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Sutherland v. Shinseki

United States District Court, Eighth Circuit

November 6, 2013

Kylea Sutherland, Plaintiff,
Eric K. Shinseki, Secretary of Veteran Affairs, Defendant.

Stephen M. Thompson appeared for Plaintiff Kylea Sutherland.

Friedrich A. P. Siekert appeared for Defendant Eric E. Shinseki, Secretary of Veteran Affairs.


JOAN N. ERICKSEN, District Judge.

Plaintiff Kylea Sutherland ("Sutherland"), a former Veteran Affairs employee, filed this action for disability-based discrimination and retaliation against the Secretary of Veteran Affairs in his official capacity ("VA"). The case is before the Court on the VA's Motion for Summary Judgment. For the reasons set forth below, the Court denies the motion.


The present case relates to Sutherland's employment by the Minneapolis VA Medical Center (MVAMC) as a part time nursing assistant for less than a month. Sutherland started a one-year probationary period as a nursing assistant on August 29, 2010. On September 28, 2010, the VA sent her a letter terminating her employment. Sutherland had previously worked for the VA as a student nurse technician from January 22, 2008 to May 17, 2010.

Wendy Barlow, [1] a nurse manager, interviewed Sutherland for the nursing assistant position. Barlow recommended that Sutherland receive an offer for a.6 FTE nursing assistant position. The.6 FTE designation meant that the position called for.6 the time of a full time position. The parties dispute whether Sutherland agreed to work full time during her orientation and training period. In her declaration, Barlow states that, during the initial interview, she told Sutherland that she would need to work full time during the 4-6 week training period and Sutherland agreed to do so. Sutherland denies that such a discussion occurred.

The orientation schedule shows that Sutherland had general orientation and clinical training scheduled all five weekdays of her first week that started on Monday, August 30, 2010. On Tuesday of that week, Sutherland asked Barlow for that Friday off for a school project. Barlow states that the request took her by surprise, but she approved Sutherland's request. On Thursday, Sutherland called in sick due to intestinal problems. Because Sutherland had not yet accumulated adequate leave time, Barlow took her off the duty schedule for September 2 and 3, i.e. cancelled her shifts, so that her attendance record would not be charged with an Absent Without Leave ("AWOL") mark for those days. Barlow explains that she was able to do this because Sutherland was a.6 FTE, so as long as she worked 6 out of the 10 days in her first two weeks, she would have worked the minimum required for pay and benefits.

Her second week, Sutherland worked all three days that she was scheduled. Sutherland worked the first two days, September 13 and 14, of her third week. On the evening of September 14, Sutherland suffered an epileptic seizure and was taken to the emergency room. After being released from the hospital, around 1 a.m. on September 15, she returned home. The doctor had given Sutherland a note that stated: "Pt. was seen in ED. Please excuse her from work 9/15/10 through 9/17/10."

Around 1:30 a.m., Sutherland called the VA and spoke to the nursing supervisor on duty. Sutherland explained that she had experienced an epileptic seizure, needed to take a couple of days off work, and had a doctor's note. The night supervisor told Sutherland to also call her own supervisor, Barlow, the next day. The night supervisor logged Sutherland's call in the "Leave Requests/OT-UT Record." The relevant entry shows "SL" for "sick leave" for September 15 and 16, without any information referring to epilepsy or Sutherland's seizure. Sutherland had been scheduled for certain orientation sessions on both those days.

The parties' accounts of the next couple of days diverge significantly.

According to the VA's account, Barlow learned that Sutherland had called in sick from others at the VA on September 15. Barlow became concerned about Sutherland's missed days and missed orientation and decided to recommend termination of her employment. On the morning of September 16, Barlow first emailed her supervisor, Kathleen Koch, asking her to begin the termination process. She then called Sutherland to set up a time to discuss it and "give her an opportunity to explain the situation." When Sutherland indicated that she would not be in until September 20, Barlow told her to report to Paula Newinski, a nurse manager who would be covering for Barlow while she was on vacation that week. On the call, Barlow noted her concern that Sutherland had missed multiple days and would now be AWOL. Sutherland became angry and asked whether she was being fired. Barlow said that she was not, but Barlow was moving to have her removed because she had missed mandatory orientation, had AWOL days, and had missed 5 out of 13 days. Sutherland began yelling, screaming, and crying, such that the conversation deteriorated until Sutherland hung up on her. That call, on September 16, was the first time that Barlow learned anything about Sutherland's seizure or epilepsy.

According to Sutherland's account, she called Barlow on the morning of September 15, as instructed by the supervising nurse with whom she had spoken in the middle of the night. She explained to Barlow that she had experienced an epileptic seizure the night before, needed a few days off, and had a doctor's note. Sutherland asked Barlow whether she should fax or bring in the note. Barlow told her to bring it in the next day that she worked, which Sutherland believed would have been September 20.

Sutherland testified that the next morning, on September 16, Barlow and Sutherland had another phone conversation. During that call Barlow told Sutherland that she was fired. Sutherland began crying and protested the firing as unfair. She told Barlow that Barlow could not fire her because she had an epileptic seizure and a doctor's note. At some point, Barlow hung up on her. Before then, Barlow had told Sutherland that she could call HR or Paula Newinski if she had any problems with being fired. Sutherland did not go back to work or to meet with anyone at the VA, because Barlow had told her she was fired.

Documentary evidence confirms that Barlow had emailed Koch at 8:27 a.m. on September 16, providing information and requesting Sutherland's removal. In relevant part, the email said:

On reviewing the email, Koch contacted the Employee Labor Relations ("ELR") specialist for the relevant service line and supported the termination recommendation.

After the subsequent call between Barlow and Sutherland on September 16, Barlow spoke to Koch and relayed the conversation with Sutherland. Koch told her to memorialize the incident in a memo, which Barlow did. The memo describes Barlow's account of the relevant events. Describing the call that occurred on September 16, the memo quotes Sutherland as saying "you are wrong to fire me because of my medical condition; I'm being punished for missing for school and having seizures."

Barlow sent Koch the memo. Koch forwarded it on to the ELR specialist, who requested some additional information and documentation on September 20. The acting HR Director, Danette Bohlken, ultimately reviewed the termination request along with the underlying materials. Bohlken issued a termination letter to ...

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