BELL v. SHINSEKI

Filing 42

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/20/2013 as set out herein, that Defendant's Motion for Summary Judgment (Doc. 20 ) is GRANTED. FURTHER that Defendant's Motion to File Government Exhibits Under Seal (Doc. 25 ) is GRANTED and that Defendant's Motion to Strike (Doc. 34 ) is DENIED as MOOT. A Judgment consistent with this opinion will be entered contemporaneously with this order.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TEMPIE ANN BELL,
Plaintiff,
v.
ERIC K. SHINSEKI, Secretary,
Department of Veterans
Affairs,
Defendant.

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1:12CV57

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Defendant’s Motion for
Summary Judgment (Doc. 20).

Defendant has filed a memorandum in

support of the motion (Doc. 21), Plaintiff has filed a response
in opposition (Doc. 27-1), and Defendant has filed a reply (Doc.
36).

Defendant’s motion is now ripe for adjudication, and for

the reasons that follow, this court will grant the motion.1
I.

BACKGROUND
Viewed in the light most favorable to Plaintiff, the

evidence shows the following.

1

Also pending is Defendant’s Motion to Strike (Doc. 34).
Because this court finds that Defendant is entitled to summary
judgment on all claims without striking any of the materials
submitted by Plaintiff, that motion will be denied as moot.

Tempie Ann Bell (“Plaintiff”) is a registered nurse who was
employed at the Durham Veterans Affairs Medical Center (“DVAMC”)
for a number of years.
2011.

She was terminated effective March 11,

From January 2010 until her termination, Plaintiff was

employed as a staff nurse in a medical/surgical ward.

(Def.’s

Mem. in Supp. of Mot. for Summ. J. (“Def.’s Mem.”) (Doc. 21) at
2.)

At the time she was terminated, Plaintiff had been absent

without leave since November 15, 2010.
Plaintiff worked at DVAMC as a diabetes educator from 2005
through January 2010.

(Pl.’s Resp. in Opp’n to Summ. J. (“Pl.’s

Resp.”), Part 4, Affidavit of Tempie Bell (“Bell Aff.”) (Doc.
30-5) ¶ 3.)

She had been assigned to that position as part of a

settlement agreement in an earlier discrimination suit.

(See

Government’s Exhibit L (“GE L”) attached to Def.’s Mem. (Doc.
24-6).)

In the event that Plaintiff did not obtain

certification as a diabetes instructor within the timeframe
specified in the settlement agreement, Defendant was permitted
to reassign her to “a new position [within DVAMC] where she has
the requisite skills and knowledge to perform the essential
functions of the position.”

2

(Id. at 5.)2

As amended by a

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
- 2 -

supplemental agreement, Plaintiff was required to become
certified by May 31, 2007.

(Id. at 9.)

Defendant sent

Plaintiff a notice in September 2009 reminding her of the
certification obligation and providing a 120-day extension.
(GE O (Doc. 24-11) at 2.)

Plaintiff never obtained

certification as a diabetes educator.
Effective January 25, 2010, Plaintiff was reassigned from
her position in diabetes education to a ward nursing position.
(See GE O (Doc. 24-11) at 3.)

The requirements of the ward

nursing position were modified to account for Plaintiff’s work
restrictions. (See id.; see also GE D-1 (Doc. 26-2).)

Despite

these modifications, Plaintiff found the ward nursing job
extremely difficult.

(Bell Aff. (Doc. 30-5) ¶ 8.)

Plaintiff protested the reassignment to ward nursing and
asked that she be allowed to continue her role in diabetes
education.

(Id. ¶ 7.)

In 2007, the VA approved funding for

Plaintiff to pursue a Master’s degree.

(Id. ¶ 5.)

From 2007 to

2009 – the period Plaintiff was working on her degree – the
condition in the settlement agreement that she obtain the
diabetes education certification was not mentioned.

(Id. ¶ 6.)

It was her understanding from talking to her supervisors that

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she should focus her energy on completing the Master’s degree
instead of worrying about the certification.3

(Id.)

Although Plaintiff was able to find administrative work in
another section of DVAMC in late 2009 or early 2010, she was not
permitted to take that position.

(Pl.’s Resp. Part 1, Ex. 5,

Testimony of Joseph Smith at EEOC Hr’g (Doc. 27-5) at 5-8.)
However, her preceptor felt that it was unsafe for Plaintiff to
be assigned to a ward with her medical limitations.

(Pl.’s

Resp. Part 1, Ex. 7, Sharon Faison Testimony before EEOC (Doc.
27-7) at 5.)
On August 10, 2010, Plaintiff fell at work.

(Bell Aff.

(Doc. 30-5) ¶ 9.) She had been in her usual health when she left
home that morning.

(Id.)

Plaintiff was summoned to a meeting

with Gwen Waddell-Schultz, her second-line supervisor, around
noon that day.
3

(Id.)

During that meeting, Plaintiff became

Plaintiff suggests that she should never have been
reassigned because she had been doing well as a diabetes
educator even without certification, and Defendant had waived
the certification condition by waiting more than two-and-a-half
years to enforce that provision of the settlement agreement.
For reasons addressed below, this court finds that any
discriminatory or retaliatory motive that could be inferred from
the allegedly improper transfer is insufficient to rebut the
proffered reason for Plaintiff’s discharge. See infra Section
III.C. Furthermore, Plaintiff has presented no evidence that
she could have performed the duties of a diabetes educator at
any time during her absence without leave – either with or
without reasonable accommodation - and the notes from her
physicians reflect a general inability to return to work in any
role.
- 4 -

distraught when Ms. Waddell-Schultz threatened to suspend her
and report her to the nursing board.

(Id.)

Although Plaintiff

had had difficulty performing her job as a ward nurse, she had
not been told that she was providing substandard care or
otherwise failing to perform her duties.

(Id.)

After her meeting with Ms. Waddell-Schultz, Plaintiff went
to the employee health office, where she passed out.
¶ 10.)

(Id.

When Plaintiff regained consciousness, she was on the

floor and felt pain in her face, left shoulder, and left knee.
(Id. ¶ 11.)

She heard Jackie Rogers tell someone that Plaintiff

had fallen and hit her head on the desk.

(Id. ¶ 12.)

was helped into a wheelchair and taken from the room.

Plaintiff
(Id.)

She was seen first by a doctor at DVAMC and later by a doctor in
the emergency room at Durham Regional Hospital.
Over the next several days, Plaintiff had MRIs taken and
was diagnosed with a tear of the meniscus of her left knee and a
labral tear in her left shoulder.

(Id. ¶¶ 13-14.)

Dr. David

Dellaero, her orthopaedist, testified that Plaintiff’s injuries
were consistent with a fall.

(Pl.’s Resp. Part 3, Ex. 1,

Deposition of David T. Dellaero (“Dellaero Dep.”) (Doc. 29-1) at
20-21.)
The day after her injury, Plaintiff filed a claim with the
U.S. Department of Labor Office of Worker’s Compensation
- 5 -

Programs (“OWCP”).

(See GE C-1 (Doc. 22-11).)

DVAMC took the

position that Plaintiff did not fall but rather was gently
lowered to the floor.

In support of this position, DVAMC staff

produced a reenactment of the events that included photographs,
a description of events, and witness statements.
Resp. Part 2, Ex. 4, Reenactment Doc. 28-4).)

(See Pl.’s

According to Dr.

Dellaero, the injuries were inconsistent with Plaintiff having
been assisted to the ground.

(Dellaero Dep. (Doc. 29-1) at 29.)

OWCP denied the claim because it determined that
Plaintiff’s injuries were not work-related.

Plaintiff’s second

request for reconsideration was denied in a letter dated
April 16, 2013.

(See GE J (Doc. 24-4).)

Except for Plaintiff’s

supervisor completing the Supervisor’s Report section of the
CA-1 on August 12, 2010, no other person in nursing service who
was not an eyewitness to the incident on August 10, 2010,
participated in the handling of Plaintiff’s OWCP claim.

(GE C,

Declaration of Deborah G. Linda (Doc. 22-10) ¶ 5.)
Plaintiff also requested leave under the Family and Medical
Leave Act.

Pursuant to that act, eligible employees are

entitled to “12 workweeks of leave during any 12-month period”
for several reasons, including “a serious health condition that
makes the employee unable to perform the functions” of his or
her position.

29 U.S.C. § 2612(a)(1).
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After exhausting her

other leave, Plaintiff was carried as AWOL until her FMLA leave
was approved.

One of Plaintiff’s physicians completed a

Certification of Health Care Provider (Form WH380) on
September 30, 2010.

(See GE D-4 (Doc. 26-5) at 4.)

That form

stated that Plaintiff would likely remain incapacitated from
August 10, 2010, through November 13, 2010.

(Id. at 2.)

On

November 22, 2010, Plaintiff’s timecards were changed to reflect
the approval of her FMLA request for the dates cited in her
WH380.4

(See Pl.’s Resp. Part 2 (Doc. 28-7).)

Plaintiff was not

granted leave without pay at any time after November 14, 2010.
(GE B, Declaration of Jerry Freeman (Doc. 22-1) ¶ 11.)

Under VA

policy, leave without pay is a matter of administrative
discretion.

(See GE B-7 (Doc. 22-8).)

Plaintiff did not return to work at any time after
August 10, 2010.

From that date until her termination, she

provided a number of documents and notes from her doctors
indicating that she could not return to work due to various
health conditions.

Collectively, those notes show a period of

uninterrupted incapacity from the date of her injury through the
effective date of termination, and continuing indefinitely into

4

Plaintiff had actually exhausted her FMLA leave on
November 1, 2010; however, she was granted leave without pay
from November 1, 2010, to November 14, 2010. (GE B, Declaration
of Jerry Freeman (Doc. 22-1) ¶ 5.)
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the future.
12).)

(See GE D-3 through D-11 (Docs. 26-4 through 26-

On December 11, 2012, Plaintiff’s application for

disability retirement from the VA was approved. (GE E-2 (Doc.
26-13).)
Defendant issued return to duty letters on December 27,
2010, and January 11, 2011, based on Plaintiff’s continuing AWOL
status.

(GE B-3 (Doc. 22-4) and GE B-4 (Doc. 22-5),

respectively.)

After she did not return to duty, Plaintiff was

issued a notice of proposed discharge on February 1, 2011.
B-5 (Doc. 22-6).)

(GE

The notice stated that the proposed removal

from federal service was based on Plaintiff’s unauthorized
absence from her duty station from November 15, 2010, through
January 31, 2011.

(Id.)

On February 25, 2011, DVAMC Director

Ralph T. Gigliotti sustained the charges and removed Plaintiff,
effective March 11, 2011.

(GE B-6 (Doc. 22-7).)

Since her discharge, Plaintiff has sought other employment
in nursing education or administration without success.
Aff. (Doc. 30-5) ¶¶ 19-20.)

(Bell

As of his deposition on March 6,

2013, Dr. Dellaero thought Plaintiff would “potentially” be able
to work in such a position now.

(Dellaero Dep. (Doc. 29-1) at

19.)
Plaintiff has filed several other EEO complaints against
Defendant in the past, two of which are still in the
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administrative process: Case No. 2004-0558-2010100080 and Case
No. 2004-0558-2010103561.
II.

LEGAL STANDARD
Summary judgment is appropriate where an examination of the

pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as
a matter of law.

See Fed. R. Civ. P. 56.

The moving party

bears the burden of initially demonstrating the absence of a
genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

If the moving party has met that burden,

then the nonmoving party must persuade the court that a genuine
issue remains for trial by “go[ing] beyond the pleadings” and
introducing evidence that establishes “specific facts showing
that there is a genuine issue for trial.”

Id. at 324 (internal

quotation marks omitted).
In considering a motion for summary judgment, the court is
not to weigh the evidence, but rather must determine whether
there is a genuine issue for trial.
Inc., 477 U.S. 242, 249 (1986).

Anderson v. Liberty Lobby,

The court must view the facts

in the light most favorable to the nonmovant, drawing all
justifiable inferences in that party’s favor.

Id. at 255.

mere factual dispute is insufficient to prevent summary
- 9 -

A

judgment; the fact in question must be material, and the dispute
must be genuine.
48.

Fed. R. Civ. P. 56; Anderson, 477 U.S. at 247-

Material facts are those facts necessary to establish the

elements of a party’s cause of action.
248.

Anderson, 477 U.S. at

A dispute is only “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving
party.”

Id.

III. ANALYSIS
The Amended Complaint raises disability discrimination and
retaliation claims based on Plaintiff’s termination and
Defendant’s alleged failure to provide relief or reasonable
accommodation.
claims.

Defendant has moved for summary judgment on both

For the reasons that follow, Defendant’s motion for

summary judgment will be granted.
A.

Exhaustion of Administrative Remedies

This court first addresses the scope of the actionable
claims in this case.

Before instituting a Rehabilitation Act

lawsuit, a plaintiff must first exhaust her administrative
remedies under the same standards as those applied in Title VII
actions.

Spencer v. Ashcroft, 147 F. App’x 373, 375 (4th Cir.

2005); Snead v. Bd. of Educ. of Prince George’s Cnty., 815 F.
Supp. 2d 889, 894 (D. Md. 2011).

As part of the exhaustion

requirement, an employee must contact an EEO counselor “within
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45 days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the
effective date of the action.”

29 C.F.R. § 1614.105(a)(1).

Only those claims “stated in the initial charge, those
reasonably related to the original complaint, and those
developed by reasonable investigation of the original complaint
may be maintained in a subsequent Title VII lawsuit.”

Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996).
Subject matter jurisdiction in this case arises from
Plaintiff’s administrative exhaustion of her claims raised in
Case No. 2004-0558-2011102368.
Compl.”) (Doc. 9) ¶ 17.)

(Amended Complaint (“Am.

Plaintiff initiated contact with an

EEO counselor in that case on March 15, 2011.
5) at 2.)

(GE A-3 (Doc. 21-

After her complaint could not be resolved informally,

Plaintiff filed a formal complaint of discrimination on
April 13, 2011.

The following claim was accepted for

investigation:
Whether on the bases of disability and reprisal (prior
EEO activity), [Plaintiff] was treated in a disparate
manner in matters regarding termination on March 2,
2011, when she was discharged from employment with the
Department of Veterans Affairs from the position of
Registered Nurse II.

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(GE A-4 (Doc. 21-6) at 3-4.)

A report was filed after an

investigation, and the matter was transferred to the VA Office
of Employment Discrimination Case Adjudication for final agency
decision.
¶¶ 6-7.)

(GE A, Declaration of Odessa Wright (Doc. 21-2)
A final agency decision was not issued.

This court finds that any claim based on Plaintiff’s
reassignment from diabetes education to ward nursing is not
actionable in the instant lawsuit because such a claim would be
both time-barred and outside the scope of the administrative
investigation in Case No. 2004-0558-2011102368.5

A claim based

on the reassignment would be time-barred because it occurred
over a year before Plaintiff contacted an EEO counselor in this
case, far outside the forty-five day filing period, and
Plaintiff has not suggested any equitable doctrine that would
limit or toll the filing period.
In this case, Plaintiff’s termination is the only alleged
discriminatory or retaliatory act that occurred during the
forty-five day period preceding her contact with an EEO
counselor in Case No. 2004-0558-2011102368.

Accordingly, this

court only has subject matter jurisdiction to address

5

This court also notes that the reassignment is one basis
for Plaintiff’s claims in Case No. 2004-0558-2010100080, which
is still in the administrative process.
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Plaintiff’s claims that her discharge was discriminatory,
retaliatory, or both.

Plaintiff may, however, use other alleged

prior acts as background evidence in support of her timely filed
claims based on her termination.

See Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113 (2002).
B.

Disability Discrimination

Defendant first moves for summary judgment on Plaintiff’s
disability discrimination claim.6

The Rehabilitation Act

prohibits executive agencies from discriminating against their
employees on the basis of disability.

See 29 U.S.C. § 794.

The

substantive standards for determining liability under the
Rehabilitation Act are the same as those under the Americans
with Disabilities Act.

Myers v. Hose, 50 F.3d 278, 281 (4th

Cir. 1995).
In the absence of direct evidence of discriminatory intent,
disability discrimination claims under the Rehabilitation Act
proceed under the McDonnell Douglas burden-shifting framework.
Perry v. Computer Scis. Corp., 429 F. App’x 218, 219-20 (4th
Cir. 2011) (per curiam) (citing Ennis v. Nat’l Ass’n of Bus. &

6

The Amended Complaint cites Title VII as the basis for
this claim. Disability discrimination, however, is not
prohibited by Title VII. See 42 U.S.C. § 2000e-16 (prohibiting
discrimination in federal employment based on race, color,
religion, sex, and national origin). This court will address
the claim as if it had been raised under the Rehabilitation Act.
- 13 -

Educ. Radio, 53 F.3d 55, 57-58 (4th Cir. 1995)).

Under that

framework, a plaintiff must first present a prima facie case.
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294
(4th Cir. 2010).

To establish a prima facie case of

discriminatory termination against a federal employer under the
Rehabilitation Act, a plaintiff must show that (1) she has a
disability, (2) she is otherwise qualified to perform the job,
and (3) she was terminated solely because of her disability.
See Justus v. Junction Ctr. for Indep. Living, Inc., 673 F.
Supp. 2d 462, 464-65 (W.D. Va. 2009) (citing Kinsella v.
Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003); Baird v. Rose, 192
F.3d 462, 467-69 (4th Cir. 1999)).

“If a prima facie case is

presented, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action.”

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277, 285 (4th Cir. 2004) (en banc).

If an employer does

so, “the plaintiff then has an opportunity to prove by a
preponderance of the evidence that the neutral reasons offered
by the employer ‘were not its true reasons, but were a pretext
for discrimination.’”

Merritt, 601 F.3d at 294 (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
For purposes of the summary judgment motion, Defendant does
not contest that Plaintiff was disabled within the meaning of
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the Rehabilitation Act after August 10, 2010.

Plaintiff’s prima

facie case turns on whether she has presented evidence that she
was qualified to perform her job, with or without reasonable
accommodation, at the time she was terminated.

For the reasons

that follow, this court finds that she has failed to do so.
Plaintiff bears the burden of establishing that she was
qualified.

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

454, 462 (4th Cir. 2012).

In determining whether Plaintiff was

qualified, this court must decide “(1) whether she could
‘perform the essential functions of the job, i.e., functions
that bear more than a marginal relationship to the job at
issue,’ and (2) if not, whether ‘any reasonable accommodation by
the employer would enable [her] to perform those functions.’”
Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir.
1994) (alteration in original) (quoting Chandler v. City of
Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)).
At the time she was discharged, Plaintiff could not perform
the essential functions of her job.

A “regular and reliable

level of attendance is a necessary element of most jobs.”

Id.

(collecting cases); see also Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006)
(“[A]n employee who cannot attend work cannot perform the
essential functions of his job.

This is true even when the

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absences are with the employer’s permission.”).

Plaintiff did

not return to work after her injury on August 10, 2010.

Between

that date and her termination approximately six months later,
she submitted a number of medical documents and notes indicating
that she was unable to work.
26-4 through 26-12).)

(See GE D-3 through D-11 (Docs.

Defendant issued return to duty letters

on December 27, 2010, and January 11, 2011, based on Plaintiff’s
continuing AWOL status.

On February 25, 2011, DVAMC Director

Gigliotti sustained the charges lodged in an earlier proposed
notice of termination and removed Plaintiff, effective March 11,
2011.
This court now considers whether there is evidence that any
reasonable accommodation would have enabled Plaintiff to meet
the requirements of her job.7

Although a “period of leave can in

some circumstances be a reasonable accommodation required of an
employer,” Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d
638, 652 (1st Cir. 2000); see also Kitchen v. Summers Continuous
Care Ctr., LLC, 552 F. Supp. 2d 589, 595 (S.D. W. Va. 2008)
7

It is unclear whether Plaintiff has stated a separate
failure to accommodate claim. If she has, however, she has not
established a prima facie case because she has not shown that
she was qualified for any position, including that of diabetes
educator, during the months leading up to her termination. See
Wilson v. Dollar General Corp., No. 12-1573, 2013 WL 2130939, at
*7 (4th Cir. May 17, 2013) (plaintiff must show that he could
perform the essential functions of the position with reasonable
accommodation).
- 16 -

(collecting cases), an employer is not required to “wait
indefinitely” for an employee’s medical condition to improve.
Myers, 50 F.3d at 283; see also Halpern, 669 F.3d at 465 (“[T]he
indefinite duration and uncertain likelihood of success of [the
plaintiff’s] proposed accommodation renders it unreasonable.”);
Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)
(“Inability to work for a multi-month period removes a person
from the class protected by the ADA.”); Nowak v. St. Rita High
Sch., 142 F.3d 999, 1004 (7th Cir. 1998) (“The ADA does not
require an employer to accommodate an employee who suffers a
prolonged illness by allowing him an indefinite leave of
absence.”); McNeil v. Scotland Cnty., 213 F. Supp. 2d 559, 56970 (M.D.N.C. 2002).

Here, at the time Plaintiff was discharged,

she had been absent without leave for several months and, based
on her medical notes, would continue to be so indefinitely.

In

addition, Plaintiff has presented no evidence addressing when
she would have been able to return to active duty in any role.
Accordingly, this court finds that, as a matter of law,
Defendant was not required to offer Plaintiff medical leave as a
reasonable accommodation for her disability.
Plaintiff also argues that Defendant failed to engage in an
interactive process to identify a reasonable accommodation as

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required by law.8

The duty to engage in such a process is

“generally triggered when an employee communicates to his
employer his disability and his desire for an accommodation for
that disability.”

Wilson v. Dollar General Corp., No. 12-1573,

2013 WL 2130939, at *9 (4th Cir. May 17, 2013).

Initially, this

court notes that the record is unclear as to whether Plaintiff
in fact requested a reasonable accommodation during the period
covered by the administrative proceedings that led to this case.
Even assuming that Defendant’s duty to engage in an interactive
process was triggered, however, “an employer who fails to engage
in the interactive process will not be held liable if the
employee cannot identify a reasonable accommodation that would
have been possible.”

Id.

Plaintiff suggests that reassignment

to her former role as a diabetes educator would have been a
reasonable accommodation.

Assuming reassignment would have been

reasonable, Plaintiff has presented no evidence that she would
have been able to perform the essential functions of any job at
the hospital, including diabetes educator, during the months she

8

To the extent Plaintiff’s argument is based on Defendant’s
alleged failure to engage in an interactive process with respect
to her reassignment, she has failed to exhaust the claim. This
court will consider the argument as it relates to Plaintiff’s
discharge.
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was absent without leave.9

Instead, the undisputed evidence

shows that she was incapacitated during that period and could
not report for duty in any role.

Accordingly, this court finds

that Plaintiff’s proposed accommodation would have been futile
and that any requested leave would have been unreasonable as a
matter of law under the circumstances presented by this case.
Based on the foregoing, this court will grant Defendant’s
motion for summary judgment as to Plaintiff’s disability
discrimination claim.10
C.

Retaliation

Defendant also moves for summary judgment on Plaintiff’s
claim that she was discharged in retaliation for her prior EEO
activity.

To establish a prima facie retaliation claim under

the Rehabilitation Act, a plaintiff must show that “(1) [s]he
engaged in protected conduct, (2) [s]he suffered an adverse
action, and (3) a causal link exists between the protected
conduct and the adverse action.”

See Reynolds v. Am. Nat’l Red

9

That Plaintiff is currently searching for work in
education and administration is irrelevant to what she was able
to do at the time she was terminated.
10

Even if Plaintiff had established a prima facie case of
disability discrimination, she has failed to rebut the
legitimate, nondiscriminatory reason proffered by Defendant,
that is, that she was terminated based on her continuing absence
without leave. This issue will be addressed in greater detail
in relation to the retaliation claim.
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Cross, 701 F.3d 143, 154 (4th Cir. 2012) (stating the standard
for ADA retaliation claims).
For purposes of this motion, this court assumes Plaintiff
has satisfied her burden of presenting a prima facie case of
retaliation.

Defendant does not dispute that Plaintiff has

engaged in protected activity and that her termination
constitutes an adverse employment action.

As to the third

element, several of Plaintiff’s EEO complaints were pending at
the time of her termination and both the proposing and the
deciding official were aware of her prior EEO activity (see GE F
(Doc. 23-14) at 2; GE G (Doc. 24-1) at 2), presenting some
evidence that her protected activity may have been causally
connected to her termination.

However, Defendant has proffered

a legitimate, nonretaliatory reason for discharging Plaintiff,
that is, her continuing absence without leave for a number of
months, and this court finds that this rationale has not been
rebutted so as to call it into question as pretext.
As Plaintiff correctly notes, evidence that an employer has
provided false justifications for an adverse employment action,
or different justifications at different times, supports a
finding of pretext.

See, e.g., E.E.O.C. v. Sears Roebuck & Co.,

243 F.3d 846, 852-53 (4th Cir. 2001) (“Indeed, the fact that
[the defendant] has offered different justifications at
- 20 -

different times for its failure to hire [the plaintiff] is, in
and of itself, probative of pretext.”).

In this case, however,

no evidence has been presented that Defendant has ever offered
any rationale for discharging Plaintiff other than her
continuing and extended absence without leave.

Instead,

Plaintiff contends that retaliatory motive in regard to her
termination may be inferred because Ms. Waddell-Schultz provided
conflicting reasons for Plaintiff’s reassignment during a
deposition.

However, this court finds the allegedly

contradictory statements entirely compatible.

Ms. Waddell-

Schultz testified that Plaintiff’s former position, which was
vacant at the time, was eliminated several months after the
reassignment due to DVAMC’s budget deficit.

(Pl.’s Resp. Part

2, Gwendolyn Waddell-Schultz Testimony before EEOC (Doc. 28-3)
at 3-4.)

Ms. Waddell-Schultz did not know there would be a

deficit at the time she asked Plaintiff to comply with the
settlement agreement (id. at 4), and, at least in the submitted
excerpt, she never suggested that the reassignment had anything
to do with the budget.

Accordingly, this court finds that

Plaintiff has produced no evidence of a false or contradictory
explanation that would support a finding of pretext in this
case.

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Plaintiff also cites other evidence from several months
prior to her termination in an attempt to raise an inference of
retaliatory motive: (1) her allegedly improper reassignment from
diabetes education to a ward nursing position her preceptor felt
was unsafe; (2) being required to submit a new SF-71 leave
request form every day she had an hour designated as leave
without pay; (3) the absence of warnings that she needed to
obtain her diabetes education certification as required by the
settlement agreement; (4) the absence of documentation
indicating that she had ever failed to provide appropriate
patient care; and (5) the agency’s alleged attempt to hide what
occurred during the August 10, 2010 incident through the
reenactment it produced.
This evidence is insufficient to call into question the
legitimacy of Defendant’s rationale for discharging Plaintiff.
First, none of the evidence relates directly to the termination;
instead, the evidence addresses events that occurred months
earlier, and Plaintiff has not presented evidence to explain how
these allegations relate to her discharge.

Second, neither

Director Gigliotti nor Ms. Waddell-Schultz – the deciding and
proposing official, respectively – requested, initiated, or
participated in the reenactment.

(See GE C (Doc. 22-10) ¶ 6.)

Furthermore, it is unclear what, if any, other role Director
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Gigliotti or Ms. Waddell-Schultz may have played in the OWCP
process.

Third, Plaintiff has presented no evidence – and does

not appear to suggest – that any hospital employee had been
retained under similar circumstances, that is, an employee who
had not been discharged despite having remained absent without
leave for several months and who would continue to remain absent
indefinitely.
For these reasons, Defendant is entitled to summary
judgment on Plaintiff’s retaliation claim.
D.

Defendant’s Motion to Seal

Also pending is Defendant’s Motion to File Government
Exhibits Under Seal (Doc. 25).
motion.

Plaintiff has not opposed the

Defendant seeks to seal certain of its summary judgment

exhibits which include copies of medical records and other
documents that contain details of Plaintiff’s medical
conditions.
Because these exhibits were submitted in connection with a
summary judgment motion, they are judicial records subject to

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the First Amendment right of access.11

See Rushford v. New

Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988).
Accordingly, this court may deny access to those exhibits “only
on the basis of a compelling governmental interest, and only if
the denial is narrowly tailored to serve that interest.”

Stone

v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.
1988).

In deciding whether this standard has been satisfied,

this court must
[W]eigh the appropriate competing interests under the
following procedure: it must give the public notice of
the request to seal and a reasonable opportunity to
challenge the request; it must consider less drastic
alternatives to sealing; and if it decides to seal it
must state the reasons (and specific supporting
findings) for its decision and the reasons for
rejecting alternatives to sealing.
Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 576 (4th
Cir. 2004).

11

Defendant cites Federal Rule of Civil Procedure 5.2 in
support of its motion. That rule, however, addresses the extent
to which the following information must be redacted from court
filings: (1) social security numbers, (2) taxpayer
identification numbers, (3) birth dates, (4) individuals known
to be minors, and (5) financial account numbers. Fed. R. Civ. P.
5.2(a). A court may, for good cause, require redaction of
additional information or limit a nonparty’s remote electronic
access. Id. 5.2(e). Because this court is not convinced that
Rule 5.2 applies to medical records except to the extent those
records contain social security numbers, birth dates, or other
identifying information, it will address Defendant’s motion
under the general standard for motions to seal adopted by the
Fourth Circuit.
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The motion to seal has been publicly docketed since
April 19, 2013.

Thus, the public has had “notice of the request

to seal and a reasonable opportunity to challenge the request.”
See id.

The docket reflects no action by an interested party

contesting an order to seal.
If the request is narrowly tailored, sensitive medical
information may be sealed.

See, e.g., Rock v. McHugh, 819 F.

Supp. 2d 456, 475 (D. Md. 2011); Briggs v. Marriott Int’l, Inc.,
368 F. Supp. 2d 461, 463 n.1 (D. Md. 2005), aff’d, 205 F. App’x
183 (4th Cir. 2006) (per curiam).

This court notes initially

that Defendant does not seek to seal the entire summary judgment
record.

Instead, Defendant’s request is limited to only those

materials that include information related to Plaintiff’s
medical conditions.

Because Defendant did not contest that

Plaintiff was disabled for purposes of the summary judgment
motion, this court has not considered the nature of Plaintiff’s
medical conditions except to the extent those conditions
prevented Plaintiff from being able to work in any capacity.
Accordingly, unlike many other disability discrimination cases,
these records would have little value in furthering the public
oversight of the judicial process.

Furthermore, having

considered less drastic alternatives to sealing, this court
finds that redacting the confidential portions of the documents
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would be ineffective because the relevant nonconfidential
material has already been included in the parties’ briefs, which
were not filed under seal, and this opinion.
Based on the foregoing, this court finds that the parties’
confidentiality concerns are supported by a compelling
government interest in favor of sealing and cannot be adequately
protected by alternatives to sealing.

For these reasons,

Defendant’s motion to seal will be granted.
IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

Defendant’s Motion for Summary Judgment (Doc. 20) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion to File Government
Exhibits Under Seal (Doc. 25) is GRANTED and that Defendant’s
Motion to Strike (Doc. 34) is DENIED as MOOT.

A Judgment

consistent with this opinion will be entered contemporaneously
with this order.
This the 20th day of June, 2013.

_____________________________________
United States District Judge

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