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Lewis v. McDonald

United States District Court, E.D. Wisconsin

February 28, 2018

JERRY L. LEWIS, Plaintiff,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, United States Department of Veterans Affairs, Defendant.


          PAMELA PEPPER United States District Judge

         The 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 case.

         I. Jurisdiction

         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.

         II. Facts

         The 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 at 4.

         John 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 at 180.

         On 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.

         In 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.

         The 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.

         In this 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 employee.

Dkt. No. 1 at ¶11.

         A. Unwarranted Counseling

         The 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 31.

         B. Refusing to Pay the Plaintiff on Regularly Scheduled Payroll Dates

         The 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.

         C. Altering Plaintiff's Work Schedule and Later Reprimanding Him for Working the Altered Work Schedule

         The 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 30.

         One 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.

         The 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.

         With 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.

         D. Refusing to Pay the Plaintiff at the Appropriate Pay Rate

          The 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.

         E. Refusing to Provide a Locker

         On the 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.

         Schmidt 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)[1] 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.

         The 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.

         F. Wroblewski Directing the Plaintiff's Coworkers to Monitor Him

          The 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.

         Dixon 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 that:

[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 that time.

Dkt. No. 15-6 at 9-10.

         G. Schmidt Treating the Plaintiff Differently Than All Other Employees by Requiring a Witness to be Present at All Meetings Between Schmidt and the Plaintiff

         The 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.

         At the 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.

         H. Management Directing Plaintiff's Coworker Jason Borgwardt to Document Plaintiff's Day-To-Day Workload

          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.

         Borgwardt 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 plaintiff]?
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 ...

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