PUGH v. MCDONALD

Filing 61

MEMORANDUM OPINION and ORDER, signed by CHIEF JUDGE THOMAS D. SCHROEDER on 4/5/2018, for the reasons stated, ORDERED that the Secretary's motion for summary judgment (Doc. 26 ) is GRANTED, each of Pugh's claims is DISMISSED WITH PREJUDICE, and the motion to strike (Doc. 51 ) is DENIED as moot. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PHILLIP D. PUGH,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DAVID J. SHULKIN, in his
official capacity as
Secretary, Department of
Veterans Affairs,1
Defendant.

1:16-cv-1030

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Phillip Pugh brought this action against Defendant
David J. Shulkin, M.D., Secretary of the Department of Veterans
Affairs

(“VA”),

discrimination

by

raising
the

a

number

Durham

Center (the “Durham VA”).

of

Veterans

claims

of

employment

Administration

Medical

Pugh alleges discrimination based on

race, age, and disability; retaliation; hostile work environment;
and, he contends, a violation of the Whistleblower Protection Act,
5 U.S.C. § 2301(b), et seq.

Before the court is the Secretary’s

motion for summary judgment as to all claims (Doc. 26) and motion
to strike Pugh’s jury demand as to his age discrimination claim
(Doc. 51).

The court heard argument on the motions on March 27,

Dr. Shulkin became the Acting Secretary of Veterans Affairs on February
14, 2017, resulting in his substitution as Defendant, pursuant to Federal
Rule of Civil Procedure 25(d). However, on March 28, 2018, the President
dismissed Mr. Shulkin and named the Honorable Robert Wilkie to serve as
the Acting Secretary.
1

2018.

For the reasons stated below, the motion for summary

judgment will be granted, and the motion to strike will be denied
as moot.
I.

BACKGROUND
The court views the facts in the light most favorable to Pugh,

as the nonmoving party.
Pugh is a blind African-American man in his sixties.
27-2 at 10.)

From 1996 to 2012, he worked at the Durham VA as the

Visual Impairment Services Team (“VIST”) Coordinator.
16.)

(Doc.

(Id. at

He was permitted to work with limited supervision and

reported directly to the VA Chief of Staff.

(Id. at 19–20.)

In 2009, the Durham VA realigned the VIST program under the
Eye

Clinic

and

Surgical

Services

program.

(Id.

at

19.)2

Thereafter, Pugh was supervised by Dr. Sharon Fekrat, who was the
Chief of Ophthalmology in the Eye Clinic.

(Id. at 20–21.)

Dr.

Fekrat was only at the Durham VA part time, however, and so she
relied on Kuruvilla Kurian, Ph.D., the Administrative Officer in
the Eye Clinic, and LaTisha Blacknall, a Medical Support Assistant
in the Eye Clinic, for assistance with VA policies and procedures.
(Doc. 27 at 3.)
Pugh claims that before and after being aligned under the Eye

Pugh has since made numerous requests, as recently as April 2012, to
be aligned back under the Chief of Staff, all which have been denied.
(Doc. 35 at 4; Doc. 40-5 at 3.)
2

2

Care Clinic, he became subjected to a hostile work environment by
Dr. Kurian and that the management at the Durham VA began a
concerted effort of harassment and retaliation.

He alleges that

the realignment was part of the harassment, claiming that in 2008
he overheard Dr. Kurian stating that he was a “lone wolf” who was
“poorly supervised” and that the VA needed to “reel his ass in.”
(Doc. 27-2 at 63.)
By all appearances, Pugh enjoyed a good relationship with the
veterans that came through the clinic, and, starting in 2009, he
encouraged them to write to the Secretary to request more resources
for the VIST program.

(Doc. 34–4 at 2; Doc. 35 at 2.)

In August

of 2011, Dr. Fekrat, Dr. Kurian, and another VA official met with
Pugh and told him that he was too close to the veterans and should
stop having them write complaints to the “Secretary, Congress, and
others in the chain of command.”

(Doc. 40-1 at 1.)

It also

appears that the Durham VA expressed satisfaction with Pugh’s work
through September 30, 2011.

Pugh received “excellent” and “fully

successful” reviews in his performance evaluations between 1999
and September 30, 2011, and he was given several cash awards for
his performance over that time period.

(Docs. 37-1 through 39-

7.)
In 2011, the Prosthetic Service, which serves as a purchaser
of VA equipment, raised concerns about how Pugh was managing the

3

Computer Assisted Training (“CAT”) program.

(Doc. 29—1 ¶ 5.)3 The

way the system worked, Pugh would enter a consult request for CAT
services in the Durham VA’s computerized records, which would have
to be signed off and approved by a physician who had ordering
privileges.

(Id. ¶ 4.)

Chief of Ophthalmology.

In Pugh’s case, this was Dr. Fekrat, as
(Id.)

In early 2012, Dr. Fekrat “became

concerned about seeing repeated requests for training for a small
number of veterans[,] and she became increasingly uncomfortable
about

signing

off

on

those

orders

without

being

able

to

reassured that the services were clinically appropriate.”
¶ 3.)

be

( Id.

Dr. Fekrat was concerned that veterans “were being provided

CAT over
points.”

years

without clear treatment

(Id. ¶ 4.)

plans

or

defined

end

She shared her concerns with Sara Haigh, the

Assistant Director and, at times, Acting Associate Director of the
Durham VA, who contacted Cezette Leopold, the Chief of Prosthetics.
(Id. ¶¶ 1, 4.)

Based on her contact with Leopold, Haigh became

troubled about the number of training hours required in the CAT
program,

how

the

program

assessed

outcomes,

relationship, and the program’s overall cost.

its

vendor

(Id. ¶ 4.)

In response to these reports, the Prosthetics Service pulled
data on the CAT program for an eighteen month period and found
that

“out

of

eighty-eight

total

patients,

thirteen

of

those

Pugh says this was because of the Durham VA’s record-keeping problems.
(Doc. 58 at 2.)
3

4

patients received about a hundred and eighty thousand dollars of
computer

training”

and

“the

remaining

seventy-five

patients

received about a hundred and four thousand dollars of computer
training.”

(Id.)

Further investigation showed that some of the

thirteen patients in the first group received “over two hundred
hours of training over the course of three years for a grand total
of three hundred thousand dollars.”

(Id.)

This led to “a great

deal of concern about vendor payments, the process for referring
these payments[,] and whether their large number of training hours
were clinically necessary.”

(Id.)

It was reported to Haigh that

“the training sessions were being

used for more of a social

gathering among a small group of veterans and was not, in fact,
clinical direct training with defined goals and objectives.” (Id.)
Doubts became so great that “at one point [Leopold] refused to pay
invoices because she was so concerned about the CAT program.” ( Id.
¶ 5.)
In February of 2012, Pugh met with Paul Moton (the Blind
Rehabilitation Outpatient Specialist (“BROS”) hired in 2009 and
who also worked as part of the Eye Clinic), Dr. Kurian, Dr. Fekrat,
and Blacknall about Pugh’s performance.

(Doc. 28-3 at 61–62.)

Moton felt that he was not getting enough referrals from Pugh.
The Eye Clinic team met several times to encourage increased
collaboration

on

patient

referrals

and

to

encourage

Pugh

schedule an appointment with Moton for each of his patients.
5

to

(Doc.

29-1 ¶ 6.)4

In a May 29, 2012 email to Pugh and others, Haigh

directed Pugh to follow Dr. Fekrat’s instructions as to several
matters, including entering progress notes and treatment pl ans
promptly,

closing

the

encounter

within

twenty-four

hours,

following the scheduling process developed by the Eye Clinic team,
and adding Dr. Fekrat as an additional signer to progress notes
and consult requests.

(Id.)

Around this time, Pugh, who to this point had the authority
to schedule appointments, was informed that the VA was moving
toward the use of designated schedulers for patient appointments
and that he would no longer be able to schedule appointments for
his patients on his own.

(Doc. 27-2 at 67.)

Pugh viewed this

change as a form of harassment, despite the fact that Moton also
lost the ability to schedule appointments for his patients and
that the VA was implementing this move across the country.
at 68; Doc. 28-3 at 66, 76.)5

(Id.

Pugh also made several requests to

have his ability to schedule appointments reinstated, all of which
were denied.
In

May

teleconference

(Doc. 40-5 at 2–3.)
of

2012,

with

VA

Dr.

Kurian

employees

was

on

responsible

a

confidential

for

categorizing

Pugh believes that Moton was jealous of him and wanted to take Pugh’s
position. However, this idea is supported only by Pugh’s own testimony.
(Doc. 27-2 at 44–46.)
4

Pugh says that the reason Dr. Fekrat gave for removing his scheduling
privileges was that “It’s [my] way or the highway.” (Doc. 27-2 at 108.)
5

6

employees

into

various

governmental

positions

(known

as

“boarding”), and the topic turned to VIST Coordinators being
boarded into a “Hybrid Title 38” position.6

(Doc. 40-7 ¶¶ 10–12.)

An employee boarded into a Hybrid 38 position would be eligible
for a promotion if the boarding process indicated that the employee
was performing above his GS level at the time of boarding.
Doc. 40-8.)

(See

During this call, Dr. Kurian asked what would happen

to a VIST Coordinator who was detailed away from his position
during the boarding process. (Doc. 40-7 ¶ 12.)

This caused Cheryl

Hunt, who was also on the conference call and who worked on the
Hybrid Title 38 conversion process, to immediately advise Pugh of
the discussion out of her concern for his position.

(Id. ¶ 13.)

On May 31, 2012, Pugh was bitten by a tick and became ill.
(Doc. 40-5.)

As a result, on June 6, 2012, he requested a

combination of authorized absence, annual leave, and comp time to
be absent June 6-8, 2012.

(Doc. 27 at 6–7.)

His leave was

initially denied on the ground he failed to give the required 30-

Cheryl Hunt, a former VIST Coordinator who participated in the National
Hybrid Title 38 conversion, states that this was a process in which the
VA made changes so that certain employees would “become Hybrid Title 38
employees, which is a combination of Title 5 and Title 38.” (Doc. 40-7
¶ 6.) During this process, each VIST Coordinator in the VA “had to be
boarded into Blind Rehab Service as Blind Rehab Specialists regardless
of their background or degrees. If they met the qualifications based
on the position description, they would be boarded as a Blind Rehab
Specialist.” (Id.) Hunt stated that, while working on the Hybrid Title
38 boarding process, she “would determine if the candidates would come
in as a GS-12, GS-11, or sometimes GS-9,” without reference to GS-13.
(Id. ¶ 10.)
6

7

days’ advance notice for annual leave.
12.)7

(Id.; Doc. 30-1 ¶¶ 10–

Pugh then changed his request to sick leave, which was

approved, and he was absent from work on approved sick leave from
June 6 until October 15, 2012.

(Doc. 30-1 ¶ 16.)

During Pugh’s

absence, Dr. Kurian contacted him to inquire about the status of
his leave and to inform him of the consequences of being absent
without putting in the appropriate type of leave.

(Id. ¶¶ 13–15.)

Also on June 6, 2012, Moton sent an email to Dr. Kurian and
Dr. Fekrat that contained allegations about Pugh of what the Durham
VA’s executive leadership team (Haigh, the director of the Durham
VA, the chief of staff, and the nurse executive) considered to be
“potential patient neglect or possibly patient abuse.”
1 at 150; Doc. 29-1 ¶ 7.)

(Doc. 28-

Of particular concern to Haigh and other

members of the Durham VA’s executive leadership team was the
email’s statement that “veterans are afraid to speak up because
they fear they will not receive their computer or other blind
aids.”

(Doc. 29-1 ¶ 7.)

Haigh felt that this email “explicitly

implied that veterans were afraid to speak up or were not receiving

Pugh argues that there was no such 30-day policy and that Dr. Kurian
was simply harassing him. (Doc. 35 at 5–6.) In support of this, Pugh
claims that the 2011 Sick Leave Policy did not have a 30-day notice
requirement. (Doc. 47-4.) In his declaration, Dr. Kurian contends that
there was a 30-day notice policy for an employee to take his annual
leave, as opposed to sick leave.
(Doc. 30-1 ¶¶ 10–13.)
There is a
memorandum, dated August 2011, attached to Dr. Kurian’s declaration which
notes that “[a]ll requests for annual leave should be made in advance
and are subject to supervisory approval.” (Doc. 30-4 at 8.) However,
this memorandum does not state that there is a 30-day requirement for
requesting annual leave.
7

8

needed services.”

(Id.)

This email, along with previously existing concerns about the
CAT program, led the Durham VA’s executive leadership team to
request a site visit by the Blind Rehabilitation Service of the VA
Central Office to investigate possible irregularities.

(Id.)

Because of this request for an investigation and in accordance
with the VA’s policy, Pugh, although then on leave for his tick
bite, was temporarily detailed to work in the Durham VA’s Logistics
section, where his access to computer and work files would be
restricted to ensure the integrity of the records for the duration
of the investigation.

(Doc. 28-4 ¶ 4; Doc. 29-1 ¶¶ 8–9.)

The

decision to move Pugh to Logistics was made on June 8, 2011, with
the assumption that he would return to work on June 11, 2011, and
was an attempt to quickly find a detail for him where he could be
productive, considering his blindness.

(Doc. 28-4 ¶ 4.)

It was

the view of the Durham VA Human Resources staff that Pugh could be
productive by reviewing a backlog of documents as part of his
detail to Logistics.

(Id.)

The detail to Logistics meant that

Pugh would be working in the Durham VA warehouse but did not result
in any decrease in grade or pay.

It also meant that for the

duration of the detail, Pugh’s compressed tour of duty (meaning
that he worked four ten-hour days, rather than five eight-hour
days) was terminated, and his access to the Surgical Service

9

department was restricted.

(Doc. 47-6.)8

Though apparently contemplated in early June, the site visit
from the VA Central Office occurred June 27 through 29, 2012.
was

conducted

by

Gale

Watson,

National

Director

of

It

Blind

Rehabilitation Service, and Michael Williams.

(Doc. 29-1 ¶ 11.)

Both

improper

expressed

relationships,
equipment.
sent

to

concern
payment

about

patterns,

(Doc. 30-11 ¶ 3.)

the

Medical

Center

possible
and

control

of

vendor

VA-issued

Watson prepared a report that she
Director

at

the

Durham

VA

that

summarized these concerns. (Doc. 30-12.) According to the report,
the investigators uncovered “significant issues” with the CAT
program, documentation and treatment plans for veterans, inventory
management,

handling

of

equipment

between

patients,

“and

a

significant concern for potential fraud and abuse such that they
advised [the Durham VA management team] to immediately contact the
Inspector General to do a criminal based investigation.”

(Doc.

Pugh also emphasizes that his being detailed away from his VIST position
meant that he was not “grandfathered in” as a Hybrid Title 38 Blind
Rehabilitation Specialist in October of 2012, as he claims VIST
Coordinators in other VA facilities were. (Doc. 35 at 7.) Pugh claims
that had he undergone the boarding process, he would have been able to
increase his GS level. (Id.) However, Pugh would not have automatically
become a GS-13 had he participated in the boarding process; he may simply
have been eligible for a promotion to that level. (Doc. 28-3 ¶ 14; Doc.
40-8 at 13.) Given that Hunt testified that the boarding process was
only determining whether the candidates “would come in as a GS-12, GS11 or sometimes GS-9,” there is no support for the claim that Pugh would
have been made a GS-13 had he undergone the boarding process. (Doc. 407 ¶ 10.) It is further damaging to Pugh’s claim that Haigh testified
that Pugh could not be boarded because he did not have a performance
appraisal rating for 2012 due to his significant absence from work that
year. (Doc. 29-22.)
8

10

29-1

¶ 11;

Doc.

30-12.)

The

recommendation

for

a

criminal

investigation related to concerns over fraud, collusion with the
vendor, and the giving of a refurbished computer to a veteran even
though a new one was ordered.

(Doc. 29-1 ¶ 11.)

In addition, the

report recommended the following: (1) that the CAT program be
placed under the review of Moton, rather than the VIST Coordinator
(i.e., Pugh); (2) that the VA no longer use the CAT vendor, John
Lee, it had been using through Pugh; (3) that the VA develop
clearer standards for the CAT program; (4) that Pugh be offered
counseling and support for apparent suicidal ideation; and (5)
that the VA appoint “a strong VIST Chair to work with BROS during
the period without a full-time VIST coordinator.”

(Doc. 30-12.)

This report was presented with a “strong sense of seriousness
pertaining to the concerns the site visit team had.”

(Doc. 29-1

¶ 16.)
After the site visit, the VA concluded that VIST Program
Management was not meeting the requirements of the program, as
seventy percent of the veterans had not received their evaluation
in over three years, even though this was an annual requirement.
(Id. ¶ 12.)

In addition, concerns, reflected in the site visit

report, that there was “a financial relationship” or “financial
linkage” between Pugh and Lee led to a preliminary investigation
of the CAT program by the Office of the Inspector Ge neral.
29-1 ¶ 17; Doc. 42-1 ¶ 3.)

(Doc.

This investigation determined that
11

there was insufficient evidence for the case to the referred to
the United States Attorney for prosecution.
45.)

(Doc. 42 -1 ¶ 3; Doc.

The matter was eventually referred back to the Durham VA for

appropriate administrative action.
On

July

16,

2012,

Pugh

(Doc. 42-1 ¶ 3.)9

filed

his

first

informal

Equal

Employment Opportunity (“EEO”) complaint, claiming discrimination
based on race, disability, and harassment, as well as unfair
personnel practices.

(Doc. 35 at 7.)

Due to his absence from work for health concerns, Pugh did
not report to the warehouse for the detail to Logistics until
October 15, 2012.10

(Doc. 27 at 7.)

That same day, EEO Manager

Odessa Wright learned that Pugh was working in the warehouse , and
she immediately went to see him.

(Doc. 28-2 at 55.)

Although

Wright believed the room where Pugh was located was fine, she felt
that the path to the room posed potential obstacles.
20.)

Therefore,

with

Human

Resources’

(Id. at 19–

concurrence,

she

immediately moved him to a conference room in her building.

(Id.

At the hearing on the present motions, Pugh attempted to downplay the
severity of both the VA Central Office site visit and the Inspector
General’s “preliminary inquiry,” because they did not lead to the finding
of any criminal wrongdoing.
9

Pugh has submitted declarations from several employees from the
warehouse who state that they did not feel it was a safe place for Pugh
to be located. (Docs. 47-7 through 47-9.) While they did not agree
with the Durham VA’s decision to place Pugh in the warehouse, these
employees claim they could not change it because the VA’s human resources
personnel forced Pugh into the warehouse. (Docs. 47-7 through 47-9.)
10

12

at 22–23.)11

Also on that same day, the Durham VA reassigned Pugh

to a detail in the Durham VA’s Education section.
79;

Doc.

41-2.)

However,

Pugh

either

did

(Doc. 27-2 at

not

receive,

or

acknowledge receipt of, the memorandum assigning him to Education
until October 24, 2012.

(Doc. 41-2.)

While the ongoing investigations of the VIST program and
Pugh’s management of it were underway, the Durham VA had authorized
a

second

VIST

Coordinator

recruitment for it.

position

(Doc. 28-4 ¶ 8.)

issued on October 22, 2012.

(Id.)

and

allowed

immediate

The job announcement was

Pugh applied for the position

but was not interviewed because the Human Resources Chief , Jerry
Freeman, determined that Pugh already occupied a VIST position.
(Id. ¶ 10.)

No selection was made from the second VIST Coordinator

announcement.

(Id.)

The position was later filled by Monica

Grotte, a 29 year-old Caucasian candidate from the Durham VA’s
intern program.

(Id. ¶ 11; Doc. 35 at 8.)

Pugh claims, without

any supporting evidence, that the “VA had a pattern of hiring young
Caucasian

female

interns

and

applicants

from

these

type

of

Pugh recalled in his deposition that Wright moved him from the
warehouse into “the EMS break room in building 6” on October 17 and that
he spent October 15 and 16 sitting in a break room in the warehouse.
(Doc. 27-2 at 92–93.) Wright’s deposition indicates that she went to
see Pugh on the first day he returned to work and that she placed him
in a safe location (although she could not remember exactly where) that
she stated “was a conference room in that building” on that same day.
(Doc. 28-2 at 22–23, 55.) In any event, it is uncontested that the
decision to move Pugh was made the day he reported back to work from his
leave, October 15, and the duration of his presence in the warehouse was
brief.
11

13

positions while pushing out the older seasoned employees.”

(Doc.

58 at 8.)
On April 15, 2013, Pugh was permanently reassigned to the
position of Blind Rehabilitation Specialist in the Durham VA’s
Education section, with no change in grade or pay.
160.)12

(Doc. 27-2 at

The memorandum that informed Pugh of this reassignment

notes that the VA Central Office report found several deficiencies
that were “determined to be primarily performance related” and
that

“management

has

lost

confidence

successfully manage the VIST program.”

in
(Id.)

[Pugh’s]

ability

to

While Pugh’s grade,

GS-12, did not change, his position was later classified as GS11.

(Doc. 28-4 ¶ 16.)

Thus, Pugh is paid at the GS-12 level and

still carries his service at the GS-12 level for the purposes of
qualifying, and applying, for higher grade positions, despite the
fact that the title he holds is a GS-11 position.

(Id. ¶ 17.)

Pugh claims this permanent assignment as Blind Rehabilitation
Specialist in Education was a demotion.
Pugh filed this lawsuit on August 5, 2016.
moved for summary judgment on November 6, 2017.

(Doc. 2.)

The VA

(Doc. 26.)

March 27, 2018, the court held a hearing on the motion.

On

The motion

In an email, Pugh stated that he was “looking forward to working with
you all to increase recruitment and hiring of individuals with
handicaps.”
(Doc. 28-11 at 1.)
The record indicates that through
September 30, 2015, Pugh has been “fully successful” (but not
“excellent”) in all his evaluations since his detail to the Education
section. (Docs. 28-16 through 18.)
12

14

has been fully briefed and is ready for decision.

(Docs. 27, 33,

35, 42, 47.)13
II.

ANALYSIS
A.

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.”
56(a).

Fed. R. Civ. P.

“A genuine issue of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for the
nonmoving party.’”

Basnight v. Diamond Developers, Inc., 146 F.

Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).

In determining a motion

for summary judgment, the court views the “evidence in the light
most favorable to the non-moving party, according that party the
benefit of all reasonable inferences.”

Id.

Summary judgment

should be denied “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail
under any circumstances.”

Guessford v. Pennsylvania Nat. Mut.

Cas. Ins. Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting
Campbell v. Hewitt, Coleman & Associates, Inc., 21 F.3d 52, 55
The VA notes that Pugh’s response was filed one day late, that many
of the attached exhibits violate local rules in that they contain
unredacted personal identifiers, and that some of the exhibits Pugh cites
are not attached. (Doc. 42 at 2 n.1). In light of the court’s ruling
granting summary judgment, these contentions need not be addressed.
13

15

(4th Cir. 1994)).
B.

Race and Age Discrimination

Pugh claims race discrimination under Title VII, 42 U.S.C.
§ 2000e-16, which provides that “[a]ll personnel actions affecting
employees . . . shall be made free from any discrimination based
on race, color, religion, sex, or national origin.”

He claims age

discrimination under the federal-sector provisions of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(a),
which provides that “[a]ll personnel actions affecting employees
or applicants for employment who are at least 40 years of age . .
. shall be made free from any discrimination based on age.”

Pugh

offers no direct evidence of race or age discrimination.

As a

result, he must proceed under the McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), framework.

If he can establish a prima facie

case of discrimination, the burden shifts to the defendant to
produce evidence that it took the adverse employment action for a
legitimate, nondiscriminatory reason.

See, e.g., St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-54 (1981).

If the defendant

meets this burden of production, Pugh must prove by a preponderance
of the evidence that his employer’s stated reason for taking the
adverse employment action was a mere pretext for discrimination.
See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000); Hill v. Lockheed Martin Logistics Mgmt., Inc.,
16

354 F.3d 277, 285 (4th Cir.2004) (en banc), abrogated on other
grounds by Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338
(2013). An adverse employment action is a discriminatory act which
“adversely affect[s] the terms, conditions, or benefits[] of the
plaintiff’s employment.”

James v. Booz-Allen & Hamilton, Inc.,

368 F.3d

Cir.

371, 375

(4th

2004)

(internal quotation

marks

omitted).
To establish a prima facie case of race or age discrimination,
a plaintiff must show that (1) he is a member of the protected
class; (2) he was subject to some adverse job action; (3) at the
time of the action, he was performing at a satisfactory level and
meeting his employer’s legitimate expectations; and (4) he was
rejected

under

circumstances

giving

rise

to

an

inference

of

unlawful discrimination. See Coleman v. Maryland Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010); Bryant v. Aiken Reg'l Med.
Centers Inc., 333 F.3d 536, 545 (4th Cir. 2003); Karpel v. Inova
Health

Sys.

Servs.,

134

F.3d

1222,

1228

(4th

Cir.

1998).

Similarly, to demonstrate a prima facie case of failure to hire or
promote, a plaintiff must show: (1) he is a member of a protected
group; (2) he applied for the position; (3) he was qualified; and
(4) the defendant rejected his application under circumstances
that give rise to an inference of unlawful discrimination.

See,

e.g., Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
319 n.6 (4th Cir. 2005).
17

The VA argues that none of the actions that Pugh complains of
constitutes an adverse action.

(Doc. 27 at 10.)

It also argues

that, even if any of the actions were adverse, Pugh cannot show
that he was performing at a satisfactory level and meeting the
VA’s legitimate expectations because he was detailed away from the
VIST

Coordinator

position

due

to

allegations

that

he

was

mismanaging the program, which led to two separate investigations
of his department.
allegations of

The VA also argues that, aside from the

mismanagement of VA funds and improper vendor

relations, there were other concerns with Pugh’s performance.
points

to

the

declaration

of

Haigh

who,

as

the

It

Durham VA’s

Assistant Director and sometimes Acting Associate Director , cites
concerns that Pugh provided veterans treatment in the CAT program
“over years without clear treatment plans or defined end points;”
his long-term treatments were increasing costs; he used the CAT
program more as a social gathering than a “clinical direct training
with defined goals and objectives;” and his poor scheduling and
consult referral practices - most notably, his failure to schedule
consults with Moton and enter orders and progress notes for his
patients into the VA’s computerized patient record system in a
timely fashion.

(Doc. 29-1 ¶¶ 4–6.)

As to the failure to promote claim, the VA argues that Pugh
cannot show that his performance was satisfactory, or that he was
qualified, for the VIST job or promotion to GS-13 because he was
18

detailed away from the VIST job as a result allegations that he
was failing to properly manage the program that raised serious
concerns about his performance in his role.

(Doc. 27 at 11.)

The

VA also emphasizes that Pugh cannot point to a similarly-situated
comparator who received more favorable treatment.

(Id. at 11–12

(citing Haywood v. Locke. 387 F. App’x 355, 359 (4th Cir. 2010)
(noting

that

respects”).)

a

comparator

must

be

“similar

in

all

relevant

In the event that Pugh can state a prima facie case

on this claim, the VA argues, it has proffered a legitimate,
nondiscriminatory reason for its decision not to return him to the
VIST

position:

VA management had

“lost confidence” in Pugh’s

ability to continue doing the job well.

(Id.)

Pugh argues that the VA “did not present any evidence to
oppose Plaintiff’s claim that [the Durham VA] treated AfricanAmericans

differently

differently.”

or

that

it

(Doc. 35 at 11–12.)

treated

persons

over

41

Pugh further argues that “in

appropriate circumstances, the trier of fact can reasonably infer
from

the

falsity

of

the

explanation

that

the

dissembling to cover up a discriminatory purpose.”

employer

is

(Id. at 11

(citing Wright v. West, 505 U.S. 277, 297 (1992).)
Pugh also contends that the VA’s reasons for its actions are
pretextual.

First, he denies he mishandled the VIST program.

(Doc. 35 at 15–16.)

Second, he argues that the amount of money

being spent on each veteran in his program was lower than the
19

national average and that he was operating the program pursuant to
requirements mandated by the Deputy Undersecretary for Health
Operations and Management in a memorandum dated June 1, 2004.
(Docs. 41-3, 41-4.)

Third, he argues that Moton could have

accessed “the roster to determine if there were other patients who
he needed to contact for his services,” and that the lack of
referrals to Moton was not his (Pugh’s) fault.

(Doc. 35 at 16.)

Fourth, he argues that the VA’s claim that it had lost confidence
in his ability to manage the VIST program is pretext, as there was
no evidence that he was unable to perform well in his role.

Fifth,

he argues that the VA purposefully denied him the opportunity to
grandfather him in as a Hybrid Title 38 employee. Sixth, he argues
that the VA Central Office report did not recommend removing him
as VIST Coordinator, but instead recommended that the Durham VA
“[o]ffer counseling and support to the VIST Coordinator.”
17.)

(Id. at

Thus, to the extent that the Durham VA relied on the VA

Central Office report to remove him from the position of VIST
Coordinator, Pugh claims, it was mistaken.

Seventh, Pugh argues

that the leave policy did not require 30-days’ notice for an
employee to take annual leave, and that Dr. Kurian must have been
referencing the wrong policy.
treatment

of

discrimination.

him

gives
Ninth,

Eighth, he argues that Dr. Kurian’s

rise
he

to

the

argues

that

inference
the

VA

of

racial

intentionally

detailed him away from his role as VIST Coordinator just before he
20

would have been grandfathered and boarded into a Hybrid Title 38
Blind Rehabilitation Specialist, which, he claims, gives rise to
an inference that the Durham VA was trying to prevent him from
being grandfathered in and boarded.
(who

Tenth, he argues that Moton

is also African-American) is similarly situated

and was

treated better because he was not detailed away from his position
during the two investigations.14
Pugh also argues that the Inspector General’s report notes
that on December 12, 2012, the Director of the Durham VA, Deanna
Seekins, and Haigh were informed that “the preliminary inquiry
would be closed pending receipt of documentation from the Durham
[VA] that could be used to prove whether [a VA vendor] conspired
with any employee of the VA to intentionally funnel unneeded
training or any information that indicated Veterans were not issued
equipment for which the VA paid.”
45).)

Pugh

argues

that

(Doc. 47 at 5 –6 (quoting Doc.

allowing

“Moton’s

unsubstantiated

allegations to be the thing [the VA] used to permanently remove
[him] from his position” demonstrates pretext.

(Id. at 6 (citing

Reeves, 530 U.S. at 147 (noting that “in appropriate circumstances,
the trier of fact can reasonably infer from the falsity of the

A plaintiff is not required, as a matter of law, to point to a
similarly-situated comparator in order to prevail on a discrimination
claim. Bryant, 333 F.3d at 545. However, Pugh is incorrect that Moton,
who is not blind, is a similarly-situated comparator for these age and
race claims, as he is African-American, like Pugh, and Pugh does not
argue that he is under 40 years of age.
14

21

explanation

that

the

employer

is

dissembling

to

cover

up

a

discriminatory purpose”)).)
After careful consideration of Pugh’s contentions, the court
concludes that summary judgment is warranted on these claims.

The

VA is correct that, putting aside Pugh’s reassignment to Education,
the actions in question (e.g., restricted access to the Surgical
Service

during

the

investigations,

termination

of

Pugh’s

compressed tour of duty, loss of ability to schedule appointments,
and being contacted about attempts to take leave) are not adverse
employment actions because they do not “adversely affect[] the
terms, conditions, or benefits[] of the plaintiff’s employment.”
James, 368 F.3d at 375 (internal quotation marks omitted).

Pugh

relies heavily on his contention that being detailed away from his
GS-12 position as VIST Coordinator to the GS-11 position of Special
Emphasis Program Coordinator represents a reduction in position or
opportunity.

This is not apparent, as Pugh maintains his GS-12

status,

even

and

though

his

new

position

was

subsequently

reclassified as a GS-11 position, he is still paid as a GS-12
employee and remains eligible to apply for a GS-13 position from
his

current

position.15

Even

if

the

court

assumes,

without

At the hearing on these motions, Pugh argued that the position he now
holds is a GS-11, but agreed that he is presently classified as a GS12. Pugh agreed that he could still apply for a GS-13 position, but
argued that had he not been detailed away from his VIST Coordinator
position during the Hybrid Title 38 boarding process, the VA could have
looked holistically at his job duties and performance and decided that
his position as VIST Coordinator should have been reclassified as a GS15

22

deciding, that this reassignment represents a decrease in level of
responsibility as well as a loss of opportunity to be promoted,
Pugh has not demonstrated evidence that the VA took this action
under

circumstances

that

discrimination of any type.

give

rise

to

an

inference

of

See Jiminez v. Mary Washington Coll.,

57 F.3d 369, 383 (4th Cir. 1995).
Pugh contends that “investigation” overstates the inquiries
by the VA Central Office and Inspector General and notes that he
was never charged with any criminal wrongdoing.

But there is no

dispute that Pugh’s department was subject to a site visit and an
Inspector General inquiry due to concerns about his management.
As such, the record shows that the reason Pugh was detailed away
from his VIST Coordinator position was simply that the VA was not
satisfied with his performance.

Criminal wrongdoing is not the

standard for taking action against an underperforming employee.
Pugh may have a different view, but “‘[i]t is the perception of
the decision maker which is relevant,’ not the self-assessment of

13 position.
The only evidence provided to support this claim is a
document, from the VA Central Office, that lays out the descriptions of
the criteria for different GS levels of Blind Rehabilitation Specialists.
(Doc. 40-8.) This argument is pure speculation. The VA has produced
evidence in the form of a declaration from the Chief Human Resources
Officer at the Durham VA stating that because Pugh held a GS-12 position
for over a year, he has credit for that service and so he is able to
apply, and qualify, for a GS-13 position as well as he could have from
his VIST Coordinator position. (Doc. 28-4 ¶¶ 16–17.) As such, while
the court assumes, without deciding, that the change in GS level of the
position that Pugh holds could have been an adverse action, it appears
likely that it was not.

23

the plaintiff.”

Evans v. Techs. Applications & Serv. Co., 80 F.3d

954, 960–61 (4th Cir. 1996) (quoting Smith v. Flax, 618 F.2d 1062,
1067 (4th Cir. 1980)).
Even if Pugh could make out a prima facie case, the VA has
offered legitimate, detailed, non-discriminatory reasons for its
actions.

It had simply lost faith in his ability to perform his

job - a conclusion confirmed by two independent inquiries.

Pugh’s

arguments of pretext – which are merely denials or disagreements
with the VA’s well-documented actions - are unavailing.
For all these reasons, Pugh has not demonstrated that a
genuine dispute of material fact exists, and the VA’s motion for
summary judgment as to the race and age discrimination claims will
be granted.
C.

Disability Discrimination
1.

As

a

Failure to Accommodate

federal

employee,

Pugh’s

disability

discrimination

claims may be brought under the Rehabilitation Act of 1973, 29
U.S.C. § 701.

To establish a prima facie case of disability

discrimination under the act, as it relates to a failure to
accommodate, a plaintiff must show that (1) he was disabled within
the meaning of the

act;

(2) his

employer had notice of his

disability; (3) with reasonable accommodation he could perform the
essential functions of the position; and (4) the employer refused
to make such accommodation.

Rhoads v. F.D.I.C., 257 F.3d 373, 387
24

n.11 (4th Cir. 2001).
The VA argues that Pugh cannot meet the third and fourth
prongs.

It contends that Pugh, per VA policy, was detailed away

from his position as VIST Coordinator while the CAT program was
being investigated and that the VA tried to make accommodations
for his disability while he was detailed to Logistics.
at 14.)

(Doc. 27

When it became aware that the position in Logistics was

a poor fit for Pugh, it contends, it immediately detailed him to
another position in the Education section that suited him better.
(Id.)

While Pugh does not address this claim at length, he argues

that his initial placement in the warehouse did not make any
accommodation for his disability.

(Doc. 35 at 12–13.)

He also

argues that the warehouse was a dangerous location for him to work
and that he never should have been sent to work there.

(Id.)

The court concludes that the VA’s motion for summary judgment
should be granted on this claim.

Even if the warehouse (or more

accurately, getting to it)16 would have presented a risk for Pugh,
he appears to have been detailed there briefly before the VA
assigned him to a position in the Education section.

Further, the

declaration from the Durham VA’s Chief Human Resources Officer,
who was involved in finding the proper place to locate Pugh while
his program was under investigation, notes that it can be difficult

The record reflects, and Pugh does not dispute, that transportation
was provided him. (Doc. 28-2 at 22-23.)
16

25

to find a place for an employee who has to be detailed away from
his usual position as a result of an investigation.

(Doc. 28-4.)

Given this difficulty, and the fact that Pugh was on leave at the
time that he was initially detailed away from the VIST position,
the failure to accommodate claim fails.
2.
To

Disability Discrimination

establish

a

prima

facie

case

of

disability-based

discrimination (which also is analyzed under the McDonnell Douglas
burden-shifting framework), a plaintiff must establish that he (1)
is disabled within the meaning of the act, (2) was otherwise
qualified for the position; and (3) suffered an adverse employment
action solely on the basis of disability.

Baird ex rel. Baird v.

Rose, 192 F.3d 462, 467 (4th Cir. 1999); Doe v. Univ. of Maryland
Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); Perry v.
Computer Scis. Corp., 429 F. App'x 218, 220 (4th Cir. 2011) (citing
Constantine v. Rectors & Visitors of George Mason Univ. , 411 F.3d
474, 498 (4th Cir. 2005)).
The VA argues that Pugh cannot establish that he was otherwise
qualified for the VIST Coordinator position because he was not
meeting the VA’s performance expectations, as evidenced by the
fact that his program was subject to two investigations.

The VA

also argues, as it did on the failure to accommodate claim, that
Pugh’s

detail

to

Logistics,

and

then

to

Education,

was

not

discriminatory because the VA was simply trying to find work that
26

he could do.

Even if Pugh can make a prima facie case, the VA

argues, it had non-discriminatory reasons — Pugh’s performance —
for its actions, and Pugh cannot demonstrate they were pretextual.
(Doc. 27 at 16.)

Pugh argues that, while he was on leave for

almost five months, the VA could, and should, have found him a
more reasonable accommodation than the Logistics position, where
he was given an “unsafe and dangerous environment to work in.”
(Doc. 35 at 12.)
Here, too, there is no genuine dispute of material fact, and
this claim cannot survive summary judgment for reasons very similar
to those explained above for the failure to accommodate claim.
Namely, it is not clear that Pugh has suffered an adverse action.
But even if he has, Pugh’s removal from his VIST Coordinator
position

was

discrimination.

a

result

of

his

performance,

not

disability

There is no indication that the VA’s actions were

at all motivated by Pugh’s disability or that Pugh was placed in
the warehouse because of any disability.

Finally, while Pugh’s

placement in the warehouse may have been ill-advised, the VA acted
promptly to find a more suitable environment for him as soon as he
actually

returned

and

began

working

at

the

warehouse.

Consequently, this claim fails.
D.

Retaliation

Pugh claims retaliation under Title VII.

(Doc. 35 at 13.)

To state a prima facie retaliation claim under Title VII, Pugh
27

must establish that (1) he engaged in a protected activity; (2)
his employer took a materially adverse action against him; and (3)
a causal connection exists between the protected activity and the
adverse action.

Coleman, 626 F.3d 187 at 190; Causey v. Balog,

162 F.3d 795, 803 (4th Cir. 1998); Perry, 429 F. App’x at 220.

If

a plaintiff succeeds in making a prima facie retaliation claim,
the burden shifts to the defendant to produce evidence that its
actions were not retaliatory.

Foster v. Univ. of Maryland-E.

Shore, 787 F.3d 243, 250 (4th Cir. 2015).

If the defendant does

so, then the plaintiff must show by a preponderance of the evidence
that the defendant’s asserted grounds for taking its action were
a

pretext for retaliation.

Id.;

Guessous

v.

Fairview

Prop.

Investments, LLC, 828 F.3d 208, 216–17 (4th Cir. 2016).

To

establish pretext in a Title VII retaliation claim, a plaintiff
must show that his protected activity was a “but-for” cause of the
adverse employment action.

Nassar, 570 U.S. at 358–361 (2013).

When proceeding under the burden shifting framework, this is met
by showing pretext and that discrimination was the “real reason
for the challenged conduct.”

Foster, 787 F.3d at 252.

In the

retaliation context, the standard for what constitutes an adverse
employment action is not as stringent as that for employment
discrimination.

Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 64–68 (2006) (noting that the adverse action component of
Title VII's antiretaliation provision can be satisfied by showing
28

that the employer took “materially adverse” action in response to
an employee engaging in a protected activity “which in this context
means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination”) (internal quotation
omitted).
The VA argues again that it has not taken a materially adverse
action against Pugh.

(Doc. 27 at 22.)

Second, it contends that

detailing him away from his VIST Coordinator position could not
have been retaliatory because it happened before he engaged in
protected activity.

(Id.)

Third, it argues that Pugh cannot show

that he was not selected for the second VIST position, or returned
to his original VIST Coordinator position, because of his EEO
activity.

Instead, the VA contends that Pugh was not conside red

for the open VIST Coordinator position because he still technically
held the VIST Coordinator position at the time he applied, despite
being detailed away from it, while the investigations of the VIST
section were ongoing.

Lastly, the VA argues that neither Pugh’s

detail to the Education section (on October 15, 2012) nor its
choice to hire a different VIST Coordinator (which occurred in
December 10, 2012), was close enough in proximity to Pugh’s EEO
activity to constitute retaliation, where Pugh made f irst contact
with EEO on July 16, 2012, and filed his formal complaint on
October 30, 2012.
Pugh argues that the VA’s decision not to reinstate him was
29

made on October 22, 2012, when it posted that it was hiring a VIST
Coordinator.

(Doc. 35 at 13.)

He also notes that the VA hired a

new VIST Coordinator five months after the results of the first
investigation of the VIST program were published in a report.
In a retaliation claim, timing is key.

At the outset, it is

clear that many of the actions Pugh complains of took place before
he filed his first EEO complaint. Specifically, the alleged denial
of his sick leave, the limitation on his access to Surgical
Services, termination of his compressed tour of duty, and his being
detailed away from his position as VIST Coordinator all took place
before he filed his first EEO complaint.

As such, there can be no

causal connection between those actions and Pugh’s engag ement in
protected activity.
Further, as has already been discussed, the VA has produced
evidence that it removed Pugh from his position as VIST Coordinator
and declined to reinstate him to that position because of “several
significant deficiencies” in performance, as identified by the VA
Central Office inquiry.

(Doc. 27-2 at 160.)

The VA determined

that the deficiencies were “primarily performance related and not
of a deliberate conduct issue,” but that “management ha[d] lost
confidence
program.”

in

[his]

ability

to

successfully

manage

the

VIST

(Id.)

Pugh argues that the VA’s reasons for not reinstating him as
VIST

Coordinator were pretextual
30

because they are too vague.

However,

the

record

demonstrates

that

the

VA

had

legitimate

concerns about Pugh’s performance as VIST Coordinator, which led
it to believe someone else should fill the position.

See Evans,

80 F.3d at 960 (noting that it is “the perception of the decision
maker which is relevant”).

Thus, Pugh cannot show that but-for

his having filed his EEO complaint, he would have been reinstat ed
to his position as VIST coordinator.

Foster, 787 F.3d at 250.

For these reasons, the VA’s motion for summary judgment on
Pugh’s claim of retaliation will be granted.
E.
To

Hostile Work Environment
survive

summary

judgment

on

Plaintiff’s

hostile

work

environment claim, Pugh needs “to demonstrate that a reasonable
jury could find that they suffered workplace harassment that was
‘(1) unwelcome, (2) based on race [or other protected status], and
(3) sufficiently severe and pervasive to alter the conditio ns of
employment and create an abusive atmosphere.’ [He] also need[s] to
demonstrate that ‘there is some basis for imposing liability’ on
[the defendant] for this harassment.”

White v. BFI Waste Services,

LLC, 375 F.3d 288 (4th Cir. 2004) (quoting Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 183 (4th Cir.2001)).

The Fourth Circuit

recently noted that to prevail on a hostile work environment claim,
a plaintiff must establish that “the workplace is permeated with
discriminatory

intimidation,

ridicule,

and

insult

that

is

sufficiently severe or pervasive to alter the conditions of [his]
31

employment and create an abusive working environment.”

Boyer-

Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
The VA argues that Pugh has failed to show that he was the
victim of harassment based on his race, age, or disability.

(Doc.

27 at 17–18 (citing Gilliam v. S.C. Dep’t of Juvenile Justice, 474
F.3d 134, 142 (4th Cir. 2007)).)

It further argues that the

alleged harassment was not sufficiently severe or pervasive to
alter the conditions of his employment and create an abusive
atmosphere, noting that “the standard for proving [a hostile] work
environment is intended to be a high one” and the conduct must be
“extreme.”

(Id. at 18–19 (citing Karim v. Staples, Inc., 210 F.

Supp. 2d 737, 752 (D. Md. 2002); EEOC v. Sunbelt Rentals, Inc.,
521

F.3d

306,

unprofessional

315-16

(4th

conduct

discrimination)).)

Cir.
does

2008)

(noting

that

not

amount

to

rude

or

illegal

Pugh argues that Dr. Kurian’s alleged conduct

(such as questioning his ability to take leave, calling him a “lone
wolf,” stating that the VA needed to “reel his ass in,” and
generally being unfair towards him) establishes a hostile work
environment claim.
The court will grant the VA’s motion for summary judgment on
this claim, as Pugh has failed to proffer evidence sufficient to
make out a prima facie case.

None of these allegations, accepted

as true for the purposes of this motion and either alone or
32

collectively, is sufficiently severe or pervasive to give rise to
a hostile work environment claim.
F.

Whistleblower Protection

Finally, Pugh contends he has brought a claim under the
Whistleblower Protection Act.

The VA argues that, to the extent

the complaint alleges such a claim, it must be dismissed because
Pugh did not first exhaust his administrative remedies.
U.S.C. §§ 1214(a)(3)(i–ii) & 1214(a)(3)(B).

See 5

The VA also notes

that “because the district court lacks jurisdiction to hear Pugh’s
whistleblower claim in the first instance, it also lacks the power
to excuse his failure to exhaust his administrative remedies.”
(Doc. 42 at 2–3 (citing Stella v. Mineta, 284 F.3d 135, 144 (D.C.
Cir. 2002)).)

Pugh contends that he did not file a claim under

the act with the Merit Systems Protection Board because “he had
dual claims of discrimination” and is permitted to proceed in this
court.

(Doc. 47 at 3.)

Even if Pugh is assumed to have exhausted his administrative
remedies as to this claim, the problem is that it is not before
the court.
victim

of

Secretary,

While the complaint mentions that Pugh has been the
“Reprisal/Retaliation”
Congress,

the

Blind

for

his

Veterans

contacting

Association,

the
and

VA
the

National Blind Rehabilitation Service Central Office, it seeks
recovery under several specific federal laws but contains no claim
under the Whistleblower Protection Act.
33

To the contrary, it

alleges that Pugh had a second EEO complaint pending at the time
he filed the present action and that this other EEO complaint
included a “Whistleblower Protection” claim. (Doc. 2 at 4.) 17 This
court has already ruled, however, that Pugh’s second EEO complaint
is not before the court.

(Doc. 22.)

Therefore, the court finds

that Pugh has not included a claim under the act in his complaint
in this case.
III. CONCLUSION
This

case

began as

an

effort by

the

VA

to

investigate

questionable actions of a long-term employee permitted to work
with little oversight.

Management’s heightened concerns led it to

call in the VA’s Central Office for an independent investigation,
which in turn recommended an inquiry by the Office of Inspector
General over possible financial wrongdoing.
reports

and

recommendations

of

these

As a result of the

inquiries,

on

top

of

previously-existing concerns over the employee’s performance, the
Durham VA lost confidence in the employee’s ability to perform his
job

and

reassigned

responsibility.

him

to

a

position

of

equal

pay

and

In response to the VA’s effort to root out poor

performance and modify its practices to improve patient services,
the employee resisted and claims these changes were pretextual and

Oddly, the second EEO complaint does not actually contain any reference
to any sort of whistleblower protection claim.
17

34

the product of discrimination against him.

Based on this record,

no reasonable jury could reach that conclusion.
For the reasons stated, therefore,
IT IS ORDERED that the Secretary’s motion for summary judgment
(Doc. 26) is GRANTED, each of Pugh’s claims is DISMISSED WITH
PREJUDICE, and the motion to strike (Doc. 51) is DENIED as moot.

/s/
Thomas D. Schroeder
United States District Judge
April 5, 2018

35