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JESSE BROWN Secretary Department of Veterans Affairs Defendant.
No. 95 C 3620
July 29 1997 Decided
For FRANK P PAVONE plaintiff: Gerald A. Goldman Arthur R. Ehrlich Jonathan C. Goldman Law Offices of Gerald A. Goldman Chartered Chicago IL.
For JESSE BROWN Secretary Department of Veterans Affairs defendant: Sam Brooks United States Attorney's Office Chicago IL.
JOAN B. GOTTSCHALL United States District Judge
The Hon. Justice Joan B. Gottschall

This action was brought by Frank Pavone a white Vietnam veteran suffering from post-traumatic stress disorder ("PTSD") and non-Hodgkins lymphoma against the Secretary of the Department of Veterans Affairs for employment discrimination at Hines Veterans Administration Hospital. Race and handicap discrimination as well as retaliation are alleged pursuant to Title VII of the Civil Rights Act 42 U.S.C. SEC. 2000e et seq. and the Rehabilitation Act 29 U.S.C. SEC. 791 et seq.

Plaintiff is a Caucasian 50-year old combat veteran of the Vietnam war. In 1964 before graduating from high school Pavone enlisted in the Marines and saw active duty from 1964 through 1967 receiving the Bronze Star and a Silver Star nomination. He served in the reserves from 1967 to 1970. During his period of active duty Pavone saw a great deal of action in which many of his fellow Marines and many civilians were killed before his eyes.

Upon his discharge from the service Pavone found work as a degreaser operator in the Spring Division of Borg-Warner Corporation rising through the ranks to the positions of Assistant Personnel Manager Council Administrator (dealing with employee grievances on behalf of his employer) and Production General Foreman. Pavone acquired extensive experience supervising other employees.

In the mid-1980's Pavone began experiencing problems of an emotional and/or nervous nature at home and at work. In 1985 he went to Hines Veterans Administration Hospital expecting to be diagnosed as manic-depressive and was instead diagnosed as suffering from post-traumatic stress disorder stemming from his experiences in Vietnam. In May 1986 Pavone was laid off from Borg-Warner. He was hired as a salesman by the American Overhead Door Company where he was apparently viewed as a promising employee but after two months he could no longer tolerate the rejection inherent in a sales job and resigned. Because of his interest in working with veterans he sought a job at Hines V.A. Hospital where he was receiving treatment for his PTSD. He was told that only janitorial-type jobs were available but he was assured he would have the opportunity to work his way up. In April 1987 he accepted a janitorial position as a housekeeping aide.

During most of the time he worked at Hines until approximately July 1990 Pavone's assignment was maintaining the patient care areas on the east side of the 8th floor of Building 200 at Hines. Of the 70-80 housekeeping aides employed at Hines Pavone was one of only five or six who were white. One foreman out of five or six was white. There were three general foremen all of whom were African-American. The assistant chief of Pavone's division Building Management Services ("BMS") Walter Moss was black. The chief of BMS James Elium was white. Plaintiff's inital supervisors were black and he got along with them well. After approximately a year and a half however Pavone's supervisors retired and his problems and those of many other employees began.

While Pavone's job evaluations always indicated that his performance was "fully successful" and there is nothing in the record suggesting that he was ever considered an unsatisfactory employee "letters of inquiry " written charges that employees are required to answer began showing up in his file when Robert East an African-American became his supervisor. East checked his work constantly and frequently criticized him usually for being missing from his assigned work area. There is evidence in the record from other employees including from a nurse assigned to his area that Pavone was an excellent worker and that East's scrutiny of his work seemed excessive and harassing. Pavone testified that a number of his supervisors checked his work excessively. The supervisors denied that Pavone's work was checked more than is routine for patient care areas and there is nothing in the record other than plaintiff's and a few other employee's generalized impressions that would allow a comparison of the supervisors' conduct toward other employees working in maintenance of patient care areas.

In July 1989 Pavone and 34 other Hines employees most of whom were black signed a petition addressed to Senator Paul Simon complaining of supervision at Hines. The petition stated in pertinent part:

We the employees in Building Management Service wish to bring our concerns to you regarding our department from Chief down to first line supervisor. It appears that Big Jim Elium Chief of Building Management wants to throw his weight around. He and his toy soldiers have caused Housekeeping duties to become very very stressful. The Assistant Chief Walter Moss and the General Foreman Lovie Gantt have deferred almost every action the supervisor has taken against an employee even if the supervisor was proven wrong. We are charging the following persons with harassment knit-picking in some instances verbally threatening employees and causing a great deal of stress that is unnecessary in performing this job. They show very little respect for employees that they are supervising.

DX L p. 456.

In July 1989 Pavone was diagnosed with non-Hodgkins lymphoma.

In October 1989 Pavone filed an EEO class action on behalf of 25 employees against a number of individuals in supervisory positions including chief Elium assistant chief Moss and supervisors Gantt East Anderson and Irby. The complaint alleged handicap discrimination. In February 1990 the class allegations were dismissed. Pavone was advised that he could not bring his claim as a class action but perhaps he could bring it as an individual action which he did.

In December 1989 21 housekeeping employees including Pavone most of whom were black sent a petition to Hines management complaining of supervisor Robert East:

We the employees of Building Management request your immediate attention to these endless intimidating attacks by Mr. Robert East. His bias and presumptuous [sic] opinions have resulted in a considerable loss of time and money from his alleged AWOL charges. [The kind of charge East frequently leveled against Pavone.] He has placed us in a distressful position where everyday we must not only do our jobs but we must also fight him in order to keep it. Knowing we need our jobs he harasses [sic] us trying to provoke a physical retaliation. Never once has he expressed any sign of approval nor has he said "you're doing a good job". But he will not hesitate to tell you how wrong you are and write you up while he is telling you. We are tired of playing these games with our livelihood and being treated with disrespect. His actions have not contributed anymore accomplishments on the efficiency effectiveness of [sic] the economy of governmental operations. He is not committed to foster effective human or organizational relationships including the equality of opportunity. He does not show any creative approach to the complexity of the problems that are addressed to him. His management technology has only contributed significantly to the discredit of the employees career. He has no leadership ability nor does he demonstrate any leadership skills. He has not shown that he can identify with important employee needs nor has he worked to meet these needs or in any other manner has he contributed or made recommendations to help.

DX L p. 460.

The record contains other documentation regarding complaints similar to Pavone's from other employees. For example Lovelace Harrold Jr. whose race is unknown wrote to Walter Moss on January 16 1990 complaining that he was constantly being marked AWOL when he was replacing supplies and observing "I have been humiliated by Robert East and Lovie Gant [sic] far too long." DX J pp. 22-24.

Pavone testified to a number of specific incidents which he advanced as evidence of discrimination against him.

On November 10 1989 Pavone reported to work and was told to go to the spinal cord ward where there were seriously-disabled bed-ridden patients. He started cleaning at 6 a.m. It was dark. He heard a patient's arm fall from the bed accompanied by a moan. This caused him to suffer a PTSD flashback. He ran into a closet and cried for two hours. He called his social worker and requested sick leave from East. The sick leave was granted. He returned the next day to work and was told by East to report to the spinal cord ward. He resisted saying he had been there the day before and became sick and that his PTSD was bothering him. East insisted. He worked all day in the spinal cord ward but was "messed up" by the time he got home.

On November 17 1989 Pavone was having lunch in 8W the west side of the eighth floor with some fellow employees. Supervisor Irby (African-American) came in sat down and started staring at Pavone. Pavone asked him what the problem was. After continuing to stare for some time Irby finally said "Why do you get sick whenever there are stripping jobs to do?" Pavone denied the charge saying that he did his fair share. This verbal interchange continued until Pavone got up and left the table. Irby followed him despite Pavone's request that he not do so. Irby yelled "I'll follow you. I'll be on your back." Pavone went into a bathroom locked the door and stayed there.

On a number of occasions Irby said things to Pavone and others like "You Vietnam vets are all stressed up" or "You're all fucking crazy" or "You're all crybabies." Pavone testified that these types of remarks were frequently made to employees before their days off so they would leave in a condition of stress.

One day about this time Elium approached a group of employees and asked if they knew the company they were keeping. He pointed to Pavone and said he was a troublemaker. He pointed to another employee and said he was a drug dealer.

Pavone testified that he was frequently insulted by supervisors Irby East and Sparks (African-American) who told him for instance that he did not know how to do his job. He testified that he was given extra details. East would grab the mop out of Pavone's hand and tell him he didn't know what he was doing. Pavone testified that he had learned the mopping technique from Moss yet East required him to do it differently. East also plagued him with inconsistent commands requiring him on one day for instance to change his mop head every 15 minutes.

In January 1990 Pavone started cancer treatment. His treatment consisted of 50 electron radiation beam treatments at Hines each taking 15 minutes. He was scheduled to take the treatments between 8:20 to 8:30 in the morning in the basement of Building 200. During this time he was directed by Assistant Chief Walter Moss to attend a training seminar on how to run a buffer and scrubber with 14 other employees. He told Moss he had daily radiation treatments in the building where he normally worked while the training center was a half mile away. Moss told him he could take the treatments during his lunch hour. As a result he had no time to eat lunch and testified that he became ill from taking the treatments without food. It is not clear from the record for how long the seminar lasted. Pavone testified that he had no need for this training as he was very accustomed to using this equipment.

Pavone testified that after about 30 treatments the site of his lesion on his arm started bleeding because his work required him to mop floors. Pavone testified that he had told East that his arm was tender and that heavy mopping and high dusting were hard for him. Pavone testified that East smiled and told him to continue working. He did so. At some point he got a doctor's note asking that he be placed on light duty but East never modified his assignment. There was apparently no follow up to this incident such as Pavone taking his problem up with East's superiors. Nor was there any evidence as to what "light duty" meant in the context of Pavone's job or whether the duties assigned to Pavone violated his doctor's orders. *fn1

On July 13 1990 an incident took place that led to Pavone's assignment out of Building 200 8E. East confronted Pavone accusing him of having been AWOL. Pavone insisted that he had been in his assigned area. According to Pavone East then said "You were a fool for serving your country " a statement that set off a PTSD flashback for Pavone. Pavone began sweating and breathing hard. East ran off and ultimately charged Pavone with threatening him a charge which when investigated sometime later was found to be unproven. A nurse Kim Blomquist who observed Pavone's condition took Pavone into her office and tried to calm him down. Nothing worked and Pavone called East requesting permission to go to the Emergency Room. East threatened to AWOL him if he went but Pavone went anyway. His psychiatrist told him to take some time off. He could not reach any of his supervisors to get permission.

On July 23 Pavone was called into Irby's office and was tendered some papers. Pavone assumed they were discharge papers and refused to accept them. In fact they were papers reassigning him during the investigation of the incident with East a reassignment which the defense claims was intended to be temporary pending the investigation of East's charge that Pavone threatened him. Pavone did not report to his new assignment but went home. The next day he checked himself into the psychiatric ward.

On July 26 a meeting was held between Irby Pavone and Pavone's psychiatrist Dr. Mike Blacconiere ("Dr. Mike"). Dr. Mike attempted to bring to Irby's attention the stress problems of veterans with PTSD.

Pavone was discharged from the psychiatric ward on August 1 and having a vacation scheduled went home. On August 3 he was supposed to return to work but had a disability hearing scheduled. He called Irby to so inform him but was told that he no longer worked under Irby's supervision. He was told to call a supervisor named Dunstan (African-American) and only then learned that he had been reassigned pending the East investigation to housekeeping duties in the psychiatric ward. There he was observed by his psychiatrist Dr. Mike who did not think Pavone as a recent psychiatric patient should be cleaning in that ward. Dr. Mike wrote a letter asking to have Pavone reassigned and he was shortly thereafter reassigned to Building 17 geriatric extended care under the supervision of Corinne Loudermilk (African-American).

At first Pavone got along well with Corinne Loudermilk. But there were other problems. About two weeks into this job an employee named Jesse Mack (African-American) approached Pavone and told him with reference to Pavone's union activities that he was representing the wrong people a comment Pavone interpreted as meaning that as a white person he had no business representing black employees. He took this as a threat and explained to Corinne Loudermilk that this kind of conduct aggravated his PTSD. Loudermilk called Mack in and he denied the incident. She forced him to apologize and he did. Pavone asked him why he was apologizing if he denied the incident.

Pavone also had problems with Loudermilk's supervisor Martin Anderson (African-American) in connection with his union activities. Pavone had become involved in the union as a committee person in 1988. Once assigned to the geriatric extended care unit under Anderson's supervision he found himself on occasion charged as AWOL when he was at union meetings. According to Pavone Anderson told him he could not attend committee person meetings because he was not a committee person. Anderson testified that he did not know Pavone was a committee person. Pavone also testified that in a grievance meeting Anderson told Pavone that he was representing the wrong people which Pavone understood to be a racial reference and a veiled threat. As far as this court can determine Pavone never utilized union remedies to address these union-related problems with Anderson. It is unclear whether Pavone views his difficulties with Anderson as attributable to race handicap his union activism or some combination of the three.

At some point after he was assigned to geriatric extended care Pavone began having serious emotional problems handling the work in extended care. He testified that the condition of the patients who were elderly and incontinent and moaned and groaned continuously caused him enormous stress aggravated by Anderson's harassment and a shortage of nursing personnel. One of the patients on the ward was an uncle of a close friend. The uncle was tied to a wheelchair screaming for help. Pavone testified that he felt his "whole world caving in." He flash backed to combat. He told Corinne Loudermilk that he was unable to work there anymore. She told him to return to his duties.

Finally on May 20 1991 Pavone resigned. He testified that he could not work in extended care and could not return to work at the psychiatric unit. He was afraid he would commit suicide. While his reassignment out of Building 200 was supposed to be temporary while East's allegations were investigated and East's allegations had long before been determined to be unproven Pavone was never given the chance to return to his original assignment. The record provides no explanation for this. Walter Moss asked him why he was resigning and Pavone said that he did not want to commit suicide. Moss according to Pavone would not allow him to leave until he wrote a memo indicating that his resignation was for health reasons. DX A p. 7.

Pavone's PTSD afflicts him in the form of nightmarish flashbacks that are set off by stimuli that remind him of Vietnam. The sound of babies crying for a prolonged period the sound of patients screaming for help and smells such as urine feces blood jet fuel and rain-soaked earth can all cause him to have an attack. Pavone testified to one severe episode when while driving his car on Mannheim Road he smelled jet fuel.

One issue at trial was whether the Hines supervisors understood the nature of PTSD to the extent that they could be expected to attempt to accommodate it. Pavone testified that he explained the nature of the disorder to Walter Moss on one occasion in 1990. The context was a grievance hearing involving another white Vietnam veteran named John Diezel. Diezel had had a confrontation with a supervisor and had been reassigned to a position that caused his days off to conflict with his wife's. Pavone gave Moss a pamphlet dealing with PTSD. Moss suggested that Pavone and Diezel should train the management team in the needs of PTSD workers. Pavone and Diezel indicated they would be happy to do this but the training never took place. There is also evidence that Pavone's psychiatrist advised Irby following the incident between Pavone and East in July 1990 that Pavone's PTSD caused him stress. There is nothing in the record indicating that the full nature and extent of Pavone's disability was made clear to Hines management.

Shortly after his resignation from Hines Pavone was rated as 100% disabled by the Veterans Administration.

The record contains evidence of certain incidents in which Pavone's request for an accommodation was granted.

In May 1989 Pavone requested a change in his days off from Tuesday and Wednesday to weekends so that he could spend more time with his wife. The request followed a period of deterioration in Pavone's relationship with his wife. His fear of losing his wife he testified was causing him stress that was aggravating his PTSD. He asked his supervisor Lovie Gantt (African-American) to switch his days off. She declined telling him he would have to apply for a position vacancy with the days off he desired. Pavone was skeptical of the sincerity of this response. His PTSD social worker Ed Klama wrote in support of Pavone's request asserting that Pavone needed this accommodation for his PTSD. His request was granted promptly upon his submission of a letter requesting a position reassignment.

As indicated above when Pavone was reassigned from Building 200 to the psychiatric ward following the incident with East his psychiatrist wrote a letter requesting that Pavone be reassigned out of the psychiatric ward because of his psychiatric history. When Pavone provided this letter from his psychiatrist in support of his request for reassignment his request was granted.

To prove his claim of race discrimination Pavone must show that he is a member of a protected group that he was performing his duties in a satisfactory manner that he was treated adversely and that persons not of the protected group were treated more favorably. McDonnell Douglas Corp. v. Green 411 U.S. 792 802-03 36 L. Ed. 2d 668 93 S. Ct. 1817 (1973). Pavone established that he was a member of a protected group in that he was a member of a minority group among employees namely white employees in the Building Management Service Department at Hines. Inasmuch as his performance ratings were almost always "fully satisfactory" (even though there were criticisms of his performance by a number of supervisors) it is clear that Pavone was meeting his employer's legitimate expectations. He was treated adversely in that he was bullied and harassed by a number of his supervisors such as Robert East and on at least one occasion by Warren Irby. But where his case runs into difficulty is in his inability to show that African-American employees were treated better.

The record is replete with evidence of substantial supervisory problems in Pavone's department at Hines. East was the subject of petitions to management and East and others in management were the subject of the employees' petition to Senator Simon. East was sent to special training by his superiors to address his problems as a supervisor. East's testimony before this court denying that he was sent to training to address his problems as a supervisor caused this court to conclude that his testimony was not reliably credible and causes the court to credit the many witness accounts of his bullying style as a supervisor. The record shows however that poor management was endemic at Hines and that East was among the worst of a group of poor supervisors.

Nevertheless the kind of abuse Pavone complains of was the subject of complaints by many African-American employees. This record establishes that plaintiff was treated badly but it does not establish that plaintiff was singled out for the treatment of which he complains nor does it establish that the treatment of which he complains was racially motivated. *fn2 There is some evidence in the record that a few remarks were made to plaintiff in connection with his union activities which he construed as being racial in nature; he testified that on two occasions one of which involved a supervisor it was suggested to him that he was representing "the wrong people." Even if plaintiff's testimony on this point is accepted (the other employees denied these remarks) and even if the motivation for these remarks was race-based these remarks (only one of which was by a supervisor) do not establish discrimination because there is no basis for concluding that they led to any adverse action.

Nor are these remarks about representing the wrong people sufficient under prevailing case law to establish a racially hostile environment a claim which has not been explicitly asserted. The Seventh Circuit in evaluating racially hostile environment claims applies both an objective and a subjective standard looking at the work environment both as it would likely affect a reasonable person in plaintiff's position and as it actually affected the plaintiff himself. Daniels v. Essex Group Inc. 937 F.2d 1264 1271-72 (7th Cir.1991). Objectively considered the remarks were isolated and in-explicit. Subjectively considered the court cannot find that these remarks materially contributed to plaintiff's difficulties in dealing with his work environment. The record reveals that plaintiff's relationships with most African-American employees at Hines were good that plaintiff advocated as a union representative on behalf of many of these employees and that they often requested his services and that African-American employees were similarly harassed by the supervisors in question a circumstance of which plaintiff was well aware. Plaintiff was injured by the conditions at Hines but as this court views the record his injury was caused by race-neutral abuse not by these isolated remarks. A showing of race-neutral abuse is not sufficient to make out a racially hostile environment claim. See Rodgers v. Western-Southern Life Ins. Co. 12 F.3d 668 676-77 (7th Cir. 1993).

With respect to his claim of disability harassment Pavone maintains that he has shown that he was a qualified individual with a disability that he was subjected to unwelcome harassment that the harassment was based on his disability and that the harassment affected a term or condition of his employment. This court has no difficulty finding that Pavone is disabled that he was subject to unwelcome harassment and that the harassment affected the conditions of his employment. But the court finds nothing in the record justifying an inference that Pavone's disability was the cause of the harassment of which so many employees complained. It is significant that at various times Pavone has claimed that the harassment he suffered at Hines was due to his disability to his Vietnam veteran status to his race to his union activities and to the abysmal quality of supervision at Hines. The court finds nothing in the record that provides a basis for attributing the conditions of which Pavone complains to his PTSD or to his cancer.

It is clearly the case that plaintiff because of his PTSD was unusually sensitive to the bullying management style of his Hines supervisors. This might be viewed as raising an issue of accommodation. While one would expect management at a veterans hospital to be aware of and sensitive to the difficulties experienced by veterans with Post-Traumatic Stress Disorder the record suggests that at no time did plaintiff and his doctors make a real effort to educate management adequately about PTSD. Pavone and his co-worker Diezel talked to Moss on one occasion in the context of a grievance hearing for Diezel. When Pavone was hospitalized following the July 1990 incident with East his social worker Ed Klama spoke to Irby about plaintiff's condition. But nowhere does it appear that a reasonable effort was made to inform management of the extent of Pavone's problems: his inability to deal with rude remarks about veterans (there was testimony that a fairly nasty type of teasing about military service is frequent at Hines and that plaintiff could not cope with slurs against veterans) with conditions on many of the wards and with the stress that bad managers inflict on employees. By the end of Pavone's tenure his PTSD was acting up in so many situations involving sick veterans that one is led to wonder whether any accommodation could have been made for him at Hines. He was unable to serve in the psychiatric ward because of his psychiatric history. He was unable to serve in the extended care ward or the head injury ward because the condition of the veterans there was unbearably stressful for him. And despite his wish to return to Building 200 there was no way Pavone could have endured working there with East as his supervisor. While the court assumes there are other housekeeping positions at Hines the record does not indicate what accommodation would have worked for plaintiff. Given plaintiff's sophistication about his own condition and the way it affected Vietnam-era veterans and given the professional resources readily available to him at Hines the court cannot ignore the fact that except for the two occasions on which Pavone requested specific accommodations and received them Pavone or his therapists never made clear coherent requests for specific accommodations. Given the difficulties of trying to accommodate an employee whose disability is aggravated by job-related stress the court believes more was required of Pavone than a generalized complaint about working conditions to immediate supervisors to trigger an obligation on defendant's part to accommodate.

With respect to Pavone's complaint about the conflict between his radiation treatment and his training crediting Pavone's testimony does not establish that he was not accommodated. It establishes insensitivity and a failure arguably purposeful to try to make the easiest possible accommodation for the employee. But Pavone got his radiation treatments on a daily basis as he needed them. Had plaintiff needed additional time to have his lunch before his treatment the court is left wondering why plaintiff did not provide a doctor's letter indicating that he needed a longer break.

The record shows that Pavone was treated in ways that appear to have been insensitive and at times unreasonable. It indicates that he frequently complained. But the complaints are "all over the map" as are his claims in this action attributing his supervisor's actions at one point to his veteran status at another to his union activities at another to his race and at others to his handicap. While an employee cannot be expected to divine the precise nature of an employer's motivation the fact that black employees and non-handicapped employees complained of the same kind of bullying and harassment makes it difficult for the court to find a discriminatory motivation behind the undeniably bad treatment Pavone received.

Pavone's retaliation claim suffers from the same defects as his race discrimination claim. The record fails to demonstrate that Pavone was treated differently from other employees who were not engaging in protected conduct.

This case does not present an attractive picture of Hines management and the picture it presents is made particularly disturbing by the fact that many of the employees at Hines the victims of supervisory insensitivity harassment and abuse are combat veterans like Frank Pavone who have contributed so much and at such great personal cost to this country. But without an adequate showing that members of a protected group were singled out for this mistreatment this court has no power to provide a remedy.

Accordingly for the reasons stated above the court concludes that plaintiff has failed to prove his race discrimination handicap discrimination and retaliation claims. The case is dismissed and judgment is entered in favor of the defendant.



United States District Judge


*fn1 In mid-1990 Pavone applied for and was denied two promotions to general foreman positions. He charged in this case that these denials were discriminatory. The court resolved these claims against Pavone in an oral ruling at the conclusion of the trial.

*fn2 Indeed employees who felt strongly that Pavone was singled out for harassment testified that John Diezel another white Vietnam veteran with PTSD was not similarly treated. See e.g. DX L p. 344. Diezel testified that East treated everyone badly. DX L p. 360.