New-Howard v. Shinseki, CIVIL ACTION No. 09-5350

• Decision Date: 21 June 2012
• Docket Number: CIVIL ACTION No. 09-5350
• Parties: DEONNE R. NEW-HOWARD, v. ERIK SHINSEKI, SECRETARY of the DEPARTMENT OF VETERANS AFFAIRS.
• Court: U.S. District Court — Eastern District of Pennsylvania

DEONNE R. NEW-HOWARD,
v.
ERIK SHINSEKI, SECRETARY of the DEPARTMENT OF VETERANS AFFAIRS.

CIVIL ACTION No. 09-5350

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: June 21, 2012

MEMORANDUM

AND NOW, this 21st day of June 2012, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 56), Plaintiff's Response Thereto (Doc. No. 72), Defendant's Reply Brief (Doc. No. 79), Plaintiff's Response in Opposition to Defendant's Reply (Doc. No. 84), Defendant's Statement/Supplemental Brief Regarding Plaintiff's Age and Disability Discrimination Claims (Doc. No. 91), Plaintiff's Motion for Summary Judgment (Doc. No. 97), and Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment (Doc. No. 98), it is hereby ORDERED as follows. It is hereby ORDERED that Defendant's motion is GRANTED IN PART and DENIED IN PART. Plaintiff's Cross-Motion for Summary Judgment (Doc. No. 97) is DENIED.

Consistent with the text of the Order that follows, the matter is REMANDED to the MSPB solely for the limited purpose of making findings regarding the denial of Plaintiff's requests for sick leave.

The Clerk of Court is directed to close this case for statistical purposes.

I. Factual Background

A. Prior History

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Plaintiff Deonne New-Howard is a veteran of the federal court system. The story of her history as an employee of the Department of Veteran's Affairs ("VA") is told through the opinions of various judges over the course of nearly 24 years of civil litigation.

Plaintiff began as a GS-3 secretary in the Department of Veteran's Affairs, when she suffered a work-related back injury in 1984. As a result of this injury, Plaintiff received Office of Worker's Compensation ("OWCP") benefits for a period of time extending from mid-1984 to mid-1985. See New v. Principi, No. 99-3782, 2003 WL 22331748, at *1 (E.D. Pa. Oct. 8, 2003). Although New-Howard returned to work on June 4, 1985, she was absent from work following her return for a period of approximately three weeks, after which she was removed on charges that she was absent without leave ("AWOL"). Upon review of the agency decision, her removal was reduced to a reprimand. Plaintiff subsequently returned to work in May 1986, but she was ultimately removed on January 24, 1987 for absences during the previous eight months. Her removal ultimately resulted in a settlement, pursuant to which she was reinstated. Id.

After Plaintiff returned to work, she suffered an aggravation of her injury, and requested a parking space closer to the entrance. When Defendant failed to act upon the request, Plaintiff ceased to appear beginning on July 29, 1987. Id. Defendant eventually made certain accommodations, not the subject of the instant litigation, and ordered New-Howard to return to work. Plaintiff refused to return to work and instituted an action with the Office of Workers Compensation ("OWCP") for benefits. Id. at *2. The VA ultimately terminated Plaintiff without a ruling from the OWCP in February 1988, based upon her unauthorized absences. Id. The Merit Systems Protection Board ("MSPB") upheld her removal, and New-Howard thereafter instituted litigation in district court, based upon claims for handicap discrimination, breach of

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contract, intentional infliction of emotional distress, and negligence. Id.

In the interim, the OWCP ruled against New-Howard on her claim, and New-Howard wrote to the VA requesting reinstatement and restoration rights, which Defendant denied. Id. Plaintiff appealed this decision to the MSPB. The MSPB affirmed the decision of the agency, and the full board affirmed the MSPB decision. Id. In 1992, in response to this decision, Plaintiff filed another complaint in district court seeking review of the MSPB decision, and asserting new claims of discrimination, denial of due process, and retaliation. Plaintiff ultimately lost her claims of discrimination, and New Howard appealed this decision. Id.

At the same time, Plaintiff appealed the determination of the OWCP. While Plaintiff's challenge was pending before the Court of Appeals, the OWCP vacated its earlier decision and held that New-Howard was entitled to compensation for the period extending from October 15, 1987 to October 2, 1990. Id. at *3. The Court of Appeals thus vacated the district court decision and directed the district court judge to remand the case to the MSPB to reconsider its denial of restoration rights. Id.

The MSPB subsequently reopened its decision in 1996 and upheld the VA's denial of restoration rights, despite New-Howard's argument that her denial of restoration rights was improper, given that her removal was the result of her compensable injury. Id. Plaintiff appealed this decision in district court on January 7, 1997, asserting a claim for due process violations, along with claims for sex discrimination, handicap discrimination, and retaliation. These claims were dismissed by the presiding judge. Id. at *4.

Plaintiff appealed the decision again to the Court of Appeals for the Federal Circuit, where she ultimately prevailed on her claim that VA had erred in denying her restoration

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benefits. Id. In particular, the Court held that her removal was related to her compensable injury. However, given that the MSPB had not ruled on whether the VA's alternative ground for her removal was related to her compensable injury, the Court remanded the case to the MSPB to make such a determination. On June 24, 1999, the MSPB determined that her removal for poor attendance was a valid cause for removal unrelated to her compensable injury. Id.

In July 1999, Plaintiff appealed this decision to the district court for the Eastern District of Pennsylvania. In 2003, Judge Dalzell found the decision of the MSPB arbitrary and capricious, remanding the action to the MSPB to reconsider its decision. Id. at *9. Ultimately, on July 11, 2005, the MSPB found that (1) the poor overall attendance charge was not a valid removal for cause unrelated to Plaintiff's compensable injury and (2) Plaintiff was entitled to priority consideration for restoration retroactive to February 15, 1991. (Def.'s Ex. A at MSPB000642-62.)

B. Current Litigation

Pursuant to the MSPB's July 11, 2005 Order, on July 29, 2005, Department of Veterans Affairs Director of Information Technology Carol Waldt wrote New-Howard a letter instructing New-Howard to report to duty to Terris Farmer, Acting Assistant Chief of the Technical Support Division, at 8:00 a.m. on Monday, August 15, 2005. (See Def.'s Ex. A at MSPB000344.) On August 15, 2005, Plaintiff was restored to federal employment and reported to work. On her first day of work, after nearly 18 years of litigation pursuing reinstatement, Plaintiff requested leave for August 16, 2005 in order to take her husband to a medical appointment.

According to the testimony before the MSPB, Farmer told Plaintiff that she would need to complete a request in writing, and provided Plaintiff with a slip to make the request. Defendant

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contends that Plaintiff's leave balance had not yet been calculated, and Plaintiff was told to take leave without pay until that calculation was completed, at which juncture New-Howard would be credited with retroactive leave. Plaintiff requested leave without pay and did not appear the next day. On August 17, 2005, when Plaintiff returned to work, New-Howard against requested ongoing medical leave in order to take her husband to medical appointments. In addition, Plaintiff notified Farmer that she would leave early to take her husband to an appointment, and handed Farmer her husband's medical discharge papers.¹ Farmer notified Plaintiff that she would be required to fill out a leave slip, supporting paperwork, and specify the dates that she would need to be absent. Defendant contends that Farmer then informed Plaintiff that she needed to attend a meeting, but New-Howard could interrupt the meeting to speak with her. According to the defendant, while Farmer was engaged in the meeting, New-Howard informed John Carr, Chief of Management Staff, that Farmer had approved her request for leave and left without again speaking to Farmer. New-Howard left the unapproved leave request slip in her cubicle, which requested leave for the period from August 17, 2005 to August 30, 2005. (See Def.'s Ex. C at DHN00089.) Plaintiff also left a type-written but unprinted and unsent letter to the VA on her computer, justifying her request for leave. (Id. at DHN00360.)

August 17, 2005 was the last day that Plaintiff reported to work. What ensued in the days that followed was a series of communications between Plaintiff and the VA that lasted until July 9, 2006, when Plaintiff was eventually removed from federal employment.

On August 30, 2005, Farmer contacted New-Howard via letter to inform her that her

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leave had not been approved and she had been declared AWOL for the period extending from August 17, 2005 through August 30, 2005. (See Def's Ex. A at MSPB000486-87.) Farmer informed Plaintiff that the documentation that she had submitted to support her leave request was insufficient. On August 31, 2005, Plaintiff contacted the VA through her then-lawyer, Lucretia Clemons, explaining that Plaintiff had left a request for leave on the hard-drive of her office computer, and further requesting FMLA leave for Plaintiff for the period extending from August 17 through September...