Opinion
No. 1:19–CV–1201–DAE
2022-01-18
Kelly KARNS, Plaintiff, v. Denis MCDONOUGH, Secretary of Veterans Affairs, Defendant.
Michael L. Scanes, Joel S. Shields, Scanes & Routh, LLP, Waco, TX, for Plaintiff. Thomas Arthur Parnham, Jr., United States Attorney's Office, Austin, TX, for Defendant Denis McDonough.
Michael L. Scanes, Joel S. Shields, Scanes & Routh, LLP, Waco, TX, for Plaintiff.
Thomas Arthur Parnham, Jr., United States Attorney's Office, Austin, TX, for Defendant Denis McDonough.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
David Alan Ezra, Senior United States District Judge
Before the Court is Defendant Denis McDonough's Motion to Dismiss for Failure to Exhaust and Motion for Summary Judgment. (Dkt. # 27.) The Motion was filed on March 3, 2021, and Plaintiff Kelly Karns ("Plaintiff" or "Karns") responded on March 17, 2021. (Dkt. # 28.) Defendant Denis McDonough, Secretary of Veterans Affairs, ("Defendant" or "VA") filed a reply in support of the Motion on March 24, 2021. (Dkt. # 29.) On December 6, 2021, the Court converted Defendant's Motion to Dismiss for Failure to Exhaust into a motion for summary judgment and allowed the parties an opportunity to file supplemental briefing and material. (Dkt. # 34.) The parties did so on December 16, 2021. (Dkt. ## 35, 36.) The Court finds this matter suitable for disposition without a hearing, and after careful consideration of the relevant filings, DENIES Defendant's Motion for Summary Judgment.
BACKGROUND
Plaintiff is a military veteran who suffers from post-traumatic stress disorder ("PTSD"), which she alleges amounts to a disability under the Rehabilitation Act. (Dkt. # 28 at 4–5.) Plaintiff's symptoms include "flashbacks, nightmares, insomnia, stress, and anxiety/panic attacks." (Dkt. 28-1 ¶ 8.) According to Plaintiff, these symptoms occur periodically, and can be triggered by others yelling at, berating, or threatening to assault her. (Id. )
Plaintiff worked as a nurse for the VA at its Temple, Texas facility from 2011 to 2014. (Id. ¶ 2.) In 2014, Plaintiff accepted a position with the Central Texas Veterans Research Foundation (the "Foundation") as a Clinical Research Coordinator. (Id. ) After accepting the Research Coordinator position, Plaintiff began receiving her pay and benefits from the Foundation. (Id. ¶ 3.) However, she held a without compensation ("WOC") position with the VA and continued to work in its Temple, Texas facility. (Id. ¶ 3.) Plaintiff alleges she was verbally abused by fellow employee Lance Starzyk ("Starzyk") in June 2015, and that she then requested to be "approached in a professional manner" at work as an accommodation for her disability. (Dkt. # 28 at 5; Dkt. # 28-1 ¶ 9.) Plaintiff made this request orally to Dr. Charles Foulks, who is both the Associate Chief of Staff for Research at the VA and the Foundation board president ("Dr. Foulks"). (Dkt. # 28-22 at 6, lines 21–22; 18, lines 15–19.)
Plaintiff claims her accommodation request was ignored, and that on December 4, 2015, another coworker, Lorrie Thomas ("Thomas"), yelled and lunged at Plaintiff. (Dkt. # 28-1 ¶ 10.) Three days later, Thomas allegedly threatened to assault Plaintiff and called her a "white bitch." (Id. ) In response, Plaintiff filed a race discrimination complaint with the EEO on December 8, 2015. (Dkt. # 28-10.) She also filed a report with VA Police on that same day. (Dkt. # 28-9.) According to Plaintiff, because her coworkers’ behavior impaired her ability to "think, concentrate, and communicate," she requested time away from work to cope with her PTSD symptoms. (Dkt. # 28-1 ¶¶ 9–10.) Plaintiff also claims she reported the events and EEO complaint to VA management, and that they promised to investigate. (Id. at ¶ 11.) In February 2016, Plaintiff was informed by Margaret "Maggie" McCarthy, the then Executive Director of the Foundation, that her VA credentials would not be renewed and that her employment with the Foundation was therefore terminated. (Id. at ¶ 12.)
Plaintiff alleges the VA violated (1) the Rehabilitation Act by failing to reasonably accommodate her disability, (2) the Rehabilitation Act by terminating her employment because of her disability, and (3) Title VII by retaliating against her for opposing race discrimination and filing a complaint with the EEO. (Dkt. # 1.) Defendant moves for summary judgment on all three claims.
LEGAL STANDARD
I. Summary Judgment
"Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Vann v. City of Southaven, 884 F.3d 307, 309 (5th Cir. 2018) (quotations omitted); see also Fed. R. Civ. P. 56(a). "A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Bennett v. Hartford Ins. Co. of Midwest, 890 F.3d 597, 604 (5th Cir. 2018) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
"Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating ... that there is an issue of material fact warranting trial." Nola Spice Designs, LLC v. Haydel Enter., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quotations omitted). "When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). Instead, the non-movant must identify specific evidence in the record and articulate how that evidence supports the party's claim. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).
At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form. See Fed. R. Civ. P. 56(c) ; Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017). And the court draws all reasonable inferences in the light most favorable to the nonmoving party. Wease v. Ocwen Loan Servicing, LLC, 915 F.3d 987, 992 (5th Cir. 2019). However, "unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment." United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012).
DISCUSSION
The VA moves for summary judgment on all Plaintiff's claims, arguing that, because the Foundation is an entity "legally distinct" from the VA health care system, Karns "cannot bring an employment discrimination claim against the VA under either Title VII or Section 501 of the Rehabilitation Act because the VA was not her employer at the time of the events at issue." (Dkt. # 27.) The VA also argues the Foundation (not the VA) terminated her employment, and that Plaintiff has failed to establish a qualifying disability under the Rehabilitation Act. (Id. ) Finally, Defendant contends that it is entitled to summary judgment on Plaintiff's failure to accommodate claim because she did not exhaust her administrative remedies and because her request for accommodation was not reasonable or specific enough. (Dkt. ## 27, 36.)
II. Employment Relationship
Defendant argues Plaintiff was merely a volunteer rather than a VA employee, and that she is therefore not considered an employee under Title VII or the Rehabilitation Act. (Dkt. # 27.) In response, Plaintiff advances two arguments. First, she claims that Defendant waived its argument regarding her employment status since it admitted she was a VA employee in its pleadings. (Dkt. # 28 at 2.) In the alternative, Plaintiff argues that she was, in fact, a VA employee even though she received her pay and benefits from the Foundation rather than the VA. (Id. )
a. Waiver
Defendant repeatedly admitted in its answer that Karns was a federal employee with the Department of Veterans Affairs. (Dkt. # 11 ¶¶ 5, 6, 7, 14.) Indeed, the parties agree that Karns was a WOC employee with the VA at the time of the events in question. However, this does not necessarily mean that Karns was a VA employee within the meaning of Title VII or the Rehabilitation Act. According to the Supreme Court, "[t]he mere fact that a person has a particular title ... should not necessarily be used to determine whether he or she is an employee .... Rather, as was true in applying common-law rules to the independent-contractor-versus-employee issue ..., the answer to whether [an individual] is an employee depends on all of the incidents of the relationship ... with no one factor being decisive." Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 450–51, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (internal citations and quotations omitted). Thus, while the VA's admission that Karns was an "employee" with the VA may be relevant to the Court's inquiry, it does not foreclose the VA's argument that Karns does not qualify as an employee under Title VII and the Rehabilitation Act. b. VA Employment
The parties do not agree on the appropriate standard for determining whether Plaintiff was a VA employee. Defendant contends Plaintiff should be treated as a volunteer under Fifth Circuit precedent. Plaintiff, on the other hand, argues that the VA and the Foundation were joint employers, and that she was an employee of both. For the following reasons, the Court finds neither of the parties’ proposed standards is appropriate under the facts of this case and will instead apply the Fifth Circuit's traditional economic realities/common law control test.
i. Threshold-Remuneration Test
In discerning whether an individual is an employee within the volunteer context, the Fifth Circuit applies a "threshold-remuneration" test. Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 439 (5th Cir. 2013). In applying this test, courts must first determine whether an individual received either direct or indirect benefits by reason of their position with the alleged employer. Id. at 435. Without meeting the threshold remuneration requirement, an alleged employer's "authority to supervise, hire, fire, and set applicable rules and regulations" is irrelevant. Id. at 439.
In adopting the threshold-remuneration test, the Fifth Circuit departed slightly from the traditional economic realities/common law control test normally applied in analyzing employment relationships. The court explained its departure by noting that "there is a prerequisite of a ‘hire’ " in an independent contractor relationship that is absent in the volunteer context. Juino, 717 F.3d at 439. The court concluded that the threshold-remuneration test was "uniquely suited to assessing a plausible employment relationship within the volunteer context. " Id. (emphasis added).
Juino did not satisfy the threshold-remuneration test because she received no salary, and the benefits she did receive from her "employer"—a life insurance policy, uniform and badge, firefighting and emergency response gear, job training, and nominal payment for calls responded to—were "merely incidental" to her position as a volunteer firefighter. Id. at 439–40. In the end, Juino could not escape the fact that she was a volunteer. Plaintiff, on the other hand, did not work for free. While her position with the VA was "without compensation," she received pay and benefits from the Foundation to work in a VA facility "under the direction and supervision of the VA." (Dkt. # 28-1 ¶ 3.) And, notably, Plaintiff's position with the Foundation was terminated because her WOC credentials with the VA were not renewed. (Dkt. # 28-21 at 82, lines 3–7.)
In short, Plaintiff was not a volunteer. And were the Court to extend the Juino test as Defendant urges, employers covered by Title VII and the Rehabilitation Act could entirely escape liability for workplace discrimination by simply arranging to have employees compensated by legally distinct but affiliated entities. Such a result is untenable.
ii. Joint Employer Test
Plaintiff urges the Court to find that the VA and the Foundation were joint employers rather than applying the Juino threshold-remuneration test. (Dkt. # 28 at 11.) However, the Fifth Circuit has repeatedly suggested that government employers like the VA are not subject to joint or single/integrated employer analysis. See Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 980 n.9 (5th Cir. 1980) (declining to apply "single employer" doctrine to governmental subdivisions); Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 (5th Cir. 2007) ("[O]ur prior case law suggests that a government employer ... may not be considered part of an integrated enterprise under the Trevino framework."); Garrett-Woodberry v. Mississippi Bd. of Pharmacy, 300 F. App'x. 289, 291 (5th Cir. 2008) ("[I]t seems clear that the ‘single employer’ test should not be applied here, as the Board is a state agency and is thus a governmental subdivision."). The Court therefore finds Plaintiff cannot proceed against the VA on a joint employer theory.
iii. Economic Realities/Common Law Control Test
Because the volunteer threshold-remuneration and joint employer tests are inapplicable, the Court will apply the traditional economic realities/common law control test to determine whether Plaintiff has raised an issue of material fact as to whether she was a VA employee under Title VII and the Rehabilitation Act. The test has two parts. First, the economic-realities portion of the test requires determining whether putative employees are financially "dependent upon the business to which they render service." Juino, 717 F.3d at 434. Next, "[t]he common law control portion of the test, which courts should emphasize over the economic realities portion, assesses ‘the extent to which the [alleged employer] has the right to control the details and means by which the work is to be performed.’ " Id. (quoting Diggs v. Harris Hospital—Methodist, Inc., 847 F.2d 270, 272 (5th Cir. 1988) ).
In Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), the Fifth Circuit considered whether, under the ADA, a temporary employee supplied by a staffing agency was an employee of the company for which she was assigned to work, the staffing agency, or both. Id. at 227–31. The company with which Burton was assigned argued that it was not her employer under the ADA because it did not "handle payroll, withhold taxes, [provide] benefits, [supply] workers compensation insurance, or set the terms and conditions of [Burton's] employment ...." Id. at 227. The Fifth Circuit rejected the employer's argument because there was sufficient evidence that the company nevertheless controlled Burton's employment. Id. at 227–28. For example, the company supervised Burton, its employees completed her performance reviews, and it had the authority to decide and insist she be fired. Id.
The VA makes a nearly identical argument here. It claims Plaintiff is not a VA employee (despite the fact Plaintiff worked in a VA facility and under the direction of VA employees) merely because the VA does not provide her salary or benefits. But it seems Plaintiff's salary and benefits were the only things the VA did not control. According to Plaintiff's declaration, "the VA controlled when, where, and how [she] performed [her] work." (Dkt. # 28-1 ¶ 4.) Her primary supervisors—one of which was "the only person to ever prepare a written appraisal of [her] employment performance"—were VA employees. (Id. ) The VA "furnished all the tools, materials, and equipment for performance of her job[,]" and Plaintiff was required to abide by VA rules and regulations throughout her employment. (Id. at ¶¶ 5–6.) Finally, because doing her job required maintaining WOC appointment with the VA, the VA had the authority to end Plaintiff's employment by not renewing her WOC status. (Id. at ¶ 7.)
Like in Burton, summary judgment is not appropriate because there is ample evidence that the VA controlled Plaintiff's employment. It is true that the VA did not pay Plaintiff's salary or provide her benefits. However, as noted in Burton, the economic realities portion of the test is given less weight than the control test. Id. (explaining that "[t]he right to control an employee's conduct is the most important component " of the economic realities/common law control test (emphasis added)). Thus, the Court finds the VA is not entitled to summary judgment based on its claim that Karns was not a VA employee.
III. Wrong Entity
The VA argues it is entitled to summary judgment because the Foundation terminated Plaintiff's employment rather than the VA. However, there is a genuine dispute surrounding the circumstances of Plaintiff's termination. Specifically, while the parties seem to agree that the non-renewal of Plaintiff's VA credentials preceded her termination, (Dkt. ## 27 at 13, 28 at 21), it is unclear whether the VA declined to renew Plaintiff's credentials sua sponte, or at the request of the Foundation. (Compare Deposition of Maggie McCarthy, dkt. # 28-21 at 67, lines 7–12 (testifying Karns's employment ended because the VA chose not to renew her VA credentials) with Deposition of Charles Foulks, dkt. # 28-22 at 31, lines 14–15 (testifying Karns's VA credentials were not renewed because the Foundation did not request renewal)). Whether to credit certain testimony is an issue for trial rather than summary judgment. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 81 (5th Cir. 1987) (holding witness credibility is not an issue to be resolved at the summary judgment stage).
Because there is a genuine fact dispute regarding what entity was ultimately responsible for Plaintiff's termination, the VA is not entitled to summary judgment on this ground.
IV. Disability Discrimination and Accommodation
Defendant argues that (a) Plaintiff did not exhaust her administrative remedies on her failure to accommodate claim, (b) Plaintiff's PTSD is not a qualifying disability under the Rehabilitation Act, and (c) Plaintiff's accommodation request was not reasonable or specific enough to support her failure to accommodate claim.
a. Exhaustion of Administrative Remedies
The VA argues Plaintiff's accommodation claim should be dismissed because she failed to exhaust her administrative remedies before filing suit. (Dkt. # 27 at 6.) In response, Plaintiff claims that (i) the VA waived this argument by admitting Plaintiff exhausted her administrative remedies in its answer to her complaint, and (ii) she did in fact exhaust her administrative remedies. (Dkt. # 28 at 7–10.)
i. Waiver
When denying the occurrence or performance of a condition precedent to suit, parties must do so "with particularity." Fed. R. Civ. P. 9(c). "Any condition precedent to filing suit that is not denied with particularity is deemed admitted, and it cannot be raised later in the litigation." E.E.O.C. v. Serv. Temps, Inc., 3:08-CV-1552-D, 2010 WL 2381499, at *1 (N.D. Tex. June 11, 2010), aff'd, 679 F.3d 323 (5th Cir. 2012).
Defendant admits in its answer that "Karns exhausted her administrative remedies and timely filed suit in the United States District Court." (Dkt. # 11 ¶ 20.) While Defendant contends it only intended to admit that Karns exhausted administrative remedies for her retaliation and discrimination claims, (Dkt. # 29 at 5), it did not make this distinction in its answer. Rather, in response to Karns's claim that she had satisfied "all conditions precedent to this suit ..., including exhausting all required administrative remedies [,]" (Dkt. # 1 ¶ 20) (emphasis added), Defendant admitted "Karns exhausted her administrative remedies ...." (Dkt. # 11 ¶ 20.)
However, Defendant also listed Karns's failure to exhaust her administrative remedies as an affirmative defense. (Dkt. # 11 at 3.) Because the VA explicitly identified failure to exhaust administrative remedies as one of its affirmative defenses, the Court finds it has preserved the failure to exhaust argument it makes in its motion for summary judgment.
Panels in the Fifth Circuit disagree on whether exhaustion is a jurisdictional requirement that must be met before filing suit. See Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006) ("There is disagreement in this circuit on whether a Title-VII prerequisite, such as exhaustion, is merely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject matter jurisdiction."). However, because the VA's admissions do not amount to waiver of its exhaustion argument, the Court need not address the jurisdictional question. See id. (declining to "take sides" on the jurisdiction versus prerequisite dispute after finding there was no winning waiver argument for either side).
ii. Exhaustion
Federal employee Rehabilitation Act claims are subject to the exhaustion requirements set forth in Title VII. Smith v. Potter, 400 F. App'x. 806, 811 (5th Cir. 2010) (quoting Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. Unit A 1981) ). Thus, "[a]s an initial step in the exhaustion process, the employee must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory." Yee v. Baldwin-Price, 325 F. App'x. 375, 378 (5th Cir. 2009) (quoting 29 C.F.R. § 1614.105(a)(1) ) (cleaned up). The 45-day period begins running when "the plaintiff knows of the discriminatory act." Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992) ; see also Austin v. Potter, 358 F. App'x. 602, 605 (5th Cir. 2010) (affirming summary judgment where plaintiff knew of impending termination more than 45 days before filing EEO complaint).
Because Plaintiff's claim is based on the VA's alleged failure to accommodate her PTSD, the 45-day period ran from the time she knew the VA would not grant her an accommodation. See Sanchez v. Henderson, 167 F.3d 537, *1 (5th Cir. 1998) (finding plaintiff was required to file his administrative charge within 45 days of being informed that he would not be given his requested accommodation). In response to being yelled at by coworker Lance Starzyk, Plaintiff requested in June 2015 that others "approach [her] in a professional manner" as an accommodation for her PTSD. (Dkt. 27-11 at 39, 43; Dkt. 28-1 ¶ 9.) And Plaintiff claims she did not learn that the VA was denying her June 2015 request until her employment was terminated on February 26, 2016. (Dkt. # 35 at 2.) It is thus Plaintiff's position that she timely initiated contact with the EEO regarding her accommodation claim when her attorney sent the EEO a letter and complaint on March 23, 2016.
In all, Plaintiff initiated contact with the EEO three separate times—once in December 2015, once in March 2016, and once in April 2018. In December 2015, Plaintiff reached out to the EEO regarding her interactions with Thomas; this contact with the EEO is relevant only to the extent Plaintiff alleges it motivated the VA to terminate her employment. (Dkt. # 28-10.)
Plaintiff's next contact with the EEO occurred after her termination when Plaintiff, through her attorney, sent a letter and Complaint of Employment Discrimination dated March 23, 2016. (Dkt. # 36-2.) The letter and complaint—sent less than 45 days after she was fired in February 2016—were intended to serve as Plaintiff's "initiation of counselor contact within 45 days of the discriminatory action under 29 C.F.R. Section 1614.105(a)(1)." (Id. ) In the complaint, Plaintiff claimed disability discrimination and retaliation. (Id. ) While the complaint does not explicitly mention a failure to accommodate claim, it alleges the VA retaliated against Plaintiff after she "explain[ed her] disability (PTSD) to mgmt." (Id. )
The Office of Resolution Management ("ORM") dismissed Plaintiff's March 2016 complaint as untimely because it was not filed within 15 days of receiving her notice of right to file a formal complaint regarding her December 2015 allegations. (Dkt. # 27-12 at 4.) However, Judge Lee Yeakel, U.S. District Judge for the Western District of Texas, disagreed with ORM's dismissal. Order Adopting Report and Recommendations, No. 6:16-cv-330 (W.D. Tex.), ECF No. 22. Judge Yeakel found Plaintiff's March 2016 charges of disability discrimination and retaliation did not relate back to her December 2015 contact with the EEO and were therefore timely filed within 45 days of her termination on March 23, 2016. Id. Following Judge Yeakel's dismissal of her claims in September 2017, Plaintiff initiated contact with an EEO counselor on September 26, 2017, and filed a formal complaint on April 6, 2018. (Dkt. # 25.) In her April 2018 complaint, Plaintiff mentioned her "reasonable accommodation" request for the first time:
?
(Dkt. # 28-26.)
Here, the Court must decide whether Plaintiff's April 2018 complaint is sufficient to administratively exhaust her failure to accommodate claim. Courts construe the scope of EEOC complaints liberally by considering not only "the scope of the administrative charge itself, but [also] the scope of the EEOC investigation which can reasonably be expected to grow out of [it]." Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 2006) (cleaned up). This is achieved by conducting a "fact-intensive analysis of the statement given by the plaintiff in the administrative charge, and look[ing] slightly beyond its four corners, to its substance rather than its label." Id. at 789.
While Plaintiff's March 2016 correspondence with the EEO included a Complaint of Employment Discrimination, Plaintiff's formal EEO complaint was not filed until April 2018. (See dkt. # 28-25 at 2.)
In April 2018, Plaintiff filed the complaint excerpted above in which she mentioned requesting a "reasonable accommodation" from VA management. (Dkt. # 28-26.) While Plaintiff mentions her accommodation request under a claim labeled "reprisal," the Court finds this label did not foreclose the possibility that the EEO's investigation might reasonably extend to a failure to accommodate claim. In fact, there is evidence the investigation did extend to Plaintiff's failure to accommodate claim—the EEO investigator questioned both Plaintiff and Dr. Foulks about her accommodation request. (See dkt. ## 28-28, 28-29.) Thus, the Court finds the April 2018 complaint was sufficient to exhaust administrative remedies on Plaintiff's failure to accommodate claim.
Finally, while the parties seem to agree Plaintiff's March 2016 contact with the EEO was timely as to her disability discrimination and retaliation claims, Defendant argues Plaintiff's failure to accommodate claim was not timely raised in her March 23, 2016 correspondence with the EEO. As explained above, Plaintiff was required to initiate contact with an EEO counselor within 45 days of when she knew that an accommodation would not be granted. Sanchez, 167 F.3d at *1.
There is evidence indicating Plaintiff had reason to know more than 45 days before she contacted the EEO on March 23, 2016, that her accommodation request would not be granted. For example, Plaintiff claims Starzyk continued to make her uncomfortable following her accommodation request by telling her to "stay in her lane" and laughing at her. (Dkt. # 27-11 at 44–45.) Plaintiff also claims that her primary supervisor (a VA employee), Michael Burleigh treated her differently after their relationship "went south" in June 2015. (Dkt. # 27-11 at 47.) According to Plaintiff, Burleigh would yell at her about things and that, in general, she was not treated the same after June. (Id. at 47–48.) Finally, in December 2015, the confrontations with Thomas occurred. (See dkt. # 28-1 ¶ 10.)
However, there is also evidence that Plaintiff had reason to believe—up until her termination—that the VA intended to grant her accommodation request. For example, Plaintiff claims that, in response to her accommodation request, Dr. Foulks told her he would "take care of it." (Dkt. # 27-11 at 44, lines 3–4.) And according to Plaintiff, Dr. Foulks also promised to investigate her interactions with Thomas in December 2015. Because there is a genuine fact dispute regarding when Plaintiff knew or had reason to know her accommodation request would be denied, the Court finds Defendant is not entitled to summary judgment on Plaintiff's failure to accommodate claim.
Defendant argues in the alternative that "[t]here is no evidence in the record that the VA failed to grant the accommodation requested by Plaintiff." (Dkt. # 36 at 3.) However, Plaintiff's own testimony about how she was treated at work following her request raises a fact issue on whether the VA granted her accommodation request. (See dkt. ## 27-11 at 44–45, 47–48; 28-1 ¶ 10.) Thus, summary judgment is not appropriate on this basis either.
b. Qualifying Disability
"Whether a plaintiff is disabled under the [Rehabilitation Act] is not a demanding question." Epley v. Gonzalez, 860 F. App'x. 310, 313 (5th Cir. 2021). Rather, a qualifying disability is merely "(A) a physical or mental impairment that substantially limits one or more major life activities ...; (B) a record of such an impairment; or (C) being regarded as having such an impairment ...." 42 USC § 12102(1). Among the listed major life activities are working and sleeping. Id. at § 12102(2)(A). In her declaration, Plaintiff claims her PTSD causes her to "suffer flashbacks, nightmares, insomnia, stress, and anxiety/panic attacks" and that her PTSD symptoms periodically "substantially limit [her] brain function, day-to-day activities, sleeping, and work activities." (Dkt. # 28-1 ¶ 8.) Plaintiff also submitted medical evidence indicating her PTSD diagnosis and disability rating, (Dkt. # 28-7 at 3, 12), and Plaintiff's claim that she sought leave from work to deal with her PTSD further supports her allegation that PTSD limits her ability to work. (Id. at ¶ 10.)
The Court substitutes Rehabilitation Act for ADA here since both statutes require meeting the same qualified disability standard. See Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010) ("The RA and the ADA are judged under the same legal standards ...."); Epley, 860 F. App'x. at 312–13 (combining ADA and Rehabilitation Act qualifying disability analysis).
The evidence Plaintiff presents raises a genuine fact issue on whether she has a qualifying disability under the Rehabilitation Act. See Epley, 860 F. App'x. at 313 (finding sufficient facts to demonstrate substantial limitation when plaintiff described his symptoms and how they affected his life during the relevant time period); see also 28 C.F.R. § 35.108(d)(2)(iii) ("[I]t should easily be concluded that [post-traumatic stress disorder ] will, at a minimum, substantially limit [brain function]."). Thus, summary judgment is not appropriate on this basis.
c. Accommodation Request
Defendant argues it is entitled to summary judgment on Plaintiff's failure to accommodate claim because Plaintiff's request for accommodation was vague and unreasonable. But the burden of formulating an acceptable accommodation did not rest solely on Plaintiff. Rather, once Plaintiff informed the VA that she required an accommodation, she then shared with her employer the responsibility of "fashioning a reasonable accommodation." Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). However, according to Plaintiff's summary judgment evidence, instead of engaging in the requisite "flexible, interactive" discussion with Plaintiff about her limitations and possible accommodation options, VA management merely said her request would be taken care of and that there was nothing more she needed to do. Id.; (Dkt. # 27-11 at 44, lines 1–4.) Defendant cannot seemingly grant an accommodation request—thus ending the interactive process—and at the same time claim the request is unreasonable and vague. Because Plaintiff has raised a genuine dispute on her failure to accommodate claim, the VA is not entitled to summary judgment.
At this stage, the Court draws all reasonable inferences in Plaintiff's favor. Wease, 915 F.3d at 992. Thus, for purposes of summary judgment, the Court credits Plaintiff's testimony regarding her accommodation request and Dr. Foulks's response.
CONCLUSION
It is ORDERED that, for the reasons stated above, Defendant's Motion for Summary Judgment (Dkt. # 27) is DENIED .