Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bender v. Shulkin

United States District Court, N.D. Texas, Dallas Division

March 23, 2017

JOHN A. BENDER, Plaintiff,
DAVID J. SHULKIN, M.D., Secretary of Veteran's Affairs,[1] Defendant.


          Sam A. Lindsay United States District Judge

         On March 22, 2017, the court issued a memorandum opinion and order in this case. See Doc. 68. The court has discovered a typographical error and, accordingly, hereby vacates the March 22, 2017 memorandum opinion and order and substitutes this amended memorandum opinion and order in its place. There is no substantive difference between the amended memorandum opinion and order and the one issued yesterday.

         Before the court is Defendant's Motion for Summary Judgment (Doc. 43), filed December 28, 2015. After considering the motion, response, reply, summary judgment evidence, record, and applicable law, the court grants in part and denies in part Defendant's Motion for Summary Judgment.

         I. Factual and Procedural Background

         This is an employment discrimination case. Plaintiff John A. Bender (“Bender”), an African-American male, filed this action on July 18, 2014, against Defendant David J. Shulkin, Secretary, United States Department of Veteran's Affairs (“Defendant” or “VA”), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.001 et seq.[2] Bender alleges that Defendant unlawfully discriminated against him based on race, retaliated against him for engaging in protected activity, and subjected him to a hostile work environment. Bender seeks compensatory and punitive damages, attorney's fees, and costs. The court now sets forth the evidence, viewed in the light most favorable to Bender, as the nonmovant, and draws all reasonable inferences in his favor. See Celotex v. Catrett, 477 U.S. 317, 323 (1986).

         A. Bender's Employment as Patient Safety Manager

         Bender began working for the VA in January 2007 as a Patient Safety Manager, grade 13, at the VA's North Texas Health Care System located in Dallas, Texas (hereinafter, “VANTHCS”). VANTHCS is one of four VA Health Care Systems in the state of Texas, all of which are in the geographical boundaries of the VA's Veterans Integrated Service Network 17 (“VISN 17").

         As Patient Safety Manager, Bender was supervised by the Medical Director of VANTHCS. Medical Director Joseph Dalpiaz (“Dalpiaz”) supervised Bender from 2007 to sometime in 2010. In 2009, Dalpiaz awarded Bender a retention incentive of 15% of his salary and promised him that the incentive would be increased to 20% if the Dallas VA achieved certain milestones. Sometime in 2010, Dalpiaz took a different job position and Mark Doskocil (“Doskocil”), as Acting Medical Director, became Bender's immediate supervisor until in or around the end of September 2011. In October 2011, Jeffrey Milligan (“Milligan”) was hired as the Medical Director of VANTHCS and became Bender's direct supervisor.

         B. Acting Medical Director Doskocil

         In 2010, Doskocil issued Bender a “letter of counseling” based on a complaint against him made by a Caucasian female, Diane Lyle. Doskocil did not investigate the allegations prior to issuing the “letter of counseling” and raised his voice at Bender during a meeting about the complaint. Bender believed that Doskocil was discriminating against him based on race, that he would not have issued the “letter of counseling” to a Caucasian employee without first conducting an investigation, and that he would not have raised his voice at a Caucasian employee. In April 2011, based on these events, Bender filed an Equal Employment Opportunity (“EEO”) complaint asserting harassment and race discrimination. Thereafter, another employee, Sharon Johnson, told Bender that Doskocil was trying to “weed out” African-American employees. Doskocil learned about the EEO Complaint and was angry.

         On May 24, 2011, Doskocil issued Bender a second “letter of counseling, ” advising him of a complaint by another Caucasian female, Dr. Catherine Orsak. Doskocil, once again, failed to investigate the complaint prior to issuing the letter. In July 2011, Bender and the Dallas VA successfully mediated Bender's EEO complaint. Doskocil was angry during the negotiations and berated Bender for filing an EEO complaint.

         In September 2011, Doskocil gave Bender a lower performance rating of “Fully Successful, ” instead of the “Outstanding” rating he had previously received, justifying the lower rating by pointing out the “letters of counseling.” Doskocil had the Dallas VA police stand by when he delivered the lower rating to Bender. Bender believes this lower rating adversely affected his income because it caused him to not receive a bonus in 2011, as only employees with a higher rating that “Fully Successful” were entitled to a bonus.

         Doskocil refused to allow Bender to attend the Health Care Leadership Development Program in 2011, telling Bender he could not attend because of Dr. Orsak's prior complaint against him. Near the end of his term as Acting Medical Director, Doskocil made negative statements about Bender to Milligan-the incoming Medical Director and Bender's soon-to-be supervisor-and told him that Bender should be fired. Donald Burrell (“Burrell”), President of the American Federation of Government Employees, Local 2437, who was, until recently, employed by VANTHCS, states in a declaration that he participated in a 2011 meeting with Doskocil, where he learned that “Mr. Milligan had been given orders by Mr. Doskocil to fire John Bender[.]” Pl.'s App. 215-16. Burrell further testifies that Doskocil told him “that he was mad that Mr. Bender had filed an EEO [complaint] against Mr. Doskocil” and “wanted Mr. Bender gone[.]” Id.

         Doskocil made it difficult for Bender to perform his job duties by not allowing him to fill two open positions in his department, which caused Bender to have to work numerous hours of overtime each day. Bender was not allowed either overtime pay or compensatory time for these hours, although he had received overtime pay when he worked under Dalpiaz. Though there were hiring freezes in place for a period of time, Doskocil eventually allowed other departments to hire, but did not release the freeze on Bender's department. Bender's department was the only one not allowed to fill vacancies during that time period in 2012.

         C. Medical Director Milligan

         Milligan was hostile to Bender during their first meeting and asked Bender to explain why other members of the “Quad” did not like Bender. Milligan ordered Bender to conduct individual meetings with each member of the “Quad.”

         1. Racial Slurs

         In late 2011, per Milligan's instructions, Bender met with Dr. Clark Gregg (“Gregg”), Chief of Staff at the VANTHCS. Dr. Gregg told Bender that Shirley Bealer, Sandra Griffin, and “all the rest of these niggers” would be gone and that Bender would be next. Gregg also told Bender he would kill him if he filed an EEO complaint against him. Id. at 12, 183, 500.

         On November 21, 2011, Kenneth Carroll, a staff attorney with the VA Office of Regional Counsel, called Bender a “house nigger” in front of his peers and supervisors during a morning meeting of the VA senior leadership team. Bender describes the incident as follows:

During the meeting, Carroll had been asked what should be done if the union called people names or if the union became disrespectful during a meeting with an employee and the union. In response to the question, Carroll pointed at Bender and called him a “house nigger' as an example of what would be an inappropriate comment.

Id. at 499 (Pl.'s Ans. to First Set of Interrogs. at 12). In attendance at the meeting were, among others, Milligan, Human Resources Officer Barbara Rogers (“Rogers”), Associate Director Peter Dancy (“Dancy”), attorney Curt Martin, Chief of Pharmacy Ruth Bechdol, Florine McCall (“McCall”), Capri Rice (‘Rice”), and Bender. Milligan, Bender's direct supervisor, did nothing to reprimand Carroll. Though Milligan denies hearing the racial slur, three other meeting attendees testify that they heard Carroll call Bender a “house nigger.” McCall heard Carroll call Bender a “house nigger, ” and states Carroll was “making an analogy” when he said “house nigger, ” and was using Bender as an example. Id. at 354. She also testified at her deposition that the “word is used around here loosely[.]” Id. at 355.

         That same morning, just before the November 21, 2011 meeting, Bender heard Milligan and others discussing a “monkey book.” Rice, an African-American female, later filed an EEO complaint after hearing Carroll call Bender the “house nigger” and after hearing Milligan joke with another employee at the same meeting about a book called “The Monkey, ” rather than reprimand Carroll for his conduct.

         On certain occasions, when Christopher Sandles, an African American-employee, was late to the morning report meeting, Bender heard Milligan ask the group: “Where is that boy Sandles? I am looking for that boy.” Id. at 14, 500. Bender never heard Milligan refer to any non-African-American employees as “boy.” Id. at 500.

         2. Termination of Retention Incentive

         In December 2011, Milligan terminated Bender's retention incentive with the termination retroactive to June 2010, contending that the retention incentive had not been properly approved. In contrast to Milligan's declaration, Lawrence Biro (“Biro”), Network Director of VISN 17, testified that he accepted Milligan's decision to terminate Bender's retention incentive because of Bender's low performance rating.

         3. Edoghotu's Complaint About Bender

         VANTHCS employee Felicia Edoghotu (“Edoghotu”) filed an EEO complaint on September 2, 2011, alleging hostile and offensive behavior toward her by Bender when she was his subordinate at VANTHCS, including allegations that Bender approached her aggressively about work matters and would call her into his office to yell at her and berate her once or twice per month. Def. App. 123-37. She also alleged retaliatory harassment by Bender based on her prior EEO activity. Id. On March 7, 2014, after holding an administrative hearing, Administrative Law Judge (“ALJ”) Veronica Cuadra issued a decision finding in favor of Edoghotu and holding the VA vicariously liable “for sex- and reprisal-based hostile environment.” Id. at 137. Following the ALJ's decision, the parties negotiated a settlement and the ALJ issued a procedural decision dismissing the complaint. Id. at 120. Bender contends that the VA did not adequately defend him from Edoghotu's complaint. Sandra Cawley defended the VA in the proceeding but did not meet with Bender to prepare him for the hearing and introduced none of the documentary evidence that supported the VA's position.

         4. Bender's Suspension and Temporary Detail

         When the ALJ's ruling was issued, Edoghotu no longer reported directly to Bender. She had been moved out of his department before the hearing was held. Even though she no longer reported to him, the VA's counsel, Michael Anfang and Kurt Martin, and Human Resources Officer Rogers decided to strip Bender of all supervisory duties. These individuals knew of Bender's prior EEO complaints. Milligan recused himself from the process but knew what occurred because he was a participant in e-mail threads on the subject. These employees, knowing that Edoghotu no longer worked for Bender, instructed Associate Director Peter Dancy (“Dancy”) to put Bender on administrative leave immediately. Dancy admits that the decision to put Bender on leave was not his decision, although he signed the letter that placed Bender on leave. Bender was instructed to leave the VA premises immediately and not to return until so instructed. VA police officers were nearby and closely watched as Bender left the premises.

         On March 28, 2014, after two weeks on paid administrative leave, Bender was summoned to report to Dancy's office At that meeting, Dancy advised Bender that he was going to be temporarily detailed to a GS-12 position.[3] On March 31, 2014, Dancy issued Bender a letter formalizing the decision to detail him to the Administrative Officer position in the Physical Medicine and Rehabilitation Service (“PM&R”), a position with no supervisory duties. The detail had no impact on Bender's pay. In this position, Bender reports to Dr. Weibin Yang. At his deposition, Dancy stated that the justification for moving Bender out of a supervisory role was so that he would no longer supervise the employee who had complained about him. Dancy admitted at his deposition that he was not made aware that Edoghotu no longer worked for Bender at the time he was moved to PM&R. Although this assignment was classified as a “temporary detail, ” as of January 2016, Bender was still working this detail. Dancy states that he has not considered returning Bender to his former job as Patient Safety Manager (or any supervisory position) because such decision is the domain of Milligan.

         5. Fourteen-Day Suspension Without Pay

         On November 2, 2015, Dancy, relying on the recommendation of HR employee Rebecca Franks and VA Regional Counsel Jeffrey Reeder, suspended Bender for fourteen (14) days without pay, purportedly as a formal discipline for the ALJ's adverse decision on Edoghotu's complaint. This suspension took place twenty (20) months after the ALJ's decision. Dancy states that Human Resources drafted the letter he presented to Bender regarding the disciplinary suspension, that he reviewed no documents to help him reach the decision of suspension, and that he relied on Human Resource's guidance. Dancy testified he had no explanation why no discipline was proposed earlier and can identify no other VA managers disciplined in this same fashion because of an adverse finding on an EEO complaint by an ALJ. The fourteen (14) day suspension deprived Bender of compensation in the amount of $3, 700.

         6. Bender's PM&R Position Downgraded from GS 12 to GS 9

         Bender learned on September 13, 2016, that his detailed position in PM&R had actually been downgraded from a GS-12 to a GS-9 position in May 2015. Thus, since May 2015, even though Bender is a GS-13, step 7 employee, he is classified and performing the job duties of a GS-9 employee. Staff members are aware of the downgrading of Bender's position, which is publicly embarrassing for Bender. Being a GS-9 with no supervisory duties has harmed Bender professionally. His applications for other positions at the VA or in the private sector have been rejected because of his lack of leadership duties in his current position, and his requests to attend leadership training seminars were denied for similar reasons.

         7. Bender's Charges of Discrimination and Lawsuit

         Bender filed EEO Complaints in April 2011, November 2011, February 2013, and May 2014, complaining of harassment, race discrimination, and retaliation. On July 18, 2014, Bender filed this lawsuit. On December 11, 2015, Bender filed his Third Amended Complaint (Doc. 39), the live pleading. It is undisputed that Bender has exhausted his administrative remedies. On December 28, 2015, Defendant filed a motion ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.