Terry v. Wilkie

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ADRIAN TERRY,

Plaintiff,

v. Case No.: 8:18-cv-2664-T-33AAS

ROBERT WILKIE,

as Secretary of Veterans

Affairs,

Defendant.

_____________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Robert Wilkie’s Amended Motion for Summary Judgment

(Doc. # 28), filed on October 10, 2019. Plaintiff Adrian Terry

responded on October 28, 2019. (Doc. # 30). Wilkie filed a

reply on November 12, 2019. (Doc. # 31). For the reasons that

follow, the Motion is granted.

I. Background

Terry is a veteran with numerous disabilities, including

asthma, somatic symptom syndrome, PTSD, anxiety, calcaneal

spurs, plantar fasciitis, tendonitis, sleep apnea, and high

blood pressure. (Doc. # 28-1 at 12:21-13:6; Doc. # 1 at 2).

In 2014, Terry began working as a housekeeping aide at the

James A. Haley VA Medical Center. (Doc. # 28-1 at 10:5-16).

He was later promoted to supply technician. (Id. at 10:23-

11:21).

According to Terry, the supply technician job involved

“tak[ing] inventory” of medical supplies using a scanner,

uploading that information into the computer system for

tracking inventory, “pick[ing] up [the] items, put[ting]

[them] in the bin to take it back to the floor,” and then

“restock[ing]” items in a store area. (Id. at 11:22-12:20).

The 2016 job description for the supply technician position

states that it “requires” (i) “regular and recurring physical

exertion (such as pulling or pushing carts weighing as much

as 300 pounds and lifting items weighing up to 50 pounds)”;

and (ii) “standing for periods of time as well as walking,

kneeling, stooping, reaching and lifting.” (Doc. # 28-31 at

5). In addition, according to the 2016 job description, the

supply technician is “the on-site customer service

representative of Logistics Service” and thus “has personal

contacts with a variety of individuals on a daily basis.”

(Id. at 4-5).

In May 2016, Terry informed the VA that he was “[u]nable

to repeatedly lift and stand for prolonged periods.” (Doc. #

28-4 at 1). Thus, on May 20, 2016, Terry requested

reassignment from the supply technician job as a reasonable

accommodation. (Doc. # 28-11). Terry’s “Written Confirmation

of Request of Accommodation” form states that he requested

only reassignment as an accommodation (Id.), and two other

forms from this time — the “Request for Medical Documentation”

form Terry provided to his doctor (Doc. # 28-4 at 1) and the

“Acknowledgement of Receipt of Request” form (Doc. # 31-2 at

2) — both state that Terry’s requested accommodation was

reassignment.

At his deposition, Terry vaguely suggested that he also

sought the accommodation of a chair at this time so that he

could stay in the supply technician position but was denied.

(Doc. # 28-1 at 16:8-11). Specifically, when asked whether

“anyone tr[ied] to figure out if there was a way [he] could

still do [his] job as a supply technician with

accommodations,” Terry replied “No, they don’t do that. . .

. Because when she asked if they could help me, because the

only thing I was requesting was a chair to sit, but they said

no. And that’s when they placed me in working as a greeter at

the front desk.” (Id. at 15:22-16:11).

Later in his deposition, however, Terry confirmed that

he never asked for a chair as a reasonable accommodation while

he was working as a supply technician in the logistics

department:

Q: Did you ever ask for a chair when you were in

logistics, though?

My understanding was you said that you couldn’t

stand for more than 20 minutes?

A: Right. But I never had a chance to ask, because

when I brought my paperwork back, the chief said he

didn’t have nothing for me so she --

Q: Did you ever ask for a chair?

A: No. You talking about after I requested

accommodation?

Q: Initially, did you ever ask for a chair when you

were in logistics?

A: No. No. Because I didn’t know I could get a

chair, because we all -- we -- everyone was just

constantly -- you know, just standing, wasn’t no

chair. So, you know, I didn’t think to ask for one

during that time.

(Id. at 94:4-20)(emphasis added).

While the VA looked for a permanent reassignment for

him, Terry began working as an interim hospital greeter. (Doc.

# 28-5 at 1; Doc. # 28-1 at 24:19-25). Then, on June 7, 2016,

Terry provided additional work restrictions to the VA,

including that he could stand only for twenty-minute periods.

(Doc. # 28-13). Terry acknowledged at his deposition that, at

the time his restrictions prevented him from standing for

more than twenty minutes at a time, it would have been

difficult to perform the duties of a supply technician. (Doc.

# 28-1 at 18:12-25).

On June 29, 2016, the VA ran its first search for a new

permanent position for Terry. (Doc. # 28-12). As a result of

that search, the VA offered Terry the position of telephone

operator. (Doc. # 28-14). But Terry claimed that he needed a

different reassignment because he could not work the night

shifts required for that position. (Doc. # 28-15).

Meanwhile, Terry continued working as a hospital

greeter. (Doc. # 28-1 at 24:19-25). The VA conducted

additional searches for available reassignments for Terry in

August 2016, October 2016, and January 2017, but no

appropriate positions were available. (Doc. # 28-16; Doc. #

28-17; Doc. # 28-18).

Then, in March 2017, the VA offered Terry the position

of medical support assistant. (Doc. # 28-19). Terry accepted

the offer and completed two weeks of training. (Doc. # 28-

20; Doc. # 28-1 at 25:25-26:14). The medical support assistant

position primarily involved “making appointments, cancelling

appointments, [and] checking patients in.” (Doc. # 28-1 at

26:15-17). After his first day on the job, however, Terry

told his supervisor that he could not work as a medical

support assistant. (Id. at 28:10-29:4).

After taking a few days’ leave, on April 24, 2017, Terry

provided the VA with medical documentation stating that,

because he had great difficulty multi-tasking and

concentrating, he should not answer phones or schedule

appointments and should have “minimal patient interaction.”

(Doc. # 28-3).

The VA responded by searching once again for vacant

positions that fit Terry’s restrictions. The April 2017

search revealed no available positions. (Doc. # 28-21).

Meanwhile, in May 2017, Terry was moved to an interim position

with the VA’s Gold Stars program. (Doc. # 28-2). On May 30,

2017, the VA ran another search but found no available

positions. (Doc. # 28-22). The next search on June 28, 2017,

also revealed no available positions. (Doc. # 28-23). The

VA’s July 2017 search, which was expanded to also look for

positions at the VA’s Bay Pines and Orlando locations, was

similarly unsuccessful. (Doc. # 28-24). The VA’s August 2017

search, which was further expanded to include Miami,

Gainesville, and West Palm Beach, likewise revealed no

available positions consistent with Terry’s restrictions.

(Doc. # 28-25).

Terry contacted his EEO counselor on August 27, 2017.

(Doc. # 28-26). Then, on September 8, 2017, the VA denied

Terry’s request for reasonable accommodation on the grounds

that it was unable to “identify vacant funded positions

[Terry] qualif[ied] for that me[t] [his] restrictions and

[were] not a promotion.” (Doc. # 28-27 at 2). On September

18, 2017, Terry met with the reasonable accommodation

specialist and HR specialist, as well as two union

representatives, to discuss his accommodation request. (Doc.

# 28-26 at 2). Terry testified that one of the union

representatives gave him the idea to ask for a chair as a

reasonable accommodation:

Q: So who gave you the idea to ask for a chair?

A: The union when we was — during our meeting they

would suggest, Well, if he can’t stand for so long,

then why not give him a chair? They was suggesting

that, for me to go back to logistics given the fact

that was my only issue, standing.

(Doc. # 28-1 at 95:2-7). Two days later, Terry filed a

complaint for disability discrimination and retaliation with

the VA. (Doc. # 28-26 at 1).

On September 27, 2017, VA representatives met with Terry

to discuss the denial of his reasonable accommodation

request. (Doc. # 28-27 at 2). At that meeting, Terry provided

the VA with his updated medical restrictions, including that

he could stand for 2 hours as long as he then could sit for

30 minutes to an hour. (Id.; Doc. # 28-28). Importantly,

however, Terry’s other restrictions, including that he focus

only on one task at a time and have minimal patient

interaction, did not change. (Doc. # 28-27 at 2).

During that meeting, Terry asked to be reassigned to the

supply technician position with a chair as a reasonable

accommodation. (Doc. # 28-1 at 95:2-9). Notably, between

Terry’s leaving the position of supply technician in 2016 and

his request to be reassigned to that position with a chair in

September 2017, the job description for supply technician had

been updated. (Doc. # 31-3). The 2017 job description explains

that the job “requires standing and walking during the entire

workday, and frequent reaching, bending and lifting of supply

packages (occasionally weighing as much as 50 pounds).” (Id.

at 7). Additionally, according to the updated job

description, the supply technician position’s duties include

(i) “general telephone inquiries and visitor referrals”; (ii)

“communicating with customers and vendors to obtain

information regarding medical supplies”; and (iii) “providing

information as needed in response to general telephone

inquiries and visitor referrals.” (Id. at 4, 6). The job

description also states that “[w]ork is performed on

established shifts, which may involve evening, overnight, or

weekend hours.” (Id. at 4).

Nevertheless, Terry testified that he could have done

the job of supply technician with only a chair as an

accommodation because “the only thing [he] was needing [was]

just to sit down more.” (Doc. # 28-1 at 16:12-15). Yet Terry

also stated: “with that job you’re constantly on your feet,

you never really sit unless you’re going on break, because

everything consists of standing and or bending or whatever.”

(Id. at 16:15-18).

Moreover, although he acknowledged that the supply

technician position required repeated lifting, Terry averred

during his deposition that he could perform the required

lifting despite the medical restriction. (Id. at 95:15-

97:16). Terry acknowledged that he would have to lift supplies

from shelves to put onto his cart, and then lift the supplies

back up to put on the destination shelf. (Id. at 97:11-16).

According to Terry, however, this repeated lifting was not a

problem because the supplies usually were not heavy. (Id. at

95:15-96:7). Also, Terry’s cart had four bins and he usually

“put[] [his] supplies in these bins” and “just push[ed] the

bin and push[ed] the bin inside the work and just work[ed]

off my bin.” (Id. at 96:7-18). Terry insisted: “It’s not

really lifting. The only thing I’m lifting is the empty bin

to put on my cart. That’s it. The bin could just sit there.”

(Id. at 95:15-96:18). Terry admitted, however, that he would

usually have to lift these bins four times a day. (Id. at

96:19-97:10).

Still, Terry testified that the lifting done in the

supply technician position was no more intense than that done

during grocery shopping. (Id. at 126:18-127:5). And Terry

suggested that he was capable of that level of lifting at the

time he requested to be reassigned to the supply technician

position with a chair as a reasonable accommodation. (Id.).

Additionally, Terry admitted during his deposition that

the supply technician position required him to multi-task.

(Id. at 65:24-66:5). Nevertheless, Terry maintained that the

level of multi-tasking required in the supply technician

position was much lower than in the medical support assistant

position, so he was able to “work at [his] own pace.” (Id. at

66:7-17). Terry also admitted that he was sometimes assigned

to answering the telephone in the supply technician position.

(Id. at 66:18-67:14). Terry nevertheless maintained that he

could have performed the necessary functions of the supply

technician position with the reasonable accommodation of a

chair. (Id. at 127:6-128:10).

On October 2, 2017, the VA upheld its denial of Terry’s

reasonable accommodation request because no position was

available that Terry could perform with his restrictions.

(Doc. # 28-27). The VA issued a proposed removal letter to

Terry on October 24, 2017. (Doc. # 28-29). The letter stated,

in relevant part:

You did not identify any accommodation which might

make it possible to perform the essential functions

of your currently assigned position and the Agency

has not been able to identify any. The Agency has

also diligently searched for an additional position

to which it might reassign you as another

reasonable accommodation, but none was found.

(Id. at 1). The letter also stated that the “ninety-day

position search period ended on July 28, 2017,” which Terry

interprets as meaning that no additional search for an

available position was performed after Terry’s medical

restrictions were updated on September 27, 2017. (Id. at 2).

Terry attended a meeting with VA representatives on

October 31, 2017, to discuss his removal from employment with

the VA. (Doc. # 28-30). Despite the meeting, Terry was removed

from federal service on November 20, 2017. (Id.).

Terry initiated this case against Wilkie on October 30,

2019, asserting claims for disability discrimination (Count

I) and retaliation (Count II) under the Rehabilitation Act,

and disability discrimination (Count III) and retaliation

(Count IV) under the Americans with Disabilities Act (ADA).

(Doc. # 1). Wilkie filed his Answer on February 4, 2019. (Doc.

# 11). The case proceeded through discovery. The parties

mediated on September 4, 2019, but reached an impasse. (Doc.

# 24).

Now, Wilkie moves for summary judgment on all claims.

(Doc. # 28). Terry has responded (Doc. # 30), and Wilkie has

replied. (Doc. # 31). The Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

Wilkie advances three separate arguments for summary

judgment. The Court will address each in turn.

A. ADA Claims

First, Wilkie argues that summary judgment should be

granted on Terry’s ADA claims for disability discrimination

(Count III) and retaliation (Count IV) because the

Rehabilitation Act provides the exclusive remedy for federal

employees challenging workplace discrimination based on

disability. (Doc. # 28 at 8).

The Court agrees. It is black-letter law that “the

Rehabilitation Act . . . provides the exclusive remedy for

federal government employees seeking damages and relief for

work-place discrimination based on disability.” Lapar v.

Potter, 395 F. Supp. 2d 1152, 1157 (M.D. Fla. 2005); see also

Rio v. Runyon, 972 F. Supp. 1446, 1454 (S.D. Fla. 1997)(“As

a federal employee, Plaintiff's exclusive remedy for alleged

disability discrimination in connection with her employment

is the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§

791, 794, and 794a.”). Notably, Terry failed to address this

argument in his response.

Thus, the Motion is granted as to Counts III and IV.

B. Disability Discrimination Claim

“The Rehabilitation Act [] prohibits federal agencies

from discriminating in employment against otherwise qualified

individuals with a disability.” Dickerson v. Sec’y, Dep’t of

Veterans Affairs Agency, 489 F. App’x 358, 359 (11th Cir.

2012)(citation omitted). Title VII’s burden-shifting analysis

applies under the ADA, Earl v. Mervyns, Inc., 207 F.3d 1361,

1365 (11th Cir. 2000), and ADA standards apply to the

Rehabilitation Act. 29 U.S.C. § 794(d). Thus, in analyzing

Terry’s Rehabilitation Act claims, the Court looks to case

law decided under both the ADA and the Rehabilitation Act.

See Dickerson, 489 F. App’x at 360 n.2 (“[C]ases decided under

the ADA and the Rehabilitation Act may be used

interchangeably.”).

To succeed on a disability discrimination claim, a

plaintiff must first establish a prima facie case. Once a

prima facie case is established, the defendant must show a

legitimate, non-discriminatory reason for the conduct, Furnco

Constr. Corp. v. Waters, 438 U.S. 567, 577-78 (1978), which

the plaintiff can overcome with evidence of pretext, Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53

(1981).

1. The Prima Facie Case

Wilkie argues that the Court should grant summary

judgment on Terry’s disability discrimination claim under the

Rehabilitation Act because Terry has not established a prima

facie case. (Doc. # 28 at 11).

The Rehabilitation Act prohibits employers from

discriminating against “qualified individual[s] on the basis

of disability.” 42 U.S.C. § 12112(a). “[T]o establish a prima

facie case of discrimination under the [Act], [the plaintiff]

must demonstrate that [he] (1) is disabled, (2) is a qualified

individual, and (3) was subjected to unlawful discrimination

because of [his] disability.” Cash v. Smith, 231 F.3d 1301,

1305 (11th Cir. 2000); see also Holly v. Clairson Indus.,

L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007).

A “qualified individual” is a person who, with or without

reasonable accommodations, is able to perform the essential

functions of the job he holds or desires. 42 U.S.C. §

12111(8). “[A] plaintiff must show either that he can perform

the essential functions of his job without accommodation, or,

failing that, show that he can perform the essential functions

of his job with a reasonable accommodation.” D’Angelo v.

ConAgra Foods, 422 F.3d 1220, 1229 (11th Cir. 2005)(quotation

marks omitted). “And even a ‘relative[ly] infrequen[t]’

inability to perform a job’s essential functions is enough to

render a plaintiff not a ‘qualified individual’ under the

ADA.” Billups v. Emerald Coast Utils. Auth., 714 F. App’x

929, 936 (11th Cir. 2017)(quoting Holbrook v. City of

Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997)).

“An employer unlawfully discriminates against a

qualified individual with a disability when the employer

fails to provide ‘reasonable accommodations’ for the

disability — unless doing so would impose undue hardship on

the employer.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,

1255 (11th Cir. 2001)(quoting Davis v. Fla. Power & Light

Co., 205 F.3d 1301, 1305 (11th Cir. 2000)). Still, “the duty

to provide a reasonable accommodation is not triggered unless

a specific demand for an accommodation has been made.” Gaston

v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th

Cir. 1999). “Where the employee fails to identify a reasonable

accommodation, the employer has no affirmative duty to engage

in an ‘interactive process’ or to show undue hardship.” Spears

v. Creel, 607 F. App’x 943, 948 (11th Cir. 2015).

An “employer is not required to accommodate an employee

in any manner in which that employee desires.” Terrell v.

USAir, 132 F.3d 621, 626 (11th Cir. 1998)(citation omitted).

“The plaintiff bears the burden of identifying an

accommodation, and of demonstrating that the accommodation

allows him to perform the job’s essential functions.” Lucas,

257 F.3d at 1255-56.

Indeed, “[a]n accommodation can qualify as ‘reasonable,’

and thus be required by the ADA, only if it enables the

employee to perform the essential functions of the job.” Id.

at 1255. “An accommodation that simply eliminates, rather

than enables the disabled employee to perform, an essential

function of their job is ‘per se unreasonable.’” Leme v. S.

Baptist Hosp. of Fla., Inc., 248 F. Supp. 3d 1319, 1345 (M.D.

Fla. 2017). “The term essential functions means the

fundamental job duties of the employment position the

individual with a disability holds or desires.” Dickerson,

489 F. App’x at 360 (quoting 29 C.F.R. § 1630.2(n)(1)).

“Whether a function is essential is evaluated on a case-by-

case basis by examining a number of factors.” Id. (citation

omitted). “Consideration is given to the employer’s judgment

as to what functions of a job are essential.” Id.

“[T]he ADA may require the employer to ‘reassign,’ i.e.,

transfer, the disabled employee to a vacant position as a

reasonable accommodation. The reassignment duty, however,

does not require the employer to bump another employee from

a position in order to accommodate a disabled employee. Nor

does it require the employer to promote a disabled employee.”

Lucas, 257 F.3d at 1256 (citations omitted).

2. Discussion

According to Wilkie, Terry cannot show that “he was

qualified as either a Supply Technician or Medical Support

Assistant because he could not perform the essential

functions outlined in the respective job descriptions” or

that “he was discriminated against because the United States

failed to reassign him.” (Doc. # 28 at 11).

Wilkie argues that Terry could not perform the essential

functions of the supply technician position because of his

“restrictions on walking, standing, repeated lifting,

multitasking, answering the phone, and interacting with

patients.” (Id. at 12). Wilkie relies on both the 2016 and

2017 official job descriptions for the supply technician

position to establish that standing, repeated lifting, multi-

tasking, interacting with others, and answering phones were

all essential functions of that position. See 42 U.S.C. §

12111(8) (“[C]onsideration shall be given to the employer’s

judgment as to what functions of a job are essential, and if

an employer has prepared a written description before

advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential

functions of the job.”).

Wilkie also argues that Terry’s medical restrictions

prevented him from performing the essential functions of four

other positions — medical support assistant, mail clerk,

human resources assistant, and time and leave clerk. (Doc. #

28 at 12-14).

In response, Terry argues that he was qualified to hold

the position of supply technician with the reasonable

accommodation of a chair. (Doc. # 30 at 8). But Terry makes

no claim, and presents no evidence, regarding the four other

positions. Thus, Terry has abandoned any argument that he

could have held the positions of medical support assistant,

mail clerk, human resources assistant, and time and leave

clerk. See Simpson v. Bank of Am., N.A., No. 1:07-CV-771-BBM,

2008 WL 11416950, at *6 (N.D. Ga. Feb. 20, 2008)(“The Simpsons

allege that BOA intentionally inflicted emotional distress on

them in their Complaint. However, in their Response Brief to

BOA’s Motion for Summary Judgment, they discuss no law or

facts that would support such a claim. Accordingly, the court

deems the claim for intentional infliction of emotional

distress to be abandoned.”). Because Terry maintains only

that he could have performed the supply technician position

with a reasonable accommodation, the Court will confine its

analysis to that position.

Regarding the supply technician position, Terry argues

he

has presented evidence of the following: 1) that he

presented his medical restriction note to the VA

[]; 2) that after he requested a reasonable

accommodation, nobody tried to figure out if there

was a way he could still perform his job as a supply

technician while using a chair []; 3) that rather

than accommodate Mr. Terry in his position as a

supply technician, Andrea Dankic placed him as a

greeter at the front desk. []; and 4) That the only

thing Mr. Terry needed in order to complete his job

as a Supply Technician was to sit down more. . . .

Considering the above, Mr. Terry has presented

enough evidence to establish a prima facie case for

failure to accommodate under The Rehabilitation

Act, 29 U.S.C. §§ 791, 794, and 794(a).

(Doc. # 30 at 10).

In short, Terry insists that the VA discriminated

against him by moving him in 2016 from the supply technician

position to the interim hospital greeter position and then

the medical support assistant position. (Id. at 10).

According to Terry, the VA should have accommodated him while

he was a supply technician by “figur[ing] out if there was a

way he could still perform his job as a supply technician

while using a chair.” (Id.).

Thus, Terry’s argument hinges entirely on the assertion

that he should have been provided a chair as a reasonable

accommodation back in 2016 when he was a supply technician.

But Terry did not request a chair as a reasonable

accommodation in 2016. True, early in his deposition, Terry

vaguely suggested that he had requested a chair in 2016. (Doc.

# 28:1 at 15:22-16:11). But later, when he was squarely asked

whether he requested a chair while working as a supply

technician, Terry testified clearly that he did not request

a chair. (Id. 94:4-94:20). Specifically, when asked whether

he “ever ask[ed] for a chair when [he] [was] in logistics,”

meaning his job as a supply technician, Terry stated: “No.

No. Because I didn’t know I could get a chair, because we all

— we — everyone was just constantly — you know, just standing,

wasn’t no chair. So, you know, I didn’t think to ask for one

during that time.” (Id. at 94:14-20). Immediately afterwards,

Terry was asked “who gave [him] the idea to ask for a chair,”

and he replied “[t]he union when we was — during our meeting,”

meaning the September 2017 meeting attended by Terry’s union

representatives. (Id. at 95:2-3; Doc. # 28-26 at 2).

This internally contradictory deposition testimony is

insufficient to create a genuine dispute of material fact

about whether Terry asked for a chair as a reasonable

accommodation in 2016 when he was a supply technician. See

Watson v. Forest City Commercial Mgmt., Inc., No. 1:13-CV-

3919-LMM, 2014 WL 11281384, at *1 n.1 (N.D. Ga. Dec. 16,

2014)(“Plaintiff contends in her Statement of Material Facts,

that a genuine issue of fact exists as to how long the

incident lasted by pointing to deposition testimony that

Plaintiff was asked ‘Do you know how long were [sic] you

fighting approximately?’ and she responded ‘No, sir.’ That

testimony contradicts Plaintiff’s earlier deposition

testimony, in which she agreed ‘[the fight] was over in an

instant,’ and ‘it [was] just a matter of seconds.’ This Court

disregards Plaintiff’s testimony that she did not know how

long the fight lasted.”), aff’d, 618 F. App’x 584 (11th Cir.

2015); Carytown Jewelers, Inc. v. St. Paul Travelers Cos.,

Inc., No. 3:06CV312, 2007 WL 174020, at *7 (E.D. Va. Jan. 18,

2007)(finding that a deponent who “contradicted the same

assertion in the same deposition. . . . may not create a

genuine issue of material fact by presenting two conflicting

versions of events”); Tang v. Jinro Am., Inc., No. CV-03-6477

(CPS), 2005 WL 2548267, at *4 (E.D.N.Y. Oct. 11, 2005)(“In

his deposition testimony, Plaintiff states both that he

signed the agreement, and that he did not sign the agreement.

Such inconsistency is not sufficient to create a ‘genuinely

disputed’ issue of fact if only because a statement against

one[’]s interest trumps one which is self-serving.”). Indeed,

the contemporaneous documentary evidence suggests that the

only reasonable accommodation Terry requested in 2016 was

reassignment to a different position. (Doc. # 28-11; Doc. #

28-4 at 1; Doc. # 31-2 at 2).

As a fallback, Terry argues that the VA should have

engaged in more of an “interactive process” with him in 2016

to reveal alternative reasonable accommodations besides

reassignment. (Doc. # 30 at 13-14). The Court is unpersuaded.

The Eighth and Ninth Circuit case law cited by Terry is not

binding on this Court. Still, Terry is correct that “[t]he

[ADA] regulations state that an employer may in some

circumstances need to ‘initiate an informal, interactive

process’ with a disabled employee to determine the

appropriate reasonable accommodation.” Frazier-White v. Gee,

818 F.3d 1249, 1257 (11th Cir. 2016) (citing 29 C.F.R. §

1630.2(o)(3)). Here, however, the only reasonable

accommodation Terry requested was reassignment, and the VA

gave him that exact accommodation. The VA did not fail to

engage in an interactive process with Terry by giving him the

reasonable accommodation he actually requested in 2016. See

Knight v. Gen. Telecom, Inc., 271 F. Supp. 3d 1264, 1286 (N.D.

Ala. 2017)(granting summary judgment to the defendant where

“[t]he Plaintiff [did] not argue that he requested any

accommodation which was denied” and “it [was] undisputed that

the Plaintiff was never denied any breaks (the accommodation

he requested) either before he formally requested them, or

after”).

Moreover, even if Terry had requested a chair as a

reasonable accommodation in 2016, there is no genuine issue

of material fact as to whether a chair would have enabled

Terry to perform the essential functions of the supply

technician position. First, Terry acknowledged that it would

be difficult to do the job of supply technician when he could

only stand for twenty-minute periods — his medical

restriction on standing in 2016. (Doc. # 28-1 at 18:12-25;

Doc. # 28-13). Second, the supply technician position

required — as set out in the job description — repeated

lifting (Doc. # 28-31 at 5), and Terry’s medical restrictions

from 2016 expressly stated that he should not hold a position

that required repeated lifting. (Doc. # 28-4 at 1). While

Terry tried in his deposition to downplay the importance of

repeated lifting for this position, he nevertheless

acknowledged that lifting supplies and bins multiple times a

day was part of the job. (Doc. # 28-1 at 95:15-97:16).

In any event, Terry’s subjective opinion of his ability

is simply irrelevant here. The VA was entitled to rely on the

medical restrictions provided by Terry’s physician in

determining whether he could perform the essential functions

of his — or other — jobs. See Alexander v. Northland Inn, 321

F.3d 723, 727 (8th Cir. 2003)(“But Northland was entitled to

rely and act upon the written advice from Alexander’s

physician that unambiguously and permanently restricted her

from vacuuming. In this situation, the employee’s belief or

opinion that she can do the function is simply irrelevant.

The ADA does not require an employer to permit an employee to

perform a job function that the employee’s physician has

forbidden.”). To require the VA to ignore the medical

restriction on repeated lifting because Terry believed he

could perform the lifting required in the supply technician

position “would trap [the VA] between the Scylla of liability

for following medical advice and the Charybdis of different

liability for ignoring the same.” McQueen v. AirTran Airways,

Inc., No. 3:04-CV-00180-RS-EMT, 2005 WL 3591100, at *4 (N.D.

Fla. Dec. 30, 2005). A chair would not have altered the

lifting requirements of the supply technician position and

thus was not a reasonable accommodation as a matter of law

for Terry’s medical restrictions in 2016.

Finally, to the extent Terry could be interpreted as

arguing that the VA also discriminated against him in 2017 by

failing to reassign him from the medical support assistant

position back to the supply technician position with a chair

as a reasonable accommodation, there is no genuine issue of

material fact either. As an initial matter, Terry points to

no evidence that a supply technician position was vacant in

2017 when he requested reassignment from the medical support

assistant position. Without any evidence to show that such a

position was available, no reasonable fact finder could find

that Wilkie discriminated against Terry by not reassigning

him from the medical support assistant position to the supply

technician position with a chair as a reasonable

accommodation. See Lucas, 257 F.3d at 1257 (“Because there

was no vacancy at the Marietta Boulevard facility for Customer

Service Representative, reassigning Lucas to that position

would have required Grainger to bump another employee from

it, and that is not required by the ADA.”); Dempsey v. Dekalb

County, No. 1:98CV3130-TWT, 2000 WL 33300667, at *8 (N.D. Ga.

Mar. 17, 2000)(“In order to establish his prima facie case of

Defendants’ failure to reassign him, Mr. Dempsey must point

to a particular vacant position for which he was qualified,

but to which he was not reassigned.” (emphasis added));

Richardson v. Honda Mfg. of Ala., LLC, 635 F. Supp. 2d 1261,

1279 (N.D. Ala. 2009)(“[R]egardless of whether Richardson

could perform the essential functions of the sit-down tugger

position as characterized by McDaniel, HMA is correct that,

factually, the record does not substantiate the existence of

an open sit-down tugger position.”).

Even if a supply technician position were vacant, a chair

was not a reasonable accommodation as a matter of law for

Terry to perform the supply technician position in September

2017. True, Terry’s updated 2017 medical restriction allowed

him to stand for two hours (up from twenty minutes in 2016)

and would have allowed him to perform one essential function

of the supply technician position — standing — with the

reasonable accommodation of a chair. But he was still subject

to the medical restriction stating that he should not perform

repeated lifting, regardless of the weight of the objects

being lifted. (Doc. # 28-4 at 1; Doc. # 28-27 at 2). As

discussed above, the VA was entitled to rely on this medical

restriction — regardless of whether Terry thought he could

handle the lifting required — in determining whether he was

qualified to work as a supply technician. See Alexander, 321

F.3d at 727 (“[T]he employee’s belief or opinion that she can

do the function is simply irrelevant. The ADA does not require

an employer to permit an employee to perform a job function

that the employee’s physician has forbidden.”).

Additional restrictions on Terry’s ability to work had

also been added in 2017; unlike when he first worked as a

supply technician in 2016, Terry was restricted from working

in any position that required multi-tasking, answering

phones, or patient interaction in 2017. (Doc. # 28-3). While

Terry downplayed the amount of multi-tasking and answering

phones done as a supply technician during his deposition, he

still acknowledged that answering phones at least

occasionally was one of his duties and some degree of multi-

tasking was required. (Doc. # 28-1 at 65:24-67:14). The 2017

job description for supply technician bears out that supply

technicians must be able to answer phones and interact with

vendors or patients as an essential function of their jobs.

(Doc. # 31-3 at 4, 6).

Thus, Terry’s deposition testimony does not alter this

Court’s decision. Terry’s argument essentially boils down to

the contention that the VA should have ignored the literal

meaning of the medical restrictions Terry’s doctors reported,

as well as the VA’s own job description for the supply

technician position. Instead, Terry argues, the VA should

have credited his belief that the medical restrictions

outlined by his doctors — including not repeatedly lifting

objects of any weight or answering phones or interacting with

patients — did not actually preclude him from performing a

job that, by his own admission, involved at least some

repeated lifting and occasional answering of phones and

interacting with individuals. This does not create a genuine

issue of material fact. Alexander, 321 F.3d at 727; see also

McQueen, 2005 WL 3591100, at *4 (“AirTran was not required to

ignore the physician’s recommendation, nor would it have been

reasonable for AirTran to have done so. To require AirTran to

ignore such a restriction ‘would trap employers between the

Scylla of liability for following medical advice and the

Charybdis of different liability for ignoring the same.’”

(citation omitted)).

There are no genuine issues of material fact regarding

whether Terry can establish a prima facie case of disability

discrimination under the Rehabilitation Act. Therefore, the

Court grants summary judgment on Count I of the Complaint.

C. Retaliation Claim

“To establish a claim of retaliation under [the

Rehabilitation Act], a plaintiff must prove that he engaged

in statutorily protected activity, he suffered a materially

adverse action, and there was some causal relation between

the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d

1261, 1277 (11th Cir. 2008); see also Holbrook, 112 F.3d at

1526 n.2 (explaining that the same prima facie case analysis

applies to both ADA and Rehabilitation Act claims).

Wilkie seeks summary judgment on Terry’s retaliation

claim under the Rehabilitation Act. (Doc. # 28 at 15).

According to Wilkie, Terry “seeks to reclothe his

discrimination claim as retaliation, [which] the Eleventh

Circuit has prohibited.” (Id.). Because Terry does not

address this argument in his response (Doc. # 30), he has

abandoned his retaliation claim. See Simpson, 2008 WL

11416950, at *6 (“The Simpsons allege that BOA intentionally

inflicted emotional distress on them in their Complaint.

However, in their Response Brief to BOA’s Motion for Summary

Judgment, they discuss no law or facts that would support

such a claim. Accordingly, the court deems the claim for

intentional infliction of emotional distress to be

abandoned.”).

In any event, the Court agrees with Wilkie that Terry

has not proffered any evidence to support a prima facie case

of retaliation. Instead, Terry is merely relying on evidence

regarding alleged disability discrimination to try to

establish a retaliation claim. This is impermissible. See

Lucas, 257 F.3d at 1261 (“Lucas also contends [in his

retaliation claim] that Grainger took adverse action against

him by failing to reasonably accommodate him, by refusing to

maintain him on light duty work, and by failing to engage him

in an interactive process. But this contention merely

reclothes Lucas’ ADA discrimination claim, which we have

already rejected, and it fares no better in this garb.”).

Accordingly, the Court grants summary judgment on Count

II of the Complaint.

Iv. Conclusion

Wilkie’s Amended Motion for Summary Judgment is granted.

Summary judgment is granted on all of Terry’s claims under

the ADA and the Rehabilitation Act.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Robert Wilkie’s Amended Motion for Summary

Judgment (Doc. # 28) is GRANTED.

(2) The Clerk is directed to enter judgment in favor of

Defendant Robert Wilkie and against Plaintiff Adrian

Terry on all counts of the Complaint.

(3) Thereafter, the Clerk is directed to CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

21st day of November, 2019.

VIR IA M. HERNANDEZ#/COVINGTON

UNITED STATES DISTRICT JUDGE

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