Nurse’s Arguments Fail to Overcome Gardening During Work Hours

Takeaway: To render a decision an appellate court would cite as “meticulous,” a trial court must be supplied with an equally meticulous evidentiary record. Here, the employer’s various representatives did so with apparently scrupulous communications and documentation during more than 10 years of accommodation requests, administrative hearings and investigation of reported misconduct.

The 1st U.S. Circuit Court of Appeals upheld termination of an employee with a disability who was discharged for work dishonesty, finding neither evidence of pretext nor any other error in the trial court’s “meticulous,” in the words of the appeals court, summary judgment decision.

An individual formerly employed as a nurse sued her federal government employer for disability discrimination after her removal from service in November 2016. Having started work as a floor nurse in 2006, the employee experienced a work injury and was assigned temporary light duties. In 2008, during treatment for her injury, the employee was diagnosed with multiple sclerosis (MS), one symptom of which is heat intolerance and resulting fatigue.

After accepting a role and working for many years in quality management, the employee was transferred to patient care services in January 2015. There, she began to experience temperature issues in her work environment and reported so to an accommodation coordinator. She provided a doctor’s letter requesting an environment in which temperature would not be a problem. The employer granted the request in July 2015 and moved the employee to an air-conditioned office.

The employee, nevertheless, reported ongoing conflicts with officemates about the temperature. In March 2016, the employee’s doctor submitted a second accommodation request—this time asking she be allowed to telework. Relying on its own doctor’s opinion, the employer allowed the employee to work from home two days per week and provided her with a private office onsite.

During the summer of 2016, the employer received reports of the employee being seen in the community garden during work hours. The employer reviewed her work computer, which revealed the employee had been logged off for more than two hours per day on 28 separate occasions over five months. On Sept. 21, 2016, the employee’s supervisor proposed her removal from federal service for “failure to put forth an honest effort in the performance of [her] duties.” A week later, the employee submitted a third accommodation request seeking full-time telework.

In late October, the employee again met with an accommodation coordinator. The HR director proposed an accommodation and asked for the employee’s feedback. But on Nov. 3, 2016, the employer informed the employee she was removed from federal service, effective Nov. 12, 2016.

In January 2017, the employee applied for disability retirement under the Federal Employees Retirement System, claiming she was removed from federal service due to her disability. The Office of Personnel Management (OPM) initially denied, but later granted her application, in May 2019.

The employee filed two complaints of disability discrimination—one before and one after the employer proposed her removal. The complaints were decided in the employer’s favor and, in August 2019, the agency’s decision became final. The employee then sued in federal court claiming disability discrimination, hostile work environment, retaliation and failure to accommodate under the Rehabilitation Act.

In July 2022, the trial court granted the employer’s motion for summary judgment on all counts, finding even if the employee had met the threshold burden of establishing disability discrimination and retaliation claims, she failed to offer evidence from which a reasonable juror could find the employer’s nondiscriminatory reasons for its actions were pretextual.

To prevail at summary judgment, a party must demonstrate there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Here, the employee’s foundational contention was that the employer should be held liable for failing to provide a reasonable accommodation. She argued the trial court lacked jurisdiction to review facts related to the disability retirement determination. Although 5 U.S.C. Section 8461(d) provides OPM’s decisions regarding retirement benefits are not subject to review, that provision does not apply to discrimination claims under the Rehabilitation Act, and did not bar trial court review at summary judgment, the 1st Circuit ruled.

Nor did the OPM’s grant of disability retirement benefits preclude the employer from arguing the employee was removed for work dishonesty. The argument that the OPM awarded benefits because her disability could not be reasonably accommodated undercut her failure-to-accommodate claim.

An alleged factual dispute between the employer’s and the plaintiff’s doctors was nonexistent, the 1st Circuit said. Nor did the trial court err in excluding the employee’s 2015 transfer from summary judgment analysis. The employee had not cited the transfer among the challenged adverse actions, and, moreover, had failed to exhaust administrative remedies with regard to it.

The employee also criticized the trial court for failing to consider a particular witness statement. Having failed to cite that statement in opposition to the employer’s motion for summary judgment, she could not then fault the trial court for failing to consider it.

Dixon-Tribou v. McDonough, 1st Cir., No. 22-1696 (Nov. 14, 2023).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.