     Case: 12-50495     Document: 00512038180         Page: 1     Date Filed: 10/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 31, 2012

                                     No. 12-50495                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ARVIND KUMAR, M.D.,

                                                  Plaintiff - Appellant
v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                  Defendant - Appellee



                    Appeal from the United States District Court
                   for the Western District of Texas, San Antonio
                              USDC No. 5:10-CV-738


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Arvind Kumar, M.D., appeals the summary judgment dismissing his
hostile work environment claim under the Americans with Disabilities Act.
        Dr. Kumar is a medical doctor who was previously employed in the
Primary Care section at a Veterans Administration facility in Ohio. He was
diagnosed with carpal tunnel syndrome in his right wrist and an ulnar nerve




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-50495

injury to his right arm. These injuries made it difficult for him to perform the
heavy typing required as part of his responsibilities as a primary care physician.
       Dr. Kumar applied for positions in the Compensation and Pension (C & P)
sections at VA facilities in San Antonio, Texas, and Las Vegas, Nevada. He was
offered both positions but chose the one in San Antonio based on his
understanding that he would be in the C & P section, which required much less
typing than a position in the Primary Care section.
       Dr. Kumar presented the following evidence in opposition to the VA’s
motion for summary judgment on his hostile environment claim:
•      Threats to his job. A few weeks after he began work in San Antonio in
       April 2006, Dr. Kumar was reassigned from the C & P section to the
       Primary Care section. On May 3, 2006, he met with his second-line
       supervisor, Dr. Vicki Hannigan. When he told her about his disability and
       asked to be transferred back to the C & P section because he was
       concerned that he would not be able to perform the heavy typing
       responsibilities that would be required in the Primary Care section, Dr.
       Hannigan became angry, accused him of being deceitful by hiding his
       disability, and threatened his job.
•      Delay in accommodating his disability.             Dr. Kumar requested
       accommodation in May, June, and October 2006, as well as in July 2007.
       He was not provided with any accommodation for more than a year. He
       alleged that the stress and repetition of typing worsened his injuries to the
       point that he had to have surgery in December 2007. Dr. Kumar believed
       that his requests for accommodation were ignored by the VA in the hopes
       that his frustration and pain would force him to leave.
•      Efforts to impugn his professional reputation and the quality of his work.
       Dr. Kumar’s former supervisor in San Antonio, Chief Medical Officer Dr.
       John Garcia, who was replaced by Dr. Teresa Boyd, told Dr. Kumar that

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                                  No. 12-50495

       Dr. Boyd had asked him for “the dirt” on Dr. Kumar. Dr. Garcia also told
       Dr. Kumar that in December 2007, Dr. Hannigan had (unsuccessfully)
       tried to get Dr. Garcia to rate Dr. Kumar as “less than satisfactory.”
•      Unwarranted written counselings.          Dr. Kumar received written
       counselings from Dr. Boyd on June 3 and August 15, 2008. He alleged
       that there was no basis for either of these counselings and that they were
       done for the purpose of targeting him for eventual discharge from his
       position.
       The district court stated that no reasonable fact finder could conclude that
Dr. Kumar’s working environment was so permeated with discriminatory
animus, ridicule, and insult as to become abusive. The district court concluded
that Dr. Kumar’s evidence established, at most, that he was subjected to an
uncomfortable working environment, which is not sufficient to sustain a claim
of hostile work environment in federal court.
       We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Buffalo Marine Servs. Inc. v. United
States, 663 F.3d 750, 753 (5th Cir. 2011). Summary judgment is proper “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).
       Dr. Kumar argues that the summary judgment evidence he presented
demonstrated that his work environment was not merely uncomfortable, but
rather was hostile. He maintains that a reasonable person would find it hostile
and abusive for an employer to threaten to terminate an employee, build a case
for termination against an employee, and ignore an employee’s disability to the
point of physical injury requiring surgery.
       The VA asserts that summary judgment was proper because the evidence
shows that Dr. Kumar was never physically threatened or humiliated, the
alleged hostility occurred sporadically over a 27-month period, he was not

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                                  No. 12-50495

prevented from doing his job, and he was never proposed for termination,
suspended, placed on a performance improvement plan, or formally disciplined.
According to the VA, Dr. Kumar was instructed on May 10, 2006, to provide
information from his physician regarding his limitations, but did not submit the
documentation until July 24, 2007, and, from that date through at least the time
of his federal court deposition in January 2012, Dr. Kumar used the
accommodation of telephone dictation.       The VA argues that Dr. Kumar’s
subjective physical and emotional reactions to the criticism he received in the
workplace do not establish that the work environment would have been
perceived as hostile or abusive by a reasonable employee.
      Based on our review of the briefs and the summary judgment record, we
agree with the district court’s assessment that the conduct alleged by Dr. Kumar
was not sufficiently severe or pervasive to affect a term or condition of Dr.
Kumar’s employment and is therefore insufficient to withstand summary
judgment. See Flowers v. Southern Regional Physician Services, Inc., 247 F.3d
229, 236 (5th Cir. 2001) (stating that “disability-based harassment must ‘be
sufficiently pervasive or severe to alter the conditions of employment and create
an abusive working environment’” (quoting McConathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 563 (5th Cir. 1998)); id. (stating that “[i]n determining
whether a work environment is abusive, this court must consider the entirety
of the evidence presented at trial, including ‘the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an
employee’s work performance’” (quoting Shepherd v. Comptroller of Public
Accounts, 168 F.3d 871, 874 (5th Cir. 1999)).       The summary judgment is
therefore
                                                                    AFFIRMED.



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