Culler v. Shinseki

• Decision Date: 30 December 2011
• Docket Number: Civil Action No. 3:09–0305.
• Citation: 840 F.Supp.2d 838
• Parties: Keith M. CULLER, Plaintiff v. Eric K. SHINSEKI, Secretary of the United States Veterans Affairs, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

840 F.Supp.2d 838

Keith M. CULLER, Plaintiff

v.Eric K. SHINSEKI, Secretary of the United States Veterans Affairs, Defendant.

Civil Action No. 3:09–0305.

United States District Court,

M.D. Pennsylvania.

Dec. 30, 2011.

Paul M. Jennings, Employment Law Office, Scranton, PA, Anthony P. Trozzolillo, Cipriani & Werner, Scranton, PA, Leonard S. Deutchman, LDiscovery, LLC, Fort Washington, PA, for Plaintiff.

Kate L. Mershimer, U.S. Attorney's Office, Harrisburg, PA, for Defendant.

MEMORANDUM¹

MALACHY E. MANNION, United States Magistrate Judge.

I. PROCEDURAL HISTORY

By way of relevant procedural background ², the plaintiff filed the instant action, (Doc. No. 1 ), on February 17, 2009, which he later amended on April 5, 2009, to include claims of age discrimination and retaliation (Count I), First Amendment violations (Count II), and a hostile work environment (Count III), in relation to his employment as an orthotist ³ at the Wilkes–Barre, Pennsylvania, Veterans Affairs, (“VA”), Medical Center, (Doc. No. 3 ).

After consideration of the defendant's initial motion for judgment on the pleadings, (Doc. No. 30 ), and subsequent motion for summary judgment, (Doc. No. 64 ), the only remaining claim in this action is whether the plaintiff was discriminated against on the basis of reprisal for prior EEO activity with regard to training. More specifically, whether a March 7, 2007, decision to rescind his previously approved travel to the National Training of VA Prosthetics/Orthotists Conference from March 19–24, 2007, in San Francisco, California, was in retaliation for is EEO filings.

Proposed findings of fact and conclusions of law were filed by the defendant, (Doc. No. 70), and the plaintiff, (Doc. No. 71), on August 26, 2011, 2011 WL 3795009, and August 28, 2011, respectively.

A non-jury trial was held on the sole remaining claim on August 29, 2011, and August 30, 2011. At the trial, the court heard the testimony of the following current and former employees at the Wilkes–Barre VA Medical Center ⁴: the plaintiff; Diane (Smith) Opiel, Chief of Staff Development; Bonnie Gurdock, Education Technician; Antoinette Germain–Tudgay, Chief of Rehab and Prosthetics; Carmen Gene Molino, Associate Medical Center Director; Donald Foote, Finance Manager; and Linda Stout, Acting Medical Director.

Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the court's findings of fact and conclusions of law follow.

II. FINDINGS OF FACT

The following findings of fact are based upon the stipulation of the parties, as well as the testimony and evidence which the court found credible as presented at the trial.

Among other things, the VA provides medical care through twenty-two Veterans Integrated Service Networks, which are known as VISNs. The Wilkes–Barre VA Medical Center is one of ten hospitals within VISN 4.

The plaintiff in this action is Keith Culler, who had worked as an orthotist at the Wilkes–Barre VA Medical Center from 1998 until April 1, 2007, when he went to a Baltimore, Maryland, VA facility to work as an orthotist.

Tony Germain–Tudgay is the Chief of the Rehab and Prosthetics Department at the Wilkes–Barre VA Medical Center, and has held that position for the past nine years. For the times relevant to the plaintiff's remaining claim, Ms. Germain–Tudgay was the plaintiff's direct supervisor at the Wilkes–Barre VA Medical Center.

On or about September 10, 2004, February 2, 2006, and May 10, 2007, the plaintiff filed three formal EEO complaints raising multiple claims alleging age discrimination and/or retaliation for having engaged in protected activity against the VA. The plaintiff amended the second EEO complaint on March 3, 2006, and again on March 29, 2006.

In a November 14, 2006, memorandum, William Feeley, the Deputy Under Secretary of the VA for Health and Operations observed that the American Academy of Orthotists and Prosthetists, (“AAOP”), had offered to provide registration discounts to Veterans Health Administration, (“VHA”), orthotists and prosthetists for a scientific symposium being offered in San Francisco, California, from March 20–24, 2007. The symposium would include a one-day VA program to be presented on March 20, 2007. Mr. Feeley requested “that each VISN with accredited prosthetic and orthotic laboratories support travel and registration expenses for all certified prosthetists and orthotists as practical from each VISN to attend this symposium.” (Emphasis in original). The cost of the training was $485.00 for tuition, plus another $1,962.14 for travel, hotel and meals. The funding for the conference would come from the Wilkes–Barre VA Medical Center facility funds, as opposed to VISN funds.

Chris Nowak, the Network Prosthetics Chief, forwarded the November 14, 2006, memo to Ms. Germain–Tudgay on November 20, 2006. She, in turn, forwarded the memorandum to the plaintiff on or about November 20, 2006, along with a form on which the plaintiff was to indicate whether or not he was interested in attending the conference. Upon completion, he was to return it to Ms. Germain–Tudgay.

Because the plaintiff did not believe that the clinic would be properly covered if he attended the conference, he initially chose not to attend. On November 27, 2006, he returned the form to Ms. Germain–Tudgay indicating that he was not interested in attending. Upon receipt of this response, Ms. Germain–Tudgay asked Union Representative John Shalanski to attempt to convince the plaintiff to attend the conference, as she felt the plaintiff was making his decision not to attend for the incorrect reasons. Additionally, she felt it would be beneficial to both the plaintiff and the Wilkes–Barre VA Medical Center patients for him to attend. Following Mr. Shalanski's conversation with the plaintiff, on November 29, 2006, the plaintiff submitted a request to attend the training.

In order to attend the conference, the Wilkes–Barre VA Medical Center required an applicant's immediate supervisor to approve or disapprove the training request and to indicate the priority—or value—of the training to the VA. On December 4, 2006, Ms. Germain–Tudgay approved the plaintiff's request to attend the conference and marked the priority as “high,” as she felt the education committee would be more likely to approve her recommendation.

At the time the plaintiff submitted his request to attend the conference, all training requests required the approval of the immediate supervisor and the education committee. The plaintiff's training request was eventually approved by the education committee and signed by a member of the “Quadrad.” ⁵ The plaintiff received a January 24, 2007, email from Bonnie Gurdock, Education Technician, confirming his approval to attend the San Francisco training.

On February 16, 2007, Ms. Germain–Tudgay sent an email to Alice Koprowski with a copy to Mr. Nowak. Ms. Germain–Tudgay requested Ms. Koprowski send Mr. Nowak the plaintiff's certification number. This was in response to a request for the certification numbers of those employees attending the San Francisco training.

On or about February 19, 2007, the plaintiff filed a complaint with the Office of Inspector General, (“OIG”), which was simultaneously forwarded to Gene Molino, the then Acting Director of the Wilkes–Barre VA Medical Center. Sometime thereafter, Ms. Germain–Tudgay received notice that an OIG complaint had been filed by the plaintiff.

On or about February 20, 2007, Ms. Germain–Tudgay learned that the plaintiff was leaving the Wilkes–Barre VA Medical Center to take a position as an orthotist with a Baltimore, Maryland, VA medical center. Ms. Germain–Tudgay advised Dr. Mizra Ali, the Chief of Staff of the Wilkes–Barre VA Medical Center, and Mr. Nowak of this information in an email on February 20, 2007.

On February 27, 2007, the plaintiff was sent his travel authorization orders to attend the San Francisco conference. It was authorized by Linda Stout, the Chief Nurse Executive and a member of the Quadrad.

While in the process of preparing his travel plans, the plaintiff learned of a proposed thirty-day disciplinary suspension. He became concerned that he might not be able to attend the conference. The plaintiff discussed this with Bonnie Gurdock, who, in turn, asked John Shalanski to investigate the matter. Mr. Shalanski indicated that he would speak with Ms. Germain–Tudgay and get back to Ms. Gurdock on the status of the suspension and the plaintiff's ability to attend the conference. Mr. Shalanski later informed Ms. Gurdock that, after speaking with Ms. Germain–Tudgay, the proposed suspension would not interfere with the plaintiff's ability to attend the conference and therefore Ms. Gurdock could proceed to finalize the plaintiff's travel arrangements.

On March 1, 2007, Ms. Germain–Tudgay met with Donald Foote, the Chief Fiscal Officer of the Wilkes–Barre VA Medical Center, to discuss sending work out to the community because the plaintiff would be leaving the facility. Mr. Foote recalled having approved travel for the plaintiff and asked Ms. Germain–Tudgay why the plaintiff was being permitted to go on training, using Wilkes–Barre VA funds, when he would be leaving employment at the Wilkes–Barre VA Medical Center just a week later. Ms. Germain–Tudgay indicated that she was unaware that training could be cancelled. Mr. Foote advised her that the training could be cancelled, and further stated that he would cancel the training under the circumstances if it was his decision.

Mr. Foote and Ms. Germain–Tudgay then contacted Ms. Gurdock to inquire if the plaintiff's travel could be cancelled without incurring financial penalties or, if not, to determine the extent of any financial penalties. Ms. Gurdock advised them that there would be no financial penalty in cancelling the transportation and hotel, other than perhaps a small fee. As to the tuition expense, she indicated she would have to check further.

The director of the Wilkes–Barre VA Medical Center at this...