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Kennedy v. Shulkin

United States District Court, D. Nebraska

July 19, 2017

TERRY KENNEDY, Plaintiff,
v.
DAVID J. SHULKIN, MD, Secretary, Department of Veterans Affairs; Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 48, and the Motion to Strike, ECF No. 62, filed by Defendant David Shulkin (“Shulkin”). For the reasons stated below, the Motion for Summary Judgment will be granted and the Motion to Strike will be denied as moot.

         BACKGROUND

         Terry Kennedy (“Kennedy”), the Plaintiff and an African-American, began working as a Police Officer for the Police Service of the Veterans Affairs Medical Center in Omaha, Nebraska (“Omaha VA”), in March 2009. In January 2011, Kennedy was promoted from Police Officer to Sergeant, and in January 2012, he was promoted from Sergeant to Lieutenant. The Police Service Command Staff was composed of the Chief of Police, Deputy Chief of Police, and two Captains. As one of four Lieutenants, Kennedy served as a first-line supervisor to the Sergeants and Police Officers assigned to his shift. Lieutenants also were generally responsible for planning daily duty schedules and ensuring that their shifts were sufficiently staffed to meet the minimum coverage requirements of the Omaha VA.

         In May 2013, the Chief of Police, Mark Kula, was removed from his position for medical reasons. Thereafter, the Deputy Chief of Police, Ron Feather (“Feather”), became the Acting Chief of Police, and Captain Jason Brdicko (“Brdicko”) became the Acting Deputy Chief of Police. At that time, the Omaha VA Police Service was operating with four rotating twelve-hour shifts-two day shifts (6 a.m. to 6 p.m.) and two night shifts (6 p.m. to 6 a.m.). Roughly every three months, the officers on the day shifts switched to the night shifts and the officers on the night shifts switched to the day shifts. One Lieutenant was assigned to each of the four shifts and, as of May 2013, Kennedy was assigned a night shift.

         Throughout 2013 and 2014, the Police Service struggled with a staffing shortage after job classification authority was removed from local VA human resources offices to the Centralized Classification Unit (“CCU”) in Minneapolis, Minnesota. There were several vacancies at the Police Service in 2013 and 2014, but hiring new officers was given low priority by the CCU. As a result, it took up to eight months for the Police Service to get a classified position description from the CCU, which made it difficult to fill vacancies.

         Kennedy was unhappy with many of the decisions made, and actions taken, by his supervisors, Feather and Brdicko, between May 2013 and February 2014. He resigned from his position on March 22, 2014, and accepted another position with the Office of Security and Law Enforcement in Little Rock, Arkansas.

         Proposed Changes to Kennedy's Shift, Hours, and Schedule

         On July 8, 2013, Captain Ross Venditte sent out an email with new shift assignments and Kennedy was again assigned to the night shift, even though his shift was scheduled to rotate to the day shift on or about July 8. His shift was also assigned one less officer than the other three shifts. However, the new assignments were never implemented. Instead, Feather and Brdicko proposed a permanent schedule that consisted of three ten-hour shifts, rather than four rotating twelve-hour shifts. The three shifts included a day shift (6 a.m. to 4 p.m.), a swing shift (11 a.m. to 9 p.m.), and a night shift (8 p.m. to 6 a.m.). The proposal was put to a vote and the officers approved the three-shift schedule which was implemented in early August. At that time, the Police Service had only three Lieutenants on staff and each was able to choose a shift based on seniority. Kennedy was given the swing shift, his second choice. Due to staffing shortages, however, the swing shift was given one less officer than the other shifts, because the swing shift overlapped with the other shifts on all but four hours. Kennedy was unhappy about the initial proposal to extend his tour on the night shift and the decision to provide the swing shift with fewer officers.

         Even after switching to the three-shift schedule, the Police Service continued to have staffing problems, particularly on the swing shift. In early November 2013, Feather and Brdicko proposed altering the swing shift hours to 2 p.m. to 12 a.m. in order to ensure minimum coverage. The altered hours were set to begin on December 2, 2013, but this proposal was not implemented after some of the swing-shift officers expressed concerns.

         On February 4, 2014, Feather and Brdicko suggested another change to Kennedy's schedule in order to address persistent staffing problems. They decided to change Kennedy's days off from Saturday, Sunday, and Monday, to Tuesday, Wednesday, and Thursday. This schedule change, however, also was not implemented.

         Kennedy contacted an Equal Employment Opportunity (“EEO”) Counselor on February 5, 2014, regarding his concerns that Feather and Brdicko were discriminating against him based on his race and retaliating against him for prior complaints to an EEO counselor.

         Vacant Captain Position

         When Brdicko became Acting Deputy Chief of Police in May 2013, Feather decided to have the Lieutenants on the day shift fill Brdicko's vacant Captain position because it was a day shift position. This arrangement lasted for one month before Feather decided that he, Brdicko, and the other permanent Captain, Ross Venditte, would cover the vacant Captain position's responsibilities, rather than the Lieutenants. Kennedy was on the night shift and not given an opportunity to rotate into the Captain position during that time. On July 22, 2013, Kennedy contacted an EEO counselor because he was not promoted to Acting Captain and not temporarily rotated into the vacant Captain position.

         Off-Duty, Part-Time Employment

         At some point “[i]n the fall of 2013, ” Kennedy and several other Omaha VA Police Service officers were terminated from their part-time employment as security guards at No Frills Supermarket after Feather called the store manager to inquire about their job duties there. Def.'s Br. Summ. J., ECF No. 51, Page ID 549. Feather claims that the store manager explained the security jobs required the authority to enforce state and city ordinances on No Frills Supermarket property, as well as the use of federally issued police credentials. Feather claims he then informed the store manager that VA Police Officers have no authority to enforce state law or city ordinances and that it is contrary to VA policy for them to use their police credentials in their employment with No Frills Supermarket. Kennedy disputes Feather's statement and claims that Feather sought to have him fired for racial and retaliatory purposes. Kennedy Aff., ECF No. 59-1, Page ID 647 ¶ 7 & Page ID 653 ¶ 28. Kennedy again contacted an EEO counselor, on December 5, 2013, regarding Feather's contact with his part-time employer.

         CCTV and Eleventh Floor Access

         Also in the fall of 2013, Feather sent an email to all Lieutenants and Sergeants instructing them to stop using an office located on the eleventh floor of the Omaha VA facility. On November 7, 2013, Feather asked that Kennedy and other officers return their keys to that office, but Kennedy didn't return his keys and continued to use the office. Accordingly, Brdicko continued to send out emails instructing officers to stop using the eleventh floor office.

         On January 31, 2014, Feather temporarily suspended access to the closed-circuit television (“CCTV”) for all Lieutenants, Sergeants, and Police Officers to investigate potential violations of the CCTV policy. After an investigation was conducted, access was restored to all Lieutenants, Sergeants, and Police Officers. Kennedy perceived Feather's decision to revoke eleventh floor and CCTV access as both discriminatory and retaliatory.

         Miscellaneous Conflicts

         On one occasion, Kennedy reported another officer to the Command Staff for threatening a co-worker. In his affidavit Kennedy stated “I believe that Acting Chief Feather told [the reported officer] about my report, ” and that the reported officer became “insubordinate” toward Kennedy as a result. Kennedy Aff., ECF No 59-1, Page ID 651 ¶ 22. Kennedy claims that Feather then deliberately chose not investigate the reported officer in an effort to discriminate and retaliate against Kennedy. He further claims Feather and Brdicko regularly refused to communicate with him and that on another occasion, they “barg[ed] into an office where [Kennedy] was conducting training with [another officer]” in an effort to “gather dirt” on him. Kennedy Aff., ECF No. 59-1, Page ID 648 ¶ ...


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