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Hatcher v. Wilkie

United States District Court, S.D. Indiana, Indianapolis Division

September 4, 2018

REGINALD HATCHER, Plaintiff,
v.
ROBERT L. WILKIE, JR., Secretary, Department of Veterans Affairs, Defendant.

          Gregory A. Stowers STOWERS & WEDDLE PC, . AMBER BOYD, ATTORNEY AT LAW, Rachana Nagin Fischer, UNITED STATES ATTORNEY'S OFFICE, Gina M. Shields, UNITED STATES ATTORNEY'S OFFICE

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Robert L. Wilkie, Jr., [1] Secretary of the U.S. Department of Veterans Affairs (“the VA”) (“the Secretary”) (Filing No. 51). Plaintiff Reginald Hatcher (“Hatcher”) was terminated from his employment after a tumultuous, year-long stint working as a housekeeping aide in the VA's environmental management services department. Following his termination, Hatcher filed this action asserting claims for racial and sexual harassment, race discrimination, and retaliation. The Secretary filed a Motion for Summary Judgment, arguing there is insufficient evidence to support any of Hatcher's claims. For the following reasons, the Court grants in part and denies in part The Secretary's Motion for Summary Judgment.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Hatcher as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Hatcher, an African-American male, began working for the VA as a housekeeping aide in the Environmental Management Services department (“EMS”) on January 26, 2014, at the Richard L. Roudebush VA Medical Center (the “Hospital”) in Indianapolis, Indiana (Filing No. 51-7). Hatcher's employment was subject to a one-year probationary period, during which time he had to demonstrate that he fit the qualifications of the position (Filing No. 51-7; Filing No. 51-2 at 19- 20). This probationary period allows the VA an opportunity to review an employee's work, conduct, and performance to determine whether he should be retained and become a permanent part of the federal service (Filing No. 51-2 at 20).

         EMS is responsible for keeping the Hospital clean and sanitary (Filing No. 51-1 at 1-2). During the relevant time period, Toya Crain (“Crain”) was the Chief of EMS, and Sylvia Clark (“Clark”) was the Assistant Chief of EMS (Filing No. 51-3 at 19, 28). Crain is African-American, and EMS was predominantly composed of African-American supervisors and employees. Id. at 14-15. EMS supervisors worked under the direction of Crain and Clark, and work leaders worked under the direction of the supervisors. Id. at 78. Work leaders were responsible for monitoring EMS housekeeping aides to make sure they were in their assigned areas and accomplishing their assigned tasks (Filing No. 51-4 at 1).

         When Hatcher began working in January 2014, his supervisor was La'Gail Sanford (“Sanford”), an African-American female. Less than a month after Hatcher started his employment, Sanford asked him if he was single and told him that he was good looking. She explained to Hatcher that she had lost her husband, had not had sex in a long time, and wanted to have sex with him. Additionally, Hatcher had a medical condition that was treated by Caucasian female doctors at the Hospital, and occasionally Hatcher would see his doctors while he was working and stop to converse with them. On one occasion, Sanford saw Hatcher talking with one of his doctors, and Sanford told him that he “better quit ‘fucking' with those white girls. [He] was just like those other ‘niggers'. If [he] did not stop [he] was going to get fired.” (Filing No. 61-1 at 3; Filing No. 51-6 at 38-42.) Soon after this incident, Sanford called Hatcher into her office. “She told me ‘to get my ass in here and close the door'. She then told me ‘to quit fucking with those white girls, I am going to fire your ass'.” Id.

         Hatcher complained about these incidents to EMS Assistant Chief Clark, and soon thereafter, Hatcher was transferred to the second shift and fell under the supervision of EMS supervisor Ethan Hughes (“Hughes”) and work leader Frank Viers (“Viers”) (Filing No. 61-1 at 3). The harassment from Sanford stopped after Hatcher was transferred to Hughes' supervision (Filing No. 51-6 at 86-87).

         On April 11, 2014, a patient reported that a housekeeper was sleeping in his room on the other side of the curtain. The housekeeper had asked the patient not to tell anyone and to just wake him up if the patient heard anybody coming. Hatcher was found asleep in the patient's room behind the curtain (Filing No. 51-1 at 7, 2). An EMS supervisor issued written counseling to Hatcher dated May 1, 2014, but because Hatcher was off work from May 3, 2014 to July 28, 2014, this written counseling was not given to him until August 18, 2014. Id. at 2, 5-6.

         Soon after Hatcher was transferred to the second shift under Hughes' supervision, John Robertson (“Robertson”), another EMS supervisor, approached Hatcher and told him that Hughes was racist and did not like Black people, so Hatcher should not work under Hughes' supervision. Robertson is African-American, and Hughes is Caucasian. Robertson tried to convince Hatcher not to work under Hughes, but Hatcher continued to work under Hughes' supervision and had a good working relationship with him without incident. Robertson told Hatcher that he was an “Uncle Tom” for working under Hughes (Filing No. 61-1 at 3-4).

         The work leader under Robertson was Walter White (“White”), who also is African-American. After Robertson was unsuccessful in convincing Hatcher to work under his supervision instead of under Hughes, White or Robertson would call Hatcher “Uncle Tom” or “Uncle Tom Nigger” on a daily basis. Not only did White call Hatcher these racially derogatory names, but he also incessantly followed and monitored Hatcher even though he was not Hatcher's work leader or supervisor. Hatcher complained to Hughes about Robertson and White calling him derogatory names and monitoring him, but this complaint was unavailing as White continued to call Hatcher “Uncle Tom” or “Uncle Tom Nigger” and constantly monitored him (Filing No. 61-1 at 4). The situation was so bad that Hughes tried to arrange Hatcher's work assignments so that he could avoid any contact with Robertson and White (Filing No. 61-8 at 4).

         Because the incessant monitoring and racially derogatory name calling continued, Hatcher complained to Assistant Chief Clark in September 2014. He explained to Clark that Robertson and White told him that Hughes was racist and he should not work for Hughes. Hatcher also explained to Clark that they were calling him racially derogatory names and constantly monitoring him. Clark reported Hatcher's complaint to EMS Chief Crain. Clark did not investigate the complaint because she expected Crain to investigate and address it (Filing No. 61-9 at 3-4).

         Crain acknowledged that Clark reported the complaint of harassment to her in October 2014, but she did not undertake any investigation because she believed that Clark would take care of it (Filing No. 61-3 at 2). Hatcher and Hughes continued to complain to Clark about the ongoing racial slurs and excessive monitoring, and Clark reported the complaints to Crain (Filing No. 61-9 at 4).

         Because of the ongoing problem, Hughes scheduled a meeting with the other second shift EMS supervisors-Robertson and Stephen Perroni (“Perroni”)-on October 15, 2014. During this meeting, Hatcher complained to the three supervisors about being called racially derogatory names and being excessively monitored (Filing No. 61-1 at 4-5). In trying to explain the level of frustration and stress that he was experiencing from White's ongoing harassment, Hatcher stated that “if he were on the street, he would kill Mr. White.” (Filing No. 61-8 at 4.) Hatcher also stated, “I'm a killer, ” and indicated that he did not want to be in the same situation as his brother who went to jail for murdering someone in the same kind of situation (Filing No. 51-1 at 8). Hatcher subsequently clarified his comments and explained that he did not intend to harm White but was trying to show his level of frustration (Filing No. 61-8 at 4; Filing No. 51-1 at 8). At the meeting, it was agreed upon that White would have no contact with Hatcher, yet Hatcher continued to complain that he was being harassed thereafter (Filing No. 61-8 at 4). After the meeting, all three supervisors submitted statements about the meeting and Hatcher's remarks (Filing No. 51-1 at 8- 10). Hughes also contacted Assistant Chief Clark, and she directed Hughes to contact the VA police, which he did. Id. at 8, 11-12.

         About two weeks later, on November 3, 2014, EMS Chief Crain met with Hatcher, Hughes, and Clark. At this meeting, Crain issued a termination letter to Hughes that was dated October 31, 2014, and explained that he was being terminated effective November 15, 2014. During the meeting, Hatcher explained that he had been and was being harassed by White, Robertson, and Perroni. Hughes and Clark both vouched for Hatcher and reminded Crain of the prior complaints of harassment. Crain explained that she had not undertaken any investigation of the complaints. She thought Clark was going to take care of it (Filing No. 51-13; Filing No. 51-14; Filing No. 61-9).

         The termination letter issued to Hatcher explained,

You are being terminated from your position for failure to qualify during your trial/probationary period. Specifically, your termination is due to your use of inappropriate language, for example you said, “If I was on the street I would kill him, ” in regards to [a] work leader. Also, you received a Written Counseling in August 2014; specifically, it was reported that you asked a patient to wake you if the patient “heard anyone coming.” Therefore, it has been determined that your retention is not in the best interest of the Federal Government.

(Filing No. 51-14 at 1.)

         After Hatcher complained about the ongoing incidents of harassment during the November 3, 2014 meeting with Crain, an investigation was commenced that involved the VA's equal employment opportunity office (“EEO”) (Filing No. 51-8). On November 4, 2014, Hatcher met with Lynn Medley (“Medley”) and Dwight Harwell of the EEO. They interviewed Hatcher for two hours about the various incidents of harassment. Medley concluded, “For the purpose of this interview and review of the [reports of contact] submitted I would be inclined to agree that [Hatcher] has been harassed. However, if EMS management feels that his behavior during his probationary period warrants termination, they should move forward with it.” (Filing No. 51-15 at 4-5.) Medley recommended that, in the future, supervisors should consult with the EEO, human resources, and the department chief before initiating a plan of action to address harassment. She further recommended that periodic follow-up be conducted to ensure that harassment has ceased, that mandatory communication training and team building training be provided, and all EEO laws and regulations must be followed. Id. at 5.

         Medley's findings and recommendations were provided to Crain, who shared them with human resources and the assistant director of the Hospital on November 10, 2014. Id. at 6. The assistant director of the Hospital instructed that Hatcher's termination be put on hold to allow further investigation of his harassment claims (Filing No. 51-1 at 3). The assistant director of the Hospital also issued written counseling to all the EMS supervisors as well as to Crain and Clark. The written counseling directed that the use of profanity, abusive language, and derogatory language must stop immediately. Unprofessional behavior such as pointing fingers at employees while giving guidance also was to stop immediately. The written counseling also noted that mandatory communication and team building training was going to be held within the EMS department. Id. at 4, 17-25.

         On November 14, 2014, Hatcher's termination was rescinded. He was reminded that inappropriate language and conduct would not be tolerated, and he also was reminded that he was still working within his probationary period. (Filing No. 51-16.)

         In late December 2014, Hatcher was assigned to work on the second floor to remove trash. On December 28, 2014, he went to the second floor radiology department and knocked on the door. A Caucasian female named Dana opened the door. Hatcher told Dana that he was there to pick up the trash and linens, but Dana shouted at him that there was no trash and closed the door in his face. Hatcher reported the incident to Hughes. (Filing No. 61-1 at 5-6; Filing No. 51-18.) Hughes then went to the second floor radiology department and told Dana that Hatcher's job was to pick up the trash. However, Dana was rude to Hughes and still would not allow Hatcher to pick up the trash. (Filing No. 61-8 at 5.) Hughes reported this to his supervisor, who went to Dana's office to discuss the matter. Dana still refused to allow Hatcher to collect the trash, and when Hughes' supervisor told him about this, he made a gesture to Hughes that suggested Dana had a problem with African-Americans. Id.

         During this same time frame, other female staff in the radiology department on the second floor complained that they felt uncomfortable and nervous around Hatcher. He was found by staff in secured areas and gave them different excuses for why he was there. They alleged that Hatcher made sexual comments to them and starred at them, which made them feel uncomfortable. (Filing No. 51-19 at 4-5.)

         On December 30, 2014, Crain, Medley, a human resources specialist, and the chief of the radiology department held a meeting to discuss the allegations that Hatcher was making female staff in radiology feel uncomfortable. They decided during the meeting that the allegations warranted a fact-finding investigation and that Hatcher should be moved from his second floor assignment to a different assignment. (Filing No. 51-15 at 2; Filing No. 51-3 at 56-62.)

         After the meeting, Crain sent an email on December 30, 2014 to the EMS supervisors and others. The email explained,

Mr. Hatcher is NOT to be assigned to the 2nd floor during his tour until further notice. He can work the units or a different area away from the second floor. If he is found out of his assigned area and/or on this floor staff are ...

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