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Britting v. Shineski

February 5, 2010

SUSAN E. BRITTING, PLAINTIFF,
v.
ERIK K. SHINESKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendant Erik K. Shineski's Motion for Summary Judgment. (Doc. 21.) For the reasons discussed below, Defendant's Motion will be granted.

BACKGROUND

I. Facts

Plaintiff Susan E. Britting has suffered from irritable bowel syndrome ("IBS") for approximately twenty-five to thirty years. (Admin. Rec. 0971).This condition caused Britting to experience bloating, pain, cramping and urgent defecation. (Admin. Rec. 0703). Before January 2007, Britting's IBS only affected her "very rarely" and "just wasn't ever a huge problem." (Admin. Rec. 0971). However, after January 2007, Britting's IBS attacks became more frequent and longer in duration; she would experience between three (3) and four (4) attacks per week characterized by a cramping/bloating/diarrhea cycle that could sometimes stretch into hours, and requiring her to use the bathroom six (6) times during an eight-hour workshift. (Admin. Rec. 0974-0975.) Britting believes that the IBS detrimentally affected her concentration at work and her ability to eliminate bodily waste, but did not affect her ability to concentrate on other facets of her life and did not affect any other daily activities. (Admin. Rec. 1007-1008). Britting claims that these flare-ups were resolved by February 2008, and that she now has "next to no problems whatsoever with irritable bowel." (Admin Rec. 1005; Britting Dep. 123:8-12, June 12, 2009.)

Since 1981, Britting has worked as a medical secretary. (Admin Rec. 0967). Britting began working for the department of veterans affairs ("the VA") in March 2002 as an office automation assistant. (Doc. 22 at ¶ 8.) Her job duties included transcribing medical reports dictated by doctors by listening to dictation through a headset and transcribing the report into the patient's electronic record. (Id. at 10-11.) On January 23, 2007, Britting signed a performance plan that stated that in order to be considered "fully successful" in the area of "transcription line count" she had to transcribe a minimum of one hundred (100) lines per hour while maintaining a 92% accuracy rate. (Id. at ¶¶ 14-16.) Britting's performance appraisal on June 17, 2007, noted that she had been less than fully successful in the areas of "transcription line count" and "data input." Id. at ¶ 19.

Due to Britting's inability to meet the accuracy standards for transcription, Britting was contacted by her immediate supervisor, Jodi Moyer, and told to assign herself as the medical provider on all reports typed. (Id. at ¶ 47.) In July 2007, Britting failed to follow this instruction on six (6) notes and entered the medical providers' names instead. (Id. at ¶ 52.) According to Moyer, the transcriptionists' name is always the default provider when they begin taking dictation; therefore, in order to put the medical providers' names in the report, Britting had to actively remove her own name and put in that of the provider. (Admin. Rec. 0804.) Moyer had made this change in light of Britting's accuracy struggles and to allow Moyer to check the records before they were released to providers for their signature, lest the records be signed with inaccuracies that were then entered into the patient's medical chart. (Admin. Rec. 0747.)

On August 23, 2007, Britting received a written admonishment for failure to follow directions based on the six (6) occasions she removed her name and entered the providers' names into the notes. (Doc. 22 at ¶ 57.) That same day, Britting again removed her name as the provider on two (2) notes and typed the medical providers' names in the record; the same problem occurred again on August 27, 2007. (Id. at ¶ 58-59.) On September 4, 2007, a notice of a proposed three-day suspension was issued for these additional failures to follow instructions. (Id. at ¶ 60.) Two days later, Britting again removed her name from a provider note, causing the medical provider to sign the document before review and correction. (Id. at ¶ 61.) The three-day suspension was then rescinded, and a proposed fifteen (15) workday suspension was issued. (Id. at ¶¶ 62-64).

VA management felt that the temporal proximity of the admonishment and proposed three-day suspension, coupled with Britting's continued failure to follow instructions suggested that Britting did not fully grasp the seriousness of her actions.*fn1 (Admin. Rec. 0855, 0861). Therefore, management felt that the increase to the longer suspension was warranted. (Admin. Rec. 0860-0861.) In considering the suspension, the interim director of the VA Medical Center in Lebanon, Margaret Caplan, considered, in writing, the twelve (12) factors outlined in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). (Admin Rec. 0598-0601). The fifteen (15) workday suspension without pay was handed down to Britting on October 15, 2007. (Doc. 22 at ¶ 80.)

Also as a result of Plaintiff's failure to meet performance standards, Britting was put on a Performance Improvement Plan ("PIP") and given ninety (90) days to raise her performance to "fully successful." (Id. at ¶ 25.) During the PIP, Britting had bi-weekly meetings with Moyer, wherein Moyer would review Britting's errors with her and explain why these errors had been marked. (Id. at ¶ 29-30). During the PIP period, Britting's accuracy rating was 73% in July, 78% in August, and 89% in September. (Admin. Rec. 0177.) On October 15, 2007, the Lebanon VA issued a notice of proposed removal due to Britting's failure to meet the performance standard requirements while she was on the PIP. (Doc. 22 at ¶¶ 35.) On November 27, 2007, the VA notified Britting her was being fired from her position for failure to meet performance standards. (Doc. 22 at ¶ 46.)

II. Procedural History

On November 14, 2007, Britting filed an appeal with the United States Merit Systems Protection Board ("the Board") challenging her fifteen (15) workday suspension. (Admin. Rec. 0350). On December 24, 2007, Britting filed an appeal with the Board challenging her removal from her position. (Admin. Rec. 0350-0351). Britting claimed that her suspension was improper because she was discriminated against due to her alleged disability (i.e., IBS), and because the penalty imposed was unduly harsh. (Admin. Rec. 0351). Britting also argued that her removal was inappropriate because the VA did not consider her IBS as a "mitigating factor" and retaliated against her for appealing her suspension to the Board. (Admin. Rec. 0351).

These appeals were joined. (Admin. Rec. 0351). A hearing was held for these appeals on March 27 and 28, 2008. (Admin. Rec. 0351). On April 28, 2008, Administrative Law Judge ("ALJ) Lystra Harris entered an initial decision affirming both of the VA's actions. (Admin. Rec. 0351). A final order was entered by the Board on August, 21, 2008, denying a petition to review the ALJ's decision, and declaring the ALJ's initial decision as final. (Doc. 1, Ex. B.)

On September 19, 2008, Plaintiff filed a Complaint, alleging violations of the Rehabilitation Act for suspending her and removing her because of her disability, and failing to provide reasonable accommodations (Count I). (Compl. ¶¶ 39-40). Plaintiff also seeks to have the ALJ's decision overturned because it was error to find that the VA met its burden of proving grounds for removal, and that the VA had properly applied the Douglas factors when imposing the suspension. (Id. at ¶¶ 46-47.) On September 25, 2009, Defendant filed a Motion for Summary Judgment. The motion has been fully briefed and is now ripe for disposition.

LEGAL STANDARD

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D ยง 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has ...


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