PERKINS v. PEAKE
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 6/29/12. 6/29/12 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TYRONE D. PERKINS,
ERIC K. SHINSEKI, Secretary of Veterans
MEMORANDUM RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
June 29, 2012
Plaintiff Tyrone Perkins (“Plaintiff”), an African-American male and former employee
with the Department of Veterans Affairs (“VA”), brings this action against Eric K. Shinseki, the
Secretary of Veterans Affairs (“Defendant”). Plaintiff alleges that VA management, in particular
James Ramos and Carol Winter, racially discriminated and retaliated against him in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981. Plaintiff alleges three adverse actions: (1) in 2006, management denied Plaintiff’s
application for a promotion to the GS-13 Systems Administrator position in favor of two white
male candidates; (2) management unfairly charged him AWOL on a number of dates in 2006 and
2009; and (3) in 2009, management demoted him, reassigned him, and suspended him for 10
days without pay. See Pl. Br. at 1; Audio File 6/21/12 at 19:45-21:00 (ECF No. 67). Defendant
moves for summary judgment pursuant to Fed. R. Civ. P. 56(c) (ECF No. 53). For the following
reasons, Defendant’s Motion is DENIED.
Summary of Undisputed Facts
The following is a summary of undisputed facts.1 Other facts bearing on the case are in
dispute and will be discussed later in this Memorandum. The Court views all facts and
inferences in the light most favorable to Plaintiff, the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff worked for the VA from 1977 until his resignation on August 1, 2009. Def.
MUF ¶ 1. At the time of his resignation, Plaintiff held the position of GS-11 Information
Technology Specialist in Philadelphia. Id. ¶¶ 56, 64. During Plaintiff’s tenure at the VA, and
especially between 2002 and 2009, Plaintiff filed numerous EEO complaints against his
employer alleging that his supervisors were racially discriminating against him. Id. ¶¶ 7, 11, 73.
The complaints specifically named James Ramos and/or Carol Winter as the “responsible
management officials” involved. See, e.g., Def. Exh. 14. The details of these complaints need
not be recited here; what is important for purposes of this Motion is that one or more of these
complaints were pending during all of the alleged adverse actions.
Between 2006 and 2009, the VA rendered a number of unfavorable decisions regarding
Plaintiff’s employment and job performance. The first incident occurred in May 2006, when
Plaintiff applied and interviewed for one of two available GS-13 Systems Administrator
positions. At the time of his application, he was working as a GS-12 employee on the
Information Technology Help Desk. Def. MUF ¶¶ 7-8. James Ramos and a Mr. John Carr
interviewed Perkins and six other candidates for the positions, all of whom were Caucasian. Id.
Defendant submitted an itemized statement of material undisputed facts (“Def. MUF”) for purposes of this
Motion, and Plaintiff submitted an itemized response (“Pl. MUF”). Statements which an opposing party “disputed”
were deemed undisputed for purposes of this Motion if the party’s explanation of the dispute was non-responsive or
failed to reference supporting evidence in the record. See Fed. R. Civ. P. 56(c), (e).
¶ 9-10. Two of the other six men were chosen. Id. The documents recording the evaluations of
the seven candidates reflect that the two selected candidates rated similarly to Plaintiff in every
category except in “Experience,” where the selectees were rated higher. Def. Exh. 17; Def. Br. at
Also in 2006 and then again in 2009, Plaintiff was repeatedly docked pay for being
Absent Without Leave (“AWOL”). Def. Exhs. 5-6. The majority of the AWOL charges were
ultimately reversed by VA management and Plaintiff was reimbursed for any lost compensation;
however, AWOL charges resulting in a loss of slightly less than one day’s pay were not reversed.
See Audio File 6/21/12 at 21:30-22:30 (ECF No. 67). The unreversed AWOL charges included,
among other things, a charge rendered by Mr. Ramos for time on August 29, 2006 that Plaintiff
spent meeting with his attorney to prepare for an EEO mediation. That day, Plaintiff left a
voicemail with Ramos requesting leave to meet with his EEO attorney more than two hours
before the meeting was supposed to take place. Def. Exh. 1 at 71:2-5; Def. Exh. 5. Ramos
nevertheless charged him AWOL for the absence.
Finally, on February 18, 2009, Troy Collum, one of Plaintiff’s supervisors, proposed
terminating Plaintiff. Collum cited three grounds for the termination: first, that Plaintiff had
failed to maintain a 90% performance standard after being placed on a probation-like
performance improvement plan (“PIP”); second, that Plaintiff had made inappropriate use of
government email during December 2008; and third, that Plaintiff was AWOL on January 7,
2009 and had a history of AWOL charges. Def. Exh. 10; see Def. Exh. 9 at 90-99 (copies of the
emails). Carol Winter, the decision-maker regarding the proposed termination, decided that in
light of Plaintiff’s length of service, he would not be terminated. Instead, on April 15, 2009,
Plaintiff received a demotion to the GS-11 level, reassignment to a group in which he had
previously worked, and a 10-day suspension (of which he was permitted to serve 4 days over the
weekend). Def. Exh. 12.
Effective August 1, 2009, Plaintiff resigned from the VA. Def. MUF ¶ 64; Def. Exh. 2.
Procedural History in this Court
Plaintiff has filed no less than five complaints in this litigation, with the Fifth Amended
Complaint filed on August 29, 2011 (ECF No. 34). According to Plaintiff’s counsel, each new
complaint added allegations related to Plaintiff’s employment at the VA after those allegations
were administratively exhausted through resolution of pending EEO matters. Audio File 6/21/12
at 2:00-3:00, 7:00-8:00 (ECF No. 67). Presently, there remain no pending EEO matters related to
this case, and there are no other pending litigations raising the claims that Plaintiff brings before
the Court. Id. at 10:30-11:30.
On April 11, 2012, Defendant filed a Motion for Summary Judgment (ECF No. 53). The
Motion asserts myriad defects in Plaintiff’s case, but its most compelling arguments include
(a) that Plaintiff’s claims about the VA’s denial of the GS-13 promotion fail because he cannot
adequately rebut Defendant’s legitimate reason for its decision, as required under the McDonnell
Douglas burden-shifting framework, and (b) that Plaintiff’s claims regarding the AWOL charges
and demotion/reassignment/suspension fail because he has not made out a prima facie case with
respect to those actions.
On May 29, 2012, Plaintiff submitted a lengthy response brief highlighting the evidence
favorable to him in the record (ECF No. 59). Among other things, Plaintiff points to evidence
that, in his view, reveals that the GS-13 selectees had inferior relevant work experience
compared to Plaintiff’s experience. He also highlights evidence tending to show that he followed
proper procedures for obtaining leave on the days he was charged AWOL, and that the
performance metrics used to justify his demotion relied on a performance monitoring system that
the VA knew was faulty.
Defendant replied on June 12, 2012, and the Court held oral argument on June 21, 2012
(ECF Nos. 64, 67). At the close of argument, the Court invited the parties to submit any
additional citations or explanations by way of a short supplemental letter. Defendant and
Plaintiff submitted their letters on June 24 and June 25, 2012, respectively.
Standard of Review
A district court should grant a motion for summary judgment if the movant can show
“that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).2 A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of
the suit under the governing law.” Id.
Where the non-moving party bears the burden of proof on a particular issue at trial, the
moving party’s initial burden can be met simply by showing the district court that “there is an
Although this civil action was pending when the Amendments to the Federal Rules of Civil Procedure
became effective on December 1, 2010, the Court references the amended summary judgment standard in Fed. R.
Civ. P. 56(a), which substitutes “genuine dispute” for “genuine issue,” the phrase in former subdivision (c). The
Rules Advisory Committee explained that the 2010 Amendments do not affect the substantive standard for summary
judgment or the applicability of prior decisions construing the standard. Fed. R. Civ. P. 56 Advisory Committee’s
Note. Pursuant to 28 U.S.C. § 2074(a) and the April 28, 2010 Supreme Court order, the amended rule governs all
proceedings commenced on or after December 1, 2010, and all proceedings then pending, “insofar as just and
practicable.” United States Courts, Rules and Forms in Effect: Rules and Forms Amendments Effective 12/1/10,
http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview/RulesForms120110.aspx (last visited Apr.
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). The party opposing summary judgment must rebut by making a factual
showing “sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id. at 322. The district court may grant
summary judgment “[i]f the evidence is merely colorable, or is not significantly probative.”
Anderson, 477 U.S. at 249 (internal citations omitted). Under Rule 56, the Court must view the
evidence in the light most favorable to the non-moving party and draw all justifiable inferences
in favor of the non-movant. Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 15859 (1970)).
Alleged Adverse Action #1: Denial of the GS-13 Promotion
Plaintiff was rejected for a GS-13 Systems Administrator position in May 2006, which he
contends was the result of racial discrimination and retaliation. Turning first to the former claim,
Defendant expressly concedes that Plaintiff can make out a prima facie case of racial
discrimination with respect to this adverse action. See Def. Br. at 24; Audio File 6/21/12 at
25:00-26:00 (ECF No. 67). Accordingly, the Court’s remaining inquiry under the McDonnell
Douglas framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is whether
Plaintiff has introduced evidence adequate to rebut Defendant’s legitimate, non-discriminatory
reason for denying him the promotion—namely, that Plaintiff did not have as much experience as
the selectees. Plaintiff may survive summary judgment either by (a) pointing to evidence from
which a factfinder could reasonably disbelieve the employer’s articulated legitimate reason, or
(b) showing that an invidious discriminatory [or retaliatory] reason was more likely than not a
motivating or determinative cause of the employer’s action. Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994).
Plaintiff casts doubt on Defendant’s articulated reasons for his rejected candidacy as
follows. Evidence in the record of Plaintiff’s work history, as well as his own testimony, reflects
that Plaintiff had past experience in managing technical systems with features similar to the
Microsoft Exchange system. See, e.g., Pl. Exh. 5 at 114-15. It was precisely this Exchange
system that was described in the formal position descriptions, as well as in Ramos’ testimony
about the positions, as the primary responsibility of the GS-13 jobs. Pl. Exh. 29; Pl. Exh. 2 at 88.
Defendant did not point to evidence in its briefs or at oral argument to contradict the notion that
Plaintiff had this relevant experience, though Defendant contends, without providing citations,
that the selectees’ experience was better on the whole.
Defendant’s unsupported assertions contrast with Ramos’ deposition testimony, in which
he stated that the eventual selectees did not have “experience” with important features of this
type of system, though he qualified this by saying that the selectees had some “exposure.” See
Pl. Exh. 2 at 88-89. Ramos also admitted that one selectee had no prior experience working in
systems administration, at least not within Ramos’ division, and Ramos “did not know” whether
the selectee had any systems administration experience at all. Pl. Exh. 2 at 46-47. This
testimony seems inconsistent with Ramos’ decision to rate the white selectees better in the
“Experience” category than Plaintiff, yet Defendant points to nothing in the record that
adequately reconciles or negates Ramos’ testimony.
In these circumstances, Plaintiff has raised a genuine dispute of fact regarding whether his
experience exceeded that of the selectees; if that dispute is resolved in his favor, a factfinder
could reasonably disbelieve Defendant’s contention that Plaintiff was passed over for the
promotion because he had less experience. Accordingly, Defendant is not entitled to judgment as
a matter of law, and the Court need not address Defendant’s other arguments about this claim.3
The Court turns now to Plaintiff’s retaliation claim premised on the denial of the GS-13
position, which Defendant’s briefs did not address. Defendant’s counsel explained at oral
argument that the Motion does not discuss this claim because the Fifth Amended Complaint did
not explicitly allege it.
As a threshold matter, the Court does not agree with this characterization of the
Complaint. By the document’s plain language, the retaliation claim asserted on page 8
incorporates by reference paragraphs 6 through 25, which specifically allege that Plaintiff was
denied a GS-13 promotion in 2006 in favor of “two less experienced, white employees neither of
whom had any prior EEO history.” Compl. ¶ 10. But in any event, whether “explicitly” pleaded
or not, the Court holds that in the circumstances presented here, Defendant has been provided
with adequate notice of Plaintiff’s claims. Moreover, because of the dispute of material fact
about Plaintiff’s past work experience and for other reasons, the Court will not grant summary
judgment with respect to this retaliation claim.
Alleged Adverse Action #2: The AWOL Charges
Plaintiff was carried AWOL on a number of dates in 2006 and 2009, ultimately resulting
in Plaintiff’s loss of slightly less than one day’s pay and alleged emotional distress and
The Court notes briefly that Defendant cannot secure summary judgment simply by citing evidence, much
emphasized in its briefs and at oral argument, that other African-Americans were promoted by the same VA
managers involved in this case. See Def. Br. at 26; Def. Reply Br. at 8. W hile this evidence will certainly be
relevant (and perhaps persuasive) at trial, a factfinder is not required to conclude as a matter of law that a manager
who promotes some African-Americans cannot have discriminated against other African-Americans.
humiliation. Audio File 6/21/12 at 21:30-22:30, 35:00-36:00 (ECF No. 67). Defendant argues
that the AWOL charges do not constitute an “adverse action,” and that even if they did, Plaintiff
cannot make out a prima facie case of retaliation or discrimination. Defendant also argues that
the AWOL was justified because Plaintiff did not follow proper leave policies and
misrepresented his need for leave.
The Court rejects both of Defendant’s threshold arguments. The financial ramifications
of the AWOL charges were relatively small (approximately $400, according to Plaintiff’s
counsel, see Audio File 6/21/12 at 39:30-40:00 (ECF No. 67)); however, in the circumstances
presented here, and in light of Defendant’s inability to cite to applicable binding authority, the
Court does not consider the AWOL charges so de minimis as to preclude their presentation to a
The Court is similarly unpersuaded by Defendant’s challenges to Plaintiff’s prima facie
case. With respect to retaliation, Plaintiff need only show (1) that he engaged in protected
activity, (2) that he was subject to a contemporaneous or subsequent adverse action, and (3) that
there was a causal link between the protected activity and the adverse action. Mara v. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). Causal link may be shown by a “broad array of
evidence,” id. at 302, and Plaintiff has pointed to such evidence here. For example, on August
29, 2006, Plaintiff was charged AWOL by Mr. Ramos for taking time to meet with his EEO
attorney before a mediation involving an EEO complaint against Mr. Ramos. The AWOL was
imposed even though, according to another supervisor’s testimony, it was the VA’s ordinary
practice to grant employees leave related to EEO mediation. See Pl. Exh. 9 at 82-83. This
evidence is certainly sufficient to establish a prima facie case of retaliation.
With respect to discrimination, Plaintiff must show, inter alia, that similarly-situated
people not of a protected class were treated more favorably with respect to AWOL charges, or
that there is otherwise an inference of racial discrimination. McDonnell Douglas, 411 U.S. at
802. Although Plaintiff has not demonstrated the former, he survives judgment as a matter of
law on the latter, viewing the record as a whole. For instance, if proven at trial, Ramos’ allegedly
discriminatory denial of the GS-13 promotion would be crucial evidence tending to support
Plaintiff’s allegations that the AWOL charges by Ramos were also discriminatory. To provide
another example, the record contains evidence tending to show that Ramos declined to enroll
Plaintiff in a mandatory training class in which he enrolled his other employees, see Pl. Exh. 11
at 31-33. Though this failure to enroll Plaintiff carries no overtly “racial” quality, if interpreted
in the light most favorable to Plaintiff, it might substantiate his claims of discrimination. In sum,
the Court does not agree that Plaintiff has failed to make out a prima facie case of discrimination,
even if his claims regarding the AWOL charges are more convincingly presented, at least at this
juncture, as claims of retaliation.
Finally, Plaintiff succeeds in rebutting Defendant’s non-discriminatory and nonretaliatory justification for the AWOL by creating genuine disputes of material fact regarding
whether he properly sought and utilized work leave. Among other things, Plaintiff highlights
portions of the record tending to prove that (a) at least some VA supervisors permitted employees
to provide notice simply by leaving a voicemail, see Pl. Exh. 6 at 101-03; (b) the applicable
collective bargaining Master Agreement stated that the amount of notice required for sick leave
was only 2 hours, see Pl. Br. at 13-14 (text of Agreement); and (c) employees did not need to call
in each day that they took leave after having called in the first day, see Pl. Exh. 16 at 385-93.
This evidence conflicts with Defendant’s assertions that Plaintiff was failing to follow protocol
and abusing the leave policy—indeed, Defendant conceded at oral argument that the parties
dispute the facts regarding Plaintiff’s requests for and use of leave. Audio File 6/21/12 at 16:0017:00 (ECF No. 67). This conflict must be left to the jury to resolve.
Alleged Adverse Action #3: The Demotion/Reassignment/Suspension
On April 15, 2009, Plaintiff was demoted, reassigned, and suspended for 10 days
pursuant to a review by Carol Winter, one of his former supervisors at the VA. Def. Exh. 12.
The reasons given for the decision were essentially the same as those cited in a proposed
termination submitted by Troy Collum earlier that year, namely (1) failure to maintain a 90%
performance standard after being placed on a probation-like performance improvement plan
(“PIP”); (2) inappropriate use of government email during December 2008, see Def. Exh. 9 at 9099 (copies of the emails); and (3) an AWOL charge on January 7, 2009 and Plaintiff’s past
history of AWOL charges. Def. Exhs. 10, 12.
Turning first to the retaliation claim, Defendant concedes that Plaintiff has established a
prima facie case of retaliation regarding this adverse action. See Def. Br. 45-46. The Court’s
central inquiry then, is whether Plaintiff has met his burden under McDonnell Douglas by casting
reasonable doubt on the articulated reasons for Ms. Winter’s decision.
Plaintiff meets this burden in the following three ways. First, Plaintiff points to abundant
evidence that the phone system that tracked employee performance was flawed and inaccurate,
and more importantly, that VA management knew it was flawed and inaccurate, yet still used it
to discipline Perkins. See Pl. Br. at 46-49 (citations to record).
Second, Plaintiff raises a dispute regarding whether his emails could, consistent with VA
policy, form the basis for the substantial punishment he received, in light of the fact that they
“pertain to work-related subjects,” do not suggest “racial, ethnic, sexual or religious bias or
intolerance in any fashion,” and are less egregious than the emails generally deemed in the
employment case law to merit discipline. Pl Br. at 53-54. Although the Court is mindful that an
employer is not required to be “wise, shrewd, prudent, or competent” in its employment
decisions, Fuentes, 32 F.3d at 765, in the circumstances presented here, the Court cannot say that
Defendant was entitled as a matter of law to use the emails as the basis for a demotion,
reassignment, and suspension. Among other things, this is an area in which a determination of
the credibility of live trial testimony by the emails’ recipients might be helpful in interpreting the
effect of the emails and, in turn, whether it was pretext for the VA to use them as a basis for
Finally, Plaintiff has adequately cast doubt on the AWOL justification for its adverse
action because, as already explained above, there is a dispute of fact regarding whether he
complied with the leave policies and practices. What is more, his “history” of AWOL charges
was cited as a basis for discipline even though the great majority of his AWOL charges were
ultimately reversed. Def. Exh. 6. In sum, Plaintiff is permitted to proceed to a jury with his
claim that the demotion/reassignment/suspension was retaliatory.
Turning to the question of racial discrimination, Defendant’s counsel stated at oral
argument that this was yet another claim not properly pleaded in the Fifth Amended Complaint.
Audio File 6/21/21 at 41:00-42:00 (ECF No. 67). Although this is technically correct—i.e., the
racial discrimination claim does not specifically incorporate by reference the paragraphs referring
to the demotion/reassignment/suspension, see Compl. at 8—the Court sees no purpose at this late
stage of the litigation in dismissing the claim merely so that Plaintiff may properly replead it. As
the Court explained earlier in this Memorandum and at oral argument, the Fifth Amended
Complaint, discovery, and other proceedings in this case have provided Defendant with fair
notice of the claims for which Plaintiff seeks relief. In any event, the Court is persuaded that
Plaintiff has made out a prima facie case of discrimination with respect to the
demotion/reassignment/suspension and has met his burden under the McDonnell Douglas
framework, for substantially the same reasons already discussed in pages 9-12 of this
The Court has carefully considered all of Defendant’s arguments and finds them to be
without merit.4 For the reasons set forth above, Defendant’s Motion for Summary Judgment is
DENIED. An appropriate Order follows.
O:\CIVIL 07-08\08-1244 Perkins v. Shinseki\Perkins SJ memo.wpd
Defendant raises a number of arguments not specifically discussed in this Memorandum. All of those
arguments, including the issue of exhaustion that Defendant emphasized at oral argument and in his supplemental
memorandum, are unavailing at this time. Defendant remains free, of course, to reraise those challenges at trial and
in post-trial motions.
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