Anthony Voss v. Denis McDonough

Background

Anthony Voss brought an employment-discrimination action against Denis McDonough, the Secretary of the Department of Veterans Affairs. Voss challenged the Department’s August 17, 2017 final decision adopting administrative findings that the Department had failed to reasonably accommodate him on October 28, 2014. The administrative decision awarded Voss $70,000 in compensatory damages, and a separate order awarded $15,300 in attorney’s fees.

Voss had been employed by the Department until his termination for “medical inability” on August 11, 2017. The events underlying this case involved his reassignment from a Peer Support Specialist position to housekeeping work while a proposed removal was pending, his interaction with Housekeeping Supervisor Glenn Cook, the Department’s alleged failure to accommodate his medical restrictions, and the termination of his continuation-of-pay benefits. Voss also claimed that these events were retaliation for earlier equal-employment complaints.

Review of the Administrative Decision

The court held that a federal employee pursuing disability-discrimination claims against the federal government proceeds under Section 501 of the Rehabilitation Act. Because Voss filed a civil action challenging the agency’s final decision, the court reviewed the entire disposition anew, including liability and the remedy, rather than reviewing only the amount of the award.

The complaint asserted five theories: disability disparate treatment, failure to provide a reasonable accommodation, retaliatory disparate treatment, retaliatory harassment, and disability harassment. The court applied the summary-judgment standard, under which judgment is appropriate when there is no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law.

Disability Disparate Treatment

The court granted the Department’s motion for summary judgment on the intentional-discrimination claim and denied Voss’s motion. It concluded that Cook’s alleged conduct was not a materially adverse employment action because embarrassment or humiliation alone was insufficient. As to the reassignment, the undisputed facts showed that the decisionmaker did not know about medical issues that would have prevented Voss from accepting the reassignment when it was ordered. The court reasoned that the reassignment therefore could not have been based on his disability.

The court also concluded that Voss had abandoned his intentional-discrimination theory concerning the termination of continuation-of-pay benefits by failing to address the Department’s argument. Independently, the court found that Voss’s evidence linking the benefits decision to his disability consisted only of an unsupported assertion that the benefits had been ended early.

Failure to Provide a Reasonable Accommodation

The court granted the Department’s motion for summary judgment on the reasonable-accommodation claim and denied Voss’s motion. Voss proposed remaining in the Peer Support Specialist position or being moved to some other position. The court held that he did not show that either option was an available, effective accommodation. It also noted that Voss did not properly dispute the Department’s evidence that a search for other positions had not identified a position for which he was qualified.

The court gave an additional reason for its ruling. Even assuming Voss had requested an accommodation and the Department had a duty to engage in an interactive process, the court found that Voss abandoned that process. The record showed that he was told he could request a reasonable accommodation, family and medical leave, or workers’ compensation, but he did not make a request under the Department’s procedures before reporting for the reassignment. The court concluded that he could not recover for a failure to accommodate after abandoning the process.

Retaliation

The court granted the Department’s motion for summary judgment on Voss’s retaliation claim and denied Voss’s motion. Voss relied on his September 2014 employment complaint as protected activity. The Department offered nondiscriminatory explanations: the reassignment resulted from the patient-related misconduct investigation, and the continuation-of-pay benefits ended because of insufficient paperwork.

The court held that Voss did not produce evidence from which a factfinder could conclude that those explanations were a pretext for retaliation. His evidence consisted primarily of the timing of the events and his belief that they were connected to his earlier complaints. The court held that timing alone was insufficient at the summary-judgment stage. The court treated “retaliatory harassment” as a way of alleging retaliation through a hostile work environment, not as a separate claim, and found that the failure to show causation defeated that theory as well.

Disability Harassment

The court granted the Department’s motion for summary judgment on the disability-hostile-work-environment claim and denied Voss’s motion. It concluded that the alleged denial of accommodation, reassignment, interaction with Cook, and loss of continuation-of-pay benefits did not establish the severe or persistent discriminatory conduct required for a hostile work environment. The court also found no fact-based connection between those events and Voss’s disability. It declined to consider a harassment theory based on the October 24, 2014 meeting because Voss had not raised that theory in the complaint.

Disposition

Judge Halpern granted the Department’s motion for summary judgment on liability and denied Voss’s motion for summary judgment on liability. The court dismissed the complaint in its entirety. The action was not terminated because the Department’s counterclaims had not been resolved. The court also directed the Clerk to update the caption by replacing former Secretary David J. Shulkin with Denis McDonough.