Robert Harmon v. Dept. of Veterans Affairs , 301 F. App'x 569 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1938
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Robert Harmon, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Department of Veterans Affairs, * Eastern District of Arkansas.
James R. Nicholson, Secretary of *
Veterans Affairs, * [UNPUBLISHED]
*
Appellees. *
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Submitted: October 15, 2008
Filed: December 4, 2008
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Before MELLOY, BEAM and GRUENDER, Circuit Judges.
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PER CURIAM.
Robert Harmon appeals the district court’s1 grant of summary judgment in favor
of the Department of Veterans Affairs (“Department”) on Harmon’s claims of
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
disability discrimination and retaliation under the Rehabilitation Act, 42 U.S.C. §§
791-794.2 We affirm.
Harmon was diagnosed with HIV/AIDS in December 1996. His disease made
it impossible for him to continue in his position as a practical nurse for the
Department. Through a series of accommodations, however, the Department
continued to employ Harmon in various positions from 1996 to 2004. In January
2004, Harmon became a cancer registry abstractor in the Department’s John L.
McClellan VA Medical Center in Little Rock, Arkansas.
Harmon contends that shortly after he began working at McClellan, his
supervisor, Maureen Coffey, learned of his HIV/AIDS status and his homosexuality,
and she began to shun Harmon. Due to the stigma associated with his sexual
preference and his HIV/AIDS status, Harmon alleges that Coffey stopped training him
and pressured him to increase his work output. In June 2004, Harmon filed an Equal
Employment Opportunity (“EEO”) complaint regarding Coffey’s conduct; however,
the parties subsequently reached an agreement under which Harmon dismissed the
complaint. Around this time, the Department placed Harmon on a Performance
Improvement Program (“PIP”) and assigned Pat Coke to be Harmon’s new supervisor.
As part of his PIP, Harmon attended a cancer registry seminar on September 30,
2004. At the seminar, Harmon aggressively confronted Linda Urekman, a supervisor
at the University of Arkansas for Medical Sciences Cancer Registry, about
disparaging comments that Coffey and Coke allegedly made to Urekman regarding
Harmon’s work product. This incident prompted Urekman and Bettye Belleton,
Urekman’s coworker, to send complaint letters to the Department documenting the
altercation. While the Department was investigating the incident, Harmon filed a
2
Because Harmon did not provide any argument in his briefs regarding the
validity of his sexual orientation discrimination claim, he is deemed to have waived
this issue on appeal. See Fair v. Norris, 480 F.3d 865, 869 (8th Cir. 2007).
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complaint with the Department alleging that Coffey and Coke improperly disparaged
his work performance to Urekman. On December 3, 2004, the Department terminated
Harmon’s employment purportedly as a result of his conduct at the seminar.
Harmon filed an EEO complaint on December 6, 2004, alleging retaliation and
discrimination on the basis of sexual orientation and disability. The Department
denied Harmon’s claims in a final agency letter on November 6, 2006, leading
Harmon to file the complaint in the instant matter. After filing its answer, the
Department filed a motion to dismiss or, in the alternative, for summary judgment.
Because the district court considered affidavits, exhibits and other matters outside of
the pleadings, it construed the Department’s motion as one for summary judgment.
See Fed. R. Civ. P. 12(d).
The district court granted summary judgment to the Department based on its
findings that there were no genuine issues of material fact and that the Department
was entitled to judgment as a matter of law on all of Harmon’s claims. As to his
disability discrimination claim, the district court found that (1) Harmon did not suffer
an adverse employment action because there was no evidence that the Department
failed to train him and (2) Harmon was not disabled under the Rehabilitation Act
because he failed to raise a genuine issue of material fact as to whether his HIV/AIDS
status substantially limited a major life activity or whether the Department regarded
him as being disabled. As to his retaliation claim, the district court found that Harmon
put forth no evidence from which a reasonable jury could conclude that the
Department’s proffered reason for firing Harmon—his conduct at the seminar—was
pretextual.
In this appeal, Harmon argues that summary judgment on his disability
discrimination claim is inappropriate because he raised genuine issues of material fact
regarding whether he was disabled under the Rehabilitation Act and whether the
Department failed to train him. Additionally, Harmon argues that summary judgment
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on his retaliation claim is inappropriate because he raised a genuine issue of material
fact regarding whether the Department’s reason for his termination was a pretext for
retaliation.
We review a district court’s grant of summary judgment de novo, affirming
where “there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338,
342 (8th Cir. 2006). Having carefully reviewed the record, the applicable legal
authorities and the thorough and well-reasoned opinion of the district court, we agree
with the district court that Harmon did not raise a genuine issue as to any material fact
and that the Department was entitled to judgment as a matter of law. Accordingly, we
affirm for the reasons set forth in the district court’s opinion. See 8th Cir. R. 47B.
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