United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
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.
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. (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.)
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; Wilson Decl. ¶ 3, Dkt. No. 44-25.)
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.)
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.” (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.)
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.
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.
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].”).)
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.)
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.)
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.)
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).)
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.)
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.”
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.)
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.)
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.)
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).)
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.
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.)
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. 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.
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