Cullom v. Brown

27 F. Supp. 2d 1089, 1998 U.S. Dist. LEXIS 18506, 83 Fair Empl. Prac. Cas. (BNA) 1418, 1998 WL 824501
CourtDistrict Court, N.D. Illinois
DecidedNovember 24, 1998
DocketNo. 96 C 1925
StatusPublished
Cited by3 cases

This text of 27 F. Supp. 2d 1089 (Cullom v. Brown) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cullom v. Brown, 27 F. Supp. 2d 1089, 1998 U.S. Dist. LEXIS 18506, 83 Fair Empl. Prac. Cas. (BNA) 1418, 1998 WL 824501 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Honesty is the best policy. Honesty is the required policy. This is a case in which Defendant argues that the employee evaluations it prepared were not honest. This is a ease in which Defendant readily admits that it did not follow its own written policies. This is a case in which the Defendant must live with the consequences of its actions.

The Court conducted a three-day bench trial on October 20-22, 1998, to decide whether the plaintiff, Richard T. Cullom (“Plaintiff”), was denied a promotion by the Department of Veteran Affairs, Hines V.A. Hospital (“Defendant” or “VA”) in retaliation for his having previously filed Equal Employment Opportunity (“EEO”) complaints against the Defendant.1 The case presents the novel question of whether Plaintiff was retaliated against by receiving a favorable work evaluation while being refused pro[1091]*1091motion. Alternatively, the case raises the question of whether Plaintiff was retaliated against by reason of Defendant’s failure to provide Plaintiff with an honest evaluation and the remedial benefits to which he was then entitled. The answer to both questions is yes. The irony is that this conduct was taking place in Defendant’s personnel department, which is responsible for properly implementing employment practices and which blatantly disregarded its own rules and procedures in its dealings with Plaintiff.

The Court has carefully considered the testimony of the seven witnesses who testified, the numerous exhibits introduced into evidence, the written submissions from the parties, and the thoughtful closing arguments of counsel. The following constitute the Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. BACKGROUND FACTS

A. PLAINTIFF’S EMPLOYMENT HISTORY PRE-YA

Plaintiff is a 55-year-old African-American male who grew up in Detroit, Michigan. Plaintiff served as a paratrooper and was honorably discharged from the Army in 1964, at which time he began work as a laborer for Chrysler Corporation. Plaintiff held a variety of jobs at different companies in Detroit between 1966 and 1973. During that time he attended Detroit Business Institute where he received a certificate of computer training. After moving to Chicago in 1973, Plaintiff worked in a glass business for several years and then attended junior college. In 1978 he went to work as an EEO specialist for the Department of the Army. He later earned a bachelor’s degree. In approximately 1987, Plaintiff obtained a lateral transfer to the Department of the Navy as a classification specialist where he was eventually promoted to the GS-11 grade. During his tenure at the Navy, he was rated as “Fully Successful” at both the GS-9 and GS-11 levels.

B. EMPLOYMENT HISTORY AT VA

1. Initial Employment and First EEO Complaint.

Plaintiff has endured a rocky employment history with the VA. He began employment with the VA at Hines Medical Center in September, 1990, as a GS-9 staffing specialist, on a temporary appointment. (Def.’s Ex. 5.) His immediate supervisor, an African-American female, concluded that his work was unacceptable and terminated Plaintiff effective March 29, 1991. (Def.’s Ex. 7.) Plaintiff filed an EEO complaint seeking reinstatement alleging that he had been discriminated against on the basis of his sex. During the year and a half the EEO complaint was pending, Plaintiff worked for Cook County as a job analyst.

Plaintiff’s EEO complaint was eventually settled. Under the terms of the settlement agreement, Plaintiff was reinstated as a full-time GS-9 personnel staffing specialist effective October 18, 1992 although he was under probationary status for the first 180 days. (Def.’s Ex. 12.) The agreement set forth written performance standards for Plaintiff and expunged from the personnel files any reference to his termination.

2. Reinstatement at Hines and Second EEO Complaint.

Plaintiff’s position after reinstatement had the promotion potential to GS-11 following one year of successful service as a GS-9. (Def.’s Ex. 19.) This was a non-competitive career ladder position, meaning that an increase in grade level was not dependent upon a competitive process where he would be evaluated against other people bidding for the position. Plaintiffs responsibilities included GS-11 level work, some of which he performed adequately.

Dean Lapcewich (“Lapcewich”) supervised Plaintiff. Lapcewich refused to explain to Plaintiff the steps necessary for promotion to GS-11. Throughout the course of his supervision of Plaintiff, Lapcewich expressed displeasure with the quality of Plaintiff’s work and periodically returned Plaintiffs work with its deficiencies highlighted. Plaintiff also requested a series of training opportunities to assist him in his new position and, as a result, Lapcewich put together a comprehensive training program for Plaintiff and autho[1092]*1092rized him to attend training courses. (Def.’s Ex. 21-24.)

Plaintiffs first performance review under Lapcewich covered the period of October 18, 1992 through March 31, 1993. This review required the signature of the employee’s direct supervisor, Lapcewich, and the supervisor’s boss, Peter Hennigan (“Hennigan”), the Assistant Personnel Officer. Plaintiff was given a rating of fully successful on a scale of 1) Outstanding, 2) Highly Successful, 3) Fully Successful, 4) Minimally Successful, and 5) Unacceptable. (Def.’s Ex. 29.) An employee must achieve at least a rating of fully successful to be eligible for promotion. According to Lapcewich, he had proposed a rating of minimally successful, but Hennigan, who did not testify, overruled him. Lapcewich testified that Hennigan insisted on giving Plaintiff a fully successful rating in order to avoid a future EEO proceeding with Plaintiff. Lapcewich prepared a narrative discussing Plaintiffs performance in four areas and in each area assigned a fully successful level to Plaintiffs work. (Def.’s Ex. 29.) Contrary to the written rating, Lapcewich testified that Plaintiff made numerous errors in his work, failed to demonstrate competence, and was not performing at a level which would justify a promotion to GS-11. Lapcewich did not inform Plaintiff of his personal evaluation of Plaintiff as minimally successful rather than fully successful. As a result, Plaintiff believed that he had earned a fully successful rating. On August 23, 1993, Lapcewich met with Plaintiff to discuss performance standards, however, Plaintiff refused to sign for the standards. (PL’s Ex. 20.)

In the summer of 1993, Plaintiff met with an EEO counselor and asserted that he was the victim of reprisal for having previously filed a complaint in that he had not been promoted to a GS-11. (Def.’s Ex. 31.) The EEO counselor conducted an investigation, and interviewed Lapcewich, Hennigan and Marvin Serváis (“Serváis”), Chief of Human Resources Management Service. In an interview with the EEO counselor, Lapcewich stated that Plaintiffs performance was fully successful at the GS-9 level. (Def.’s Ex. 33.) The EEO counselor was unable to settle the complaint.

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Related

Cullom, Richard v. Brown, Jesse
Seventh Circuit, 2000
Togba v. County of Cook
48 F. Supp. 2d 1104 (N.D. Illinois, 1999)

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Bluebook (online)
27 F. Supp. 2d 1089, 1998 U.S. Dist. LEXIS 18506, 83 Fair Empl. Prac. Cas. (BNA) 1418, 1998 WL 824501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullom-v-brown-ilnd-1998.