Duke v. Collins

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 23-3888 (DSD/EMB)
Andre Duke,
Plaintiff,
v.
Doug Collins,
Defendant.
ORDER
This 	matter 	is 	before 	the 	court 	upon 	the 	motion 	for 	summary
judgment by defendant Doug Collins, Secretary of Veterans Affairs
(VA). 	Based 	on 	a 	review 	of 	the 	file, 	records, 	and 	proceedings
herein, the court grants the motion.
BACKGROUND
This 	discrimination 	action 	arises 	from 	the 	VA’s 	decision 	to
terminate 	plaintiff 	Andre 	Duke’s 	employment 	as 	a 	supervisory
financial administrative specialist.
The 	VA 	hired 	Duke 	as 	a 	mail 	clerk 	in 	2009. 	He 	later 	became
a 	financial 	administrative 	specialist 	and 	was 	promoted 	to
supervisory 	financial 	administrative 	specialist 	in 	2015. 	Brown
Decl. Ex. 11.
In 	2011, 	the 	Department 	of 	Labor’s 	Office 	of 	Workers’
Compensation Programs (OWCP) approved Duke’s request for workers’
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compensation benefits due to work-related carpel tunnel syndrome,
shoulder 	impingement, 	and 	a 	hand 	and 	ulnar 	nerve 	injury. 	Brown
Decl. 	Ex. 	3, 	at 	2; 	Duke 	Dep. 	at 	45:6-18. 	Duke 	underwent 	surgery
for those injuries in January 2012. 	Brown Decl. Ex. 3, at 2. 	As
part 	of 	the 	benefits 	process, 	Duke’s 	doctors 	recommended 	that 	he
work no more than six hours per day. 	Id. at 2.
On his return to work, Duke asked the VA for accommodations,
which 	are 	separate 	from 	the 	workers’ 	compensation 	process. 	Id.
Duke’s 	chiropractor 	submitted 	a 	letter 	on 	his 	behalf 	describing
Duke’s 	conditions 	as 	“moderately 	severe 	and 	... 	permanent 	in
nature.” 	Id. 	Ex. 	9, 	at 	1. 	The 	chiropractor 	noted 	that 	Duke 	was
limited 	to: 	(1) 	six 	hours 	of 	stooping, 	bending, 	sitting, 	filing,
computer 	work; 	(2) 	lifting 	no 	more 	than 	10 	pounds; 	and 	(3) 	four
hours 	of 	fine 	manipulation, 	repetitive 	hand 	motions, 	reaching,
keyboarding, and typing. 	Id. 	The chiropractor further indicated
that Duke should be allowed “intermittent rest breaks” but he did
not 	restrict 	his 	overall 	work 	hours. 	Id. 	In 	addition 	to 	the
chiropractor’s 	suggestions, 	Duke 	requested 	that 	he 	should 	be
permitted to work most of his hours in the morning and daytime, as
his 	condition 	worsens 	throughout 	the 	day. 	Id. 	Ex. 	10. 	Duke 	did
not 	request 	a 	shortened 	workday, 	nor 	did 	he 	include 	his 	doctors’
earlier notes restricting his work to six hours per day. 	See id.
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In 	September 	2015, 	the 	VA 	provided 	Duke 	with 	interim
accommodations 	while 	it 	attempted 	to 	engage 	with 	Duke 	in 	an
interactive 	process 	to 	determine 	appropriate 	long-term
accommodations. 	The 	VA 	specifically 	allowed 	Duke 	to 	work 	a 	six-
hour 	workday 	with 	two 	hours 	of 	unpaid 	leave, 	among 	other
accommodations 	not 	at 	issue 	here. 	Brown 	Decl. 	Ex. 	3 	at 	2. 	The
Department 	of 	Labor 	compensated 	Duke 	for 	the 	two 	hours 	of 	unpaid
leave 	as 	part 	of 	his 	workers’ 	compensation 	benefits. 	Id. 	Duke
understood 	that 	the 	accommodations 	were 	interim 	in 	nature. 	Duke
Dep. at 213:2-12; Brown Decl. Ex. 1, at 310:11-18.
Over the next three years, Duke proceeded to work within the
bounds 	of 	his 	interim 	accommodations. 	The 	VA 	contends 	that 	the
parties 	were 	basically 	at 	a 	stalemate 	during 	that 	time 	because
Duke 	refused 	to 	provide 	additional 	documentation 	to 	support 	a
permanent six-hour workday.
The, 	in 	May 	2018, 	the 	OWCP 	offered 	Duke 	a 	“new” 	job, 	which
was 	the 	same 	position 	he 	already 	held 	but 	for 	an 	eight-hour
workday. 	Brown 	Decl. 	Ex. 	11. 	In 	other 	words, 	the 	offer 	was
designed to end the interim accommodation limiting Duke’s workday
to 	six 	hours. 	Duke’s 	supervisor 	explained 	that 	the 	interim
accommodation 	could 	not 	continue 	given 	the 	lack 	of 	documentation
supporting 	a 	shortened 	workday. 	Id. 	Ex. 	8, 	at 	1; 	see 	id. 	Ex. 	9.
She 	also 	explained, 	however, 	that 	Duke 	could 	request 	a 	permanent
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accommodation, 	which 	would 	require 	“more 	comprehensive 	medical
documentation.” 	Id. 	Ex. 	8, 	at 	1. 	Duke 	rejected 	the 	offer 	as
“clearly unreasonable” and “harassment.” 	Id. at 3. 	He also stated
that he had filed charges with the office of resolution management.
Id. 	It 	is 	unclear 	why 	he 	did 	not 	simply 	provide 	medical
documentation 	to 	support 	his 	position. 	In 	any 	event, 	on 	May 	31,
2018, 	the 	VA 	granted 	Duke 	another 	interim 	accommodation 	allowing
him 	to 	work 	a 	six-hour 	day 	while 	the 	VA 	awaited 	updated 	medical
information. 	Id. 	Ex. 	19, 	at 	3. 	Duke 	did 	not 	provide 	that
information.
The 	interim 	accommodation 	nevertheless 	remained 	in 	place
until mid-2021 when the VA required Duke to undergo a work capacity
evaluation. 	Id. Ex. 17. 	The doctor who did the evaluation found
that Duke suffered from carpal tunnel syndrome and an ulnar nerve
lesion. 	Id. 	The doctor further concluded that while Duke required
certain 	accommodations, 	he 	was 	able 	to 	work 	an 	eight-hour 	shift.
Id. 	Based 	on 	these 	findings, 	the 	VA 	made 	the 	same 	offer 	to 	Duke
as 	it 	had 	in 	2018: 	same 	position 	with 	accommodations, 	but 	for 	an
eight-hour 	workday. 	Id. 	Ex. 	18. 	Duke 	rejected 	the 	offer, 	again
claiming that it was discriminatory. 	Id. Ex. 19, at 4.
Duke’s 	supervisor 	responded 	that 	the 	VA 	would 	“continue 	to
support 	the 	current 	interim 	accommodation” 	pending 	resolution.
Id. 	Ex. 	20, 	at 	3. 	The 	VA 	again 	asked 	Duke 	for 	updated 	medical
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documentation 	and 	advised 	him 	that 	the 	offer 	of 	“new” 	employment
would 	remain 	open 	for 	thirty 	days. 	Id. 	Ex. 	21, 	at 	1-2. 	The 	VA
also warned that Duke could lose his workers’ compensation benefits
if 	he 	did 	not 	accept 	the 	offer. 	Id. 	at 	1. 	Duke 	did 	not 	accept
the 	offer 	and 	the 	OWCP 	terminated 	his 	benefits. 	See 	id. 	Ex. 	12,
at 1.
Duke appealed that decision. 	The hearing examiner determined
that Duke failed to submit updated medical information supporting
his 	request 	for 	a 	six-hour 	workday 	and 	that 	he 	failed 	to 	provide
evidence 	that 	the 	VA’s 	actions 	were 	driven 	by 	discriminatory
animus. 	Id. at 1-2. 	The examiner found, however, that the offer
of 	employment 	was 	flawed 	because 	it 	did 	not 	enumerate 	the 	duties
to be performed. 	Id. at 2. 	The examiner remanded the matter for
further 	action 	and 	reinstated 	Duke’s 	benefits 	in 	the 	meantime.
Id.
In 	May 	2022, 	Duke 	reluctantly 	agreed 	to 	engage 	in 	the
interactive process to determine appropriate accommodations. 	Id.
Ex. 23, at 1-2. 	The VA again extended Duke’s interim accommodation
during 	the 	process. 	Id. 	at 	1. 	Discussions 	ensued, 	with 	the 	VA
ultimately determining that Duke was able to work for eight hours
per 	day. 	Id. 	Ex. 	26. 	The 	VA 	offered 	the 	following 	alternative
accommodations 	to 	a 	shorted 	workday: 	dictation 	software 	and 	as-
needed breaks to address his limitations in keyboarding and fine-
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hand 	manipulation, 	and 	an 	ergonomic 	assessment 	for 	Duke’s 	home
office along with any equipment prescribed by the assessment. 	Id.
Duke declined the offer and again claimed discrimination. 	Id. Ex.
27, at 3. 	The VA informed Duke that he was no longer entitled to
a six-hour workday and would need to take sick or annual leave if
he failed to work an eight-hour day. 	Id.
Duke continued to work a reduced schedule, which resulted in
the VA finding him absent without leave (AWOL). 	Id. Ex. 28, at 1.
On July 13, 2022, Duke, his supervisor, and an employee relations
specialist 	discussed 	the 	matter. 	Id. 	Ex. 	28. 	Duke 	claimed
discrimination. 	Id. 	And 	the 	VA 	again 	requested 	updated 	medical
information, 	which 	Duke 	again 	refused 	to 	provide. 	Id. 	Multiple
communications 	followed, 	with 	the 	VA 	explaining 	the 	leave 	policy
and Duke maintaining that he was entitled to work a six-hour day.
See 	id. 	Exs. 	29, 	30. 	On 	September 	13, 	2022, 	the 	VA 	filed 	a 	case
report 	concluding 	that 	Duke 	had 	been 	AWOL 	thirty-six 	times. 	Id.
Ex. 31, at 1.
After reviewing the case report, the VA issued Duke a proposed
removal order on September 30, 2022. 	Id. Ex. 33. 	Duke responded
through his attorney, admitting that he continued to work six-hour
days despite the VA’s determination that he could no longer do so,
and contending that he was subject to discrimination. 	See id. Ex.
34; see also id. Ex. 7, at 2-3. 	The VA terminated Duke’s employment
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effective 	October 	20, 	2022, 	concluding 	that 	he 	had 	been 	AWOL 	and
lacked candor in his communications. 	Id. Ex. 35.
Duke appealed his removal to the Merit System Protection Board
(MSPB), 	arguing 	that 	the 	VA 	discriminated 	against 	him 	by 	failing
to 	provide 	reasonable 	accommodations 	and 	creating 	a 	hostile 	work
environment. 	Id. Exs. 38, 39. 	The matter proceeded to a hearing.
See 	id. 	Ex. 	1. 	The 	MSPB 	determined 	that 	the 	VA 	properly 	removed
Duke 	from 	his 	employment 	and 	found 	that 	there 	was 	no 	evidence 	to
support 	a 	finding 	of 	discrimination 	or 	hostile 	work 	environment.
Id. Ex. 5, at 29-30. 	Duke appealed that determination to the Equal
Employment Opportunity Commission (EEOC), which upheld the MSPB’s
decision. 	Id. Ex. 3.
On December 27, 2023, Duke commenced this action. 	His amended
complaint 	alleges 	that 	the 	VA 	engaged 	in 	disparate 	treatment,
maintained a hostile work environment, failed to provide him with
accommodations as required by the Americans with Disabilities Act
(ADA), and 	retaliated against him. 	The VA now moves for summary
judgment.1
1 	Duke failed 	to 	respond to the VA’s motion with 	respect to
his 	retaliation 	and 	disparate 	treatment 	claims. 	See 	ECF 	No. 	43.
As 	such, 	the 	court 	considers 	those 	aspects 	of 	the 	VA’s 	motion 	to
be conceded. 	See Graham v. Rosemount, Inc., 40 F. Supp. 2d 1093,
1101 	(D. 	Minn. 	1999) (holding 	that 	a failure to respond to
arguments constitutes a waiver of the issue).
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DISCUSSION
I. 	Standard of Review
“The 	court 	shall 	grant 	summary 	judgment 	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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the 	case. 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S. 	242, 	248
(1986). 	A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party. 	See
id. at 252.
On a motion for summary judgment, the court views all evidence
and 	inferences 	in 	a 	light 	most 	favorable 	to 	the 	nonmoving 	party.
Id. at 255. 	The nonmoving party, however, may not rest upon mere
denials 	or 	allegations 	in 	the 	pleadings, 	but 	must 	set 	forth
specific 	facts 	sufficient 	to 	raise 	a 	genuine 	issue 	for 	trial.
Celotex, 	477 	U.S.C 	§ 	at 	324. 	A 	party 	asserting 	that 	a 	genuine
dispute exists - or cannot exist - about a material fact must cite
“particular 	parts 	of 	materials 	in 	the 	record.” 	Fed. 	R. 	Civ. 	P.
56(c)(1)(A). 	If a plaintiff cannot support each essential element
of 	a 	claim, 	the 	court 	must 	grant 	summary 	judgment 	because 	a
complete 	failure 	of 	proof 	regarding 	an 	essential 	element
necessarily renders all other facts immaterial. 	Celotex, 477 U.S.
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at 322-23.
II. Failure to Accommodate
Duke 	alleges 	that 	the 	VA 	violated 	the 	ADA 	by 	failing 	to
provide 	a 	reasonable 	accommodation 	and 	failing 	to 	engage 	in 	the
interactive 	process 	for 	finding 	a 	reasonable 	accommodation. 	The
record does not support Duke’s allegations.
A. 	Reasonable Accommodation
To 	establish 	a 	prima 	facie 	case 	of 	failure 	to 	accommodate
under the ADA, Duke must show that (1) he was disabled; (2) he was
qualified 	to 	perform 	the 	essential 	functions 	of 	the 	job, 	with 	or
without 	reasonable accommodation; 	and 	(3) 	he 	suffered 	an 	adverse
employment action due to his disability. 	Huber v. Wal-Mart Stores,
Inc., 486 F.3d 480, 482 (8th Cir. 2007); Burchett v. Target Corp.,
340 F.3d 510, 516 (8th Cir. 2003). 	The first two elements are not
in 	dispute, 	nor 	is 	the 	fact 	that 	Duke 	suffered 	an 	adverse
employment 	action. 	The 	only 	issue 	is 	whether 	Duke 	was 	removed
from 	his 	position 	due 	to 	his 	disability. 	The 	record 	does 	not
support a causal connection between his disability and removal.
The record shows that Duke was removed because he was AWOL on
dozens of occasions in direct violation of the VA’s leave policy.
He 	was 	also 	removed 	for 	lack 	of 	candor. 	The 	VA 	spent 	years
accommodating Duke’s disability on an interim basis and those same
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years 	attempting 	to 	engage 	in 	the 	interactive 	process 	to 	find 	a
permanent 	solution 	for 	his 	needs. 	The 	VA’s 	ongoing 	request 	to
Duke 	was 	simple: 	provide 	updated 	medical 	records 	to 	support 	the
claim that he would only work a six-hour day. 	He failed to do so.
When 	the 	interim 	accommodations 	ended, 	the 	VA 	notified 	Duke 	that
he 	could 	no 	longer 	work 	six-hour 	days 	and 	that 	any 	leave 	he 	took
would have to be annual or sick leave. 	Notwithstanding this, Duke
continued 	to 	work 	six-hour 	days 	without 	taking 	appropriate 	leave
for 	the 	remaining 	two 	hours 	of 	his 	shift.2 	When 	it 	became 	clear
that 	Duke 	would 	not 	comply 	with 	all 	of 	his 	job 	requirements 	and
refused 	to 	provide 	updated 	medical 	information 	to 	support 	the
request 	for 	a 	shorter 	shift, 	the 	VA 	decided 	to 	terminate 	his
employment. 	That 	decision 	was 	reviewed 	twice 	by 	government
agencies 	and 	upheld 	both 	times. 	The 	court’s 	review 	yields 	the
same 	result. 	There 	is 	no 	hint 	in 	the 	record 	of 	discriminatory
animus. 	Duke 	thus 	has 	failed 	to 	establish 	a 	prima 	facie 	case 	of
discrimination under the ADA.
2 	The 	fact 	that 	the 	VA 	allowed 	Duke 	to 	work 	six-hour 	days
for several years did not require it to continue doing so without
justification. 	See 	Lipp 	v. 	Cargill 	Meat 	Sols. 	Corp., 	911 	F.3d
537, 	546 	(8th 	Cir. 	2018) 	(citations, 	alterations, 	and 	quotations
omitted) 	(“If 	an 	employer 	bends 	over 	backwards 	to 	accommodate 	a
disabled worker ... it must not be punished for its generosity by
being deemed to have conceded the reasonableness of so far-reaching
an accommodation.”).
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B. 	Interactive Process
“When 	an 	employee 	requests 	an 	accommodation, 	the
Rehabilitation 	Act 	requires 	employers 	to 	consider 	potential
solutions 	by 	engaging 	in 	an 	‘informal, 	interactive 	process.’”
Leblanc 	v. 	McDonough, 	39 	F.4th 	1071, 	1077 	(8th 	Cir. 	2022).
(citing 29 C.F.R. § 1630.2(o)(3)). 	To establish that the VA failed
to 	engage 	in 	the 	interactive 	process, 	Duke 	must 	show 	that 	the 	VA
did 	not 	make 	a 	“good 	faith 	effort” 	to 	assist 	him 	in 	seeking
accommodations and he “could have been reasonably accommodated but
for” the VA’s lack of good faith. 	Leblanc v. McDonough, 39 F.4th
1071, 1077 (8th Cir. 2022).
The record firmly establishes that the VA tried over a period
of 	seven 	years 	to 	work 	with 	Duke 	in 	good faith to 	find 	an
acceptable permanent accommodation. 	It provided him with numerous
lengthy 	interim 	accommodations 	and 	sent 	him 	numerous
communications 	explaining 	the 	accommodation 	process 	and 	what 	he
needed 	to 	provide 	to 	support 	his 	requested 	accommodation. 	Based
on 	this 	record, 	the 	court 	cannot 	conclude 	that 	the 	VA 	failed 	to
engage in an interactive process. 	If anything, the record supports
the 	conclusion 	that 	Duke 	failed 	to 	engage 	with 	the 	VA 	in 	good
faith. 	He failed to submit updated medical records time and time
again, instead deciding to simply follow his unfounded belief that
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he was entitled to work six-hour days, even when consistently told
he could not do so. 	This aspect of his ADA claim also fails.
III. Hostile Work Environment Claim
Duke alleges that he was subject to a hostile work environment
based on his subjective belief that his superiors harassed him and
engaged 	in 	vindictive 	behavior. 	The 	record 	is 	devoid 	of 	any
support for this claim.
To establish a hostile work environment claim, Duke must show
that 	(1) 	he 	is 	a 	member 	of 	a 	protected 	class; 	(2) 	he 	experienced
unwelcome 	harassment; 	(3) 	the 	harassment 	was 	based 	on 	his
disability; 	(4) 	the 	harassment 	affected 	a 	term, 	condition, 	or
privilege 	of 	her 	employment; 	and 	(5) 	the 	VA 	knew 	or 	should 	have
known 	of 	the 	harassment 	and 	failed 	to 	act. 	Dowd 	v. 	United
Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1101 (8th Cir.
2001). 	The 	harassment 	“must 	be 	extreme 	to 	amount 	to 	a 	change 	in
the terms and conditions of employment.” 	Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998). 	The conduct must be both severe
and 	pervasive, 	viewed 	objectively 	and 	subjectively. 	Howard 	v.
Burns 	Bros., 	Inc., 	149 	F.3d 	835, 	840 	(8th 	Cir. 	1998). 	“When 	the
workplace 	is 	permeated 	with 	‘discriminatory 	intimidation,
ridicule, and insult, ... that is sufficiently severe or pervasive
to 	alter 	the 	conditions 	of 	the 	victim’s 	employment 	and 	create 	an
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abusive 	working 	environment, 	... 	Title 	VII 	is 	violated.” 	Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations
and quotation marks omitted).
Duke 	has 	utterly 	failed 	to 	establish 	that 	he 	was 	harassed
within 	the 	meaning 	of 	the 	law. 	The 	communications 	in 	the 	record
show 	that 	the 	VA 	politely 	tried 	to 	engage 	him 	in 	the 	interactive
process 	and, 	when 	that 	failed, 	the 	VA 	explained 	to 	him 	that 	he
needed to follow the VA’s standard leave policy. 	His feelings of
being 	harassed 	are 	simply 	not 	supported 	by 	the 	language 	in 	those
communications – none of which included disparaging remarks about
his disabilities. 	Nor is there any evidence of vindictiveness.
As explained by the EEOC, “asking [Duke] to provide additional
medical 	documents, 	instructing 	him 	to 	abide 	by 	standard 	leave
procedures, 	finding 	him 	AWOL, 	subjecting 	him 	to 	fact-finding
investigations, and requiring that he work a complete 8-hour shift
... did not rise to the level of unlawful harassment.” 	Brown Decl.
Ex. 3, at 9. 	No reasonable jury could conclude otherwise.
CONCLUSION
Accordingly, based on above, IT IS HEREBY ORDERED that:
1. 	The motion for summary judgment [ECF No. 33] is granted;
and
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2. 	This case is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: 	April 9, 2026 	/s Paul A. Magnuson for
David S. Doty, Judge
United Stated District Court
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