Richards v. Wilkie
| Decision Date | 27 September 2020 |
| Docket Number | Case No. 18 C 354 |
| Parties | MARCIE D. RICHARDS, Plaintiff, v. ROBERT WILKIE as Secretary of the U.S. Department of Veterans Affairs, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Marcie D. Richards worked for the U.S. Department of Veterans Affairs ("VA") for more than 20 years, most recently as a Nursing Assistant at the Captain James A. Lovell VA Federal Health Care Center (the "Lovell VA") in North Chicago. The VA terminated Plaintiff's employment effective July 20, 2016 after it sustained charges against her for inappropriate conduct toward patients and co-workers. In this lawsuit, Plaintiff seeks review of the Merit Systems Protection Board's ("MSPB's") final order affirming the removal decision. She also brings claims against Defendant Robert Wilkie, Secretary of the VA, for disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ; retaliation for exercising her rights under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ; and retaliation for engaging in protected activity. 2
Defendant now moves for summary judgment on all claims. Plaintiff petitions for review of the MSPB's final order. As explained here, Defendant's motion for summary judgment is granted and Plaintiff's petition for review is denied.
Plaintiff asserts two kinds of claims in this case. The first is brought under Section 7703 of the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101 et seq. It challenges the MSPB's final order affirming the VA's decision to terminate Plaintiff's employment. In a second type of claim, Plaintiff alleges that the VA engaged in various forms of employment discrimination prohibited by federal law. Federal courts apply different standards of review to these claims.
Under the CSRA, a federal employee has a right to appeal certain adverse employment actions by her agency, such as discharge, to the MSPB. See Kloeckner v. Solis, 568 U.S. 41, 43-44 (2012) (citing 5 U.S.C. §§ 7512, 7701). The MSPB is "an independent adjudicator of federal employment disputes." Kloeckner, 568 U.S. at 44. The employee's "appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute," such as Title VII. Id. (). "When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination," she has brought a so-called "mixed case." Kloeckner, 568 U.S. at 44 (citing 29 C.F.R. § 1614.302 (2012)).
Petitions to review a final decision of the MSPB are ordinarily filed in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1). When, however, "[a] federal employee . , , claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in [5 U.S.C. § 7702(a)(1)]," the employee "should seek judicial review in district court, not in the Federal Circuit." Kloeckner, 568 U.S. at 56; see also Miller v. Saul, 803 F. App'x 963, 966 (7th Cir. 2020) (). A court's review of an MSPB decision regarding an adverse employment actionis deferential: the court must affirm the decision unless it is "arbitrary, capricious, an abuse of discretion, not in accordance with law, obtained without proper procedures, or unsupported by substantial evidence." Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 916 (7th Cir. 2018) (citing 5 U.S.C. § 7703(c)). The standard for review of statutory discrimination claims, in contrast, is de novo. See 5 U.S.C. § 7703(c); see also 5 U.S.C. § 7703(b)(2) (cross-referencing § 7702).
As discussed in more detail below, the VA terminated Plaintiff's employment in 2016 after determining that she engaged in inappropriate conduct toward patients and co-workers in July and August 2015, respectively. Before the VA made the termination decision, it conducted internal investigations, as required by VA policy. First, Plaintiff's direct supervisor collected written statements from Plaintiff and other employees who witnessed the incidents in question. Next, the VA directed an Administrative Investigation Board ("AIB") to investigate the charges of misconduct. (See id. ¶¶ 35-37.) Among other things, the AIB heard live testimony from Plaintiff and other witnesses on September 30, 2015. (See id. ¶ 38.) After the AIB substantiated the charges against Plaintiff, leadership at the VA proposed terminating her employment. (See id. ¶ 39.) They gave Plaintiff an opportunity to show that the charges were unfounded by submitting oral and written responses. (See id. ¶ 40.) Dr. Stephen Holt, the Director of the Lovell VA, reviewed Plaintiff's responses and decided that she should in fact be terminated. (See id. ¶ 50.) As the law requires, in making the decision, Holt was guided by what are known as the Douglas factors—"twelve factors to be considered when determining a reasonable penalty for an agency employee." Robinson v. Dep't of Veterans Affairs, 923 F.3d 1004, 1016 n.3 (Fed. Cir. 2019) (citing, inter alia, Douglas v. Veterans Admin., 5 M.S.P.B. 313, 332 (1981)).3
On September 16, 2016, Plaintiff challenged her termination and filed a discrimination complaint with the VA's Equal Employment Opportunity ("EEO") office. (See Pl.'s L.R. 56.1 Resp. ¶¶ 56-57.) On January 13, 2017, the Department of Veterans Affairs Office of Resolution Management notified Plaintiff that she did not have a right to an EEOC hearing for the "mixed portion" of her complaint—i.e., the challenge to her termination—and that the mixed portion was being transmitted to the VA Office of Employment Discrimination Complaint Adjudication ("OEDCA").. (See Certified Administrative Record ("R") Vol. 1 (Jan. 2017 ORM Ltr.) at 64;4 see also Pl.'s L.R. 56.1 Resp. ¶ 57.) The Office of Resolution Management also informed Plaintiff that if she did not receive a final agency decision on the mixed claim within 120 calendar days of the date she formally filed her complaint, she would have the right to immediately appeal to the MSPB. (R. Vol. 1 (Jan. 2017 ORM Ltr.) at 64; Pl.'s L.R. 56.1 Resp. ¶ 57; see also 5 U.S.C. § 7702(e)(2) ().)
The parties have not pointed the court to any final agency decision from the VA. (See, e.g., Pl.'s L.R. 56.1 Resp. ¶¶ 57-58.) Thus, the court assumes that Plaintiff did not receive onewithin 120 days after filing her EEOC complaint and, on March 14, 2017, exercised her right under 5 U.S.C. § 7702(e)(2) to file an appeal with the MSPB. (Pl.'s L.R. 56.1 Resp. ¶ 58.) Over two days in October 2017, an administrative judge ("AJ") for the MSPB heard the testimony of numerous witnesses, including Plaintiff. In a written decision dated November 13, 2017, the AJ upheld the VA's termination decision and found against Plaintiff on the discrimination claims, which were characterized as affirmative defenses before the MSPB. 5 The AJ's decision became final on December 18, 2017, and Plaintiff filed this lawsuit on January 17, 2018.
Plaintiff began her employment with the VA in 2004 at a facility in North Chicago. In 2007, she became a Health Care Technician at the Hines VA, another Chicago-area facility. (Id.) In 2011, Plaintiff resigned from that position. (Id.) Between 2011 and 2012, she completed her bachelor's degree. (Id.) In 2012, the VA hired Plaintiff as a Nursing Assistant at the Lovell VA in North Chicago. (Id.; Pl.'s L.R. 56.1 Resp. ¶ 5.) The VA consistently rated Plaintiff as "fully successful" in performance reviews. (Def.'s L.R. 56.1 Resp. ¶ 1.) Effective July 20, 2016, however, the VA terminated Plaintiff's employment, after it sustained charges against her for inappropriate conduct toward patients and co-workers. (See Pl.'s L.R. 56.1 Resp. ¶¶ 50-51.)
Plaintiff, who is 60 years old and 4'11", suffers from various disabilities. (Def.'s L.R. 56.1 Resp. ¶ 2.) She has chronic pain caused by injuries sustained while she cared for patients. (Id.) She also has degenerative joint disorder, osteoarthritis of the cervical spine, heart problems, asthma, depression, diabetes, and hypertension, among other conditions. (Id.) Plaintiff'sdisabilities substantially limit her activities. (Id. ¶ 3.) Because of her workplace injuries, the VA placed Plaintiff in a light-duty position around December 22, 2014. (Pl.'s L.R. 56.1 Resp. ¶ 60.) According to a memorandum issued by the VA's Workers' Compensation Program, Plaintiff's responsibilities in the light-duty position included doing "one to one observation" of fall-risk patients, taking patients' vital signs, and helping patients with daily living activities such as bathing, eating, and dressing. (Id. ¶¶ 62-63.) Plaintiff signed and initialed the memorandum on January 13, 2015, confirming her acceptance of the light-duty assignment. (Id. ¶¶ 63, 65.)
Plaintiff maintains that the light-duty assignment did not accommodate her disabilities. In a deposition in this case, she testified that she...
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