King v. McDonough

596 F.Supp.3d 206

Stephen Corby KING, Plaintiff,

v.Denis R. MCDONOUGH, Secretary, Veterans Affairs ; Bradley Mayes, in his official and personal capacities; and Casey Kvale, in his official and personal capacities, Defendants.

CIVIL ACTION NO. 18-12037-JGD

United States District Court, D. Massachusetts.

Filed March 30, 2022

Stephen Corby King, The Woodlands, TX, Pro Se.

Eve A. Piemonte, U.S. Attorney's Office, Boston, MA, for Defendants Denis R. McDonough, Bradley Mayes, Casey Kvale.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DEIN, U.S.M.J.

I. INTRODUCTION

Plaintiff, Stephen King ("Mr. King"), was employed as a Veterans Service Representative at the United States Department of Veterans Affairs, Boston VA Regional Office (the "VA") until his employment was terminated in December 2017, approximately one year after he stopped performing any work for the VA, either remotely or in-person. The charges which led to his termination were Failure to Follow Leave-Requesting Procedures and Unauthorized Absence. Mr. King has brought this pro se action against Denis McDonough ("Secretary McDonough"), the Acting Secretary of the United States Department of Veterans Affairs; Bradley Mayes ("Director Mayes"), Director of the Boston VA Regional Office; and Casey Kvale ("Director Kvale"), Assistant Director of the Phoenix VA Regional Office (collectively the "Defendants" or the "VA"). Mr. King alleges that he is disabled and that the VA failed to provide him with reasonable accommodations in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 et seq. ("Rehabilitation Act"), that he was harassed and endured a hostile work environment after he engaged in protected activity, and that he was unlawfully terminated in violation of the Accountability and Whistleblower Protection Act of 2017 ("AWPA") because his employment was terminated while his complaint with the Office of Accountability and Whistleblower Protection ("OAWP") was pending.

This matter is presently before the court on the "Defendants’ Motion for Summary Judgment" (Docket No. 86) pursuant to which the Defendants are seeking judgment in their favor on all counts of the Plaintiff's Amended Complaint (Docket No. 32) ("Compl."). The Defendants contend, inter alia , that Mr. King has failed to establish a prima facie case of disability discrimination, and that even if he did, the undisputed facts establish that the VA did provide Mr. King with appropriate accommodations and that the VA had a legitimate, non-discriminatory reason for terminating his employment. The Defendants argue further that the record does not support a finding that Mr. King was subjected to a hostile work environment or that his termination violated the AWPA. Finally, the Defendants contend that, as a matter of law, Directors Mayes and Kvale are improperly named as defendants. After careful consideration of the record and arguments of the parties, and for the reasons detailed herein, the Defendants’ Motion for Summary Judgment is ALLOWED.

II. STATEMENT OF FACTS ¹

The court has carefully analyzed the statements of fact provided by the parties, and their responses thereto. The record is construed in the light most favorable to the nonmovant – Mr. King. See Irobe v. United States Dep't of Agriculture, 890 F.3d 371, 377 (1st Cir. 2018). While Mr. King frequently "disagrees" with the Defendants’ allegations of fact, in most cases he simply adds additional information, but does not actually dispute the veracity of the Defendants’ allegations. In response to other statements of fact he asserts that discovery is "missing," but he makes no affirmative challenge to the facts as presented, which are supported by affidavits, business records and other documentary evidence. After a detailed review, this court has concluded that no material facts are in dispute. The undisputed facts, viewed in the light most favorable to Mr. King, are as follows.

History of King's Employment with the VA

Mr. King was employed by the VA as a Veterans Service Representative ("VSR") in the Boston Regional Office until his employment was terminated on December 22, 2017. (DF ¶¶ 1, 63; Def. Ex. C at 1). His job responsibilities included assisting veterans and adjudicating matters relating to disability and death compensation, pension programs, and education and vocational rehabilitation programs available to veterans. (DF ¶¶ 6, 7; Def Ex. D at 85-91; PR ¶¶ 6-8). During his employment, Mr. King participated in the VA's telework program, pursuant to which he was allowed to work from home several days a week but had to physically be in the office one day a week. (DF ¶¶ 2-3; Def. Ex. C at 32; PR ¶¶ 2-3). In order to be rated "successful" in his VSR job duties, and to participate in the telework program, Mr. King was required to complete an average of 6.0 "outputs" per day, as set forth in national VSR performance standards. (DF ¶¶ 8; Def. Ex. B at 4, 8).

Mr. King was suspended from the telework program on April 7, 2016, because he was not meeting the minimum output requirement. (DF ¶¶ 9; Def. Ex. A at 2; Def. Ex. D at 77-78). Five days after his suspension, Mr. King requested a reasonable accommodation to continue teleworking. (DF ¶ 10; Pl. Ex. D at 2, n.2). According to Mr. King, he needed to continue working from home because his work environment was "too distracting" and noisy for his attention deficit disorder ("ADD"). (Compl. at 6 ¶ d (Count IV); Def. Ex. D at 53-54). While his reasonable accommodation request was pending review, in July or August 2016, the VA provided Mr. King with an alternative accommodation of noise-canceling headphones to minimize the noise and distractions he had identified as the workplace limitation in his request. (DF ¶ 11; Def. Ex. D at 78). Mr. King agreed to accept the headphones on the condition that his request for telework be reconsidered if the headphones did not fit his needs. (Id. ).²

On August 11, 2016, the VA conducted a performance evaluation in the critical performance-related elements of "Output" and "Quality" for all of the Veteran Service Center ("VSC") employees in the Boston office. (DF ¶ 13; Def. Ex. D at 78). The review covered all the VSC employees’ cumulative performance for the fiscal year through July 2016, i.e., from October 2015 to July 2016 ("evaluation period"). (DF ¶¶ 13, 15; Def. Ex. D at 78, 105). Based on the evaluation, Mr. King's average output was 5.63, 6.2% below the national performance standard. (DF ¶ 15; Def. Ex. A at 2; Def. Ex. D at 79). According to the VA, Mr. King's evaluation placed him among the three lowest performers within his division. (DF ¶ 15; Def. Ex. D at 78-9).

Mr. King does not challenge these calculations, but instead claims, without evidence, that three "mitigating circumstances" invalidated his performance evaluation. (Compl. at 7 ¶ 4 (Count IV); Pl. Resp. ¶¶ 13, 14). First, Mr. King contends that he was placed on a new team that required a "training period," making him ineligible for evaluation. (Id. ). He does not otherwise state when he was transferred to a new team, the duration of his alleged "training period," or the basis for his assertion that he was exempt from an evaluation. (Id. ). Second, Mr. King contends that the "central office" told him that the incorrect evaluation period was used but failed to elaborate on the correct period. (Compl. at 7 ¶ 4 (Count IV)). Again, there is no record support for this assertion. Lastly, Mr. King claims, without evidence, that the Veterans Benefit Management System has a memorandum of understanding with the American Federation of Government Employees which allegedly states that the evaluation period used was incorrectly applied to him. (Pl. Resp. ¶¶ 13, 14). The Defendants have consistently taken the position that the output requirements applied to Mr. King. (See, e.g., Def. Ex. B at 9; Def. Ex. D at 77-78). In the absence of any challenge by Mr. King to the output calculations performed in connection with the review of all VSC employees, as well as the absence of any proof that Mr. King was somehow exempt from the evaluation, the court finds that the undisputed facts establish that Mr. King failed to meet his output requirements during the evaluation period. (DF ¶ 15; Def. Ex. A at 2; Def. Ex. D at 78).

Based on the August 11, 2016 evaluation, Director Kvale recommended that Mr. King and another underperforming VSR employee be placed on Performance Improvement Plans ("PIP").³ (DF ¶ 16; Def. Ex. D at 78). Six days later, Mr. King met with his direct supervisor, James Gaddy, and was placed on a PIP that went into effect on September 6 and lasted for three months until December 7, 2016. (DF ¶¶ 19-21; Def. Ex. D at 106). According to the VA, implementation of the PIP was intended to provide assistance to Mr. King in order to improve his performance and was based solely on performance metrics. (DF ¶¶ 22-23; Def. Ex. D at 80).

Two weeks after the PIP went into effect, on September 21, 2016, the VA reinstated Mr. King's telework option because the noise-cancelling headphones did not meet his needs. (DF ¶ 25; Def. Ex. D at 81). Beginning on September 26, 2016, Mr. King was allowed to work remotely three out of four days of the week and was to work in-office one day a week. (DF ¶¶ 2, 28; Def. Ex. A at 2; Def. Ex. D at 81). On the days he was teleworking, Mr. King was required to log on to his VA laptop and access the VA systems through the VPN. (DF ¶ 3; Def. Ex. C at 32). According to Mr. King, the VA discriminated against him by keeping him on the PIP after approving this reasonable accommodation. (DF ¶ 68; Pl. Ex. A at 43). However, Mr. King does not explain how allowing him to telework as requested was inconsistent with, or in any way impaired his ability to meet his output requirements.

The record shows that Mr. King's performance decreased significantly over his three month PIP period, even though he was allowed to telework in accordance with his requested...