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Washington v. Fanning

United States District Court, S.D. Georgia, Augusta Division

March 11, 2019

CLAUDIA WASHINGTON, Plaintiff,
v.
ERIK K. FANNING, Secretary of the Army, Defendant.

          ORDER

          J. RABBLE HALL, CHIEF JUDGE V UNITED/STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

         Before the Court is Defendant's motion for partial dismissal and summary judgment. (Doc. 37.) The Clerk of Court gave Plaintiff timely notice of Defendant's motion, the summary judgment rules, the right to file affidavits or other materials in opposition, and the conseguences of default. (Doc. 40.) Therefore, the notice requirements of GriffithWainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam) have been satisfied. Plaintiff filed a response in opposition (Doc. 45), and Defendant filed a reply in support (Doc. 71). The time for filing materials in opposition has expired, and the motion is ripe for consideration. Upon review of the evidence of record, relevant law, and the Parties' respective briefs, Defendant's motion for partial dismissal and summary judgment (Doc. 37) is GRANTED.

         I. BACKGROUND

         From November 2006 through October 2014, Plaintiff was employed as a civilian nursing assistant in the Connelly Health Clinic at the Dwight D. Eisenhower Army Medical Center at Fort Gordon, Georgia. (Resp. to Def.'s St. of Mat. Facts, Doc. 46, ¶ 1; Washington Dep., Doc. 51, at 14.) In 2010, Plaintiff had gastric bypass surgery to alleviate symptoms of acid reflux disease. (Washington Dep., at 23-24.) Plaintiff also had a hysterectomy and two hernia surgeries between 2010 and 2014. (Id. at 24-25.) Nevertheless, she continues to suffer from "stomach problems," including acid reflux, stomach spasms, and pain that "generates all the way ... to [her] back." (Id. at 25-26.) These stomach problems affect Plaintiff's ability to walk and lift objects that weigh over ten pounds. (Id. at 27-28.) Furthermore, Plaintiff began suffering from depression in 2013, which causes her to "get real jumpy and nervous" when she is "around people." (Id. at 28-31.) Plaintiff also suffers from migraines that make it difficult for her to look at computer screens. (Id. at 31-34.)

         The issues in this case revolve around leave Plaintiff took for a surgery related to her stomach problems. The surgery was scheduled for May 28, 2014. (Id. at 45:4-5.) Plaintiff's doctor, Doctor Choi, intended for Plaintiff to be off work to recover from May 28, 2014, through July 9, 2014. (Choi Dep., Doc. 39-5, at 24:5-25.)

         Plaintiff attempted to use three different types of leave for her surgery - advanced sick leave, [1] donated leave, [2] and Family and Medical Leave Act ("FMLA") leave.[3] (Washington Dep., at 66; Donated Leave Recipient Form, Doc. 38-28; 2014 Surgery FMLA Request, Doc. 39-6.) For Plaintiff to take advanced sick leave, her request must be initialed, signed, or otherwise approved by the following: Captain Warner, Plaintiff's second-line supervisor; Major DiGiulio, Plaintiff's third-line supervisor; and Major Shaffer, the acting department head where Plaintiff worked.[4] (Washington Dep., at 22:4-7, 60:8-13; Resp. to Def.'s St. of Mat. Facts, ¶ 2.)

         On May 7, 2014, Captain Warner "asked Ms. Ransom[5] to prepare" Plaintiff's advanced sick leave request memorandum. (Warner Dep., Doc. 38-4, at 111:6-8.) Captain Warner stated she did so "in anticipation that [Plaintiff] would ask for it." (Id. at 112:3-18.) The original leave request prepared by Ms. Ransom had an end date of June 11, 2014. (Washington Dep., at 74:21-25.) At some point before she left work for surgery on May 27, 2014, Captain Warner approached Plaintiff with a revised advanced sick leave request that altered the leave end date to June 10, 2014.[6] (Id. at 74.) According to Plaintiff, Captain Warner "told [Plaintiff] that the date that Ms. Ransom had typed on [the original advanced sick leave request] was incorrect and . . . Captain Warner retyped it and wanted me to sign off on" the revised request. (Id. at 45-47.) Plaintiff refused to sign the revised request, however, wanting instead to "wait for Ms. Ransom to get back" because Plaintiff "wanted to make sure that was the correct date[] on the paperwork." (Id. at 45-47.) On May 28, 2014, Plaintiff underwent surgery. (Resp. to Def.'s St. of Mat. Facts, ¶ 39.) Plaintiff states she never went back to sign off on the revised leave request. (Washington Dep., at 76:13-15.)

         On June 10, 2014, Plaintiff called Ms. Ransom and asked why she had not been paid. (Resp. to Def.'s St. of Mat. Facts, ¶ 42.) Ms. Ransom asked Plaintiff to bring in her advanced sick leave documents. (Id.) On June 16, 2014, Plaintiff brought the advanced sick leave requests - each bearing the initials of Captain Warner and Major DiGiulio - to Sergeant Taylor's office and was "advised that her request would not be approved because [Plaintiff] did not turn in the request prior to taking leave." (Def.'s St. of Mat. Facts, Doc. 39, ¶ 44; Doc. 39-3.) Plaintiff responded the request had been prepared before May 7, 2014. (Resp. to Def.'s St. of Mat. Facts, ¶ 44.) Regardless, Ms. Thorpe, the department's chief secretary, told Plaintiff she would get the paperwork to Major Shaffer for approval. (Def.'s St. of Mat. Facts, ¶ 47; Thorpe Dep., Doc. 39-11, at 9:4-8, 11:3-12:9.)

         On June 25, 2014, Major Shaffer, during a "standard inquiry," approached Captain Warner and Major DiGiulio to determine why Plaintiff was taking so much leave while already having used so much leave and whether she had proper medical authorization for the leave. (Shaffer Dep., Doc. 61, at 14:9-19.) Captain Warner and Major DiGiulio immediately denied having approved or initialed the documents. (Id. at 15:16-18; see also DiGiulio Dep., Doc. 38-29, at 17:2-9; Warner Dep., at 129:1-130:2.) Captain Warner and Major DiGiulio admitted that the initials appeared to be theirs but stated they did not place the initials on the page. (DiGiulio Dep., at 17:2-9; Warner Dep., at 119:1-10.) Captain Warner testified that she knew she did not initial the request because she was waiting on Plaintiff to return the request back to her but Captain Warner "never got it, never. . . . [Plaintiff] was afforded every opportunity to turn in the paperwork, and she just never turned it in."[7] (Warner Dep., at 130:1-2; 132:7-12.) Major DiGiulio had a "[c]lear recollection" that she did not initial Plaintiff's request and knew she would not have initialed it because Plaintiff "had already accrued over [one-hundred] hours of advanced sick leave." (DiGiulio Dep., at 19:2, 30:8-13.) Not knowing how their initials got on Plaintiff's request, Captain Warner and Major DiGiulio concluded Plaintiff forged their initials. Plaintiff refutes this charge as "patently frivolous." (Resp. to Def.'s St. of Mat. Facts, ¶ 54.)

         Once personnel "understood that [Plaintiff] had forged documents," the removal process began. (Thurman Dep., Doc. 38-11, at 51:10-12.) Ms. Thurman, the human resource specialist involved in Plaintiff's termination, stated, "It was such a severe type of thing that she had done that according to the table of penalties you could take it for the first offense all the way to removal. So that's how the decision was made." (Id. at 59:1-5.) Ms. Thurman agreed the testimony of Major DiGiulio and Captain Warner that "they both denied it totally and said they would not have approved it anyhow, so it could not be their initials" supported finding that Plaintiff forged the request. (Id. at 60:1-5, 61:11-62:1.)

         Ms. Thurman initiated the formal removal process sometime between July 18, 2014, and August 19, 2014. (Id. at 46:13-24.) On August 26, 2014, Captain Warner circulated a memorandum analyzing Plaintiff's alleged behavior with the Douglas Factors.[8](Douglas Factors Memo., Doc. 39-17.) Plaintiff was given notice of the proposed removal on September 12, 2014. (Notice of Proposed Removal, Doc. 39-18.) On October 28, 2014, Defendant sent Plaintiff notice of its final decision to remove Plaintiff. (Notice of Decision to Remove, Doc. 39-20.) Plaintiff acknowledged receipt of the notice the same day. (Id. at 3.)

         On October 7, 2014, while her proposed removal was pending, Plaintiff initiated contact with the local U.S. Equal Employment Opportunity Commission ("EEOC"). (EEOC Compl., Doc. 39-23.) Plaintiff filed a complaint with the EEOC on December 3, 2014. (Id.) On November 11, 2014, Plaintiff appealed her removal to the MSPB. (MSPB Decision, Doc. 39-25, at 1.) The Administrative Judge conducted a hearing on April 29, 2015 (MSPB Hearing, Doc. 39-2), and on May 6, 2015, issued a decision upholding Plaintiff's removal and finding no evidence of discrimination. (MSPB Decision.) After reviews upheld the MSPB's decision, on March 1, 2016, the EEOC gave Plaintiff the right to bring this private action against Defendant. (Am. Compl., Doc. 4, ¶ 21.) On March 30, 2016, Plaintiff filed this action "pursuant to the Rehabilitation Act in violation of Title VII of the Civil Rights Act of 1964" to recover all special and general damages and appropriate equitable remedies. (Compl., Doc. 1; Am. Compl., ¶¶ 1, 35, 37.)

         II. LEGAL STANDARDS

         A. Standard for Dismissal

         A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a "facial" or "factual" attack. MorrisonAmway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). Jurisdictional challenges "can be decided without reference to the merits of the underlying claim," and are considered facial attacks. Id. at 924-25. In a facial attack, the complaint's allegations are deemed presumptively truthful, and the "court is required merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." StalleyOrlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (internal quotation omitted). In a factual attack, the court may consider extrinsic evidence but should "treat[] the motion as a motion for summary judgment under Rule 56." Morrison, 323 F.3d at 925.

         B. Standard for Summary Judgment

         The Court should grant summary judgment only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) . The purpose of the summary judgment rule is to dispose of unsupported claims or defenses, which, as a matter of law, raise no genuine issues of material fact suitable for trial. Celotex Corp.Catrett, 477 U.S. 317, 322-24 (1986). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. AndersonLiberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of those material facts "is 'genuine' . . . [only] if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The mere existence of a scintilla of evidence in support of the [nonmovanfsj position will be insufficient" for a jury to return a verdict for the nonmoving party. Id. at 252; accord GilliardGa. Dep't of Corrs., 500 Fed.Appx. 860, 863 (11th Cir. 2012).

         As required, this Court will view the record evidence "in the light most favorable to the [nonmovant]," see Matsushita Elec. Indus. Co.Zenith Radio Corp., 475 U.S. 574, 587 (1986), and will "draw all justifiable inferences in [Plaintiff's] favor." See United StatesFour Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted). Additionally, the party opposing summary judgment "may not rest upon the mere allegations or denials in its pleadings. Rather, its responses . . . must set forth specific facts showing that there is a genuine issue for trial." WalkerDarby, 911 F.2d 1573, 1576-77 (11th Cir. 1990).[9]

         III. DISCUSSION

         A. Motion to Dismiss

         The Court finds Plaintiff does not bring a retaliation claim under the FMLA.[10] To the extent Plaintiff's retaliation claim can be construed as such, as noted by Defendant (Def.'s Mot. for Partial Dismissal & Summ. J., Doc. 37, at 6-9), the Court dismisses this claim for lack of subject matter jurisdiction. As an initial matter, the Court finds that Defendant's partial motion to dismiss is a facial attack on the complaint because it, as a challenge to the Court's subject matter jurisdiction, does not depend on adjudicating the merits of the case. SeabornFla., Dep't of Corrs., 143 F.3d 1405, 1407 (11th Cir. 1998) (assertion of immunity "essentially challenges a court's subject matter jurisdiction"); JohnsonGeorgia, No. 1:13-CV-3155-WSD, 2014 WL 1406415, at *2 (N.D.Ga. Apr. 9, 2014) (treating Rule 12(b)(1) motion to dismiss state claims on immunity grounds as a facial attack).

         Plaintiff seeks to recover money damages as a result of the agency's alleged retaliation against her request for FMLA leave. Because Plaintiff was employed by the agency for more than twelve months, Plaintiff is considered a Title II employee for purposes of the FMLA. See 29 U.S.C. § 2611 (2) (B) (1); 5 U.S.C. §§ 2105(a), 6381, 6301(2) (B) (defining Title II employees under the FMLA). Congress has provided a private right of action for Title I FMLA employees, see 29 U.S.C. § 2617(a) (2), but not for Title II FMLA employees. SouersGeren, No. CV 108-157, 2010 WL 1169730, at *7 (S.D. Ga. Mar. 23, 2010). The Eleventh Circuit has held that Title II federal employees may not bring private suits for retaliation based on the FMLA. CavicchiSec'y of Treasury, No. 04-10451, 2004 WL 4917357, at *6 (11th Cir. Oct. 15, 2004) (reasoning Congress has not waived sovereign immunity for this type of claim). Accordingly, Plaintiff's retaliation claim under the FMLA is dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.[11]

         B. Motion for Summary Judgment

         Plaintiff's remaining claims arise under the Rehabilitation Act of 1973, which "prohibits federal agencies from discriminating in employment against otherwise qualified individuals with a disability." DaltonCtrs. for Disease Control & Prevention, 602 Fed.Appx. 749, 754-55 (11th Cir. 2015) (citation omitted); accord GarrettUniv. of Ala, at Birmingham Bd. of Trs., 507 F.3d 1306, 1310 (11th Cir. 2007). Defendant argues the Court should grant its motion for summary judgment as to Plaintiff's claims that Defendant discriminated by (1) failing to provide her an accommodation, (2) retaliating against her, and (3) constructively discharging her.

         1. Failure to Accommodate

         For Plaintiff to establish a prima facie case of discrimination under the Rehabilitation Act, she must show (!) she has a disability, (2) she is otherwise qualified, and (3) she was subject to unlawful discrimination as a result of her disability. Garrett, 507 F.3d at 1310. As discussed below, the Court finds that Defendant did not discriminate against Plaintiff; thus, the Court declines to determine whether Plaintiff was an otherwise qualified individual with a disability.[12]

         Unlawful discrimination can occur when an employer "fails to provide a reasonable accommodation" to an otherwise qualified person "unless doing so would impose an undue hardship on the employer." BoyleCity of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017). A reasonable accommodation enables an employee with a disability "to perform the essential functions" of a position or "to enjoy equal benefists and privileges of employment as are enjoyed by its similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o) (1) (ii), (iii).

         Assuming no undue hardship, an employer satisfies its requirements under the Rehabilitation Act to provide a reasonable accommodation by (1) providing a reasonable accommodation; or (2) by engaging with the employee in an interactive process to determine a reasonable accommodation, but no accommodation is provided because either (a) there is a breakdown in the process not due to the employer or (b) there is no reasonable way to accommodate the employee.[13] See StewartHappy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286-87 (11th Cir. 1997) (granting summary judgment for employer when employer engaged in interactive process by proffering five accommodations, but plaintiff rejected and demanded a different accommodation); BellWestrock Servs., Inc., No. 15-0148-CG-C, 2016 WL 3406117, at *9 (S.D. Ala. June 17, 2016) (finding no failure to accommodate when employer "made efforts to accommodate" the employee); see also BlackShinseki, No. 3:11-0675, 2013 WL 4779020, at *10-11 (S.D.W.V. Sept. 5, 2013) (summary judgment for employer when employer denied employee's "request for leave without pay, advanced sick leave, and voluntary leave donation" because when employee was asked to supplement information, the employee did not) . But see GilbertCity of St. Charles, No. 96 C 7101, 1999 WL 182151, at *10 (N.D. 111. Mar. 24, 1999) (denied motion for summary judgment because jury question about whether employer engaged in the interactive process by telling employee it would grant only seven days of advanced leave in a "take-it-or-leave-it" manner).

         Even if the Court assumes Plaintiff is a qualified individual with a disability, Defendant did not fail to provide her an accommodation. For purposes of this section only, the Court assumes Plaintiff submitted a request for advanced sick leave and it was denied because Major DiGiulio stated she would not have approved the sick leave even if she had received the request. (DiGiulio Dep., at 30:8-13.) Even assuming Plaintiff's request for advanced sick leave was denied, the Court finds: (a) Defendant was not required to grant Plaintiff advanced sick leave, and (b) Defendant provided Plaintiff a reasonable accommodation and engaged in the interactive process.

         a. Defendant was not Required to Grant Plaintiff Advanced Sick Leave

         "[A] leave of absence might be a reasonable accommodation in some cases." WoodGreen, 323 F.3d 1309, 1314 (11th Cir. 2003). Leave as a reasonable accommodation can include forms of paid and unpaid leave. See 29 C.F.R. pt. 1630, App'x (a reasonable accommodation "could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment"); see also U.S. Airways, Inc.Barnett, 535 U.S. 391, 398 (2002) (a reasonable accommodation may require employer to grant leave beyond its neutral leave policy).

         Plaintiff argues that "when [advanced sick] leave[14] is a reasonable accommodation, it may be required under the Rehabilitation Act." (See Resp. to Def.'s St. of Mat. Facts, ¶ 11.) For advanced sick leave to be the required accommodation, Plaintiff must show that an employer is required to provide accrued paid leave before other forms of leave, [15] and advanced sick leave is considered accrued paid leave.

         No case out of the Eleventh Circuit has evaluated whether advanced sick leave is considered a form of accrued paid leave, but cases in other circuits treat advanced leave as unaccrued leave on par with other forms of discretionary leave. See BlanchardLaHood, 461 Fed.Appx. 542, 544 (9th Cir. 2011) (denied advanced leave because employee failed to provide requested information, but other leave was given); SolomonVilsack, 845 F.Supp.2d 61, 72-73 (D.D.C. 2012) (found advanced sick leave, along with other leave requests, was unreasonable), rev'd, in part, on other grounds, SolomonVilsack, 763 F.3d 1 (D.D.C. 2014); MillerMcHugh, 814 F.Supp.2d 299, 318 (S.D.N.Y. 2011) (supervisor denied request for advanced leave as reasonable accommodation "because there was a low likelihood that [the employee] could pay back the advanced hours"). Furthermore, the facts of this case support following the logic of the above cases because under Defendant's policy, granting advanced sick leave is "left [to] the supervisor's discretion." (Thurman Dep., at 21:5-11; see also DiGiulio Dep., at 30:2-3 ("It's not an entitled benefit."); Resp. to Def.'s St. of Mat. Facts, ¶ 11.)

         After reviewing decisions in other circuits and the facts of this case, the Court finds that advanced sick leave is not accrued paid leave, and Defendant was not required to grant Plaintiff advanced sick leave over other forms of leave. The question remains, then, whether by denying Plaintiff advanced sick leave Defendant failed to reasonably accommodate Plaintiff.

         b. DefendantProvidedPlaintiff aReasonable Accommodation and Engaged in the Interactive Process

         It is undisputed that Plaintiff attempted to use two different types of leave for her surgery apart from advanced sick leave -FMLA leave and donated leave. (Washington Dep., at 66; ...


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