Terry v. Wilkie

• Decision Date: 21 November 2019
• Docket Number: Case No.: 8:18-cv-2664-T-33AAS
• Parties: ADRIAN TERRY, Plaintiff, v. ROBERT WILKIE, as Secretary of Veterans Affairs, Defendant.
• Court: U.S. District Court — Middle District of Florida

ADRIAN TERRY, Plaintiff, v. ROBERT WILKIE, as Secretary of Veterans Affairs, Defendant.

Case No.: 8:18-cv-2664-T-33AAS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

November 21, 2019

ORDER

This matter comes before the Court upon consideration of Defendant Robert Wilkie's Amended Motion for Summary Judgment (Doc. # 28), filed on October 10, 2019. Plaintiff Adrian Terry responded on October 28, 2019. (Doc. # 30). Wilkie filed a reply on November 12, 2019. (Doc. # 31). For the reasons that follow, the Motion is granted.

I. Background

Terry is a veteran with numerous disabilities, including asthma, somatic symptom syndrome, PTSD, anxiety, calcaneal spurs, plantar fasciitis, tendonitis, sleep apnea, and high blood pressure. (Doc. # 28-1 at 12:21-13:6; Doc. # 1 at 2). In 2014, Terry began working as a housekeeping aide at the James A. Haley VA Medical Center. (Doc. # 28-1 at 10:5-16). He was later promoted to supply technician. (Id. at 10:23-11:21).

According to Terry, the supply technician job involved "tak[ing] inventory" of medical supplies using a scanner, uploading that information into the computer system for tracking inventory, "pick[ing] up [the] items, put[ting] [them] in the bin to take it back to the floor," and then "restock[ing]" items in a store area. (Id. at 11:22-12:20). The 2016 job description for the supply technician position states that it "requires" (i) "regular and recurring physical exertion (such as pulling or pushing carts weighing as much as 300 pounds and lifting items weighing up to 50 pounds)"; and (ii) "standing for periods of time as well as walking, kneeling, stooping, reaching and lifting." (Doc. # 28-31 at 5). In addition, according to the 2016 job description, the supply technician is "the on-site customer service representative of Logistics Service" and thus "has personal contacts with a variety of individuals on a daily basis." (Id. at 4-5).

In May 2016, Terry informed the VA that he was "[u]nable to repeatedly lift and stand for prolonged periods." (Doc. # 28-4 at 1). Thus, on May 20, 2016, Terry requested reassignment from the supply technician job as a reasonableaccommodation. (Doc. # 28-11). Terry's "Written Confirmation of Request of Accommodation" form states that he requested only reassignment as an accommodation (Id.), and two other forms from this time — the "Request for Medical Documentation" form Terry provided to his doctor (Doc. # 28-4 at 1) and the "Acknowledgement of Receipt of Request" form (Doc. # 31-2 at 2) — both state that Terry's requested accommodation was reassignment.

At his deposition, Terry vaguely suggested that he also sought the accommodation of a chair at this time so that he could stay in the supply technician position but was denied. (Doc. # 28-1 at 16:8-11). Specifically, when asked whether "anyone tr[ied] to figure out if there was a way [he] could still do [his] job as a supply technician with accommodations," Terry replied "No, they don't do that. . . . Because when she asked if they could help me, because the only thing I was requesting was a chair to sit, but they said no. And that's when they placed me in working as a greeter at the front desk." (Id. at 15:22-16:11).

Later in his deposition, however, Terry confirmed that he never asked for a chair as a reasonable accommodation while he was working as a supply technician in the logistics department:

Q: Did you ever ask for a chair when you were in logistics, though?

My understanding was you said that you couldn't stand for more than 20 minutes?

A: Right. But I never had a chance to ask, because when I brought my paperwork back, the chief said he didn't have nothing for me so she --

Q: Did you ever ask for a chair?

A: No. You talking about after I requested accommodation?

Q: Initially, did you ever ask for a chair when you were in logistics?

A: No. No. Because I didn't know I could get a chair, because we all -- we -- everyone was just constantly -- you know, just standing, wasn't no chair. So, you know, I didn't think to ask for one during that time.

(Id. at 94:4-20)(emphasis added).

While the VA looked for a permanent reassignment for him, Terry began working as an interim hospital greeter. (Doc. # 28-5 at 1; Doc. # 28-1 at 24:19-25). Then, on June 7, 2016, Terry provided additional work restrictions to the VA, including that he could stand only for twenty-minute periods. (Doc. # 28-13). Terry acknowledged at his deposition that, at the time his restrictions prevented him from standing for more than twenty minutes at a time, it would have been difficult to perform the duties of a supply technician. (Doc. # 28-1 at 18:12-25).

On June 29, 2016, the VA ran its first search for a new permanent position for Terry. (Doc. # 28-12). As a result of that search, the VA offered Terry the position of telephoneoperator. (Doc. # 28-14). But Terry claimed that he needed a different reassignment because he could not work the night shifts required for that position. (Doc. # 28-15).

Meanwhile, Terry continued working as a hospital greeter. (Doc. # 28-1 at 24:19-25). The VA conducted additional searches for available reassignments for Terry in August 2016, October 2016, and January 2017, but no appropriate positions were available. (Doc. # 28-16; Doc. # 28-17; Doc. # 28-18).

Then, in March 2017, the VA offered Terry the position of medical support assistant. (Doc. # 28-19). Terry accepted the offer and completed two weeks of training. (Doc. # 28-20; Doc. # 28-1 at 25:25-26:14). The medical support assistant position primarily involved "making appointments, cancelling appointments, [and] checking patients in." (Doc. # 28-1 at 26:15-17). After his first day on the job, however, Terry told his supervisor that he could not work as a medical support assistant. (Id. at 28:10-29:4).

After taking a few days' leave, on April 24, 2017, Terry provided the VA with medical documentation stating that, because he had great difficulty multi-tasking and concentrating, he should not answer phones or scheduleappointments and should have "minimal patient interaction." (Doc. # 28-3).

The VA responded by searching once again for vacant positions that fit Terry's restrictions. The April 2017 search revealed no available positions. (Doc. # 28-21). Meanwhile, in May 2017, Terry was moved to an interim position with the VA's Gold Stars program. (Doc. # 28-2). On May 30, 2017, the VA ran another search but found no available positions. (Doc. # 28-22). The next search on June 28, 2017, also revealed no available positions. (Doc. # 28-23). The VA's July 2017 search, which was expanded to also look for positions at the VA's Bay Pines and Orlando locations, was similarly unsuccessful. (Doc. # 28-24). The VA's August 2017 search, which was further expanded to include Miami, Gainesville, and West Palm Beach, likewise revealed no available positions consistent with Terry's restrictions. (Doc. # 28-25).

Terry contacted his EEO counselor on August 27, 2017. (Doc. # 28-26). Then, on September 8, 2017, the VA denied Terry's request for reasonable accommodation on the grounds that it was unable to "identify vacant funded positions [Terry] qualif[ied] for that me[t] [his] restrictions and [were] not a promotion." (Doc. # 28-27 at 2). On September18, 2017, Terry met with the reasonable accommodation specialist and HR specialist, as well as two union representatives, to discuss his accommodation request. (Doc. # 28-26 at 2). Terry testified that one of the union representatives gave him the idea to ask for a chair as a reasonable accommodation:

Q: So who gave you the idea to ask for a chair?

A: The union when we was — during our meeting they would suggest, Well, if he can't stand for so long, then why not give him a chair? They was suggesting that, for me to go back to logistics given the fact that was my only issue, standing.

(Doc. # 28-1 at 95:2-7). Two days later, Terry filed a complaint for disability discrimination and retaliation with the VA. (Doc. # 28-26 at 1).

On September 27, 2017, VA representatives met with Terry to discuss the denial of his reasonable accommodation request. (Doc. # 28-27 at 2). At that meeting, Terry provided the VA with his updated medical restrictions, including that he could stand for 2 hours as long as he then could sit for 30 minutes to an hour. (Id.; Doc. # 28-28). Importantly, however, Terry's other restrictions, including that he focus only on one task at a time and have minimal patient interaction, did not change. (Doc. # 28-27 at 2).

During that meeting, Terry asked to be reassigned to the supply technician position with a chair as a reasonable accommodation. (Doc. # 28-1 at 95:2-9). Notably, between Terry's leaving the position of supply technician in 2016 and his request to be reassigned to that position with a chair in September 2017, the job description for supply technician had been updated. (Doc. # 31-3). The 2017 job description explains that the job "requires standing and walking during the entire workday, and frequent reaching, bending and lifting of supply packages (occasionally weighing as much as 50 pounds)." (Id. at 7). Additionally, according to the updated job description, the supply technician position's duties include (i) "general telephone inquiries and visitor referrals"; (ii) "communicating with customers and vendors to obtain information regarding medical supplies"; and (iii) "providing information as needed in response to general telephone inquiries and visitor referrals." (Id. at 4, 6). The job description also states that "[w]ork is performed on established shifts, which may involve evening, overnight, or weekend hours." (Id. at 4).

Nevertheless, Terry testified that he could have done the job of supply technician with only a chair as an accommodation because "the only thing [he] was needing [was]just to sit down more." (Doc. # 28-1 at 16:12-15). Yet Terry also stated: "with that job you're constantly on your feet, you never really sit unless you're going on break,...