BONNIE DIXON-TRIBOU, Plaintiff, Appellant, v. DENIS RICHARD MCDONOUGH, Secretary, U.S. Department of Veterans Affairs, Defendant, Appellee.
No. 22-1696
United States Court of Appeals For the First Circuit
November 14, 2023
Robert F. Stone and Law Office of Robert F. Stone on brief for appellant.
Darcie N. McElwee, United States Attorney, and James D. Concannon, Assistant United States Attorney, on brief
GELPI, Circuit Judge. Plaintiff-Appellant Bonnie Dixon-Tribou (“Dixon“) was formerly employed by Defendant-Appellee, the U.S. Department of Veterans Affairs (“VA“), as a nurse. Following her removal from federal service in November 2016, Dixon brought suit against the VA, alleging disability discrimination, among other claims. Dixon appeals the district court‘s decision granting the VA‘s motion for summary judgment and denying her like motion. For the reasons described herein, we affirm.
I. Background
When reviewing a district court‘s entry of summary judgment, we recite the facts in the light most favorable to the nonmovant -- here, Dixon -- “consistent with record support.” Lahens v. AT&T Mobility P.R., Inc., 28 F.4th 325, 328 (1st Cir. 2022) (citations omitted). We are careful, however, to omit from our recitation those facts that the district court deemed excluded for Dixon‘s failure to comply with Local Rule 56(f).1 See id. at 328 n.1 (omitting from discussion on appeal facts that the district court excluded pursuant to Local Rule 56(e)). Additionally, because the extensive factual history is thoroughly detailed in the district court‘s opinion, see Dixon-Tribou, 616 F. Supp. 3d at 43-51, we recite only the facts needed for purposes of the present appeal. See Dukes Bridge LLC v. Beinhocker, 856 F.3d 186, 187 (1st Cir. 2017).
A. Dixon‘s Employment with the VA
Dixon began working for the VA as a floor nurse at the Togus, Maine VA Medical Center (“Togus“) in 2006. In 2007, a patient injured Dixon, and she was thereafter assigned temporary light duties. In the latter part of 2008, treatment for Dixon‘s work-related injury revealed that she had multiple sclerosis (“MS“). One of the many symptoms of MS is heat intolerance, which results in fatigue after exposure to elevated temperatures. Dixon felt that her light-duties restriction was not being honored in her role as a floor nurse, so when offered a role in the Quality Management Department, she accepted.
In January 2015, the VA reassigned Dixon to the Patient Care Services Department (“Non-VA Care Department“), where she processed referrals for patients to seek care outside of the VA system. Dixon first began experiencing issues with the temperature of her work environment shortly after she moved to her new office. On July 8, 2015, she contacted Dustin Cochran (“Cochran“), Togus‘s Reasonable Accommodation Coordinator, about the temperature issues. Dixon provided Cochran with a letter from her doctor, Dr. Paul Muscat, which stated that, as a result of Dixon‘s “long-standing [MS],” she was “very sensitive to even moderately elevated temperatures.” The letter stated that she “need[ed] a work environment in
Following Dixon‘s move to room 218E, Dixon reported continued temperature control issues, as well as interpersonal conflicts with her officemates over the temperature of the space. Then, on March 4, 2016, Dr. Muscat submitted a second reasonable accommodation request to Cochran on Dixon‘s behalf. Dr. Muscat requested that Dixon be allowed to telework to enable her to take medication, which would relieve her pain symptoms, and to help meet Dixon‘s existing reasonable accommodation for temperature control. After receiving the request, Cochran emailed Dr. Ray Lash seeking his medical opinion on the accommodation request. Dr. Lash responded that he “believe[d] there [wa]s some degree of potential for improvement in her function with strict management of temperature control and work conditions” and that “one could make a reasonable case to consider a trial of strict home temperature control as a means of managing her symptoms and ability to function in her work.” Per Cochran, he had a follow up conversation with Dr. Lash where it was decided that “a reasonable trial would be a [six]-month period in which [Dixon] could telework up to two days a week based on her symptoms.” On March 28, 2016, the VA approved Dixon‘s second accommodation request -- insofar as she was permitted to telework two days per week -- and committed to providing her a new workspace that met all of her needs. By late April 2016, Dixon was teleworking per her accommodation and had a new private office located in Quarters 32.
Then, in summer 2016, Corey Vail (“Vail“), Dixon‘s then-supervisor, received several reports from employees that Dixon was in the community garden during work hours. An internal review of her computer revealed that Dixon was logged off of her work computer for more than two hours per day on twenty-eight separate occasions during a five-month period. On September 21, 2016, Vail proposed Dixon‘s removal from federal service for “failure to put forth an honest effort in the performance of [her] duties.” Dixon then submitted a third reasonable accommodation request on September 27, 2016, seeking full-time telework. On October 26, 2016, Dixon met with Alan Lane, another Reasonable Accommodations Coordinator, to discuss her request. Following their conversation, Jonathan Meserve, Director of Human Resources, sent Dixon a letter proposing an accommodation and seeking feedback. On November 3, 2016, however, the VA informed Dixon that she was removed from federal service, effective November 12, 2016.
On January 26, 2017, Dixon applied for disability retirement with the U.S. Office of Personnel Management (“OPM“) pursuant to the Federal Employees Retirement System (“FERS“), claiming that the VA removed her from federal service due to her disability. After initially denying her application, OPM granted Dixon disability retirement in May 2019.
B. Dixon‘s Administrative Complaints
On March 17, 2016, while still employed with the VA, Dixon began the administrative process for filing a discrimination claim by contacting a VA Equal Employment Opportunity Commission (“EEOC“) counselor. Then, on June 22, 2016, Dixon
After her removal, on January 26, 2017, Dixon moved to amend her formal discrimination complaint to include a promotion that she did not receive in February 2014, her transfer to the Non-VA Care Department in January 2015, and her removal from federal service in November 2016. About a month later, ORM denied Dixon‘s amendment request, explaining that her first and third proposed additional claims could proceed as a separate complaint but that her second claim was untimely and thus dismissed because she failed to contact an EEOC counselor within forty-five days of her transfer. On June 6, 2017, Dixon filed a second formal complaint of discrimination based on: (1) her non-promotion in 2014, (2) the VA‘s failure to accommodate her disability, and (3) her 2016 removal from service -- all of which were accepted for investigation by ORM. ORM concluded both of its investigations by October 24, 2017, and the complaints proceeded to a hearing in front of an EEOC administrative law judge. On August 1, 2019, the EEOC administrative law judge granted the VA‘s motion for summary judgment, which became final on August 6, 2019, when the VA accepted the decision and issued its final agency decision.
C. Proceedings Before the District Court
Dixon filed the underlying complaint on November 8, 2019, in the United States District Court for the District of Massachusetts, raising the following claims: (1) disability discrimination under the Rehabilitation Act (“RA“); (2) hostile work environment under the RA and Americans with Disabilities Act; (3) retaliation in violation of Title VII; and (4) failure to accommodate under the RA. The case was transferred to the United States District Court for the District of Maine in October 2020. There, during a Local Rule 56(h) conference, Dixon clarified that all of her claims were based on the RA, not Title VII. Both parties moved for summary judgment in February 2022.
On July 13, 2022, in a very thorough opinion, the district court granted summary judgment in favor of the VA on all counts and denied Dixon‘s like motion. Dixon-Tribou, 616 F. Supp. 3d at 63. In reaching said conclusion, the district court found that, even if Dixon had met the prima facie burden of establishing her disability discrimination and retaliation claims, Dixon failed to offer evidence from which a reasonable juror could find that the VA‘s nondiscriminatory reasons for its actions were pretextual. Id. at 57-58. As to Dixon‘s hostile work environment claim, the district court concluded that Dixon failed to present evidence establishing that the conduct she endured was “sufficiently severe or pervasive to alter the conditions of her employment” and that she failed to “offer[] any evidence that any harassment that she suffered occurred as a result of her disability.” Id. at 60-61. Finally, as to Dixon‘s failure to accommodate claim, the district court concluded that “no reasonable juror could find that the VA failed to provide for a reasonable accommodation,” despite the occasional shortcomings in
II. Standard of Review
We review a district court‘s order granting summary judgment de novo. Lahens, 28 F.4th at 333. To prevail at summary judgment, a movant “must demonstrate that ‘there is no genuine dispute as to any material fact’ and [that they are] ‘entitled to judgment as a matter of law.‘” Id. (quoting
III. Analysis
At the outset, we note that Dixon‘s challenges on appeal differ from our typical summary judgment review. With one exception, which we ultimately reject, Dixon does not point to factual disputes precluding summary judgment. Nor does she directly take issue with the district court‘s conclusion that the VA was entitled to summary judgment on each of her four claims. Instead, Dixon argues that the district court lacked jurisdiction at summary judgment to review the facts underlying her claims, that the district court should have precluded the VA from raising certain arguments on appeal, and that the district court improperly resolved a factual dispute at summary judgment and overlooked specific pieces of evidence in reaching its decision. Although Dixon‘s briefing is not a beacon of clarity, we do our best to address the claims raised, as we understand them. We begin with her argument that the district court lacked jurisdiction.
A. Jurisdiction Claim
Dixon devotes most of her briefing to arguing that OPM‘s disability retirement decision is “final,” “conclusive,” and “not subject to review,” meaning, per Dixon, that the district court lacked jurisdiction to review the facts related to OPM‘s disability determination at summary judgment.2 Dixon grounds her argument in
In fact, the cases cited by Dixon work against her. In Anthony v. Office of Personal Management, the Federal Circuit explicitly stated that ”
B. Preclusion Claim
Dixon next argues, in a similar vein, that the district court erred by not giving OPM‘s disability retirement decision preclusive effect against the VA.4 According to Dixon, for OPM to grant her disability retirement, it necessarily found that Dixon “was in a position where her disabling MS . . . could not be reasonably accommodated, and that her work deficiencies were due to lack of accommodations.” She further argues that, because OPM found that her work deficiencies were disability-related and not due to her failure to put forth an honest effort in her work, the district court should have precluded the VA from arguing that she was removed for “work dishonesty.”
Dixon‘s preclusion argument is a nonstarter. First, “a party asserting preclusion must carry the burden of establishing all necessary elements.” Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 70 (1st Cir. 2008) (quoting 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4405, at 83 (2d ed. 2002)). Dixon made no meaningful effort to
C. Other Claims of Error
Finally, Dixon takes aim at the district court‘s summary judgment decision by pointing to an alleged factual dispute that she claims should have foreclosed summary judgment, as well as evidence allegedly overlooked by the district court. We begin with Dixon‘s disputed-facts claim.
1. Alleged Conflict Between Cochran and Dr. Lash
Dixon argues that the district court erred in granting summary judgment to the VA because there was a dispute of material fact between Cochran and Dr. Lash as to the reasonableness of Dixon‘s March 2016 telework request. According to Dixon, Dr. Lash opined that her full-time telework request was reasonable. However, Cochran claimed that Dr. Lash recommended only two days of telework per week on a six-month trial basis. Dixon argues that the district court erred by intruding on the role of a jury and resolving this factual dispute at summary judgment.
We need not dive into the issue of materiality -- whether a fact “has the potential of affecting the outcome of the case,” Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)) -- given that the conflict Dixon points to is nonexistent. While Dixon is correct that Dr. Lash stated that a trial of telework was reasonable to manage her MS symptoms, there is no evidence of him opining on the frequency of said telework. In fact, Dixon‘s second reasonable accommodation request, which Dr. Lash reviewed, does not specify that she was seeking to telework full-time. Further undercutting Dixon‘s argument is the fact that Dr. Lash, during a conversation with the ORM investigator, stated that he could “not recall who said what pertaining to the actual number of days that [Dixon] would be permitted to telework on a trial basis.” Contrary to Dixon‘s claim, there is no record support for her assertion that Dr. Lash approved her to telework full-time and thus no factual dispute between Dr. Lash and Cochran precluding summary judgment.
2. Dixon‘s Transfer to the Non-VA Care Department
Dixon‘s next contention on appeal relates to her transfer to the Non-VA Care Department in January 2015. Dixon asserts that the district court failed to consider the implications of her transfer, namely, that the VA moved her from a position where her MS was accommodated to one where it was not. Dixon does not spell out the significance that she wishes us to attach to this asserted fact, nor how it applies to her claims. Assuming, as the VA did, that she would like us to consider her 2015 transfer as the withdrawal of a reasonable accommodation, thus constituting an adverse act by the VA, Dixon faces two problems. First, the district court did not “overlook” Dixon‘s 2015 transfer. During a Local Rule 56(h) conference prior to summary judgment, the district court sought clarification on the adverse actions on which Dixon was relying. See Dixon-Tribou, 616 F. Supp. 3d at 57 n.20. Dixon identified three allegedly adverse actions, none of which involved her 2015 transfer. As such, the district court did not consider said transfer because the court “t[ook] her at her word.” See id. Second, as the district court correctly noted, Dixon failed to contact an EEOC counselor within forty-five days of her transfer to the Non-VA Care Department. See id. Per ORM, said claim was untimely raised and thus barred. See
3. Melina Leland Statement
Finally, Dixon contends that the district court overlooked evidence establishing that the VA did not reasonably accommodate her with temperature control of seventy-one degrees or less. Specifically, Dixon points to a statement from her former coworker, Melina Leland (“Leland“), which states that “[o]n the days the office was 75-76 degrees, [Dixon] seemed to have some difficulty focusing and moving from one system to another. The days that it was 69-71, she was able to quickly process her referrals and didn‘t need my assistance.” While Dixon criticizes the district court for failing to consider Leland‘s statement, Dixon failed to cite said statement in her opposition to the VA‘s motion for summary judgment. We have previously
IV. Conclusion
Having dispensed with Dixon‘s claims of error and discerning none in the district court‘s meticulous summary judgment decision, we affirm.