MEMORANDUM OPINION AND ORDER
Plaintiff initially filed this action pro se alleging that defendant discriminated and retaliated against him when he was not selected for three different nursing assistant positions with the Veterans Administration Medical Center (VA) in Little Rock, Arkansas. On February 10, 2006, the Court granted in part defendant's motion for summary judgment, dismissing plaintiff's race discrimination claim and his retaliation claim on the first nursing position. On December 11, and 12, 2006 a bench trial was held on plaintiff's remaining claims, that is, whether the VA denied plaintiff two nursing assistant positions in retaliation for plaintiff's prior EEO activity and whether plaintiff was denied the third position because of discrimination on the basis of disability.
Plaintiff is African-American
He worked for the VA in Little Rock, Arkansas as an orthopedic nursing assistant from 1985 to 1988. Thereafter, plaintiff worked briefly for the United States Postal Service. He was terminated for falsifying documents because he did not tell the Postal Service about his back injury.
Plaintiff went to work at the VA in Richmond, Virginia in 1995 as a Nursing Assistant and Monitor Technician. He filed an EEO complaint because he was having trouble with a ward clerk. The EEO complaint was settled on November 9, 2001. Plaintiff received monetary compensation and agreed to resign and withdraw his EEO complaint. As part of the Settlement Agreement, the agency provided letters of recommendation from two of plaintiff's supervisors. The agency also agreed to remove any negative documents from plaintiff's official personnel file.
From August 31, 2001 to September 28, 2001 plaintiff was on sick leave. He was on annual leave from October 1, 2001 through October 26, 2001. During that period of time he sought employment with the Little Rock VA.
Plaintiff applied for two GS-5 Nursing Assistant positions, vacancy announcements 01-26 and DEU 02-006-S0. Nancy Bishop, the Nurse Manager at the surgical intensive care unit (SICU), interviewed plaintiff for the first position. On October 11, 2001, plaintiff was notified that his application for position 01-26 was considered but he was not selected for the position.*fn1 Bishop stated that she did not chose plaintiff because he was on extended sick leave. She admitted that he was qualified for the position and that she had received a good recommendation from plaintiff's previous supervisor. Bishop stated that if plaintiff could show good attendance for at least six months elsewhere, she would possibly consider him for a position at a future date. No one was selected for the position.
The same position was reannounced on October 25, 2001, under Certificate No. DEU-02-006-SO and plaintiff applied.*fn2 Bishop had already interviewed plaintiff, so she did not interview him again for the position. Plaintiff was ranked among the top three applicants. Bishop testified that she did not select plaintiff for the second position, because he had been on extended sick leave and she thought plaintiff's leave usage was excessive. Bishop explained that she had a great need for a nursing assistant and that she needed to hire someone she knew would come to work and do the job. Bishop did not select anyone for the position. Her decision not to select plaintiff was approved by her direct supervisor, the Associate Chief of Nursing and by the Chief of Nursing Michael Berube. Bishop stated that she did not know anything about plaintiff's prior EEO complaint at the time she did not select him. By letter dated December 6, 2001, plaintiff was informed that his application was considered but that the position would not be filled.
On February 11, 2002, the VA issued Announcement Number DEU-02-033-SO for ten GS-4 nursing assistants.*fn3 According to the vacancy announcement, the work required "frequent bending, stopping, walking, standing, working in cramped positions and climbing, as well as lifting and moving heavy items."*fn4 All applicants for the Nursing Assistant position had to pass a pre-employment physical before being hired. Plaintiff applied, was found eligible and was referred for consideration. In April or May 2002, plaintiff was selected and offered a Nursing Assistant position pending satisfactory completion of a physical examination.
According to Paul Brown, an Advance Practice Nurse and Manager of the Employee Health Unit, the Human Resources Department refers a candidate to the Employee Health Unit for a pre-placement examination. The results of the examination are compiled and sent back to Human Resources. The Employee Health Unit determines whether a candidate qualifies for the position or requires special considerations or a modification of the position description to fit the candidate's physical capacity.
Around May 16, 2002, plaintiff was given a pre-employment physical. This examination was conducted by Janet Fisher, a registered nurse. The examiner noted that plaintiff had a 40% service connected disability, and that he has been working as a nursing assistant since his back injury about 20 years previously. The examiner also noted that plaintiff works out and exercises daily, and that he knows and uses good body mechanics.*fn5
The Certificate of Medical Examination stated that the nursing assistant job had the following relevant functional requirements: heavy lifting, 45 pounds or over; moderate carrying, 15-44 pounds; pushing; reaching above shoulders; walking (8 hours); and standing (8 hours).*fn6 The examiner concluded that there were no conditions that would limit plaintiff's performance of the job duties and/or would make him a hazard to himself or others, other than that plaintiff must use good body mechanics when lifting. The agency medical officer recommended that plaintiff be hired or retained subject to plaintiff's duty status report that plaintiff could only work 8 hours per day, could not lift, push or pull over 25 pounds, was to avoid prolonged standing or walking that causes knee or lower back pain, and was to adhere strictly to his modified duties. The examiner found plaintiff to be stable as long as he uses good lifting techniques.
Diann Dees, Human Resources Management Specialist, testified that when she received plaintiff's first pre-employment examination, she had concerns about plaintiff's ability to perform the Nursing Assistant functions because of plaintiff's history of knee and back problems. She asked for clarification from the Employee Health Unit. Plaintiff was sent back to the Employee Health Unit for a second physical.
Plaintiff had a second physical examination on May 21, 2002. Paul Brown, an Advance Practice Nurse, testified that he conducted the second examination. An Advance Practice Nurse is one who has a nursing degree and a master's degree. Brown's specialty is primary care, and he testified that he has conducted over 3,000 pre-employment physicals in the last 8 years.
Brown testified that he did an individual assessment of plaintiff. Brown stated that his job was to ensure safety for plaintiff, his co-workers and patients. Brown stated that he and plaintiff came up with a list of limitations that were listed on the CA-17, the Duty Status Report. The CA-17 reflects that plaintiff was able to do the work subject to certain restrictions: an 8 hour work day, no lifting, pushing or pulling in excess of 25 pounds, avoid prolonged standing, walking that precipitates bilateral knee pain or lower back pain and strict adherence to modified duty. Plaintiff denies that he agreed with the restrictions on CA-17. However, he failed to submit additional information in support of his position as he was told he could do. The record reflects that Dr. Watkins talked to plaintiff about the CA-17 ...