Reassigned VA worker didn’t face discrimination or retaliation, 7th Circuit affirms

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A Black female Veterans’ Administration employee who was reassigned to a different position failed to convince the 7th Circuit Court of Appeals that the VA discriminated or retaliated against her.

Toya Crain was acting chief of the Environmental Management Service at the Veterans’ Administration Medical Center in Indianapolis from April through July 2014. EMS provides janitorial and sanitation services.

An HR memorandum indicates Crain took the job as a “learning opportunity” to shadow the chief but that the role was not supervisory. She then assumed the chief of EMS role in July 2014, subject to a yearlong supervisory probationary period, which began on July 13.

At the time Crain applied for the position, it was classified at a GS-12 pay grade. Before applying, though, Crain was told if she completed her probationary period, the VA Center would try to increase the pay grade to GS-13.

Shortly after assuming the chief position, Crain’s supervisor added responsibilities to her role in an effort to justify a higher pay grade. But an HR review concluded the upgraded pay grade wasn’t justified.

Crain alleged that pay grades for six white service chiefs with similar duties were elevated, either to GS-13 or GS-14. HR explained that at one point, the VA Center’s medical director elevated the pay grade for the chief of logistics, who was white, even though HR didn’t agree with the decision. An HR employee also testified that the medical director restructured positions and services to create a new GS-14 position for a white employee.

Several performance and behavior-related concerns arose during Crain’s tenure as chief of EMS. Those included using profanity in the workplace and mishandling a project to distribute new uniforms for nursing staff. Crain was also accused of giving advance notice on interview topics to a candidate to become her assistant.

Crain was informed in June 2015 that she was being reassigned to a different role with the same salary because she didn’t successfully complete her yearlong supervisory probationary period for the chief of EMS position.

Three months before her reassignment, Crain had initiated a complaint with the Equal Employment Opportunity Commission, alleging that one of her subordinates “verbally attacked” her and that the VA Center didn’t respond sufficiently because of her race and sex. She later added a charge alleging that she was not making the same salary as white males who held the same position.

After the reassignment, Crain added another charge claiming that her reassignment was retaliatory.

Crain filed suit against Denis McDonough in his official capacity as the secretary of the VA, alleging various Title VII violations. The VA moved for summary judgment on all of Crain’s claims, and the U.S. District Court for the Southern District of Indiana granted the motion.

Crain appealed on two claims: disparate pay based on her race and removal for the position of chief of EMS in retaliation for her EEOC complaint.

The 7th Circuit disagreed on both points.

Crain argued other nonmedical service chiefs — the chief of logistics, for example — were valid comparators because they led a service at the VA Center and were on the same managerial level. She argued it was irrelevant if they performed distinct functions and types of work, but the 7th Circuit called that “plainly incorrect.”

“Indeed, the record reflects that each service chief performs different work and is subject to a different set of standards and that, as such, their pay grades are not directly comparable,” the opinion says.

In arguing that the VA Center removed her from her role as chief in retaliation for the EEOC complaint, Crain said the center’s stated reasons for her removal were pretextual.

The court said that although the briefing left Crain’s argument “opaque,” she seemed to suggest a jury would be more likely to conclude the center’s reasons were pretextual because the center “dishonestly” miscalculated her probationary period.

Crain argued her yearlong probationary period began when she assumed the acting chief position, not when she assumed the chief position, which would mean the period was already over when she was reassigned for failing to complete it.

Rather than getting into the parties’ competing interpretations of regulations, the court said Crain “fails to present any evidence to suggest her EEOC activity played a part in the VA Center’s alleged miscalculation.” The court also noted that the memo documenting Crain’s acceptance of the acting chief position explicitly stated the role was not supervisory in nature, meaning it was the VA’s belief that Crain’s time in that role wouldn’t count toward her probationary period.

Crain also took issue with the “performance-based deficiencies” the VA Center cited in support of removing her as chief, but the court ruled Crain failed to identify any weaknesses or contradictions in the VA’s reasoning.

Senior Judge Joel Flaum wrote the opinion.

The case is Toya R. Crain v. Denis R. McDonough, Secretary of Veterans Affairs, 22-1714.

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