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KLEIN v. DERWINSKI

October 28, 1994

ELLEN R. KLEIN, Plaintiff,
v.
EDWARD J. DERWINSKI, Secretary of Veterans Affairs, Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before the court on defendant's motion for summary judgment. Upon consideration of the filings of counsel and the relevant law, defendant's motion for summary judgment is granted in part and denied in part, in accordance with this memorandum opinion.

 I. Factual Summary

 In late July or early August, 1988, plaintiff Ellen R. Klein was hired as a file clerk (GS-4) at the Department of Veterans Affairs (the "VA"). Plaintiff's immediate supervisor for the relevant period was Frances L. Willis, Chief of the Field Administration Unit. Plaintiff is a Jewish female with a vision impairment. The vision impairment was disclosed to Willis in the job interview, and it was determined that the disability would not interfere with plaintiff's job performance as a file clerk. Compl. PP 1-7.

 Shortly after this request for leave, Willis informed plaintiff that she had been "written up" twice during the preceding week for poor work performance and that another such entry would result in termination. Willis told plaintiff that she was keeping a "book," recording plaintiff's work performance, to support plaintiff's termination. This record was established on or about August 22, 1988. Compl. P 11.

 Plaintiff alleged that from the time she first requested work leave for the Jewish holy days, Willis "embarked on a campaign of harassment and intimidation, including (but not limited to) petty, unfair criticism of plaintiff's work, unreasonable job demands, biased evaluations and reports of her job performance to Willis' supervisors, and refusals to allow plaintiff to assist other VA units when she had time available." Compl. P 13. Plaintiff further alleged that complaints to Willis' supervisors did not resolve the situation. Upon Willis' recommendation and her supervisors' acquiescence, plaintiff was discharged from her position, effective April 20, 1989. The reason for termination, as stated in the termination letter, was failure to meet the required level of performance, poor work attitude, and deliberate resistance toward carrying out the orders of a supervisor. Def.'s Mot. Summ. J P 5.

 Plaintiff filed an employment discrimination complaint against the VA on May 2, 1989, alleging discrimination on the basis of religion, age, and handicap, in violation of Title VII Of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000 et seq. Plaintiff further alleged that the termination was in retaliation for contacting an Equal Employment Opportunity ("EEO") counsellor. After a hearing, the EEO Commission ("EEOC") found no discrimination on the basis of religion, age, handicap, or retaliation. Id. Plaintiff then brought suit in this court alleging discrimination in employment on the basis of religion and disability. *fn1" Compl. PP 20-23.

 Plaintiff raised two new claims in her Opposition to Defendant's Motion for Summary Judgment. First, plaintiff asserted that her termination was in retaliation for seeking advice from an EEO counsellor. *fn2" This claim is based on the allegation that when plaintiff went to see the EEO counsellor, the counsellor placed a call to Willis telling her why plaintiff had left work. Willis allegedly reacted with extreme hostility, both to the fact that plaintiff was away from her desk, and that she had gone to see an EEO counsellor. Plaintiff received notice of termination two days after this call. Pl.'s Opp. Not. Summ. J. at 17-18.

 Second, plaintiff asserted a claim that Willis created a hostile work environment. This claim was neither raised at the EEOC hearing, nor in the complaint. The hostile work environment allegedly resulted from the series of incidents that are discussed supra, in the discrimination claim. Id. at 18.

 Defendant moved for summary judgment on the claims of discrimination, retaliation, and hostile work environment. *fn3"

 A. Legal Standard

 Federal Rule of Civil Procedure 56(e) provides, inter alia, that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e). The Advisory Committee notes that the "very mission of the summary judgment procedures is to pierce the pleadings and assess the proof to see whether there is a genuine issue for trial." Fed.R.Civ.P. 56(e), Advisory Committee Note. *fn4" For purposes of evaluating a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party.

 For summary judgment in a Title VII case alleging discriminatory treatment, the Supreme Court has established the basic allocation of burdens and order of presentation of proof:

 
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden then shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that ...

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