Vislisel v. Turnage
| Decision Date | 24 July 1990 |
| Docket Number | No. C 86-0005.,C 86-0005. |
| Citation | 759 F. Supp. 1366 |
| Parties | Eugene VISLISEL, Plaintiff, v. Thomas K. TURNAGE, Administrator of Veterans' Affairs, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Eugene Vislisel, pro se.
Paul C. Lillios, Asst. U.S. Atty., N.D. Iowa, and Earl Parsons, Sp. Asst. U.S. Atty., Dept. of Veterans Affairs, Des Moines, Iowa, for defendant.
FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER
This case came on for trial before the court sitting without a jury on May 12 and July 14, 1989, when the plaintiff appeared pro se, and the defendant appeared by Paul C. Lillios, Esq., Assistant United States Attorney. Testimony was taken, evidence was received, and the arguments of the parties were made and heard. The court, having now had the opportunity to review the testimony and evidence and to consider the arguments of the parties, makes the following Findings of Fact, determines Conclusions of Law, and enters the following Order.
1. This is a claim brought by the plaintiff pursuant to 42 U.S.C. ß 2000e-3(a), alleging that his civil rights were violated by hiring officials at the Veterans' Administration Medical Center (VAMC) at Iowa City, Iowa. Specifically, the plaintiff claims that the defendant's appointing official, Jack G. Adams, retaliated against plaintiff for the filing of prior discrimination complaints against former employers and the Veterans' Administration (VA) by requesting plaintiff submit to a complete physical examination (and a psychiatric evaluation, if one was indicated as a result of the physical examination) as a prerequisite to further consideration of plaintiff's application for employment with the VA when no such examinations were required of other applicants for the clerk-typist position plaintiff sought. Defendant denies Mr. Adams had any retaliatory motive and asserts that Mr. Adams' request for a pre-employment physical examination was well-founded on legitimate non-retaliatory reasons.
2. From 1959 to 1962, the plaintiff was in and out of mental hospitals in Iowa, Minnesota, and Wisconsin. On May 31, 1967, S.M. Korson, M.D., Superintendent of Iowa's Mental Health Institute located at Independence, Iowa, signed and issued a certificate of discharge discharging the plaintiff from further mental health treatment as "cured." Plaintiff's exhibit 2. Plaintiff contends he is thus a member of a protected group of persons whom he describes generally as former mentally ill (but now cured) persons who, although they are not mentally impaired, remain mentally handicapped for employment purposes because of their prior mental illness. Plaintiff recorded his certificate of discharge as "cured" with the Recorder of Linn County, Iowa, so it is a matter of public record.
3. Plaintiff sought to be employed by the federal government, and he took the necessary examinations in 1977. In April, 1981, he took the rather unusual step of insisting that the Office of Personnel Management (OPM) in Kansas City include in his personnel file his certificate of discharge as "cured" from the Mental Health Institute. Plaintiff objected to OPM that there was no place on an OPM form for him to volunteer the information that he is a mentally handicapped person. See 29 U.S.C. ß 706(8)(B) (1989) (). Plaintiff apparently considers himself to be in category (ii), since he testimonially denies having any present mental impairment. Plaintiff testified he wanted all federal agencies and the VA to know of his allegedly mentally handicapped status. Plaintiff is a veteran and was awarded a veteran's five-point preference in his OPM ratings.
4. He received no letters of inquiry concerning his availability for work until 1981, when the VAMC at Iowa City called him about a part-time clerk-typist position which was available. Plaintiff said he interviewed for the job but decided it would not pay enough to justify the drive from Cedar Rapids to Iowa City. Although the record is far from clear, it appears that the plaintiff's application was considered by the VAMC for a GS-3 clerk-typist position prior to August 18, 1981. To the best of his recollection, plaintiff was not interviewed for the job.
On August 18, 1981, the VAMC sent plaintiff a routine letter, defendant's exhibit 01, informing him of his non-selection. The very next day, without doing any investigation of any kind, the plaintiff sent a letter complaining of discrimination because of his non-selection. Plaintiff alleged in his letter that he was well-qualified for the position and claimed that the VAMC's failure to interview him and to hire him was based on "discrimination because of mental and physical handicap, sex and age." Defendant's exhibit P1. On cross examination, plaintiff admitted that he did not know who had been hired for the position, the gender of the successful applicant, whether or not the person was handicapped, or that person's age. Plaintiff testified he assumed there was a possibility he had been discriminated against and that he had used a "shotgun" approach in making his complaint.
Later in August 1981, the VAMC had an opening for a GS-2 file clerk. The plaintiff's name appeared on a list of eligible applicants furnished to the VAMC by OPM. The opening for the file clerk was in the medical records department where the job duties included pulling charts, answering the phone, signing out and keeping track of the location of medical records, and included personal contact with others. The Director of Medical Records, Gail Boxrucker Harrod, called the plaintiff to invite him for an interview. The telephone conversation began on a friendly tone. When Mrs. Harrod mentioned that there was also a GS-æ position open in the Admissions Department that the plaintiff might also be interested in, the plaintiff became instantly hostile and accused Mrs. Harrod of discriminating against him and of trying to find a reason not to interview him. Mrs. Harrod assured the plaintiff that she was not discriminating against him and that she did want to interview him.
An interview was arranged for on or about August 24, 1981. The plaintiff arrived for the interview, and Mrs. Harrod began interviewing him by using a set of routine questions she had prepared for use with all of the applicants. Plaintiff began telling Mrs. Harrod about the various rezoning cases and legal proceedings he was involved in and showed her numerous legal-looking documents. Fearing that she had lost control of the interview, Mrs. Harrod tried to refocus on the file clerk's opening. The plaintiff became very upset with her and accused her of discrimination against him and in not wanting to hire 50-year-old men. Plaintiff's sudden mood swing and change of behavior scared Mrs. Harrod, she became concerned, and she attempted to calm plaintiff down. She took him on a tour of the file room where the person to be hired would be working. Plaintiff criticized Mrs. Harrod's abilities as a supervisor. When he saw a sign on a wall saying in substance, "We, the unwilling, led by the unqualified, have been doing so much for so long with so little ...," plaintiff demanded that Mrs. Harrod remove it. She declined. Plaintiff remained hypercritical, rambled in his conversation, and remained hostile. It was not a positive interview, and Mrs. Harrod, who holds a college degree in medical records science and who at the time was supervising 13-14 employees, determined that plaintiff would not be an effective medical records file clerk.
In her written report to the Personnel Office after the interview, defendant's exhibit U1, she noted that Mr. Vislisel was not acceptable because he "was belligerent and hostile and would have been difficult to supervise." At the time of her contacts with the plaintiff, Mrs. Harrod had no knowledge of or information available to her concerning the plaintiff's prior mental health problems or his prior proclivity for filing complaints of discrimination against former employers or potential employers, or that he had made such a complaint against the VAMC about one week before.
5. The plaintiff's letter of August 19, 1981 containing his discrimination complaint was directed to Charles Wilhite, one of the VAMC's duly appointed Equal Employment Opportunity (EEO) Counselors. Mr. Wilhite, a recreational therapy specialist, had been recommended for this additional duty by the employees' union. An EEO counselor's job is to listen to discrimination complaints, do an investigation, and attempt to resolve the complaint on an informal basis. Mr. Wilhite had previously processed several dozen complaints and had been an EEO counselor for six to seven years. Mr. Wilhite called the plaintiff on August 26, 1981, and had an extended discussion with him. The plaintiff had a number of complaints — ranging from zero lot line zoning in Cedar Rapids to the objectionable poster he had seen at the hospital which plaintiff said indicated to him that "people weren't doing their jobs." Mr. Wilhite made an appointment to see the plaintiff at 3 p.m. that same day in Mr. Wilhite's office. The plaintiff failed to appear. The next day, August 27, 1981, Mr. Wilhite called the plaintiff, and plaintiff insisted on being seen that day, claiming to have understood his appointment to be for that day. Mr. Wilhite had other activities planned for his patients and told plaintiff he could only allocate 15 minutes to plaintiff. Plaintiff arrived about mid-afternoon, just before Mr. Wilhite was leaving for an outing with patients away from the hospital. The meeting was not beneficial, with plaintiff...
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Vislisel v. Turnage, 90-2653
...the district court 1 granting summary judgment on his Title VII claim in favor of Thomas K. Turnage, Administrator of Veterans Affairs. 759 F.Supp. 1366. We affirm. The district court held that the VAMC had not retaliated against Vislisel for filing a discrimination complaint against the VA......