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Smith v. Wilkie

United States District Court, M.D. Florida, Jacksonville Division

September 27, 2019

TIMOTHY S. SMITH, Plaintiff,
ROBERT WILKIE, Secretary, Department of Veterans Affairs, Defendant.

          ORDER [1]

          James R. Klindt United States Magistrate Judge.

         I. Status

         Plaintiff Timothy S. Smith initiated this action pro se on June 8, 2017, after the expiration of his appointment as a paid vocational rehabilitation and employment (“VR&E”) intern for the Department of Veterans Affairs (“VA”). See Compl. (Doc. No. 1).[2] He later obtained counsel, see Notice of Appearance (Doc. No. 21), and filed the operative Amended Complaint (Doc. No. 29) on February 28, 2018 through counsel. The Amended Complaint, brought under the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“the Act”), alleges discrimination under Sections 501 and 504 of the Act (counts I and IV, respectively); retaliation under Sections 501 and 504 of the Act (counts II and V, respectively); and interference, coercion, or intimidation under Sections 501 and 504 of the Act (counts III and VI, respectively), which Plaintiff’s counsel has clarified are akin to claims for hostile work environment, see Transcript of Oral Argument (Doc. No. 77; “Tr.”), filed May 3, 2019, at 70.[3]

         The case is now before the Court on Defendant’s Motion and Memorandum for Summary Judgment (Doc. No. 56; “Motion”), filed September 18, 2018. Included with the Motion are a number of attached exhibits (Doc. Nos. 56-1 through 56-16), and separately-filed depositions, see Deposition of Timothy S. Smith (Doc. No. 54-1; “Smith Dep.”) and attached exhibits (Doc. Nos. 54-2 through 54-16); Deposition of Tamira Bradshaw (Doc. No. 55-1; “Bradshaw Dep.”) and attached exhibits (Doc. Nos. 55-2 through 55-5), all filed September 18, 2018. Plaintiff responded in opposition to the Motion on October 15, 2018. See Plaintiff’s Response in Opposition to Motion for Summary Judgment (Doc. No. 62; “Response”) and attached exhibits (Doc. Nos. 62-1 through 62-6). Then, with leave of Court, see Order (Doc. No. 69), Defendant replied and Plaintiff sur-replied. See Defendant’s Reply Memorandum in Support of Summary Judgment (Doc. No. 70; “Reply”), filed March 6, 2019, and supporting Declaration of Bettie Bookhart (Doc. No. 73-1; “Bookhart Decl.”), filed March 7, 2019[4]; Plaintiff’s Sur-Reply in Opposition to Motion for Summary Judgment (Doc. No. 74; “Sur-Reply”), filed March 20, 2019. The Court held oral argument on the Motion on April 5, 2019. See Minute Entry (Doc. No. 76); Tr. Upon review of all relevant filings, and with the benefit of oral argument, the undersigned determines that the Motion is due to be granted.

         II. Standard of Review

         “Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1184, n.1 (11th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)). “A material fact is one that might affect the outcome of the suit under the governing law.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (quotations and citation omitted). “A material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quotations and citation omitted). In making this determination, the Court “view[s] all of the evidence in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Id. at 1304 (quotations and citation omitted). Unless otherwise noted, the following facts are undisputed.

         III. Facts

         Plaintiff is a six-year Veteran of the United States Navy. Affidavit of Timothy S. Smith (Doc. No. 62-2; “Smith Aff.”) at 1. Following his Navy service, Plaintiff was a paid VR&E counseling intern at the VA in Jacksonville, Florida from September 12, 2011 through November 23, 2013.[5] Smith Dep. at 11-12, 49; id. Ex. 1 (Doc. No. 54-2) at 1; id. Ex. 12 at 1; Bradshaw Dep. at 22. As part of the internship, Plaintiff completed in both 2011 and 2013 a training course entitled, “Prevention of Workplace Harassment/No FEAR, ” in which he was advised that if Equal Employment Opportunity (“EEO”) counseling or contact is desired, it must be requested within “45 days of an event or decision thought to be discriminatory.” Bookhart Decl. at 1; see id. at Ex. 1 (Doc. No. 73-2) pp. 3, 17-18.

         The internship hours were from 8:00 a.m. to 4:30 p.m. Monday through Friday. Smith Dep. at 25; Bradshaw Dep. at 23-24. As an intern, Plaintiff’s duties “included “working directly with veterans, learning all the processes that [we]re involved with getting a veteran into [the vocational rehabilitation] program, ” as well as “assigning, completing [a] vocational exploration, [and] documenting all the interaction [he had] with the veteran[s].” Bradshaw Dep. at 27. Plaintiff also was responsible for “following up with th[e] veteran[s once they were in the program] to make sure they ha[d] everything that they need[ed] and . . . counseling them when they needed assistance for any areas that they were struggling in or things that they were doing well and then helping them move on directly into employment.” Id. at 27-28.

         During the time Plaintiff worked as a paid intern at the Jacksonville VA, he was the only intern. Smith Dep. at 49; Bradshaw Dep. at 9. A previous intern had been promoted to a vocational counselor and received an office with the promotion. Smith Dep. at 49. Plaintiff sat in a cubicle, just as the previous intern had done. Id.

         One of the conditions of the internship was that Plaintiff be enrolled in a program to obtain a master’s degree in vocational rehabilitation programing. Id. at Ex. 1; see id. at 12-13, 15 (Plaintiff testifying about pursuing a master’s degree after discussions with his personal vocational rehabilitation counselor, Shannon Murphy); Bradshaw Dep. at 22. This is because a master’s degree is required to be a vocational rehabilitation counselor. Bradshaw Dep. at 30. According to Plaintiff, he “was told that once [he] completed [his] Master’s Degree and internship program, . . . [he] would be hired” as a vocational rehabilitation counselor. Smith Aff. at 2. Official documents state that such employment, sometimes called a “conversion, ” is not guaranteed. See Smith Dep. at Ex. 1 p. 2 (Intern Agreement stating that “[b]efore the end of this [trial] period, the supervisor will appraise the Intern’s performance” and “[b]ased on this appraisal and the supervisor’s recommendation, the next higher management official will decide whether to retain or release the student”).

         Plaintiff enrolled as a full-time online evening student at Thomas University in August 2011 with an expected graduation date of July 2013. Smith Dep. at 13, 22-24, 58. He graduated as expected with a 4.0 grade point average. Id. at 22-24, 52, 56, Ex. 2B (Doc. No. 54-4) at 1. The master’s degree coursework sometimes required Plaintiff to stay up late into the evening and early morning hours, and occasionally Plaintiff stayed up all night to meet certain school-related deadlines. Id. at 25-26. There were times that Plaintiff would receive a one- or two- day extension to turn in coursework. Id. at 27.

         Another condition of the internship was that Plaintiff have a VA rated service-connected disability of at least thirty percent. Bradshaw Dep. at 14. When Plaintiff began his internship and continuing through today, he was categorized by the VA as eighty percent service-connected disabled. Smith Aff. at 1. The conditions from which Plaintiff suffers and their associated percentage ratings are: “sleep apnea associated with deviated nasal septum” (fifty percent from October 3, 2008); “muscle tension headaches associated with degenerative disc disease of the cervical spine” (ten percent from April 14, 2005 and thirty percent from January 30, 2008); “degenerative disc disease of the cervical spine” (ten percent from April 14, 2005); “status post bunionectomy, left foot” (ten percent from April 14, 2005); “bunionectomy right foot” (ten percent from April 14, 2005); “degenerative disc disease of the lumbar spine” (ten percent from October 17, 2005); “hypertension” (noncompensable); and “deviated nasal septum” (noncompensable). Id. at 1-2; see Smith Dep. at 28, 42-46.[6]

         As explained in more detail below, Plaintiff had some difficulties keeping up with his internship work. Plaintiff mainly attributes his difficulties during the internship to sleep apnea, low Vitamin D, a thyroid deficiency, and low testosterone, all of which can cause an individual to feel tired and have low energy. Smith Dep. at 28-30; see also id. at Ex. 3 (Doc. No. 54-5) p. 3. Plaintiff uses a sleep machine, commonly called a “CPAP, ” to help with the sleep apnea; he used one during the relevant time, but it did not always work well. Id. at 28-29. Plaintiff concedes, however, that at least some of the fatigue and tiredness he felt during the internship was the result of working full time and attending school full time. Id. at 59.

         Limitations Plaintiff has from his other service-connected disabilities include unspecified issues walking, climbing, bending, stooping, crawling, or prolonged standing or walking. Id. at 42. According to Plaintiff, he can “[p]ossibly” walk two hours per day. Id. at 43.

         Shannon Murphy, who had been Plaintiff’s personal vocational rehabilitation counselor, served as his mentor during the internship. Id. at 48. Tamira Bradshaw was Plaintiff’s supervisor. Id. at 51; Bradshaw Dep. at 8. According to Plaintiff, he had the same workload as full-time vocational counselors, even though he was told he would have a lighter workload. Smith Dep. at 49-50, 75. Although he signed his own vocational reports, someone else had to review them because of his intern status. Id. at 50-51; Bradshaw Dep. at 30. Typically Ms. Murphy or Ms. Bradshaw would review them. Smith Dep. at 51. If they were out of the office, others would review the reports. Id. Some of the reports Plaintiff drafted required no changes after being reviewed, some of them required only one round of changes, and some required multiple rounds of changes. Id. at 52.

         Plaintiff met with Ms. Bradshaw once or twice per week for training. Id. at 56. He could also meet with her if he had “any pressing things” and she was not busy. Id. Mainly, though, Plaintiff interacted with Ms. Murphy on case management issues. Id.

         Plaintiff received a number of formal performance evaluations while he was an intern. Id. at 52-53; Declaration of Tamira Bradshaw (Doc. No. 56-1; “Bradshaw Decl.”) at Ex. 1 (Doc. No. 56-2), Ex. 2 (Doc. No. 56-3), Ex. 10 (Doc. No. 56-11). In each, Plaintiff was marked “fully successful” or above. Smith Dep. at 52; Bradshaw Dep. at 31. Ms. Bradshaw testified that although there were problems with Plaintiff’s performance, “[i]f [she] had marked him at anything less than fully successful, he would have been removed and would not have been able to finish his internship.” Bradshaw Dep. at 47.

         In Plaintiff’s first evaluation, on November 29, 2011, Ms. Bradshaw noted that Plaintiff “was still learning the position” and was “considered fully successful.” Bradshaw Decl. at 2, Ex. 1 p. 8; see Bradshaw Dep. at 40-41. In Plaintiff’s first annual evaluation (but his second formal evaluation), on December 20, 2011, Ms. Bradshaw again rated Plaintiff “fully successful, ” noting that she was “mitigat[ing]” several performance standards since Plaintiff had “only been in the job for 90 days.” Bradshaw Decl. at 2, Ex. 1 pp. 10-12; see Bradshaw Dep. at 43.

         In Plaintiff’s next formal evaluation, on April 25, 2012, Plaintiff was rated “fully successful.” Bradshaw Decl. at 2, Ex. 2 p. 7; see Bradshaw Dep. at 44. Although Ms. Bradshaw declares that “[a]t that time, [she] also advised him of the problems with and in his reports, ” Bradshaw Decl. at 2; the formal evaluation does not reflect any specific problems with reports, see id. at Ex. 2.

         On September 21, 2012, Ms. Bradshaw sent Plaintiff an email advising him that his “CER files” were not properly maintained, providing him with a diagram showing the proper order for the files, and asking him to “do a better job of keeping [the files] neat and orderly” because the files were permanent records of Veterans. Bradshaw Decl. at 2, Ex. 3 (Doc. No. 56-4) p. 2.[7]

         Ms. Murphy completed a “Practicum Evaluation” on October 10, 2012 for Thomas University in connection with Plaintiff’s master’s program. Smith Dep. at 53-54, Ex. 4 (Doc. No. 54-6) pp. 1-3 (some capitalization omitted). In that evaluation, Ms. Murphy marked Plaintiff “Average, acceptable level of performance” or “Below average performance, some aspects acceptable” in a number of areas, noting he struggled with “time management, writing effectively and correcting mistakes.” Id. at Ex. 4 pp. 1-3.[8]Ms. Murphy also noted Plaintiff was “often overwhelmed by the many facets of the job.” Id. at Ex. 4 p. 3.

         Plaintiff and Ms. Bradshaw met on October 12, 2012 to discuss “two issues of concern” Ms. Bradshaw had about Plaintiff’s internship performance. Id. at Ex. 6 (Doc. No. 54-8) (memorandum dated October 19, 2012 recapping the matters that were discussed during the October 12, 2012 meeting); see id. at Ex. 8 (Doc. No. 54-10) (Ms. Bradshaw’s October 12, 2012 note memorializing the meeting); id. at 68-69; Bradshaw Decl. at 2-3. Ms. Bradshaw followed up the discussion with the October 19, 2012 written memorandum to Plaintiff containing the subject line, “Verbal Counseling.” Smith Dep. at Ex. 6; Bradshaw Decl. at 3. The memorandum summarizes the two issues that were discussed:

1. We discussed the Veteran who came into the office saying that you would hire him for your real estate company if he got trained in that field. We discussed the ethical issues surrounding this and that you should not have any cross over from your real estate business into this office or it’s [sic] Veterans. You did explain that you had given this information to the Veteran prior to becoming employed here and that you have since spoken to the Veteran to inform him that you would not be able to employ him in real estate due to your current employment situation.
2. We also discussed the chain of command and that when your mentor or supervisor informs you of something that needs to be done you are to do that. Shannon Murphy had explained to you how to handle a case for a Veteran in which you had made an entitlement decision and cleared the pending issue even though the Veteran left the office. However, you contacted Ed Laroche in the RO to have him change the cleared issue into a disallowance, which was not correct for this case. You did explain that you thought you could fix the situation, however the fix was not correct. We discussed that it is extremely important that you follow the chain of command and what you are told to do by a supervisor or mentor. If you have questions you can always bring that to me but you should not circumvent the system.

Smith Dep. at Ex. 6[9]; see id. at 68-70. Plaintiff signed the memorandum on October 19, 2012 to indicate he received a copy of it. Id.

         In Ms. Bradshaw’s note memorializing the October 12, 2012 meeting (that does not appear to have been provided to Plaintiff at the time), Ms. Bradshaw wrote that she “reminded [Plaintiff] that the conversion of this position is not guaranteed and that his internship was his chance to impress us.” Id. at Ex. 8.[10] She stated, “at this point things were not looking good” for converting Plaintiff to a permanent position. Id. She “reviewed with him other positions that he could do with his degree.” Id. She also discussed with Plaintiff that she “would become [his] mentor as it did not seem to be working with his current mentor.” Id.

         According to Ms. Bradshaw, prior to October 12, 2012, Plaintiff “had not come to [her] to discuss any medical issues he had that were interfering with his job performance.” Bradshaw Decl. at 2. Plaintiff testified generally that he requested accommodations from Ms. Bradshaw. Smith Dep. at 55. According to Plaintiff, he asked for his own office to be free from distractions. Id. In response, Ms. Bradshaw told him, “you’re an intern.” Id. Plaintiff testified that in October 2012, he was having difficulty keeping up with reports due to exhaustion. Id. at 61. Plaintiff stated he asked for unspecified “things, ” but Ms. Bradshaw “just was no help” and “never once asked [him] what accommodations [he] needed” despite knowing he had to have at least a 30-percent disability rating. Id.

         On October 16, 2012, Plaintiff and Ms. Bradshaw met again. Id. at 70-71, 76, Ex. 8; Bradshaw Decl. at 3. According to Plaintiff’s deposition testimony, he generally “told [Ms. Bradshaw] about the medical issues [he] was going through and all she did was keep pushing [him] to get the reports in, which wasn’t going to help [him] get there.” Smith Dep. at 76; see also id. at Ex. 3 p. 3 (Plaintiff testifying during his EEO proceedings that “[i]n the beginning [management] didn’t know everything about [his disability], but as I was having some struggles at work, they did, I informed them what was going on in October of- October of 2012, I let them know what was going-oh, I let Tami [Bradshaw] know”). Ms. Bradshaw testified during her deposition that during the October 16, 2012 meeting, she was told generally about a disability, but she testified she did not know the nature of his disability: “I would have asked him not to give any specifics on his disabilities, either service-connected or non-service connected. As I mentioned before, it would be[] inappropriate for me to have that discussion with him.” Bradshaw Dep. at 62; see id. at 75; id. at 65 (Ms. Bradshaw confirming she knew Plaintiff was having difficulty due to his disability); id. Ex. D (Doc. No. 55-5) at 3 (Ms. Bradshaw testifying during the EEO process that “he said he was having difficulty due to his disabilities”).

         According to Ms. Bradshaw, at the time of the October 16, 2012 meeting and the whole time Plaintiff was an intern, if someone made a request for an accommodation, it would have been reviewed by Human Resources (“HR”).[11] Bradshaw Dep. at 57-58. Only if it were “outside the normal realm of accommodations” would HR contact her about it. Id. at 57.

         Plaintiff testified that during the October 16, 2012 meeting, he asked Ms. Bradshaw for a modified work schedule. Smith Dep. at 70-71. He proposed coming in a couple of hours late when he was tired and making up the time either at the end of the workday or on a Saturday. Id. at 72. Plaintiff testified he was told “absolutely not” because he was “an intern.” Id. at 63; see id. at 78. Plaintiff was allowed to “flex 15 minutes” of his time each day but everyone received that privilege. Id. at 72.[12] Plaintiff declares that as soon as he made Ms. Bradshaw “aware of [his unspecified] disabilities, she began to retaliate against [him], by barely talking to [him], becoming increasingly belittling and hostile, and suddenly threatening [his] termination.” Smith Aff. at 3.

         Ms. Bradshaw’s declaration and her notes from the October 16, 2012 meeting reflect that during that meeting, she reiterated to Plaintiff that “he needed to get caught up on his work, that he needed to make sure he turned his reports in on time, and that he needed to [go] to [her] with any questions.” Bradshaw Decl. at 3; see Smith Dep. at Ex. 8[13] (notes from meeting). According to Ms. Bradshaw, Plaintiff “then indicated that he was having a lot of medical issues that made it difficult for him to concentrate, ” so she “told him [she] would send him a link to the [HR] office so he could make a request for a reasonable accommodation to HR because HR processed such requests.” Bradshaw Decl. at 3; see Smith Dep. at Ex. 8; id. at 77.

         Ms. Bradshaw emailed Plaintiff the next day, October 17, 2012, regarding accommodations. Bradshaw Decl. at 3; Smith Dep. at Ex. 5 (Doc. No. 54-7) p. 3 (email).[14] Ms. Bradshaw stated the following: “As we discussed yesterday that [sic] you have some medical issues that are interfering with your ability to perform your job I sent you the HR link on SharePoint to request a reasonable accommodation. I recommend that you follow the procedure to make this request.” Smith Dep. at Ex. 5 p. 3; see id. at 63. Ms. Bradshaw copied Tamanique Clark, an HR Specialist, “to help facilitate [Plaintiff’s] contact with HR.” Id. at Ex. 5 p. 3.

         According to Plaintiff, this email was only intended to address his headaches, not other issues he asked Ms. Bradshaw about. Id. at 62, 64. Plaintiff testified he never requested of HR that he receive a modified work schedule because Ms. Bradshaw had already told him he “would not have [his] schedule modified.” Id. at 64, 65; see id. at 78. Instead, in response to Ms. Clark writing Plaintiff inquiring whether he needed “an accommodation, ” Plaintiff wrote to Ms. Clark on October 17, 2012 that his “eyes [were] really bothering [him]” and requested anti-glare screens for his two computer monitors. Id. at Ex. 5 p. 2; see id. at 66-67. Plaintiff also inquired whether there were any programs he could download to make computer fonts larger. Id. at Ex. 5 p. 2.

         Plaintiff received a second annual evaluation (his fourth formal evaluation) on November 6, 2012 in which he was again rated “fully successful.” Bradshaw Decl. at 2, Ex. 2 p. 12. Ms. Bradshaw declares that at this time, she “again explained to [Plaintiff] the problems and issues that [she] continued to see with and in his reports, ” id. at 2, but the evaluation does not reflect that, id. at Ex. 2 p. 12.

         On December 11, 2012, Ms. Bradshaw completed another “Practicum Evaluation” for Thomas University. Smith Dep. at Ex. 4 pp. 4-6 (some capitalization omitted). In each area, Plaintiff was marked “Average, acceptable level of performance” or “Below average performance, some aspects acceptable.” Id. In the comments section, Ms. Bradshaw wrote that Plaintiff’s “writing ability and attention to detail are still less than ideal.” Id. at Ex. 4 p. 6. Although Plaintiff interacted well with fellow employees, he “ha[d] difficulty with the multiple number of tasks that are required of this job, ” his documentation “typically ha[d] to be returned for missing information, misspellings, and other issues that appear to hinge on an attention to detail, ” and he did “not readily display a natural counseling demeanor when dealing with clients.” Id.

         Ms. Bradshaw emailed Plaintiff on December 18, 2012, observing he had not been attending the “designated [biweekly] staffing times . . . in a long time, ” making sure he did not have any questions, and stating that she would continue to hold open the biweekly staffing times for Plaintiff “to come in with questions.” Bradshaw Decl. at Ex. 7 (Doc. No. 56-8), p. 2; see id. at 4.

         Ms. Clark from HR responded to Plaintiff’s accommodation request email on December 31, 2012, apologizing for the delay and stating that she would need medical documentation or for Plaintiff’s physician to complete a form prior to approving the antiglare screens. Smith Dep. at Ex. 5 p. 2. As to the request about the font size, she indicated that the screen could be modified through settings on Plaintiff’s computer, and she provided him with a phone number to obtain assistance with that. Id. Plaintiff returned the required documentation from his doctor on January 30, 2013. Id. at Ex. 5 p. 1. The record does not contain this documentation; just an email from Plaintiff to Ms. Clark stating that it was being provided. Id.

         In the meantime, Plaintiff made a request in writing, via email, to modify his work schedule. Id. at Ex. 7 (Doc. No. 54-9)[15]; see id. at 73. Specifically, in response to an email from Ms. Bradshaw following up with Plaintiff about a January 9, 2013 meeting between the two because Plaintiff was behind on his “write ups, ” he wrote Ms. Bradshaw on January 10, 2013 and asked if it was “possible for [him] to come in on Saturday to focus on the 1902b’s.” Id. at Ex. 7. (Evidently, 1902b’s are the same thing as “write ups” and “reports.”) Ms. Bradshaw responded the same day: “Unfortunately, I can’t authorize you to be here on Saturday as an intern. Credit time can only be authorized for those with a standard case load.” Id.; see id. at 74. Ms. Bradshaw continued, “You are welcome to flex your schedule to come in 15 minutes early each morning to give you some quiet time to work on reports. Which means you could then leave at 4:15 at the end of the day if you got here at 7:45.” Id. at Ex. 7; see id. at 75. Plaintiff did not follow up with HR regarding this request to come in on Saturday. Id. at 75.

         Plaintiff testified there were unspecified “other times” he asked Ms. Bradshaw to come in on a Saturday to get caught up, but Ms. Bradshaw continued to deny his request. Id. at 74. Plaintiff never received any modifications in his schedule. Id. at 61. According to Ms. Bradshaw, “It would be rare for an intern to work on a Saturday unless the intern had work to complete that qualified for overtime and overtime had been budgeted.” Bradshaw Decl. at 5.

         Ms. Bradshaw’s written narrative from the January 9, 2013 meeting, confirmed by her declaration, states that during the meeting, Plaintiff advised her he was “about 10 reports behind” and she in turn “let him know that it was very disturbing that he was over 3 months behind.” Id. at Ex. 8 p. 2; see id. at 4. Her notes reflect that Plaintiff advised her “he was fatigued and he has been working with doctors to try to get that figured out.” Id. at Ex. 8 p. 2. Plaintiff also stated that “he tries to work on the writeups in the morning when he is fresh but he has been working late for school and is very fatigued.” Id. Ms. Bradshaw’s notes document that she had “previously [given Plaintiff] the contact information for HR for accommodation.” Id.

         On March 7, 2013, Ms. Clark emailed Plaintiff, admitting she “forgot about [Plaintiff], ” apologizing, and indicating that she ordered the screens. Smith Dep. at Ex. 5 p. 1. Plaintiff received the anti-glare screens on March 15, 2013. Id.; see id. at 61. He wrote Ms. Bradshaw that day thanking her for facilitating the request. Id. at Ex. 5 p. 1.

         In April 2013, Ms. Bradshaw met with Plaintiff to complete his mid-year evaluation. Id. at 80-81, Ex. 10; Bradshaw Decl. at 5, Ex. 10; Bradshaw Dep. at 46-47. She advised Plaintiff that although she would rate him “fully successful” on his evaluation, she would not be converting Plaintiff from an intern to a VA counselor. Smith Dep. at 80-81, Ex. 10 (Doc. No. 54-12) (Ms. Bradshaw’s meeting notes).[16] Ms. Bradshaw’s notes from the meeting, confirmed by her declaration, reflect that the decision had been made not to convert him because “he has not been able to get to the level that we would expect for a converted counselor.” Id. at Ex. 10; Bradshaw Decl. at 5. Her notes further reflect:

I let him know that we wanted to make sure that he graduated and that when he completes his internship hours on May 3, 2013 that we would not be converting him and that would be his last day. I let him know that we wanted to give him at least 2 weeks’ notice so that he could ...

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