Paid sick leave not adverse employment action

Where an employee alleged that she suffered an adverse employment action when she used sick leave while her accommodation request was being considered by her employer, but she volunteered to use the sick leave as an interim accommodation and she was paid for her leave, that was not an adverse employment action under the law.

Background

Former Department of Veterans Affairs employee Charlotte Gearhart sued the VA and the acting Secretary of the VA, alleging that the department violated the Rehabilitation Act by failing to properly accommodate her circadian rhythm sleep disorder and creating a hostile work environment. Both parties moved for summary judgment.

Adverse employment action

The parties dispute that Gearhart suffered an adverse employment action because of her sleep disorder. Gearhart argues that the agency’s inaction and failure to follow its own policies regarding her reasonable accommodation request required her to use 266 hours of sick leave, which she contends is an adverse employment action as a matter of law.

The defendants contend Gearhart’s use of sick leave was voluntary and represented an interim accommodation to allow her to work her desired schedule prior to implementation of a final accommodation. Gearhart argues she was forced to use these benefits because of the agency’s neglect and bad faith. Given that Gearhart seemingly volunteered to use sick leave to provide an interim accommodation, the court does not find that she suffered an adverse employment action.

Second, while district courts and the Fourth Circuit “have found denials of requests for sick leave to be adverse employment actions where plaintiffs consequently were not paid for their days off,” in this case, Gearhart was never denied sick leave, and she was paid for her leave. Indeed, “permitting the use of accrued paid leave” is more likely to be viewed as a reasonable accommodation than an adverse employment action.

Gearhart also raises the fact that she was temporarily marked AWOL on one occasion and was publicly criticized by her fellow employees. The decision to mark Gearhart AWOL was reversed, and, even if it were not, it would not suffice to show an adverse employment action. Thus, Gearhart’s claims for discrimination and retaliation on the basis of disability fail, and the court will grant defendants’ motion for summary judgment with respect to these claims.

Failure to accommodate

Gearhart argues that defendants (1) failed to continue to accommodate her when the initial accommodation schedule was modified and that they rejected Gearhart’s second accommodation request; (2) failed to implement an interim accommodation during that period and (3) unreasonably delayed implementation of a reasonable accommodation from October 2013 to March 2014. The court rejects each argument and therefore grants defendants’ motion for summary judgment on the failure to accommodate claim.

Hostile work environment

Gearhart’s claim against defendants for a hostile work environment fails because the unwelcome conduct clearly falls far short of being severe or pervasive. The evidence in the record, in a light most favorable to Gearhart, is objectively not severe to support a claim of hostile work environment.

Further, the evidence also lacks a showing of pervasiveness. The alleged hostile environment was fostered over the course of nine or ten months; however, most of the incidents are isolated to certain time periods when scheduling was being discussed. At most, Gearhart points to a handful of instances of rude behavior during this time. This is not the type of behavior that provides a basis for a hostile work environment claim.

Plaintiff’s motion for summary judgment denied. Defendants’ motion for summary judgment granted.

Gearhart v. McDonough, Case No. 7:19-cv-00370, Sept. 30, 2022. WDVA at Roanoke (Dillon). VLW 022-3-452. 23 pp.