Rowe v. Shulkin

XAVIER D. ROWE, Plaintiff, v. DAVID SHULKIN, Secretary of the United States Department ofVeterans Affairs, Defendant.

Case No. 17-cv-9258

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 9, 2019

Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER

Plaintiff Xavier Rowe sues his employer, the Department of Veterans Affairs (Defendant, or VA), alleging: (1) disability discrimination under The Rehabilitation Act of 1973, 29 U.S.C. § 794, (Count I); (2) retaliation under Title VII, 42 U.S.C. § 2000e, et seq., (Count II); and (3) discrimination based upon race under Title VII (Count III). [1]. Defendant moves for summary judgment. [25]. For the reasons explained below, this Court grants Defendant's motion.

I. Background

A. Local Rule 56.1 and Evidentiary Rules

The following facts come from Defendant's Local Rule 56.1 statement of material facts, [27], Plaintiff's response to Defendant's statement of material facts, [36] at 1-27,¹ Plaintiff's statement of additional facts, [36] at 27-33, and Defendant's response to Plaintiff's statement of additional facts, [41]. Plaintiff's response to Defendant's statement of facts and statement of additional facts, [36], raise multiple evidentiary issues that this Court addresses before turning to the facts themselves.

1. Defendant's Resume & Interview Score Sheets

The parties spend considerable time debating the admissibility of certain resume and interview score sheets (score sheets) submitted by Defendant as exhibits. See [27-2] (Exhibits 5A, 5B, 30A, 32, 34).² Defendant cites to the score sheets—as well as to declarations referencing them—in its statement of facts. See, e.g., [27] ¶¶ 46-47, 51-55. Plaintiff denies those statements that cite to the score sheets—both directly and indirectly—because, according to Plaintiff, the score sheets constitute improper summary exhibits under Federal Rule of Evidence 1006.³ See [36] (Plaintiff's response) ¶¶ 46-47, 51-55. Specifically, Plaintiff argues that the score sheets are inadmissible summaries because Defendant failed to produce the underlying documents used to create them, and because the score sheets fail to identify: (1) the scorer; (2) what the scores represent; (3) the actual method of scoring used; or (4) how Defendant calculated the scores listed on the score sheets. Id.; [35] at 10-12.

This Court rejects Plaintiff's argument, because Defendant does not seek to offer the resume and interview score sheets as summaries of other records created for litigation purposes, as Rule 1006 contemplates; instead, Defendant created them as business records, and they are admissible as such under Fed R. Evid. 803(6). The declarations of Chief Gary Marsh, Deputy Chief Edward Jones, and Security Specialist Aaron Gatterdam provide foundation and authentication for the score sheets, and establish (among other things) that Defendant created them at or near the time of the resume reviews and interviews. [27-2] (Exhibit 5) ¶¶ 11-13; [27-2] (Exhibit 12) ¶¶ 8-10; [27-2] (Exhibit 30) ¶ 8. Moreover, VA Human Resources employee Jodi Yenerall confirmed that Defendant created and kept the score sheets as part of its regular promotion practice. [41-2] (Exhibit 52) ¶¶ 2-5. Accordingly, this Court finds the resume and interview score sheets, [27-2] (Exhibits 5A, 5B, 30A, 32, 34), admissible for purposes of this opinion.

2. Plaintiff's Undisclosed Exhibits

Plaintiff's additional statements of facts rely, in part, upon several documents created or produced in a separate, unrelated case—Henderson v. Shulkin—that Plaintiff's counsel litigated against Defendant. See [36-1] (Exhibits 12-14, 18, 25-26). Plaintiff never disclosed or produced these exhibits to Defendant in this case prior to including them in his statement of additional facts. [40] at 4. Therefore, Defendant argues that he cannot now use them to supply evidence on a summary judgment motion, pursuant to Fed. R. Civ. P. 37(c)(1). This Court agrees.

Under Rule 37(c)(1), if a party fails to "provide information or identify a witness as required by Rule 26(a) or (e)," that party cannot then "use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." Karum Holdings LLC v. Lowe's Cos., 895 F.3d 944, 951 (7th Cir. 2018). Therefore, the "exclusion of nondisclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless." Id. (citing Musser v. Gentiva Health Servs., Inc., 356 F.3d 751, 755 (7th Cir. 2004)).

Here, Plaintiff undoubtedly violated Rule 26(e). This rule requires a party "who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—" to supplement or correct its disclosure or response in a "timely manner" if:

the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Fed. R. Civ. P. 26(e). In both Plaintiff's Mandatory Initial Discovery Pilot (MIDP) disclosures, [41-2] (Exhibit 53), and responses to Defendant's interrogatories, [41-2] (Exhibit 54), Plaintiff failed to identify or produce any documents relating to the Henderson case as relevant to the present case. In fact, when Plaintiff attempted to supplement his MIDP disclosures—as discovery was set to close, and well after the deadline to supplement initial disclosures—to include references to the plaintiff in Henderson and his EEO investigation file, this Court excluded that plaintiff as a witness due to the untimely disclosure. [41-2] (Exhibit 55); [19].

And under Rule 37(c)(1), Plaintiff has offered no explanation or justification for his untimely disclosure of the Henderson exhibits. See generally [35] [36]. Yet, they undoubtedly harm Defendant; Plaintiff relies upon the relevant exhibits throughout his response brief, see, e.g., [35] at 6, 13, and Defendant lost the opportunity to conduct discovery that may have clarified or contradicted these arguments. Moreover, three of the relevant exhibits are declaration affidavits of witnesses that Plaintiff never identified in his initial (or any supplemental) MIDP disclosures. See, e.g., [36-1] (Exhibits 14, 18, 25); [41-2] (Exhibit 53). Accordingly, this Court excludes the following exhibits pursuant to Rule 37(c)(1): [36-1] (Exhibit 12) (Grade 11 Criminal Investigator announcement); [36-1] (Exhibit 13) (Grade 11 Criminal Investigator certificate); [36-1] (Exhibit 14) (Declaration of Cary Kolbe); [36-1] (Exhibit 18) (Declaration of Brian Cross); [36-1] (Exhibit 25) (Affidavit of Donald Barnes); [36-1] (Exhibit 26) (suspension decision letter).

B. The Parties

Plaintiff, an African-American veteran, began working for Edwards Hines, Jr. VA Hospital (Hines) in 2003 as a GS-6 level police officer. [27] ¶ 1; [36] ¶ 1. In 2006, under circumstances that neither party clarifies, the VA stripped Plaintiff of his badge and gun and placed him into a janitorial, or housekeeping, role at Hines for more than a year until he "won [his] position back through a lawsuit." [36] ¶ 2; [36-1] (Exhibit 1) ¶ 3. Plaintiff worked at Hines until October 2016, when he requested and received a transfer to a new VA facility near Dallas, Texas. [27] ¶ 2. Plaintiff remains employed at the Dallas VA facility today. Id.

In 2013, Gary Marsh took over as Chief of Police at Hines. [27] ¶ 4. From 2014 until August 2016, Deputy Chief Edward Jones served as the second-ranking member of the Hines police department. Id. From 1998 to the present, Captain Percy Henderson has worked as the captain in charge of training for Hines police officers. Id. ¶ 7. Throughout this time, Henderson has served as the sole Hines police officer officially assigned to a training officer position at Hines. Id.; [27-2] (Exhibit 8) ¶ 3.

C. Plaintiff's Training Responsibilities & Official Designation

Beginning in 2004, Plaintiff began providing training and instruction to his fellow Hines police officers. [27] ¶ 8. Along with Plaintiff, 11 other Hines police officers similarly performed training and instruction between 2004 and 2016. Id. In November 2014, Plaintiff began working on training full-time, taking over the full-time training duties from Officer Tylor Whitt. Id. ¶ 9. Plaintiff did not formally apply or interview for these new duties, and the VA did not issue a vacancy announcement for a full-time training role. Id. Plaintiff performed these training duties for over 52 weeks, and during this time training comprised his primary job function. [36] ¶ 6.

During the time that Plaintiff performed the full-time training role, the VA still officially designated him as a GS-6 police officer. [27] ¶ 3. Plaintiff reported to Lieutenant Joseph Ellena, rather than Captain Henderson—the VA employee in charge of training. Id. ¶¶ 3, 10-11. Ellena's performance appraisal of Plaintiff for October 2014 through September 2015 listed Plaintiff as a GS-6 police officer, noting that the VA had detailed Plaintiff to Captain Henderson to perform training duties. [27-2] (Exhibit 10) at 1053, 1060. In June 2015, Plaintiff signed a retention serviceagreement stating that he worked as a GS-6 police officer. [27] ¶ 12; [27-2] (Exhibit 11).

D. Hines' SF-52 Practices

The Office of Personnel Management (OPM) instructs federal agencies to issue SF-52 forms when they detail an employee to a position at a higher-grade than that of their current, official position for more than 120 days. [36] ¶ 8; [36-1] (Exhibit 5) Table 14-A.

At some point in 2015, Plaintiff asked Chief Marsh to provide him with an SF-52 form indicating that he performed the duties of a GS-7 or GS-8 training officer. [27] ¶ 18. According to Chief Marsh, he did not provide an SF-52 form to Plaintiff because no "training instructor" or "training officer" position—at a grade higher than GS-6—existed at Hines at...