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Keith M. Culler v. Eric K. Shinseki

December 30, 2011


The opinion of the court was delivered by: (mannion, M.J.)



By way of relevant procedural background *fn2 , the plaintiff filed the instant action, (Doc. No. 1), on February 17, 2009, which he later amended on April 5, 2009, to include claims of age discrimination and retaliation (Count I), First Amendment violations (Count II), and a hostile work environment (Count III), in relation to his employment as an orthotist*fn3 at the Wilkes-Barre, Pennsylvania, Veterans Affairs, ("VA"), Medical Center, (Doc. No. 3).

After consideration of the defendant's initial motion for judgment on the pleadings, (Doc. No. 30), and subsequent motion for summary judgment, (Doc. No. 64), the only remaining claim in this action is whether the plaintiff was discriminated against on the basis of reprisal for prior EEO activity with regard to training. More specifically, whether a March 7, 2007, decision to rescind his previously approved travel to the National Training of VA Prosthetics/Orthotists Conference from March 19-24, 2007, in San Francisco, California, was in retaliation for is EEO filings.

Proposed findings of fact and conclusions of law were filed by the defendant, (Doc. No. 70), and the plaintiff, (Doc. No. 71), on August 26, 2011, and August 28, 2011, respectively.

A non-jury trial was held on the sole remaining claim on August 29, 2011, and August 30, 2011. At the trial, the court heard the testimony of the following current and former employees at the Wilkes-Barre VA Medical Center*fn4 the plaintiff; Diane (Smith) Opiel, Chief of Staff Development; Bonnie Gurdock, Education Technician; Antoinette Germain-Tudgay, Chief of Rehab and Prosthetics; Carmen Gene Molino, Associate Medical Center Director; Donald Foote, Finance Manager; and Linda Stout, Acting Medical Director.

Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the court's findings of fact and conclusions of law follow.


The following findings of fact are based upon the stipulation of the parties, as well as the testimony and evidence which the court found credible as presented at the trial.

Among other things, the VA provides medical care through twenty-two Veterans Integrated Service Networks, which are known as VISNs. The Wilkes-Barre VA Medical Center is one of ten hospitals within VISN 4.

The plaintiff in this action is Keith Culler, who had worked as an orthotist at the Wilkes-Barre VA Medical Center from 1998 until April 1, 2007, when he went to a Baltimore, Maryland, VA facility to work as an orthotist.

Tony Germain-Tudgay is the Chief of the Rehab and Prosthetics Department at the Wilkes-Barre VA Medical Center, and has held that position for the past nine years. For the times relevant to the plaintiff's remaining claim, Ms. Germain-Tudgay was the plaintiff's direct supervisor at the Wilkes-Barre VA Medical Center.

On or about September 10, 2004, February 2, 2006, and May 10, 2007, the plaintiff filed three formal EEO complaints raising multiple claims alleging age discrimination and/or retaliation for having engaged in protected activity against the VA. The plaintiff amended the second EEO complaint on March 3, 2006, and again on March 29, 2006.

In a November 14, 2006, memorandum, William Feeley, the Deputy Under Secretary of the VA for Health and Operations observed that the American Academy of Orthotists and Prosthetists, ("AAOP"), had offered to provide registration discounts to Veterans Health Administration, ("VHA"), orthotists and prosthetists for a scientific symposium being offered in San Francisco, California, from March 20-24, 2007. The symposium would include a one-day VA program to be presented on March 20, 2007. Mr. Feeley requested "that each VISN with accredited prosthetic and orthotic laboratories support travel and registration expenses for all certified prosthetists and orthotists as practical from each VISN to attend this symposium." (Emphasis in original). The cost of the training was $485.00 for tuition, plus another $1,962.14 for travel, hotel and meals. The funding for the conference would come from the Wilkes-Barre VA Medical Center facility funds, as opposed to VISN funds.

Chris Nowak, the Network Prosthetics Chief, forwarded the November 14, 2006, memo to Ms. Germain-Tudgay on November 20, 2006. She, in turn, forwarded the memorandum to the plaintiff on or about November 20, 2006, along with a form on which the plaintiff was to indicate whether or not he was interested in attending the conference. Upon completion, he was to return it to Ms. Germain-Tudgay.

Because the plaintiff did not believe that the clinic would be properly covered if he attended the conference, he initially chose not to attend. On November 27, 2006, he returned the form to Ms. Germain-Tudgay indicating that he was not interested in attending. Upon receipt of this response, Ms. Germain-Tudgay asked Union Representative John Shalanski to attempt to convince the plaintiff to attend the conference, as she felt the plaintiff was making his decision not to attend for the incorrect reasons. Additionally, she felt it would be beneficial to both the plaintiff and the Wilkes-Barre VA Medical Center patients ...

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