BELL v. SHINSEKI

Filing 47

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 12/27/2016, for the reasons stated herein, ORDERED that Defendant's Motion for Summary Judgment (Doc. 26 ) is GRANTED and that this case is DISMISSED. FURTHER that Defendant's motion to withdraw and motion to continue (Doc. 44 ) is DENIED AS MOOT. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TEMPIE ANN BELL,
Plaintiff,
v.
ROBERT A. MCDONALD,
Secretary, Department of
Veterans Affairs,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

1:14CV188

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Defendant’s Motion for
Summary Judgment with supporting Memorandum. (Docs. 26, 27.)
Plaintiff filed a response in opposition (Doc. 32), and
Defendant filed a reply (Doc. 38). This court has carefully
reviewed Defendant’s Motion and Memorandum, Plaintiff’s
Response, and Defendant’s Reply. For the reasons stated below,
this court will grant Defendant’s Motion for Summary Judgment.
In light of this finding, Defendant’s motion to withdraw and
motion to continue (Doc. 44) will be denied as moot.
I.

PROCEDURAL BACKGROUND
Plaintiff Tempie Ann Bell (“Plaintiff”) commenced this

action by filing a Complaint with this court on March 4, 2014,

against Defendant Robert A. McDonald, Secretary of Department of
Veterans Affairs (“Defendant”). (Complaint (Doc. 1).) Plaintiff
moved to amend her complaint on June 10, 2014. (Doc. 5.) This
court granted Plaintiff’s motion on September 29, 2014. (Doc.
10.) Plaintiff filed her Amended Complaint on October 11, 2014.
(Amended Complaint (“Am. Compl.”) (Doc. 11).) In her Amended
Complaint, Plaintiff asserted four causes of action: (1)
wrongful discrimination and harassment because of a disability,
(2) retaliation, (3) breach of contract based on Defendant’s
alleged violation of a Settlement Agreement, and (4) a request
to enjoin Defendant from collecting any tuition assistance money
from Plaintiff. (Id. at 7-9.)
While Plaintiff’s motion to amend was pending, Defendant
filed a motion to dismiss Plaintiff’s Third and Fourth Causes of
action with supporting Memorandum. (Docs. 6, 7.) Per this
court’s September 29, 2014 Order (Doc. 10)), and subsequent to
the filing of Plaintiff’s Amended Complaint (Doc. 11), Defendant
filed a Notice to the court (Doc. 13) requesting that this court
rule on Defendant’s Motion to Dismiss (Doc. 6) as if it had been
filed subsequent to the Amended Complaint.
On June 1, 2015, this court filed a Memorandum Opinion and
Order and granted Defendant’s Motion to Dismiss Plaintiff’s

- 2 -

Third and Fourth Cause[s] of Action, but allowed Plaintiff the
right to file, within ten days from the entry of the Memorandum
Opinion and Order, an amended complaint for the limited purpose
of waiving all damages in excess of $10,000 in Plaintiff’s third
cause of action. (Doc. 15 at 17.) This court further ordered
that if Plaintiff did not amend her complaint, the third cause
of action would be dismissed without prejudice. (Id.) Plaintiff
filed a Notice of Election and chose not to amend her complaint.
(Doc. 16.)
As such, only two of Plaintiff’s claims remain: (1)
discrimination and harassment based on disability in violation
of the Rehabilitation Act and the Americans with Disabilities
Act (“ADA”), and (2) retaliation. (Am. Compl. (Doc. 11)
¶¶ 22-27). Defendant has moved for summary judgment on both
remaining claims. (Doc. 26.) Plaintiff has responded. (Resp. to
Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 32); and Defendant has
filed a reply (Doc. 38).
II.

FACTUAL BACKGROUND
Viewed in light most favorable to Plaintiff, the evidence

shows the following:
Plaintiff was an employee of the Department of Veterans
Affairs (“VA”), with her primary place of employment at the VA

- 3 -

Medical Center in Durham, North Carolina (“DVAMC”). (Am. Compl.
(Doc. 11) ¶ 2.) Plaintiff worked as a Staff Nurse, an Assistant
Nurse Manager, and a Lead Charge Nurse for a number of years at
DVAMC. (Def.’s Br. in Supp. of Summ. J. (“Def.’s Br.”) (Doc. 27)
at 3; Ex. C (“Resume”) (Doc. 27-4) at 3-4.)
As a result of an earlier discrimination suit in this
district, Plaintiff and Defendant entered into a Settlement
Agreement (“Agreement”) in 2005.1 (Am. Compl. (Doc. 11) ¶ 4.)
Pursuant to the Agreement, Plaintiff was assigned a new position
at DVAMC as a diabetes educator. (Def.’s Br., Ex. E (Doc.
27-7).) This new position was created for Plaintiff. (Id.,
Ex. D1 (“Pl.’s Dep.”) (Doc. 27-5) at 21.)2 The Agreement required
Plaintiff to obtain certification as a Diabetes Educator from
the National Certification Board for Diabetes Education
(“NCBDE”) by May 31, 2006.3 (Am. Compl. (Doc. 11) ¶ 6; Agreement
(Doc. 27-7) ¶ 5(c).) Plaintiff understood that if she did not
obtain the certification, Defendant was permitted to reassign
1

The case was captioned with Case Number 1:03CV538.

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

The parties later executed a Supplemental Agreement giving
Plaintiff until May 31, 2007, to obtain the NCBDE certification.
(Def.’s Br., Ex. F (Doc. 27-8) at 2.)
3

- 4 -

Plaintiff from diabetes educator to a different position within
the DVAMC. (Agreement (Doc. 27-7) ¶ 5(c); Pl.’s Dep. (Doc. 27-5)
at 44-45.)
As a result of several conversations in 2007 and 2009 with
her DVAMC supervisor, Gwen Waddell-Schultz (“Ms. WaddellSchultz”), Plaintiff believed that if she was pursuing a
Master’s Degree, she need “not worry about” getting the diabetes
certification. (Pl.’s Dep. (Doc. 27-5) at 35-36.) However, in
March 2009, a Proficiency Report signed by Ms. Waddell-Schultz
and Plaintiff listed “[t]o become certified in diabetes
education” as one of Plaintiff’s “2009 Nursing Goals.” (Def.’s
Br., Ex. G-1 (Doc. 28-2) at 5-6.)
Plaintiff completed her Master’s Degree in August 2009.
(Resume (Doc. 27-4) at 2.) In September 2009, Ms. WaddellSchultz sent Plaintiff a notice reminding her of the
certification obligation and advising her to complete the exam
by November 2009, and to be in compliance with the Agreement by
December 20, 2009. (Def.’s Br., Ex. G-2 (Doc. 28-3).) Plaintiff
never obtained the NCBDE certification. (See Am. Compl. (Doc.
11) ¶ 8). Effective January 25, 2010, Plaintiff was reassigned
from her position in diabetes education to a ward nursing
position. (See Def.’s Br. Ex. G-4 (“Notice of Reassignment”)

- 5 -

(Doc. 28-5); see also Am. Compl. (Doc. 11) ¶ 9.) The
reassignment did not change Plaintiff’s job title as Staff Nurse
or result in the reduction of rank, salary, benefits, or
potential for promotion. (Def.’s Br., Ex. G (“Waddell Decl.”)
(Doc. 28-1) ¶ 12.)
Plaintiff suffers from chronic back pain that limits her
ability to work. (Am. Compl. (Doc. 11) ¶ 7.) Plaintiff provided
her DVAMC supervisors a letter from a physician outlining
Plaintiff’s permanent restrictions and providing guidelines for
how Plaintiff’s job duties could meet these restrictions.
(Def.’s Br., Ex. I (“Physician Ltr.”) (Doc. 29-2) at 2-3.) The
restrictions were: (1) a seven-hour work day; (2) daytime work
hours (to avoid nighttime driving); (3) no lifting more than 20
pounds; (4) avoidance of extensive bending; and (5) rest from
walking/standing as needed. (Id. at 2.) At some point, Plaintiff
alleges she was asked to provide additional medical information.
(Def.’s Br., Ex. A (“EEOC 1”) (Doc. 27-2) at 3.)
Defendant acknowledged the restrictions, advised Plaintiff
to follow the restrictions, and concluded that Plaintiff’s
abilities were within the scope of the ward nursing position.
(Notice of Reassignment (Doc. 28-5); Ex. G-5 (Doc. 28-6).) The
requirements of the position were also modified to account for

- 6 -

Plaintiff’s work restrictions. (See Waddell Decl. (Doc. 28-1)
¶ 15; see also Def.’s Br., Ex. J (“Adalam Decl.”) (Doc. 29-3)
¶¶ 9, 13.) Additionally, Plaintiff was assigned a preceptor to
help with job duties. (Pl.’s Resp., Ex. 2 (“Adalam Dep.”) (Doc.
32-3) at 7, 12, 20.) Plaintiff’s preceptor felt that it was
probably unsafe for Plaintiff to be assigned to a ward with her
medical limitations. (Id., Ex. 3 (Doc. 32-4) at 4.) Plaintiff’s
supervisor, Sampoorna Adalam (“Ms. Adalam”), met with Plaintiff
and her preceptor once a week to check on Plaintiff’s progress
on the ward. (Adalam Dep. (Doc. 32-3) at 7-8.) Despite the
modifications, Plaintiff had difficulty with the work assigned.
(Am. Compl. (Doc. 11) ¶ 10.)
Plaintiff complained to senior management and protested the
reassignment, but was returned to ward nursing duties. (Id.
¶ 9.) From May 3, 2010 to May 7, 2010, Plaintiff submitted four
“Assignment Despite Objection” forms claiming she was given
assignments that did not meet her medical restrictions. (Pl.’s
Resp., Ex. 4 (Doc. 32-5).) Ms. Adalam reviewed one of these
objections with Plaintiff and her preceptor and determined that
Plaintiff could perform the assignment within her restrictions.
(Adalam Decl. (Doc. 29-3) ¶ 14; Adalam Dep. (Doc. 32-3) at 1214, 18, 27.)

- 7 -

Plaintiff does not dispute that she was allowed to work a
seven-hour daytime shift in compliance with the first two
restrictions. (Pl.’s Dep. (Doc. 27-5) at 55-56.) Because
Plaintiff worked a seven-hour shift, she accumulated one hour
each day of leave without pay (“LWOP”), which was an approved
leave status, and was required to submit LWOP forms for those
hours. (Waddell Decl. (Doc. 28-1) ¶ 17.) However, Plaintiff
asserts that she experienced problems staying within the
confines of the other three restrictions.
Plaintiff asserts she was given tasks outside the lifting
restriction when she was given category 3 and 4 patients who
required lifting or moving. (Pl.’s Dep. (Doc. 27-5) at 70.)
Plaintiff was instructed to ask other nurses for help if a
patient needed lifting. (Id. at 60; Waddell Decl. (Doc. 28-1)
¶ 15; Adalam Decl. (Doc. 29-3) ¶¶ 9, 13.) Plaintiff did not
violate her lifting restriction (Pl.’s Dep. (Doc. 27-5) at 65)
and was not disciplined for following this restriction. (See
Waddell Decl. (Doc. 28-1) ¶ 15; Adalam Decl. (Doc. 29-3) ¶ 12.)
Plaintiff asserts she had to pick things up off of the
floor, which conflicted with her avoidance of extensive bending.
(See Pl.’s Dep. (Doc 27-5) at 74.) However, Plaintiff
acknowledged that she would find alternate ways to accomplish

- 8 -

these tasks or would ask for help. (Id. at 74-75.) Plaintiff was
not disciplined for following this restriction. (See Waddell
Decl. (Doc. 28-1) ¶ 15; Adalam Decl. (Doc. 29-3) ¶ 12.)
Plaintiff asserts she was allowed to rest in the morning
and at lunch but was admonished for resting too much in the
afternoon, despite the restriction that she rest from walking or
standing as needed. (Pl.’s Dep. (Doc. 27-5) at 77-80.)
Specifically, Plaintiff asserts she was not allowed a 15-minute
break in the afternoon. (Id. at 79.) Pursuant to the VA’s
contract with the nurses’ union, nurses were entitled to a
15-minute break for every four hours of duty. (Def.’s Br., Ex.
G-6 (Doc. 28-7) at 4.) Plaintiff was not entitled to a 15-minute
break in the afternoon because she only worked a three-hour
afternoon shift. (Waddell Decl. (Doc. 28-1) ¶ 16.) Plaintiff was
not advised that this policy meant she could not rest as needed.
(Id.; Pl.’s Dep. (Doc. 27-5) at 79-80.)
Plaintiff alleges there were times when staff or patients
were “ugly” to her or patients asked “[w]hat good are you?” when
Plaintiff needed help because of her restrictions. (Pl.’s Dep.
(Doc. 27-5) at 58-59.) Plaintiff never made additional
suggestions to her supervisors for other accommodations that
would help Plaintiff. (Id. at 87-88.)

- 9 -

All new nurses assigned to the ward where Plaintiff was
transferred were required to complete the same 8-week
orientation. (Adalam Aff. (Doc. 29-3) ¶¶ 4-6.) During
orientation, nurses had to complete the “Orientation Competency
Checklist.” (Id. ¶ 5). Plaintiff began orientation on
February 1, 2010. (Id. ¶ 7.) As of August 10, 2010, Plaintiff’s
last day at DVAMC, she had not completed all of her
competencies. (Id. ¶ 8; Def.’s Br., Ex. J-1 (Doc. 29-4).)
Plaintiff did not complete competencies that were within her
restrictions (such as medication administration), and Plaintiff
was advised to seek help with any competency she felt was
outside of her restrictions. (Physician Ltr. (Doc. 29-2) at 2-3;
Adalam Decl. (Doc. 29-3) ¶¶ 9-10.) Ms. Waddell-Schultz drafted a
proposed suspension based on Plaintiff’s failure to complete the
competencies as required and met with Plaintiff on August 10,
2010, regarding the proposal. (See Def.’s Br., Ex. G-10
(“Proposed Suspension”) (Doc. 28-11).)
Plaintiff asserts that during her time on the ward, between
February and August 2010, she had numerous confrontations with
her managers, was followed, stalked, threatened with arrest, and
was the target of harassing and demeaning conduct by her
managers. (Am. Compl. (Doc. 11) ¶ 11.) Plaintiff asserts she

- 10 -

sought assistance during this time from her union and senior
management, but remained assigned to ward nursing. (Id.) On
June 15, 2010, Plaintiff advised police that she was being
stalked and harassed by Ms. Waddell-Schultz. (Def.’s Br., Ex. N
(“Police Report”) (Doc. 29-9) at 2; Pl.’s Resp., Ex. 9 (“Witness
Statement”) (Doc. 33-5).) The police found this accusation to be
“unfounded.” (Police Report (Doc. 29-9) at 3.)
Also during this period, the hospital continued to provide
diabetes education, but that work was decentralized and assigned
to others who were not certified. (Am. Compl. (Doc. 11) ¶ 12;
Pl.’s Resp., Ex. 6 (Doc. 33-2) at 4-6.) Because of budgeting
constraints, the diabetes educator position was eliminated after
Plaintiff’s reassignment. (Waddell Decl. (Doc. 28-1) ¶ 9; Pl.’s
Resp., Ex. 17 (Doc. 35-3) at 2-4.) Plaintiff requested transfers
to other work that was less physically demanding, but those
transfers were refused. (Am. Compl. (Doc. 11) ¶ 13.)
Specifically, Plaintiff requested to be transferred to a
different nursing ward or to a different department within DVAMC
during a two-week period when she needed light duty assignment
following finger surgery. (Pl.’s Dep. (Doc. 27-5) at 81-85).
On April 23, 2010, Plaintiff received an admonishment for
“Absence without Leave” and “Failure to Follow Instruction on

- 11 -

Requesting Leave.” (Def.’s Br., Ex. G-7 (Doc. 28-8).) The
incident occurred when Plaintiff brought a doctor’s note stating
that she needed a “primarily sitting” position. (Waddell Decl.
(Doc. 28-1) ¶ 20; Adalam Decl. (Doc. 29-3) ¶ 15.) Plaintiff was
advised that no such position was available and she would need
to take leave. (Adalam Decl. (Doc. 29-3) ¶ 15.) Plaintiff did
not show for work for two days without requesting leave. (Id.)
Plaintiff was admonished but was not suspended and did not
receive a loss in pay, benefits, or rank. (Waddell Decl. (Doc.
28-1) ¶ 20.)
On May 20, 2010, Plaintiff filed a complaint in state court
challenging the transfer from diabetes educator to ward nurse.
(Am. Compl. (Doc. 11) ¶ 10.) The action was removed to this
district and later dismissed.4 (Id.)
On July 15, 2010, Plaintiff was given a “Notice of
Decision-Suspension” suspending Plaintiff for one day because of
“Failure to Follow a Written Instruction” and “Disrespectful
Conduct towards your Supervisor.” (Def.’s Br., Ex. L
(“Suspension Notice”) (Doc. 29-7).) The suspension followed an
incident that occurred after Plaintiff had finger surgery and
came to work with a doctor’s note for light duty. (Def.’s Br.,

4

The case was captioned with Case Number 1:10CV475.
- 12 -

Ex. G-9 (“June Memo”) (Doc. 28-10).) Plaintiff was advised there
were no light duty positions in her area and that pursuant to
policy, she could not be given light duty in another area. (Id.;
Def.’s Br., Ex. G-8 (Doc. 28-9) at 2.) Plaintiff became angry,
was speaking over her supervisors, and would not listen to their
instructions. (June Memo (Doc. 28-10.) Plaintiff returned to
work approximately two weeks later after she was cleared by a
doctor. (Waddell Decl. (Doc. 28-1) ¶ 21; Def.’s Br., Ex. M (Doc.
29-8).)
On August 10, 2010, Ms. Waddell-Schultz confronted
Plaintiff and threatened to initiate the revocation of
Plaintiff’s nursing license. (Am. Compl. (Doc. 11) ¶ 14;
Proposed Suspension (Doc. 28-11).) Plaintiff asserts that the
confrontation caused her to become so distraught that she fell,
hit her head, and suffered several injuries. (Am. Compl. (Doc.
11) ¶ 15.) Plaintiff filed a worker’s compensation claim. (Id. ¶
16.) Plaintiff alleges that as a result of her fall and
inability to work due to injuries sustained from the fall,
Defendant “continued its pattern of unjustified actions against
Plaintiff,” such as refusing to continue her pay, not
recognizing her leave, refusing leave requests, and refusing
other jobs not on a nursing ward. (Id. ¶ 17.)

- 13 -

On or about September 16, 2010, Defendant insisted
Plaintiff return to work as a ward nurse or be terminated. (Id.
¶ 18.) Defendant terminated Plaintiff in March 2011.5 (Id.)
Plaintiff filed two EEOC claims regarding the above matters
(January 15, 2010 and September 29, 2010), and the agency issued
its final decision on December 9, 2013. (Id. ¶ 19; EEOC 1 (Doc.
27-2); Def’s Br., Ex. B (“EEOC 2”) (Doc. 27-3).)
III. LEGAL STANDARD
Summary judgment is appropriate where an examination of the
pleadings, affidavits, depositions, 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. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). 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

Plaintiff’s termination was the subject of a separate
lawsuit in the Middle District of North Carolina, Case Number
1:12CV57. This court ruled in favor of Defendant, which was
subsequently affirmed on appeal by the Fourth Circuit.
5

- 14 -

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. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). 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. A mere
factual dispute is insufficient to prevent summary judgment; the
fact in question must be material, and the dispute must be
genuine. Fed. R. Civ. P. 56; Anderson, 477 U.S. at 247-48.
Material facts are those facts necessary to establish the
elements of a party’s cause of action. Anderson, 477 U.S. at
248. A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Id.
IV.

ANALYSIS
As an initial matter, this court notes that Plaintiff’s

allegations in the Amended Complaint claiming certain facts and
circumstances leading to her termination following her August
2010 injury were discriminatory, retaliatory, or both were
already addressed by this court and found not to be

- 15 -

discriminatory or retaliatory. Bell v. Shinseki, No. 1:12CV57,
2013 WL 3157569 (M.D.N.C. June 20, 2013), aff'd, 584 F. App'x 42
(4th Cir. 2014). Specific findings by this court were: (1) that
Defendant was not required to offer Plaintiff medical leave as a
reasonable accommodation for her disability following the
August 10, 2010 injury; (2) that Plaintiff’s proposed
accommodation to reassign her to her former role as a diabetes
educator during the months she was absent without leave
following the August 10, 2010 incident would have been futile
and that any requested leave would have been unreasonable as a
matter of law; and (3) that Defendant had a legitimate,
non-retaliatory reason for discharging Plaintiff, and
Plaintiff’s evidence was insufficient to call into question the
legitimacy of Defendant’s rationale. Based on this court’s
findings in that case, the following allegations of
discriminatory or retaliatory actions by Defendant following the
August 10, 2010 incident will not be further considered because
they were resolved in the prior judgment: refusing to continue
her pay, not recognizing her leave, refusing leave requests,
refusing other jobs not on a nursing ward, and providing a
reenactment of the August 10, 2010 fall to worker’s compensation
officers.

- 16 -

Additionally, this court notes that Plaintiff did not
allege a separate claim for failure to provide reasonable
accommodations under the ADA. Plaintiff’s Amended Complaint
delineated four separate causes of action, two of which remain,
and none of which asserted a claim for failure to accommodate.
The factual allegations in the complaint are insufficient to
state a separate cause of action for reasonable accommodation
and did not fairly place Defendant on notice that Plaintiff was
pursuing a separate claim for failure to accommodate. See Mason
v. Wyeth, 183 F. App’x 353, 359-60 (4th Cir. 2006). At best, the
allegations put Defendant on notice that returning Plaintiff to
“duty in a nursing position which nominally recognized and
accommodated her continuing medical restrictions” was part of
Plaintiff’s claim for disability discrimination. (Am. Compl.
(Doc. 11) ¶ 9.)
Even if Plaintiff had sufficiently alleged a separate
reasonable accommodation claim, it would not change Defendant’s
entitlement to summary judgment. Plaintiff did not support, with
sufficient evidence, any allegations that she requested and was
denied specified accommodations other than a transfer. In
Plaintiff’s brief, she asserts Defendant failed to engage in an
interactive process to identify reasonable accommodations, yet

- 17 -

Plaintiff admits she did not request additional accommodations
to aid her performance on the nursing ward and further admits
she was able to do the job and provide adequate care. (Pl.’s
Dep. (Doc. 27-5) at 87-88; Pl.’s Resp. (Doc. 32) at 4, 6.)6
Plaintiff offers the conclusory statement from her
preceptor that it was probably unsafe for Plaintiff to be
assigned to a ward, and further argues that Defendant requiring
other employees to assist her with certain duties was an
unreasonable accommodation. ((Pl.’s Resp. (Doc. 32) at 2-3.) It
is true that the ADA does not require a defendant to provide an
assistant to help perform essential functions of a job.
See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir.
1997) (stating employer not required to hire an additional
person to perform an essential function of a disabled employee's
Plaintiff argues in her brief that her transfer to the
nursing ward was not a reasonable accommodation. (Pl.’s Resp.
(Doc. 32) at 2-3 (citing Crabill v. Charlotte Mecklenburg Bd. of
Educ., 423 F. App'x 314, 323 (4th Cir. 2011), and Bratten v. SSI
Servs., Inc., 185 F.3d 625, 623 (6th Cir. 1999)).) These cases
stand for the proposition that it is not reasonable to require
an employer to make certain accommodations. As discussed
hereafter, an employer is not prohibited from making an
accommodation that is more than required by law. More
importantly, in the absence of a failure to accommodate claim,
no facts have been presented as to what constitutes essential
and non-essential job functions. Asking the court to make
inferences about job duties as to an unreasonable accommodation
in the absence of any claim or evidence of an unreasonable
accommodation is not sufficient to create a material issue of
fact.
6

- 18 -

position). However, choosing to provide this accommodation does
not make it unreasonable. See Myers v. Hose, 50 F.3d 278, 284
(4th Cir. 1995) (“Discouraging discretionary accommodations
would undermine Congress’ stated purpose of eradicating
discrimination against disabled persons.”). Further, the
accommodation need not be “perfect” or the “most preferable to
the employee.” Fink v. Richmond, 405 F. App’x 719, 723 (4th Cir.
2010).
Plaintiff suggests that her request for reassignment to her
previous position or to a new department within the DVAMC
following finger surgery would have been a reasonable
accommodation. A reasonable accommodation may include
reassignment, but the proposed position should be vacant or set
to become vacant within a reasonable amount of time. Lamb v.
Qualex, Inc., 33 F. App'x 49, 59 (4th Cir. 2002); EEOC v. Sara
Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001). The position must
also be one for which a plaintiff is qualified. See 29 C.F.R.
§ 1630.2(o). A defendant is not required to create a new
position, Lamb, 33 F. App'x at 59, nor is a defendant required
to disrupt a non-discriminatory company policy. Sara Lee Corp.,
237 F.3d at 355.

- 19 -

The diabetes educator position was eliminated due to budget
cuts after Plaintiff was reassigned to the nursing ward, but
even if it was not, Plaintiff was not entitled to reassignment
there. See Schneider v. Giant of Maryland, LLC, 389 F. App’x
263, 271-72 (4th Cir. 2010) (stating employer’s refusal to
restore employee to his previous position that required less
standing does not show employer failed to provide reasonable
accommodations). Plaintiff presented no other requests for open
positions other than a transfer to another department for the
two weeks she needed light duty following finger surgery.
However, Plaintiff offered no evidence that she was qualified
for the job in that department nor any basis for Defendant to
disregard the DVAMC policy that light duty positions must be in
the employee’s area. See Wilson v. Dollar Gen. Corp., 717 F.3d
337, 347 (4th Cir. 2013) (stating “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”). Plaintiff was advised to take leave until
she recovered, which is a reasonable accommodation in this case.
See Corbell v. City of Holly Hill, Civil Action No. 5:13-cv00324-JMC, 2014 WL 4722194, at *9 (D.S.C. Sept. 22, 2014)

- 20 -

(providing leave to recover from surgery in lieu of light duty
work is a reasonable accommodation).
Plaintiff’s evidence is insufficient to support a claim
that reasonable accommodations were not provided, were requested
and denied, or were necessary for performance of her essential
job functions.
A.

Disability Discrimination

The Rehabilitation Act and the ADA prohibit discrimination
against employees on the basis of disability. See 29 U.S.C.
§ 791 et seq.; 42 U.S.C. § 12101 et seq. The substantive
standards for determining liability under the Rehabilitation Act
are the same as those under Title I of the ADA. Myers, 50 F.3d
at 281.
In the absence of direct evidence of discriminatory intent,
disability discrimination claims proceed under the McDonnell
Douglas burden-shifting framework. Perry v. Computer Scis.
Corp., 429 F. App’x 218, 219-20 (4th Cir. 2011). Under that
framework, a plaintiff must first present a prima facie case of
disability discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). To establish a prima facie case of
disability discrimination, a plaintiff must show that (1) she
has a disability; (2) she was otherwise qualified to perform the

- 21 -

job; and (3) she suffered an adverse employment action solely on
the basis of the disability. Perry, 429 F. App’x at 220 (citing
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 498 (4th Cir. 2005)).
If a prima facie case is presented, the burden shifts to
the employer to articulate a legitimate, non-discriminatory
reason for the adverse action. Perry, 429 F. App’x at 220. 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 reason, but
were a pretext for discrimination.’” Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010) (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
the ADA or that she was otherwise qualified for the job.
Plaintiff’s prima facie case turns on whether she presented
sufficient evidence that she suffered an adverse employment
action solely on the basis of her disability.
“An adverse action is one that ‘constitutes a significant
change in employment status, such as hiring, firing, failing to

- 22 -

promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.’” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th
Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998)). Plaintiff must show that Defendant took the
action solely because of her disability. Mason, 183 F. App'x at
361. “The critical issue for consideration in the ‘because of’
inquiry is whether a disabled plaintiff has been ‘exposed to
disadvantageous terms or conditions of employment to which [nondisabled employees] are not exposed.’” Id. (alteration in
original).
Plaintiff alleges the following adverse actions: (1) a
transfer from diabetes education to a nursing ward; (2)
Defendant’s refusal to transfer Plaintiff back to diabetes
education and refusal to transfer her to a different department
following finger surgery;7 (3) being followed, stalked,
threatened with arrest, and harassment by her supervisors; and

Plaintiff’s complaint did not sufficiently allege that her
temporary finger injury requiring a two-week light duty
assignment was a disability within the meaning of the ADA.
Therefore, allegations relating to Defendant’s failure to
transfer Plaintiff to another department during these two weeks
are only evidence to support Plaintiff’s allegations of
discrimination and retaliation due to her back-related
disability.
7

- 23 -

(4) threats by her supervisor to have her nursing license
revoked.
1.

Allegations of Adverse Employment Actions Based
on Disability
(a)

Transfer from Diabetes Education to Nursing
Ward

Plaintiff alleges the transfer was inappropriate because
she objected to it and because it involved work she should not
have been expected to do. Plaintiff did not allege the transfer
was a demotion or caused a decrease in pay or benefits, loss of
job title or supervisory responsibility, or reduced
opportunities for promotion, which are “typical requirements for
a showing of an adverse employment action.” Boone v. Goldin, 178
F.3d 253, 255 (4th Cir. 1999) (internal quotation marks
omitted). However, “a change in working conditions may be a
factor to consider in assessing whether a reassignment qualifies
as an adverse employment action” that could give rise to
liability. Id. at 256. Unfamiliarity and increased stress
resulting from the transfer cannot support a claim of
discrimination. Id. at 255-56. Nor can a mere change in an
employee’s job assignment, even if it is “less appealing to the
employee.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,
376 (4th Cir. 2004). “[A]bsent any decrease in compensation, job

- 24 -

title, level of responsibility, or opportunity for promotion,
reassignment to a new position commensurate with one's salary
level does not constitute an adverse employment action even if
the new job does cause some modest stress not present in the old
position.” Id. at 376 (quoting Boone v. Goldin, 178 F.3d 253,
256-57 (4th Cir. 1999).
As already noted, Plaintiff did not allege any decrease in
compensation, job title, level of responsibility, or opportunity
for promotion. In fact, it appears that Plaintiff retained her
same job title and experienced no reduction in salary, benefits,
or potential for promotion. Plaintiff asserts that the work was
difficult and that she found it demeaning to request the help of
co-workers, but asserts that the fact that she “was able to do
the job at all with her limitations and not have any complaints
about the quality of her care is a testimony to her
determination to work.” (Pl.’s Resp. (Doc. 32) at 4.) This selfserving assertion, unsupported by any other evidence of adverse
effects on the terms, conditions, or benefits of employment, are
insufficient. See Edmonson v. Potter, 118 F. App’x 726, 729 (4th
Cir. 2004).
Plaintiff further argues that she was singled out and
transferred out of diabetes education for failure to obtain her

- 25 -

certification although other employees assigned to diabetes
education were not certified. However, Plaintiff entered into an
Agreement with the DVAMC in which she agreed to obtain NCBDE
certification or face the possibility of transfer. The Agreement
also created a new job for Plaintiff. Plaintiff presented no
evidence about other non-certified employees in diabetes
education who were under a similar contractual condition or
otherwise similarly situated so as to allow this court to make
any determination that Plaintiff was exposed to disadvantageous
conditions to which other employees were not.
(b)

Refusal to Transfer to Previous Position or
New Department

Plaintiff alleges that Defendant’s refusal to transfer her
back to her old position or to a temporary position in another
department constituted an adverse employment action. The
principle stated in the section above that a decision to
transfer is not an adverse employment action absent any
significant detrimental defects applies with equal force to the
decision to deny a transfer request. Wagstaff v. City of Durham,
233 F. Supp. 2d 739, 745 (M.D.N.C. 2002), aff'd, 70 F. App'x 725
(4th Cir. 2003); McDougal-Wilson v. Goodyear Tire & Rubber Co.,
427 F. Supp. 2d 595, 608 (E.D.N.C. 2006). “[A] mere refusal to
grant a transfer that an employee desires does not qualify as an
- 26 -

adverse employment action unless the decision ‘had some
significant detrimental effect’ on the employee [such as] . . .
reduced pay, a diminished opportunity for promotion, less
responsibility, or a lower rank. Wagstaff, 233 F. Supp. 2d at
744 (quoting Boone, 178 F.3d at 256-57).
“Plaintiff must point to a genuine issue of material fact
either that her requested transfer was a promotion and not
merely a transfer or that Defendant's refusal to . . . transfer
resulted in a ‘significant detrimental effect’ in her employment
status.” Royster v. Costco Wholesale Corp., 378 F. Supp. 2d 595,
605 (M.D.N.C. 2005). Here, “[n]othing in the pleadings
demonstrates that Plaintiff's requested transfer was anything
but a transfer, and that the refusal to transfer[,] or transfer
back, . . . brought any significant detrimental effect such as
reduced pay, diminished opportunity for promotion, reduced
responsibility, or lower rank.” Id. at 605-06. These were not
adverse employment actions.
Although Plaintiff was not allowed a temporary light duty
assignment during her finger surgery recovery, after taking
leave for approximately two weeks, Plaintiff returned to work in
the same position with no reduction in responsibility, hours,
salary or benefits. It was not discriminatory for Defendant to

- 27 -

require Plaintiff to take a short leave instead of reassignment
to another department for light duty. See Carter v. Tisch, 822
F.2d 465, 466 (4th Cir. 1987) (holding that employer was not
under a duty to accommodate a disability by assigning employee
to permanent light duty); see also, Corbell, 2014 WL 4722194, at
*9 (stating that not providing light duty assignment of choice
and providing unpaid leave to allow time for recovery instead
was reasonable). Further, Plaintiff presented no evidence that
this refusal was because of her disability or anything more than
Defendant following DVAMC policy that applied to all DVAMC
employees.
(c)

Allegations of Being Followed, Stalked,
Threatened with Arrest, and Harassment by
Supervisors

Plaintiff alleges that she was followed and stalked by
co-workers spying on her actions on the ward; that her
supervisor followed her during on-duty hours on the ward; that
her co-workers made “ugly” comments about her work; and that she
was generally harassed by her supervisor and threatened with
arrest.
This Circuit has held that a manager yelling at an employee
during a meeting or directing employees to spy on a co-worker
“does not rise to the level of an adverse employment

- 28 -

action . . . without evidence that the terms, conditions, or
benefits of her employment were adversely affected.” Munday v.
Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997)
(relating to Title VII claim). Plaintiff offered no evidence
that her co-workers or supervisor were following her on the ward
because she was disabled. It is not unreasonable for a
supervisor, or even co-workers, to take action to verify that
employees are present during their working hours and staying on
task. There is not sufficient evidence to show that the
co-workers or supervisors watching Plaintiff’s daily work
activities led to a change in the terms, conditions, or benefits
of her employment.
Similarly, where co-workers are snubbing and vilifying an
employee and the employer fails to correct the uncivility, it
may be considered “ordinary workplace strife” which does not
constitute adverse employment action. Matvia v. Bald Head Island
Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001) (retaliation
claim). That co-workers may have made “ugly” comments about
Plaintiff’s work does not itself constitute an adverse
employment action. There is not sufficient evidence that any
negative comments by co-workers caused a change in the terms,
conditions, or benefits of Plaintiff’s employment.

- 29 -

As for the allegations that Plaintiff was threatened with
arrest, the evidence shows that around the time of Plaintiff’s
first admonishment, she was instructed that if she returned to
the ward that day, the police would be called. However, there is
no evidence that the police were contacted – other than by
Plaintiff herself – or that there was any change in the terms,
conditions, or benefits of Plaintiff’s employment because of
this incident.
Nor can Plaintiff claim that the first written admonishment
for “Absence without Leave” and “Failure to Follow Instruction
on Requesting Leave” rose to the level of an adverse employment
action. The admonishment did not lead to further discipline or
cause a loss in pay, benefits, or rank. See Adams v. Anne
Arundel Cty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015)
(stating that neither written nor verbal reprimands qualified as
adverse employment actions because they did not lead to further
discipline). Plaintiff has failed to show that this admonishment
or reprimand by Defendant had any formal or tangible impact on
the terms or conditions of Plaintiff's employment. Newby v.
Whitman, 340 F. Supp. 2d 637, 664 (M.D.N.C. 2004) (stating no
adverse employment action when no evidence that plaintiff was

- 30 -

suspended, demoted, transferred, or given pay reduction due to
receiving warning letter).
Whether the second admonishment leading to the imposition
of Plaintiff’s one-day suspension is an adverse employment
action requires more discussion. It does not appear that the
Fourth Circuit has made a finding of whether a one-day
suspension can be an adverse employment action, but there is an
unpublished opinion suggesting that it likely could be an
adverse action. The Fourth Circuit, in Agelli v. Sebelius, found
that a three-day suspension could be an adverse employment
action. 466 F. App'x 174, 175 (4th Cir. 2012). It is unclear
from the Agelli opinion whether the suspension was with or
without pay, and likewise it is unclear from Plaintiff’s
evidence whether her suspension was with or without pay.
However, even if found to be an adverse employment action,
Plaintiff failed to demonstrate that Defendant took this action
because of her disability, as explained in more detail below.
The evidence shows that this suspension was for insubordination
following a decision requiring Plaintiff to take leave when
there were no light duty assignments for Plaintiff within the
terms of DVAMC’s policy.

- 31 -

(d)

Threats by Supervisor to Take Action to
Revoke Plaintiff’s Nursing License

Ms. Waddell-Schultz’s threat to take action to initiate the
revocation of Plaintiff’s nursing license as outlined in the
Proposed Suspension does not constitute an adverse employment
action in this case because it was never put into effect and did
not cause Plaintiff to suffer any loss in pay, benefits, or
rank. See Adams, 789 F.3d at 429; Newby, 340 F. Supp. 2d at 663
(stating that threat to terminate employee or subject him to
“fitness for duty” evaluation that never materialized did not
amount to adverse employment action). Although the Proposed
Suspension occurred on Plaintiff’s last day on the ward, the
reasons for Plaintiff not returning to work were unrelated to
the Proposed Suspension, and in fact, Defendant began insisting
that Plaintiff return to work following Plaintiff’s absence due
to injury.
Plaintiff’s evidence does not support her contention that
the Proposed Suspension was based on her disability. The
Proposed Suspension related to Plaintiff’s failure to complete
her competencies. The evidence shows that all nurses on
Plaintiff’s ward were required to complete these competencies,
and the evidence suggests there were competencies that

- 32 -

undisputedly fell within Plaintiff’s restricted abilities, such
as administering medicine.
2.

Defendant Proffered Legitimate,
Non-discriminatory Reasons for its Actions and
Plaintiff has not Established Pretext

Even if this court were to assume that Plaintiff
established an adverse employment action and established a prima
facie case of discrimination, Defendant has proffered the
following legitimate, non-discriminatory reasons for its actions
in this case: that the transfer was based on Ms. WaddellSchultz’s understanding that Plaintiff failed to become
certified as required by the Agreement; that Defendant was
following the DVAMC policy regarding light duty assignments in
its refusal to allow a temporary transfer; that Plaintiff’s
first admonishment was for being absent without requesting leave
as instructed; that Defendant’s “harassment” and threats
regarding Plaintiff’s nursing license related to Plaintiff’s
failure to complete the competencies required of all ward
nurses; and that Plaintiff’s final Proposed Suspension related
to Plaintiff’s insubordinate conduct towards her supervisors.
Plaintiff’s offered evidence to rebut Defendant’s reasoning
is the allegation that Ms. Waddell-Schultz provided inconsistent
explanations regarding Plaintiff’s reassignment. Plaintiff is

- 33 -

correct that an employer providing different explanations at
different times can support a finding of pretext. See, e.g.,
EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir.
2001). However, this court previously determined that Ms.
Waddell-Schultz’s statements in this regard were “entirely
compatible.” Bell, 2013 WL 3157569, at *8. Accordingly, this
court finds that Plaintiff produced no evidence to suggest that
discriminatory animus fueled Defendant's decisions so as to
support a finding that Defendant’s reasons were pretextual.
B.

Retaliation

The McDonnell Douglas burden-shifting scheme also applies
to retaliation claims. Morris v. BellSouth Telecomms., Inc., 302
F. Supp. 2d 515, 522 (M.D.N.C. 2004). To establish a prima facie
case of retaliation under either the Rehabilitation Act or the
ADA, a plaintiff must show that (1) she engaged in protected
conduct; (2) she suffered an adverse employment action
subsequent to engaging in protected conduct; and (3) there was a
causal link between the protected activity and the adverse
action. Perry, 429 F. App’x at 220 (quoting Laber v. Harvey, 438
F.3d 404, 432 (4th Cir. 2006)). “The employer may then rebut the
prima facie case, see McDonnell Douglas v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), by showing that there was

- 34 -

a legitimate non-discriminatory reason for the adverse action,
Ross [v. Communications Satellite Corp.], 759 F.2d [355], 365
[4th Cir. 1985], after which the burden shifts back to the
plaintiff to show that those reasons are pretextual. Carter v.
Ball, 33 F.3d 450, 459 (4th Cir.1994).” Munday, 126 F.3d at 242.
For purposes of the summary judgment motion, Defendant does
not contest that Plaintiff engaged in protected conduct.
Plaintiff’s prima facie case for retaliation turns on whether
she presented sufficient evidence that she suffered an adverse
employment action subsequent to engaging in protected conduct,
and whether there was a causal link between the protected
activity and the adverse action.
In a retaliation case, a plaintiff must show that “a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67-68 (2006) (internal quotation marks
omitted); Hoyle, 650 F.3d at 337–38. “An employee's decision to
report discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often take

- 35 -

place at work and that all employees experience.” Burlington N.,
548 U.S. at 68.
Additionally, in analyzing the third prong of the test,
courts have held that mere temporal proximity between the two
events is insufficient to satisfy the causation element of the
prima facie requirement. Clark Cty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (per curiam). The Fourth Circuit has held
that a lapse of three to four months between the protected
activity and adverse action is “too long to establish a causal
connection by temporal proximity alone.” Pascual v. Lowe's Home
Ctrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006)
(unpublished). This Circuit has even held that a mere ten-week
separation between the two events “is sufficiently long so as to
weaken significantly the inference of causation between the two
events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.
2003). “Where the time between the events is too great to
establish causation based solely on temporal proximity, a
plaintiff must present ‘other relevant evidence . . . to
establish causation,’ such as ‘continuing retaliatory conduct
and animus’ in the intervening period.” Perry v. Kappos, 489 F.
App’x 637, 643 (4th Cir. 2012) (citing Lettieri v. Equant Inc.,
478 F.3d 640, 650 (4th Cir. 2007)).

- 36 -

In this case, the transfer from diabetes education to the
nursing ward occurred several years after Plaintiff’s first EEOC
complaints, and the transfer had already been put in motion
prior to the January 2010 EEOC complaint. In the absence of
temporal proximity between the EEOC complaints and the transfer,
Plaintiff failed to produce sufficient alternative evidence
showing that the earlier EEOC complaints and the transfer were
related.
On Plaintiff’s other allegations of adverse actions, if
this court assumes, for purposes of Defendant’s motion, that
Plaintiff could show an adverse action and show that there was a
causal connection between the January 2010 EEOC complaint and
the action such that Plaintiff satisfied her burden of
presenting a prima facie case of retaliation, Defendant would
still be entitled to summary judgment on Plaintiff’s retaliation
claim.
Defendant’s proffered reasons, which were discussed above,
were legitimate, non-retaliatory reasons. Defendant’s rationale
has not been rebutted by Plaintiff with sufficient evidence to
call such reasons into question as pretext. In determining
whether Plaintiff met her burden, this court examined whether
there were inconsistencies or contradictions in Defendant’s

- 37 -

proffered legitimate reasons such that a reasonable factfinder
might find the reasons unworthy of credibility. However, mere
conclusory allegations and assertions by Plaintiff do not
suffice to establish pretext as long as Defendant’s reasons are
ones that might motivate a reasonable employer. Thus, even
assuming that Plaintiff established a prima facie case of
retaliation, she failed to show that a genuine issue of material
fact existed as to pretext.
C.

Harassment

Defendant also moved for summary judgment on Plaintiff’s
claim of harassment. To prevail on a hostile work environment
claim, Plaintiff must prove that she: (1) is a qualified
individual with a disability; (2) was subject to unwelcome
harassment; (3) the harassment was based on her disability; (4)
the harassment was sufficiently severe or pervasive to alter a
term, condition, or privilege of employment; and (5) some
factual basis for imputing liability to the employer. Fox v.
GMC, 247 F.3d 169, 177 (4th Cir. 2001).
For purposes of the summary judgment motion, Defendant does
not contest that Plaintiff was disabled and was subject to
unwelcome harassment based on her disability. Defendant disputes
that the harassment was sufficiently severe or pervasive so as

- 38 -

to alter Plaintiff’s employment, and also disputes that
liability can be imputed to Defendant.
“Plaintiffs must clear a high bar to satisfy the severe or
pervasive test. . . . On summary judgment, the court must
identify situations that a reasonable jury might find to be so
out of the ordinary as to meet the severe or pervasive
criterion.” Adefila v. Select Specialty Hosp., 28 F. Supp. 3d
517, 525 (M.D.N.C. 2014) (citing EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 315 (4th Cir. 2008)) (internal quotes and
citations omitted). In this inquiry, Plaintiff must demonstrate
that her employer's conduct was objectively hostile, such that a
reasonable person would perceive it as such. Fox, 247 F.3d at
178. Factors the court may consider in analyzing whether the
conduct was objectively hostile include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993).
Here, Plaintiff complains she was harassed about obtaining
NCBDE certification and that the subsequent transfer to the
nursing ward was harassment. However, the certification

- 39 -

requirement and transfer stemmed from an Agreement Plaintiff
entered into with Defendant, which Ms. Waddell-Schultz
reasonably believed should be enforced. Defendant provided
Plaintiff the opportunity to take the certification exam along
with several reminder notices. The notices encouraged and
reminded Plaintiff to take the exam to fulfill the conditions of
the Agreement. The notices in this case do not rise to the level
necessary to state a hostile work environment claim. There is no
evidence that these reminders related to anything other than
fulfilling the Agreement. The subsequent transfer, which was
based on the conditions of the Agreement, was not sufficiently
severe to alter a term, condition, or privilege of Plaintiff’s
employment as was discussed above.
Plaintiff also alleges that Defendant’s requests for
Plaintiff to provide additional medical information regarding
her disability and to begin filling out SF-71 forms for her one
hour of LWOP each day was harassment. Plaintiff asserts that she
was asked to provide additional medical information because
Defendant lost her records. This request does not rise to the
level necessary to state a hostile work environment claim. An
employer has the right to request medical documentation for the
purpose of assessing Plaintiff and her requests. Cf Koch v.

- 40 -

Schapiro, 759 F. Supp. 2d 67, 76 (D.D.C. 2011) (“[A]n employer's
request for medical documentation for the purpose of assessing
an employee's credibility or determining an appropriate
accommodation is not an adverse employment action.”); Tayag v.
Lahey Clinic Hosp., Inc., 677 F. Supp. 2d 446, 453 (D. Mass.
2010) (“Being asked to produce additional paperwork, even if the
request was unreasonable, does not constitute ‘adverse
employment action’ under the ADA.”), aff'd, 632 F.3d 788 (1st
Cir. 2011).
The same is true for the request that Plaintiff fill out
SF-71 forms. Plaintiff does not take issue with the policy that
she accrues LWOP for her accommodation to work shorter hours (as
she has done for several years), but argues that being asked to
fill out DVAMC forms for the leave was harassment. There is no
evidence that Plaintiff was singled out to fill out these forms,
and it is not severe and pervasive so as to rise to the level of
a hostile work environment.
Finally, although Plaintiff did not allege in her
harassment claim that the comments by her co-workers and the
stalking and threats by her co-workers and supervisors were
harassment, this court finds that such instances would not rise
to the level necessary to state a hostile work environment

- 41 -

claim. Plaintiff may have had a strained relationship with some
of her co-workers, but the evidence shows that her co-workers
did provide aid to Plaintiff. Further, Plaintiff was assigned a
preceptor to help with job duties. Plaintiff’s supervisor met
with Plaintiff and her preceptor once a week to check on
Plaintiff’s progress. While Plaintiff may have subjectively
perceived the ward as hostile, the evidence does not support an
objective view that it was deeply repugnant or anything more
than occasional insensitive conduct by some coworkers that may
sporadically wound or offend but does not alter employment. See
Edmonson, 118 F. App'x at 730; Shiflett v. GE Fanuc Automation
Corp., No. 97-1687, 1998 WL 386116, at *4 (4th Cir. June 19,
1998).
Further, the allegations that Plaintiff was threatened with
arrest are not supported by evidence sufficient to suggest a
hostile work environment. There is no evidence that the police
were contacted – other than by Plaintiff herself – or that this
was anything other than a single incident relating to
Plaintiff’s first admonishment. Furthermore, Plaintiff returned
to work following the admonishment with no apparent change to
the terms, conditions, or benefits of her employment.

- 42 -

As for the allegations of stalking, it is not unreasonable
for a supervisor, or even co-workers, to check that employees
are present during their working hours and performing their
assigned duties. There is no legally sufficient evidentiary
basis to show that the co-workers or supervisors monitoring
Plaintiff’s daily work activities were objectively severe and
pervasive workplace harassment.
Based on the foregoing, this court will grant Defendant’s
motion for summary judgment as to Plaintiff’s harassment claim.
V.

CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that

Defendant’s Motion for Summary Judgment (Doc. 26) is GRANTED and
that this case is DISMISSED.
IT IS FURTHER ORDERED that Defendant’s motion to withdraw
and motion to continue (Doc. 44) is DENIED AS MOOT.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 27th day of December, 2016.

_______________________________
United States District Judge

- 43 -