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Byer v. Wilkie

United States District Court, D. Nebraska

October 2, 2019

ROGER C. BYER, Plaintiff,
v.
ROBERT L. WILKIE, Secretary of the United States Department of Veterans Affairs, Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Roger Byer (“Byer”), an employee of the United States Department of Veterans Affairs (“VA”), claims he was discriminated against on the basis of his age, sex, and disability, and further claims the VA retaliated against him after he filed a complaint of discrimination. Defendant, Robert L. Wilkie, in his official capacity as VA Secretary, [1] has filed a motion for summary judgment with respect to all claims (Filing 33).

         A. Claim I (Age Discrimination)

         As alleged in Byer's amended complaint, the age discrimination claim is brought under the Age Discrimination in Employment Act (“ADEA”). (Filing 8, pp. 1, 9-10) Although both parties refer the court to 29 U.S.C. § 623(a)(1), which declares that “[i]t shall be unlawful for an employer ... to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age, ” the United States is not an “employer” as defined by the Act. See 29 U.S.C. § 630(b) (stating that the term “does not include the United States”). The applicable ADEA provision is this case, rather, is 29 U.S.C. § 633a(a), [2] which provides that “[a]ll personnel actions affecting employees ... who are at least 40 years of age ... in [federal] executive agencies ... shall be made free from any discrimination based on age.”

         As set forth in the parties' Rule 26(f) planning conference report, Byer bases his age discrimination claim on the following factual allegations:

Mr. Byer is over 62 years of age. For years, he performed at or above a satisfactory level. He was hyper-monitored by his supervisor, issued a “cease and desist letter” concerning his contact with co-employees, criticized for his “perfectionist” attitude, and targeted by his supervisor for menial, nonsubstantive administrative issues. In addition, Mr. Byer's supervisor instigated a conflict between Mr. Byer and Rebecca Luther, which the individuals were able to resolve by bypassing their supervisor and speaking to one another without supervisory input. Mr. Byer suffered on the job stress, pressure, and anxiety to such a degree that he required medical attention and was ordered to take leave from his job on repeated, extended occasions.

(Filing 13, pp. 2-3)

         B. Claim II (Sex Discrimination)

         As alleged in Byer's amended complaint, the sex discrimination claim is brought under Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972). (Filing 8, pp. 1, 11-12) Although both parties refer the court to 42 U.S.C. § 2000e-2(a), which declares that “[i]t shall be unlawful for an employer ... to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex, ” the United States is not an “employer” as defined by the Act. See 42 U.S.C. § 2000e(b) (stating that the term “does not include ... the United States”). Instead, the applicable statute is 42 U.S.C. § 2000e-16(a), which provides that “[a]ll personnel actions affecting employees ... in [federal] executive agencies ... shall be made free from any discrimination based on ... sex ....”

         Byer's amended complaint also includes a request for an award of damages under Neb. Rev. Stat. § 48-1119(4) for the alleged sex discrimination. (Filing 8, p. 12, ¶ 50) This provision of the Nebraska Fair Employment Practice Act (“NFEPA”) has no application in this case. See Neb. Rev. Stat. § 48-1102 (stating that the term “employer” shall not include the United States).

         As set forth in the parties' Rule 26(f) planning conference report, Byer bases his sex discrimination claim on the following factual allegations:

Mr. Byer is male and was supervised by females. Despite exemplary performance for several years, his new female supervisor evaluated his performance far below his standard level. For years, he performed at or above a satisfactory level. Other female co-workers were not subjected to the same hyper-monitoring and surveillance, were not disciplined for talking to other co-workers, were not required to travel as frequently as Mr. Byer. Mr. Byer suffered on the job stress, pressure, and anxiety to such a degree that he required medical attention and was ordered to take leave from his job on repeated, extended occasions.

(Filing 13, p. 2)

         C. Claim III (Disability Discrimination)

         As alleged in Byer's amended complaint, the disability discrimination claim is brought under the Rehabilitation Act of 1973. (Filing 8, pp. 1, 12-13) The Act provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected to discrimination ... under any program or activity conducted by any Executive agency [of the United States].” 29 U.S.C. § 794(a). The Rehabilitation Act incorporates the standards of the Americans with Disabilities Act of 1990 (“ADA”) to determine whether a violation has occurred. See 29 U.S.C. § 794(d).

         Byer's amended complaint also includes a request for an award of damages under Neb. Rev. Stat. § 48-1119(4) for the alleged disability discrimination. (Filing 8, p. 13, ¶ 55) Again, however, the NFEPA does not apply to Byer's federal employment discrimination claims.

         As set forth in the parties' Rule 26(f) planning conference report, Byer bases his disability discrimination claim on the following factual allegations:

Mr. Byer has 100% service rated disability, which includes a ventral hernia, PTSD, severe anxiety disorder, and traumatic brain injury. Ms. Byer disclosed and discussed his disabilities with his supervisor. Despite this knowledge, she required Mr. Byer to participate in a meeting that he advised her was the type of confrontation that triggered his PTSD. He had no prior warning of the confrontational nature of the meeting and his supervisor failed to control the attacks on Mr. Byer despite her knowledge of his disability. He followed his supervisor's directions that same day when asked to deliver files to his co-workers after work, despite being informed the co-workers were “out to get him.” Mr. Byer was physically and emotionally broken by the time the day was over. He broke down into tears and had to seek medical help the following morning. Mr. Byer's medical provider ordered Mr. Byer not to work under the conditions at the VA for six-months but Mr. Byer was only able to secure six weeks leave. His leave was misclassified but his supervisor deemed that fact insignificant. He was assigned additional travel on his return, and he also had work to complete that accrued during his absence. He requested an option of telecommuting and his supervisor flatly rejected the idea stating it would “never happen.”
Also, on his return, Mr. Byer learned his supervisor failed to investigate the conflicts he experienced with co-worker Rebecca Luther. Although his supervisor found these conflicts sufficient to put in place a “cease and desist” order, she informed Mr. Byer she did not have sufficient information to investigate. His supervisor regularly held meetings with Mr. Byer in which she repeatedly informed him that no one wanted to work with him, associate with him, or even talk to him. Again, he required medical attention and was ordered to take leave from his job on repeated, extended occasions.

(Filing 13, pp. 3-4)

         D. Claim IV (Retaliation)

         A federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the ADEA. Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008).

         In 1972, Congress extended the protections of Title VII to employees of the federal government and specified that “[t]he provisions of section 2000e-5(f) through (k) of [Title VII], as applicable, shall govern civil actions brought hereunder” by federal employees. 42 U.S.C. § 2000e-16(d). This federal-sector provision does not expressly incorporate Title VII's anti-relation provision, 42 U.S.C. § 2000e-3(a), but “does incorporate a remedial provision, § 2000e-5(g)(2)(A), which authorizes relief for a violation of § 2000-3(a).” Gomez-Perez, 553 U.S. at 487-8 & n. 4 (acknowledging, without deciding, question of “whether Title VII bans retaliation in federal employment”).

         Under Eighth Circuit precedent, retaliation claims under the Rehabilitation Act and the ADA are treated interchangeably. Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (but noting that “the textual basis for the claim is not well explained in our cases”) The ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).

         Byer's amended complaint also cites the NFEPA as authority for a retaliation claim (Filing 8, pp. 13, 15), but, as already discussed, that state law does not apply here.

         As set forth in the parties' Rule 26(f) planning conference report, Byer bases his retaliation claim on the following factual allegations:

Mr. Byer informed VA management he wanted to (and then did) file a discrimination and/or harassment charge against his co-worker, Luther. He was subjected to repeated and ongoing counseling sessions, given a performance improvement plan for the first time in his career, and issued a cease and desist order. No. other employee at the VA was treated in this manner: being targeted by management for confronting management on the charged issues, and then filing a charge against the VA for its continual and ongoing discrimination and harassment. In fact, both the union president and Steele-Lufcy encouraged Mr. Byer to file an EEOC charge. When Mr. Byer filed an EEOC charge against Luther, the VA retaliated. His supervisor at the VA gave him a written warning on July 26, followed by a cease and desist order on July 29. 2016. No. other employee has been issued a cease and desist order. The cease and desist order was in immediate response by Steele-Lufcy as soon as Mr. Byer questioned her about the identical comments she made to both Luther and Mr. Byer about their presence in the workplace.

(Filing 13, p. 4)

         E. Defendant's Position

         Defendant contends “Byer cannot establish a prima facie case of either discrimination or retaliation because he cannot establish that he suffered an adverse action” and, moreover, “[e]ven if Byer could meet his burden, Defendant had legitimate, nondiscriminatory business reasons for all actions it took regarding Byer and Byer cannot establish pretext.” (Filing 35, pp. 1-2)

         F. The Court's Determination

         After careful consideration of the parties' pleadings (Filings 8, 11), briefs (Filings 35, 38, 40), and evidentiary materials (Filings 34, 37), the court finds there is no genuine issue of material fact, and concludes Defendant's motion for summary judgment should be granted in its entirety. The court therefore will dismiss Plaintiff's action with prejudice and enter final judgment.

         II. STATEMENT OF FACTS

         Under the court's local rules, “[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement of facts should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts.” NECivR 56.1(a)(2) (underling in original); see Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, ....”).

         “The party opposing a summary judgment motion must include in its brief a concise response to the moving party's statement of material facts. Each material fact in the response ... must include pinpoint references to [evidentiary materials] upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed.” NECivR 56.1(b)(1); see Fed. R. Civ. P. 56(c)(1). “Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response.” NECivR 56.1(b)(1) (underlining in original); see Fed. R. Civ. P. 56(e)(2) (“If a party ... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ....”).

         In this case, Defendant's brief includes a 94-paragraph statement of material facts (hereinafter designated by paragraph number as “SMF #”). (Filing 35, pp. 2-22) Byer has responded to each numbered paragraph. (Filing 38, pp. 1-36)

         Pursuant to Federal Rule of Civil Procedure 56, the court finds that the following material facts are supported by the record and are not genuinely in dispute:

         A. Background/Chain of Command

         1. At all relevant times, Byer was an Employment Coordinator (GS-12) with the Department of Veterans Affairs Regional Office (“VA”), Veterans Benefits Administration, Vocational Rehabilitation and Employment (“VR&E”) Division located in Lincoln, Nebraska. (Filing 8, p. 2, ¶ 7; Filing 34-1, Steele-Lufcy Decl. ¶¶ 3, 14).

         2. Byer was born in 1955. (Filing 8, p. 1, ¶ 2).

         3. Byer is a veteran and alleges he has a 100% service-connected disability. He further claims that he suffers from Post-Traumatic Stress Disorder (“PTSD”), depression, and anxiety and has been diagnosed with ventral hernia, as well as back, knee and shoulder disabilities. He states that he is able to perform his job with minimal accommodations. (Filing 8, p. 2, ¶ 8).

         4. The Vocational Rehabilitation and Employment (“VR&E”) Division assists Service members and Veterans with service-connected disabilities to prepare for, obtain, and maintain suitable employment; start their own business; or receive independent-living services. VR&E assists with job training, employment accommodations, resume development, and job seeking skills. Additionally, VR&E provides services to assist Veterans and Service members in starting their own businesses or independent living services for those who are severely disabled and unable to work in traditional employment. (Filing 34-1, Steele-Lufcy Decl. ¶ 9).

         5. During the relevant timeframe, the VR&E Division in Lincoln consisted of a Vocational Rehabilitation Employment Officer (GS-13), a Program Analyst (GS-12), six Vocational Rehabilitation Counselors (GS-12) (“Counselors”), an Employment Coordinator (GS-12), and a Program Support Assistant (GS-6). (Filing 34-1, Steele-Lufcy Decl. ¶ 10).[3]

         6. Melissa Steele-Lufcy was the Vocational Rehabilitation Employment Officer and Byer's immediate supervisor during the relevant timeframe. Supervisor Steele-Lufcy oversaw the Employment Coordinator and the Counselors. Supervisor Steele-Lufcy is a female. She was born in 1968, and she is disabled. (Filing 34-1, Steele-Lufcy Decl. ¶¶ 3, 6, 8).[4]

         7. Jason Rogers was the Assistant Director of the Lincoln Regional Office. He was Ms. Steele-Lufcy's direct supervisor and he had oversight over the VR&E Division. (Filing 34-1, Steele-Lufcy Decl. ¶ 7).

         8. The six Counselors were all females and younger than Byer. In 2016, four of the Counselors were over forty years of age. Three of these Counselors were born in 1956 or 1958. (Filing 34-1, Steele-Lufcy Decl ¶ 11).

         9. The VR&E employees worked out of offices in Lincoln, Omaha, Bellevue and Sidney, Nebraska. (Filing 34-1, Steele-Lufcy Decl. ¶ 12). During the relevant timeframe, Byer worked in the Omaha office on Monday, Wednesday, and Friday and in the Lincoln Office on Tuesday and Thursday. This rotation allowed Byer to meet with the Counselors, to conduct orientation sessions for Veterans, and to meet with Veterans and employers in both locations. (Filing 34-1, Steele-Lufcy Decl. ¶ 16).

         10. As the Employment Coordinator, Byer's responsibilities included collaborating with Counselors to determine job readiness of Veterans, providing employment case management services to job-ready Veterans, calculating and processing employment adjustment allowance (EAA) payments for eligible Veterans, conducting preliminary on-site visits and analysis of employers' work environments, working with potential employers to establish workforce strategies that include career-suitable employment of Veterans, and conducting labor market research. Byer identified and partnered with potential employers within Nebraska to train and hire Veterans. He participated in job fairs to promote the hiring of Veterans. Byer was also responsible for assisting employers with implementing reasonable accommodations and establishing employment policies for veterans with serious employment handicaps. (Filing 34-1, Steele-Lufcy Decl. ¶ 15 & Attch A).[5]

         11. The Counselors provided a wide range of rehabilitation and personal adjustment counseling and case management services, including coordination of rehabilitation, training, and employment services to disabled Veterans. Counselors assessed data from medical, psychological, and vocational evaluations and developed individualized rehabilitation and employment plans to assist Veterans to prepare for and obtain suitable employment commensurate with their interests, aptitudes, and abilities. Once the Counselors developed a plan of services and the basic rehabilitation and training services with the Veteran were completed, the Veteran progressed from training status and moved on to Job Ready Status. (Filing 34-1, Steele-Lufcy Decl. ¶ 20).[6]

         12. Once a Veteran was determined to have reached Job Ready Status, Byer took over the Veteran's file from the Counselor with the case transferred both physically and electronically to Byer's caseload. Byer then provided employment services and assisted the Veteran in either finding a job or maintaining the job he/she had obtained. Byer also authorized monthly Employment Adjustment Allowance payments (EAA payments) to the Veteran to provide some financial assistance during the transition from training services to job search services. The calculation and scheduling of the EAA payments was a significant portion of Byer's daily job duties. (Filing 34-1, Steele-Lufcy Decl. ¶ 21).[7]

         13. From at least June 2013, the Counselors and Byer frequently disagreed on whether a Veteran had reached Job Ready Status. Byer frequently told Supervisor Steele-Lufcy that several of the Counselors had not completed all the paperwork or case management steps necessary for job readiness declaration and case transfer. The Counselors told Supervisor Steele-Lufcy that Byer only accepted cases to Job Ready Status where the Veteran had already secured employment and he would not accept any cases that required him to assist the Veteran with job search activities. According to the Counselors, Byer blocked them from declaring the Veteran job ready and transferring a case to Byer. This disagreement directly affected performance measures for the Counselors. (Filing 34-1, Steele-Lufcy Decl. ¶ 22).[8]

         14. During the relevant timeframe, VR&E had a Standard Operating Procedure (SOP) for processing cases for job readiness assessment and employment services. The SOP provided instruction and procedure for reviewing cases for Job Ready Assessment, preparing cases for Job Ready Declaration, staffing cases between the Counselors and Byer for Job Ready Status, and relating to Veterans participating in the program. (Filing 34-1, Steele-Lufcy Decl. ¶ 23 & Attch. B). The VR&E Division also developed a Case Management Checklist to identify specific requirements for the Counselors and Byer to complete a Veteran file for Job Ready Status. (Filing 34-1, Steele-Lufcy Decl. ¶ 24).[9]

         15. [Generally speaking], [10] the Counselor prepared the case file using the Case Management Checklist and other supporting documents to show that the Veteran had reached Job Ready Status. The Counselor and Byer discussed the case file information and the Counselor's determination of the Veteran's readiness to enter into Job Ready Status. Byer would agree or disagree with the Counselor's determination and they discussed issues that needed to be remedied in order for the Veteran to proceed to Job Ready Status. If additional actions were needed, the Counselor and Byer met again to determine readiness to move into the Job Ready Status after the needed actions were remedied. If at any time the Counselor and Byer were unable to come to an agreement on job readiness, Steele-Lufcy reviewed the case with the Counselor and Byer and made a final determination of Job Readiness. (Filing 34-1, Steele-Lufcy Decl. ¶ 25 & Attch. B).

         B. April 28, 2016 Team Meeting

         16. The VR&E Division held monthly training sessions to meet the required National and Local elective training curriculum requirements. Supervisor Steele-Lufcy determined the training topics with input from all staff members in the Division. (Filing 34-1, Steele-Lufcy Decl. ¶ 30).[11]

         17. On April 28, 2016, a Training Meeting was held for the purpose of training the entire Division. All of the Division attended in person except Counselor Nelson, who attended by telephone. Part of that training was on general changes to VR&E policies and standard practices relevant to the entire Division, and part of the meeting was for training relevant to just the Counselors. Supervisor Steele-Lufcy planned to use the meeting to improve the employees' ability to work together and get along as team members, because the employees had recent issues maintaining effective and professional communications between staff members and toward Supervisor Steele-Lufcy. At the end of the agenda, there was time for the employees to raise other ad hoc issues as they thought necessary. (Filing 34-1, Steele-Lufcy Decl. ¶ 31).[12]

         18. After the general training was complete, Byer asked to be excused so he could complete work on the employment services cases. Since the remaining portion of the discussion focused on the Counselors' work duties, Supervisor Steele-Lufcy agreed to his request. (Filing 34-1, Steele-Lufcy Decl. ¶ 32).[13]

         19. At the end of the counselor training, Counselor Rebecca Luther raised a new issue. She was concerned with Byer returning files to her and disagreeing with her on whether a Veteran should be transferred to Job Ready Status. Ms. Luther thought her files were complete and the Veterans had reached Job Ready Status, so the files should be passed on to Byer for his employment services. Other Counselors generally agreed with Ms. Luther and wanted to discuss the issue further as well. Supervisor Steele Lufcy stated that this discussion could not occur without the presence and input of Byer. The group asked to have Byer rejoin the group meeting so that the topic could be discussed by all parties at this time instead of waiting until the next monthly meeting. (Filing 34-1, Steele-Lufcy Decl. ¶ 33).[14]

         20. Supervisor Steele-Lufcy asked Byer to return to the meeting so that the issue could be discussed by the entire group. Byer said would prefer not to come to the group and said he needed to be prepared before being asked to discuss work topics. Supervisor Steele-Lufcy requested Byer rejoin the group and he agreed. (Filing 34-1, Steele-Lufcy Decl. ¶ 34).[15]

         21. Byer was frustrated when he returned to the room. Supervisor Steele-Lufcy opened the discussion by stating that the staff wanted to review the process for declaring a Veteran's case as Job Ready and transferring the case to Byer. (Filing 34-1, Steele-Lufcy Decl. ¶ 35).[16]

         22. Ms. Luther began to discuss the files and her concerns with Byer returning the files to her as incomplete. (Filing 34-1, Steele-Lufcy Decl. ¶ 35). Ms. Luther brought up the work environment and the services provided to the Veterans. (Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 105:25 - 106:15). Ms. Luther and Byer were several feet apart. Ms. Luther did not swear, nor did she refer to Byer's sex, age, or disability. (Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 108:22 - 109:20).[17]

         23. The discussion quickly became heated between Byer and Ms. Luther, and Byer had difficulty maintaining his composure. (Filing 34-1, Steele-Lufcy Decl. ¶ 35; Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 100:1-5; 105:15-24).[18]

         24. After a few minutes, Byer left the room. (Filing 34-1, Steele-Lufcy Decl. ¶ 35; Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 101:3-8, 106:25-107:4).[19]

         25. A few minutes later, Byer returned to the meeting after he composed himself, and the meeting finished shortly thereafter. (Filing 34-1, Steele-Lufcy Decl. ¶ 36; Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 100:5-8, 109:23 - 110:17).

         26. Supervisor Steele-Lufcy did not make any comments that were disparaging, derogatory, humiliating or “making fun” of Byer. (Filing 34-1, Steele-Lufcy Decl. ¶ 37).[20]

         27. Byer told Supervisor Steele-Lufcy after the meeting that he felt uncomfortable in the meeting. Supervisor Steele-Lufcy admitted that her attempt at team building did not result in a successful discussion of an expressed group issue to arrive at a group consensus. (Filing 34-1, Steele-Lufcy Decl. ¶ 38).

         28. No employees, including Byer, were disciplined as a result of this meeting. This meeting did not affect their title, salary, benefits, status, or job responsibilities. (Filing 34-1, Steele-Lufcy Decl. ¶ 39).[21]

         C. Classification of Byer's Leave after His Return from FMLA Leave

         29. On April 29, 2016, Mr. Byer came to see Supervisor Steele-Lufcy and told her that his doctor had advised Byer not to return to work for six weeks.[22] Byer submitted a leave request and some documentation, and Supervisor Steele-Lufcy provided Byer with the forms for the Family Medical Leave Act (FMLA). Byer planned to follow up with the VA time and attendance coordinator, Scott Micek, to determine the best way to plan his leave requests. Byer wanted to take a combination of paid leave and leave without pay so that he would remain in leave accrual status as long as possible. (Filing 34-1, Steele-Lufcy Decl. ¶ 40).

         30. Byer was on FMLA leave from April 29, 2016, to June 10, 2016. (Filing 34-1, Steele-Lufcy Decl. ¶ 41).

         31. When Byer returned to work following his FMLA leave, he noticed his time records did not designate that the unpaid Leave Without Pay (LWOP) was pursuant to the FMLA. (Filing 34-3, Wagner Decl, Attch. A, Byer Depo. 140:2-16).

         32. Byer notified Supervisor Steele-Lufcy and Human Resources of the error and the FMLA status was corrected on Byer's leave records. (Filing 34-1, Steele-Lufcy Decl. ¶ 42; Filing 34-2, Norris Decl. ¶¶ 34-35; Filing 34-3, Wagner Decl, Attch. A., Byer Depo. 140:24 -141:1).[23]

         33. Byer testified that the error in the FMLA designation did not make any difference in his case. (Filing 34-3, Wagner Decl. Attch. A, Byer Depo. 141:2-9). There was no action taken against Byer for the lack of FMLA designation on his leave, and it did not affect the type of leave Byer used. (Filing 34-2, Norris Decl. ¶ 36; Filing 34-3, Wagner Decl, Attch. A., Byer Depo. 142:3-12).[24]

         D. Required Travel after Return from FMLA Leave in June 2016

         34. As the sole Employment Coordinator for Nebraska, Byer was required to travel as part of his work. (Filing 34-1, Steele-Lufcy Decl. ¶ 17 & Attch. A, pp. 1-2). Byer traveled around Nebraska for outreach activities to meet with Veterans, training facilities, and employers and disseminate information about the VA employment-related programs and services. He met with potential employers of Veterans at job fairs and other outreach activities. On a few occasions, Byer traveled to meet with an employer to negotiate a non-paid work employment readiness training opportunity for Veterans to get work experience. Byer could travel to meet with Veterans at their worksites or at common spaces out in the community. Byer rarely had overnight travel and he would receive compensatory time for day trips which required travel outside of his normal business hours. (Filing 34-1, Steele-Lufcy Decl. ¶¶ 17-18, Attch. A, pp. 1-2).[25]

         35. The Counselors were required to travel on an “as-needed” basis to training, for meetings with Veterans and school officials, and to coordinate purchases for the Veterans' approved training programs. Counselors were not required to travel to public informational outreach or employment related events. (Filing 34-1, Steele-Lufcy Decl. ¶ 19).

         36. During Byer's FMLA absence from April 29, 2016, through June 10, 2016, Supervisor Steele-Lufcy authorized the EAA payments to the Veterans and worked with the Counselors on Byer's cases involving new Veterans, or questions for Veterans that were in the program or preparing for case closure. (Filing 34-1, Steele-Lufcy Decl. ¶ 43).[26]

         37. Prior to and during Byer's absence, the National VR&E Systematic Technical Accuracy Review (STAR) Team in Nashville, Tennessee, identified fiscal errors in some of Byer's cases. Supervisor Steele-Lufcy held these cases in Byer's office awaiting his return so that he could make the required corrections, if possible given the error in question, or at least to review the fiscal errors and learn from them so as to correct his calculation errors in the future. (Filing 34-1, Steele-Lufcy Decl. ¶ 44).[27]

         38. Upon Byer's return following his FMLA leave, he worked out of the Omaha and Lincoln offices, reviewing his cases and catching up on emails. He also had his normal Veteran tasks that were his usual work responsibilities. (Filing 34-1, Steele-Lufcy Decl. ¶ 45).[28]

         39. On July 7, 2016, Byer traveled to Kearney to complete an Outreach event as part of his job duties. This outreach was at the request of the Counselor in that service area. This travel was authorized as a day trip and Byer received compensatory time for his time outside of his regular work hours. (Filing 34-1, Steele-Lufcy Decl. ¶ 46).

         40. On July 8, 2016, Byer met with a Veteran at his job site in the Omaha area early in the morning. Compensatory time was approved for Byer for his time outside of his work hours. (Filing 34-1, Steele-Lufcy Decl. ¶ 47).[29]

         41. Supervisor Steele-Lufcy did not require Byer to travel when he returned from FMLA leave, except for that which was part of his job duties or of the type of travel that was required of him prior to his FMLA leave. (Filing 34-1, Steele-Lufcy Decl. ¶ 48).

         42. At no time did Byer tell Supervisor Steele-Lufcy that he was unable to travel, including after he returned from his FMLA leave. His paperwork that allowed his return to work did not preclude travel. (Filing 34-1, Steele-Lufcy Decl. ¶ 49).

         E. July 8, 2016 Leave Without Pay (LWOP)

         43. Leave Without Pay (LWOP) is unpaid leave and it is discretionary with the agency. LWOP must be requested by an employee. (Filing 34-2, Norris Decl. ¶ 13 & Attch. A, p. 1, ¶ 2).

         44. LWOP is requested in the same manner and for the same purposes as annual leave and sick leave. LWOP may be granted even though the employee has a sick or annual leave balance. (Filing 34-2, Norris Decl. ¶ 15 & Attch. B, p. 8, Section 10(B)).

         45. Federal regulations provide that the accumulation of nonpay status hours, including LWOP, during a leave year can affect the employee's accrual of annual leave and sick leave. (Filing 34-2, Norris Decl. ¶ 19, 5 C.F.R. § 630.208(a)).

         46. Byer requested and was approved for 70 hours of LWOP during the six-week absence from April 29, 2016, through June 10, 2016. He also used paid annual leave (50 hours), paid sick leave (101 hours and 15 minutes) and compensatory time (18 hours and 45 minutes). (Filing 34-1, Steele-Lufcy Decl. ¶ 41; Filing 34-2, Norris Decl. ¶ 30 & Attch D).

         47. Byer continued to accrue his annual and sick leave without reduction during his 6-week absence. Mr. Byer was never in a status that he was unable to accrue leave in 2016. (Filing 34-2, Norris Decl. ¶ 40).

         48. After his FMLA leave, and because he continued to earn leave, Byer had a remaining balance of 16 hours and 45 minutes of sick leave and 65 hours of annual leave available for him to use on June 13, 2016. (Filing 34-2, Norris Decl. ¶ 32).

         49. On July 8, 2016, Byer took two hours of sick leave pursuant to the FMLA. (Filing 34-1, Steele-Lufcy Decl. ¶ 52 & Attch. D; Filing 34-2, Norris Decl. ¶¶ 38-39).

         50. Byer did not take LWOP on July 8, 2016. (Filing 34-1, Steele-Lufcy Decl. ¶ 54; Filing 34-2, Norris Decl. Attch. D, p. 2).

         51. In addition, Byer also requested and was approved for one hour of compensatory time on July 8, 2016, because he had worked with a veteran early in the day. (Filing ...


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