Opinion
C. A. 3:18-3443-JMC-SVH
09-03-2020
Alexis Green, Plaintiff, v. Robert Wilkie, Secretary of Veterans Affairs, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Alexis Green (“Plaintiff”) brings suit against Robert Wilkie (“Defendant”), the Secretary of Veterans Affairs (“VA”), alleging disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. (“Rehabilitation Act”),which prohibits employment discrimination against individuals with disabilities in the federal sector. More specifically, Plaintiff claims the VA failed to accommodate her disabilities.
Plaintiff notes her case was originally brought pursuant to the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq. (“ADA”), not pursuant to the Rehabilitation Act, and states she will move to amend her pleadings to modify her complaint. [ECF No. 24 at 11 n.7; see also ECF No. 1 ¶ 2]. Plaintiff further notes there is no prejudice to Defendant from this potential amendment and that Defendant has investigated the facts that form the basis of Plaintiff's claim, which are the same set of operative facts under the ADA and the Rehabilitation Act, arguments Defendant apparently concedes. [See ECF No. 24 at 11 n.7; see also ECF No 23-1 at 2125 (Defendant analyzing Plaintiff's failure to accommodate claim under the Rehabilitation Act)]. The undersigned addresses Plaintiff's claim for failure to accommodate as having been brought pursuant to the Rehabilitation Act.
Plaintiff additionally asserted disability-based claims for hostile work environment, retaliation, and failure to promote. [See ECF No. 1]. However, Plaintiff has informed the court that she is pursuing only her failure to accommodate claim. [See ECF No. 24 at 1 n.1].
This matter comes before the court Defendant's motion for summary judgment. [ECF No. 23]. Defendant's motion having been fully briefed [see ECF Nos. 24, 27], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual Background
In September 2010, Plaintiff started her employment with the VA Medical Center in Columbia, South Carolina, as a human resources assistant at GS-06. [ECF No. 23-2 at 152:13-15]. She was promoted to a GS-07 and, thereafter, applied for and received a position as a human resources specialist, GS-9, in September 2014. Id. at 152:16-153:1. At the time, her supervisor was Michael Mattingly (“Mattingly”), supervisor of recruitment and placement. [ECF No. 24-10 at 4:14-5:11].
Plaintiff submits as evidence the report of investigation, made through the Department of Veterans Affairs Office of Resolution Management, that includes excerpts of an undated deposition taken of Plaintiff. [See ECF No. 24-10]. Citations to this document are to page numbers in ECF, not the page numbers in the original document. For ease of reference and consistency, citations to all documents are to page numbers in ECF.
On July 4, 2014, Plaintiff was injured by a firecracker, causing physical and mental health injuries, including the loss of 70% of the functioning in one hand, amputations of fingers, and post-traumatic stress disorder (“PTSD”), triggered particularly by noise. Id. at 5:19-12:8. These injuries caused permanent disability, interfered with Plaintiff's major life activities of gripping, cooking, cleaning, and working, and necessitated approximately six weeks of leave initially, but also required multiple surgeries, recurring doctor visits, medication, treatment by a psychologist, and weekly mental health counseling. [ECF No. 24-10 at 5:19-12:8, 15:9-24; see also ECF No. 24 at 2].
Per Defendant's policy, processing requests for reasonable accommodation for employees with disabilities “begins as soon as an employee requests a change because of a disability,” and management is not to wait for a written request for accommodation from the employee, which can be “oral or written” to the supervisor, any manager in the employee's chain of command, and others. [ECF No. 24-10 at 84-85]. When the disability is known, the supervisor is directed to grant accommodation requests if feasible, with decisions being made at the lowest level “to ensure timeliness and efficiency.” Id. at 86.
A. Request for a Stamper
Plaintiff returned to work following her accident in August 2014. [ECF No. 23-2 at 13:9-11]. Soon after Plaintiff returned to work, she orally requested a stamper or other device to sign her name, but was informed by Mattingly that he was not aware that the VA had such a stamper. [ECF 23-2 at 18:21-19:4]. Mattingly instructed Plaintiff to utilize a coworker, who Plaintiff perceived to be overworked, to sign for her, inhibiting Plaintiff's ability to timely complete her work. [ECF No. 24:10 at 31:12-32:19].Plaintiff did not pursue her request for a stamper. [See ECF No. 24 at 3 n.3].
Defendant has submitted evidence that Mattingly did not direct Plaintiff to utilize a coworker. [See ECF No. 27-1 at 13:18-14:10 (“It was never a request. She had asked me if there was such a device, a stamp or a device for her name. And I said I don't think we have something like that, but I would check. And she said, no, don't worry, I can use my left hand.”)].
B. Desk Location
In or around November 2014, Plaintiff requested to switch desks with a coworker, which Mattingly appeared to have initially approved, but he then moved Plaintiff to another desk. [ECF No. 24-10 at 34:21-35:1; ECF No. 23-2 at 26:18-28:13]. Plaintiff complained about her new placement because a door was located directly behind her that people slammed throughout the day, causing her discomfort. [ECF No. 24-10 at 36:2-9; ECF No. 23-2 at 28:21-29:15]. In response, Mattingly did not allow Plaintiff to switch desks or move her desk, but instead sent an email to the staff requesting they limit the use of the door located behind Plaintiff. [ECF No. 24-10 at 36:18-23; ECF No. 23-2 at 29:16-20]. At this time, Plaintiff began having nightmares due to the stress from work. [ECF No. 24-10 at 38:1-7]. Despite her complaints, Plaintiff remained at this desk until February 2015, when she alleges Mattingly “responded to [her] in an aggressive manner” and moved her to a new building. [See ECF No. 23-2 at 31:13-32:18].
C. Physical Therapy Requests
From roughly September 2014 until July 2015, Plaintiff was in physical therapy. [ECF No. 24-10 at 13:13-14]. Plaintiff alleges she was supposed to go three times a week, but she only went twice a week, and that management was not supportive of her physical therapy, stating she was asked by the former human resources chief, Phyllis Jones (“Jones”) as to how long her physical therapy was and that Mattingly informed Plaintiff that Jones “was upset at the amount of time that I had to leave to attend physical therapy.” Id. at 13:7-14:6.
Plaintiff argues that at some point in late 2014, she briefly stopped going to physical therapy in the hopes of gaining support from Mattingly and Jones when she resumed. [See ECF No. 24 at 4 (citing ECF No. 24-10 at 15:1-24); ECF No. 24-10 at 77 (“I was questioned in 9/2014 about me taking leave for 3:18-cv-03443-DCC Date Filed 09/04/20 Entry Number 30 Page 5 of 37physical therapy appointments. I reduced those appointments substantially even to the point of stopping physical therapy for a few weeks because of the non-support”)].
On January 5, 2015, Plaintiff emailed Mattingly for approval to attend physical therapy to occur on the next day, as she had done previously. [ECF No. 24-10 at 79]. Mattingly responded, approving the request, and asking whether the requests would “become a common occurrence” and, if so, could Plaintiff “project out your appointments and [sick leave] requests” to “help with work load planning.” Id. Plaintiff responded that she had been notifying Mattingly as much as possible, and, unfortunately, some appointments could not be projected. Id.
Mattingly responded as follows: “Please be advised that if you are not able to provide a schedule of upcoming appointments providing me with advanced notice, there may be a time when [sick leave] cannot be approved.” Id. at 78. Plaintiff alleges she had been providing days and sometimes a week or more notice for her appointments and colleagues were approved for leave for a headache without notice. Id. at 38:8-41:11. However, on the rare occasions when she asked for leave on the same day, it was approved. [ECF No. 24-10 at 39:14-20; see also ECF No. 27-1 at 28:16 (Mattingly stating he does not “recall ever denying any leave.”)].
In August 2014, Plaintiff additionally requested to be allowed to come to work early, to make up time needed for physical therapy, for roughly two mornings a week over the course of at least a month. [ECF No. 23-2 at 20:510, 22:10-14]. Mattingly did not agree to the change, although he had made adjustments for other workers within the office who had asked for repeated, if not ongoing, adjustments, informing Plaintiff that she needed to contact Jones. Id. at 20:5-25:12 (Plaintiff testifying that she was not aware of “any other coworker . . . asking for multiple days a week for at least a month to come in early”). Plaintiff did not contact Jones. Id. at 25:6-12.
Defendant has put forth evidence that Mattingly offered to allow Plaintiff to change her start time to come in at 6:30 a.m., which was a standard start time employees were allowed to begin, but because Plaintiff only wanted to come in early on certain days and “that's when [he] said for her to send [him] an email and [he'd] forward it to Phyllis to see if we could approve any special things.” [ECF No. 27-1 at 28:17-29:6].
D. March 2015 Accommodation Agreement
On January 5, 2015, Plaintiff submitted a formal request for accommodation, requesting the ability to telework, use the software Dragon Speak Easy, and have flexible leave for therapy and medical appointments. [ECF No. 24-1 at 2-3; ECF No. 24-10 at 18:1-22].
This software would allow Plaintiff to dictate her notes rather than type them. [ECF No. 23-2 at 84:16-18; ECF No. 24-10 at 25:1-3].
On February 4, 2015, she was advised by Mary-Lynn Dickson (“Dickson”), the Equal Employment Opportunity (“EEO”) specialist, that she had submitted sufficient medical documentation for processing her accommodation request. [ECF No. 24-1 at 4]. Plaintiff was further informed that Dickson would meet with Plaintiff to discuss her request and options for providing her effective accommodation and that Dickson's goal was to decide on Plaintiff's request and provide the accommodation, if approved, within less than 30 calendar days. [ECF No. 24-10 at 59].
On February 5, 2015, Dickson communicated to Plaintiff's supervisors and others that Plaintiff had requested an accommodation, had provided documentation to demonstrate she had a disability as defined by the Rehabilitation Act, and that Plaintiff had limited use of her right hand regarding typing, grasping, and holding items, and that she was easily startled by environmental noises. Id. at 76. Email traffic ensued, including an email sent on February 11, 2015, by Tamara Nichols (“Nichols”), acting chief of human resources, stating “[w]e really need to what we can to keep [the teleworking approval] moving.” Id. at 74-76.
As an interim relief, on February 11, 2015, Plaintiff was placed in a new office that was private to decrease environmental stimuli and was allowed to close the door; however, Plaintiff continued to wait for a government laptop, the telework agreement, and the installation of the Dragon Easy Speak software on the laptop. [ECF No. 24-10 at 20:13-24; id. at 62 (“Interim relief: Provided a private office in order to decrease environmental stimuli, 2/12/2015”)].
Plaintiff appears to argue that the interim office provided her was “placed in a high-traffic area” and “not suitable for providing decreased stimuli.” [ECF No. 24 at 5]. However, citations to the record provided by Plaintiff indicate only that she inquired on March 10, 2015, whether “after June 14, 2015, when I return back to work full-time will I be in an alternate location with decreased environmental stimuli?” [ECF No. 24-1 at 5; see also id. at 13 (January 2015 discussion concerning desk placement); ECF No. 24-10 at 58:1-24 (“at the time when the initial telework agreement was done, it was primarily because we didn't have space for her that would get her out of the area that had all the people working in it ”)]. Additionally, Defendant has submitted evidence that Plaintiff was placed in a number of offices during this interim time period. [See ECF No. 27-2 at 8:10-9:1, 10:4-19].
On March 10, 2015, Plaintiff was informed as follows regarding her accommodation request:
• Dragon software has been ordered and received. It is pending installation;
• A government laptop has been requested and is pending assignment;
• You will telework three days a week (Monday, Thursday, & Friday);
• On Tuesday and Wednesday, you will work onsite in an environment with decreased stimuli; and
• NLT than June 14th, 2015, you will be provided with a permanent onsite work station with decreased environmental stimuli. Within three business days of this notification, you will return to the facility full time.[ECF No. 24-1 at 2; see also ECF No. 24-10 at 62 (reasonable accommodation tracking report identifying Plaintiff's accommodation request was resolved in 34 days from receiving the last of Plaintiff's medical documentation)].
Defendant has submitted evidence that Plaintiff's request for telework was approved late February 2015. [ECF No. 27-1 at 9:17-11:7; ECF No. 27-2 at 9:20-24].
On the same day, Plaintiff emailed Dickson and asked “in regards to the telework/alternate workstation after June 14, 2015 when I return back to work full-time will I be in an alternate location with decreased environmental stimuli?” to which Dickson responded “Yes, I will clarify the wording and resend,” also inquiring of Plaintiff as follows: “During our original conversation you stated you wanted to have flexible use of leave for your doctors appointments and therapy appoints. Can you tell me what that would entail? What do you mean by flexible use of leave?” [ECF 24-1 at 5]. Plaintiff responded:
I am very short on my sick leave. I go out for surgery on March 19, 2015-April 23, 2015. Upon return to work, I will have to undergo extensive physical therapy. Either I can make up my time that will be lost during the week for appointments or the use of annual leave since I have that on the books.[ECF No. 24-10 at 56].
In April or May 2015, while Plaintiff was working on site two days a week, Nichols placed her in an office that was shared with Keith McNair (“McNair”), was filled with boxes, and was located in the corner of the hall such that there was a lot of noise due to the overhead speakers and construction to the elevators. [ECF No. 24-1 at 7; ECF No. 24-10 at 1; id. at 42:14-45:16]. Plaintiff complained to EEO concerning the boxes and “mentioned it to Mitchell Mattingly,” and some of the boxes were removed. [ECF No. 23-2 at 91:2-92:24; see also ECF No. 24-10 at 43:3-20 (Plaintiff stating she did not mention her concerns about the boxes to Nichols because she was able to sit at McNair's desk because she and McNair were not in the office at the same time)].
On July 6, 2015, Plaintiff's work assignment changed, shifting her to work with pharmacy, but she was informed her telework agreement would not be affected. [ECF No. 24-10 at 45:17-18; id. at 72; ECF No. 23-2 at 60:1016]. However, on July 14, 2015, Plaintiff was informed that she would have to appear in person for meetings on Mondays because of “Pharmacy's reluctance to schedule their recruitment meeting on any day other than Monday.” [ECF No. 24-10 at 71-73; ECF No. 24-1 at 15]. Plaintiff agreed to report in person on Mondays and Tuesdays instead of the agreed-upon Tuesdays and Wednesdays and asked Mattingly if her telework agreement should be updated. [ECF No. 24-10 at 71-72].
Following consultation with the EEO office, on July 20, 2015, Mattingly emailed Plaintiff informing her that, according to the EEO office, her telework agreement had expired, and that until a new agreement could be established, Plaintiff should report to work daily. [ECF No. 24-10 at 71; id. at 21:8-23:15]. Although Plaintiff had by this time received a laptop, the requested software, and a new office, Plaintiff's office, as discussed above, was inadequate due to the ongoing noise level. [ECF No. 24-10 at 23:16-25:3; see also id. at 66 (July 17, 2015 email from Plaintiff stating “I am in a closed office with a reduction in stimuli. However, it's not lessen to the point of where I am not disturbed or effected.”)].
It appears the parties dispute whether the office Plaintiff had been placed in at this time was consistent with her March 2015 accommodation agreement, specifying that Plaintiff would “provided with a permanent onsite work station with decreased environmental stimuli.” [ECF No. 24-1 at 2; ECF No. 24-10 at 66 (July 17, 2015 email from Plaintiff stating “I am in a closed office with a reduction in stimuli. However, it's not lessen to the point of where I am not disturbed or effected.”); ECF No. 24-10 at 24:16-21 (Plaintiff stating that she did not have the required accommodations that she needed for her PTSD when she returned to work on July 20, 2015); ECF No. 27-2 at 9:7-10 (Nichols testifying “when her telework agreement expired, we did that. We brought her back into the facility into an office that we deemed to meet her needs as far as her accommodation went.”); id. at 14:21-23 (“She had at this point a permanent office with a laptop and docking station.”)].
E. August 2015 Telework Agreement
On July 17 and 24, 2015, Plaintiff advised Dickson she wanted a new accommodation for telework and that her office was not an appropriate accommodation for her disability; Dickson set up a meeting between Nichols and Plaintiff on July 30, 2015. [ECF No. 24-10 at 25:12-26:19; id. at 66]. Additionally, Dickson, who Plaintiff described as “the go-between” Plaintiff and Nichols, advised Plaintiff that she could not request a new accommodation for telework since she was being accommodated with the aforementioned office. Id. at 26:15, 48:17-49:2; id. at 65 (email from Dickson stating as follows: “Ms. Green, In July you contacted me and said that you would like to request another reasonable accommodation to only telework. You currently have an approved accommodation, thus my response was that you could not request another reasonable accommodation for the same thing that is in your approved accommodation.”).
On July 30, 2015, Plaintiff met with Nichols regarding the telework agreement, and Nichols proposed an “ad hoc telework agreement,” with Plaintiff working from home one day per month. Id. at 21:20-22:4, 27:2-18. Plaintiff informed Nichols that she continued to have trouble with her disability, and Nichols acknowledged that it sounded as though Plaintiff had less anxiety when she teleworked. Id. at 27:20-28:1. Nichols then stated Plaintiff could telework one day per week. Id. at 28:1-29:23.
That night, Plaintiff emailed Nichols to ask him to allow her to review some information before making a decision as to her telework arrangement. Id. at 70. An email conversation ensued between Plaintiff and Nichols that resulted in an agreement, signed August 17, 2015, allowing Plaintiff to telework two days per week with flexibility to telework more on occasion, as needed. [ECF No. 24-10 at 67-70; ECF No. 24-2 (August 2015 Telework Agreement)].The agreement was for seven to 12 months. [ECF No. 24-2; see also ECF No. 24-10 at 67-68 (“I will accept the Wednesday & Friday days.”)].
By February 7, 2016, Plaintiff's telework schedule was increased to three days per week. [ECF No. 24-10 at 54:12-55:5].
During this time, it appears Plaintiff continued to have concerns about her office. On August 17, 2015, Dickson emailed Plaintiff, stating she had been doing research “regarding possible solutions to the problem of environmental noise,” suggesting a desk top microphone for the Dragon Speak Easy software and noise cancelling headphones. [ECF No. 24-10 at 64]. In November 2015, Plaintiff emailed Dickson, stating “I was told . . . that I would receive noise cancelling headphones and a white noise machine to see if that would assist.” [ECF No. 24-10 at 64; see also ECF No. 24-1 at 10 (December 3, 2015 email directing a work order to be put in to have Plaintiff's microphone and headphones installed)].
Also, in November 2015, Plaintiff sent Mattingly brief emails informing him that there was a ringing noise in her office, that the elevator outside her office was extremely loud due to construction, and that she bruised her leg because of the boxes in her office. [ECF No. 24-1 at 8-9; see also ECF No. 272 at 12:7-13:8, 32:3-11 (Nichols testifying that as soon as she was notified of Plaintiff's concerns, on the same day, she had the boxes removed and, although construction on the elevator had been completed, she requested the alarm and bell on the elevator be lowered to a more moderate level)].
During August and September 2016, the VA conducted a reassignment search for Plaintiff. [ECF No. 23-2 at 112:22-113:18]. Plaintiff was offered a position at a call center in her commuting area. [ECF No. 23-16]. Plaintiff declined the position in part because, as described, the position “could increase [her] anxiety levels,” even though the offer was made to explore reasonable accommodations that could be put in place as needed. Id.
F. December 2016 Accommodations
It appears that at the end of 2016, following an absence from work and her return on November 7, 2016, Plaintiff was placed in an office that was not suitable and she sought a new telework agreement. [See, e.g., ECF No. 24-4 at 5; ECF No. 24-6 at 6 (Celeste Abdus-Salaam (“Abdus-Salaam”) stating that when Plaintiff “returned from leave in November 2016,” “no efforts were made to address where [Plaintiff's] work area would be so she was placed in an office with me and worked from a small round table with her laptop.”)].
Plaintiff references periods of time off from work for medical reasons, but the record is not consistently clear when these periods commenced or ended. [See, e.g., ECF No. 24-10 at 56 (“I go out for surgery on March 19, 2015-April 23, 2015”); but see ECF No. 24-3 at 2 (December 1, 2016 email referencing “going out on FMLA in August 18, 2016 for the past year”); ECF No. 24-9 at 1-2 (November 2017 emails referencing that Plaintiff was out on FMLA leave)].
On November 16, 2016, Plaintiff sent an email to Kiera Wilson (“Wilson”), supervisory human resource specialist, stating “I don't have a telephone. Has a location been found for me to sit? As I have to keep leaving the office for Celeste['s] customers. Any word on my telework agreement?” [ECF No. 24-1 at 1]. On the same day, Plaintiff sent an additional email to Wilson and others stating “I want to make note that I don't always have access to a computer; the docking station is needed for my laptop. To include, I don't have anywhere to sit. Therefore I periodically have access. I've asked Kiera about an area to sit a few times but I have not received a response.” [ECF No. 24-5 at 3].
On November 17, 2016, Plaintiff and Tori Thompson (“Thompson”), the EEO manager, held a meeting. [ECF No. 24-5 at 1]. Following the meeting, Plaintiff sent the following email:
The purpose of the meeting was to assess my needs as Ms. Dickson was assisting me through the accommodation process and has since left. We spoke about the accommodations throughout the year and a half that I was receiving.
• January 2015 request for reasonable accommodations. (Flexible use of leave, telework/alternate work locations, Dragon software).
• March 2015 granted to telework 3 days a week for 3 months until a permanent onsite office was located, dragon software.
• July 2015 accommodations revisited.
• August 2015 is when the white noise box and noise cancelling headphones were spoken of to be provided as an accommodation for myself. Telework agreement was for 2 days.
• December 2015 headphones and a microphone was provided but per IT the items were not compatible with my gov't issued laptop nor were the headphones noise cancelling.
• February 2016 my telework days increased temporarily from 2 to 3 days a week.
• June 2016 desktop microphone was ordered.
• November 2016 Plantronics Headphones received per IT they are not noise cancelling headphones.
The finalization of the meeting was that you would get with the service for the following:
• Conducive office space as I am currently sitting at a table in the office with Celeste that has a printer on top of it.
• Telework agreement as I was told 10/20/2016 from Mrs.Kiera Wilson that my agreement would be processed before my return from FMLA.
• Flexible use of leave original request January 2015 that has never been addressed.
• Noise Cancelling-HeadphonesId. Ongoing conversations ensued in late November 2016 between Plaintiff and Thompson concerning Plaintiff's accommodations, including Plaintiff's concerns about the VA's plans to move her to back to her old building. [See ECF No. 24-4 at 10-12; see also ECF No. 24-3 at 2].
Plaintiff alleges that because her flexible leave request had never been approved, she had to cut back on appointments or not attend appointments due to her lack of sick leave and that it caused her pain, stress, and delayed recovery. [ECF No. 24-10 at 50:19-53:5].
On November 22, 2016, Nichols circulated an email to Thompson and others, not including Plaintiff, stating Plaintiff's current office assignment would need to be changed because Abdus-Salaam was required to have a private office due to the nature of her work. [ECF No. 23-17; see also ECF No. 23-2 at 116:15-117:4 (Plaintiff acknowledging Abdus-Salaam, at that time, needed a private office due to the nature of her work)]. Nichols additionally indicated dissatisfaction with Plaintiff's telework agreement and “the level of work completed” by Plaintiff, stating discussion needed to occur as to “options for moving forward as we do not feel that leaving her on a regular and recurring telework schedule in an office separate from the rest of the staffing section is viable or conducive to her success ....” [ECF No. 23-13].
Also, in late November 2016, Plaintiff contacted Thompson about the headphones she had been provided, stating they were not working as well as she wanted. [See ECF No. 23-15]. Plaintiff was informed that she “may need to consult with your Doctor for a specific device recommendation. Once you have that information, provide it to us, then we can move forward on getting the correct item.” [ECF No. 23-15; see also ECF No. 23-2 at 118:1-22 (Plaintiff confirming she did not consult with her doctor concerning the headphones)].
On December 1, 2016, Plaintiff sent the following email:
My name is Alexis Green and I work within Human Resources at the Dorn VA Medical Center. At this time management are in violation of the reasonable accommodation program under the American Disability Act & Rehabilitation Act .... Currently, management is trying to place me back in an environment where the harassment and hostility commenced. The engagement process does not occur. Management changes my accommodations without engaging me to see if accommodations would be conducive.
Management indicated that I will be able to work from home as late as November 10, 2016 for 3 days a week. This was the same agreement I worked prior to going out on FMLA in August 18, 2016 for the past year due to having decreased anxiety, as it pertains to my disability. Now, I am being told by the EEO
Manager on November 21, [2016], management wants me to work full-time and place me back in the area where the hostility initially began ....
As of November 21, 2016 I received ear mufflers that were supplied by Logistics, although I was told I would receive noise cancelling headphones since August 2015. The ear mufflers do not assist. As described by the Supervisor of Logistics, the ear mufflers reduce the high decibel noises, not cancel out the noise. The mufflers act as protection to prevent damage to the ears from loud noises and are not reasonable accommodations ....[ECF No. 24-3 at 2]
In response to the above email, David L. Omur, interim medical center director, stated as follows:
I have spoken with HR leadership and the Reasonable Accommodation Coordinator and they assure me they are engaging with you in the interactive reasonable accommodation process.
It is my understanding that two sets of noise canceling headphones have been procured for your use and neither were compatible with the Dragon software that you utilize. In an effort to provide you with the necessary reduced environmental stimuli, standard over-the-head hearing protection was procured for your use. You reported that the hearing protection did not eliminate all sound; therefore Ms. Thompson is currently attempting to locate an alternate solution for you. This may include a white noise machine or another type of noise canceling headphones.
Additionally, the agreement for 3 days per week telework was presented to me for signature earlier today. I am in the process of reviewing the package and expect to return it to Human Resources tomorrow morning.Id. at 1.
Thereafter, Plaintiff was provided accommodation, effective December 12, 2016, allowing her to telework three days a week, working onsite two days a week in the same building she had been previously working in, providing her with a white noise machine or allowing to use her personal headphones, and allowing her flexible use of leave. [ECF No. 23-18 at 1].
Plaintiff alleges, however, on September 5, 2017, Plaintiff was notified by Wilson, then Plaintiff's supervisor since September 2016 and person that Plaintiff alleges had been hostile to her in the past, that her telework schedule was being changed, with Wilson indicating that she was not aware of the specifics of Plaintiff's accommodations. [ECF No. 24-7 at 8; ECF No. 23-2 at 47:17-48:7; PTF 11-12]. After Plaintiff informed her of her accommodations, Wilson determined “no changes [were to be] made but she would get back to me.” [ECF No. 24-7 at 8].
Two weeks later, Wilson advised Plaintiff to report to the office on an agreed-upon telework day for Plaintiff to complete work she had been unable to accomplish on the previous day that she was onsite. [See ECF No. 23-19 at 1-3; Id. at 2 (“Due to the fact that your panel was cancelled today, the panel has to be held tomorrow. The reason for having the panel on tomorrow is due to the fact that you will be out on Thursday for your appointment and the panel members will not be available on Friday.”)]. Plaintiff agreed to report to work on the day requested, and, after completing the work, she returned home to telework for the remainder of the day and thereafter returned to her normal telework schedule that appears to have lasted until she was terminated from her position with the VA. [See ECF No. 23-19 at 1; ECF No. 23-2 at 125:1-7].
G. Exclusive Telework Request
In late September or early October 2017, while Plaintiff was on FMLA leave, Plaintiff requested to be allowed to exclusively telework. [ECF No. 24-9 at 2, 5; ECF No. 23-2 at 125:8-13]. Plaintiff was informed that her request could not be addressed until she returned to work so as to allow the interactive process to occur. [ECF No. 24-9 at 1-3 (“because you are not in a work status, he is unable to arrange a meeting with you to discuss accommodation options with you, to include reassignment (if accommodation within your current position is not an option)”)].
In conjunction with Plaintiff's request to be allowed to exclusively telework, it appears Marschelle Cox (“Cox”), who was employed in the human resources department “at the same time Alexis Green was employed,” submitted a request for medical documentation to Plaintiff's physician. [ECF No. 23-20 at 1; ECF No. 24-8 at 1]. Plaintiff's physician responded to the request on December 5, 2017, stating that Plaintiff's request to work from home would “allow lower stress level, fewer distractions, more flexible work pace.” [ECF No. 23-20 at 1-2]. Plaintiff has additionally submitted an affidavit completed by Cox, who states that she, at some unknown time, asked Nichols how she should handle Plaintiff's “accommodation requests,” perhaps referencing Plaintiff's request to be allowed to exclusively telework, and was informed to “not worry about it.” [ECF No. 24-8 at 1].
Plaintiff was given notice on November 24, 2017, that a proposal had been made to remove her from her position for failure to follow certain guidelines, standards, and supervisors' instructions. [ECF No. 23-27]. Plaintiff was released by her physician to return to work on approximately December 7 or 8, 2017. [ECF No. 23:2 at 143:2-13]. Plaintiff was terminated from her position service effective December 22, 2017. [ECF No. 23-28].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
The Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service ....29 U.S.C.A. § 794 (West).
To state a claim pursuant to the Rehabilitation Act for failure to accommodate a disability, a plaintiff must show that “(1) she was a qualified person with a disability; (2) the employer had notice of the disability; (3) the plaintiff could perform the essential functions of her position with a reasonable accommodation; and (4) the employer nonetheless refused to make the accommodation.” Hannah P. v. Coats, 916 F.3d 327, 337 (4th Cir. 2019). Here, the parties dispute whether or not Defendant refused to make the reasonable accommodations needed by Plaintiff to perform the essential functions of her position.
The standards used to determine whether a federal agency has violated the Rehabilitation Act “shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210) as such sections relate to employment.” 29 U.S.C. § 791(f); see also Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir. 2012) (citations omitted) (“To the extent possible, we construe the ADA and Rehabilitation Act to impose similar requirements. Thus, despite the different language these statutes employ, they require a plaintiff to demonstrate the same elements to establish liability.”).
The Rehabilitation Act does not require the agency to provide an employee with the accommodation of her choice. Id. at 338; Griffin v. Holder, 972 F.Supp.2d 827, 849 (D.S.C. 2013) (citing Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997)) (“[a] qualified individual with a disability is not entitled to the accommodation of her choice, but only to a reasonable accommodation.”)). Ultimately, the discretion rests with the agency/employer “to choose between effective accommodations, and [the agency] may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Griffin, 972 F.Supp.2d at 849 (citation omitted).
Defendant argues there is no dispute that the VA provided Plaintiff with reasonable accommodations starting in 2014 following her return to work after she incurred her injury on July 4, 2014. [ECF No. 23-1 at 24-25]. Plaintiff disagrees, arguing that it should be a question for the jury whether Defendant's delay in providing accommodations, and the ineffectiveness of the accommodations offered, amounted to Defendant's refusing to reasonably accommodate her. [ECF No. 24 at 11-14]. More specifically, Plaintiff argues the following facts are disputed precluding summary judgment: (1) whether Plaintiff was denied reasonable accommodation for teleworking, (2) whether Plaintiff was provided flexible leave for appointments as requested in such a time as to constitute a denial of accommodation, (3) whether Plaintiff was timely provided effective noise-cancelling headphones, and (4) whether Plaintiff was provided effective office accommodations. [See ECF No. 24-11; ECF No. 24 at 11-14].
1. Teleworking
To the extent Plaintiff argues that, generally, Defendant failed to provide telework accommodations in a timely manner, the record does not support her argument. Plaintiff initially requested telework on January 5, 2013, and Defendant approved Plaintiff's request roughly two months later, providing for telework accommodations to last roughly three months.Following notification to Plaintiff as to the expiration of this arrangement on July 21, 2015, the parties entered into a new telework agreement on August 17, 2015, that provided Plaintiff with two days a week of telework that was increased to three days a week effective February 7, 2016. It appears that Plaintiff had concerns about her telework arrangement again at the end of 2016 when she returned from leave, which resulted in a December 12, 2016 accommodations agreement that appears to have remained in effect until she was terminated from her position at the VA over a year later, around December 22, 2017.
As argued by Plaintiff,
Plaintiff argues it is undisputed that “Plaintiff's request to telework was not approved for two months following her request . . . and [she] worked in an environment she advised Defendant triggered PTSD while she waited for approval.” [ECF No. 24 at 11; see also ECF No. 24-10 at 62 (reasonable accommodation tracking report identifying receipt of Plaintiff's last requested medical information on February 4, 2015, and approval of Plaintiff's accommodation request on March 10, 2015)]. However, Plaintiff does not provide, nor is the court aware, of precedent indicating that Defendant taking one month to process and approve Plaintiff's accommodation request, following Plaintiff's submission of medical paperwork, and attempting to provide her with an interim accommodation, violates the Rehabilitation Act. See, e.g., Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 432 (4th Cir. 2015) (finding two-month interval between employee's request for accommodation and employer's determination of accommodation reasonable and timely for purposes of interactive process); see also Farquhar v. McCarthy, 814 Fed.Appx. 786, 788 (4th Cir. 2020) (citations omitted) (“Importantly, to comply with the Rehabilitation Act, employers need not immediately implement or accept accommodations proposed by an employee. Nor must an employer move with maximum speed in addressing a request for accommodations.”).
To the extent Plaintiff argues that Defendant failed to accommodate her disability by not allowing her to exclusively telework [see ECF No. 24 at 13], an argument it appears that she also attempted, unsuccessfully, to make to Defendant multiple times, [see, e.g., ECF No. 24-4 at 5; ECF No. 24-9 at 2; ECF No. 23-2 at 125:8-13], her argument fails in that she has conceded that she could not accomplish her essential duties without assistance while exclusively teleworking. [See ECF No. 23-2 at 126:3-130:18, 117:5-25]. As stated by the Fourth Circuit, a reasonable accommodation “does not require an employer to reallocate essential job functions or assign an employee ‘permanent light duty.'” Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 323 (4th Cir. 2011).
Plaintiff additionally highlights that she was informed she needed to alter her telework schedule twice in order to attend, in person (1) Monday meetings with pharmacy after her work assignment was changed and (2) a one-day panel that she had failed to be complete the previous day and also could not be completed later that week.
Regarding the former, it is undisputed that Plaintiff's telework agreement had expired by the time the request to alter her telework was made, and, notwithstanding, it is undisputed that Plaintiff agreed to alter her telework days to attend the Monday meetings in person. Similarly, regarding the latter, it is undisputed Plaintiff agreed to go in on the one day that she was scheduled to telework, she returned home after the work was completed that day to finish the day teleworking, and she resumed her standard telework schedule thereafter. These isolated instances do not indicate the VA refused to make reasonable accommodations regarding Plaintiff's telework arrangements.
Plaintiff additionally alleges that while teleworking, she was not provided a phone, even though taking calls was a part of her job, and therefore she had to use her personal phone. [See ECF No. 24-10 at 57:5-12; ECF No. 24 at 14 n.9]. It is not clear if Plaintiff is arguing that by not providing her a phone, Defendant failed to reasonably accommodate her disabilities. Additionally, although not clear, it appears the parties pursued a solution where Plaintiff would be issued a Blackberry for her telework days. [See, e.g., ECF No. 24-10 at 68]. However, there is no indication in the record why this or other potential solutions were unsuccessful, why there were repeated concerns about Plaintiff's inability to be “accessible to [her] customer” while teleworking, nor why Plaintiff's use of her personal phone was an insufficient solution. [See, e.g., ECF No. 24-10 at 57:5-12; ECF No. 24-10 at 68].
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to this issue.
2. Flexible Leave
Plaintiff initially requested flexible leave to address her disability on January 5, 2015. On March 10, 2015, Dickson requested further information from Plaintiff regarding this request, to which she responded that she was running short on sick leave, would need to undergo physical therapy following surgery scheduled at the end of March, and would either “make up my time that will be lost during the week for appointments or the use of annual leave since I have that on the books.” [See ECF 24-1 at 5; ECF No. 2410 at 56]. There appears no evidence on record, however, as to how Plaintiff's leave was handled regarding her appointments following her surgery, and Plaintiff's response does not appear to fully clarify what she sought from Defendant regarding her flexible leave request. See, e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citations omitted) (“The employee's request must be sufficiently direct and specific, giving notice that she needs a special accommodation.”).
Notwithstanding, Plaintiff alleges that because her flexible leave request had never been approved, she had to cut back on appointments or not attend appointments due to her lack of sick leave and that it caused her pain, stress, and delayed recovery. [ECF No. 24-10 at 50:19-53:5]. However, Plaintiff does not identify the appointments she was unable to attend and the record is silent as to any further request concerning flexible leave until the November 17, 2016 meeting with Thompson. [See ECF No. 24-5]. Following that meeting, on December 12, 2016, Defendant approved Plaintiff's accommodation request to take leave without pay when she did not have paid time off to cover medical absences. [ECF No. 23-18 at 112-112; ECF No. 23-2 at 118:23-119:16].
Additionally, there is no record evidence that Plaintiff communicated to Defendant that she would be unable to attend appointments due to lack of flexible leave, except as discussed above, and the record reveals no evidence that Defendant ever denied her leave to attend medical appointments or for any other reason. The record reveals, instead, that Plaintiff's leave requests were approved, even when submitted on the same day, although Mattingly informed Plaintiff the requests may not be approved if not provided sufficiently in advance, and that Plaintiff failed to follow up as instructed with Jones for approval to change some, but not all, of her work hours to attend appointments.
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to this issue.
3. Noise-Cancelling Headphones
It appears the first reference to noise-cancelling headphones was made by Dickson, not Plaintiff, on August 17, 2015, with Dickson informing Plaintiff that she was engaged in research “regarding possible solutions to the problem of environmental noise” and suggesting a desk top microphone for the Dragon Speak Easy software and noise-cancelling headphones. [ECF No. 24-10 at 64]. The record does not reveal further mention of noisecancelling headphones until November 17, 2015, when Plaintiff emailed Dickson, stating “I was told . . . that I would receive noise cancelling headphones and a white noise machine to see if that would assist.” Id.
As recounted by Plaintiff during the November 17, 2016 meeting with Thompson, the following thereafter occurred, although no information is provided by Plaintiff, or the record, as to what occurred during this time otherwise:
• December 2015 headphones and a microphone was provided but per IT the items were not compatible with my gov't issued laptop nor were the headphones noise cancelling ....
• June 2016 desktop microphone was ordered.
• November 2016 Plantronics Headphones received per IT they are not noise cancelling headphones.[ECF No. 24-5 at 1; see also ECF No. 24-1 at 10].
As indicated above, the EEO Office and the information technology department were involved with this request, and Plaintiff received multiple sets of headphones, the first roughly one month after she followed up with Dickson concerning the latter's suggestion about the headphones. However, the headphones provided were not compatible with Plaintiff's dictation software and another set did not cancel the noise to Plaintiff's liking. Following the above, in late November 2016, EEO suggested Plaintiff procure from her physician a recommendation for a device that would suffice, but Plaintiff declined to provide any input and failed to pursue the headphones further. Notwithstanding, Plaintiff was provided a white noise machine in her December 2016 accommodation agreement.
As recounted, the record reveals Defendant engaged in an ongoing and “interactive process to identify a reasonable accommodation” with the employee, but, as noted by the Fourth Circuit, the employer “has the ultimate discretion to choose between effective accommodations.” Hannah P., 916 F.3d at 337. Although Plaintiff invokes precedent stating “an indeterminate delay has the same effect as an outright denial,” Scoggins v. Lee's Crossing Homeowners Ass'n, 718 F.3d 262, 272 (4th Cir. 2013) (citation omitted), here, any delay appears to be a result, at least in part, of Plaintiff's inaction. Defendant engaged with Plaintiff in an ongoing process in an attempt to accommodate her, the noise-cancelling headphones being one of several accommodations discussed and tried by the parties to allow Plaintiff to work onsite, as discussed more below. See Griffin, 972 F.Supp.2d at 849 (citing Beadle v. Hillsborough County Sheriff's Department, 29 F.3d 589, 592 (11th Cir.1994)) (holding the agency satisfies its legal obligation when it “shows that a reasonable accommodation was afforded the employee, regardless of whether the accommodation was one which the employee suggested.”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to this issue.
4. Office Accommodations
Plaintiff contends that Defendant did not provide effective office accommodations, but the record reveals Defendant's ongoing and effective efforts to provide Plaintiff with decreased environmental stimuli and to address her concerns about her office accommodations in a timely manner. See, e.g., Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 95 (2d Cir. 2015) (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002)) (“Reasonable accommodation may take many forms, but it must be effective.”).
Beginning with her initial office accommodations concerns after returning from leave following her accident, when Plaintiff complained of a door being slammed behind her, Mattingly directed that the door stop being used by employees. When Plaintiff requested a stamper with her signature on it, Mattingly stated no such device was available and directed her to have a coworker sign for her. See Griffin, 972 F.Supp.2d at 849 (citation omitted) (“While an employee's preference for one accommodation over another may be taken into account, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.”).
Following submission of Plaintiff's formal request for accommodation on January 5, 2015, for the ability to telework, certain software, and flexible leave, Plaintiff was provided an interim office with decreased environmental stimuli. Following approval of her January 5, 2015 request, Plaintiff was told she could telework for three months while the VA searched for a suitable office for her. Plaintiff was then placed in an office with McNair, who only used the office on days Plaintiff did not.
Although the record is not clear, it appears this office became Plaintiff's permanent office from perhaps April or May 2015 until Plaintiff took leave, returning November 2016. Although the parties appear to disagree whether this office was suitable for Plaintiff's needs, Plaintiff initially conceded the office was an improvement, although concerns about noise remained. [ECF No. 24-10 at 66 (July 17, 2015 email from Plaintiff stating “I am in a closed office with a reduction in stimuli. However, it's not lessen to the point of where I am not disturbed or effected.”)].
During the time Plaintiff was in this office, the record reveals limited complaints from her that were addressed by Defendant in a timely fashion, with boxes being removed and notice provided to the elevator technicians requesting noise levels be reduced. The record additionally reveals, as discussed above, the parties during this time continuing to seek resolution as to suitable headphones and a microphone.
Again, although the record is not clear, Plaintiff has put forth evidence that thereafter, upon her return to work in November 2016, she was placed in an office that was not suitable and was informed she would be moving to an office that was also not suitable. [See ECF No. 24-5; ECF No. 24-6 at 6; ECF No. 24-3 at 2]. However, Plaintiff's discussions with Defendant resulted in the December 2016 accommodation agreement allowing her to telework three days a week, working onsite two days a week in the same building she had been previously working in, providing her with a white noise machine or allowing to use her personal headphones, and allowing her flexible use of leave. [ECF No. 23-18 at 1].
As noted above, Defendant also conducted an alternative job search for Plaintiff and offered her a different position. The EEO office offered to pursue reasonably accommodating any noise issues regarding the new position. However, Plaintiff declined the job offer before engaging in whether reasonable accommodations were necessary, and if so, what accommodations could be put in place.
As noted by Plaintiff, an employer is obligated to engage in “a flexible give-and-take with the disabled employee so that together they can determine what accommodation would enable the employee to continue working.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). Although Plaintiff argues otherwise, stating that “[t]his is not a case in which Plaintiff dug in her heels to insist upon the accommodation of her choosing, nor did Plaintiff request a sound-proof environment,” [ECF No. 24 at 13], the record reveals Defendant engaged in the requisite process and provided reasonable accommodations in a timely manner needed by Plaintiff to perform the essential functions of her position.
Accordingly, the undersigned recommends the district judge grant Defendant's motion in full.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 23].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).