Lewis v. Wilkie

909 F.3d 858
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 29, 2018
DocketNo. 18-1702
StatusPublished
Cited by176 cases

This text of 909 F.3d 858 (Lewis v. Wilkie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Wilkie, 909 F.3d 858 (7th Cir. 2018).

Opinion

Manion, Circuit Judge.

*862Jerry Lewis is an employee of the United States Department of Veterans Affairs (the "Agency"). Lewis worked as a cook in the Nutrition and Food Service Department from December 2008 until September 2009 and then again from December 2013 until April 2015. The four-year gap in employment from 2009 to 2013 occurred because Lewis was terminated and then, after a successful Equal Employment Opportunity (EEO) complaint, was reinstated to his former position.

Lewis alleges that upon reinstatement he faced retaliation from the Agency and two supervisors for his EEO activity. The district court granted summary judgment to the Agency, holding in part that none of the alleged retaliatory actions constituted a materially adverse action. We agree with the district court's thorough analysis and conclusion and affirm the judgment.

I. Background

A. Factual Background

In December 2008, the Agency hired Lewis as a cook in the Nutrition and Food Service Department. In this position, Lewis was supervised by John Schmidt (the Agency's chief of food production) and Jean Wroblewski. In September 2009, his employment was terminated at the recommendation of Schmidt and the request of Wroblewski. Lewis filed an EEO complaint alleging discrimination based on race, age, and retaliation, and a hostile work environment. In September 2013, the EEO Administrative Law Judge found in favor of Lewis on the claim of retaliation alone and ordered the Agency to reinstate Lewis to his former position. The Agency was also ordered to provide Lewis with a six-month training period, a mentor, and weekly meetings between Lewis and the mentor.

Lewis was reinstated in December 2013 to his previous position, again reporting to Schmidt and Wroblewski. He ultimately requested and received a transfer in April 2015 to a different department after he experienced what he alleges was unlawful retaliation for his 2009 EEO complaint. Lewis specifically recites eleven incidents that he alleges constituted retaliation. Ten of these incidents can be grouped in three categories: incidents involving Agency administrative failures; incidents involving his supervisor Schmidt; and incidents involving his supervisor Wroblewski. The eleventh incident involved a 60-day performance review that the Agency required him to sign. We discuss each of these incidents below.

1. Incidents Involving Agency Administrative Failures

Lewis alleges three incidents of administrative failures attributable to the Agency in general rather than any individual member of management. First, Lewis asserts that the Agency failed to provide him with a locker upon his return to work. On his first day back to work, the Agency did not give Lewis a locker in which to store his personal belongings and clothing. He asked Schmidt to assign him a locker, and Schmidt directed him to request one from facility/building management. When Lewis did so, he was told that none were available.

Schmidt told Lewis he could change into his work uniform and store his belongings in Schmidt's office, but Lewis declined because the office was a cubicle with wide-open windows. Schmidt suggested that he simply wear his uniform to work, but he refused this too, asserting it would be a *863violation of the sanitation policy. Schmidt then became frustrated and told Lewis that he would have to figure out some way to come to work in his uniform. Either that same day or the next day, the Agency provided a locker after Lewis brought his complaint to the Agency's EEO Program Manager. Lewis alleges that this difficulty caused him stress, anxiety, and fear.

Lewis next alleges that he did not receive a paycheck on December 20, 2013, the first regularly scheduled payroll date after his reinstatement. He had returned to work on December 2, 2013, for three days of training, and then took medical leave from December 5, 2013, until January 6, 2014. He filed a complaint of reprisal with the Agency's Office of Resolution Management on December 31, 2013, when he did not receive his first paycheck on December 20. The Agency ultimately resolved this issue and he received the payment in February 2014. Lewis asserts that the delayed paycheck was disrespectful and manipulative and that it caused him stress.

Finally, Lewis alleges that his pay rate was improperly reduced. On January 3, 2014, he received his first paycheck after reinstatement, but the amount was approximately $1.50 an hour less than his payrate. This issue was not resolved until March 2014. He alleges that dealing with the Agency regarding this incident caused him stress and frustration, and he testified that it felt as though the Agency had a vendetta against him.

2. Incidents Involving Schmidt

Lewis alleges five incidents that specifically involve his supervisor Schmidt. First, Schmidt gave Lewis unwarranted counseling about organizing the freezer. Sometime during the second week of January 2014, Schmidt confronted Lewis and accused him of maintaining a disorganized freezer. According to Lewis, however, the freezer only looked disorganized because Schmidt ordered too much food. Lewis asserted that Schmidt had adjusted the quantities on the food order based on his distrust of Lewis's judgment, and that the resulting oversupply caused the disorganization. Although this incident led to what Lewis refers to as "unwarranted counseling," he does not allege that he was otherwise disciplined in connection with this incident. He alleges that it caused him to be stressed, fearful, and nervous.

Second, Lewis claims Schmidt altered Lewis's work schedule and subsequently threatened to discipline him when Lewis left early because of the alteration. This incident began one afternoon when Schmidt instructed Lewis to come to work at 6:00 a.m. the following day to cover the shift of a coworker scheduled to work from 6:00 a.m. to 2:30 p.m. (Lewis's normal shift was 6:30 a.m. to 3:00 p.m.). Based on Schmidt's instruction to come early, Lewis worked from 6:00 a.m. to 2:30 p.m. the next day. The following day, Schmidt called a meeting with Lewis and a union steward in which he scolded Lewis for leaving "early" at 2:30 p.m., told him to pay attention to the schedule and follow it verbatim, and stated that it "could be a discipline thing" if Lewis left early. Nevertheless, Lewis received no further discipline as a result of this incident. Lewis alleges that this event caused him to have difficulty concentrating on his work and led him to speak to the Agency's EEO program manager to request a department transfer.

The third incident involving Schmidt relates to the Agency's sign-out procedure. According to this procedure, whenever an employee leaves the department for any reason other than lunch or usual work breaks, he is required to sign out and to sign in upon return. In February 2014, *864Schmidt instructed Lewis that he was required to sign out whenever he left the department to attend his weekly mentor meetings ordered by the ALJ. Lewis alleges that Schmidt had not checked the sign-out sheet to see if he was already complying with this procedure before instructing him to do so. He asserts that because of this incident, he felt stress, anxiety, fear, and lack of focus.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
909 F.3d 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-wilkie-ca7-2018.