Court: District Court, E.D. Virginia; April 1, 2014; Federal District Court
Marina Vanyan, the plaintiff, was removed from her position as a Training Instructor at the Defense Threat Reduction Agency (DTRA) and claims this action was due to disability discrimination and retaliation, violating the Rehabilitation Act of 1973. The Department of Defense (the defendant) sought summary judgment, asserting her removal resulted from her failure to maintain a regular work schedule. Vanyan, hired in October 2003, was responsible for providing Russian language instruction to military linguists and had previously traveled extensively in her role at the Department of State. She initially expressed no issues with the travel requirements of her DTRA position. However, in 2006, she began discussing her fear of flying, which she later communicated to her supervisor, Yuri Boguslaysky, in a meeting on August 29, 2007. During this meeting, she stated that her health issues prevented her from flying but indicated a willingness to accept land travel assignments. Boguslaysky reacted with anger, allegedly threatening to assign her to flying missions as retaliation, marking a significant turning point in her employment and contributing to her claims against the defendant.
On October 22, 2007, Ellis informed the plaintiff of the need to arrange for a three-day recruiting trip to Texas. The plaintiff later declined to travel due to a fear of flying, which she linked to experiencing a painful perimenopausal stage. On November 13, 2007, she provided a physician's note recommending no flights for three months due to flight anxiety and a referral for psychiatric evaluation. This situation led to a meeting with her supervisors and Human Resources, during which her attendance issues were highlighted. The plaintiff acknowledged being late to work one or two times per week, claiming such tardiness was common practice among instructors under previous management. However, after a management change, Ellis specifically addressed the plaintiff's attendance problems, noting her tardiness and lack of responsiveness to warnings.
When confronted about her lateness, the plaintiff downplayed its significance, citing that even courts allow a grace period for late arrivals. Despite warnings from her supervisors regarding the necessity of regular attendance, her tardiness persisted. She expressed disdain for a new requirement to document her arrival and departure times, exemplified by an email to Ellis stating her intention to leave work after a personal break. This email, along with similar conduct, resulted in a meeting regarding her unprofessional behavior. The plaintiff contended that the meeting was a response to her unrelated EEO complaint against another supervisor.
On March 25, 2008, Boguslaysky requested an official doctor’s evaluation in line with the physician's note. Encouraged by Ellis, the plaintiff met with an EEO office employee to discuss a reasonable accommodation request (RAR). On April 18, 2008, she submitted her first RAR to DTRA, requesting to use ground transportation until her flying anxiety could be addressed. Her request was accompanied by a letter from Dr. Virginia Revere, who diagnosed her with panic disorder and agoraphobia. DTRA considered her RAR, while attendance issues resurfaced in December 2008.
While absent from the office, the plaintiff frequently left work early without following proper leave procedures, citing her daughter’s illness but acknowledging she took more leave than necessary and forgot to record it. She submitted inaccurate timesheets, leading her supervisor, Ellis, to request corrections upon her return and issue a Letter of Requirement addressing the plaintiff's attendance issues, failure to report for duty, and leave request procedures. The plaintiff perceived this letter as retaliation related to her ongoing EEO complaints against coworkers.
On April 28, 2009, the plaintiff submitted a second Reasonable Accommodation Request (RAR) to DTRA, seeking to perform her job without air travel. After providing additional documentation, a doctor concluded that while the plaintiff could perform most job functions, air travel was essential for her position. DTRA subsequently denied her RAR on August 21, 2009, shortly after the plaintiff returned from vacation. Following this denial, she ceased reporting to work by the end of August, attributing her decision to a new assignment requiring air travel and advice from her doctor regarding her work environment. From September 2 to September 29, 2009, she utilized approved leave, and once that was exhausted, she requested additional leave under the Family and Medical Leave Act (FMLA) for the period from September 25, 2009, to December 18, 2009.
Plaintiff submitted a leave request supported by documentation from Dr. Sarah Iannucci, a psychiatrist, indicating that her symptoms hindered her ability to perform job functions, with a potential return to work estimated within three to six months from September 2, 2009. On December 9, 2009, Ellis notified plaintiff that her three-month Family and Medical Leave Act (FMLA) entitlement would end on December 22, 2009, and requested her return to work on December 23, 2009, without accommodations, after an appeal for reasonable accommodation was denied. The return-to-work letter reportedly exacerbated plaintiff's condition. Consequently, on December 23, 2009, she requested additional leave, again supported by Dr. Iannucci’s letter. DTRA approved this request until January 8, 2010, and she subsequently received donated sick leave, extending her leave to January 25, 2010. Shortly before this leave expired, Dr. Iannucci indicated improvement in plaintiff's condition and proposed a return by the end of February 2010, with specific accommodations requested. DTRA warned that failure to return would result in being marked AWOL starting January 26, 2010. Plaintiff asserts that DTRA did not adequately respond to her accommodation request, while DTRA contends that Dr. Iannucci's letter did not constitute a formal request. After failing to return to work, plaintiff received a Notice of Proposed Removal on March 12, 2010, which she contested, asserting she was a qualified individual with a disability and that her absence resulted from the agency’s failure to accommodate her. This argument was dismissed by the deciding official, Kenneth Keating. On June 11, 2010, plaintiff was removed for being AWOL for 792 duty hours. The removal decision considered factors such as her service length, prior performance, AWOL status, and the impact of her extended absence. Plaintiff appealed her removal to the Merit Systems Protection Board (MSPB), which upheld the agency's action based on her failure to maintain a regular work schedule.
The Administrative Judge (AJ) determined that the plaintiff could not perform the essential functions of her job, even if her request to be excused from flying was accommodated. The AJ also found no connection between the plaintiff's protected Equal Employment Opportunity (EEO) activity and her removal. Following this, the plaintiff filed a petition with the Equal Employment Opportunity Commission (EEOC) on February 6, 2012, which affirmed the AJ's decision. The EEOC concluded that traveling by airplane was a core requirement of the plaintiff's role, noted that she failed to identify an alternate position she could perform, and upheld the Defense Threat Reduction Agency's (DTRA) valid reasons for her termination, primarily her failure to maintain a regular work schedule.
The EEOC's ruling ended the administrative process, and on March 20, 2013, the plaintiff initiated legal action against DTRA, claiming her removal was discriminatory due to her disability and retaliatory for her accommodation request, violating the Rehabilitation Act. She sought various forms of relief, including $300,000 in compensatory damages and reversal of the removal decision.
The defendant moved for summary judgment on both claims, asserting that the plaintiff's removal was justified by attendance-related reasons that were well-supported by evidence, which the plaintiff failed to counter. The court concluded that summary judgment was appropriate as there were no genuine disputes of material fact, emphasizing that the plaintiff needed to present substantial evidence to challenge the defendant's claims effectively.
The Rehabilitation Act prohibits federal agencies from discriminating against qualified employees with disabilities, providing a framework for addressing such discrimination claims. To prevail in a case lacking direct evidence of discrimination or retaliation, a plaintiff must establish a prima facie case, which requires demonstrating (1) a qualifying disability, (2) qualification for the position, and (3) exclusion from the position solely due to the disability. The defendant then must offer a legitimate, non-discriminatory reason for the employment action, which shifts the burden of production but not persuasion back to the plaintiff to show that this reason is pretextual.
In Count I of the Amended Complaint, the plaintiff alleges her removal violated the Rehabilitation Act. The court acknowledges that the plaintiff's panic disorder with agoraphobia qualifies as a disability. However, her claim hinges on whether she could perform her job's essential functions with reasonable accommodations and whether her disability was the sole reason for her removal. The court finds the plaintiff has not demonstrated she could meet the essential function of regular attendance, which is critical for most jobs, thus failing to establish a prima facie case of discrimination under the Act.
Plaintiff's attendance issues were significant prior to her termination from DTRA, as she admits to being absent without leave (AWOL) for four months after her approved leave expired. Despite receiving multiple notices from the defendant requesting her return to duty, including warnings of potential AWOL status, plaintiff consciously chose not to return, even after her medical condition improved. A Notice of Proposed Removal provided her more than three months to rectify her attendance problems, yet she did not demonstrate that her requested accommodation—travel assignments limited to land—would have alleviated her attendance issues. Record evidence indicates that her attendance problems predated her medical decline in 2007, including habitual lateness while under previous supervision and excessive unscheduled leave unrelated to her fear of flying. Plaintiff's explanations for her poor attendance are inconsistent with the documented history of her absences, and she fails to substantiate claims of hostility from supervisors with relevant evidence. Consequently, she has not established that she was qualified for her position or that her removal was solely based on her disability, as official communications indicate her termination was justified due to attendance-related reasons.
On February 27, 2009, the plaintiff was issued a Letter of Requirement due to chronic tardiness and poor timekeeping. By late August 2009, she left work and did not return, resulting in a Notice of Proposed Removal on March 12, 2010, for her failure to report after her approved leave expired. The final decision for her removal was made on June 11, 2010, and she was recorded as AWOL for 792 hours. The Rehabilitation Act does not protect a disabled employee from discipline for violations of legitimate work rules. The defendant provided ample time for the plaintiff to seek treatment, and she could not prove that her removal was solely due to her disability. Even if she established a prima facie case, she failed to counter the defendant's legitimate reasons for her removal—primarily, her failure to maintain a regular work schedule. Evidence in the record did not support claims of pretext, and the operational needs of the organization were hindered by her absence. Colleagues perceived her removal as a consequence of her non-attendance rather than discrimination. Although the plaintiff argued that other instructors had similar attendance issues without facing consequences, the record indicated their problems did not match the severity of hers. Additionally, none of her colleagues retained their positions after being AWOL. The plaintiff attempted to reframe her claim as a failure to accommodate, focusing on the denial of reasonable accommodation requests instead of her removal. However, this claim was not included in her Amended Complaint, which explicitly stated that she was discriminated against due to her removal. The opportunity to amend the complaint was available to her counsel, but no such request was made. Furthermore, even if a failure-to-accommodate claim were considered, she could not succeed on the merits as she failed to demonstrate that she could perform essential job functions with reasonable accommodation.
Plaintiff's failure to demonstrate that she was otherwise qualified is a significant barrier to her success in her disability discrimination claim. The defendant's conclusion that plaintiff's request for land travel only could not be accommodated, due to the necessity of air travel for her role, is deemed reasonable, supported by evidence of the importance of professional development trips. The defendant actively engaged with the plaintiff to explore potential reassignment but found no suitable positions. Although plaintiff cites a letter from Dr. Iannucci suggesting she could return to work with specific accommodations, she did not submit a formal request for accommodation (RAR) based on this letter, despite being familiar with the process. The defendant's failure to treat the letter as a formal RAR does not alone substantiate her claim, as established by case law requiring proof that the lack of engagement in the interactive process led to an inability to identify an appropriate accommodation. Furthermore, it is not discriminatory for the employer to deny an accommodation deemed unreasonable. The ADA and Rehabilitation Act do not mandate perfect accommodations, and accommodating the restrictions suggested by the plaintiff would have been overly burdensome for the defendant's operational needs. Consequently, no material issues exist for a jury regarding the discrimination claim, warranting summary judgment for the defendant. Regarding the retaliation claim, to establish a prima facie case, the plaintiff must prove she engaged in a protected activity, the employer took adverse action, and there is a causal connection between the two. Specifically, she must demonstrate that her removal was solely motivated by retaliatory intent, as clarified by recent Supreme Court standards.
Plaintiff claims several protected activities, including disclosing her disability to supervisors and submitting two Requests for Accommodation (RARs) to DTRA, asserting these actions relate to her removal. However, her claims fail for two primary reasons. First, most of the cited protected activities do not connect directly to the RARs central to her case, as they are part of a separate administrative proceeding. Second, plaintiff has not demonstrated a causal link between her disability disclosure or RAR submissions and her removal, evidenced by the significant time gap of over a year between these actions and her termination. Consequently, without direct evidence of causation, the defendant is entitled to summary judgment.
Additionally, plaintiff's request for reinstatement, implied in her Amended Complaint, necessitates a review of the Merit Systems Protection Board (MSPB) decision that upheld her removal amidst her discrimination claims. Although district courts typically do not review MSPB decisions, they can do so when a discrimination claim is present. This review is limited to the administrative record and follows a deferential standard. The MSPB’s ruling was found to be neither arbitrary nor unsupported by evidence, and it adhered to required procedures. The MSPB's conclusion that plaintiff could not perform her job's essential functions, regardless of requested accommodations, and her failure to establish a link between her EEO activities and her removal were both well-supported. Therefore, the Court finds no basis to overturn the MSPB's conclusions, leading to the granting of the defendant's Motion for Summary Judgment.
The Position Description for the Instructor role includes provisions for temporary duty (TDY) travel, which may involve moderate risks associated with air and vehicle travel to remote locations, as indicated in Factor 9. Evidence demonstrates that the plaintiff's colleagues engaged in domestic and international travel for training and recruitment during her employment. While the plaintiff mentioned other topics discussed in a meeting with Boguslaysky, she could not specify their significance and expressed willingness to explore contributions other than travel. Despite her physician’s advice, the plaintiff did not take action for six months, opting instead for self-medication with traditional remedies. Evidence reveals that she had flown with her family to Florida multiple times, undermining claims of a severe fear of flying. The defendant acknowledges that the plaintiff has a recognized disability under the Rehabilitation Act. A notice indicated that if the plaintiff did not return to duty during the notice period, she would be classified as absent without leave. The plaintiff is involved in a separate administrative proceeding alleging unlawful harassment based on gender and disability and retaliation for engaging in protected EEO activity, but she is not contesting her removal in that context. The standards for determining violations under the Rehabilitation Act align with those under the Americans with Disabilities Act (ADA). While the Rehabilitation Act lacks a specific anti-retaliation provision, it incorporates the ADA’s remedies, including protections against retaliation related to disability discrimination complaints.
