Watkins v. Wilkie

RICHARD WATKINS, Plaintiff, v. ROBERT WILKIE, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS Defendant.

Case No. 1:17-cv-531

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

September 25, 2019

Litkovitz, M.J.

ORDER

I. Introduction

Plaintiff Richard Watkins brings this action against his employer, the Department of Veterans Affairs ("VA"), alleging that he was subjected to a racially hostile work environment and was retaliated against in violation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.¹ and 42 U.S.C. § 1981. This matter is before the Court on defendant's motion for summary judgment (Doc. 29), plaintiff's response in opposition (Doc. 30), defendant's reply memorandum (Doc. 43), and plaintiff's sur-reply (Doc. 50).

II. Facts on Summary Judgment

The following facts are undisputed except where noted.

Plaintiff is a fifty-one-year-old African American male. He began his employment with defendant as a pharmacy technician at the Cincinnati VA Medical Center in 1991. (Deposition of Plaintiff Richard Watkins, Doc. 31 at 20, 22). From approximately 1996 to 2002, plaintiff held a position in labor relations and employee relations at the VA. (Id. at 26-27). In 2002, the VA promoted plaintiff to the position of employee relations specialist out of the VA's central office in Washington, D.C. (Id. at 30). In 2007 or 2008, the VA promoted plaintiff to GS-14 labor relations specialist, a position that he still holds. (Id. at 31). Although employed by the VA central office in Washington, D.C., plaintiff teleworks from home in Liberty Township, Ohio. (Id. at 40). In mid-2015, the VA appointed Don Stephen to serve as plaintiff's temporary supervisor for 120 days, from approximately June to October 2015. (Deposition of Don Stephen, Doc. 36 at 25-26). After returning to his non-supervisory position, Stephen was promoted to a permanent supervisory position in April 2016 and served as plaintiff's supervisor again from April 2016 until late 2016. (Id.; Watkins Depo. at 37). Kimberly Moseley, who is African-American, served as plaintiff's second-level supervisor. (Deposition of Kimberly Moseley, Doc. 38 at 13). Ms. Moseley held the position of Senior Executive Services, Executive of Labor Relations. (Id. at 10).

A. Racial Slur Incidents in 2015

Plaintiff asserts that sometime in 2015, his co-worker Ashley Levesque, who is Caucasian, made racially offensive statements in his presence. The first incident occurred at a bar during an after-hours work event. When discussing his recent travels to Asia, an unidentified individual² said to plaintiff, "I bet you were like King Kong over there because you are so tall." (Watkins Depo. at 65-66). Ms. Levesque later said to plaintiff at the bar, "you let her call you a monkey, you let her call you an ape." (Id. at 66). According to defendant's interpretation of the incident, Ms. Levesque was personally offended when she overhead the statement and told plaintiff that he should not have let the individual "call [him] a monkey." (Doc. 29 at 8). Ms. Moseley testified in her deposition that she talked to plaintiff after the incident and asked what happened. (Moseley Depo. at 32). Plaintiff responded: "It's okay. Ashley just made a big deal of it. It was not a big deal." (Id.).

The second incident occurred at an office meeting in late 2015 or early 2016 where Ms. Levesque referred to another co-worker as a "nigger" in a conversation with plaintiff. (Watkins Depo. at 67, 107). Plaintiff testified that other than these comments made by Ms. Levesque, he never heard anyone else use a racial slur in the workplace in his 25 years of service at the VA. (Id. at 84). However, as reported by other VA employees, Ms. Levesque directed racial slurs at other coworkers on other occasions, which included calling African-American employee Timothy Woodard a "nigger" and African-American supervisor Janis Tullis a "monkey." (Woodard Decl., Doc. 34 at ¶¶ 7-8). Anitra Jones, an African American staff assistant, witnessed Ms. Levesque call Mr. Woodard a "nigger." (Deposition of Anitra Jones, Doc. 39 at 19-20). However, Ms. Moseley testified that longtime VA employee Melissa Paul, also known as Melissa Best, was the individual who directed the racial slur towards Timothy Woodard and her remark was overheard by Ms. Levesque, who in turn reported it to Janis Tullis, who then reported it to Ms. Moseley. (Moseley Depo. at 17-18). Thus, the parties dispute whether Ms. Levesque or Ms. Best directed the racial slur towards Mr. Woodard.

Although he could not recall the exact date, plaintiff testified that he orally notified Ms. Moseley of the racial slurs made by Ms. Levesque at the bar and the meeting. (Watkins Depo. at 67-68). Plaintiff testified that he was "almost sure" but did not know specifically whether his allegations regarding Ms. Levesque were reported before or after his October 2015 performance evaluation. (Id. at 108-09). Ms. Moseley testified that she did not recall any reports in 2015 against Ms. Levesque accusing her of making racially discriminatory statements. (Moseley Depo. at 15). Ms. Best attests that she was aware that Ms. Levesque frequently used the word "nigger" in the workplace while employed by the VA. (Best Affidavit, Doc. 35 at ¶ 5). Ms. Best reported the use of racial slurs by Ms. Levesque to Ms. Moseley and Gina Farrisee, Assistant Secretary of Human Resources. (Id. at ¶ 6). However, Ms. Moseley testified at her deposition that Ms. Best reported to her that Ms. Levesque's first remark at the bar was made because she was standing up for plaintiff and was personally offended by the King Kong comment. (Moseley Depo. at 30-33). Later, Ms. Best informed Evester Edd of Ms. Levesque's statements during a 2015 formal workplace investigation. (Best Affidavit at ¶ 6). Mr. Stephen testified that he first learned of the racial slur incidents at the informal mediation phase of plaintiff's EEO complaint when he was no longer a supervisor of plaintiff or anyone else. (Stephen Depo. at 22, 24). However, plaintiff believes that Mr. Stephen was aware of these allegations at the time of his performance evaluation in October 2015. Plaintiff also sent a letter to Congressman John Boehner, then-Speaker of the United States House of Representatives, informing his office of racially offensive language used at the VA. (Watkins Depo. at 71-72). Speaker Boehner's office informed plaintiff that they sent a letter to the VA Secretary addressing his concerns. (Id. at 72). The VA Secretary responded that plaintiff needed to file a complaint with the Equal Employment Opportunity "EEO" office. (Id.).

In February 2015, Ms. Moseley requested a formal fact-finding to address the number of concerns brought to her attention. (Doc. 29-1 at 54-55; Moseley Depo. at 21). One issue addressed during the investigation was a concern that Ms. Levesque had improperly removed personnel documents from Mr. Woodard's desk. (Moseley Depo. at 22-23). Ms. Moseley testified that another triggering event of the investigation was Ms. Levesque's complaint that Ms. Best used a racial slur. (Id. at 24). Plaintiff also testified that the investigation involved Ms. Best's use of a racial slur. (Watkins Depo. at 74). The investigation was conducted by Evester Edd. (Jones Depo. at 17). During the investigation, plaintiff informed Edd that Ms. Levesque used racial slurs in the workplace and used the "N-word" at the meeting. (Watkins Depo. at 74, 79).³

B. Plaintiff's 2015 Performance Evaluation

On October 16, 2015, Mr. Stephen, as plaintiff's interim supervisor, conducted a 2015 fiscal year annual performance evaluation. (Doc. 29-1 at 69-79). According to plaintiff, Mr. Stephen and Ms. Levesque had a very close relationship and were friends. (Watkins Depo. at 70). Plaintiff received an overall performance rating of "excellent," which was lower than the highest rating of "outstanding" that plaintiff received for the 2014 fiscal year. (Doc. 29-1 at 73; Doc. 31-1 at 5). Plaintiff received a rating of "fully successful" rather than a perfect rating of "exceptional" on the element of teamwork. (Doc. 29-1 at 72). Although Mr. Stephen could not recall any specific interactions with plaintiff warranting the "fully successful" rating in this area, Mr. Stephen testified that he based the rating on plaintiff's self-assessment and the observations that he made as plaintiff's interim supervisor for 120 days. (Stephen Depo. at 43-45). Plaintiff did not file a grievance related to his evaluation. (Watkins Depo. at 102). The evaluation had no negative financial impact on plaintiff. (Id. at 129). Plaintiff was not terminated, demoted, or disciplined as a result of his 2015 evaluation. (Id. at 128).

Although plaintiff's evaluation was mostly positive, the record shows that his supervisors did have some concerns about his work. For example, in April 2015, Ms. Moseley returned an assignment to plaintiff and explained that it needed additional work. (Doc. 29-1 at 95). Mr. Stephen asked for updates on the status of the assignment in August and September 2015. (Id. at 93-94). In addition, in early September 2015, Mr. Stephen requested that plaintiff write a white paper in preparation for a mandatory training for management and certain employees. (Doc. 29-1 at 106). After an initial submission, Mr. Stephen asked plaintiff to "re-work" the document a little bit and "give a more comprehensive explanation of the issue at hand." (Id. at 105). Unclear about expectations for the assignment, plaintiff asked questions about the assignment to the point that Mr. Stephen eventually offered to complete it himself. (Id. at 104-05). Plaintiff declined Mr. Stephen's offer. (Id. at 103). At the end of September 2015, Mr. Stephen informed plaintiff that he needed a finished product of the assignment by October 6, 2015. (Id. at 101). Plaintiff responded that he was on travel until October 12, 2015 and could not meet this "unreasonable deadline." (Id.).

C. Plaintiff...