Weiss v. United States, Civ. A. No. 84-0129-A.

• Decision Date: 18 October 1984
• Docket Number: Civ. A. No. 84-0129-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Wallace H. WEISS, Plaintiff, v. UNITED STATES of America, et al., Defendants.

595 F. Supp. 1050

Wallace H. WEISS, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 84-0129-A.

United States District Court, E.D. Virginia, Alexandria Division.

October 18, 1984.

COPYRIGHT MATERIAL OMITTED

Teena D. Grodner, Alexandria, Va., for plaintiff.

Paula P. Potoczak, Asst. U.S. Atty., Alexandria, Va., for defendants.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

I. Findings of Fact

1. The plaintiff, Wallace H. Weiss, is Jewish. Testimony of plaintiff.

2. The plaintiff is a resident of Alexandria, Virginia. Testimony of plaintiff.

3. Weiss was employed by the Defense Logistics Agency as a GS-13 Operations Research Analyst from February 17, 1980 until August 4, 1983. Testimony of plaintiff.

4. Weiss was fully qualified for his position when he was hired.

5. Plaintiff's supervisor, Dennis L. Zimmerman, is not Jewish and did not know

that the plaintiff was Jewish when he hired him; Mr. Zimmerman became aware of Weiss's religion only after Weiss told him. Weiss was the only Jewish employee in the office. Testimony of Dennis Zimmerman.

6. Neither of Weiss's second-line supervisors, Mr. Clark and Colonel Sims, is Jewish. Testimony of Mr. Clark and Colonel Sims.

7. From 1980 until March 1982, plaintiff Weiss was the constant target of a variety of highly offensive religious slurs and taunts made by a co-worker, Michael Pouy, and by plaintiff's supervisor, Dennis Zimmerman. These slurs included such taunts as "resident Jew," "Jew faggot," "rich Jew," "Christ killer," "nail him to the cross," and "you killed Christ, Wally, so you'll have to hang from the cross." Testimony of plaintiff, Sandra Jones, and Joan Harris.

8. Mr. Zimmerman made no attempt to stop the repeated anti-Semitic remarks that were directed at the plaintiff by Mr. Pouy. Indeed, Mr. Zimmerman himself repeatedly directed anti-Semitic remarks at Weiss. Testimony of plaintiff, Sandra Jones, and Joan Harris.

9. Prior to March 26, 1982, Weiss never repeated or complained about the anti-Semitic remarks to anyone above Mr. Zimmerman. However, the remarks upset Weiss greatly, and caused him to develop stress and anxiety-related disorders. Testimony of plaintiff.

10. Prior to March 26, 1982, and despite being subjected to his co-worker's and supervisor's slurs regarding his religion, Weiss received high performance evaluations and generally performed his duties to his supervisors' satisfaction; in February 1982 his supervisor approved Weiss's within-grade salary increase. Prior to this time no performance warnings or actions had been taken against plaintiff. Plaintiff's Exhibits 14, 17 and 19.

11. On March 26, 1982, supervisor Zimmerman held a branch meeting to discuss office reorganization. During that meeting, in front of the branch staff, Pouy called Weiss "the laziest motherfucker in the office." Testimony of plaintiff, Dennis Zimmerman, and Michael Pouy.

12. In response to Pouy's outburst at the meeting, Zimmerman took the following steps:

(a) Zimmerman immediately asked Pouy to apologize to the plaintiff, and Mr. Pouy did apologize for his language. Testimony of plaintiff and Michael Pouy.

(b) At the branch meeting, Zimmerman acknowledged that he did not share Pouy's opinion of the plaintiff. Testimony of Dennis Zimmerman.

(c) Mr. Zimmerman met privately with Mr. Pouy, verbally admonished him for his behavior, recommended that he take a course in stress management, and asked him to apologize to Weiss. Testimony of Dennis Zimmerman and Michael Pouy.

(d) Mr. Zimmerman held a meeting with Mr. Weiss advising him of his actions with regard to Pouy's outburst. Testimony of plaintiff and Dennis Zimmerman.

13. Pouy wrote Weiss a written note of apology. Testimony of plaintiff and Michael Pouy.

14. Weiss was already upset and humiliated by Pouy's and Zimmerman's earlier religious slurs, and the March 26 confrontation, while clearly not religious in nature, was the traumatizing event which triggered an obsessive, and perhaps vindictive reaction toward Pouy and Zimmerman.

15. Weiss felt that a work environment which permitted religious slurs was responsible for the crude epithet expressed by Pouy on March 26, 1982.

16. Weiss's obsessive reaction to the slurs of Mr. Pouy and Mr. Zimmerman was exacerbated by his awareness of the persecution suffered by Jews throughout history and especially during World War II. Testimony of Lawrence Sank.

17. On March 26, 1982, and during the week thereafter, Weiss spoke to Mr. Zimmerman and demanded an end to the anti-Semitic remarks. The plaintiff also complained to Mr. George Clark, Zimmerman's supervisor, about the anti-Semitic remarks and Pouy's outburst; moreover, he expressed his strong dissatisfaction with the disciplinary action taken against Mr. Pouy. Despite plaintiff's request, Clark refused to suspend Pouy, refused to fire Zimmerman for his failure to discipline Pouy, and supported Zimmerman's disciplinary action against Mr. Pouy. Testimony of plaintiff.

18. Mr. Clark held a staff meeting in April 1982 admonishing all personnel to use more appropriate language around the office since some individuals could be offended by improper language. Testimony of Mr. Clark.

19. Zimmerman knew that the plaintiff had reported him to Mr. Clark, because Clark spoke to Zimmerman about the matter on March 29, 1982. Plaintiff's Exhibits 8 and 9.

20. Mr. Zimmerman was unhappy with Weiss's vehement criticism of the disciplinary action taken against Mr. Pouy. While Zimmerman stopped directing religious slurs toward the plaintiff after March 26, 1982, Mr. Zimmerman did begin to retaliate against Weiss in the following manner:

(a) by criticizing and demeaning Weiss for his work performance, especially in front of other workers. Testimony of plaintiff and Sandra Jones; Plaintiff's Exhibit 5.

(b) on April 1, 1982, by revoking prior authorization for Weiss to present a paper at a symposium. Plaintiff's Exhibits 15, 16.

(c) beginning March 30, 1982, to keep Memoranda for the Record ("MFR") to build a record against Weiss. Plaintiff's Exhibits 6, 7.

(d) by issuing a performance appraisal on April 30, 1982 for Weiss in which he rated Weiss substantially lower than he had in his prior appraisal of April 30, 1981. Plaintiff's Exhibits 14, 18.

(e) by giving Weiss inappropriate and unreasonably difficult work assignments, by blaming Weiss for delays in projects which were largely beyond plaintiff's control, and by failing to give Weiss the necessary time and assistance to perform many assignments. Testimony of plaintiff, William Hargrave, Paul Wright, and Margaret Jones.

(f) by glaring at Weiss and generally treating him with a hostile attitude. Testimony of plaintiff.

21. Plaintiff initiated EEO counseling on May 18, 1982, naming Mr. Zimmerman as an Alleged Discriminating Official. Plaintiff's Exhibit 24.

22. On May 25, 1982 Zimmerman was questioned for several hours by plaintiff's EEO counselor; after leaving that session, Zimmerman threatened to sue plaintiff for what he said and what he wrote in his EEO complaint. Plaintiff's Exhibit 24, testimony of plaintiff.

23. On May 27, 1982 Zimmerman requested an investigation of plaintiff for alleged contract improprieties; permission was denied because the allegations were found to be groundless. Plaintiff's Exhibits 25 and 26.

24. No disciplinary action had ever been taken or proposed against Weiss at DLA prior to May 1982. Plaintiff's Exhibit 25.

25. In May 1982 Weiss complained to Mr. Clark that Zimmerman was retaliating for his initiation of EEO proceedings, that Mr. Zimmerman was calling him demeaning names such as "crazy Wally," and that Zimmerman's actions were giving him headaches and stomach pains. Plaintiff's Exhibit 100.

26. Still dissatisfied with the discipline meted out to Pouy, obsessed with anger toward Pouy and Zimmerman for their pre-March 1982, verbal, religious-based abuse, and angry at Zimmerman's retaliatory reaction to his complaints, Weiss filed an EEO complaint based on age and religious discrimination on June 17, 1982, naming Zimmerman as the discriminating official. Plaintiff's Exhibit 21.

27. Weiss filed further EEO complaints on November 5, 1982; December 13, 1982; December 27, 1982; January 26, 1982; May 23, 1983 and June 13, 1983. Plaintiff's Exhibits 21 and 22.

28. Mr. Zimmerman brought or proposed bringing misconduct-based disciplinary actions against Weiss on May 27, 1982; February 4, 1983; February 17, 1983; April 8, 1983 (two actions). A grievance examiner recommended that Zimmerman's reprimand of February 4 be rescinded. Plaintiff's Exhibits 17, 23, and 35.

29. Mr. Zimmerman held performance counselings with or brought proposed performance-based actions against Weiss on July 19, 1982; September 17, 1982; December 17, 1982; January 17, 1983; February 1, 1983; February 14, 1983; March 3, 1983; March 10, 1983; May 5, 1983; May 27, 1983; May 31, 1983 and July 8, 1983. Plaintiff's Exhibits 17 and 23.

30. In January 1983, Weiss met with his third line supervisor, Colonel McFarland. Colonel McFarland encouraged Weiss to put the past behind and to concentrate on his work. Weiss, however, simply reiterated his frustration with Mr. Zimmerman's harassment and his intention to "get" Pouy and Zimmerman for what they had done to him. Testimony of Colonel McFarlane.

31. On July 8, 1983, Zimmerman proposed plaintiff's removal. Plaintiff's Exhibit 110.

32. Relying on information in the proposed removal, which was written by Mr. Zimmerman, Colonel McFarlane decide to remove Weiss effective August 12, 1983. Plaintiff's Exhibits 107, 109, 110, and Defendant's Exhibit 1.

33. Agency officials became aware of Zimmerman's anti-Semitic verbal abuse of plaintiff, and of Zimmerman's retaliation against the plaintiff, when the plaintiff spoke out against these attacks publicly, and when plaintiff initiated EEO proceedings. Plaintiff's Exhibit 21.

34. The agency did not discipline Mr. Zimmerman nor did t...