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Lewis v. Gibson

United States District Court, M.D. North Carolina

December 15, 2014

PAUL A. LEWIS, Plaintiff,
SLOAN D. GIBSON, Acting Secretary of Department of Veterans Affairs, Defendant.


JAMES A. BEATY, District Judge.

This matter is before the Court on Defendant Acting Secretary of the Department of Veterans Affairs Sloan D. Gibson's ("Defendant" Motion for Summary Judgment [Doc. #28]. Also before the Court is pro se Plaintiff Paul A. Lewis's ("Plaintiff") Motion for Summary Judgment [Doc. #33]. Plaintiff's Amended Complaint [Doc. #13] asserted that Defendant violated the Americans with Disabilities Act and the Rehabilitation Act by denying his request for reasonable accommodation and by allegedly retaliating against Plaintiff by terminating his employment based upon his filing a complaint with the Equal Employment Opportunity Commission. Defendant denied these allegations and argues that summary judgment is proper because, as a matter of law, Defendant did not discriminate or retaliate against Plaintiff on account of his disability. For the reasons discussed below, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment.


The undisputed facts are as follows, with relevant disputes of fact noted. Plaintiff asserts that he suffers from a variety of disabilities, the main ones of which are learning disabilities, dyslexia, concentration problems, attention deficit disorder ("ADD") and attention deficit hyperactivity disorder ("ADHD"). Plaintiff believes he has been afflicted with these disabilities his entire life, although he first became aware of them when he was tested in college.

Plaintiff began working for the Department of Veterans Affairs with the Durham Veterans Administration Medical Center ("Durham VAMC") in 2003 as a career intern. After approximately two years as an intern, the Durham VAMC hired Plaintiff into its Human Resources Department as a Human Resources Specialist ("HR Specialist"). Plaintiff continued working as a HR Specialist until his employment was terminated in August of 2011. Early on in his work as a HR Specialist, Plaintiff received positive performance reviews and promotions.

Odessa Wright ("Wright") served as Plaintiff's supervisor from his initial employment in 2003 until January 2010. Wright noted that while she was Plaintiff's supervisor, she sometimes would spend extra time assisting him with tasks. She also recalled Plaintiff complaining about some difficulties logging on to his computer. In 2007, Plaintiff informed Wright that he had a disability. Wright only recalls that Plaintiff "mentioned... that he had a disability, but he did not tell me the type of disability that he had nor did he provide any paperwork concerning his disability at that time." (Wright Decl. [Doc. # 29-3], at ¶ 11.) Plaintiff testified that Wright told him she did not believe that he had a disability, and that she directed him to obtain medical documentation. (Lewis Dep. [Doc. #29-2], 45:2-6.) Plaintiff apparently did not provide such documentation until 2009, when former Chief of Human Resources Management Services ("Chief of HR") Zetta M. Ferguson ("Ferguson") requested medical documentation of Plaintiff's learning disabilities. In response, Plaintiff submitted a neuropsychological evaluation from 2008 that Plaintiff obtained regarding his need for testing accommodations in order to take the LSAT and to attend law school. Despite providing the Durham VAMC with verbal information and some medical documentation of his learning disabilities during the period of 2007 through 2009, Plaintiff continued to perform well at work and did not request reasonable accommodations at this time. When Ferguson left the Durham VAMC in 2010, Willette Yarborough ("Yarborough") replaced her as the Interim Chief of HR. In papers left by Ferguson, Yarborough discovered the medical records Plaintiff had provided Ferguson regarding his disabilities. Yarborough returned the documents to Plaintiff, who still at that time had not made any request for reasonable accommodation at this time.

The year 2010 was a pivotal year for Plaintiff and his experiences at the Durham VAMC. In addition to Yarborough taking on the role of Chief of HR in 2010, Christina Leach ("Leach") replaced Wright as Plaintiff's direct supervisor around April of 2010. In May 2010, Leach met with Plaintiff to review the performance standards applicable to his position as part of his mid-year review. The work performance of Durham VAMC employees is evaluated according to particular "elements" and corresponding "performance standards." The Department of Veterans Affairs defines a performance element "as a component of a position that is sufficiently important to warrant written appraisal." (Ex. E1A to Leach Decl. [Doc. #30-2], at 1.) A position typically has four or five such elements, some of which may be designated "critical." In turn, written performance standards accompany each element. The performance standards define "the fully successful level of achievement" for the corresponding performance element. (Id.) As it relates to Plaintiff's position, the performance elements for the HR Specialist position are Customer Service, Recruitment, Technical Advice and Assistance, HR Specialist Functions, and HR Administration. The first three, that being Customer Service, Recruitment, and Technical Advice and Assistance, are considered "critical elements." During the May 2010 meeting with Leach, Plaintiff did not communicate any concerns or confusion about these elements and performance standards. He informed Leach that he had some learning disabilities, but he did not make any requests for reasonable accommodations at this time. However, Plaintiff highlights that his former assistant, Ava Tinch ("Tinch") was out of the office on various forms of leave for most of the year in 2010. Plaintiff asserts that Tinch's absence placed more work pressure on him and that when Tinch ultimately left the Durham VAMC, she left behind a backlog of work.

Between Plaintiff's May 2010, mid-year progress review and August 2010, Plaintiff's performance slipped. Leach observed that Plaintiff's performance fell below the applicable performance standards for his position. On August 9, 2010, Leach notified Plaintiff of his unsatisfactory performance regarding the critical elements of Customer Service, Recruitment, and Technical Advice and Assistance and placed him on a Performance Improvement Plan ("PIP") to address these shortcomings. Leach provided Plaintiff with a memorandum articulating the specific areas in which his performance was unsatisfactory with particular examples of why his performance was deemed unacceptable. The memorandum also explained that Leach would work with Plaintiff for the next 90 days to improve his performance. Plaintiff was given until November 6, 2010, to attain acceptable performance levels.

In this August 9, 2010, memorandum, Leach specifically invited Plaintiff to share with her any personal or medical issues that were affecting his work performance. Specifically, she stated that "[i]f you have any problems of a personal or medical nature which you believe are impinging on your ability to perform successfully, I urge you to bring this information to my attention, as well, so that appropriate assistance may be considered." (Ex. E3 to Leach Decl. [Doc. #30-5], at 4.) The memorandum also cautioned that "in the event you do not demonstrate acceptable performance during this opportunity period or, upon attaining acceptable performance, fail to sustain successful performance for a one-year period, action to demote or separate you may result without benefit of additional opportunity to improve." (Id.) In an August, 2010, meeting Plaintiff "mentioned to [Leach] and Willette Yarborough that he had a disability, " but Plaintiff "did not request a reasonable accommodation in August 2010." (Leach Decl. [Doc. #30-1], at ¶ 6.) Plaintiff received a letter from Acting Chief of HR Yarborough on August 19, 2010, informing him that his within-grade salary increase was being withheld due to his unsatisfactory performance.

During the time period of Plaintiff's PIP, Leach met with Plaintiff weekly to "discuss his completed work, work in progress, and to prioritize assignments that he had." (Id. at ¶ 5.) On December 3, 2010, Leach informed Plaintiff in a memorandum that he successfully completed the PIP, and he received a "Fully Successful" rating for the three critical elements that were the subject of the PIP. Plaintiff also received his within-grade salary increase. This December 3, 2010, memorandum nevertheless again warned Plaintiff that if, "upon attaining acceptable performance, [you] fail to sustain successful performance for a one-year period, action to demote or separate you may result without benefit of additional opportunity to improve." (Ex. E5 to Leach Dec. [Doc. #30-7].)

Hilda Cobb ("Cobb"), one of Plaintiff's HR Specialist coworkers, left the Durham VAMC in January 2011, and Plaintiff was assigned a portion of her workload. The record indicates that to some degree, all HR Specialists were taking on additional work during this time due to fewer Human Resources Assistants, budget difficulties, and greater automation in certain aspects of the HR Specialist position. Also in January of 2011, Jerry Freeman ("Freeman") became Chief of HR. Freeman reported that "[f]rom January - April 2011, I was receiving complaints from Service Chiefs and Assistant Chiefs related to the service being provided by [Plaintiff]." (Freeman Decl. [Doc. #29-17], at ¶ 13.) Leach likewise observed an influx of a variety of complaints regarding Plaintiff's performance during this time period, noting that the "number of complaints concerning Mr. Lewis' performance exceeded the total number received for all of the HR Staffing Specialists combined." (Leach Decl. [Doc. #30-1], at ¶ 10.)

On April 1, 2011, the Durham VAMC switched to a new automated recruitment system for its recruitment needs. The new system, USA Staffing, was intended to streamline the recruitment processes. Human Resources staff was trained on the new program, but the Durham VAMC experienced difficulties in transitioning to this new program. Plaintiff struggled with implementation of USA Staffing more so than other employees, and as a result, other Durham VAMC employees posted job announcements for Plaintiff on the new system. Freeman also assigned another employee to "sit with [Plaintiff] for an afternoon in mid-April to walk him through an announcement process." (Freeman Decl. [Doc. #29-17], at ¶ 13.) Defendant asserts that both Leach and Freeman met with Plaintiff between January and May 2011, alerted him to the complaints being filed regarding his service, and discussed Plaintiff's performance standards with him. Leach stated she "would work with him on prioritizing assignments, assisted him in locating reference materials so that he could provide accurate Human Resources advice and information to customers, and I often sat with him when he needed additional assistance." (Leach Decl. [Doc. #30-1], at ¶ 10.) In contrast, Plaintiff stated that he received no oral or written warnings during this time.

On May 24, 2011, Plaintiff for the first time filed a formal request for reasonable accommodation. In his request, Plaintiff stated that he had struggled in his position since October 2003, that he had been "hospitalize[d] twice due to the stress of the position, " that he had seen multiple doctors, and that he was "expected to perform the duties of three employees, " meaning his own job, his former assistant Tinch's responsibilities, and part of Cobb's work. (Ex. D6 to Freeman Decl. [Doc. 29-24], at 1.) Plaintiff stated he was applying for accommodations due to the stress associated with his job. He further stated that the stress prevented him from being able to perform at the levels expected of him. Plaintiff's request for accommodation stated that he had "been screamed, cursed at, and made to feel stupid because I was unable to comprehend at the same level as everyone else." (Id.) Plaintiff made three generic accommodation requests: (1) "Change Performance Standards, " (2) "Modify Workload, " and (3) "Assistant." (Id. at 2.) Plaintiff simply listed these broad requests and did not provide any additional details or further specify the meaning of his requests. He listed "Medical Disability" as his reason for the request. (Id.) Again, this was done without providing very much detail about his "medical disability."

Plaintiff, however, did submit his 2008 medical records regarding testing and education with his request for reasonable accommodation. Odessa Wright, Plaintiff's former supervisor, was the Equal Employment Opportunity Manager at the Durham VAMC in 2011. After reviewing Plaintiff's request, Wright informed Plaintiff that he needed to obtain more medical documentation.[1] "The medical documentation [provided with the Reasonable Accommodation Request] did not provide... the information... needed to know what accommodation would be necessary in the workplace." (Freeman Decl. [Doc. #29-17], at ¶ 10.) Wright also discussed potential alternative accommodations in the event his requested accommodations were not feasible. Specifically, she discussed with him a possible reassignment to a different area, moving to a different location, or changing to a position with a lower salary grade. Plaintiff, however, was not interested in any of the suggested accommodations. Instead, Plaintiff expressed interest in a Chaplain position or Patient Advocate position, but no such openings existed at the Durham VAMC during this time period. On August 5, 2011, Freeman denied Plaintiff's own accommodation request "because the accommodation would require removal of an essential function of the job, the medical documentation that Mr. Lewis provided was not adequate, the accommodation would require lowering of a performance or production standard and the accommodation would cause an undue hardship." (Id. at ¶ 18; Ex. D26 to Freeman Decl. [Doc. #29-44], at 1.)

Meanwhile, less than two weeks after filing his Request for Reasonable Accommodation, Plaintiff contacted the Office for Resolution Management for Equal Employment Opportunity ("EEO") counseling and lodged an informal complaint. Plaintiff remained in contact with Jennifer Magee ("Magee"), the EEO counselor assigned to his case, and at some point in late June 2011, Magee notified the Durham VAMC[2] of Plaintiff's informal complaint.[3] Next, on June 24, 2011, Plaintiff received a Notice of Proposed Removal from Freeman, listing 10 different "Charges" detailing how Plaintiff failed to adequately perform regarding his position's critical elements of Customer Service, Recruitment, and Technical Advice and Assistant. (Ex. D7 to Freeman Decl. [Doc. #29-25].) Each separate charge was supported by between 1 and 13 "specifications, " documenting particular incidents when Plaintiff did not meet relevant performance standards for the critical elements of Customer Service, Recruitment, and Technical Advice and Assistance. (Id.) The specifications indicated, among other concerns, Plaintiff's failure to timely respond to e-mails and failure to complete time-sensitive tasks promptly. Documentation of these incidents, in the form of e-mails and Reports of Contact, accompanied the letter. Most of the documented instances happened during the period of March through May of 2011. Although the Proposed Removal letter invited Plaintiff to respond within 14 business days, Plaintiff initially elected not to do so. Plaintiff, however, did later supply some evidence of his experiencing computer difficulties during July 2011, including an inability to access certain archived e-mails and troubles logging on to his computer.

On August 3, 2011, Plaintiff was notified by letter from Ralph T. Gigliotti, Director of the Durham VAMC ("Gigliotti"), that a decision was made to remove Plaintiff from his position effective August 12, 2011. The letter listed the 10 Charges from the Proposed Removal letter as reasons supporting the decision to remove Plaintiff. The removal letter also noted that Plaintiff "did not provide an oral or written response" to the earlier proposal of removal as was suggested. (Ex. D22 to Freeman Decl. [Doc. #29-40], at 1.) Subsequent to Gigliotti's letter, Plaintiff submitted a letter to Gigliotti and requested to meet with him about the removal decision. This meeting between Plaintiff and Gigliotti took place on August 25, 2011. On August 29, 2011, Gigliotti sent Plaintiff a letter upholding the initial removal decision. In the letter, Gigliotti also acknowledged that he had reviewed "additional information [Plaintiff] provided with reference to the Proposed Removal dated June 24, 2011 and the Removal Decision dated August 3, 2011." (Ex. D25 to Freeman Decl. [Doc. #29-43].)[4]

Plaintiff thereafter filed a formal Equal Employment Opportunity Commission ("EEOC") complaint with the Merit Systems Protection Board ("MSPB") on September 12, 2011, asserting his claims of disability discrimination. On March 31, 2012, the MSPB affirmed the Durham VAMC's removal action against Plaintiff.[5] On June 20, 2012, Plaintiff appealed the MSPB decision to the EEOC Office of Federal Operations. The Office of Federal Operations affirmed the MSPB's decision on October 4, 2012. Plaintiff then commenced the present action by filing his Complaint on November 5, 2012 [Doc. #2], and his Amended Complaint on July 26, 2013 [Doc. #13], asserting claims of disability discrimination based on violations of the Americans with Disabilities Act[6] ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C.§ 701 et seq.


Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate the presence of a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1349, 89 L.Ed.2d 538 (1986).

When making a summary judgment determination, the court must view the evidence and all justifiable inferences from the evidence in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913. However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court may not make credibility determinations, and "must disregard all evidence ...

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