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Shannon v. Nicholson

March 31, 2006

JOSEPH SHANNON, PLAINTIFF,
v.
JIM NICHOLSON, SECRETARY OF DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Plaintiff Joseph Shannon brings this action alleging that his discharge from employment at the Bronx VA Medical Center (the "Bronx VA") was motivated by discrimination on the basis of his race or color. Defendant moves for summary judgment, arguing that Shannon has failed to make a prima facie case of discrimination and that there was a legitimate, non-discriminatory reason for his discharge. Defendant's motion is granted.

Background

The following facts are based on the uncontroverted evidence, as summarized in the defendant's statement of facts submitted pursuant to Local Civil Rule 56.1. Because Shannon has not submitted any response as required by the rule, all of the facts set forth in defendant's statement that are supported by admissible evidence are deemed admitted. See Local Civil Rile 56.1; see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). Indeed, Shannon has submitted no affidavit or other admissible evidence that would support a genuine dispute with defendant's proffered facts.

From November 4, 2002 to July 17, 2003, Shannon worked as a probationary police officer for the United States Department of Veteran Affairs (the "VA") at the Bronx VA. He was interviewed by Chief of Police Albert Aviles, who recommended that he be hired. All probationary VA police officers must successfully complete a mandatory Basic Police Officer Training Course (the "Course") as a condition of their continued employment. The Course is administered at the VA Law Enforcement Training Center in Little Rock, Arkansas (the "LETC").

Before the Course begins, though, students take a pre-training course offered at their station of origin. Completion of the pre-training is mandatory and students must certify that they have completed all pre-training before reporting to the LETC. The Course begins with an entry exam which tests students' knowledge of the material covered in the pre-training. Students must maintain an average of 75 or higher to remain in the Course; those with a cumulative average of less than 75 after the first two weeks are dismissed. Students must also pass the final exam with a score of at least 75 percent. The Course includes physical fitness and side-handle baton (also known as "PR-24") training, as well as classroom instruction. The PR-24 training includes a written exam, also requiring a score of at least 75 percent, and a physical proficiency exam requiring a score of 95 percent.

All probationary officers must successfully complete all portions of the Course in order to have law enforcement and arrest authority. Before October 1, 2002, the VA allowed students who passed academically but failed the physical fitness or PR-24 portions of the Course to retake those portions at their stations of origin. A new policy, effective October 1, 2002, requires students to pass all portions of the Course at the LETC.*fn1

The VA may terminate the probationary employment of any officer who fails the Course. When this happens to a Bronx VA officer, Chief Aviles may submit a recommendation to the Bronx VA Human Resources Department ("HR") that the employment of the probationary officer be terminated. An HR specialist initiates the termination process after verifying that termination is appropriate and consistent with applicable regulations. A termination letter sent from a Human Resources Officer officially discharges the officer from the VA.

In exceptional circumstances, Aviles may decline to recommend termination and instead recommend that the officer be permitted to retake the Course. Both decisions, to discharge a probationary employee, and to permit re-enrollment in the Course, are made by the VA station of origin, not the LETC.

Shannon attended the Course in May and June 2003. He failed the entry exam, passed the first and second week tests, and failed the third. After three weeks in the Course, Shannon had a borderline passing average of 75 percent. He scored a 93 on the physical exam in PR-24 training, two points shy of the passing score. He was dismissed from the Course on June 18, 2003, and did not complete the remaining academic portion.

As is his practice when a Bronx VA officer fails the Course, Aviles spoke with the Deputy Director of the LETC, Christopher Price, about Shannon's performance. Price told Aviles that Shannon's performance at LETC had been mediocre, and that he doubted that Shannon would be able to pass the Course if given a second opportunity. At no point during the Course or immediately afterward did Aviles become aware of any exceptional circumstances that might have explained his poor performance.

Aviles recommended to HR that Shannon's employment at the Bronx VA be terminated. HR Specialist Gerda Lloyd reviewed the recommendation and agreed that termination was appropriate. Shannon was informed by a letter dated July 1, 2003 that his discharge would be effective July 17.

Two other students from the Bronx VA were given opportunities to retake portions of the Course.*fn2 One was Reynaldo Mendez. Mendez, an Hispanic male, attended the Course at the LETC in April and May 2002. He passed academically but failed the PR-24 test. Aviles recommended that Mendez's employment be terminated following his return to the Bronx VA, but this recommendation was overruled as inconsistent with VA policy at the time, which allowed students a second opportunity to retake the non-academic portions of the Course at their home stations.*fn3 Mendez retook the PR-24 exam and passed.

Another student was given a second opportunity to retake the academic portion of the Course. Leslie Torres, an Hispanic female, attended the Course in August 2003. She had an average of 81 going into the final exam, but failed the final exam by two points. Prior to taking the exam, Torres learned that her father had suffered a stroke. When Aviles and Price spoke later, Price informed the Chief that Torres was a very good student; that she had no difficulties learning the material; that she worked diligently and attended study groups and after-hours training; and that she had an overall passing score but had failed the final exam by two points after learning of her father's condition. Aviles believed that Torres presented an exceptional case and deserved a second opportunity to attend the Course. Torres re-enrolled in the Course in February 2004 but withdrew after the second week to attend to her father, whose health had deteriorated further. In light of ...


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