Larnard v. McDonough

578 F.Supp.3d 371

Theodore LARNARD, Plaintiff,

v.Secretary Denis R. MCDONOUGH, Department of Veterans Affairs,¹ Defendant.

6:17-CV-06257 EAW

United States District Court, W.D. New York.

Signed January 4, 2022

Karen Sanders, Tully Rinckey PLLC, Rochester, NY, for Plaintiff.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant Hon. Robert L. Wilkie.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant Secretary Denis Richard McDonough.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Plaintiff Theodore Larnard ("Plaintiff") filed this action on April 25, 2017, against the Secretary of the Department of Veterans Affairs ("Defendant") alleging that management at the Canandaigua Veterans Affairs Medical Center ("CVAMC") discriminated against him on the basis of disability and retaliated against him in violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq. (Dkt. 3). Pending before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.² (Dkt. 53). For the reasons set forth below, the Court grants Defendant's motion.

FACTUAL BACKGROUND

The following facts are taken from Defendant's Statement of Undisputed Material Facts (Dkt. 53-1), Plaintiff's Amended Response to Defendant's Statement of Undisputed Material Facts (Dkt. 59), and the exhibits submitted by the parties. Unless otherwise noted, the facts set forth below are undisputed.

Plaintiff is a veteran of the United States Army who served in Iraq. (Dkt. 53-1 at ¶¶ 2, 4; Dkt 59 at ¶¶ 2, 4). In the course of his service, Plaintiff sustained skull fractures and injuries to his back resulting in ongoing symptoms including migraines, hearing loss, and memory issues. (Dkt 53-1 at ¶ 4; Dkt. 59 at ¶ 4). Plaintiff has been diagnosed with Post-Traumatic Stress Disorder ("PTSD") and a traumatic brain injury (a "TBI"). (Dkt. 53-1 at ¶ 5; Dkt. 59 at ¶ 5). During his service in the United States Army, Plaintiff attended military police training school. (Dkt. 53-1 at ¶ 3; Dkt. 59 at ¶ 3). He was honorably discharged on July 29, 2006, and joined the United States Department of Veterans Affairs as a police officer on October 15, 2006. (Dkt. 53-1 at ¶¶ 4, 6; Dkt. 59 at ¶¶ 4, 6). He was initially assigned to the Veterans Affairs (the "VA") facility in Syracuse, New York. (Dkt. 53-1 at ¶ 6; Dkt. 59 at ¶ 6).

On or about July 22, 2007, Plaintiff began working at CVAMC in Canandaigua, New York.³ During the period that Plaintiff was a police officer at CVAMC, Craig Howard ("Howard") served as the CVAMC director and Margaret "Peg" Owens ("Owens") served as the associate director. (Dkt. 53-1 at ¶¶ 13, 14; Dkt. 59 at ¶¶ 13, 14). Plaintiff's first cousin, Joseph Day ("Day"), had been a police officer at CVAMC since 2000 and became a training officer in 2004. (Dkt. 53-1 at ¶¶ 16, 19; Dkt. 59 at ¶¶ 16, 19). At that time, Lawrence Scheuermann ("Scheuermann") was the Chief of the CVAMC Police Department. (Dkt. 53-1 at ¶ 25; Dkt. 59 at ¶ 25). Day played no role in hiring Plaintiff. (Dkt. 53-1 at ¶ 28; Dkt. 59 at ¶ 28). In the course of Plaintiff's application, he disclosed that Day is his first cousin. (Dkt. 53-1 at ¶ 32; Dkt. 59 at ¶ 32).

In 2010, Plaintiff briefly served as a police officer at the VA Western New York Healthcare Facility in Batavia, New York. (Dkt. 53-1 at ¶ 30; Dkt. 53-6 at 30; Dkt. 59 at ¶ 30). However, Plaintiff returned to CVAMC later that year, having tired of the commute from his home in Farmington, New York to Batavia. (Dkt. 53-1 at ¶ 31; Dkt. 53-6 at 30-32; Dkt. 59 at ¶ 31).

In 2011 or 2012, Scheuermann retired, and Day was selected as the acting police chief roughly contemporaneously. (Dkt. 53-1 at ¶ 37; Dkt. 59 at ¶ 37). In 2013, Howard approved Day as the permanent CVAMC police chief after a search for Scheuermann's replacement was completed. (Dkt. 53-1 at ¶ 38; Dkt. 59 at ¶ 38). In June 2012, a member of the CVAMC police department expressed concern to Owens that Day supervised a relative. (Dkt. 53-1 at ¶ 41; Dkt. 59 at ¶ 41). As a result of this complaint, Owens and CVAMC Human Resources Manager Donna Crouse ("Crouse") sought an arrangement in which Day would not directly supervise Plaintiff. (Dkt. 53-1 at ¶ 45; but see Dkt. 59 at ¶ 45).⁴

In August 2012, CVAMC Fire Chief Daniel Speers ("Speers") was assigned as first-level supervisor to Plaintiff and Chief Engineer Christopher Hall ("Hall") was assigned as second-level supervisor. (Dkt. 53-1 at ¶ 46; Dkt 59 at ¶ 46). Speers and Hall told Crouse that they were uncomfortable supervising Plaintiff because they were not police officers. (Dkt. 53-1 at ¶ 48; Dkt. 59 at ¶ 48).

In April 2013, Veterans Integrated Service Network ("VISN") Police Chief John McDonnell directed an investigation of the CVAMC Police Department due in part to an alleged physical altercation between Plaintiff and Service Employees International Union ("SEIU") Local 200 Chapter Chair Donald Woodworth ("Woodworth") with whom Plaintiff had ongoing interpersonal difficulties. (Dkt. 53-1 at ¶¶ 51, 77, 136, 137; Dkt. 59 at ¶¶ 51, 77, 136, 137). As a result of this investigation, Bath VA Medical Center Police Chief Earl Burkhardt ("Burkhardt") was assigned to conduct the investigation. (Dkt. 53-1 at ¶ 51; Dkt. 59 at ¶ 51). Burkhardt concluded that Plaintiff's position—subordinate to Speers—constituted a "serious violation of VA Handbook [Directive] 0730[,]" which requires that police officers be supervised by other police officers. (Dkt. 53-1 at ¶¶ 52, 53; Dkt. 59 at ¶¶ 52, 53). Burkhardt also raised concerns of favoritism between Day and Plaintiff. (Dkt. 53-1 at ¶ 55; Dkt. 59 at ¶ 55).

Following the altercation, Day handed a written counseling memorandum to Plaintiff that was written by Owens or Day. (Dkt. 53-1 at ¶ 56; Dkt. 59 at ¶ 56). Howard testified that after the investigation, it became apparent that Crouse's efforts to manage the familial relationship between Day and Plaintiff were "decent work," but the arrangement "was not working out[,] and ... something must be done." (Id. at ¶ 58; Dkt. 53-6 at 81; Dkt. 59 at ¶ 58). At the close of the investigation, Kent Strege ("Strege") was promoted to deputy police chief. (Dkt. 53-1 at ¶ 40; Dkt. 59 at ¶ 40). CVAMC Officials believed that having Strege as direct supervisor to Plaintiff would alleviate the nepotic supervision issue. (Dkt. 53-1 at ¶ 60; see Dkt. 53-6 at 96; Dkt. 59 at ¶ 60).

On or about October 29, 2013, the United States Office of the Special Counsel ("OSC") received a complaint raising concerns of nepotism related to Day's direct supervision of Plaintiff. (Dkt. 53-1 at ¶¶ 62, 63; Dkt. 59 at ¶¶ 62, 63). Thereafter, OSC investigated whether the supervisory relationship between Plaintiff and Day conflicted with VA regulations or federal law. (See Dkt. 53-1 at ¶¶ 64-78; Dkt. 59 at ¶¶ 64-78). OSC produced a report of investigation (the "ROI"), which concluded that Day's supervisory relationship to Plaintiff potentially violated 5 U.S.C. § 2302(b)(7), which VA management officials understood to limit VA and federal employees from supervising family members. (Dkt. 53-1 at ¶¶ 65; Dkt. 59 at ¶¶ 65).⁵ The report detailed instances in which Plaintiff received performance awards with recommendations for such awards coming from Day and instances suggesting Day effectively supervised Plaintiff. (Dkt. 53-1 at ¶¶ 68-69, 71; Dkt. 59 at ¶¶ 68-69, 71). The ROI determined that despite the attempts to insulate Plaintiff from Day's supervision, concerns of nepotism persisted. (See Dkt. 53-1 at ¶¶ 78-79; Dkt. 53-5 at 58-59; Dkt. 59 at ¶¶ 78-79).

During the investigation, Owens asked an OSC investigator why Strege's position as an intermediate supervisor between Day and Plaintiff did not sufficiently allay nepotism concerns. (Dkt. 53-6 at 125). The investigator informed her that the familial relationship was still in the chain of command from Day to Plaintiff. (See Dkt. 53-1 at ¶ 78; Dkt. 53-6 at 125; Dkt. 59 at ¶ 78). On November 12, 2014, Plaintiff was informed that Owens would become his supervisor until notified otherwise. (Dkt. 53-5 at 70). Howard believed that the OSC investigation required that Plaintiff not be supervised by Day, and VA Directive 0730 required that Plaintiff be supervised by another police officer. (Dkt. 53-1 at ¶¶ 52-54; Dkt. 59 at ¶¶ 52-54). As such, Crouse and Owens explored alternative reporting structures including reassigning both Plaintiff and Day. (Dkt. 53-1 at ¶ 88; Dkt. 59 at ¶ 88).

One such option involved creating a criminal investigator position—a VISN-wide position, which would not report to Day. (Dkt. 53-1 at ¶¶ 95-96; Dkt. 59 at ¶¶ 95-96). However, OSC expressed concern that the criminal investigator position would involve a promotion from GS-6 to GS-7. (Dkt. 53-1 at ¶ 97; Dkt. 53-6 at 99-100; Dkt. 59 at ¶ 97). Ultimately, the criminal investigator position was not filled. (Dkt. 53-1 at ¶ 98; Dkt. 59 at ¶ 98).

On April 8, 2015, Crouse and Owens informed Plaintiff that he could not continue to work as a police officer at CVAMC with Day as the CVAMC Chief of Police. (Dkt. 53-1 at ¶ 101; Dkt. 59 at ¶ 101). Instead, Crouse and Owens proposed an expected opening with the Bath VA Medical Center Police Department, which would have increased Plaintiff's commute, or a Social Services Associate ("SSA") position within CVAMC at the same GS-6 grade. (Dkt. 59 at ¶¶ 103, 111-12; Dkt. 59 at ¶¶ 103, 111-12).⁶ Plaintiff declined both positions, and Plaintiff was reassigned to the SSA position effective May 3, 2015. (Id. at ¶ 115).

PROCEDURAL BACKGROUND

Plaintiff commenced the instant action on April 25, 2017 (Dkt. 1), and filed an amended complaint on April 26, 2017. (Dkt. 3). This matter was referred to United States Magistrate Judge Jonathan W. Feldman (Dkt. 8) and subsequently to United States Magistrate Judge Mark W. Pedersen (Dkt. 37) for all pretrial matters excluding dispositive motions.

Defendant filed the instant motion for summary judgment on May 21, 2021. (Dkt. 53). Plaintiff filed his...