# Terry v. Wilkie

> District Court, M.D. Florida · November 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10642086

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642086

## Opinion text

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

32

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642086. Public record. Not legal advice.