an...