The opinion of the court was delivered by: O'neill, J.
Plaintiff Lawrence Brunson, a former employee of the Veterans Affairs Hospital in Philadelphia, claims in this lawsuit that he suffered discrimination because of his race and disability. Defendant James B. Peake, the Secretary of the United States Department of Veterans Affairs, presently moves for summary judgment. For the reasons discussed below, I will deny defendant's motion.
In 1999, plaintiff was hired by the United States Department of Veterans Affairs as a food service worker at the VA Medical Center in Philadelphia. See Pl.'s Dep. 7:18 - 8:10 (Mar. 11, 2009) (Def.'s Ex. A). His paygrade was WG-1. Id. at 8:12-14. His duties included preparing for meals, delivering food to patients and cleaning up after meals. Id. at 8:21 - 9:9. His responsibilities required him to stand and walk for extended periods of time. Id. at 39:4-10. He also had to lift heavy objects and push food carts that were between four and five feet tall, id. at 10:8-12, and weighed between forty-five and fifty pounds when fully loaded. Id. at 10:20.
In 2004, plaintiff was promoted to the WG-2 paygrade. Id. at 40:8-10. Although his salary was increased, plaintiff's responsibilities remained the same. Id. at 41:11-19. From 2004 until plaintiff's separation from the VA in 2008 plaintiff's immediate supervisor was Barry Allen, an African American male. Id. at 54:12-21.
On August 8, 2005, plaintiff suffered a debilitating injury. Id. at 57:4-7. As he was attempting to push a loaded food cart off the elevator the elevator door struck him repeatedly in the back. Id. at 57:10-19. Although the elevator malfunction caused him immediate pain, plaintiff finished distributing meals to the patients before reporting his injury to Shari Aughtry, chief of plaintiff's department. Id. at 63:8-22. Aughtry ordered plaintiff to visit the employee clinic which was located in the building in which plaintiff was working when he was injured. Id. at 76:10-14. Clinic personnel examined plaintiff, gave him ibuprofen and suggested that he consult with his primary care physician. Id. at 77:18-78:14.
When plaintiff returned to his workspace, he informed Aughtry that he was unable to work because of his back pain. Id. at 79:20-22. Aughtry nevertheless ordered him to go back to work. Id. at 79:13-16. Plaintiff dutifully returned to the "pot room" and began scrubbing pots. Id. at 81:22-24. The process of cleaning pots required plaintiff to bend over and exert substantial downward force. Id. at 81:24-82:4. After cleaning three pots, he was in so much pain that he complained to Allen. Id. at 82:5-9. Allen told him to go to the employee conference room and sit for awhile. Id. at 82:6-9. He remained there until approximately 5:00 P.M. when he was allowed to go home. Id. at 82:11-15.
Two days after the accident, August 10, 2005, plaintiff visited his primary care physician, Laura Martin, and underwent an x-ray. Id. at 82:17-21. Martin prescribed medication to control plaintiff's pain and suggested that he consult with a pain specialist. Id. at 87:1-3. Later that week he underwent an MRI. Id. at 88:1-11. The tests revealed that he had a herniated disk in his back and had suffered a "very bad sprain." Id. at 88:13-24. After the source of plaintiff's pain had been identified, plaintiff visited a pain specialist who administered an epidural. Id. at 90:7-9. The epidural did not alleviate plaintiff's pain; he did not visit the pain specialist again. Id. at 90:18-22.
Plaintiff was unable to return to work for several months after the accident. Id. at 98:12-16. He asserts that during that time period he could neither sit nor stand for more than fifteen minutes at a time. Id. at 100:14-15. He also experienced difficulty bending over, squatting, kneeling and lifting objects heavier than one pound. Id. at 103:6-104:6. He required assistance with daily activities such as bathing, id. at 106:12-19, and he could no longer partake in activities that he enjoyed such as housework, swimming, playing basketball with his son, painting and cooking. Id. at 105:6-106:23.
On April 26, 2006, plaintiff's physician Dr. David Nicklin indicated in a "work restriction evaluation" form produced by the United States Department of Labor that plaintiff was capable of sitting for eight hours per day, walking for two hours per day and standing for two hours per day. Id. at 139:2-24, citing Def.'s Ex. E. Nicklin also indicated that plaintiff could attempt to work eight hours per day. Id. at 142:7-9. On the other hand, Nicklin indicated that Brunson could not lift, bend, squat, kneel, climb, reach above his shoulder, push or pull. Def.'s Ex. E. Plaintiff partially disagreed with Nicklin's assessment, asserting that he could neither sit nor stand for longer than ten minutes at a time and was unable to work eight hours per day. Pl.'s Dep. at 140:14-18, 141:16-17, 142:10-19 (Mar. 11, 2009) (Def.'s Ex. A).
Plaintiff returned to work on June 2, 2006. See Dept. of Vet. Affairs, Final Agency Decision (Aug. 28, 2007) (Pl.'s Ex. 7). His injury had rendered him unable to accomplish many of the tasks for which he had previously been responsible. Pl.'s Dep. at 151:3-6 (Mar. 11, 2009) (Pl.'s Ex. A). He was unable to wash dishes, id. at 152:12-16, scrub pots, id. at 152:17-19, deliver food, id. at 152:20-24, push food trucks, id. at 153:18-19, unload food trucks, id. at 153:20-23, or serve vegetables, id. at 155:1-4. Accordingly, on June 5, 2006, plaintiff visited a V.A. employee physician who recommended that plaintiff be assigned to light duty work. See Dept. of Vet. Affairs, Final Agency Decision at 2. Aughtry rejected that recommendation because, according to her, plaintiff's department did not have any light duty assignments. Id. Aughtry then placed plaintiff on leave without pay status indefinitely. Id.
On June 12, 2006, plaintiff contacted an EEO counselor. Dept. of Vet. Affairs, Notice of Acceptance of Pl.'s EEO Complaint at 1 (Nov. 13, 2006) (Pl.'s Ex. 6). He received several months of counseling. When his counseling concluded on August 31, 2006, he was entitled to file a discrimination complaint, which he did on September 6, 2006. Id. The formal discrimination complaint alleged that plaintiff had suffered discrimination on the basis of his sex, race, age and disability. Id. His complaint identified two instances of discrimination: (1) on June 5, 2006, his supervisor "refused to honor his physician's return to work with limited duty notice;" and (2) on June 5, 2006, he was informed that his department "had no light duties for him to perform and he was sent home without pay." Id.
In the meantime, on August 21, 2006, plaintiff filed a formal request for reasonable accommodations. Pl.'s Dep. at 173:12-18 (Mar. 11, 2009) (Def.'s Ex. A); Pl.'s Ex. 4 at 2. Plaintiff met with Sarita Kimble to discuss his request for a reasonable accommodations. Id. at 177:6-12. He requested that he be permitted to make sandwiches, cut pies, distribute meal tickets or answer phones. Id. at 151:1-6, 173:23-174:5. In order to complete those tasks, however, plaintiff would have needed an appropriate chair. Id. at 174:17-24. On August 23, 2006 and again on September 5, 2006, the Reasonable Accommodations Committee of the Veterans Administration requested that plaintiff provide detailed and current medical records in support of his request. See Dept. of Vet. Affairs, Final Agency Decision at 3.
On October 5, 2006, the Reasonable Accommodations Committee authorized plaintiff to return to work in a temporary light duty position. Id. On October 10, 2006, a body mechanics specialist instructed plaintiff on how to accomplish tasks such as bending and lifting without aggravating his back. Id. at 170:12-171:19. He was initially assigned the task of distributing meal tickets which required him to stand for forty-five minutes to one hour at a time. Id. at 146:8-17. Plaintiff asserts that VA officials had promised to provide him with a chair that would allow him to sit for long enough to finish the task but that he never received such a chair. Id. at 146:13-15. Instead, they provided a chair from storage that plaintiff described as "a disgusting chair that they had cleaned themselves." Id. at 164:23-1. Plaintiff was also occasionally assigned to serve vegetables and scrub pots. Id. at 149:22-150:1; 150:18-21. He asserts that his supervisors knew he was unable to accomplish this physically demanding task but asked him to do it anyway because "[t]hey were just being nasty." Id.
On October 19, 2006, plaintiff met with representatives of the Reasonable Accommodations Committee in a mediation session. See Dept. of Vet. Affairs, Final Agency Decision at 3. The Committee again requested that plaintiff provide updated medical documentation. Id. On October 30, 2006, plaintiff asked for additional time in which to provide the medical documentation necessary to support his request for reasonable accommodations. Id. at 180:5-14. The Reasonable Accommodations Committee received additional medical documentation on November 14, 2006. See Dept. of Vet. Affairs, Reasonable Accommodation Determination (Nov. 24, 2006) (Pl.'s Ex. 4). However, it labeled the additional documentation "inconclusive." Id. On November 20, 2006, the Committee received a letter from one of plaintiff's supervisors indicating that "indefinite continuation of light duty restrictions [would present] hardship to the service." Id. On November 24, 2006, plaintiff was notified that his request for reasonable accommodations had been denied. Id. at 181:9-13. The memorandum explaining the decision indicated that plaintiff's medical restrictions prevented him from "performing the assignments of tray loader, patient tray delivery, tray pick up, dish washing, pot and pan washing and general sanitation." Id. at 182:2-7. Plaintiff agreed that he was unable to perform the tasks listed in the memorandum. Id. at 182:15-17.
Plaintiff worked intermittently for the remainder of 2006 and 2007.
Pl.'s Dep.at 10:13-11:9 (Oct. 21, 2009) (Def.'s Ex. A).*fn1
On August 28, 2007, he received a partially favorable
decision on his EEO complaint. The Office of Complaint Adjudication
found that VA officials had violated the Rehabilitation Act by failing
to engage plaintiff in an appropriate interactive process regarding