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Barry Vasbinder v. Eric K. Shinseki

May 10, 2011

BARRY VASBINDER,
PLAINTIFF,
v.
ERIC K. SHINSEKI, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION AND ORDER OF THE COURT

Synopsis

Plaintiff Barry Vasbinder asserts claims under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. ("ADEA") for age discrimination and retaliation against his employer, the Butler VA Medical Center, represented by Eric K. Shinseki, Secretary, Department of Veterans Affairs ("Defendant"). Defendant has moved for summary judgment dismissing the Complaint on the grounds that (1) Plaintiff has not established a prima facie case of age discrimination, and (2) Plaintiff has not raised an issue of fact with respect to the legitimate, non-discriminatory reason proffered by Defendant for its actions. For the reasons set forth below, I grant Defendant‟s motion for summary judgment in its entirety.

I. Applicable Standards

In order to prevail on a motion for summary judgment, the moving party must demonstrate that Athere is no genuine issue of material fact and. . .the moving party is entitled to judgment as a matter of law.@ Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 2007 WL 2153278, at *1 (3d Cir. July 27, 2007) (quoting Fed. R. Civ. P. 56(c)). A[W]here the party opposing a motion for summary judgment bears the ultimate burden of proof, the moving party may discharge its initial burden of showing that there is no genuine of material fact by showing - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party=s case.@ Player v. Motiva Enter., LLC, 2007 WL 2020086, at *9 n.4 (3d Cir. July 13, 2007). AIf the moving party has satisfied its initial burden, the nonmoving party must, in their opposition to the motion, identify evidence of record that creates a genuine issue of material fact.@ Id. Moreover, A[t]o defeat a motion for summary judgment, the non-moving party must >do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial.= at Jurimex Kommerz Transit G.M.B.H., 2007 WL 2153278, at *1 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

II. Statement of Relevant Facts*fn1

Plaintiff's Employment History

Plaintiff began working for the Bulter VA Medical Center ("VAMC") in December of 1990. Beginning in November 2000, Plaintiff was assigned to the position of Utility Systems Repairer Operator in the Boiler Plant. On July 13, 2003, Plaintiff was promoted to the position of Utility Systems Repairer Operator Leader (Level 10). As such, Plaintiff was required to have expertise in boiler plant operations.

The Butler VAMC facility employs a complex system of boiler plant operations, air conditioning operations, and utility systems operations. The boiler plants have a capacity of 14,000 to 100,000 pounds of steam per hour. The Veterans Health Administrative Directive 2008-062, Boiler Plant Operations, specifically acknowledges that "[w]ithout constant and vigilant care, equipment involving combustion or steam production under pressure, such as boilers and pressure vessels, can explode causing significant property damage, interrupt medical center operations and the provision of patient care, as well as injury and fatalities." The directives further require that "there is continuous operator attendance within boiler plants and other locations outside the boiler plant generating high pressure steam. . . .Boiler plant operators must not leave any high pressure (above 15 psig) boiler plant unattended at any time, nor can they be relieved by unqualified persons."

Plaintiff acknowledges that safety is the first priority of boiler plant operations. He testified that when the boiler plant operator leader is the only one there during the day, there are no opportunities to take a break and that he has to be "alert" at all times, watching the pressure and listening for any unusual sounds. According to Plaintiff, failure to do so could result in the boiler blowing up and "kill[ing] you."

During the relevant time period, Calvin Sedgwick, the Utility Systems Operations Supervisor, was Plaintiff‟s immediate supervisor. On November 8, 2008, Plaintiff reported to work at about 7:45 a.m. He was the only person working at the boiler plant at that time. Sedgwick testified that he arrived at the boiler plant at approximately 9:00 a.m. to do some work on a freezer. He further testified that when he arrived, he found Plaintiff sleeping on the floor of the office, with a pillow, one or two blankets and an alarm clock nearby. When questioned by Sedgwick, Plaintiff admits that he told Sedgwick that he was "just relaxing."

Later that day, Sedgwick prepared a report of contact documenting the incident. A subsequent additional report of contact was prepared the following Monday with the assistance of Human Resources, and signed by Sedgwick. At the time of the incident, Jeff Heiger, Program Manager and Chief Engineer of Facilities Management, was traveling for training. In his absence, Daniel Michalek, as supervisor in Facilities Management and Sedgwick‟s immediate supervisor, addressed the incident.

Based on the information provided to him by Sedgwick, Michalek prepared a report of contact. The report stated that he held several discussions relating to the incident with Teneal Caw and Laurie Young of Human Resources, Sedgwick and Denise Tilko, and also spoke with Brian Marcyjanik regarding the safety implications of the incident. While he believed Sedgwick‟s version of the incident, he related that "[t]here is apparently some level of "bad blood‟ between Calvin Sedgwick and Mr. Vasbinder. Calvin is his direct supervisor, so that is not totally unexpected. I have also heard rumors that the remaining boiler plant operators do not want Mr. Vasbinder back as a work leader or co-worker, and are willing to sign a petition to not have him back. This leads me to believe that this is not just Calvin Sedgwick acting on a personal vendetta." In a Request for Disciplinary Action Memo, dated November 12, 2008, Sedgwick requested that Plaintiff‟s employment be terminated, based on the severity of the offense. Michalek noted that "this was only a first offense for a ten (10) point preference veteran."*fn2

Upon his return, Jeff Heiger reviewed a packet of information relating to the November 8, 2008 incident, including the reports of contact. He did not speak with Plaintiff regarding the incident. Because he was away at the time, he believed that Sedgwick and Michalek were responsible for initiating and following through with the disciplinary action. By letter dated November 17, 2008 (the "Removal Letter"), Jeff Heiger proposed that Plaintiff be terminated for sleeping on duty; endangering the safety of or causing injury to anyone on VA premises through carelessness or negligence; and deliberate failure or unreasonable delay in carrying out instructions. Plaintiff acknowledged receipt of the Removal Letter and was given fourteen days to reply.

On November 24, 2008, Plaintiff submitted a written statement in response to the Removal Letter. (Docket No. 32-20.) He explained that he was not sleeping on the job. After he took his 9:00 a.m. reading, he set the alarm to remind him to call his son at 10:30, then took off his right shoe to examine a toe that was bothering him. Sedgwick arrived while he was putting his shoe back on, and Plaintiff told Sedgwick that he was "relaxing."

Plaintiff also described the nature and history of his relationship with Sedgwick. According to Plaintiff, "he and I have had problems getting along with each other," and that Sedgwick "also had trouble getting along with other employees." *fn3 Sedgwick had applied for Plaintiff‟s work leader position, but had been told he was not qualified. After Jim Stockman was hired as Plaintiff‟s supervisor, Sedgwick "made life difficult for me by constantly speaking ill of me to Mr. Stockman. He fed into the fact that Mr. Stockman and I already didn‟t get along well. [He] took advantage of that fact and made our relationship worse by fabricating and exaggerating stories he relayed to Mr. Stockman." He further influenced Stockman into directing Plaintiff to no longer supervise the A/C shop or A/C employees and to stay in the boiler plant, taking away a significant part of Plaintiff‟s responsibilities as work leader.*fn4 When Sedgwick became a supervisor, he reiterated these instructions, and made degrading remarks and called Plaintiff names in front of his co-workers. Plaintiff has complained to HR about Sedgwick‟s behavior to no avail. Plaintiff filed grievances about his performance appraisals in 2007 and 2008. Plaintiff feels that the incident "is clearly a case of pure and simple retribution for all that has happened between Mr. Sedgwick and me over the past five years. It is very transparent that he is attempting to intimidate me and again he is creating a hostile work environment." He further stated that "I am to the point that I no longer can trust anything that Mr. Sedgwick says or does. I feel that this relationship is irreparable because he is unwilling to meet me halfway."

final decision with respect to Plaintiff‟s discipline. Cotter testified that he was not aware of any "bad blood" between Plaintiff and Sedgwick. Cotter decided not to terminate Plaintiff, testifying that "I felt that based on the information I had that it was a very serious offense that would, that could likely lead to termination. However, Mr. Vasbinder had no previous documented personnel issues, so based on that, I decided that a change of assignment would be more appropriate than a termination." By letter, dated January 7, 2009, Cotter informed Plaintiff that his proposed termination was mitigated to a reduction in grade and reassignment from the position of Boiler Plant Operator Leader to Maintenance Worker (Level 7). Plaintiff acknowledged receipt of this letter. After Plaintiff‟s demotion, Plaintiff admits that "the ...


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