United States District Court, E.D. Wisconsin
JERRY L. LEWIS, Plaintiff,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, United States Department of Veterans Affairs, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 12) AND DISMISSING CASE
PEPPER United States District Judge
defendant reinstated the plaintiff to his former position
after the plaintiff prevailed on a 2009 EEO retaliation
claim. The plaintiff now alleges that, on his return to work,
his two supervisors and a co-worker “took calculated
actions against him” because he had named them as the
officials responsible for his unlawful termination in 2009.
Dkt. No. 16 at 2. While the plaintiff describes their actions
as a “vicious regime of retaliation, ”
id., the defendant asserts that the plaintiff cannot
show that he suffered a materially adverse employment action.
The plaintiff transferred to a different department in April
2015, and remains employed by the defendant today. Because
the court has not identified a genuine dispute regarding an
issue of material fact, the court will grant the
defendant's motion for summary judgment and dismiss the
plaintiff alleges retaliation under Title VII of the Civil
Rights Act of 1964. The Act's jurisdictional provision
empowers federal courts to adjudicate civil cases
“brought under” Title VII. §2000e-5(f)(3).
Title VII cases also fall under the grant of subject-matter
jurisdiction to federal courts over cases “arising
under” federal law. 28 U.S.C. §1331.
defendant employed the plaintiff as a cook in the Nutrition
and Food Service Department beginning in December 2008. Dkt.
No. 15-1 at 14-15. In that position, the plaintiff received
“all the frozen products and the produce products that
came into the facility for the kitchen.” Dkt. No. 15-2
Schmidt and Jean Wroblewski supervised the plaintiff. Dkt.
No. 15-1 at 14. Wroblewski acted as the plaintiff's
second-line supervisor from the start of his employment in
2008 through 2009, and again after he returned in December
2013. Dkt. Nos. 18 at ¶3; 18-2 at 7. Schmidt worked as
the agency's chief of food production, and was the
plaintiff's first-line supervisor during the same period
as Wroblewski. Dkt. Nos. 18 at ¶3; 18-2 at 8, 10; 15-1
September 25, 2009, based on a recommendation from Schmidt,
Wroblewski requested that the plaintiff's employment be
terminated. Dkt. Nos. 18 at ¶4; 18-3 at 13. The
defendant terminated him at that time. Dkt. No. 15-1 at 14.
2009, the plaintiff filed an EEO complaint with the
defendant's Office of Resolution Management, alleging:
(1) discrimination based on race, age and reprisal and (2)
hostile work environment. Dkt. No. 1 at ¶¶5, 8. The
administrative law judge issued an order entering judgment in
favor of the plaintiff on the reprisal claim only, and ruled
that the plaintiff had established that he was terminated
because of his “protected EEO activity.” Dkt.
Nos. 15-1 at 15; 18 at ¶4; 18-3 at 17. The ALJ's
September 30, 2013 order required the defendant to provide
the plaintiff with a “six-month training period,
” assign a “mentor mutually agreed to by the
parties” and meet weekly to discuss his job performance
and progress. Dkt. Nos. 18 at ¶4; 18-3 at 17.
defendant reinstated the plaintiff to the same position, and
the plaintiff returned to work in December 2013. Dkt. No.
15-1 at 16. The plaintiff's supervisors (Schmidt and
Wroblewski) did not change. Dkt. No. 15-1 at 14-16. He
remains employed by the defendant today, but transferred to
another department in April of 2015. Dkt. No. 15-1 at 61-62.
case, the plaintiff sued under Title VII “to correct
unlawful employment practices on the basis of reprisal and to
provide appropriate relief to plaintiff who was adversely
affected by such practices.” Dkt. No. 1. He alleges the
following acts of retaliation:
Unwarranted counseling, refusing to pay Lewis on regularly
scheduled payroll dates, altering Lewis's work schedule
and later reprimanding him for working the altered work
schedule, refusing to pay Lewis the appropriate pay rate,
refusing to provide Lewis with a locker upon his return to
work, Wroblewski directing Lewis's coworkers to monitor
Lewis's whereabouts, Schmidt treating Lewis differently
than all other employees by requiring a witness to be present
at all meetings between Schmidt and Lewis, management
directing Lewis's coworker Jason Borgwardt to document
Lewis's day to day workload, reprimanding Lewis for not
signing in and out when leaving the floor when Lewis had in
fact signed in and out, subjecting Lewis to unwarranted
scrutiny when he had to use the restroom, and requiring Lewis
to sign a 60-day review when he was not a probationary
Dkt. No. 1 at ¶11.
complaint's reference to “unwarranted
counseling” refers to a time in the second week of
January 2014; Schmidt had ordered too many food products even
though the plaintiff had provided him with a completed order
form, and Schmidt accused the plaintiff of a disorganized
kitchen. Dkt. Nos. 15-3 at 4; 15-4 at 26. The plaintiff
explained that Schmidt made the freezer look disorganized by
ordering too much food. Dkt. No. 15-2 at 13. The plaintiff
told the EEO investigator under oath that he believed Schmidt
adjusted the food order because Schmidt did not trust the
plaintiff's judgment. Dkt. No. 15-2 at 18. This happened
once. Dkt. No. 15-4 at 26-27. The plaintiff admits that he
never was disciplined in connection with the
“unwarranted counseling” allegation. Dkt. Nos.
15-1 at 79; 17 at ¶17. During the EEO investigation and
hearing, however, the plaintiff stated that Schmidt's
telling him that the freezer needed to be organized made him
stressed, fearful and nervous. Dkt. Nos. 15-2 at 21; 15-1 at
Refusing to Pay the Plaintiff on Regularly Scheduled
plaintiff alleges that the defendant refused to pay him
“on regularly scheduled payroll dates, ”
referring to December 20, 2013, when he did not receive a
paycheck. Dkt. No. 15-3 at 4. The plaintiff returned to work
on December 2, 2013, trained for three days, then took
medical leave from December 5, 2013 to January 6, 2014. Dkt.
Nos. 15-1 at 75; 15-4 at 22-23. On December 31, 2013, while
he was on medical leave, the plaintiff filed a complaint of
reprisal because he did not receive his first paycheck. Dkt.
No. 15-1 at 75-76. Schmidt had no control over payroll, and
neither Schmidt nor Wroblewski were involved with the delayed
payment. Dkt. Nos. 15-5 at 14-15; 15-2 at 32-33. The
defendant resolved the delayed payment issue, and the
plaintiff received the one missing payment in February 2014.
Dkt. Nos. 15-2 at 28; 15-1 at 21. Nevertheless, the plaintiff
felt that the delayed payment incident was disrespectful and
manipulative; he told the EEO investigator under oath and
testified that he experienced stress from its occurrence near
Christmas because, during his medical leave, he could not
take his family on a planned vacation to the Wisconsin Dells
and had to get a payday loan. Dkt. Nos. 15-1 at 22; 15-2 at
30-31, 43. There is no dispute that the plaintiff blames the
delayed payment incident on the defendant generally, and not
on any particular individual. Dkt. Nos. 15-2 at 32-33, 64;
15-1 at 75, 79.
Altering Plaintiff's Work Schedule and Later
Reprimanding Him for Working the Altered Work
plaintiff alleges that during January 2014, Schmidt changed
the plaintiff's “tour of duty schedule” to
6:00 a.m. to 2:30 p.m., but later accused him of leaving
early when he left at 2:30 p.m. Dkt. Nos. 15-3 at 4; 15-4 at
afternoon in January 2014, Schmidt directed the plaintiff to
come to work at 6:00 a.m. the following day, to cover the
shift of a coworker who was scheduled to work 6:00 a.m. to
2:30 p.m. (the plaintiff normally worked the 6:30 a.m. to
3:00 p.m. shift). Dkt. No. 15-2 at 33. The plaintiff agreed,
and worked from 6:00 a.m. to 2:30 p.m. that day. Id.
The next day, Schmidt called a meeting with the plaintiff and
a union steward, and threatened the plaintiff with
disciplinary action for leaving “early” at 2:30
p.m. Id. Schmidt “was telling [the plaintiff]
that [he] left work early, and [he] should look at the
schedule and follow the schedule verbatim . . . [and] that
this could be a discipline thing if [the plaintiff left
early], and they will have to investigate it.” Dkt.
Nos. 15-2 at 33-34; 15-5 at 17. Schmidt explained that
“since [the plaintiff] was just back for a week, we
decided to give him the benefit of the doubt.” Dkt. No.
15-5 at 15.
plaintiff testified at his deposition that he believed that
reprimand meant the same thing as counseling because
counseling is the first step in the termination process. Dkt.
No. 15-4 at 30-31 (“Well, the way the VA or any
government agency I have worked for is, counseling, a verbal
warning, and then a write-up, and then after a write-up it
can lead up to termination. So in all actuality, when they
pulled me in there, that was the first stage of a discipline
procedure by questioning that I changed my schedule.”).
Schmidt testified that “counseling” was “a
little meeting to see what happened, ” which the
employees of the defendant call a “Weingarten.”
Dkt. Nos. 15-4 at 30-31; 15-5 at 15-17. Even accepting the
plaintiff's version of the facts as true, the plaintiff
does not dispute that he did not receive a letter, suspension
or termination. Dkt. No. 15-4 at 30-32.
respect to how this incident affected him, the plaintiff
testified in the EEO hearing as follows:
Q So what did you do after you leave [sic] Mr. Schmidt's
office on that day?
A I called Will Johnson in the EEO office, and I told Mr.
Johnson, I said that this is too much. I cannot -- I'm
not sleeping, I can't concentrate, I cannot work under
these conditions. It just -- it was just horrible, and I said
the guy told me to come in early, then he's trying to
write me up. I said -- and I asked him, I says is there any
way possible, you know. I will go shovel snow. Please take me
away from these people.
Dkt. No. 15-1 at 33-34.
Refusing to Pay the Plaintiff at the Appropriate Pay
plaintiff alleges that the defendant refused to pay him at
the appropriate pay rate, referring to the fact that on
January 3, 2014, he received a partial amount of his salary.
Dkt. Nos. 15-3 at 4; 15-4 at 33. On that date, the plaintiff
received “about $1.50 less an hour” than he
should have been paid on his return to work. Dkt. No. 15-2 at
44. Schmidt and Wroblewski had no involvement with the pay
rate issue. Dkt. Nos. 15-2 at 49; 15-5 at 19-20. The
plaintiff received the full amount owed to him after the
defendant resolved the issue in or around March 2014
(approximately four months after the plaintiff's start
date). Dkt. Nos. 15-2 at 44; 15-1 at 81. In his deposition,
the plaintiff expressed frustration in trying to deal with
the defendant, and testified that his wife “was a
little nervous” about paying bills. Dkt. Nos. 15-2 at
44-45, 48; 15-2 at 44-45, 47-48. The plaintiff also testified
in the EEO hearing that he “felt like they [the
defendant] just had a grudge or vendetta” against him.
Dkt. No. 15-1 at 26. The plaintiff told the EEO investigator
under oath that he holds the defendant-not the
individuals-responsible for the incorrect pay rate. Dkt. Nos.
15-1 at 26-27, 91; 15-2 at 49.
Refusing to Provide a Locker
plaintiff's first day back on the floor after training
(January 8, 2014), Schmidt allegedly failed to provide him
with a locker in which to store his personal belongings. Dkt.
Nos. 15-2 at 51; 15-3 at 4; 15-4 at 38. The plaintiff asked
Schmidt for a locker to hold personal items, and Schmidt told
him to request the locker from facility/building management.
Ex. 15-2 at 51. There is no evidence in the record that
anyone other than facility/building management assigns
lockers to employees. Dkt. No. 15-5 at 22-23. The man in
facility/building management told the plaintiff that he did
not have any lockers available. Dkt. No. 15-2 at 51.
offered to let the plaintiff change into his uniform and
store his belongings in the manager's office, but the
plaintiff declined. Dkt. No. 15-2 at 51-52. Schmidt's
office is a “four-desk cubicle office” with
“windows [that] are wide open.” Dkt. No. 15-1 at
95. Schmidt told the plaintiff that he could wear his uniform
into work, which the plaintiff understood to be a violation
of the Safe Serve policy (not the defendant's
policy) for sanitation reasons. Dkt. No. 15-1 at
94. Schmidt got a little angry when the plaintiff declined,
because Schmidt was “throwing out all these ideas and
[the plaintiff] was shooting them all down.” Schmidt
testified that he told the plaintiff, “you need to come
to work in your uniform. I don't care what happens before
that, but you need to do something to come to work in your
uniform.” Dkt. No. 15-1 at 181-182. Schmidt confirmed
that it is “unusual” for him to “get loud
with the employees.” Dkt. No. 15-1 at 182.
plaintiff testified that “within the day” that
same day or the next day “they” provided him with
a locker. Dkt. Nos. 15-4 at 41; 15-1 at 96. After receiving
his locker, the plaintiff learned that facility/building
management was conducting an audit of lockers. Dkt. No. 15-1
at 92. The plaintiff testified in his deposition that the man
in facility/building management was rude, while admitting
that the man did not know him and that the man was
“just an angry person.” Dkt. Nos. 15-2 at 51;
15-1 at 93. The plaintiff testified in the EEO hearing that
this incident caused him anxiety, stress, and fear. Dkt. No.
15-1 at 41.
Wroblewski Directing the Plaintiff's Coworkers to
plaintiff alleges that on January 14, 2014, Wroblewski told
the plaintiff's coworkers to monitor the plaintiff's
location. Dkt. Nos. 15-3 at 4; 15-4 at 42-43. The plaintiff
testified in his deposition that coworker Latoya Dixon told
him that Wroblewski had told her to monitor the plaintiff,
and that Dixon and other tray line supervisors all were
monitoring his whereabouts. Dkt. Nos. 15-2 at 66, 67; 15-1 at
43, 97; 15-4 at 42-45; 17 at ¶61. The plaintiff
testified that he did not feel it was necessary to find out
why he was being monitored, because “this was just
something they do in our unit.” Dkt. No. 15-2 at 66.
The plaintiff admits that the defendant never disciplined him
with respect to this allegation of monitoring. Dkt. Nos. 15-4
at 47; 17 at ¶64.
testified that Wroblewski never asked her to monitor the
plaintiff, that no one told her they were monitoring the
plaintiff and that she did not monitor the plaintiff. Dkt.
No. 15-6 at 9. She explained in her deposition that she was
not given any reason as to why “they” were
monitoring the plaintiff, but that she had her own beliefs
that Wroblewski wanted the plaintiff out of there because he
had filed a lawsuit. Dkt. No. 15-6 at 10. Dixon testified
[n]obody told me. It was just those gestures. And like I
said, she didn't -- Jean didn't tell me that and no
one specifically told me that, but they -- you know, like --
at that time I remember this going on, as far as what time
did he go out on his break or whatnot, like you know? And
I'm like -- I wasn't involved with that, you know? I
wouldn't have did that. But that is what was going on at
Dkt. No. 15-6 at 9-10.
Schmidt Treating the Plaintiff Differently Than All Other
Employees by Requiring a Witness to be Present at All
Meetings Between Schmidt and the Plaintiff
plaintiff alleges that on January 14, 2014, Schmidt refused
to meet with him unless a witness was present. Dkt. Nos. 15-3
at 4; 15-4 at 48. The plaintiff had requested administrative
leave; Schmidt called him over to discuss the request, then
“told [him] that [Schmidt] cannot have a conversation
with [him] without a witness.” Dkt. No. 15-2 at 69.
Schmidt testified during the EEO hearing that he required a
witness to be present when he met with the plaintiff because
the plaintiff had included things in the prior EEO complaint
that Schmidt did not say. Dkt. No. 15-1 at 199. Schmidt also
testified that he “never had any other employees”
accuse him of saying things he never said, so he felt that he
needed protection. Id.
January 14, 2014 meeting with the two witnesses, Schmidt told
the plaintiff that his request for administrative leave had
been denied. Dkt. No. 15-2 at 70. The plaintiff testified in
the EEO hearing, and told the investigator under oath, that
that the situation caused him stress and anxiety, and that it
was “hard to work in that kind of environment, ”
an environment in which he felt like a misfit. Dkt. Nos. 15-2
at 71-72; 15-1 at 44-45.
Management Directing Plaintiff's Coworker Jason
Borgwardt to Document Plaintiff's Day-To-Day
Various co-workers told the plaintiff that Wroblewski had
instructed the plaintiff's coworker, Jason Borgwardt, to
document the plaintiff's day-to-day workload. Dkt. Nos.
15-2 at 72; 15-1 at 47, 51; 15-4 at 49-50. Borgwardt (the
plaintiff's coworker, not a supervisor) worked for the
defendant as a cook from 2007 through the end of 2014 or
early 2015. Dkt. No. 15-7 at 5, 6. In his prior EEO
complaint, the plaintiff alleged that Borgwardt (and two
other cooks) harassed him verbally, intentionally misplaced
tools and utensils necessary for the job, intentionally
mislabeled or failed to label food, and did other things.
Dkt. Nos. 18 at ¶2; 18-1 at 7, 11.
testified in the EEO hearing that he was recording
complaints, at Wroblewski's direction, for the purposes
of retraining the plaintiff:
Q Did Jean ever tell you to do anything with respect to [the
A In respect to [the plaintiff], there were multiple
complaints coming at her from multiple people on a regular
basis, so I was instructed to notify the cooks if there are
any incidents where [the plaintiff] was negligent in what his
responsibilities are, to let me know.
Q Let who know? To let you know?
A Yes. To let me know, and I would write all of them down on
the areas that she thought he needed to be retrained.
Q So what was the purpose of the cooks telling you what [the
plaintiff's] areas of -- what his problem areas were?
A The purpose was for her to identify what areas he needed to
be retrained in.
Dkt. No. 15-1 at 148-149.
Q I just want to clarify, John, that when people were told to
document [the plaintiff's] -- whatever problems he ...