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Riley v. Shinseki

September 10, 2009

JOHN A. RILEY, JR., PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,*FN1 DEFENDANT.



The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

Presently pending before the Court is the Defendant's motion for summary judgment.

I.BACKGROUND

Plaintiff, John A. Riley, Jr., ("Plaintiff"), was employed at the Erie VA Medical Center ("Defendant" or "Erie VAMC") from May 1993 until his termination effective November 26, 2005. See Def. Ex. 1, Riley Dep. pp. 1; 43; 61. As of the date of his termination, Plaintiff's job title was Information Technology ("IT") Specialist and he was part of the Information Systems ("IS") Team that supervised major information management functions, including standards development, VistA systems management, automated information systems security management and network management for the medical center and affiliated entities. Def. Ex. 1, Riley Dep. pp. 52; 65; Def. Ex. 3. Plaintiff's job description indicated that he was to spend approximately forty percent of his time exercising independent judgment resolving a wide variety of problems that might be encountered in managing the network. Def. Ex. 3. In this capacity, Plaintiff was required to periodically implement changes to prevent problems, analyze system malfunctions and implement necessary corrective action. Def. Ex. 3. Approximately sixty percent of his duties involved Systems Administration, which required him to maintain hardware and software to ensure the availability and functionality of systems. Def. Ex. 3.

Between 1999 and 2000, two of the Plaintiff's co-workers, Joyce Counts and Ila Tordoff, filed a sexual harassment complaint with the Equal Employment Opportunity Commission ("EEOC") against the Erie VAMC ("Counts I"). Def. Ex. 1, Plaintiff's Dep. pp. 4; 9. Ms. Counts subsequently filed a second complaint with the EEOC ("Counts II"). Def. Ex. 1, Plaintiff's Dep. pp. 9; 21. Plaintiff provided testimony in support of Ms. Counts with respect to her first EEOC complaint and also provided testimony on November 10, 2004 with respect to her second EEOC complaint. Def. Ex. 1, Plaintiff's Dep. pp. 4; 9; 11; 21.

A. Plaintiff's Suspension

In a series of emails from March 8, 2005 through April 1, 2005, Tracy Knox, the Erie VAMC Clinical Services Supervisor, advised upper management of her concerns regarding the Plaintiff's failure to meet installation deadlines for the V-Tel systems at the Crawford and Warren VA Community Based Outpatient Clinics ("CBOC"). Plaintiff's Ex. 9. As a result of Knox's complaints, John Duemmel ("Duemmel"), the Associate Director of Business Operations, recommended that the Plaintiff be suspended for three (3) days. Def. Ex. 7. In his letter dated May 25, 2005, Duemmel advised the Plaintiff as to the following:

Your failure to meet the established deadlines had a direct impact on patient care. The V-tel enables the medical center to provide behavioral health care to patients who wouldn't otherwise be able to take advantage of these type services. Your failure to install the V-Tel's on time and properly decreased the medical center's ability to provide services to patients with behavioral health disorders and had a negative impact on the facilities behavioral health performance measures.

Def. Ex. 7, ¶ 1.

Following his receipt of Duemmel's letter, Plaintiff contacted an EEOC counselor on June 2, 2005. Def. Ex. 1, Plaintiff's Dep. p. 93. On June 6, 2005, Plaintiff forwarded a letter to Dr. Michael Adelman ("Adelman"), the Acting Medical Center Director at the time and the ultimate decisionmaker with respect to the Plaintiff's suspension. Def. Ex. 1, Plaintiff's Dep. pp. 85-86. In his letter, the Plaintiff claimed he encountered problems completing the project because he lacked the necessary expertise to do so, and also because of the time demands placed upon him by other work-related projects and personal family matters. Plaintiff's Ex. 8. Finally, Plaintiff indicated that Brian Wilshire ("Wilshire"), his immediate supervisor, had been "keenly" aware of all of these circumstances and consequently, his suspension was not warranted. Plaintiff's Ex. 8.

On July 11, 2005, Adelman sustained the Plaintiff's suspension. Def. Ex. 8. On that same date, Plaintiff filed his EEOC complaint alleging that his suspension was in retaliation for his testimony in Counts I and Counts II. Def. Ex. 8. Plaintiff subsequently served his suspension from July 18, 2005 through July 20, 2005. Def. Ex. 1, Plaintiff's Dep. p. 85.

B. Plaintiff's termination

On May 24, 2005, employees reported to the IS Team that they were unable to connect to their U:/ drives to access their files. Def. Ex. 12. This problem persisted for three (3) days and resulted in numerous staff members loss of data. Def. Ex. 1, Plaintiff's Dep. p. 106; Def. Ex. 12. It was subsequently determined that the incident occurred because the servers had not been backed up since March 11, 2005. Def. Ex. 12.

On July 22, 2005, Plaintiff was notified in a letter from Valarie Delanko ("Delanko"), who had replaced Duemmel as the Associate Director of Business Operations, that the Erie VAMC proposed to remove him from his position as IT Specialist as a result of the server crash and loss of data. Def. Ex. 12. This letter explained in detail the reasons for the proposed termination, which were based on four "Charges": (1) Loss of Government Property through Carelessness or Negligence; (2) Careless or Negligent Workmanship Resulting in a Delay of Operations; (3) Failure to Follow Instructions; and (4) Failure to Follow Procedure. Def. Ex. 12. Plaintiff responded to Adelman on August 5, 2005. Plaintiff's Ex. 22; Def. Ex. 1, Plaintiff's Dep. p. 114. Plaintiff claimed in his response that he had not been assigned specific responsibilities by his supervisor; that there was a conspiracy afoot to discredit him; and that Erie VAMC had "created or condoned" the use of falsified documents as evidence to support his termination. Plaintiff's Ex. 22. Adelman subsequently appointed Chris Helsel ("Helsel"), a supervisory IT specialist from the VA Medical Center in Altoona, Pennsylvania, to conduct an independent investigation into the incident and make recommendations as to the appropriate course of action. Def. Ex. 1, Plaintiff's Dep. pp. 114-115; Def. Ex. 6, MSPB hearing testimony, pp. 244-46; Plaintiff's Ex. 46.

Subsequent to Helsel's investigation, he issued Findings of Fact, Conclusions and Recommendations on October 7, 2005. Def. Ex. 15. Helsel concluded, inter alia, that Plaintiff, "upon finding issues in the back-up routine" was capable of addressing the problem but failed to do so, thereby protecting the data. Def. Ex. 15 Conclusion 3. Specifically, Helsel concluded that:

21. Mr. Riley adknowledged (Exhibit 23, (pg 13)) and demonstrated a working knowledge of BackUp Exec by creating new back-up sets and devices (Exhibits 1 and 23 (page 24), 26, and 27) and restoring files and folders (Exhibit 23, pg (25)).

a. Mr. Riley, aware of the problem, failed to take corrective action. Given the criticality of the task, even with the threat of possible disciplinary action, Mr. Riley had responsibility to the medical center to insure that back-ups were running, valid and data stored on network servers was protected.

b. Mr. Riley's lack of corrective action on back-ups resulted in losing two (2) and one-half (1/2 ) months of data ...


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