McHale v Shulkin et al

Filing 79

MEMORANDUM Opinion and Order: For the reasons stated herein, the Court grants the Secretary's Motion for Summary Judgment on all claims. Erin M. McHale. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 8/10/2021: Mailed notice(maf)

Case: 1:17-cv-02896 Document #: 79 Filed: 08/10/21 Page 1 of 9 PageID #:2023

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIN M. McHALE,
Plaintiff,
v.

Case No. 17 C 2896

DAVID J. SHULKIN, as
Secretary, U.S. Department
Of Veterans Affairs,

Judge Harry D. Leinenweber

Defendant.
MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

The Plaintiff, Erin M. McHale, after receiving a certificate
from an Everest College training program, started working for the
Hines VA Hospital (“Hines”) in 2011 as an inpatient pharmacy
technician GS-6. (Pl.’s Resp. to Def.’s Stmt. Of Facts (“PSOF”)¶¶
1–2, Dkt. No. 76.) Her duties were filling prescriptions and batch
prescriptions, delivering prescriptions, and making IV medications
for all the hospital patients. (Id. ¶ 3.) In May 2014 she was
transferred

to

the

Hines

outpatient

pharmacy

where

her

classification and duties remained the same. (Id. ¶¶ 4–5.) In May
2017,

she

was

transferred

to

her

current

position

at

Hines:

advanced medical support position, at the same GS-6 grade. (Id. ¶
6.)

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Plaintiff

received

excellent

ratings

in

her

performance

appraisal for the 2012 to 2013 work period. (Def.’s Resp. to Pl.’s
Stmt. Of Facts (“DOSF”) ¶ 3, Dkt. No. 78.) However, in the fall of
2014, she began to develop attendance problems which she attributed
to diabetes medication she was taking. (Id. ¶ 4.) As a result, her
supervisor informed her that she was taking too much sick leave
and she placed her on sick leave restriction. (Id. ¶ 6.) On
January 23,

2015,

Plaintiff

contacted

the

VA

EEO

counselor

complaining of the sick leave restriction. (PSOF ¶ 7.) After
mediation

failed,

she

filed

an

administrative

complaint

of

discrimination on April 24, 2015. (Id. ¶ 8.) In this Complaint,
she again complained about the sick leave restriction but also
added complaints about not receiving a December 2014 promotional
position and for not receiving another promotional position in
March 2015. (Id.) However, her sick leave complaint was dismissed
pursuant to an EEOC regulation because she had previously grieved
this subject with her union. (Id. ¶ 9.) She then amended her
administrative complaint to include a claim of retaliation for her
EEO activity and a claim of a hostile environment. Her complaints
consisted of the following:
(1) On December 17, 2014, she was not selected for the
position of procurement technician, GS-7 under vacancy
announcement number HN-14-BD-1263659-BU;

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(2) On January 12, 2015, her supervisor sent out an
email to staff criticizing her for mail left in the cart,
which humiliated her;
(3) On March 12, 2015, her supervisor was extremely
rude to her in the presence of other employees while
blaming her for deficiencies of another employee;
(4) On April 6, 2015, her annual leave request was
denied;
(5) On March 19, 2015, she was not selected for the
position of pharmacy technician (automation), GS-7 under
vacancy announcement number HN 15-BD- 1320292;
(6) On March 23, 2015, she was given additional duties
without any assistance;
(7) On June 25, 2015, she was forced to use leave
without pay (“LWOP”);
(8) On September 30, 2015 and October 2, 2015, her
supervisor’s friend entered 45 minutes of annual leave
into the system which was against policy;
(9) On October 1, 2015, management only allowed her 30
minutes of administrative leave to gather information
for her EEO investigation although she needed more time;
(10) On October 1, 2015, she was forced to use leave
without pay (“LWOPP);
(11) On November 3, 2015, she was forced to use annual
leave for her late arrival;
(12) On November 3, 2015, she was not selected for the
position
of
automation
technician
under
vacancy
announcement number HN-15- BC-1511304-BU; and
(13) On November 3, 2015, her supervisor failed to
assist her when completing her worker’s compensation
forms.
(Id. ¶¶ 8–10.) The investigation of Plaintiff’s administrative
complaints included an investigator interviewing under oath and
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obtaining affidavits from Plaintiff, her supervisor, and the chief
of the Hines pharmacy department, who had been accused by Plaintiff
of

retaliation

for

her

prior

EEO

activity.

(Id.

¶

13.)

The

investigator also interviewed under oath and obtained affidavits
from the members of the selection panel that made the promotion
recommendations,

as

well

as

from

other

management

and

human

resources personnel. (Id. ¶ 22.) A final agency decision dismissing
the complaint was filed on January 6, 2017. (Id. ¶ 28; Final Agency
Decision, Def.’s Stmt. of Facts, Ex. C, Dkt. No. 69-3.) Plaintiff
timely filed this Complaint in Federal District Court in which she
raises her non selection for promotions in 2014 and 2015, her claim
of hostile environment, her sick leave claim from 2014, and the
discipline she received, and for the first time, a claim of
discrimination in violation of the Rehabilitation Act, 29 U.S.C.
§§ 791, 794. (Dkt. No. 1.) Her disability claim is based on alleged
side effects of diabetes medication she was taking that affected
her ability to perform her work in 2016 and for the failure
reasonably to accommodate this alleged disability. She also raised
for the first time a claim that she was unfairly downgraded by her
supervisor in 2016. The Defendant now moves for summary judgment.
(Dkt. No. 67.)

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II.
A.
Plaintiff’s

DISCUSSION

The Failure to Promote Claim

failure

to

promote

claim

is

premised

on

retaliation by the Department for her prior EEOC activity for which
administrative

review

had

been

exhausted.

The

Administrative

complaint panel who investigated Plaintiff’s claims found that
Plaintiff’s qualifications were not significantly superior to the
qualifications of the successful candidates, and that she did not
produce any direct or indirect evidence that her non-selection was
based on protected EEO activity. The panel found that, while
Plaintiff scored higher on the interview portion of the application
process, the successful candidates each had more experience and
seniority than Plaintiff, so that her qualifications were not so
significantly higher to give an inference of pretext. The panel
noted that each of the successful candidates had themselves filed
prior EEO complaints, including a complaint by one of them against
Plaintiff’s own supervisor. The second position Plaintiff applied
for was pharmacy automation position and the successful candidate
held

that

same

position

at

another

agency,

so

that

her

qualifications were clearly superior. Moreover, Plaintiff had her
sick leave problems which the successful applicants did not have.
In the absence of direct evidence, to prove a claim indirectly
under the McDonnell Douglas framework, a plaintiff must show that
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she engaged in protected activity; she suffered a materially
adverse

employment

action;

she

was

meeting

her

employer’s

legitimate expectations; and she was treated less favorably than
similarly situated employees who did not engage in protected
activity. McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d
360, 370-371 (7th Cir. 2019)(citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). Here as in McDaniel, Plaintiff’s claim
is doomed because the two successful candidates also had histories
of EEO activity, so Plaintiff has failed to suggest similarly
situated employees who did not engage in protected activity. See
also Mannie v. Potter, 394 F.3d 977 (7th Cir. 2005) (finding the
plaintiff

fell

well

short

of

providing

direct

evidence

of

retaliatory animus and likewise failed to show indirectly by
proving that similarly situated employees who had not made EEO
claims

were

treated

more

favorably).

Plaintiff

therefore

has

failed to prove her retaliatory failure to promote either directly
or indirectly.
B.

Hostile Environment

The remaining claims (Nos. 2, 3, 4, 6, 7, 8, 9, 10, 11, and
13) that Plaintiff made in an administrative EEO complaint allege
she was retaliated against and was subject to a hostile environment
due

to

her

prior

administrative

EEO

agency,

activity.
the

The

Department
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record
of

shows
Veteran

that

the

Affairs,

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conducted a lengthy and through investigation into Plaintiff’s
complaints of retaliation and hostile environment and found that
they were job related and, similar to her failure to promote claim,
were not as a result of retaliation. The Agency also found that
the claimed harassing conduct was not sufficiently severe or
pervasive to create an objectively hostile work environment. The
latter clearly is a correct conclusion. The Supreme Court has held
that the law does not prohibit all verbal or physical harassment
in the workplace. To amount to hostile workplace environment, the
harassment

must

be

“so

severe

or

pervasive

as

to

alter

the

conditions of [the victim’s] employment and create an abusive
working environment.” Faragher v. City of Boca Raton, 524 U.S.
775,

786

(1998).

This

is

not

the

case

here.

Plaintiff

is

complaining of a few cases of alleged rudeness (Nos. 2 and 3);
denial of annual leave requests (Nos. 4 and 11); forced to use
leave without pay (Nos. 7 and 10); given additional duties without
any assistance (No. 6); and forced to use annual leave for arriving
late to work (No. 11). This laundry list of complaints occurring
over a long period of time falls far short of the standard of
Faragher. None of the described injuries “amount to discriminatory
changes in the terms and conditions of employment.” Id. at 788.

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Therefore, the Court finds in favor of the Defendant on the hostile
environment claim.
C.

Rehabilitation Act Claim

The Defendant has moved to dismiss Plaintiff’s Rehabilitation
Act claim on the basis that it is barred because she did not raise
it administratively and therefore did not exhaust administrative
remedies

before

filing

this

suit.

Plaintiff

spent

two

years

administratively exhausting the thirteen claims considered above.
After losing before the administrative agency on all thirteen
claims she now seeks to recover for one she did not raise. Nowhere
does the word disability appear in her pleadings before the agency.
Moreover, the agency officials all claim under oath that they did
not know she even had diabetes, let alone being disabled by this
disease.
Under the Rehabilitation Act, federal agencies are prohibited
from discriminating on the basis of an individual’s disability. An
individual

that

has

suffered

discrimination

can

seek

relief

pursuant to the procedures and requirements outlined in Title VII
of the Civil Rights Act, which includes the requirement that a
claimant must exhaust administrative remedies prior to bringing a
suit in federal court. While not jurisdictional, it is a condition
precedent. Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009). The
purpose of the requirement is to promote resolution of the dispute
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by settlement or conciliation and to ensure that the employer
receives adequate notice of the charges against it. There is one
escape provision for a plaintiff who fails to allege a claim before
the administrative body. A plaintiff must meet the test set out in
Jenkins v. Blue Cross Mt. Hosp. Ins. Inc., 538 F.2d 164, 167 (7th
Cir. 1976). A claim can be saved if it is “reasonably related to
the allegations of the charge and growing out of such allegations.”
Id. Here the Plaintiff made absolutely no mention of disability, a
need for accommodation, or even that she was a diabetic. Plaintiff
grasps at a straw in order to argue that her complaints of sick
leave denial could be related to a claim of disability. In fact,
her Complaint claimed that problem existed in retaliation for her
EEO activity and not that she was being denied an accommodation.
Therefore,

her

claim

of

a

disability

did

not

relate

to

the

allegations of her administrative charge and certainly did not
“grow out” of her allegations. Her claim for disability is denied.
IV.
For

the

reasons

CONCLUSION

stated

herein,

the

Court

grants

Secretary’s Motion for Summary Judgment on all claims.
IT IS SO ORDERED.
DATED: 8/10/2021

Harry D. Leinenweber, Judge
United States District Court
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the