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Tucker v. Shulkin

United States District Court, E.D. Pennsylvania

September 3, 2019

KEVIN L. TUCKER, Plaintiff,


          ANITA B. BRODY, J.

         Plaintiff 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.

         I. BACKGROUND[1]

         A. Tucker's Disability Compensation from the VA

         In 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.

         After 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.

         On 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.

         On 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 disabled person.

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.

         On 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.

         On 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.

         On 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.

         B. Tucker's Employment with the VA

         As 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.

         From 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.

         Between 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.

         In late 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.

         Meanwhile, 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.

         On 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.

         On May 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. 94.

         C. Tucker's EEOC ...

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