Kunzler v. McDonough

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JOHN KUNZLER, Plaintiff, v. DENIS MCDONOUGH, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendants.

No. 19-CV-07181 (JS) (ARL)

United States District Court, E.D. New York

January 18, 2024

For Plaintiff: John Kunzler, pro se

For Defendant: Nathaniel Michael Putnam, Esq.

Assistant United States Attorney

MEMORANDUM & ORDER

JOANNA SEYBERT, U.S.D.J.

Pro se plaintiff, John Kunzler (“Plaintiff”) commenced this action against defendant, Denis McDonough, the Secretary of the United States Department of Veterans Affairs (the “Defendant”), asserting claims of discrimination, retaliation and hostile work environment pursuant to the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. §§ 701 et seq. Presently before the Court are the parties' cross-motions for summary judgment. (See Def. Motion, ECF No. 45; Pl. Cross-Motion, ECF No. 53.) For the reasons that follow, Defendant's Motion is GRANTED, and Plaintiff's Cross-Motion is DENIED.

BACKGROUND

I. Factual Background^[1]

A. Employment History

Plaintiff was honorably discharged from the United States Coast Guard in 2000 with a service-related disability of “permanent paralysis of [the] lower right leg, spinal stenosis, spine injury, and neuropathy and radiculopathy in the right leg.” (Pl. Aff. ¶ 2; Pl. 56.1 Response ¶ 10.) In June 2011, Plaintiff began working for the Northport Veterans Affairs Medical Center (the “VA”) as a Housekeeper in the Environmental Management Services division (“EMS”). (Def. 56.1 Stmt. ¶ 1.) In October 2012, Plaintiff was promoted to the position of Heavy Equipment Operator in the EMS's Grounds Department (“Grounds Department”). (Pl. Aff. ¶ 4.)

Gerard Foerst (“Mr. Foerst”) is the head supervisor of the Grounds Department, which consists of approximately twelve individuals, and has been Plaintiff's first-line supervisor since March 16, 2016. (Def. 56.1 Stmt. ¶¶ 2-3.) Annette Baker Cassidy (“Ms. Cassidy”) was the Assistant Chief of EMS and was Plaintiff's second-line supervisor from prior to December 2016 until she retired in late 2018 or early 2019. (Id. ¶ 4.) Uingston Markes (“Mr. Markes”) is the Chief of EMS and has been Plaintiff's third-line supervisor since prior to 2016. (Id. ¶ 5.)

On December 12, 2016, while working in the Grounds Department, Plaintiff suffered an injury to his neck and mid-back lifting a 100-pound barrel of tar onto a pallet that resulted in him being placed on “light duty” until April 2018 when he returned to “full duty” status. (Pl. 56.1 Stmt. ¶ 8; Pl. 56.1 Response ¶ 17.) Plaintiff testified his work-related injury did not “exacerbate[]” his service-related injury but that it was “all part of it.” (Pl. 56.1 Response ¶¶ 11-12.) Prior to his December 2016 work-related injury, Plaintiff was able to perform all the duties and tasks required of a Heavy Equipment Operator in the Grounds Department, including lifting and carrying heavy objects. (Def. 56.1 Stmt. ¶ 15.) Plaintiff testified that all three of his supervisors were aware of his work-related injury; however, he does not know whether any of his supervisors had any knowledge of his service-related disability. (Id. ¶ 18.) Plaintiff's three supervisors all attest that they were unaware Plaintiff had any disability. (Pl. 56.1 Response ¶ 21.)

According to Plaintiff, sometime in March 2017, and on two other occasions, Mr. Foerst questioned Plaintiff in the presence of his co-workers about his light-duty status. (Pl. 56.1 Stmt. ¶¶ 15-17; Pl. 56.1 Response ¶ 32.)

B. Plaintiff's Arrest

According to Mr. Foerst, prior to March 30, 2017, Plaintiff's supervisors perceived there to be a theft problem in the Grounds Department of the EMS. (Def. 56.1 Stmt. ¶ 34.) For example, a few months prior to March 2017, there was a missing air gun from a communal toolbox. (Id. ¶ 35.) After Mr. Foerst expressed his concern about the missing air gun to his employees, it suddenly returned to the toolbox. (Id.) Further, Mr. Foerst was concerned about theft at the VA based upon Grounds Department employees being freely authorized to go to the supplies department and request and receive any supplies needed to do their job without any formal accounting. (Id. ¶ 37.) Additionally, many of the Grounds Department employees performed side jobs outside their work for the VA that required the same equipment or supplies that were freely available to them at the VA, which is a large complex, thereby making it easy for employees to engage in theft without getting caught. (Id.) In that vein, since 2015, Plaintiff has owned his own business, AM Vets of America, LLC, through which he does side jobs, including light-construction work, and building and land maintenance, outside of his work with the VA. (Id. ¶ 38.)

On March 30, 2017, from his office window, Mr. Foerst observed Plaintiff carrying a large box of government supplies worth $134.27 outside of the building. (Id. ¶¶ 40, 43.) According to Mr. Foerst, he: (1) then went outside and observed the same box of VA supplies in the front seat of a contractor's truck; and (2) thereafter, contacted the VA police because he believed Plaintiff was trying to steal the supplies. (Id.) The VA police arrested Plaintiff, charging him with petit larceny, which charge was later dismissed. (Id. ¶ 42, 44; Pl. 56.1 Stmt. ¶ 55.) Subsequently, Plaintiff was issued a notice of proposed removal based on a charge of “conversion”. (Pl. 56.1 Stmt. ¶ 26.) Plaintiff claims he never admitted to stealing nor signed a confession. (Id. ¶ 48.) According to Plaintiff, when he was arrested, Mr. Foerst had to be restrained by a police officer from attacking him. (Id. ¶ 19.) Mr. Foerst denies this allegation. (Foerst Suppl. Aff., ECF No. 58-1, ¶ 1.)

On July 27, 2017, Plaintiff's March 31, 2017 notice of proposed removal for “conversion” was rescinded and replaced with a notice of proposed removal charging Plaintiff with “unauthorized possession.” (Def. 56.1 Stmt. ¶ 49; Def. Ex. 8.) On August 18, 2017, Plaintiff received a notice of suspension, explaining his notice of proposed removal for the March 30, 2017 incident had been reduced to a 14-day suspension. (Id. ¶ 50.) Plaintiff served his suspension from August 27, 2017 to September 9, 2017. (Id.)

C. Post-Arrest: From March 31, 2017 through September 11, 2017

Following the March 30, 2017 incident, Plaintiff was temporarily reassigned to work in the EMS office under the supervision of Ms. Cassidy until September 11, 2017. (Id. ¶¶ 51, 55.) There is a dispute whether Plaintiff requested reassignment because Mr. Foerst was “acting irrationally and Plaintiff was afraid for his safety” (Pl. 56.1 Response ¶ 51), or whether Mr. Markes reassigned Plaintiff during the ongoing investigation because he was concerned there was a risk of an altercation between Plaintiff and Mr. Foerst. (Def. 56.1 Stmt. ¶ 52.)

During his time under Ms. Cassidy's supervision, Plaintiff was “assigned a variety of menial duties, including, but not limited to, cleaning bathrooms with what was essentially a toothbrush, cleaning wheelchairs, cleaning elevators and picking up garbage on the side of the road.” (Def. 56.1 Stmt. ¶ 62.) According to Plaintiff, Mr. Foerst directed his assignments even though he worked under Ms. Cassidy's supervision. (Pl. 56.1 Response ¶ 57.) Plaintiff never complained to Ms. Cassidy or any of his other supervisors about the tasks he was assigned from March 2017 through September 2017. (Def. 56.1 Stmt. ¶ 66.)

On or about May 9, 2017, Mr. Foerst questioned Plaintiff about a missing weedwhacker that had been issued to him and had last been seen inside Plaintiff's padlocked locker. (Id. ¶¶ 5960.) During the questioning, in the presence of a co-worker, Mr. Foerst also asked Plaintiff whether Plaintiff had filed an Equal Employment Opportunity (“EEO”) case against him. (Id.; Pl. 56.1 Stmt. ¶ 50.)

D. Post-Suspension

In September 2017, after his suspension was concluded, Plaintiff returned to work in the Grounds Department under Mr. Foerst's direct supervision. (Def. 56.1 Stmt. ¶ 76.) Plaintiff claims that, at that time, Mr. Foerst required Plaintiff remove poison ivy by hand. (Pl. 56.1 Response ¶ 77.) Defendant denies this but admits Plaintiff was assigned to clear brush and weeds from the VA's water tower. (Def. 56.1 Stmt. ¶ 78.)

According to Mr. Foerst, at some point in 2017, he instituted a policy change for all Grounds Department employees, i.e., they were no longer permitted to use the VA pickup trucks unless the specific task to which they were assigned required use of such a vehicle; otherwise, employees were instructed to use golf carts to get around the VA complex. (Id. ¶ 143.) Plaintiff claims that in December 2016, Mr. Foerst required Plaintiff to use a golf cart instead of a pickup truck. (Pl. 56.1 Response ¶ 147.)

On September 13, 2017, Plaintiff was sent to the Nutrition and Food Department for an interview to determine whether he could work in the kitchen. (Pl. 56.1 Stmt. ¶¶ 70-71.) Plaintiff did not want to work in the kitchen (id. ¶ 72), and claims Mr. Foerst sent him there to do dishes. (Pl. 56.1 Response ¶ 84.)

In October 2017, Plaintiff was assigned to perform the Grounds Department's courier duties, including making deliveries and pickups between the Northport VA's main campus and its various Community Based Clinics (“CBC”). (Def. 56.1 Stmt. ¶ 85.) Plaintiff preferred the courier role to his prior duties as it kept him out of the VA office but claims he was never trained for this role. (Pl. 56.1 Response ¶¶ 88, 93.) Though the idea of instituting training for this role was discussed, there was no formal training for it at that time. (Def. 56.1 Counter-Stmt. ¶ 77; Pl. 56.1 Response ¶¶ 94-95.) On October 24 2017, Plaintiff received a notice of proposed removal for issues he was having in this new role. ...