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Patton v. Shulkin

United States District Court, W.D. Virginia, Roanoke Division

March 14, 2018

AMBER PATTON, Plaintiff,
DAVID J. SHULKIN, Secretary of Veterans Affairs, Defendant.



         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 VA Medical 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 “notify the 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 march2011.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's coworkers emailed her supervisors and advised them that Patton would not be at work. (See Id. at 8 (“Amber wanted me to make sure you guys knew she was home sick today.”); id. at 11 (“Amber asked that I remind you that she has Physical Therapy this morning and will be in when it is finished.”); id. at 15 (“Amber has been trying to get in contact with you . . . . [S]he won't be able to make it in today, she has some personal things she is trying to care [of].”).)

         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 (listing national performance goals for VSRs).)

         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 reviewed closely by others.” (Id.)

         On August 16, 2013, Patton received a termination letter from Wilson. The letter provided the following reason for her termination: “You are being terminated because you have failed to demonstrate your fitness for continued service with the Department of Veterans Affairs.” (Def.'s Br. Ex. 22 at 1, Dkt. No. 44-22.)

         Patton subsequently filed an EEO complaint challenging her termination. During the investigation of her complaint, Wilson provided a chart listing the amount of leave that Patton had used during each month of her employment. (Wilson EEO Interrog. 10.) Wilson indicated that Patton's leave records supported the conclusion that she did not possess the capacity to become a successful VSR. (Id.)

         Wilson and other management officials have since testified that the termination decision was “premised upon undependability due to leave usage.” (Wilson Dep. 75, Dkt. No. 65-7; see also Svirsky Dep. 63, Dkt. No. 65-11 (agreeing that “leave usage” was the primary reason for Patton's termination); Barksdale Dep. 21, Dkt. No. 65-8 (recalling that the discussions regarding Patton focused on “accrual and usage” of leave).) Wilson has also testified that “using leave on a regular monthly basis was not the issue”; instead, the issue was the “manner in which it was used, ” such as providing “short notice, no notice, that type of thing.” (Wilson Dep. 39, Dkt. No. 44-14.)

         Two other probationary employees, David Prewitt and Amanda Jones, were terminated in August of 2013. The record reveals that their terminations were for leave-related reasons. (See Sullivan EEO Interrog. 10 (responding that leave usage was high each month for all three probationary employees); Reynolds Dep. 32, Dkt. No. 44-5 (indicating that he did not recall Pruitt and Jones having any dependability issues other than leave usage).)

         Prior to Wilson's term as director, management officials at the Roanoke regional office “primarily focused on quality and production.” (Svirsky Dep. 63, Dkt. No. 65-11.) Wilson's focus on employee attendance represented “a change in approach.” (Id.) At the time the decision was made to terminate Patton's employment, her direct supervisors were not aware that the use of accrued leave could result in termination. (Lorenzani Dep. 50, Dkt. No. 65-9.) Accordingly, Patton was never advised that she could be terminated on that basis. (Id.)

         After exhausting her administrative remedies, Patton filed the instant action under the Rehabilitation Act. In Count I of her complaint, Patton asserts that the VA unlawfully terminated her employment on the basis of her disabilities. In Count II, Patton claims that the VA failed to reasonably accommodate her disabilities. In Count III, Patton alleges that the VA retaliated against her for requesting an accommodation for her disabilities. In Count IV, Patton asserts a claim for disparate impact and treatment, based on an alleged practice of terminating probationary employees “who are disabled, and utilize leave to address health . . . needs related to those disabilities.” (Compl. ¶ 48, Dkt. No. 1.)

         On January 12, 2018, the Secretary moved for summary judgment on all four counts of the complaint. After receiving two extensions of time, Patton filed a response to the summary judgment motion on February 6, 2018.[4] In her response, Patton concedes that summary judgment is warranted as to Counts II and III of the complaint and with respect to the claim of disparate treatment asserted in Count IV.

         The court held a hearing on the motion for summary judgment on February 15, 2018. At the conclusion of the hearing, the court permitted the parties to file supplemental briefs relevant to Patton's disparate-impact claim asserted in Count IV. The motion for summary judgment is now ripe for review.


         A. Summary ...

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