United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY S. SMITH, Plaintiff,
ROBERT WILKIE, Secretary, Department of Veterans Affairs, Defendant.
R. Klindt United States Magistrate Judge.
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). 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,
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; 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
Standard of Review
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.
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. 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.
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.
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.
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”).
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.Ms. Murphy also noted Plaintiff was
“often overwhelmed by the many facets of the
job.” Id. at Ex. 4 p. 3.
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; see id. at 68-70. Plaintiff
signed the memorandum on October 19, 2012 to indicate he
received a copy of it. Id.
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. 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.
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.
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
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”). Bradshaw Dep. at 57-58.
Only if it were “outside the normal realm of
accommodations” would HR contact her about it.
Id. at 57.
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. 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.
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 (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.
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). 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.
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.
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.
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.
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.
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.
meantime, Plaintiff made a request in writing, via email, to
modify his work schedule. Id. at Ex. 7 (Doc. No.
54-9); 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.
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.
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
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.
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). 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 ...