United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
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.
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
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).
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 reasonable
accommodation. (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.
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).
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,
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).
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
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 telephone
operator. (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).
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).
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).
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 schedule
appointments and should have “minimal patient
interaction.” (Doc. # 28-3).
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).
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 September 18,
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).
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
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