Keith Hill v. R. Nicholson

383 F. App'x 503
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 24, 2010
Docket09-5305
StatusUnpublished
Cited by26 cases

This text of 383 F. App'x 503 (Keith Hill v. R. Nicholson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keith Hill v. R. Nicholson, 383 F. App'x 503 (6th Cir. 2010).

Opinions

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Keith D. Hill appeals the district court’s adverse summary-judgment ruling with respect to his Title VII suit against the Secretary of Veterans Affairs, Defendant-Appellee R. James Nicholson (hereinafter “the VA”). Hill argues that he has presented sufficient evidence from which a jury could find that he was discriminated against because of his race, subjected to a hostile work environment, and retaliated against for engaging in protected activity. For the reasons stated below, we REVERSE the district court’s ruling with respect to Hill’s retaliation claim, except insofar as that claim is based upon the VA’s alleged decision to deprive Hill of his office, and REMAND for further proceedings. We AFFIRM the district court’s judgment in all other respects.

I. BACKGROUND

Prior to 2001, a white individual named Delvee Soles worked at the Veterans Administration Medical Center (“VAMC”) in [506]*506Memphis, Tennessee, as a “cook foreman.” The paygrade for this position was WS-11. After Soles retired in December 2000, the position was renamed “cook supervisor” and the pay level was reduced to WS-8. Hill, an African-American, applied for and received the “cook supervisor” position in May 2001. Soles was rehired after his retirement to assist in the kitchen until a replacement was found, and Soles helped to train Hill once Hill was hired. When Soles held the position, he had the assistance of an administrative dietitian and a clerk. Both these positions were eliminated, however, after Soles retired. Hill also claims that he had one less cook than Soles.

In October 2001, Hill was called to a period of active duty in the Navy. According to Hill, his supervisor, Ann Frogge, was reluctant to let Hill go on active duty. Hill claims that, after his commanding officer told Frogge that she had no choice, Frogge agreed to let Hill take leave, but she denied his request to obtain additional job training on his days off, and she also encouraged Hill to quit his cook-supervisor position altogether. Hill returned to the VAMC in November 2002.

On January 13, 2003, Frogge had a meeting with Hill and the four supervisors whom Hill supervised, at which time Frogge informed them that there was a patient undergoing radiation treatment whose meals should be served on a disposable tray. Due to an error, the patient’s tray was initially delivered on a non-disposable tray, though the error was discovered before any harm was done. As a result, Frogge gave Hill “written counseling” on January 15, although Hill claims that he was not at fault. Doc. 33-1 at 17 (EEOC Hr’g Tr. at 39). None of the supervisors whom Hill supervised, all of whom were African-American, were disciplined.

On March 25, Frogge told Hill that she wanted to meet with him every Friday to review his performance. According to Hill, Soles told him that Soles had also made mistakes and yet never had to attend similar meetings. At the March 25 meeting, Hill told Frogge that he was going to file an EEO complaint and on March 27, Hill contacted the Office of Resolution Management (“ORM”).1

After Hill contacted the ORM, he claims that Frogge suddenly started coming into the kitchen frequently to harass him about trivial problems. Hill claims, however, that this never occurred during the time period when Soles was training him.

On April 18, Frogge changed Hill’s performance standards. The previous performance standards had been in place since the time of Hill’s hiring and allowed for at least forty-four “deviations” per year. Doc. 33-1 at 33 (EEOC Hr’g Tr. at 61). The new performance standards, by contrast, consolidated many categories of assessment and as a result allowed only for four “incidents” a year. Id. The standards for the other supervisors and cooks, however, remained essentially the same. During a subsequent EEOC administrative hearing, Debra Gilliland, the Labor Relations Specialist who recommended that Frogge change Hill’s performance standards, explained that the previous standards were redundant and difficult to follow, and that the change was “[t]o make them easier for both management and the employee to use and understand as a guide of the standards he was expected to attain.” Id. at 46. When asked why the changes were made when they were, Gilli-land explained that it was “a good time” [507]*507because the rating cycle ended on March 31, so that if the performance standards were changed in April, “the employee would be operating under those new standards for the entire year.” Doc. 22-9 at 7-8 (EEOC Hr’g Tr. at 138-39). According to the VA, Frogge requested copies of the performance standards used by other employers across the country before making her revisions. The VA also claims that Hill was given an opportunity to comment on the proposed changes and yet did not, an assertion that Hill does not dispute.

On April 21, Hill claims that Frogge told all of the supervisors that they had to complete their performance appraisals by May 31, but Frogge later told Hill that he had only four days, despite the fact that Hill was understaffed, overworked, and had no training in completing employee appraisals. According to Hill, he did not complete the evaluations in four days and Frogge responded by sending him to receive additional training. According to Frogge, Hill later completed his evaluations prior to May 31, an assertion that Hill does not dispute.

On May 5, 2003, Hill filed an EEO Complaint of Employment Discrimination. In August 2003, Hill claims that Frogge deprived him of his office and gave it to a white dietitian who was not a supervisor. Hill, however, never amended his EEO complaint to include this alleged incident.

Following an evidentiary hearing, an administrative law judge with the EEOC issued a “Preliminary Decision” finding mostly in favor of the VA although concluding that Frogge unlawfully retaliated against Hill. Nonetheless, Hill withdrew his administrative complaint, and, on October 26, 2005, he filed this complaint in the United States District Court for the Western District of Tennessee. In particular, Hill’s federal-court complaint alleges that the VA violated Title VII of the Civil Rights Acts of 1964 and 1991 by discriminating against him on the basis of race, subjecting him to a hostile work environment based on race, and retaliating against him after he engaged in protected activity. On March 31, 2008, the district court granted the VA’s “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” treating it as a motion for summary judgment. First, the court concluded that Hill had failed to exhaust his administrative remedies with respect to all events that occurred on or before January 15, 2003, because Hill did not contact an EEO counselor within forty-five days of these events. The court then dismissed Hill’s claims of discrimination and retaliation, except insofar as they were based on Hill’s claim that Frogge gave his office to a white dietitian. The district court also dismissed Hill’s claim of hostile work environment.

The VA then filed a “Second Motion to Dismiss” arguing that Hill’s discrimination claim based on the loss of his office was not properly exhausted because Hill never amended his EEO complaint to assert a claim related to this incident. Furthermore, the VA argued that, because Hill’s complaint never alleged any facts regarding the loss of his office, Hill’s retaliation claim should be dismissed as well.

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Bluebook (online)
383 F. App'x 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-hill-v-r-nicholson-ca6-2010.