Tomshack v. Wilkie
| Citation | 584 F.Supp.3d 740 |
| Decision Date | 10 February 2022 |
| Docket Number | 4:20-CV-04037-RAL |
| Parties | Kevin A. TOMSHACK, Plaintiff, v. Robert WILKIE, Secretary, United States Department of Veterans Affairs; and United States Department of Veterans Affairs, Defendants. |
| Court | U.S. District Court — District of South Dakota |
584 F.Supp.3d 740
Kevin A. TOMSHACK, Plaintiff,
v.
Robert WILKIE, Secretary, United States Department of Veterans Affairs; and United States Department of Veterans Affairs, Defendants.
4:20-CV-04037-RAL
United States District Court, D. South Dakota, Southern Division.
Signed February 10, 2022
Sara E. Schroeder, Thomas K. Wilka, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, for Plaintiff.
Alison J. Ramsdell, U.S. Attorney's Office, Sioux Falls, SD, for Defendants.
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ROBERTO A. LANGE, CHIEF JUDGE
Kevin Tomshack, a twenty-six-year veteran of the United States Airforce,
brought this employment discrimination action under the Americans with Disabilities Act ("ADA"), the ADA Amendments Act of 2008, and the Rehabilitation Act of 1973. Doc. 1 at 1–2; Doc. 27 at 1. He alleges that his former employer, the Royal C. Johnson Veterans’ Memorial Hospital ("Veterans’ Hospital"), terminated his employment because of his disability, failed to make reasonable accommodations for his disability, and retaliated against him for requesting an accommodation. Doc. 1 at 2, 10–11. Tomshack requests back pay and the value of lost benefits, money damages for emotional distress, and attorneys’ fees and costs. Doc. 1 at 11. The United States Department of Veterans Affairs and Robert Wilkie, Secretary of the United States Department of Veterans Affairs, ("Defendants") filed a motion for summary judgment, Doc. 16, which this Court now grants.
I. Facts
Tomshack suffered injuries during his military service in Kuwait and Kyrgyzstan. Doc. 1 at 2–3. In 2012, after Tomshack had retired from the Airforce, he accepted a job as a janitor at the Veterans’ Hospital. Doc. 1 at 3; Doc. 6 at 2; Doc. 17 at 2; Doc. 18 at 1. Sometime in 2014, Tomshack had surgery to fuse his C-3, C-4, and C-5 vertebrae. Doc. 26-1 at 3. In December 2014, he was diagnosed with idiopathic thrombosis, rendering him unable to continue working as a janitor in a hospital setting. Doc. 17 at 2; Doc. 18 at 1; Doc. 19-1 at 4–5. Sometime between his diagnosis and May 2015, the Veterans’ Hospital transferred Tomshack to a full-time file clerk position in its Care in the Community Department. Doc. 1 at 3; Doc. 17 at 2; Doc. 18 at 1. Lisa Seeley was Tomshack's supervisor there. Doc. 1 at 2; Doc. 6 at 2.
At that time, the Veterans’ Hospital was in the process of scanning thousands of paper medical records. Doc. 1 at 3; Doc. 19-1 at 5. Tomshack's primary responsibility was to scan these records and upload them to the computer system. Doc. 17 at 2; Doc. 18 at 2. Tomshack began to suffer neck spasms at work when he stared at a computer screen for too long, which became worse over time. Doc. 19-1 at 6–8. Tomshack also suffered from lower back issues, post-traumatic stress disorder, depression, and degenerative joint and disk disease. Doc. 1 at 3. His back and neck issues made it difficult for him to sit, stand, or walk for extended lengths of time. Doc. 26-1 at 3; Doc. 27 at 15.
Tomshack gradually found it more difficult to work full-time. Doc. 26-1 at 5. In August 2015, Tomshack had a second cervical spinal surgery that fused his C-6 and C-7 vertebrae, but the surgery failed to alleviate his symptoms. Doc. 1 at 3; Doc. 19-1 at 8; Doc. 26-1 at 3, 5. Around this time and for approximately two years thereafter, Seeley and the Veterans’ Hospital allowed Tomshack to work what was effectively a part-time schedule by using sick leave, annual leave, compensatory leave, and leave under the Family Medical Leave Act (FMLA) to reduce his weekly hours. Doc. 1 at 3; Doc. 17 at 2; Doc. 18 at 3–4. Once Tomshack was out of leave, Seeley and the Veterans’ Hospital let him take leave without pay. Doc. 17 at 2. Seeley initially granted Tomshack this flexibility because his work did not need to be completed within traditional business hours. Doc. 17 at 2; Doc. 18 at 4; Doc. 19-2 at 2. Tomshack's part-time schedule was somewhat of an informal accommodation in that he remained employed full-time despite working reduced hours.
By September 2015, Tomshack had finished scanning the document backlog, so Seeley instructed him to begin "consult tracking." Doc. 1 at 3; Doc. 27 at 3. Consult tracking is one of the roles of program support assistants. Doc. 1 at 3. It involves updating a veteran's medical records after
the veteran is seen by a care provider outside of the Veterans’ Hospital system. Doc. 1 at 3–4; Doc. 27 at 3. Consult tracking also requires documenting when a veteran who is referred for a consultation does not receive care. Doc. 1 at 5.
Although Tomshack had begun consult tracking in 2015, it was not until February 7, 2016, that he was officially promoted from a full-time file clerk to a full-time program support assistant in the Care in the Community Department. Doc. 17 at 2; Doc. 18 at 2. Despite continuing in a full-time position, Tomshack actually worked, with permission, a part-time schedule by using sick leave, annual leave, compensatory leave, leave under the FMLA, and eventually leave without pay. Doc. 17 at 2; Doc. 18 at 4.
In 2015 and 2016, Seeley gave Tomshack very positive performance reviews, and he received written awards, promotions, and cash bonuses. Doc. 1 at 4; Doc. 6 at 3. On his November 2016 performance review, Tomshack had five "exceptional" ratings and one "highly successful" rating. Doc. 1 at 4. The review stated that Tomshack was very accurate and a "subject matter expert for scanning." Doc. 1 at 4. He also had "exemplary skills in all aspects of customer service ...[, went to] extra lengths to secure documentation when needed in a timely manner," worked well with other members of his department, and was "independent and effective in managing his very high workload." Doc. 1 at 4. Tomshack's "highly successful" grade was in the "Personal Mastery" section, which noted that he "had four documented episodes of unplanned leave for medical reasons." Doc. 1 at 4.
On January 5, 2017, Tomshack sent an email to human resources stating that his medical issues made even part-time work difficult and inquiring about early medical retirement. Doc. 32 at 1, 4. On January 10, 2017, human resources officer Angyla Lewis met with Tomshack to answer his questions and give him the forms that he would need to complete. Doc. 32 at 1–2. Tomshack never returned the paperwork for early medical retirement to human resources. Doc. 32 at 2.
Around late 2016 and into early 2017, the national priorities of the Veterans Affairs Administration ("VA") shifted to focus on scheduling consultations for veterans within 30 days of when a referral is made. Doc. 19-2 at 12–13; Doc. 26-2 at 10. Around this time, VA evaluations became more focused on the number of appointments scheduled, rather than the number of open consults. Doc. 1 at 5.
After working as a GS-5 program support assistant for one year, Tomshack was promoted to GS-6 on February 5, 2017. Doc. 1 at 5; Doc. 17 at 3; Doc. 18 at 2; Doc. 24 at 2. Around the time of his promotion and consistent with the VA's new focus, the Veterans’ Hospital began expecting Tomshack to schedule appointments for veterans. Doc. 17 at 3; Doc. 18 at 2, 4; Doc. 19-1 at 10. Under the "Major Duties and Responsibilities" section of the program support assistant job description, "scheduling" is the first task described, and the term "scheduling" appears in seven of the twenty-two bullet points listed under this section. Doc. 20-7 at 4–5. Scheduling involves communicating with a veteran and then calling a health care clinic to schedule that veteran's appointment. Doc. 19-2 at 2. Because scheduling involves calling health care clinics, it typically must occur during normal business hours, although calls to veterans can be made outside of business hours. Doc. 19-2 at 2.
On March 6, 2017, Grace Wilson, a human resources training specialist at the Veterans’ Hospital, emailed Tomshack's direct supervisor Josue Torres to ask if he had "any idea when [Tomshack] would be retiring?" and whether Tomshack had begun
"schedul[ing] any app[ointments] at all?" Doc. 26-1. Torres responded that Tomshack had not done any scheduling and hoped to retire around May 2017. Doc. 26-1.
In May 2017, Tomshack was told that he needed to complete a mandatory training so that he could begin to schedule appointments. Doc. 1 at 5; Doc. 17 at 3; Doc. 18 at 3; Doc. 24 at 2. The training was scheduled to take place for eight hours a day over a two-week period. Doc. 26-2 at 5. After the mandatory training was complete, Tomshack and other program support assistants would receive electronic "keys" that would allow them to access the VA's scheduling software. Doc. 17 at 3; Doc. 18 at 2; Doc. 19-2 at 4. By the end of May 2017, all employees who were assigned to schedule in the Care and the Community Department had completed training except for Tomshack. Doc. 19-2 at 9.
Tomshack recalls asking Seeley if he could complete the training in half-day increments because he was not able to work a full day. Doc. 27 at 5–6. According to Tomshack, Seeley told him that he needed to attend the full eight-hour training days and after that he would need to begin working eight hours a day, instead of his current four-hour-a-day work schedule. Doc. 1 at 5; Doc. 26-1 at 8. Seeley did not recall having any such conversations with Tomshack.1 Doc. 26-2 at 5. There is no record that Tomshack submitted a formal accommodation request to attend the training a half-day at a time, and Tomshack made no such request to the trainer Wilson. Doc. 21 at 1.
On July 17, 2017, when Tomshack's leave reserves were almost depleted, he submitted a written accommodation request to work part-time. Doc. 1 at 6; Doc. 17 at 3–4; Doc. 18 at 4. At that time, there was another employee who had expressed interest in job sharing with Tomshack, where both could work part-time as program support assistants. Doc. 1 at 6. On August 29, 2017, while his accommodation...
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