Hausburg v. McDonough
| Docket Number | 8:20-cv-2300-JSS |
| Decision Date | 06 June 2023 |
| Parties | DARTANYA L. HAUSBURG, Plaintiff, v. DENIS MCDONOUGH, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Defendant moves for partial summary judgment on Counts III, IV, V, and VII of Plaintiff's Third Amended Complaint and moves to dismiss Plaintiff's claims asserted pursuant to the Back Pay Act as a matter of law. (Motion, Dkt. 91.) Plaintiff opposes the Motion. (Response, Dkt. 99.)[1] The court held a hearing on the Motion on April 21, 2023. (Dkt. 104.) For the reasons that follow, the Motion is granted in part and denied in part.
Plaintiff Dartanya L. Hausburg brings this employment discrimination action against Defendant Denis McDonough, Secretary of the Department of Veterans Affairs (VA), alleging claims arising from Plaintiff's employment at the James A. Haley Veterans Administration Hospital (VAMC) in Tampa, Florida. (Dkt. 32.) Plaintiff alleges that while employed at the VAMC he was “discriminated against based on disparate treatment due to his disability, denial of reasonable accommodation, and reprisal for [Equal Employment Opportunity (EEO)] activities when he was subjected to a hostile work environment from November 1, 2017 to April 18, 2019.” (Id. ¶ 12.) Plaintiff's Third Amended Complaint asserts the following counts that remain at issue in this action[2]: retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) (Count I); retaliatory hostile work environment under Title VII (Count II); violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA) (Count III); failure to reasonably accommodate disability under the Rehabilitation Act of 1973, 29 U.S.C. § 791 (Rehabilitation Act) (Count IV); disability discrimination under the Rehabilitation Act (Count V); and injunctive relief (Count VII). (Id.) Defendant answered the Third Amended Complaint and asserted seven affirmative defenses in response. (Dkt. 47.)
In the Motion, Defendant moves for partial summary judgment on Counts III, IV, V, and VII of the Third Amended Complaint. (Dkt. 91.) Specifically, Defendant argues that partial summary judgment is warranted on Counts IV and V under the Rehabilitation Act to the extent that those counts rely on allegations for which Plaintiff has not adequately exhausted his administrative remedies. (Id. at 11-14.) Plaintiff responds that Defendant's assertion of administrative exhaustion is procedurally improper at the summary judgment stage, that issues of material fact preclude summary judgment on the exhaustion issue, and that any unexhausted allegations sufficiently relate to exhausted allegations in the Third Amended Complaint. (Dkt. 91 at 11-14.) Defendant further argues that summary judgment is proper on Counts IV and V because Plaintiff cannot establish a failure to reasonably accommodate disability or disability discrimination under the Rehabilitation Act. (Id. at 21-24.) Plaintiff responds that material issues of fact remain as to whether he was a qualified individual under the Rehabilitation Act and whether he provided sufficient information to Defendant of his need for a reasonable accommodation. (Dkt. 99 at 18-20.) As to Count III, Defendant argues that Plaintiff cannot establish interference with his FMLA rights and cannot make out a prima facie case of FMLA retaliation. (Dkt. 91 at 21.) Plaintiff responds that material issues of fact preclude summary judgment on Count III and there is both circumstantial and direct evidence of FMLA hostility by Defendant. (Dkt. 99 at 17-18.) As to Count VII, Defendant argues that because Plaintiff has retired and remains medically unfit for duty, any request for injunctive relief is moot. (Dkt. 91 at 24.) Plaintiff responds that he is entitled to prospective relief. (Dkt. 99 at 20.) Finally Defendant seeks to dismiss for lack of subject matter jurisdiction any claims that Plaintiff is asserting for back pay that are brought pursuant to the Back Pay Act, 5 U.S.C. § 5596. (Dkt. 91 at 14-16.) Plaintiff responds that his entitlement to back pay arises under Title VII and this court therefore has jurisdiction to hear the claims. (Dkt. 99 at 15-17.) Upon consideration of the parties' submissions and the arguments of counsel at the hearing, Defendant's Motion is granted in part and denied in part as discussed herein.
FACTUAL BACKGROUND[3]
Plaintiff is a service-connected disabled veteran with diagnosed conditions including post-traumatic stress disorder (PTSD) major depressive disorder, and a panic disorder. (Dkt. 99-3 at 1-2, 89, 90.) Plaintiff began working at the VAMC on October 20, 2014 as a Registered Nurse (RN) in the emergency department. (Dkt. 911 at 50:6-16.) For the October 2014 to October 2015 rating period, Plaintiff received a satisfactory rating on his proficiency report. (Dkt. 99-4 at 2-4.)
In October 2015, the VAMC began an investigation of Plaintiff following allegations of inappropriate and disruptive behavior in the workplace made by two of his co-workers in the emergency department. (Dkt. 94-1 at 6-8.) Plaintiff disputed the allegations and on November 16, 2015, initiated contact with an EEO counselor complaining that he was subjected to a hostile work environment on the basis of his race, sex, and reprisal. (Id. at 10-12.)[4] Plaintiff contended that he had been harassed by the complaining co-workers and his managers in September 2015. (Id.) During the investigation, Plaintiff was temporarily detailed to another area of the VAMC. (Id. at 4.) Following the VAMC's investigation, a Summary Review Board was unable to determine wrongdoing and recommended that Plaintiff continue his employment at the VAMC “but be removed as a registered nurse from all areas of the emergency department.” (Id. at 6-7; Dkt. 99-4 at 72-73.)
In March 2016, Plaintiff was transferred to the VAMC's Progressive Care Unit (PCU) and was placed under the supervision of Nurse Manager Catharine Preston. (Dkt. 91-1 at 59:23-60:10.) Initially, Plaintiff did not have any problems in the PCU or with Preston. (Id. at 60:6-10.) While working in the PCU, Plaintiff's probationary period with the VAMC ended and he became an unrestricted, full-time employee. (Id. at 32:12-33:4.) In September 2016, a VAMC employee union filed a grievance against Plaintiff arising from allegations made by his former co-workers in the emergency department. (Dkt. 91-3 at 1-4.) As a result of the grievance, Plaintiff was instructed not to enter the VAMC emergency department unless necessary for medical care. (Id. at 1-4.) In October 2016, Preston verbally counseled Plaintiff for violating the VAMC's Standard Operating Procedures regarding verification and completion of physician orders. (Id. at 5-6.) No additional discipline was taken for these incidents and Plaintiff's proficiency ratings for 2016 were satisfactory. (Dkt. 99-4 at 1.)
In December 2016, Plaintiff requested FMLA leave to address his medical conditions and attend necessary medical appointments. (Dkt. 94-5 at 17-21.) Plaintiff believed that the FMLA leave was necessary to “manage exacerbations of [his] PTSD which stress in the workplace was now causing [him].” (Dkt. 99-3 at 81.) In support of the request, Plaintiff submitted a certification from his psychiatrist Dr. Andrew Kozel, who opined that Plaintiff required FMLA leave because of his diagnoses of major depressive disorder, panic disorder, and chronic PTSD. (Id. at 87-89.) On January 5, 2017, Plaintiff's request for FMLA leave was approved for 1 episode of FMLA leave per month for a duration of 2 days or 24 hours per episode, and with effective dates of December 22, 2016 through December 21, 2017. (Dkt. 94-5 at 21.)
On October 3, 2017, Preston issued Plaintiff a written counseling for failure to complete required tasks before discharging a patient. (Dkt. 91-3 at 7.) Later in October 2017, a peer review investigated separate allegations that Plaintiff administered a prescription medication to a patient without orders from a physician. (Id. at 8-12.) The review concluded that Plaintiff did not practice outside the scope of his license and recommended no disciplinary action. (Id. at 12.)
On November 8, 2017, another nurse raised concerns about Plaintiff's alleged failure to follow instructions from a physician to administer a blood transfusion to a patient. (Id. at 13.) Prompted by the nurse's report, Preston reviewed Plaintiff's documentation of patient care over the previous three days and identified “many issues while completing a cursory review.” (Id.) In an email to Chief Nurse Christopher Schweighardt, Preston stated that she was “worried about keeping [Plaintiff] in direct care” and suggested the possibility of detailing Plaintiff to a “non-patient care area.” (Id.) Preston continued that she needed “to complete a fact finding” but “since [she] [had] personally completed many fact findings involving [Plaintiff], [she] [thought] it would be best if [she] did not complete this one” because she did not “want it to look as if [she] [was] harassing [Plaintiff].” (Id.) On November 15, 2017, Plaintiff was “temporarily detailed to Nursing Education pending [the] fact finding inquiry, results, and corresponding actions.” (Dkt. 99-4 at 74; Dkt. 94-2 at 1.)
On November 28, 2017, Plaintiff was approved for additional FMLA. (Dkt. 91-8 at 2-3.) At that time, Plaintiff believed that he needed “more family medical leave in part because of stress from being the subject of a number of fact findings which proved to be unsubstantiated.” (Dkt 99-3 at 81.) Beginning on December 22, 2017, Plaintiff was approved for a total of 480 hours of FMLA leave during a 12-month period, with 2 episodes per...
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