Burns v. Collins

Background

Theressa A. Burns worked for the Department of Veterans Affairs (VA) beginning in 1985 and later served as an Occupational Therapist, Clinical Specialist within the Geriatric Research, Education and Clinical Center. Her work included clinical, research, and educational duties. In December 2019, the VA revised its nationwide qualification standards, increasing the grade level for the clinical specialist position Burns held from GS-12 to GS-13 and adding requirements concerning education, experience, licensure, and knowledge, skills, and abilities.

While Burns’s promotion request was being prepared, the VA was investigating allegations that she had misused her office and violated ethical rules. The investigation board concluded that Burns had violated five regulatory provisions. In March 2020, the VA put her promotion request on hold pending the investigation’s final outcome and any disciplinary action. Burns was never reclassified to GS-13.

In May 2020, the VA proposed removing Burns from her position. In July 2020, the decisionmaker, Patrick Kelly, decided that her removal would take effect on August 9, 2020. On August 7, two days before that effective date, Burns applied for and received immediate retirement. Her personnel file recorded that she retired in lieu of adverse action.

Burns later filed a discrimination charge with the Equal Employment Opportunity Commission. In this lawsuit, she alleged that the VA violated the Age Discrimination in Employment Act (ADEA) by failing to promote her and removing her from her position. She sought retroactive benefits and the amount she would have received at the GS-13 pay level.

Summary-judgment standard

The VA moved for summary judgment under Federal Rule of Civil Procedure 56. The court explained that summary judgment is proper when the record shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment as a matter of law. The court said Burns needed sufficient circumstantial evidence for a reasonable fact-finder to conclude that her age was the “but-for” cause of either challenged employment action.

The court applied the burden-shifting framework commonly used in employment-discrimination cases. Burns first had to establish the required initial facts supporting her claims. If she did so, the VA would have to identify a legitimate, nondiscriminatory reason for its actions, after which Burns would have to show that reason was a pretext for age discrimination. The court found that Burns could not establish the required initial facts for either claim.

Failure-to-promote claim

For the failure-to-promote claim, the court focused on whether Burns had evidence that the VA promoted similarly qualified employees who were under age forty when her request was denied. The court held that no reasonable fact-finder could find that she established this requirement.

Burns identified two younger occupational therapists whom she believed were providing services that she had previously provided. The court found no evidence that either person had been supervised by McCarten, who supervised Burns, or that any person promoted to the GS-13 position had the same supervisor. The court also noted that Burns was the sole occupational therapist and clinical specialist in the GRECC and that her position included an important educational component, while the identified employees performed a materially changed version of the service without that component. Burns also identified two non-occupational-therapist employees, but the court found that their jobs and duties were different from hers.

The court was additionally concerned that Burns had not shown she met the objective GS-13 requirements, relying primarily on her own statements and a short letter from McCarten. The court did not decide that qualification issue because it concluded that Burns lacked valid similarly situated comparators. The court granted summary judgment against the failure-to-promote claim.

Removal claim

For the removal claim, Burns had to establish that she was over forty, qualified for the position, suffered an adverse employment action, and was treated less favorably than substantially younger, similarly situated employees. The court concluded that she could not establish the adverse-action or similarly situated-employee requirements.

Although Kelly decided in July 2020 that Burns would be removed effective August 9, Burns retired on August 7, before the removal took effect. Burns said that she was forced to retire, but the court found no evidence that the VA coerced her into requesting retirement. The record also indicated that she did not face the loss of future retirement benefits. The court therefore held that no reasonable fact-finder could conclude that the VA’s removal decision constituted an adverse employment action on this record.

The court separately found no evidence that the VA treated substantially younger, similarly situated employees more favorably. As with the promotion claim, the record did not show that other occupational therapists had the same supervisor, were subject to the same standards, or engaged in the same conduct without distinguishing circumstances. The VA also did not hire another GS-12 occupational therapist in the GRECC after Burns retired. The court granted summary judgment against the removal claim.

Disposition

Judge Jeffrey M. Bryan granted the United States Secretary of Veterans Affairs Douglas Collins’s motion for summary judgment and dismissed the action. The order directed that judgment be entered accordingly.