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Pugh v. Shulkin

United States District Court, M.D. North Carolina

April 5, 2018

PHILLIP D. PUGH, Plaintiff,
v.
DAVID J. SHULKIN, in his official capacity as Secretary, Department of Veterans Affairs, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS D. SCHROEDER, District Judge.

         Plaintiff Phillip Pugh brought this action against Defendant David J. Shulkin, M.D., Secretary of the Department of Veterans Affairs (“VA”), raising a No. of claims of employment discrimination by the Durham Veterans Administration Medical Center (the “Durham VA”). Pugh alleges discrimination based on race, age, and disability; retaliation; hostile work environment; and, he contends, a violation of the Whistle blower Protection Act, 5 U.S.C. § 2301(b), et seq. Before the court is the Secretary's motion for summary judgment as to all claims (Doc. 26) and motion to strike Pugh's jury demand as to his age discrimination claim (Doc. 51). The court heard argument on the motions on March 27, 2018. For the reasons stated below, the motion for summary judgment will be granted, and the motion to strike will be denied as moot.

         I. BACKGROUND

         The court views the facts in the light most favorable to Pugh, as the nonmoving party.

         Pugh is a blind African-American man in his sixties. (Doc. 27-2 at 10.) From 1996 to 2012, he worked at the Durham VA as the Visual Impairment Services Team (“VIST”) Coordinator. (Id. at 16.) He was permitted to work with limited supervision and reported directly to the VA Chief of Staff. (Id. at 19-20.)

         In 2009, the Durham VA realigned the VIST program under the Eye Clinic and Surgical Services program. (Id. at 19.)[2]Thereafter, Pugh was supervised by Dr. Sharon Fekrat, who was the Chief of Ophthalmology in the Eye Clinic. (Id. at 20-21.) Dr. Fekrat was only at the Durham VA part time, however, and so she relied on Kuruvilla Kurian, Ph. D., the Administrative Officer in the Eye Clinic, and LaTisha Blacknall, a Medical Support Assistant in the Eye Clinic, for assistance with VA policies and procedures. (Doc. 27 at 3.)

         Pugh claims that before and after being aligned under the Eye Care Clinic, he became subjected to a hostile work environment by Dr. Kurian and that the management at the Durham VA began a concerted effort of harassment and retaliation. He alleges that the realignment was part of the harassment, claiming that in 2008 he overheard Dr. Kurian stating that he was a “lone wolf” who was “poorly supervised” and that the VA needed to “reel his ass in.” (Doc. 27-2 at 63.)

         By all appearances, Pugh enjoyed a good relationship with the veterans that came through the clinic, and, starting in 2009, he encouraged them to write to the Secretary to request more resources for the VIST program. (Doc. 34-4 at 2; Doc. 35 at 2.) In August of 2011, Dr. Fekrat, Dr. Kurian, and another VA official met with Pugh and told him that he was too close to the veterans and should stop having them write complaints to the “Secretary, Congress, and others in the chain of command.” (Doc. 40-1 at 1.) It also appears that the Durham VA expressed satisfaction with Pugh's work through September 30, 2011. Pugh received “excellent” and “fully successful” reviews in his performance evaluations between 1999 and September 30, 2011, and he was given several cash awards for his performance over that time period. (Docs. 37-1 through 39-7.)

         In 2011, the Prosthetic Service, which serves as a purchaser of VA equipment, raised concerns about how Pugh was managing the Computer Assisted Training (“CAT”) program. (Doc. 29-1 ¶ 5.)[3] The way the system worked, Pugh would enter a consult request for CAT services in the Durham VA's computerized records, which would have to be signed off and approved by a physician who had ordering privileges. (Id. ¶ 4.) In Pugh's case, this was Dr. Fekrat, as Chief of Ophthalmology. (Id.) In early 2012, Dr. Fekrat “became concerned about seeing repeated requests for training for a small No. of veterans[, ] and she became increasingly uncomfortable about signing off on those orders without being able to be reassured that the services were clinically appropriate.” (Id. ¶ 3.) Dr. Fekrat was concerned that veterans “were being provided CAT over years without clear treatment plans or defined end points.” (Id. ¶ 4.) She shared her concerns with Sara Haigh, the Assistant Director and, at times, Acting Associate Director of the Durham VA, who contacted Cezette Leopold, the Chief of Prosthetics. (Id. ¶¶ 1, 4.) Based on her contact with Leopold, Haigh became troubled about the No. of training hours required in the CAT program, how the program assessed outcomes, its vendor relationship, and the program's overall cost. (Id. ¶ 4.)

         In response to these reports, the Prosthetics Service pulled data on the CAT program for an eighteen month period and found that “out of eighty-eight total patients, thirteen of those patients received about a hundred and eighty thousand dollars of computer training” and “the remaining seventy-five patients received about a hundred and four thousand dollars of computer training.” (Id.) Further investigation showed that some of the thirteen patients in the first group received “over two hundred hours of training over the course of three years for a grand total of three hundred thousand dollars.” (Id.) This led to “a great deal of concern about vendor payments, the process for referring these payments[, ] and whether their large No. of training hours were clinically necessary.” (Id.) It was reported to Haigh that “the training sessions were being used for more of a social gathering among a small group of veterans and was not, in fact, clinical direct training with defined goals and objectives.” (Id.) Doubts became so great that “at one point [Leopold] refused to pay invoices because she was so concerned about the CAT program.” (Id. ¶ 5.)

         In February of 2012, Pugh met with Paul Moton (the Blind Rehabilitation Outpatient Specialist (“BROS”) hired in 2009 and who also worked as part of the Eye Clinic), Dr. Kurian, Dr. Fekrat, and Blacknall about Pugh's performance. (Doc. 28-3 at 61-62.) Moton felt that he was not getting enough referrals from Pugh. The Eye Clinic team met several times to encourage increased collaboration on patient referrals and to encourage Pugh to schedule an appointment with Moton for each of his patients. (Doc. 29-1 ¶ 6.)[4] In a May 29, 2012 email to Pugh and others, Haigh directed Pugh to follow Dr. Fekrat's instructions as to several matters, including entering progress notes and treatment plans promptly, closing the encounter within twenty-four hours, following the scheduling process developed by the Eye Clinic team, and adding Dr. Fekrat as an additional signer to progress notes and consult requests. (Id.)

         Around this time, Pugh, who to this point had the authority to schedule appointments, was informed that the VA was moving toward the use of designated schedulers for patient appointments and that he would no longer be able to schedule appointments for his patients on his own. (Doc. 27-2 at 67.) Pugh viewed this change as a form of harassment, despite the fact that Moton also lost the ability to schedule appointments for his patients and that the VA was implementing this move across the country. (Id. at 68; Doc. 28-3 at 66, 76.)[5] Pugh also made several requests to have his ability to schedule appointments reinstated, all of which were denied. (Doc. 40-5 at 2-3.)

         In May of 2012, Dr. Kurian was on a confidential teleconference with VA employees responsible for categorizing employees into various governmental positions (known as “boarding”), and the topic turned to VIST Coordinators being boarded into a “Hybrid Title 38” position.[6] (Doc. 40-7 ¶¶ 10-12.) An employee boarded into a Hybrid 38 position would be eligible for a promotion if the boarding process indicated that the employee was performing above his GS level at the time of boarding. (See Doc. 40-8.) During this call, Dr. Kurian asked what would happen to a VIST Coordinator who was detailed away from his position during the boarding process. (Doc. 40-7 ¶ 12.) This caused Cheryl Hunt, who was also on the conference call and who worked on the Hybrid Title 38 conversion process, to immediately advise Pugh of the discussion out of her concern for his position. (Id. ¶ 13.)

         On May 31, 2012, Pugh was bitten by a tick and became ill. (Doc. 40-5.) As a result, on June 6, 2012, he requested a combination of authorized absence, annual leave, and comp time to be absent June 6-8, 2012. (Doc. 27 at 6-7.) His leave was initially denied on the ground he failed to give the required 30- days' advance notice for annual leave. (Id.; Doc. 30-1 ¶¶ 10- 12.)[7] Pugh then changed his request to sick leave, which was approved, and he was absent from work on approved sick leave from June 6 until October 15, 2012. (Doc. 30-1 ¶ 16.) During Pugh's absence, Dr. Kurian contacted him to inquire about the status of his leave and to inform him of the consequences of being absent without putting in the appropriate type of leave. (Id. ¶¶ 13-15.)

         Also on June 6, 2012, Moton sent an email to Dr. Kurian and Dr. Fekrat that contained allegations about Pugh of what the Durham VA's executive leadership team (Haigh, the director of the Durham VA, the chief of staff, and the nurse executive) considered to be “potential patient neglect or possibly patient abuse.” (Doc. 28-1 at 150; Doc. 29-1 ¶ 7.) Of particular concern to Haigh and other members of the Durham VA's executive leadership team was the email's statement that “veterans are afraid to speak up because they fear they will not receive their computer or other blind aids.” (Doc. 29-1 ¶ 7.) Haigh felt that this email “explicitly implied that veterans were afraid to speak up or were not receiving needed services.” (Id.)

         This email, along with previously existing concerns about the CAT program, led the Durham VA's executive leadership team to request a site visit by the Blind Rehabilitation Service of the VA Central Office to investigate possible irregularities. (Id.) Because of this request for an investigation and in accordance with the VA's policy, Pugh, although then on leave for his tick bite, was temporarily detailed to work in the Durham VA's Logistics section, where his access to computer and work files would be restricted to ensure the integrity of the records for the duration of the investigation. (Doc. 28-4 ¶ 4; Doc. 29-1 ¶¶ 8-9.) The decision to move Pugh to Logistics was made on June 8, 2011, with the assumption that he would return to work on June 11, 2011, and was an attempt to quickly find a detail for him where he could be productive, considering his blindness. (Doc. 28-4 ¶ 4.) It was the view of the Durham VA Human Resources staff that Pugh could be productive by reviewing a backlog of documents as part of his detail to Logistics. (Id.) The detail to Logistics meant that Pugh would be working in the Durham VA warehouse but did not result in any decrease in grade or pay. It also meant that for the duration of the detail, Pugh's compressed tour of duty (meaning that he worked four ten-hour days, rather than five eight-hour days) was terminated, and his access to the Surgical Service department was restricted. (Doc. 47-6.)[8]

         Though apparently contemplated in early June, the site visit from the VA Central Office occurred June 27 through 29, 2012. It was conducted by Gale Watson, National Director of Blind Rehabilitation Service, and Michael Williams. (Doc. 29-1 ¶ 11.) Both expressed concern about possible improper vendor relationships, payment patterns, and control of VA-issued equipment. (Doc. 30-11 ¶ 3.) Watson prepared a report that she sent to the Medical Center Director at the Durham VA that summarized these concerns. (Doc. 30-12.) According to the report, the investigators uncovered “significant issues” with the CAT program, documentation and treatment plans for veterans, inventory management, handling of equipment between patients, “and a significant concern for potential fraud and abuse such that they advised [the Durham VA management team] to immediately contact the Inspector General to do a criminal based investigation.” (Doc.29-1 ¶ 11; Doc. 30-12.) The recommendation for a criminal investigation related to concerns over fraud, collusion with the vendor, and the giving of a refurbished computer to a veteran even though a new one was ordered. (Doc. 29-1 ¶ 11.) In addition, the report recommended the following: (1) that the CAT program be placed under the review of Moton, rather than the VIST Coordinator (i.e., Pugh); (2) that the VA no longer use the CAT vendor, John Lee, it had been using through Pugh; (3) that the VA develop clearer standards for the CAT program; (4) that Pugh be offered counseling and support for apparent suicidal ideation; and (5) that the VA appoint “a strong VIST Chair to work with BROS during the period without a full-time VIST coordinator.” (Doc. 30-12.) This report was presented with a “strong sense of seriousness pertaining to the concerns the site visit team had.” (Doc. 29-1 ¶ 16.)

         After the site visit, the VA concluded that VIST Program Management was not meeting the requirements of the program, as seventy percent of the veterans had not received their evaluation in over three years, even though this was an annual requirement. (Id. ¶ 12.) In addition, concerns, reflected in the site visit report, that there was “a financial relationship” or “financial linkage” between Pugh and Lee led to a preliminary investigation of the CAT program by the Office of the Inspector General. (Doc. 29-1 ¶ 17; Doc. 42-1 ¶ 3.) This investigation determined that there was insufficient evidence for the case to the referred to the United States Attorney for prosecution. (Doc. 42-1 ¶ 3; Doc. 45.) The matter was eventually referred back to the Durham VA for appropriate administrative action. (Doc. 42-1 ¶ 3.)[9]

         On July 16, 2012, Pugh filed his first informal Equal Employment Opportunity (“EEO”) complaint, claiming discrimination based on race, disability, and harassment, as well as unfair personnel practices. (Doc. 35 at 7.)

         Due to his absence from work for health concerns, Pugh did not report to the warehouse for the detail to Logistics until October 15, 2012.[10] (Doc. 27 at 7.) That same day, EEO Manager Odessa Wright learned that Pugh was working in the warehouse, and she immediately went to see him. (Doc. 28-2 at 55.) Although Wright believed the room where Pugh was located was fine, she felt that the path to the room posed potential obstacles. (Id. at 19- 20.) Therefore, with Human Resources' concurrence, she immediately moved him to a conference room in her building. (Id. at 22-23.)[11] Also on that same day, the Durham VA reassigned Pugh to a detail in the Durham VA's Education section. (Doc. 27-2 at 79; Doc. 41-2.) However, Pugh either did not receive, or acknowledge receipt of, the memorandum assigning him to Education until October 24, 2012. (Doc. 41-2.)

         While the ongoing investigations of the VIST program and Pugh's management of it were underway, the Durham VA had authorized a second VIST Coordinator position and allowed immediate recruitment for it. (Doc. 28-4 ¶ 8.) The job announcement was issued on October 22, 2012. (Id.) Pugh applied for the position but was not interviewed because the Human Resources Chief, Jerry Freeman, determined that Pugh already occupied a VIST position. (Id. ¶ 10.) No. selection was made from the second VIST Coordinator announcement. (Id.) The position was later filled by Monica Grotte, a 29 year-old Caucasian candidate from the Durham VA's intern program. (Id. ¶ 11; Doc. 35 at 8.) Pugh claims, without any supporting evidence, that the “VA had a pattern of hiring young Caucasian female interns and applicants from these type of positions while pushing out the older seasoned employees.” (Doc. 58 at 8.)

         On April 15, 2013, Pugh was permanently reassigned to the position of Blind Rehabilitation Specialist in the Durham VA's Education section, with no change in grade or pay. (Doc. 27-2 at 160.)[12] The memorandum that informed Pugh of this reassignment notes that the VA Central Office report found several deficiencies that were “determined to be primarily performance related” and that “management has lost confidence in [Pugh's] ability to successfully manage the VIST program.” (Id.) While Pugh's grade, GS-12, did not change, his position was later classified as GS-11. (Doc. 28-4 ¶ 16.) Thus, Pugh is paid at the GS-12 level and still carries his service at the GS-12 level for the purposes of qualifying, and applying, for higher grade positions, despite the fact that the title he holds is a GS-11 position. (Id. ¶ 17.) Pugh claims this permanent assignment as Blind Rehabilitation Specialist in Education was a demotion.

         Pugh filed this lawsuit on August 5, 2016. (Doc. 2.) The VA moved for summary judgment on November 6, 2017. (Doc. 26.) On March 27, 2018, the court held a hearing on the motion. The motion has been fully briefed and is ready for decision. (Docs. 27, 33, 35, 42, 47.)[13]

         II. ANALYSIS

         A. ...


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