Mullin v. Secretary, U.S. Department of Veteran Affairs

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AILEEN MULLIN,

Plaintiff,

v. Case No. 8:20-cv-2697-VMC-AEP

SECRETARY, U.S. DEPARTMENT

OF VETERANS AFFAIRS,

Defendant.

______________________________/

ORDER

This matter comes before the Court upon consideration of

the Motion for Summary Judgment filed by the Defendant, the

Secretary of the U.S. Department of Veterans Affairs (the

VA), on January 28, 2022. (Doc. # 32). Plaintiff Aileen Mullin

responded on February 18, 2022 (Doc. ## 33, 34), and the VA

replied on March 14, 2022. (Doc. # 39). For the reasons that

follow, the Motion is granted.

I. Background

Mullin is employed by the VA as a Ratings Veterans

Service Representative (“RVSR”) at the Veterans Benefits

Administration’s St. Petersburg Regional Office. (Doc. # 32

at ¶ 1; Doc. # 34 at ¶ 1). As Mullin explained it, her job

was to analyze whether and to what extent veterans could claim

certain benefits. (Doc. # 32-2 at 4 (12:3-16:17)). Mullin

explained that, for a veteran to receive compensation, a VA

medical examiner would have to conduct an examination and

issue an opinion that the injury or illness was service-

related. (Id. at 6 (20:7-13)). The RVSR would gather the

veteran’s records and identify the pertinent pieces of

information for the medical examiner, and the RVSR would also

make the ultimate decision about whether the veteran would

receive the claimed benefits. (Id. at 7 (21:11-22:3)). Mullin

also explained the chain of command at her office. As an RVSR,

her direct superior was a “Coach.” (Id. at 9 (30:21-23)).

Coaches, in turn, would report to Assistant Service Center

Managers, and above them was the Service Center Manager. (Id.

at 9 (31:1-4), (32:24-35:4)).

A. Mullin’s Respiratory Health Problems

Mullin alleges that she first brought her asthma and

respiratory health problems to the VA’s attention in July

2010 and asked to be reassigned to work in a different part

of the building. (Doc. # 32-2 at 23 (88:13-23)). According to

Mullin, the VA implicitly denied that accommodation request

and instead told Mullin that she needed to file a workers’

compensation claim. (Id. at 24 (90:11-14)).

In December 2011, Mullin again complained that working

in the building gave her respiratory attacks and/or asthmatic

reactions, and so she requested an alternative schedule to

limit her time in the building and to change the location of

her workstation. (Id. at 26 (98:1-11), 279, 364). The VA

thereafter agreed that she need only work in the building two

consecutive days per week and also agreed to move her desk.

(Id. at 364; see also Id. at 27 (102:13-20)). According to

Mullin, these accommodations were not effective, although she

did not directly tell her supervisors that the changes were

ineffective because she thought her ongoing health issues

were apparent. (Id. at 27 (103:2-22)).

On January 8, 2012, Mullin emailed two VA colleagues

objecting to changing her “compressed day” away from

Wednesday due to her health concerns. (Id. at 364). She noted

that upcoming training was due to take place on Tuesdays,

Wednesdays, and Thursdays, but she was “unable to work four

days in a row in the current environment.” (Id.). She listed

“other options,” such as recording the sessions,

“relocat[ing] [her] workstation outside the second floor east

quadrant,” or “consider[ing] [the] work from home option.”

(Id. at 364-65).

On January 10, 2012, Mullin met with HR Specialist Tammi

Clarke. (Id. at 31 (117:1-5)). At that meeting, Clarke told

Mullin she would be allowed to move locations from the second

to the third floor. (Id. at 31 (118:4-12)). However, when

Mullin went back to the office on January 12, 2012, her desk

had not been moved, which “surprised and scared” Mullin. (Id.

at 31 (118:13-119:24)). Mullin reported this to her

supervisor and she told him, “I’ve got to get out of the room.

I can’t breathe.” (Id. at 32 (121:1-5)). After that, Mullin

left and found her friend, who called an ambulance for Mullin.

(Id. at 32 (121:24-125:11)). By the next time Mullin came to

work, her workstation had been moved to the third floor. (Id.

at 28 (105:18-106:4), 33 (127:4-24)).

On January 31, 2012, Mullin requested an air purifier

for her new workstation on the third floor.1 (Id. at 381).

She stated in an email that “for the second time since the

move . . . , the severity of my symptoms reached a level that

I had to leave work. (Symptoms include pain in my eyes and

throat, difficulty swallowing, dysphonia and tightness of the

chest).” (Id.). Mullin received the air purifier on February

2, 2012. (Id. at 385). However, just four days later, Mullin

notified her supervisors and HR that she did not think “the

air purifier is going to have the effect we hoped for” because

1 Mullin quibbles that it was Clarke who first suggested an

air purifier and she was politely “reminding” her in the

email. Regardless, this is the first time Mullin sets down in

writing that she’d like an air purifier at her workstation.

it was meant to be used in a small space and she worked in a

large open area. (Id. at 285).

B. The March 2012 skills examination

By late February 2012, Mullin had decided to take a

skills certification examination scheduled for March 14,

2012. (Doc. # 32-2 at 387). On March 12, she sent a request

to HR, asking to take the test in another part of the

building, citing her severe asthma symptoms. (Id. at 286,

389). Mullin and Clarke exchanged a series of emails about

this request on March 12 and 13, 2012. (Id. at 391-92). One

of Clarke’s emails explained that while they had set up a

special testing location for Mullin, the VA later learned

that she had decided to forego taking the examination. (Id.

at 391). Clarke informed Mullin that “although the temporary

workplace adjustment was not used, I thought you should know

that we took extraordinary measures to ensure you could test

if you chose to.” (Id.). Mullin’s Coach and direct supervisor,

Ulyssee McBurrough Jr., sent her an email on March 14

confirming that she had decided not to take the certification

examination. (Id. at 287). The email said: “[Mullin] stated

earlier this morning that [she did] not wish to take the RVSR

certification test. . . . [Mullin] stated that [she is] not

concerned with testing, and that [she is] concerned with

living and not dying. Therefore, [she has] decided not to

take the RVSR certification today.” (Id.).

Mullin explained that the accommodation provided by the

VA was inadequate because she was not given sufficient time

to set up her computer and other materials to take the exam,

as other people were allowed to do. (Id. at 40-41). Thus, she

testified that Clarke’s statement that “everything was ready

for you to walk in and take the test” was “bogus” and

“loaded.” (Id. at 43 (166-2-167:12)). But beyond that, Mullin

stated that the “fundamental” accommodation that the VA

refused to give her with respect to this examination was a

place she could breathe easily. (Id. at 41 (159:17-23)). In

Mullin’s estimation, if she’d been given several days to set

up her air purifiers in an enclosed space and had time to set

up her computer, there was a “possibility” she could have

taken the examination. (Id. at 43 (168:2-12)). Mullin could

not recall whether she ever asked for these specific measures.

(Id. at 44 (169:15-24)).

C. Mullin’s first FMLA leave request

On March 2, 2012, Mullin visited her

allergist/immunologist, Dr. Stephen Klemawesch, reporting

that she could not work more than four days per week without

exacerbating her asthma and that she would like to apply for

leave under the Family and Medical Leave Act (FMLA). (Doc. #

32 at ¶ 15; Doc. # 34 at ¶ 15). The next day, Dr. Klemawesch

submitted a FMLA leave certification on Mullin’s behalf,

stating that she had chronic allergic sinusitis and asthma.

(Doc. # 32-2 at 481-84). Dr. Klemawesch wrote that Mullin’s

condition “worsens at work at the VA[,] leading to severe

attacks requiring urgent care.” (Id. at 482). Dr. Klemawesch

recommended that Mullin be allowed to work from home “with

periodic trips to the work site as required” and “when [she

is] at the work site, limit exposure to the building . . . .

[Mullin] must be allowed to leave immediately from the work

place if she develops asthma.” (Id. at 483-84).

The record reflects that on March 12, 2012, Casey Crump

(a steward with the union to which Mullin belonged) sent an

email to Kerrie Witty, the director of the St. Petersburg

Regional Office, and others, writing that:

[Mullin] is working with HR to obtain an

accommodation to work at home. However, I was very

surprised about the pace of action being taken by

both parties. [Mullin] has an ongoing medical

condition with a statement from her doctor which

extremely limits the time she should be in this

office. This must be expedited and we request a

representative from HR dedicated to completing the

required paperwork as soon as possible. In

addition, the work at home request should be

afforded the same attention. . . . I want everyone

to understand the extended time in the office is a

health hazard for [Mullin]. This is also an ongoing

liability that I want to ensure you are personally

aware of.

(Id. at 398-99).

Witty then asked HR Manager Bonnie Wax and Veterans

Service Center Manager Sandra Smith whether they had a

reasonable-accommodation request from Mullin. (Id. at 398).

In a March 13 email, Witty indicated that Mullin had submitted

the medical documentation and a reasonable-accommodation

request in the preceding few days. (Id.). Witty wrote: “Tammi

[Clarke] has it and I think you [Smith] should go review it

and determine if we need to let her work from home as an

accommodation since her physician states that as the

accommodation she needs.” (Id.).

On March 20, 2012, the VA formally allowed Mullin to

work from home three days a week. (Id. at 407). Mullin

testified that this was not a reasonable accommodation

because she would never have asked to be in the building two

days a week as her doctors had told her to severely limit her

time in the building. (Id. at 46 (178:2-25)). According to

Mullin, while coming into the office on Tuesdays and Fridays

was standard for certain RVSRs, she had not requested the

schedule other people had, she asked to work from home,

“period.” (Id. at 47 (182:19-25), 183:5-11)). She claims that

no one at the VA spoke to her about the extent to which they

granted this accommodation and that their decision was

“unilateral.” (Id. at 46 (178:22-25)).

D. Mullin’s cancer diagnosis and various leave

requests

Later in the month of March 2012, Mullin was diagnosed

with breast cancer. (Doc. # 32-2 at 12 (43:7-9), 492). To her

recollection, Mullin only initially shared her cancer

diagnosis with Smith, the Service Center Manager, and a friend

from work. (Id. at 12 (43:10-22)).

Her oncologist stated in an FMLA leave certification

form dated March 23, 2012, that she would require surgery,

followed by chemotherapy and possible radiation. (Id. at

492). The oncologist stated that she would need to be absent

from work for up to 6 months. (Id. at 493). This FMLA request

was approved on April 9, 2012. (Id. at 496).

On May 3, 2012, Crump sent Mullin an email in which he

said, in pertinent part: “I spoke with [HR Manager] Bonnie

Wax the other day about your condition. She said the tumor

you have is what caused your breathing problems. She said it

was apparently exerting some pressure on your lungs. She also

said she was relieved your condition was not caused by our

office and that we do not actually have sick building

syndrome.” (Id. at 501). Mullin had not spoken to Wax about

her medical condition and was upset that Wax was speaking

about it to her colleagues. (Id. at 503; see also Id. at 92

(92:8-11)). Neither Crump nor Mullin know where Wax obtained

the information that she discussed with Crump. (Doc. # 32 at

¶ 19; Doc. # 34 at ¶ 19).

On May 4, 2012, Mullin requested 80 hours of advanced

sick leave to undergo surgery for her cancer, and McBurrough

submitted a formal memorandum documenting Mullin’s request

three days later. (Doc. # 32 at ¶ 20; Doc. # 34 at ¶ 20).

Director Witty approved the request on May 10, 2012. (Id.).

Mullin also requested to participate in the VA’s Voluntary

Leave Transfer Program, and she was accepted. (Doc. # 32-2 at

320). In a June 27, 2012, email from a HR employee2, it

indicates that Mullin received 158 hours of donated leave

through the leave transfer program. (Id. at 309-10).

Mullin alleges that, in August 2012, her requests for

advanced sick leave were not processed promptly, resulting in

2 At several points in her deposition, Mullin speculated that

certain emails or other documents were not written by the

indicated author but were instead forged by someone else. As

Mullin points to no evidence supporting this assertion, the

Court will make the reasonable assumption that emails and

other record evidence were authored by the person indicated

on the document.

a loss of pay. (Id. at 94 (267:1-5)). Mullin could not recall

the process for requesting advance sick leave, who the

decision-makers were that delayed the process, how long the

delay was, how many hours were delayed, or whether the VA

retroactively paid her. (Id. at 94:267:1-270:1)). And Mullin

alleges that on August 26, 2012, her request for leave under

the leave transfer program was not processed. (Id. at 95

(270:8-11)).

As discussed in further detail below, Mullin initiated

her administrative complaint procedure in June 2012 and filed

her formal complaint in September 2012.

E. Events of 2013

Mullin completed her cancer treatments in December 2012.

(Doc. # 32-2 at 433). She returned to work on January 2, 2013.

(Id.). The record reflects that during this time, Mullin

worked primarily from home and would come into the office

“once or twice a week” to minimize her exposure to the

building. (Id. at 305). Within a few weeks of returning to

work, however, Mullin contacted her employer to report that

being in the building was exacerbating her medical conditions

and that her doctor advised her to “further minimize [her]

time in the building” and to wear a respirator-type mask while

in the building. (Id. at 409).

On January 30, 2013, Mullin met with Clarke, McBurrough,

and union representative John Smith, where she requested

modifications to her job requirements, such as assistance

retrieving documents from the printer and help moving files.

(Id. at 434; see also Id. at 55 (213:5-18)). As Mullin later

described it, she also suggested that she work entirely from

home or work someplace other than the St. Petersburg building.

(Id. at 103 (303:7-15)). One of the modifications she proposed

at that time would be to “have someone just pick up the files,

meet me outside in my car, take the whole cart. Whatever

documents were germane to that file, which I would identify,

a person would scan it in, do that, do the physical part of

the movement of the paper file, the marrying of the documents

and the movement of them.” (Id. at 96 (276:8-13)). At this

time, Mullin was coming into the office two days per week,

and the bulk of her time there was spent marrying the work

she had done from home into the physical file at the VA. (Id.

at 96 (276-77)).

A letter in the record, authored by John Smith, reflects

that “the group was set to meet the next morning to further

discuss options allowing Ms. Mullin to safely perform her

job.” (Id. at 434). According to that letter, however, “later

that same afternoon, Human Resources informed Ms. Mullin that

her request for accommodation was denied (without the benefit

of further conversation).” (Id.).

The letter goes on to state that this event led Mullin

to believe that her job was in jeopardy, which caused her

extreme distress and, the next day, she was admitted to the

hospital. (Id.). Mullin testified that she was “blind-sided”

by this decision and she took it as the VA being “done” with

her, that she would be forced to either quit or not meet her

production goals. (Id. at 56 (217:18-218:9)).

On January 31, 2013, Mullin emailed Clarke and

McBurrough, writing in pertinent part:

For the [doctors] to define the specs for an

appropriate respirator, they now need to know how

the device will be used. This wasn’t as much an

issue when it was believed that I would be granted

accommodations. Now that that’s off the table,

again, more info is needed.

One important detail pertains to time: How long is

it anticipated I will need the respiratory

protection to perform the “essential functions” of

a [work at home] RVSR. . . . Can you please email

us the “essential functions” I’ve [] been denied

accommodations for.

(Id. at 325).

On February 5, 2013, Clarke sent her an email entitled

“Essential Function: In-Office Process.” (Id. at 321). In

that email, Clarke wrote:

Below is the information you requested. I

understand that you feel these tasks are minimal

and can be done by someone else, however

collectively these tasks take a significant amount

of time to complete. It’s the whole in-office

process that is considered an essential function of

the job. Based on our phone conversation, it seems

that there are certain tasks of the in-office

process you are seeking assistance with. If you

want we can talk about it in our next meeting or

you can reply back with what it is that you are

seeking assistance with. [Clarke then goes on to

detail multiple parts of the in-office process.]

The whole in-office file process can take the

average work at home rating specialist 3 to 5 hours

or more depending on the number of files to be

processed and is an essential function of your job.

(Id.). Mullin strongly disagreed that the physical file-

moving portions of her job took as long as three to five

hours. (Id. at 100 (293:8-23)).

There were other emails sent between Clarke and Mullin

on February 5: Mullin wrote that, “In our telephone

conversation this morning, you [Clarke] informed me that you

had submitted a ‘Request for Accommodations’ to GC at my

request. Any suggestion that this action was requested by me

is patently false.” (Id. at 326). Clarke responded that

sending the information on to regional counsel was part of

the “formal denial process.” (Id.).

Mullin alleges that on February 6, 2013, Clarke spoke to

her “in a sarcastic manner and refused to discuss

restructuring marginal tasks to [modify] her existing

accommodation.” (Id. at 95 (272:21-273:3)). As Mullin

explained at her deposition, during that conversation, Clarke

told her “you think that parts of your job are insignificant

or below you . . . and someone else should do your job. But

the essential function is – the job was the entire job

process.” (Id. at 96 (274:15-21)).

On February 27, 2013, the VA agreed to provide Mullin

with the following accommodation: her workspace would be

moved to a different part of the building and a second air

purifier would be added to her workspace. (Id. at 437). Her

printer would be set up to print inside the office suite.

(Id.). And Mullin would wear the respirator prescribed by her

doctor while in the building. (Id.). Mullin disputes that she

ever agreed with the VA that she would wear the respirator

inside the building. (Id. at 112 (340:12-19)). She also

maintains that this accommodation was not effective. (Doc. #

34 at 8).

In a March 14, 2013, email, McBurrough, Mullin’s

supervisor, noted “some concerns” Mullin had with the air

purifiers, noted that she did not always wear her respirator

mask, and also noted some work-quality concerns with respect

to Mullin. (Doc. # 32-2 at 439-40). Once Clarke heard

indirectly about Mullin’s concerns, she added a third air

purifier to the workspace and had the air quality tested (and

the air quality was “very good”). (Id. at 442). Clarke

admonished Mullin that she should wear her mask while in the

office and that if she had any concerns or further requests

for accommodation, that Mullin should come directly to her.

(Id.).

Meanwhile, on February 27 or 28, 2013, Mullin met with

McBurrough, Clarke, and union representatives to discuss her

work situation. (Id. at 444). One of the union representatives

suggested letting Mullin work half from home and half in the

office the two days per week she came to the office. (Id.).

The VA never formally granted Mullin an accommodation in the

form of this twice weekly, half-day schedule. (Id.).

Nevertheless, it appears that Mullin began working such a

schedule. In a March 29, 2013, email that Mullin sent to

multiple VA employees, she was upset that this

“accommodation” had been “rescinded.” (Id. at 445). She

wrote:

Effective immediately, I am no longer permitted to

work four hours in the office and four hours at

home (WAH) on Tuesdays and Thursdays. . . . My

understanding is, that the basis of your February

27th agreement to modification of accommodations,

was to prevent the repeated onset of severe

building-related respiratory illnesses. Since the

modification was put in place, it[] has been

effective in preventing major respiratory events.

. . . If it is true that the modification to

accommodations has been reversed, and I am required

to stay in the building until I am symptomatic . .

. how should I proceed?

(Id.).

On April 1, 2013, Clarke sent Mullin an email explaining

that her approved accommodation did not extend to working

four hours per day at home and four hours in the office. (Id.

at 448). Clarke wrote: “No accommodation was reversed or

rescinded, because you were never granted an accommodation to

work ½ days in the office. Therefore, leave should be taken

any time you leave the office before the end of your tour on

Tuesdays and Thursdays.” (Id.). On April 3, Mullin emailed

her supervisor and numerous other people imploring them to

develop an “emergency medical plan” for her now that she was

being made to work in the office two full days per week. (Id.

at 333). Mullin wrote that “[t]he four hours, twice a week,

modification to the existing accommodation was working. . .

. I was able to stay out of the emergency room and doctor’s

office. Yes, the modification that Tammi, John and I agreed

to WAS effective!!! But that’s a moot point. Unfortunately,

the Agency made it clear that it is adhering to its pattern

of refusing to permit accommodations appropriate to [her]

specific disability.” (Id.).

On April 15, 2013, the VA provided Mullin with the

following formal accommodation: The VA allowed Mullin to work

from home four days a week and only report to the building on

Friday mornings from 7:00 am to 11:00 am. (Id. at 458). She

would be allowed to complete her work hours on Friday from

home. (Id.).

Mullin, however, was not placated. She sent an April 16

email to McBurrough stating that the new accommodation was

“pretext” and that “[s]ince I amended my EEO complaint, the

Agency’s treatment of me has reached the level of being

inhumane. The Agency is fully aware of my cancer, asthma,

sinus infections [] and desire to move forward in my career

– but none of that is enough for them to treat me with common

decency.” (Id. at 460). She sent another email to McBurrough

later that same day, stating that she had not requested these

additional accommodations, that they are “useless and

potentially harmful” to her, and do not address assistance

with the “marginal functions” of her position. (Id. at 463).

By April 12, 2013, Mullin’s doctor wrote to the

Department of Labor Workers Compensation program recommending

that she be allowed to work entirely from home due to her

medical conditions and he opined that the air purifiers in

her workspace were not effective. (Id. at 473).

On April 19, 2013, the VA granted Mullin the following

accommodation: She would be allowed to work from home five

days a week. (Id. at 476). She would come to the office on

Friday mornings, where someone would meet her outside,

provide her new work documents, and take her completed ones.

(Id.).

F. Mullin’s administrative complaint

Mullin initiated contact with an Equal Employment

Opportunity Commission (EEOC) counselor on June 5, 2012.

(Doc. # 32-2 at 543, 555). VA Director Witty was notified the

next day. (Id.). Mullin and Director Witty participated in

mediation in June 2012, but it was unsuccessful. (Id. at 545).

Once the informal process was unsuccessful, Mullin brought a

formal complaint with the EEOC on September 18, 2012. (Id. at

547). Director Witty was notified of the formal EEOC complaint

on September 25, 2012. (Id. at 553).

On October 18, 2012, the EEOC notified Mullin of its

partial acceptance of her complaint. (Id. at 555-560).

According to the October 18 partial acceptance letter:

During the EEO counseling period you raised a claim

of hostile work environment that consisted of the

following events and indicated the events were

based on disability: on May 3, 2012, you were

informed that your request for advanced sick leave

was denied; on May 3, 2012, you were informed that

there were problems with your request of March 2012

for leave under the [FMLA]; on May 3, 2012, you

informed that Human Resources Manager Bonnie Wax

(BW) made a horrible comment about your medical

condition and; on May 31, 2012, HR failed to provide

your Union representative with a complete record of

documents that were needed to assist you with your

reasonable accommodation request and the response

to the information provided was delayed.

(Id. at 555).

The EEOC then noted that, in her formal complaint, Mullin

had raised 12 new allegations that were not raised during the

counseling period and she also added “reprisal” as a basis

for the alleged discrimination. (Id.). The October 18 letter

listed 16 allegations raised by Mullin. (Id. at 556-57). The

EEOC determined that, of those 16, three allegations

constituted timely raised, discrete acts of discrimination

that were accepted for investigation:

(1) “On May 3, 2012, [Mullin] was informed that her

request for advanced sick leave was denied.”

(2) “On June 16, 2012, August 11, 2012, August 25, 2012,

and September 8, 2012, [Mullin’s] advanced sick

leave was not processed.”

(3) “On August 16, 2012, [Mullin’s] request for the

leave under the leave transfer program was not

processed.”

(Id. at 556 n.3). The EEOC also accepted for investigation

Mullin’s “overall harassment claim,” which did incorporate

all 16 allegations, spanning the time period from September

2011 until September 2012. (Id. at 556-57).

Over the following nine months, Mullin amended her EEOC

complaint three times. The first time, Mullin attempted to

add two new claims and 10 new allegations of continuing

harassment. (Id. at 562-63). The EEOC dismissed both

purported new claims as not cognizable. (Id.). However, with

respect to the 10 new allegations, the EEOC considered these

to be relevant background facts that could be used as evidence

to help support the accepted harassment claim under

investigation. (Id. at 563). In addition, of these new

allegations, one was accepted for investigation as a discrete

and actionable act of discrimination: “On February 6, 2013,

[Clarke] spoke to [Mullin] in a sarcastic manner and refused

to discuss restructuring marginal tasks to modify her

existing accommodation; [Mullin’s] request to modify her

existing accommodation was denied and she was advised that

the denial notice was forwarded to General Counsel.” (Id. at

564 n.3, 565).

On March 29, 2013, Mullin again sought to amend her EEOC

complaint. (Doc. # 32-2 at 568). The EEOC accepted Mullin’s

new allegation that on March 29, 2013, she was advised that

modifications to her reasonable accommodation were

“reversed,” but accepted it only as further evidence that was

related to or grew out of her existing harassment claim. (Id.

at 568-69).

Finally, on July 11, 2013, Mullin again sought to amend

her EEOC complaint to add allegations pertaining to May 2013

events where an EEO manager attempted to interfere with a

family member accompanying her to mediation and also denied

her notice of mediation training and resources. (Id. at 573).

These were accepted as additional allegations pertaining to

her existing harassment claim. (Id.).

G. Proceedings before this Court

Based on these allegations, Mullin sued the VA on

November 16, 2020. (Doc. # 1). She asserted claims for

disability discrimination under the Rehabilitation Act of

1973 (Count I); failure to accommodate under the

Rehabilitation Act (Count II); privacy violations under the

Rehabilitation Act (Count III); and retaliation and/or

retaliatory hostile work environment under the Rehabilitation

Act3 (Count IV). See (Id.). The VA filed an answer (Doc. #

3 Mullin cited both the Rehabilitation Act and Title VII in

the complaint as the bases for Count IV. However, federal

12), and this case proceeded through discovery. The VA has

now filed the instant Motion seeking summary judgment as to

all counts of the complaint. (Doc. # 32). The Motion is fully

briefed (Doc. ## 33, 34, 39) and ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

employees’ disability discrimination claims typically proceed

under the Rehabilitation Act. See Brandon v. Lockheed Martin

Aeronautical Sys., 393 F. Supp. 2d 1341, 1354 (N.D. Ga. 2005)

(explaining that disability discrimination claims cannot be

brought under Title VII).

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

The VA attacks Mullin’s claims as both time-barred and

lacking in merit. The Court will address each argument in

turn.

A. Time Bar

“Under Title VII and the Rehabilitation Act, Federal

employees are required to initiate administrative review of

any alleged discriminatory or retaliatory conduct with the

appropriate agency within 45 days of the alleged

discriminatory act.” Shiver v. Chertoff, 549 F.3d 1342, 1344

(11th Cir. 2008). “Generally, when the claimant does not

initiate contact within the 45–day charging period, the claim

is barred for failure to exhaust administrative remedies.”

Id.

The VA points out that “none of the allegations included

in Mullin’s amendments were brought to an EEO counselor,” and

it argues she has therefore failed to exhaust her

administrative remedies. (Doc. # 32 at 10). Mullin counters

that her claims are timely because “at least one act of

harassment occurred within the 45 days prior to [Mullin’s]

initial contact with the EEOC.” (Doc. # 33 at 4).

With respect to Mullin’s hostile work environment claim

in Count IV, the Court need not decide the timeliness issue

because, even assuming it to be timely, it fails on the merits

for the reasons described below. With respect to Mullin’s

disability discrimination claim in Count I, Mullin has not

cited any authority to support the suggestion that any

untimely discrete incidents that were not identified and

accepted by the EEOC for investigation may form the basis for

liability. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 113 (2002) (in construing Title VII’s statutory

exhaustion requirements, explaining that time-barred acts are

not actionable, even if they are related to acts alleged in

a timely-filed charge). Thus, the Court will confine itself

to the specific incidents that were accepted by the EEOC as

timely raised discrete acts of disability discrimination.

Finally, as the Court will explain in more detail, the 45-

day time-bar does serve to limit the scope of Mullin’s

failure-to-accommodate claim in Count II.4

4 The VA does not challenge Count III as time-barred. See

(Doc. # 32 at 10).

B. Disability Discrimination Claim

Mullin brings Counts I and II for disability

discrimination under the Rehabilitation Act. The

Rehabilitation Act prohibits federal agencies from

discriminating in employment against otherwise-qualified

individuals with disabilities. Porterfield v. Soc. Sec.

Admin., No. 20-10538, 2021 WL 3856035, at *4 (11th Cir. Aug.

30, 2021). The standards for determining liability under the

Rehabilitation Act are the same as the Americans with

Disabilities Act (“ADA”) standards. Id.

Disability discrimination under the Rehabilitation Act

comes in two forms – disparate treatment and failure to make

a reasonable accommodation. Id. Disparate treatment involves

discriminatory intent or animus and occurs when a disabled

individual is treated differently than a non-disabled

individual. Id. (citing 42 U.S.C. § 12112(b)). A failure to

make a reasonable accommodation requires no animus and occurs

where a covered entity fails to fulfill its affirmative duty

to make “reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with

a disability who is an applicant or employee, unless such

covered entity can demonstrate that the accommodation would

impose an undue hardship on the operation of the

business.” Id. (citing 42 U.S.C. § 12112(b)(5)(A)).

1. Mullin’s disparate treatment claim

A plaintiff may support her claim of discrimination

through direct or circumstantial evidence. Where, as here, a

disparate treatment claim under the Rehabilitation Act is

based on circumstantial evidence, the claim is analyzed under

the burden-shifting approach of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See Ctr. v. Sec’y, Dep’t of

Homeland Sec., Customs & Border Prot. Agency, 895 F.3d 1295,

1303 (11th Cir. 2018). Under this burden shifting framework,

if the plaintiff establishes her prima facie case of

disability discrimination, and the employer proposes

legitimate, nondiscriminatory reasons for its decision, then

the plaintiff must show (or create an issue of fact) that the

reasons were a pretext for discrimination. See Id.

To establish a prima facie case of disability

discrimination under the Rehabilitation Act, a plaintiff must

demonstrate that: (1) she has a disability; (2) she was a

“qualified individual” for the position; and (3) she was

subjected to unlawful discrimination as a result of her

disability. Id.

In order to establish the third element, the plaintiff

must show that she suffered an adverse employment action

because of her disability. Porterfield, 2021 WL 3856035, at

*4. To establish an adverse employment action, “an employee

must show a serious and material change in the terms,

conditions, or privileges of employment . . . as viewed by a

reasonable person in the circumstances.” Id. at *5. Moreover,

the “asserted impact cannot be speculative and must at least

have a tangible adverse effect on the plaintiff’s

employment.” Id. Under the Rehabilitation Act (unlike the

ADA), the plaintiff must prove that the adverse employment

action was “solely by reason of” her disability. See 29

U.S.C. § 794(a). A plaintiff cannot prevail if she merely

shows that her employer based the adverse employment action

partially on her disability and partially on other

factors. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.

2005) (explaining that “[i]t is not enough [under the

Rehabilitation Act] for a plaintiff to demonstrate that an

adverse employment action was based partly on his

disability”).

Here, there are only six events that Mullin timely

brought to an EEOC counselor or had accepted as timely raised

discrete acts of discrimination:

(1) On May 3, 2012, Mullin was informed that her request

for advanced sick leave was denied;

(2) On May 3, 2012, Mullin was informed that there were

problems with her March 2012 request for leave

under the FMLA;

(3) On May 3, 2012, Mullin was informed that Human

Resources Manager Bonnie Wax made a “horrible

comment” about her medical condition;

(4) On May 31, 2012, HR failed to provide Mullin’s Union

representative with a complete record of documents

that were needed to assist her with her reasonable

accommodation request and the response to the

information provided was delayed;

(5) On June 16, 2012, August 11, 2012, August 25, 2012,

and September 8, 2012, Mullin’s advanced sick leave

was not processed.

(6) On August 16, 2012, Mullin’s request for the leave

under the leave transfer program was not processed.

With respect to Events 2 through 6, the VA argues that

they do not support a disparate treatment claim because they

did not have a tangible adverse effect on Mullin’s employment

and/or there is no evidence in the record to support a finding

that she suffered these actions solely because of her

disability. (Doc. # 32 at 14). The Court agrees. Mullin has

not demonstrated that problems with FMLA leave being

processed, issues obtaining documents, or hurtful comments

made by colleagues amount to “a serious and material change

in the terms, conditions, or privileges of employment . . .

as viewed by a reasonable person in the circumstances.” See

Porterfield, 2021 WL 3856035, at *5. Nor has Mullin

demonstrated that she suffered any of the listed actions

solely because of her disability.

In addition, the Court agrees with the VA that Mullin

did not respond at all to the VA’s arguments as to Events 2

through 6 in her response – that is, she did not point this

Court to any facts in the record to refute the VA’s

contentions or provide any argument in rebuttal – and that

she has therefore abandoned those portions of her disparate

treatment claim. See Jones v. Bank of Am., N.A., 564 F. App’x

432, 434 (11th Cir. 2014) (explaining that, where one party

failed to respond to arguments made before district court at

summary judgment, “the Court deems such argument or claim

abandoned”); see also Schwarz v. Villages Charter Sch., Inc.,

No. 5:12-cv-177-MMH-PRL, 2016 WL 777790, at *6 (M.D. Fla.

Feb. 29, 2016) (finding that Plaintiffs’ failure to respond

to an aspect of the claims attacked by Defendant’s motion for

summary judgment constituted abandonment of the issue).

Turning then to Issue 1 – the May 2012 denial of advanced

sick leave – the VA argues that this claim is (1) belied by

the record, (2) fails as a matter of law because Mullin did

not suffer a tangible adverse effect on her employment because

this sick leave was approved, and (3) there is no evidence

that she was denied leave solely because of her disability.

(Doc. # 32 at 13-14). Again, the Court agrees. The record

clearly reflects that Mullin requested advanced sick leave in

May 2012 and Director Witty approved the request one week

later. (Doc. # 32 at ¶ 20; Doc. # 34 at ¶ 20). Thus, the VA

did not deny Mullin advanced sick leave nor did she suffer a

tangible adverse effect on her employment.5

5 In a one-sentence argument, Mullin also attempts to paint

the May 2012 purported denial of advanced sick leave as

retaliation for “her participation in EEOC protected

activity.” (Doc. # 33 at 9). But Mullin did not even contact

an EEO counselor until June 2012. And even assuming that her

earlier interactions with the VA qualify as protected

activities, she still has not demonstrated that she suffered

an adverse employment action for the reasons described above.

See Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees,

507 F.3d 1306, 1315–16 (11th Cir. 2007) (explaining that to

prevail on a retaliation claim under the Rehabilitation Act,

a plaintiff must show that she engaged in a protected

activity, that she suffered an adverse employment action, and

that the protected activity was causally connected to the

adverse employment action).

Accordingly, the Court grants the VA’s Motion to the

extent it seeks summary judgment on Mullin’s disparate

treatment claim (Count I).

2. Mullin’s reasonable-accommodations claim

“An employer unlawfully discriminates against an

otherwise qualified person with a disability when it fails to

provide a reasonable accommodation for the disability, unless

doing so would impose an undue hardship on the employer.”

Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir.

2017).

The thrust of Mullin’s response is that: (1) the VA knew

of her health challenges and her position that “full-time

telework” was the “only appropriate accommodation” as early

as 2010; (2) the VA eventually granted her full-time telework

request in April 2013; but (3) “there was no reason for the

undue delay in granting such request.” (Doc. # 33 at 10-11).

In its reply, the VA concedes that an unreasonable delay

can amount to an actionable failure to provide a reasonable

accommodation. (Doc. # 39 at 3); see Russell v. City of Tampa,

No. 8:14-cv-814-EAK-AEP, 2015 WL 5871189, at *3 (M.D. Fla.

Oct. 5, 2015) (holding that an unreasonable delay may amount

to failure to provide a reasonable accommodation under the

ADA).

Here, although Mullin arguably raised her request for

full-time telework in March 2012, see (Doc. # 32-2 at 47

(183:1-17), 481-84), she did not raise this alleged failure

to accommodate to an EEO counselor within the 45-day time

limit. Mullin first contacted an EEO counselor on June 5,

2012. (Doc. # 32-2 at 543, 555). Thus, any incidents that

occurred prior to April 21, 2012, would be time-barred.

Mullin’s EEOC complaint contained the following

allegations:



On February 2, 2012, [Mullin] was given an ineffective

accommodation when she was issued an air purifier

designed for a small room, even though her work

station was an open cubicle in an area comparable to

a football field.



On March 20, 2012, [Mullin] was given another

ineffective accommodation when she was authorized to

work at home three days a week and on the days [she]

was required to report to the office, she suffered

asthma attacks which forced her to leave the building.

(Doc. # 32-2 at 556). Both of these incidents took place prior

to April 21, 2012. Thus, they fall outside of the 45-day

period and cannot form the basis for liability. See Tarmas v.

Mabus, No. 3:07-cv-290-TJC-TEM, 2010 WL 3746636, at *4 (M.D.

Fla. Sept. 21, 2010) (dismissing failure-to-accommodate

claims as time barred where plaintiff initiated contact more

than 45 days after the employer allegedly failed to provide

an adequate accommodation); see also Sherman v. Speer, No.

1:16-cv-939-WKW-WC, 2019 WL 3006626, at *10 (M.D. Ala. Mar.

27, 2019), report and recommendation adopted, No. 1:16-cv-

939-WKW, 2019 WL 2009282 (M.D. Ala. May 7, 2019) (granting

summary judgment on failure-to-accommodate claim where

plaintiff initiated contact with an EEO official more than 45

days after the date his accommodation request was denied).

What’s more, the view in this Circuit is that the denial

of a reasonable accommodation for a disability is a discrete

act of discrimination and, thus, courts do not recognize the

“continuing violation” doctrine with respect to failure-to-

accommodate claims. See Abram v. Fulton Cnty. Gov’t, 598 F.

App’x 672, 676 (11th Cir. 2015) (holding that each denial of

requested accommodation constituted a “discrete act[ ] of

alleged discrimination” for purposes of limitations

period); Dick v. Dickinson State Univ., 826 F.3d 1054, 1059

(8th Cir. 2016) (same); see also Johns v. Marsh & McLennan

Agency LLC, No. 3:19-cv-687-ALB-SRW, 2020 WL 1540397, at *2

(M.D. Ala. Mar. 31, 2020) (finding continuing violation

theory inapplicable in ADA case); Ramsey v. Greenbush

Logistics, Inc., No. 3:17-cv-1167, 2017 WL 6492608, at *3

(N.D. Ala. Dec. 19, 2017) (dismissing failure-to-accommodate

claim as untimely and rejecting plaintiff’s continuing

violation theory that his EEOC charge was timely); Tarmas,

2010 WL 3746636, at *4 (rejecting the argument that claims

other than hostile work environment claims are subject to the

“continuing violation doctrine”).

The VA admits that Mullin’s complaints about the

accommodation process from January to April 2013 were timely.6

(Doc. # 32 at 14-15). Specifically, in one of her amendments,

Mullin raised the following as a discrete act that was

accepted by the EEOC for investigation: In February 2013,

Clarke spoke to Mullin in a “sarcastic manner and refused to

discuss restructuring marginal tasks to modify her existing

accommodation” and, thus, Mullin’s request to modify her

existing accommodation was denied. (Doc. # 32-2 at 564 n.3,

565). In a later amendment, Mullin alleged that in March 2013

6 On March 8, 2013, Mullin raised her claim regarding the VA’s

alleged failure to modify her existing accommodation in

February 2013. (Doc. # 32-2 at 562-65). On March 29, 2013,

Mullin amended her complaint again to add an allegation that

modifications to her reasonable accommodations were

“reversed” that same day. (Id. at 568-71). Thus, these

allegations were raised within 45 days.

she was advised that modifications to her reasonable

accommodations were reversed, but the EEOC accepted this

allegation only as additional background evidence with

respect to the harassment claim. (Id. at 568-71).

The record reflects that in late January 2013, Mullin

met with VA officials and requested certain modifications to

her job requirements, such as assistance retrieving documents

from the printer and help moving files, a request that the VA

ultimately denied. (Doc. # 32-2 at 55 (213:5-18), 434).

According to Mullin, she also suggested at that time that she

work entirely from home or work someplace other than the St.

Petersburg building. (Id. at 103 (303:7-15)). The

relationship between Mullin and Clarke worsened over the

ensuing weeks, so that by February 2013 Clarke allegedly

speaking to Mullin in February 2013 in a “sarcastic manner”

and derided Mullin that she thought someone else should

perform the essential functions of her job. (Id. at 95

(272:21-273:3), 96 (274:15-21)).

On February 27, 2013, the VA agreed to provide Mullin

with the following accommodation: her workspace would be

moved to a different part of the building and a second air

purifier would be added to her workspace. (Id. at 437). Her

printer would be set up to print inside the office suite.

(Id.). After hearing that Mullin had certain concerns about

the air quality in her workspace, Clarke then added a third

air purifier to the workspace and had the air quality tested.

(Id. at 442).

It was around this time that Mullin began working half

days in the office twice a week, despite the VA never formally

granting such an accommodation. Mullin wrote in a later email

that this informal accommodation had been effective. (Id. at

333). Mullin was upset when this informal accommodation was

“rescinded” in late March 2013. (Id. at 445). Mullin was vocal

about her frustration and, on April 15, 2013, the VA allowed

Mullin to work from home four days a week and only report to

the building on Friday mornings. (Id. at 458). After Mullin

again complained, the VA granted Mullin an accommodation of

full-time tele-work on April 19, 2013. (Id. at 476).

Here, although an employer is not required to

accommodate an employee in any manner in which that employee

desires, the VA ultimately gave Mullin the accommodation of

full-time telework she requested. See Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th

Cir. 1997). As noted above, however, a delay in granting a

reasonable accommodation may give rise to a claim. See

Russell, 2015 WL 5871189, at *3. A “short” delay may still

permit the conclusion that the accommodation was reasonable.

See Id. at *3-4 (finding that a 28-day delay was not

unreasonable); see also Terrell v. USAir, Inc., 955 F. Supp.

1448, 1454 (M.D. Fla. 1996) (finding a three-month delay to

be acceptable); Jackson v. Sec’y of Dep’t of Veterans Affs.,

No. 8:17-cv-1673-CEH-TGW, 2018 WL 4091988, at *7 (M.D. Fla.

Aug. 27, 2018) (applying Russell to a Rehabilitation Act

claim). Courts should also take into account any interim

accommodations put in place. See Terrell v. USAir, 132 F.3d

621, 627–28 (11th Cir. 1998) (finding that employer did not

violate the ADA as a matter of law where it took three months

to provide an employee suffering from carpal-tunnel syndrome

with a drop keyboard but employer provided employer some

access to a drop keyboard when available and was not required

to type when one was not available); see also Moseley v.

McDonough, No. 2:19-cv-2013-JHE, 2021 WL 4326657, at *13

(N.D. Ala. Sept. 23, 2021) (recognizing that any delay in

granting an accommodation is properly reduced by the amount

of time a temporary accommodation was in place).

Here, construing the record in Mullin’s favor, she made

a request to work from home in late January 2013. By April

19, 2013 – three months later – she was provided with her

requested accommodation. Courts in this Circuit have excused

similar or longer delays. See Terrell, 132 F.3d at 628;

Hartsfield v. Miami-Dade Cnty., 90 F. Supp. 2d 1363, 1373

(S.D. Fla. 2000) (delay of almost ten months in providing

closed circuit television device for reading documents did

not constitute failure to accommodate under ADA).

In the meantime, the parties were in continuous

contact about Mullin’s health needs and accommodation

requests. There were no less than 18 instances of

communication on this topic between January 2, 2013, when

Mullin returned to work, and April 19, 2013, when she was

granted permission to work from home fulltime. Within that

time frame, the VA offered Mullin (who was already working

from home three days a week) three formal accommodations and

an additional informal accommodation in the form of a third

air purifier in her workspace. Under these facts, the delay

in granting Mullin’s requested accommodation was reasonable.

Accordingly, the Court grants the VA’s Motion on

Mullin’s reasonable accommodation claim (Count II).

C. Unlawful Disclosure Claim

In Count III, Mullin claims that the VA violated the

Rehabilitation Act when it disclosed her medical information

to others. Specifically, Mullin takes issue with Wax’s May

2012 disclosure of her breast cancer diagnosis to Crump.

Mullin relies on 42 U.S.C. §§ 12112(d)(4) and 29 C.F.R.

§ 1630.14(c)(1) in order to state a cause of action. See (Doc.

# 33 at 17). Under those statutes, employers may not “make

inquiries of an employee as to whether such employee is an

individual with a disability or as to the nature or severity

of the disability, unless such . . . inquiry is shown to be

job-related and consistent with business necessity.” 42

U.S.C. § 12112(d)(4)(A). While employers may “make inquiries

into the ability of an employee to perform job-related

functions,” any health information received via such inquiry

must be collected and maintained on separate forms and in

separate medical files and must be treated as a confidential

medical record. Id. §§ 12112(d)(4)(B), (C); 29 C.F.R. §

1630.14(c); see also Cripe v. Mineta, No. Civ.A. 03-

2206(RWR), 2006 WL 1805728, at *5 (D.D.C. June 29, 2006)

(explaining that the Rehabilitation Act incorporates the

confidentiality provisions of the ADA).

In support of summary judgment on this claim, the VA

relies heavily on the Eleventh Circuit’s opinion in Cash v.

Smith. There, the plaintiff, Cash, claimed that her manager

violated the nondisclosure provisions of the ADA and

Rehabilitation Act when she told other employees that Cash

had diabetes. Cash v. Smith, 231 F.3d 1301, 1307–08 (11th

Cir. 2000). The Eleventh Circuit sidestepped the question of

whether 42 U.S.C. § 12112(d) and 29 C.F.R. § 1630.14(c) create

a private cause of action because the disclosure there was

not the result of a medical examination ordered by the

employer but, rather, was a voluntary disclosure made “in

confidence” to another employee. Id. at 1307. The Court

determined that the cited statute and regulation “do not

govern voluntary disclosures initiated by the employee.” Id.

The Court need not determine in this case whether the VA

made an “inquiry” under Section 12112(d)7 because it finds

persuasive the VA’s argument that “in circuits where this

cause of action has been recognized, damages are not available

for a technical violation of [Section] 12112(d). Rather, to

create liability, a plaintiff ‘must show that an unauthorized

disclosure of medical information resulted in a tangible

injury.’” (Doc. # 32 at 17 (citing Porfiri v. Eraso, 121 F.

7 Were it to reach this issue, the Court is not at all

convinced that the VA made an “inquiry” in this case. While

Mullin relies on Doe v. U.S. Postal Service, 317 F.3d 339

(D.C. Cir. 2003), in support of this claim, the Court notes

that Doe is not binding authority. What’s more, in Doe the

employer actively threatened an HIV-positive employee with

discipline unless he disclosed the nature of his condition.

317 F.3d at 340. The VA here made no threats, demands, or

even asked any questions of Mullin regarding her breast cancer

diagnosis or request for leave. Mullin simply disclosed her

diagnosis through an FMLA leave form.

Supp. 3d 188, 199 (D.D.C. 2015)); see also Tice v. Ctr. Area

Transp. Auth., 247 F.3d 506, 519–20 (3d Cir. 2001) (collecting

cases, holding that plaintiff may not maintain a suit for

mere technical violation of Section 12112(d), and noting that

“there is no indication in either the text of the ADA or in

its history that a technical violation of [Section] 12112(d)

was intended to give rise to damages liability”).

Here, while Mullin testified that she was “worried” and

“concerned” when she found out about Wax’s statements, she

also testified that she was generally anxious about her cancer

treatments. Thus, Mullin has not presented more than a

scintilla of evidence of a tangible injury resulting from the

alleged disclosure of her breast cancer diagnosis. Thus, any

technical violation of the statute would not give rise to

liability. See Russell v. City of Mobile Police Dep’t, 552 F.

App’x 905, 907 (11th Cir. 2014) (finding that Section

12112(d)(4)(A) imposes a proof of damages requirement and

affirming summary judgment where plaintiff pointed merely to

a “heated conversation” and feeling faint as proof of her

potential injury).

Finally, in her response to the VA’s summary judgment

Motion, Mullin has raised two new incidents which, she claims,

support her Section 12112(d) cause of action. Although the

Court is doubtful that such a late argument is proper, it

need not settle that point because neither is actionable.

First, according to Mullin, on January 27, 2013, Wax forwarded

to the entire HR staff an email between Mullin, her

supervisor, and others describing Mullin’s need to wear an

industrial-strength mask at work. (Doc. # 34-1 at 858-59).

Second, in February 2013, an HR employee contacted Mullin

regarding her prior reasonable-accommodation request. (Id. at

861-63). Both of these “disclosures” were voluntary

disclosures of information made by Mullin herself or by the

union on behalf of Mullin and were not the result of an

“inquiry” by the VA. Thus, the Court agrees with the VA that

summary judgment is warranted with respect to these two newly-

raised incidents. See Cash, 231 F.3d at 1307.

Accordingly, the VA’s Motion is granted as to Mullin’s

disclosure claim (Count III).

D. Retaliation

Count IV of Mullin’s complaint was labeled “Retaliation

in violation of Title VII (Hostile Work Environment).” (Doc.

# 1 at 36). In her response to the VA’s summary judgment

Motion, Mullin does not make any arguments pertaining to a

retaliation claim but, rather, focuses entirely on her

hostile work environment claim. The Court now turns to that

claim.

E. Hostile Work Environment Claim

As an initial matter, it is unclear whether Mullin is

raising a hostile work environment claim based on her

disability or based on retaliation.8 This is an important

distinction because a “pure” hostile work environment claim

and a retaliatory hostile work environment claim are governed

by different standards. The Court will presume that Mullin

seeks to pursue both types of hostile work environment claim

here.

1. Hostile Work Environment based upon Disability

The Eleventh Circuit has not determined whether a

plaintiff may properly bring a harassment or hostile work

environment claim under the ADA or the Rehabilitation Act.

See Gilliard v. Ga. Dep’t of Corrs., 500 F. App’x 860, 870

(11th Cir. 2012) (assuming, without deciding, that hostile

work environment claim is cognizable under the ADA and

Rehabilitation Act); Wolfe v. Postmaster Gen., 488 F. App’x

8 For example, although Mullin cites the “severe or pervasive”

standard throughout her brief, she attempts to argue that the

harm she suffered was near in time to “her participation in

EEOC protected activity.” (Doc. # 33 at 14-16). And in her

complaint, the hostile work environment claim was couched in

terms of retaliation.

465, 469 (11th Cir. 2012) (assuming that a hostile work

environment claim exists under the Rehabilitation Act).

Multiple district courts have assumed that such a claim is

cognizable, and this Court will follow their lead. See

Phillips v. Harbor Venice Mgmt., LLC, No. 8:19-cv-2379-VMC-

TGW, 2020 WL 2735201, at *1 (M.D. Fla. May 26, 2020) (assuming

for the purposes of a motion to dismiss that a hostile work

environment claim is cognizable under the ADA); O’Neal v. Se.

Georgia Health Sys., No. 2:19-CV-067, 2021 WL 141236, at *7

(S.D. Ga. Jan. 14, 2021); Chastain v. City of Douglasville,

No. 1:14-CV-4038-AT-CMS, 2017 WL 10753292, at *8 (N.D. Ga.

Jan. 20, 2017), report and recommendation adopted, No. 1:14-

CV-4038-AT, 2017 WL 10768465 (N.D. Ga. Feb. 23, 2017).

To succeed on a hostile work environment claim, a

plaintiff must allege “(1) that [s]he belongs to a protected

group; (2) that [s]he has been subject to unwelcome

harassment; (3) that the harassment must have been based on

a protected characteristic of the employee, such as

[disability]; (4) that the harassment was sufficiently severe

or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working environment;

and (5) that the employer is responsible for such environment

under either a theory of vicarious or of direct liability.”

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002).

“Establishing that harassing conduct was sufficiently

severe or pervasive to alter an employee’s terms or conditions

of employment includes a subjective and an objective

component.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th

Cir. 1999). “[T]he following four factors [] should be

considered in determining whether harassment objectively

altered an employee’s terms or conditions of employment: (1)

the frequency of the conduct; (2) the severity of the conduct;

(3) whether the conduct is physically threatening or

humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee’s job

performance.” Id. “The Court must also bear in mind that

neither Title VII, nor the ADA, is a ‘general civility code,

and simple teasing[,] offhand comments, and isolated

incidents (unless extremely serious) do not constitute a

hostile work environment.’” Phillips, 2020 WL 2735201, at *4

(quoting Guthrie v. Waffle House, Inc., 460 F. App’x 803, 806

(11th Cir. 2012)).

Here, Mullin has not demonstrated “severe or pervasive”

harassment by the VA. While she maintains that the VA did not

grant her requested accommodations soon enough or were

insufficiently sensitive to her health needs, these are not

the sort of actions that will support a hostile work

environment claim. See Guthrie, 460 F. App’x at 808 (holding

that rude and boorish comments and conduct fall short of

severe and pervasive harassment necessary to support a Title

VII hostile work environment claim); Booth v. Houston, 58 F.

Supp. 3d 1277, 1303–04 (M.D. Ala. 2014) (granting summary

judgment to employer where the plaintiff pointed to no

evidence that the defendant ridiculed or insulted her based

upon her disability or that any employees every physically

threatened plaintiff); Johnston v. Henderson, 144 F. Supp. 2d

1341, 1361 (S.D. Fla. 2001) (finding that employer’s

deliberate improper filing of insurance forms, alteration of

workers compensation records, release of confidential medical

information, institution of an unfounded collection action

against plaintiff, or incorrect processing of employee’s FMLA

forms, did not impact upon or in any way relate to the “terms

and conditions” of her employment but were instead

“inconveniences” in the form of benefit delays).

Accordingly, the Court finds Mullin has not carried her

burden to show that her workplace was so permeated with

discriminatory intimidation, ridicule, and insult that was

sufficiently severe and pervasive so as to alter the

conditions of her employment.

2. Retaliatory Hostile Work Environment Claim

The Court turns now to Mullin’s purported retaliatory

hostile work environment claim. Again, while the Eleventh

Circuit has not expressly stated that such a claim is

cognizable under the Rehabilitation Act, the Court will

assume for purposes of this Order that such a claim exists.

The Eleventh Circuit recently clarified that,

“retaliatory hostile work environment” claims fall under the

rubric of retaliation claims, not true hostile work

environment claims. Babb v. Sec’y, Dep’t of Veterans Affairs,

992 F.3d 1193, 1206-07 (11th Cir. 2021). Thus, a plaintiff

can prevail on a retaliatory hostile work environment claim

if the conduct complained of “well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.” Id. at 12-708 (citing Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). This is a lower

standard than the “severe or pervasive” showing. However,

Mullin has not cleared even this lower bar.

Here, viewing the totality of the circumstances

described above, Mullin has failed to establish that a

reasonable employee might have been dissuaded by any of the

complained-of actions taken by the VA from filing an EEOC

complaint. Mullin was never threatened with any form of

discipline or demotion. She did not endure verbal or physical

threats, profanity, or pervasive offensive comments. See

Monaghan v. Worldpay U.S., Inc., 955 F.3d 855, 862-63 (11th

Cir. 2020) (finding that plaintiff had stated a retaliatory

hostile work environment claim where her supervisor had

threatened both termination and physical harm shortly after

she found out about the plaintiff’s complaints); see also

Williams-Evans v. Advance Auto Parts, 843 F. App’x 144, 149

(11th Cir. 2021) (finding that statements by other employees

and plaintiff’s manager saying she would be fired if she did

not attend work would not dissuade a reasonable worker from

making or supporting a charge of discrimination where no one

made derogatory or offensive comments about people with

disabilities); Buckley v. McCarthy, No. 4:19-CV-49 (CDL),

2021 WL 2403447, at *8 (M.D. Ga. June 11, 2021) (dismissing

retaliatory hostile work environment claim where supervisors

may have made inappropriate comments but did not use profanity

towards plaintiff and did not verbally or physically threaten

her).

Finally, while Mullin claims in her response that she

has “developed a number of mental health conditions” due to

the alleged harassment she endured, the Court agrees with the

VA that Mullin has not attempted to demonstrate any link

between the harassment and these medical issues beyond her

own speculation. See In re Trasylol Prod. Liab. Litig., No.

08-MD-1928, 2013 WL 12145963, at *3 (S.D. Fla. June 10, 2013)

(“To avoid summary judgment, [a plaintiff] must come forward

with evidence that would allow a reasonable jury to find

causation. Causation must be established by provable facts;

it cannot be based on guess, conjecture, surmise,

possibility, speculation, or mere allegation.”).

Accordingly, the VA’s Motion is granted with respect to

Mullin’s hostile work environment claim (Count IV).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant’s Motion for Summary Judgment (Doc. # 32) is

GRANTED.

(2) The Clerk shall enter judgment in favor of Defendant the

Secretary of the Department of Veterans Affairs and

against Plaintiff Aileen Mullin.

(3) Once judgment has been entered, the Clerk shall

terminate all deadlines and pending motions, and close

this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

15th day of June, 2022.

fan Hunaby (mei¥h

VIR! IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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