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A Black woman who sued the VA for alleged employment discrimination has failed to overturn the grant of summary judgment to the federal agency, with the 7th Circuit Court of Appeals agreeing with a lower court that the woman failed to prove discrimination based on her race or gender.
Elaine Scaife began working for the U.S. Department of Veterans Affairs in July 2010 at the Roudebush Veterans Affairs Medical Center in Indianapolis. She was hired as a human resources specialist and regularly received “outstanding” or “excellent” marks on her annual performance reviews.
About five or six years into the role, Scaife began working for Gavin Earp, who had transferred from a VA facility in Illinois. Earp reportedly had a reputation for mistreating women at his former post, and Scaife alleged he exhibited the same behavior in Indianapolis.
In one incident in August 2016, Earp told Scaife and another Black female employee that they needed to start routing all employment classifications for him to review. He then made a request that they be “less bureaucratic” in their classifications, meaning they should classify certain positions higher if they were told to do so. When Scaife questioned whether doing so would violate rules and regulations, Earp became “aggressive” and made her believe that she would be disciplined if she didn’t “loosen classifications.”
One month later, Scaife classified another HR specialist lower than Earp wanted, so he stormed into her office and accused her of breaking the law. Earp also yelled at Scaife, then returned to her office later to yell again.
Scaife conferred with a national VA employee who confirmed that Earp was asking her to break the law. She also contacted an Equal Employment Opportunity officer to ask about the process for addressing a hostile work environment.
Around the same time, Scaife was informed that Brian Fogg, the chief of the police service, who is a white male, had referred to her with a racial slur in a meeting. A second person confirmed that story and told Scaife that Fogg was mad because she would not classify a certain position at the level he wanted.
Scaife responded by reporting Fogg to Chari Weddle, her human resources officer and Earp’s direct supervisor. Also, in October 2016, the VA received notice that Scaife had filed an EEO charge.
Less than two weeks later, Weddle sent Scaife a formal counseling email claiming that Scaife had, for the second time, interjected her “personal opinion in place of [her] professional opinion” when discussing classifications. That included a text Scaife had sent Weddle when Earp had yelled at her for not classifying a position as he wanted.
Weddle wrote that her email did not constitute a disciplinary action, but it would be placed in Scaife’s personnel file and “may be used to determine an appropriate penalty should further administrative action be considered.”
Eventually, Scaife applied and was hired for a job as an HR specialist at a VA center in California with the same pay.
After her transfer, Scaife filed a Title VII lawsuit against the VA for a race- and gender-based hostile work environment, retaliation and constructive discharge. The Indiana Southern District Court granted summary judgment to the federal agency, and the 7th Circuit affirmed Tuesday in Elaine Scaife v. United States Department of Veterans Affairs and Denis R. McDonough, Secretary of Veterans Affairs, 21-1152.
The appellate court first determined Scaife failed to provide enough evidence to support a hostile work environment based on race, gender or both.
As to race, specifically, Judge Candace Jackson-Akiwumi wrote that Scaife “is unable to show that Chief Fogg’s use of the N-word was sufficiently severe or pervasive when considering the totality of the circumstances, which is our charge in evaluating her claim.” That’s because she heard about the slur from a co-worker several months after the fact, and because Fogg did not have direct supervisory authority over her.
Similarly, on the question of gender, “Scaife fails to provide sufficient evidence that the alleged harassment was based on her gender or that the alleged harassment was severe.”
“Scaife claims that Earp, her direct supervisor, threatened her, requested that she break the law, and consistently yelled at her — all creating a hostile work environment,” Jackson-Akiwumi wrote. “Scaife, however, has failed to show that these incidents were based on gender.
“… Moreover, even if Scaife could tie Earp’s conduct to her gender, Scaife failed to provide sufficient evidence that Earp’s conduct, though unprofessional, was severe or pervasive,” the judge continued. “Scaife always worked at or above the legitimate expectations of her employer, receiving an ‘Outstanding’ or ‘Excellent’ on her annual performance rating, and the record does not otherwise reflect that Earp’s conduct interfered with her work performance.”
Further, as for a hostile work environment based on race and gender together, the appellate court determined that even when considered in the aggregate, Scaife’s claims were “not enough to show that ‘the workplace was sufficiently severe or pervasive to alter the conditions of [Scaife’s] employment and create an abusive working environment.’”
Turning next to Scaife’s retaliation claim, the 7th Circuit ruled that Weddle’s counseling email “did not come with a low performance rating or even a pay cut,” so it could not constitute an adverse action on its own.
And finally, as to constructive discharge, the appellate court concluded, “Scaife cannot leave her old job for a new one with the same employer, without any apparent repercussion, and establish a constructive discharge claim absent evidence that she was forced out.”
“Here, Scaife may have received a written counseling email, but nothing in that email indicated to Scaife that her time at the VA was coming to an end,” Jackson-Akiwumi concluded. “Her job security was not in peril, nor were her job prospects: she applied for and accepted the same position, for the same pay, with a different VA facility.”
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