United States District Court, E.D. Pennsylvania
KEVIN L. TUCKER, Plaintiff,
DAVID SHULKIN, SECRETARY OFF D DEPT. OF VETERANS AFFAIRS, Defendant.
B. BRODY, J.
Kevin L. Tucker brings suit against Defendant David Shulkin,
Secretary of the Department of Veteran Affairs, alleging
discrimination and retaliation in violation of the
Rehabilitation Act (“RA”), 29 U.S.C. § 794
et seq. I exercise federal question jurisdiction
over Tucker's claims pursuant to 28 U.S.C. § 1331.
Shulkin moves for summary judgment. For the reasons stated
below, I will grant in part and deny in part Shulkin's
motion for summary judgment.
Tucker's Disability Compensation from the VA
1996, Plaintiff Kevin L. Tucker was discharged from the Army.
Def.'s Statement of Facts Ex. 1 [hereinafter Ex.]. After
discharge, Tucker immediately applied to the Department of
Veteran Affairs (“VA”) for disability
compensation, claiming herniated cervical (neck) disc, back
and neck spasms, temporary blindness, severe headaches,
“compacted teeth, ” upper respiratory infection,
acne, shaving bumps, and athlete's feet. Ex. 1 The VA
granted Tucker compensation for his herniated cervical disc
claim only, rated 20% disabling. Ex. 2.
the decision from the VA, Tucker engaged in protracted
appeals to win additional disability compensation from the
VA. Ex. 3. In 2010, Tucker won an appeal and the VA increased
his disability rating to 60%. Ex. 3.
August 18, 2010, Tucker filed a claim for increased
disability payments, claiming sleep disorder/insomnia, low
back pain, left leg and bilateral arm and hand nerve damage,
headache, depression/anxiety with suicidal thoughts from
headache, and vertigo/dizziness secondary to his headaches.
Ex. 5. On September 12, 2011, the VA granted Tucker's
claims for additional disability compensation for obstructive
sleep apnea, major depressive disorder, Type II diabetes, and
headaches. Ex. 8.
January 27, 2012, Tucker contacted the VA to file a claim for
permanent and total disability. Ex. 9. On February 8, 2012,
the VA sent a letter to Tucker that it was evaluating his
claim and needed additional information. Ex. 10. In the
letter, The VA explained:
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. . . . Permanence of total
disability will be taken to exist when such impairment is
reasonably certain to continue throughout the life of the
Ex. 10. On February 17, 2012, Tucker's doctor examined
him and completed a detailed disability benefits
questionnaire for his cervical spine (neck) condition, which
contained significant information about Tucker's medical
condition. Ex. 11. The doctor concluded that Tucker's
cervical spine (neck) condition impacted Tucker's ability
to work such that Tucker “was forced to retire in
August, 2011 due to chronic neck pain, inability to turn the
neck, and chronic anger and depression secondary to neck
pain.” Ex. 11. On August 13, 2012, the VA informed
Tucker that it was continuing to work on his claim for
permanent and total disability. Ex. 12.
November 19, 2012, while Tucker's claim for total and
permanent disability was pending, Tucker began working for
the VA as a Veterans Service Representative
(“VSR”) trainee at the VA Regional Office
Veterans Service Center in Philadelphia. Ex. 13. On December
14, 2012, less than a month after Tucker began working for
the VA, the VA notified Tucker that his claim for
“individual unemployability, ” also known as
permanent and total disability, had been granted and that he
was entitled to “special monthly compensation effective
August 18, 2010 because you are housebound.” Ex. 15.
After Tucker's claim had been granted, he continued
working for the VA.
December 5, 2013, while Tucker was still working for the VA,
the VA sent Tucker an Employment Questionnaire that asked him
whether he was employed by the VA, others, or self-employed
at any time during the past twelve months. Ex. 18. The
questionnaire informed Tucker: “You are receiving
compensation at the 100 percent rate based on being unable to
secure or follow a substantially gainful occupation as a
result of your service-connected disabilities.” Ex. 18.
The questionnaire also advised Tucker: “You must
complete the required items fully and accurately and return
the form to the VA office . . . within 60 days. If you do not
return the form within 60 days, your benefits may be
reduced.” Ex. 18. Upon penalty of fine or imprisonment,
the questionnaire required disclosure of any employment
during the prior twelve months or a certification of
unemployment stating, “I believe that my
service-connected disability(ies) has not improved and
continues to prevent me from securing or following gainful
employment.” Ex. 18. Tucker did not return the
Employment Questionnaire within sixty days. Ex. 19.
October 30, 2014, the VA proposed to cut off Tucker's
individual unemployability benefits because he had not
returned a completed Employment Questionnaire to the VA. Ex.
19. On October 31, 2014, the VA removed Tucker from his
position as a VSR due to “failure to follow
instructions and absent without leave (AWOL).” Ex. 22.
On January 15, 2015, Tucker finally submitted the Employment
Questionnaire to the VA, certifying that he had not been
employed for the prior twelve months and that he was still
unable to work due to his service-connected disabilities. Ex.
24. On April 10, 2015, in light of its receipt of
Tucker's Employment Questionnaire, the VA issued a
decision withdrawing its proposal to discontinue Tucker's
individual unemployability because “the evidence of
record shows you are not working and remain unable to secure
or follow a substantially gainful occupation as a result of
service-connected disabilities.” Ex. 25. Tucker
continued to receive total and permanent disability. Again,
on March 30, 2018, he certified in a new Employment
Questionnaire, “I believe that my service-connected
disability(ies) has not improved and continues to prevent me
from securing or following gainful employment.” Ex. 27.
Tucker's Employment with the VA
previously mentioned, on November 19, 2012, less than a month
before Tucker began receiving disability compensation for his
permanent and total disability, Tucker began working for the
VA as a VSR trainee. Exs. 13, 15. As a VSR trainee,
Tucker's job was to process veterans' claims for
disability compensation, which included sending letters to
veterans informing them of the status of their claims,
sending claims files to rating officials to determine
percentages of disability, generating awards, and sending
letters to veterans informing them of the decision and award
on their claims. Ex. 30 at 122:11-124:16.
the beginning of his employment, Tucker experienced
difficulty with the job. Tucker complained that other
trainees were mistreating him. Ex. 30 at 72:5-83:19. In
addition, he complained that he was not being properly
accommodated for certain of his disabilities. Ex. 30 at
72:5-80:13. For instance, Tucker complained on multiple
occasions that smells in the workplace were aggravating his
service-connected disabilities and leading him to seek
medical attention. Ex. 65. On April 5, 2013, Tucker met with
the Reasonable Accommodations Coordinator. As a result, the
VA provided several accommodations to Tucker, including an
ergonomic chair, a support pillow, and a non-glare computer
screen. Exs. 43, 44. In response to Tucker's complaint
about smells in the workplace, the VA: (1) moved the printer
and refrigerator away from Tucker's work area; (2) moved
a female employee who wore strong perfume to a different
printer so she would not walk by Tucker's work area; (3)
instructed an employee to not wear excessive perfume; (4)
purchased an air purifier for Tucker's work area; (5)
posted signs in the work area to alert employees to refrain
from using heavy perfumes/sprays; and (6) instructed
employees to refrain from using aerosol cleaning sprays and
provided them with unscented cleaning wipes. Ex. 47. In
addition, the VA also approved Tucker's request to move
to a new location. Ex. 48.
November 1, 2013 and February 12, 2014, Tucker was absent
from the workplace for forty-one days. Ex. 63. Tucker
explained that his absences were due to his disabilities. Ex.
65. On February 12, 2014, Tucker returned to work and was
handed a letter that informed him that his duty station was
temporarily changed to his home address in Washington, D.C.
Exs. 30 at 119:4-22, 70. The letter stated that the VA had
“determined that this temporary change in your duty
assignment is necessary, until an appropriate Reasonable
Accommodation can be found. Importantly, this is not a
disciplinary or adverse action. You will receive full pay and
benefits during this period.” Ex. 70. Although Tucker
was temporarily assigned to work from home, he was not given
the equipment to enable him to perform his VSR duties at
home. Ex. 30 at 119:4-22; Ex. 82 at 72:15-74:14.
February 2014, the VA began exploring whether it could allow
Tucker to permanently telework as a reasonable accommodation
for his disabilities. Ex. 72 at 52:1-54:17. The VA determined
that telework was not an option for Tucker. Ex. 72 at
52:1-54:17; Ex. 81. On May 25, 2014, the VA denied
Tucker's accommodation request to telework. Ex. 86. In
its denial, the VA stated: “ We considered working from
home as an accommodation, however we are unable to approve
this as an effective accommodation.” Ex. 86.
on March 17, 2014, the VA sent Tucker a letter, informing him
that he had to submit medical documentation of his medical
condition to support his temporary accommodation of work from
home no later than March 28, 2014. Ex. 73. The letter also
warned Tucker: “If you fail to provide the medical
documentation necessary for further consideration of your
temporary accommodation, you are expected to return to duty
on Friday, March 28, 2014 . . . . Failure to comply . . . can
lead to adverse action up to and including removal from
Federal service.” Ex. 73. On March 18, 2014, the VA
emailed Tucker, requiring Tucker to provide the VA with
proper leave requests and medical documentation by March 21,
2014 for Tucker's absences from mid-October 2013 through
February 11, 2014. Ex. 74. On March 25, 2014, the VA sent a
follow-up email to Tucker, advising him that his absences
would now be listed as absent without leave
(“AWOL”) because Tucker had not submitted the
required paperwork. Ex. 74. Tucker received his last paycheck
as a VSR at the end of March 2014. Ex. 20 at 209:9-211:11. He
received no further pay for his employment with the VA. Ex.
20 at 209:9-211:11.
April 14, 2014, the VA sent Tucker a Proposed Suspension
Notice. Ex. 75. On April 25, 2014, Tucker informed the VA
that he planned to return to work on Monday May 5, 2014. Ex.
78. In an April 30, 2014 letter, the VA informed Tucker that
he was in AWOL status and he had a “final opportunity
to immediately provide medical documentation . . . or report
for duty.” Ex. 79. Tucker did not return to work on May
5, 2014. Ex. 80. In fact, Tucker never returned to work at
the VA after he was temporarily assigned to work from home on
February 12, 2014. Ex. 30 at 158:22-25.
29, 2014, the VA proposed to terminate Tucker's
employment for “Failure to Follow Instructions and
AWOL.” Ex. 92. On October 24, 2014, the VA notified
Tucker that he was terminated effective October 31, 2014 for
“Failure to Follow Instructions and AWOL.” Ex.
Tucker's EEOC ...