Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Deonne R. New-Howard v. Erik Shinseki

June 21, 2012

DEONNE R. NEW-HOWARD,
v.
ERIK SHINSEKI, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS.



MEMORANDUM AND NOW, this 21st day of June 2012, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 56), Plaintiff's Response Thereto (Doc. No. 72), Defendant's Reply Brief (Doc. No. 79), Plaintiff's Response in Opposition to Defendant's Reply (Doc. No. 84), Defendant's Statement/Supplemental Brief Regarding Plaintiff's Age and Disability Discrimination Claims (Doc. No. 91), Plaintiff's Motion for Summary Judgment (Doc. No. 97), and Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment (Doc. No. 98), it is hereby ORDERED as follows. It is hereby ORDERED that Defendant's motion is GRANTED IN PART and DENIED IN PART. Plaintiff's Cross-Motion for Summary Judgment (Doc. No. 97) is DENIED.

Consistent with the text of the Order that follows, the matter is REMANDED to the MSPB solely for the limited purpose of making findings regarding the denial of Plaintiff's requests for sick leave.

The Clerk of Court is directed to close this case for statistical purposes.

I. Factual Background

A. Prior History

Plaintiff Deonne New-Howard is a veteran of the federal court system. The story of her history as an employee of the Department of Veteran's Affairs ("VA") is told through the opinions of various judges over the course of nearly 24 years of civil litigation.

Plaintiff began as a GS-3 secretary in the Department of Veteran's Affairs, when she suffered a work-related back injury in 1984. As a result of this injury, Plaintiff received Office of Worker's Compensation ("OWCP") benefits for a period of time extending from mid-1984 to mid-1985. See New v. Principi, No. 99-3782, 2003 WL 22331748, at *1 (E.D. Pa. Oct. 8, 2003). Although New-Howard returned to work on June 4, 1985, she was absent from work following her return for a period of approximately three weeks, after which she was removed on charges that she was absent without leave ("AWOL"). Upon review of the agency decision, her removal was reduced to a reprimand. Plaintiff subsequently returned to work in May 1986, but she was ultimately removed on January 24, 1987 for absences during the previous eight months. Her removal ultimately resulted in a settlement, pursuant to which she was reinstated. Id.

After Plaintiff returned to work, she suffered an aggravation of her injury, and requested a parking space closer to the entrance. When Defendant failed to act upon the request, Plaintiff ceased to appear beginning on July 29, 1987. Id. Defendant eventually made certain accommodations, not the subject of the instant litigation, and ordered New-Howard to return to work. Plaintiff refused to return to work and instituted an action with the Office of Workers Compensation ("OWCP") for benefits. Id. at *2. The VA ultimately terminated Plaintiff without a ruling from the OWCP in February 1988, based upon her unauthorized absences. Id. The Merit Systems Protection Board ("MSPB") upheld her removal, and New-Howard thereafter instituted litigation in district court, based upon claims for handicap discrimination, breach of contract, intentional infliction of emotional distress, and negligence. Id.

In the interim, the OWCP ruled against New-Howard on her claim, and New-Howard wrote to the VA requesting reinstatement and restoration rights, which Defendant denied. Id. Plaintiff appealed this decision to the MSPB. The MSPB affirmed the decision of the agency, and the full board affirmed the MSPB decision. Id. In 1992, in response to this decision, Plaintiff filed another complaint in district court seeking review of the MSPB decision, and asserting new claims of discrimination, denial of due process, and retaliation. Plaintiff ultimately lost her claims of discrimination, and New Howard appealed this decision. Id.

At the same time, Plaintiff appealed the determination of the OWCP. While Plaintiff's challenge was pending before the Court of Appeals, the OWCP vacated its earlier decision and held that New-Howard was entitled to compensation for the period extending from October 15, 1987 to October 2, 1990. Id. at *3. The Court of Appeals thus vacated the district court decision and directed the district court judge to remand the case to the MSPB to reconsider its denial of restoration rights. Id.

The MSPB subsequently reopened its decision in 1996 and upheld the VA's denial of restoration rights, despite New-Howard's argument that her denial of restoration rights was improper, given that her removal was the result of her compensable injury. Id. Plaintiff appealed this decision in district court on January 7, 1997, asserting a claim for due process violations, along with claims for sex discrimination, handicap discrimination, and retaliation. These claims were dismissed by the presiding judge. Id. at *4.

Plaintiff appealed the decision again to the Court of Appeals for the Federal Circuit, where she ultimately prevailed on her claim that VA had erred in denying her restoration benefits. Id. In particular, the Court held that her removal was related to her compensable injury. However, given that the MSPB had not ruled on whether the VA's alternative ground for her removal was related to her compensable injury, the Court remanded the case to the MSPB to make such a determination. On June 24, 1999, the MSPB determined that her removal for poor attendance was a valid cause for removal unrelated to her compensable injury. Id.

In July 1999, Plaintiff appealed this decision to the district court for the Eastern District of Pennsylvania. In 2003, Judge Dalzell found the decision of the MSPB arbitrary and capricious, remanding the action to the MSPB to reconsider its decision. Id. at *9. Ultimately, on July 11, 2005, the MSPB found that (1) the poor overall attendance charge was not a valid removal for cause unrelated to Plaintiff's compensable injury and (2) Plaintiff was entitled to priority consideration for restoration retroactive to February 15, 1991. (Def.'s Ex. A at MSPB000642-62.)

B. Current Litigation

Pursuant to the MSPB's July 11, 2005 Order, on July 29, 2005, Department of Veterans Affairs Director of Information Technology Carol Waldt wrote New-Howard a letter instructing New-Howard to report to duty to Terris Farmer, Acting Assistant Chief of the Technical Support Division, at 8:00 a.m. on Monday, August 15, 2005. (See Def.'s Ex. A at MSPB000344.) On August 15, 2005, Plaintiff was restored to federal employment and reported to work. On her first day of work, after nearly 18 years of litigation pursuing reinstatement, Plaintiff requested leave for August 16, 2005 in order to take her husband to a medical appointment.

According to the testimony before the MSPB, Farmer told Plaintiff that she would need to complete a request in writing, and provided Plaintiff with a slip to make the request. Defendant contends that Plaintiff's leave balance had not yet been calculated, and Plaintiff was told to take leave without pay until that calculation was completed, at which juncture New-Howard would be credited with retroactive leave. Plaintiff requested leave without pay and did not appear the next day. On August 17, 2005, when Plaintiff returned to work, New-Howard against requested ongoing medical leave in order to take her husband to medical appointments. In addition, Plaintiff notified Farmer that she would leave early to take her husband to an appointment, and handed Farmer her husband's medical discharge papers.*fn1 Farmer notified Plaintiff that she would be required to fill out a leave slip, supporting paperwork, and specify the dates that she would need to be absent. Defendant contends that Farmer then informed Plaintiff that she needed to attend a meeting, but New-Howard could interrupt the meeting to speak with her. According to the defendant, while Farmer was engaged in the meeting, New-Howard informed John Carr, Chief of Management Staff, that Farmer had approved her request for leave and left without again speaking to Farmer. New-Howard left the unapproved leave request slip in her cubicle, which requested leave for the period from August 17, 2005 to August 30, 2005. (See Def.'s Ex. C at DHN00089.) Plaintiff also left a type-written but unprinted and unsent letter to the VA on her computer, justifying her request for leave. (Id. at DHN00360.)

August 17, 2005 was the last day that Plaintiff reported to work. What ensued in the days that followed was a series of communications between Plaintiff and the VA that lasted until July 9, 2006, when Plaintiff was eventually removed from federal employment.

On August 30, 2005, Farmer contacted New-Howard via letter to inform her that her leave had not been approved and she had been declared AWOL for the period extending from August 17, 2005 through August 30, 2005. (See Def's Ex. A at MSPB000486-87.) Farmer informed Plaintiff that the documentation that she had submitted to support her leave request was insufficient. On August 31, 2005, Plaintiff contacted the VA through her then-lawyer, Lucretia Clemons, explaining that Plaintiff had left a request for leave on the hard-drive of her office computer, and further requesting FMLA leave for Plaintiff for the period extending from August 17 through September 27, 2007, thus extending the initial request for an additional 27 days. In support of the request, Clemons submitted only a "Certificate to Return to Work and/or School," signed by Jihan Hegazy, Edgar Howard's physician, which noted that he could not stand until September 27, 2005. (See Def.'s Ex. A at MSPB000350-51.)

On September 2, 2005, Thomas Graham responded, notifying New-Howard that her request was denied because the information submitted was not supported by adequate documentation. Graham detailed the appropriate documentation to be submitted and enclosed it in his correspondence, which included a WH-380 form. (See Def.'s Ex. A at MSPB000468-81.) On September 15, 2005, Clemons sent Carr, Graham, and Farmer an application for FMLA leave, which included a partially completed WH-380 form. The doctor completing the form marked N/A to a substantial portion of the questions enclosed. In Clemons' correspondence, she also requested an additional six months of annual leave for New-Howard, for the period extending from September 28, 2005 to March 28, 2006. (See Def.'s Ex. A at MSPB000352-57.)

On September 27, 2005, Waldt sent a letter to New-Howard in which she explained her reasons for denying Plaintiff's requests, noting that the documentation remained insufficient. She cited staffing needs as the reason for denying the six months of accrued leave. (See Def.'s Ex. A at MSPB000450-51.) Waldt advised Plaintiff to seek FFLA leave for a portion of the time for which she requested leave.

In the interim, Plaintiff's husband returned to work on October 4, 2005. (New-Howard Dep. 151:7, May 27, 2011.) New-Howard then began submitting requests for leave on her own behalf based upon her own mental health condition. In particular, Plaintiff submitted a request for leave from October 5, 2005 through an undetermined date, submitting a form completed by a clinical psychologist, Melvin Rogers, Ph. D., who claimed that he was treating Plaintiff for anxiety. On October 28, 2005, Waldt reiterated the various decisions explained above regarding Ms. New-Howard's requests for leave. (See Def.'s Ex. A at MSPB000405-07.) In addition, Waldt deemed the information submitted by Rogers insufficient, and provided a medical questionnaire and WH-380 to be completed by Rogers. (Id.) The completed forms were received by the union representative for the VA on December 16, 2005. (See Def.'s Ex. A at MSPB000956.) New-Howard was granted FMLA leave from December 16, 2005 through January 15, 2006. (See Def.'s Ex. A at MSPB000956.) On January 17, 2006, New-Howard contacted Farmer via letter, stating that she required more leave time. (See Def's Ex. A at MSPB000384.) In addition, on the same date, Rogers sent in a letter certifying that New-Howard remained under his care for "intense emotional reactions and stress." (Def.'s Ex. A at MSPB00385.)

On February 3, 2005, Waldt rejected the request to extend FMLA leave, explaining that the documentation submitted was administratively unacceptable to approve the request. (Def.'s Ex. A at MSPB000375.) In this communication, Winter enclosed another medical questionnaire and emphasized that Rogers was to answer every question included in the document, and she advised that the completed form was to be returned by February 16, 2005. (Id.) No questionnaire was returned, and on February 27, 2006, New-Howard was sent a notice of proposed removal. (Def.'s Ex. A at MSPB000372-73.) Plaintiff has produced paperwork dated February 28, 2006, supporting her request for leave, but no presents evidence of its transmission to the VA. (Doc. No. 72 at 32-36.) Again, on March 14, 2006, New-Howard renewed her request to use "use or lose" leave. (See Doc. No. 50, New's Renewed Formal Leave Request.) On April 3, 2006, Farmer sent New-Howard a letter in which she (1) noted Plaintiff's March 14, 2006 fax and asked that she send a page that was missing from the fax, and (2) instructed Plaintiff to provide more documentation regarding her FMLA request of January 17, 2006, if she wished to use FMLA leave. (See Doc. No. 55, Letter dated April 03, 2006.) The record reveals no response to this letter.

Following New-Howard's contact with the VA's Office of Resolution Management, on June 30, 2006, New-Howard was notified that she would be removed effective July 9, 2006. As described by the letter, New-Howard was removed on that date. The basis for Plaintiff's removal was excessive and continuous absence from work from the period extending from August 17, 2005 through June 30, 2006. In addition, the letter noted that New-Howard had failed to follow proper leave procedures. The letter noted that while some of the absences within the relevant time period were permissible because leave had been appropriately obtained, the letter noted that the bulk of the absences were unapproved. (See Def.'s Ex. C at DNH00429-30.)

Subsequent to her removal, Plaintiff pursued an action before the MSPB challenging her removal on the grounds that it was the result of discrimination and retaliation, and that she had been improperly denied leave. In his initial decision, Judge Rudsill affirmed the Final Agency Decision regarding Plaintiff's removal, and the full board affirmed the initial decision.

Plaintiff subsequently instituted the present action, pursuing claims for breach of implied contract and violations of the Privacy Act, the Federal Tort Claims Act, Title II of the Civil Rights Act, and Plaintiff's Fifth Amendment rights, and seeking review of the MSPB's decision regarding removal and discrimination. Defendant has moved for summary judgment regarding Plaintiff's claims pursuant to the Privacy Act, Bivens, and Plaintiff's petition for review of the decision of the MSPB. Plaintiff has also filed a cross-motion for summary judgment, the substance of which addresses Defendant's motion for summary judgment regarding her Title VII claims. We address each claim in turn.

II. Legal Standard

A court may grant summary judgment where the moving party shows that "there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In order to prevail on a motion for summary judgment, the moving party need not produce evidence to disprove the opponent's claim, but must demonstrate the absence of any genuine factual disputes. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes such a showing, the non-movant may not rely on his pleadings alone, but must produce evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56 (c) & (e).

A summary judgment motion does not invite the Court to "weigh the evidence or make credibility determinations; these tasks are left to the fact-finder." Boyle v. City of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Attacking the credibility of the movant's evidence cannot overcome summary judgment, and the non-movant must produce affirmative evidence raising a genuine factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

A nonmoving party must "adduce more than a mere scintilla of evidence in its favor," and cannot "simply reassert factually unsupported allegations contained in its pleadings" in order to survive summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment must be granted in favor of the movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. Privacy Act Claims

The substance of Plaintiff's first claim deals with allegations that Plaintiff's personnel records contain records that are incorrect within the meaning of the Privacy Act, 5 U.S.C. § 552a. In particular, Plaintiff alleges that her personnel records must be amended to (1) accurately reflect her accrued leave, (2) remove personnel records indicating that Plaintiff was removed for cause on January 11, 1988, (3) reflect that she was an employee of the VA from 1988 to 2005, (5) reflect that she was still entitled to benefits under the civil service retirement system through July 9, 2006, and (6) maintain accurate EEO investigative files that contain records of medical certifications provided by Plaintiff to the VA to support her leave requests.

The terms of the Privacy Act require each agency to "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5). Whenever an agency makes a determination not to amend an individual's record, the individual may bring a civil action against the agency, over which a federal district court has jurisdiction. See 5 U.S.C. § 552a(g)(1). Pursuant to 552a(g)(3)(A), the court may enjoin the agency from withholding the records and order production of any records improperly withheld form him. An action for injunctive relief is reviewed de novo. In addition, a plaintiff may pursue collect monetary damages in instances in which the court determines that an agency has acted in an "intentional or willful" manner. See 5 U.S.C. § 552a(g)(4).

Accordingly, in her complaint, Plaintiff requests that her records be amended, that she be awarded damages, and that the defendant be enjoined from further use of the allegedly altered documents. In its motion for summary judgment, Defendant makes several claims regarding these requests.

A. Amendment of Records

1. Failure to Exhaust

Initially, Defendant contended that Plaintiff had failed to exhaust her administrative remedies in failing to appeal the final decision of the agency to the Office of Personnel Management ("OPM"). However, Defendant now concedes that Plaintiff has exhausted her administrative remedies.

Although Defendant concedes the question of exhaustion, Plaintiff's claim with respect to her medical records is flawed, as she asserts her claim against an entity that no longer has control of the documents. The requested amendment of records of medical certification in Plaintiff's EEO file would ordinarily be a part of the governmentwide system of records as a GOVT-3 record, and thus would ordinarily be under the control of the OPM. However, the system does not "include records, including the action file itself, compiled when such actions are appealed to the Merit Systems Protection Board (MSPB) or become part of a discrimination complaint record at the Equal Employment Opportunity Commission (EEOC)." See 65 Fed. Reg. 24732-01 (Apr. 27, 2000). Instead, "[s]uch appeal and discrimination complaint file records are covered by the appropriate MSPB or EEOC system of records." Id. If Plaintiff had sought their amendment prior to her appeal, her appeal to the OPM would have sufficed. Now, because she has appealed to the MSPB, the records are not controlled by either the VA or the OPM, but rather are contained in the MSPB's system of records. Thus, to the extent that Plaintiff seeks to amend these records, the regulations concerning their amendment are contained in 5 C.F.R. §§ 1205.21-1205.32.

2. Mootness

In addition, three requests made by Plaintiff are now moot. Although Plaintiff requests that her personnel records be amended to show that she was restored to her Secretary position on August 15, 2005, and that she was not removed for cause, her OPF file has already been amended to reflect that her restoration to service and her continuous employment. (See Doc. No. 79, Ex. 1.) In addition, Plaintiff seeks amendment of her records to accurately reflect her accrued leave in a timely manner. However, a review of Plaintiff's records reveals that her Service Computation Date ("SCD") for her leave is listed as July 14, 1988. (See Doc. No. 79, Ex. 1.) As a result, the request to amend her file to accurately reflect her accrued leave is also moot.

However, remaining is her claim that her record be amended to reflect that she was restored to her position as a Secretary, rather than an Office Automation Clerk. In addition, remaining are her claims that her records should reflect that she was entitled to benefits under the civil service retirement system.

3. Alteration of Substance Rather than Form

Plaintiff's requests regarding her reinstatement to the position of Secretary and her membership in the civil service retirement system cannot appropriately be pursued under the Privacy Act. 5 C.F.R. § 297.303 states, "The amendment procedures are not intended to allow a challenge to material that records an event that actually occurred nor are they designed to permit a collateral attack upon that which has or could have been the subject of a judicial, quasi-judicial, or administrative proceeding." 5 C.F.R. § 297.303(a). "The amendment procedures apply to a situation when an occurrence that is documented was challenged through an established judicial, quasi-judicial, or administrative procedure and found to be inaccurately described; when the document is not identical to the individual's copy; or when the document is not created in accordance with the applicable recordkeeping requirements." 5 C.F.R. § 297.303(b). Thus, while Plaintiff's placement in the position of Office Automation Clerk and her placement in the FERS system may have been substantively incorrect, to the extent that such placement occurred, the records in her file accurately reflect what occurred in August 2005. As a result, the proper procedure for Plaintiff to employ in order to correct the error is to pursue the matter before the MSPB.

In addition, as a factual matter, it appears that Plaintiff was not placed in FERS, rather than CSRS. The "Earnings and Leave Statement" IRS form that Plaintiff produced during the administrative proceedings below indicates that she was contributing to CSRS rather than FERS. (See Doc. No. 55, Appellant's Response to MSPB's Acknowledgment Order Dated March 27, 2007, at Ex. 8.) This is also evidenced in myriad documents in Plaintiff's OPF file, produced by Defendant. (See, e.g., Doc. No. 79, Ex. 1, Standard Form 50)(noting Plaintiff's retirement plan as "FICA & CS.") Plaintiff has produced no evidence to create a genuine issue of material fact by contradicting the evidence produced by Defendant.

B. Injunctive Relief and Damages for Privacy Act Violations Plaintiff also seeks injunctive relief and damages pursuant to the alleged Privacy Act violations. To the extent that Plaintiff seeks to enjoin Defendant from using the allegedly altered records in the course of further litigation, the statute in question does not authorize the relief requested. 5 U.S.C. § 552 provides that the court may order the relevant agency to amend the individual's record in accordance with his request, may assess reasonable attorney's fees and costs, may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld, and in instances of willful or intentional action, may order actual damages. See 5 U.S.C. § 552a(g)(2)(A)-(4)(B). Thus, nowhere does the statute authorize the injunctive relief sought, and the Court cannot fashion remedies that the statute does not authorize. See Houston v. United States Dep't of Treasury, 494 F. Supp. 24, 29 (D. C. Cir. 1979)("under the Privacy Act, injunctive relief is available only to order an agency to amend an incorrect record or to allow an individual to inspect his record"); see also Edison v. Dep't of Army, 672 F.2d 840, 846 (11th Cir. 1982)(holding that the Privacy Act authorizes only injunctions in two instances: to amend the individual's record or to order an agency to produce records); Clarkson v. I.R.S., 678 F.2d 1368, 1375 n.11 (11th Cir. 1982)("The Privacy Act expressly provides for injunctive relief for only two types of agency misconduct, that is, wrongful withholding of documents . . . and wrongful refusal to amend an individual's record.").*fn2

Finally, with respect to Plaintiff's claim for damages, Section 552a provides a cause of action where a claimant can demonstrate "(1) the information [at issue] is covered under the Act as a 'record' contained in a 'system of records'; (2) the agency 'disclosed' the information; (3) the disclosure had an 'adverse effect' on the plaintiff . . . ; and (4) the disclosure was 'willful or intentional.'" Finnerty v. United States Postal Service, No. 03-558, 2006 WL 54345, at *4 (D. N.J. Jan. 9, 2006)(citing Quinn v. Stone, 978 F.2d 126, 131 (3d Cir. 1992)). To succeed on a claim brought under Section 552a(g)(1)(C), a plaintiff must show that the harm claimed was caused by the alleged violation. Yu v. United States Dep't of Veterans Affairs, No. 08-993, 2011 WL 2634095, at *9 (July 5, 2011)(citing Skinner v. United States Dep't of Justice and Bureau of Prisons, 584 F.3d 1093, 1097 (D.C. Cir. 2009)).

Here, Plaintiff does not clearly articulate what records she pursues her claim on the basis of. However, taking each of Plaintiff's claims serially, it is clear that in no instance does she properly allege or produce any evidence of causation. With respect to her claim on the basis of records regarding her accrued leave, Plaintiff cannot establish a claim for damages on the basis of the alleged failure to timely calculate her accrued leave time. An explanation of the inaccuracy of Plaintiff's request for damages requires detailing how federal leave is accrued and how the relevant leave provisions function.

Pursuant to 5 U.S.C. § 6307, Plaintiff would have accrued half of a day for each fully bi-weekly pay period for the period from the time that she was originally fired until 2005, the date that she was reinstated. In fact, Plaintiff's own exhibit reveals that she possessed 1,520 hours of sick leave. (See Doc. No. 55, Appellant's Response to MSPB's Acknowledgment Order Dated March 27, 2007, Ex. 8.) However, sick leave may only be used to care for an ailing family member without a serious medical condition for a maximum of 40 hours per year plus up to an addition 64 hours per year. See 5 U.S.C. § 6307. When Plaintiff's leave requests were denied, Plaintiff was informed of this very fact, which formed the basis for the denial of her request. (See Def.'s Ex. A at MSPB00405.) Plaintiff was notified that she was given the maximum 104 hours of leave. If the denial of her leave had been based on the failure to restore her accrued leave, as a new employee she would have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.