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WDVA: Disabled vet’s disparate-treatment claim is triable

A veteran who later went to work for the U.S. Department of Veterans Affairs, but whose employment was later terminated, presented genuine issues of material fact as to whether she was an individual with a disability and whether the VA’s proffered explanation for firing her was a pretext for disability discrimination.


Plaintiff Amber Patton, a U.S. Army veteran, applied for and received disability benefits from the VA following her honorable discharge in 2003. She received a combined disability rating of 70 percent based on two service-related conditions: major depressive disorder and colitis (which the parties also refer to as “irritable bowel syndrome”). In the fall of 2012, she applied to work as a veterans service representative (VSR) at the VA’s Roanoke office. She was hired and began working on October 1, 2012.

As a benefit of employment, Patton earned sick leave and annual leave at a set rate each pay period. The VA’s employment policy stated that “the use of accrued annual leave is an absolute right of the employee subject to the right of Management to approve when leave may be taken.” Other applicable policies provided that “no approved leave or approved absence will be a basis for disciplinary action except when it is clearly established that the employee submitted fraudulent documentation or misrepresented the reasons for the absence,” and “employees will not be adversely affected in any employment decision solely because of their leave balances.” During her employment, all of Patton’s leave requests were approved by her supervisors, and none of her requests were the subject of an investigation for fraud or abuse.

In July 2013, management officials at the Roanoke office met twice to discuss Patton. The attendees reviewed Patton’s existing performance and attendance records and discussed the reasons for Patton’s low leave balance, including the fact that many of her absences were for medical appointments. At the second meeting, the Roanoke office’s regional director, Keith Wilson, decided to terminate Patton’s employment.

Patton then initiated this action against the VA Secretary for disability discrimination under the Americans with Disabilities Act and the Rehabilitation Act.

Disabled individual

A reasonable jury could find that Patton is disabled, satisfying her prima facie case for disparate treatment based on her disability. Patton maintains that she suffers from major depressive disorder with anxiety, PTSD, and colitis/irritable bowel syndrome. Although she receives disability benefits from the VA based on two of these impairments, she acknowledges that her service-related disability rating is not dispositive. Nevertheless, treatment records from the Salem VA Medical Center support Patton’s diagnoses, and this evidence suffices to establish a genuine dispute of material fact with respect to this issue.

Patton has also offered sufficient evidence to create a genuine dispute of material fact as to whether her impairments substantially limit one or more major life activities. Major depressive disorder and PTSD are included in the regulations’ list of impairments that “should easily be concluded” to substantially limit brain function. Moreover, Patton testified at her deposition about how her mental and intestinal impairments affected her ability to work. For instance, she experienced uncontrollable urges to cry and difficulty focusing and interacting with others. She further testified that her intestinal disorder resulted in the sudden need for bowel activity and that she experienced bouts of diarrhea at work that were so severe that she could actually end up soiling herself if she were not close enough to a restroom.

In light of such evidence, the court concludes that a reasonable jury could easily find that Patton’s mental and intestinal impairments substantially limit one or more major life activities and are therefore disabling for purposes of the ADA and the Rehabilitation Act.

Essential duties

A reasonable jury could find that Patton was able to perform the essential functions of her position. First, unlike the circumstances in Tyndall v. Nat’l Educ. Ctrs. Inc., 31 F.3d 209 (4th Cir. 1994), a reasonable factfinder could find that Patton was not excessively absent from work. Between October 1, 2012, and June 30, 2013, Patton used approximately 18 days of accrued leave. While this amount of leave is not insubstantial, it is far less than the amount taken by employees in Tyndall and other cases involving excessive absenteeism.

Second, the Secretary has not cited any evidence establishing that Patton’s absences actually resulted in work not being performed in a timely and efficient manner. To the contrary, the record reveals that Patton exceeded the monthly production and quality standards in June 2013, despite taking 17.25 hours of sick leave.

Finally and perhaps most importantly, Patton’s supervisor had the opportunity to document any leave or attendance issues when he completed her progress report for the month of June. Despite being fully aware of her rate and pattern of unscheduled leave, her supervisor nonetheless indicated that her performance was satisfactory in all areas, including dependability, attendance, and compliance with procedures and rules.

Based on the foregoing evidence, a reasonable jury could find that Patton’s use of leave did not preclude her from performing the essential functions of the VSR position and that she was otherwise qualified for the employment in question.

Termination because of disability

A reasonable jury could find that Patton was terminated solely on the basis of her disabilities. Wilson and other management officials knew that Patton had some form of service-related disability. According to her deposition testimony, however, their knowledge was not limited to the fact that Patton was entitled to the civil-service preference afforded to disabled veterans. Patton testified that she would let her supervisors know what was going on when she had a “bout or an episode” related to her mental and intestinal impairments. She further testified that when her symptoms flared at work, she would inform her supervisors in a manner in which “they understood she had to leave suddenly.”

Additionally, the HR representative testified that the reasons for Patton’s absences were considered during the meetings leading up to her termination and that the attendees specifically discussed the fact that Patton regularly used leave for illnesses and to receive medical treatment at the Salem VA Medical Center. Drawing all reasonable inferences in Patton’s favor, a reasonable jury could find that Wilson and the other management officials knew or believed that Patton was disabled, or acted with knowledge of her disabling symptoms.

The court must also reject the Secretary’s argument that a “same-actor” inference precludes a finding that Patton was terminated solely on the basis of her disabilities. A reasonable factfinder could conclude that Wilson did not have “full knowledge” of Patton’s disabilities at the time she was hired. Indeed, the Secretary’s own evidence indicates that Wilson was not aware of the nature or extent of Patton’s impairments at the time he approved hiring her.

The same is true for the Secretary’s reliance on the fact that some of Patton’s supervisors have some form of disability. There mere fact that a decision-maker may also be a member of the same protected class as the Plaintiff does not preclude a successful discrimination claim.

For these reasons, the court concludes that Patton has presented sufficient evidence to create a genuine issue of material fact as to each of the elements required to establish a prima facie case of discrimination based on disparate treatment.


A reasonable jury could find that the proffered reason for Patton’s termination is mere pretext for disability discrimination. The Secretary maintains that Patton was terminated “due to her unsuitability for the position” in light of the manner in which she used her requested leave. But a reasonable person could deem this justification unworthy of credence.

During the EEO process, Wilson stated that the number of hours each month that Patton was not at work indicated that she didn’t possess the character traits or capacity to become a successful VSR. Similarly, Wilson initially testified during his deposition that the termination decision was premised on “usage of leave in terms of dependability.” Wilson later testified, however, that using leave on a regular monthly basis “was not the issue.” Instead, it was the manner in which leave was used. None of these justifications were mentioned at the time of Patton’s termination.

More importantly, no one in Patton’s supervisory chain documented any problems with Patton’s attendance prior to the termination decision or suggested that she was undependable due to her rate or pattern of leave usage. To the contrary, the only existing performance review was entirely positive, with satisfactory ratings in all categories, including attendance and dependability. Drawing all reasonable inferences in Patton’s favor, a reasonable jury could find that the defendant’s undocumented and uncorroborated justifications are pretextual and were not the actual reason for her termination.

Disparate impact

In contrast to her disparate-treatment claim, Patton’s disparate-impact claim is not supported by sufficient evidence. Patton has not offered any evidence, statistical or otherwise, demonstrating that the alleged practice of terminating employees based on their use of accrued leave had a disparate impact on disabled employees as a group. Although the record reveals that two other employees were terminated for leave-related reasons, Patton has not provided evidence indicating that those employees were disabled for purposes of the Rehabilitation Act or that they used leave to accommodate their disabilities. Instead, Patton merely proffers that the two employees “will validate similar circumstances” at trial.

Patton’s unsupported assertions in this regard do not satisfy her obligations under Federal Rule of Civil Procedure 56. Nor do they support the conclusion that the practice in question had a significant discriminatory effect. Moreover, under the circumstances of this particular case, the fact that the alleged practice had an adverse effect on a single employee – Patton – is not sufficient to establish the requisite disparate impact. Even if the court were to recognize an exception for “screen-out” disparate-impact theory, this case does not involve the use of employment tests or other selection criteria. Thus, it does not implicate the particular provision on which that theory is based.

For these reasons, Patton has failed to present sufficient evidence to establish a prima facie case of disparate-impact discrimination.

The Secretary’s motion for summary judgment will be granted in part and denied in part. The case will proceed to trial on Patton’s disparate-treatment claim.

Patton v. Shulkin, Case No. 7:16cv250, Mar. 14, 2018. WDVA at Roanoke (Dillon). VLW No. 018-3-079, 27 pp.