Patton v. Shulkin
| Decision Date | 14 March 2018 |
| Docket Number | Civil Action No. 7:16-cv-00250 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | AMBER PATTON, Plaintiff, v. DAVID J. SHULKIN, Secretary of Veterans Affairs, Defendant. |
MEMORANDUM OPINION
Plaintiff Amber Patton filed this action against the Secretary of Veterans Affairs, asserting claims of disability discrimination and retaliation in violation of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. §§ 701-796. The case is presently before the court on the Secretary's motion for summary judgment. The motion has been fully briefed, the court heard argument on the motion, and the court has considered all of the written submissions, including the supplemental briefs filed after the hearing. For the reasons set forth below, the Secretary's motion for summary judgment will be granted in part and denied in part.
Patton is a veteran of the United States Army. She was honorably discharged in 2003. (Def.'s Br. Supp. Mot. Summ. J. (Def.'s Br.) Ex. 1, Dkt. No. 44-1.) Following her honorable discharge, Patton applied for and received disability benefits from the United States Department of Veterans Affairs (VA). (Id.) She received a combined disability rating of 70 percent based on two service-related conditions: major depressive disorder and colitis.1 (See Pl.'s Br. Opp'n Mot. Summ. J. (Pl's Br.) Ex. B, Salem VAMedical Center (VAMC) Records at 86, Dkt. No. 69.) She has also been diagnosed with post-traumatic stress disorder ("PTSD") and generalized anxiety disorder. (See, e.g., id. at 397, 452, 506.)
In the fall of 2012, Patton applied to work as a veterans service representative (VSR) at the VA's regional office in Roanoke, Virginia. She was one of several individuals who received preferential treatment in the hiring process as a result of having a service-connected disability. (Def.'s Br. Ex. 4, Dkt. No. 44-4.) Keith Wilson, the director of the Roanoke regional office, authorized Patton's hiring in September of 2012, and she began working on a probationary basis on October 1. (Patton Dep. 17, Dkt. No. 44-2;2 Wilson Decl. ¶ 3, Dkt. No. 44-25.)
As a VSR, Patton was responsible for reviewing and processing veterans' claims for benefits. (Pl.'s Br. Ex. F, Dkt. No. 65-6.) Patton's direct supervisors were Justin Roberts and Neena Lorenzani. (Roberts Dep. 12, Dkt. No. 44-9; Lorenzani Equal Employment Opportunity (EEO) Aff. 4, Dkt. No. 44-16.) Her supervisory chain of command also included William Barksdale, David Svirsky, Kathleen Sullivan, and Wilson. Roberts, Barksdale, Sullivan, and Wilson each have an unspecified "disability." (Roberts EEO Aff. 4, Dkt. No. 44-15; Barksdale EEO Aff. 3, Dkt. No. 44-11; Sullivan EEO Interrog. 2, Dkt. No. 44-7; Wilson EEO Interrog. 2, Dkt. No. 44-10.)
As a benefit of her employment with the VA, Patton earned sick leave and annual leave at a set rate each pay period. The regional office's policies and procedures concerning absences and leave are set forth in a circular entitled "Absence and Leave."3 (Def.'s Br. Ex. 19, Dkt. No. 44-19.) The circular states that employees are responsible for "[r]equesting advance approval of annual leave and to the extent possible advance approval of sick leave for medical, dental or optical examinations or treatment." (Id. at 2.) When sick leave is necessary due to a physical or mental illness, an employee must "notifythe immediate supervisor or designee (or . . . have any responsible person make the notification for the employee) at the work site as soon as possible but no later than two hours after the employee is scheduled to report for duty unless mitigating circumstances exist." (Id. at 5.)
The circular also indicates that "[t]he use of accrued annual leave is an absolute right of the employee subject to the right of Management to approve when leave may be taken." (Id. at 3.) The same right is recognized in the Master Agreement between the VA and the American Federation of Government Employees. See Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees 188, VA Pamphlet 05-68 (Mar. 2011), available at https://www.va.gov/lmr/docs/agreements/afge/master_agreement_between_dva_and_afge-fin_march_2011.pdf (last visited Mar. 12, 2018). The Master Agreement further provides that "[n]o approved leave or approved absence will be a basis for disciplinary action except when it is clearly established that the employee submitted fraudulent documentation or misrepresented the reasons for the absence," and that "[e]mployees will not be adversely affected in any employment decision solely because of their leave balances." (Id. at 187.)
Between October 1, 2012, and June 30, 2013, Patton used 61.25 hours of accrued sick leave and 87 hours of accrued annual leave. (Def.'s Br. Ex. 18, Dkt No. 44-18.) All of Patton's leave requests were approved by her supervisors. (Lorenzani Dep. 31, Dkt. No. 65-9.) None of her requests were the subject of an investigation for fraud or abuse. (Id.)
The record contains emails associated with some of Patton's leave requests. (See Def.'s Br. Ex. 20, Dkt. No. 44-20.) On a number of occasions, Patton personally emailed her supervisors and requested leave for medical appointments, including appointments at the Salem VA Medical Center. (Id. at 9, 14, 24, 27, 33, 35, 36, 38). Patton also requested time off for veterinary appointments, bereavement following the death of a family member, anticipated bad weather, and illness. (Id. at 12, 14, 18, 23, 30, 32, 34.) On three occasions between October 1, 2012, and June 30, 2013, one of Patton'scoworkers emailed her supervisors and advised them that Patton would not be at work. (See id. at 8 (); id. at 11 (); id. at 15 ( ).)
During her deposition, Patton testified that she often had to take leave as a result of the symptoms associated with her major depressive disorder, PTSD, and colitis. When asked how her PTSD and major depressive disorder affected her ability to work, Patton testified that she would experience an "uncontrollable urge to cry" and "have difficulty focusing." (Patton Dep. 196, Dkt. No 65-1.) Patton further testified that these disorders would interfere with her ability to interact with other people. (Id. at 200-01.) Patton confirmed that she either left work, or missed entire days of work, as a result of emotional distress, and emphasized that her symptoms were so severe at times that she was unable to get out of bed. (Id. at 196.) Although Patton did not refer to her specific diagnoses when requesting leave, she would let Lorenzani "know [what was] going on, and then [Lorenzani] approved [the leave request]." (Patton Dep. 68, Dkt. No. 44-2.)
Patton's intestinal disorder also interfered with her ability to work. Patton testified that she would experience "extreme bouts of diarrhea" while working for the VA and that she "could actually end up defecating on [herself]" if she were not close enough to a restroom. (Patton Dep. 197, Dkt. No. 65-1.) When Patton experienced the sudden onset of diarrhea, she would inform her supervisors in a manner in which "they understood [she] had to leave suddenly[.]" (Id. at 201.)
Records from the Salem VA Medical Center confirm that Patton was treated on an outpatient basis for depression, anxiety, and PTSD during her period of employment with the VA. The treatment included a psychotropic medication regimen and psychotherapy. (See, e.g., Pl. Br. Ex. B., Salem VAMC Records at 452-55.)
On July 17, 2013, Justin Roberts completed Patton's first monthly progress review. (See Pl.'s Br. Ex. C, Dkt. No. 65-3.) Roberts was tasked with reviewing Patton's performance during the month of June and determining whether the following traits were "satisfactory": dependability, attendance, compliance with procedures and rules, cooperation with supervisors and fellow employees, accuracy of work, workload management, and quantity of work. (Id. at 1.) Roberts answered "yes" with respect to each trait and confirmed that Patton was "progressing satisfactorily." (Id.) Roberts also noted that Patton had exceeded the applicable production and quality standards for the month of June. (Id.; see also Pl.'s Br. Ex. F, Dkt. No. 65-6 ().)
At some point in July of 2013, management officials at the Roanoke regional office held the first of two biweekly meetings to discuss Patton and other probationary employees. The meetings were also attended by Patton's direct supervisors, Roberts and Lorenzani, and a human resources (HR) representative, Kevin Reynolds. (See Wilson EEO Interrog. 6; Reynolds Dep. 43, Dkt. No. 65-5.) During the meetings, the attendees reviewed Patton's existing performance and attendance records. (Wilson EEO Interrog. 8.) They also discussed the reasons for Patton's low leave balance, including the fact that many of her absences were "for illness or going to medical appointments" at the Salem VA Medical Center. (Reynolds Dep. 42, Dkt. No. 65-5; see also id. at 41, 46.) At the second meeting, which occurred during the third or fourth week of July, the decision was made to terminate Patton's employment. (Id. at 58, 96.) Wilson was responsible for making the final decision. (Id. at 56; see also Wilson Decl. ¶ 4.)
That same month, Patton informed Lorenzani that she was pregnant. On July 19, 2013, Patton emailed Lorenzani regarding an upcoming appointment with an obstetrician. (Def.'s Br. Ex. 20 at 5.) Lorenzani recommended that Patton return to work following the appointment, since time and attendance records were "being...
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