Susan Britting v. Secretary of Veterans Affairs ( 2011 )

  •                                                       NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                        No. 10-2554
                                   SUSAN E. BRITTING,
                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                             District Court No. 1-08-cv-01747
                     District Judge: The Honorable A. Richard Caputo
                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    January 25, 2011
                 Before: McKee, Chief Judge, and SMITH, Circuit Judge,
                            and STEARNS, District Judge*
                                  (Filed: February 1, 2011)
    SMITH, Circuit Judge.
      The Honorable Richard G. Stearns, United States District Judge for the United States
    District Court of Massachusetts, sitting by designation.
          Susan E. Britting began working as a medical transcriptionist for the
    Department of Veterans Affairs (VA) in its Lebanon, Pennsylvania facility in
    2002. Years before, Britting had been diagnosed with irritable bowel syndrome
    (IBS). Around May of 2007, Britting‟s IBS flared up, resulting in an increase in a
    variety of gastrointestinal symptoms. At about this same time, Britting‟s
    performance as a transcriptionist deteriorated, adversely affecting her accuracy rate
    and the number of lines she was able to transcribe per shift. By mid-June,
    Britting‟s accuracy rate had fallen from 92% (a “Fully Successful” achievement
    rate) to 85%. As a result, Jodi Moyer, Britting‟s supervisor, placed Britting on a
    Performance Improvement Plan, which afforded Britting 90 days to demonstrate an
    acceptable level of work. The Plan also provided for biweekly meetings between
    Moyer and Britting to discuss her work performance.
          Within days, Britting provided Moyer with a letter from her physician, Dr.
    Messmer, which confirmed Britting‟s affliction with IBS and her frequent need to
    use the restroom. In an effort to accommodate that need, Britting‟s work station
    was moved closer to the restroom. At about this same time, Moyer advised
    Britting that, because of her diminished accuracy, Moyer would be reviewing
    Britting‟s transcriptions before releasing them to the medical care provider.
          In mid-July, despite Moyer‟s directive, Britting herself released several
    documents to the medical provider before Moyer could complete her review.
    Britting did this again in August, violating Moyer‟s order a second time. On
    September 4, 2007, Britting received notice of a proposed three-day suspension
    based on her persistent failure to follow Moyer‟s directive. Two days later,
    Britting again released a transcribed report without Moyer‟s approval. Within a
    week, Britting received notice that the proposed three-day suspension had been
    replaced with a fifteen-day suspension. An assessment of her transcription
    revealed an “[o]verall monthly accuracy average of 83%,” demonstrating that her
    accuracy rate continued to deteriorate.
          The interim director of the Lebanon facility reviewed a report that
    considered whether Britting‟s suspension was warranted in light of the twelve
    factors set out in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306-07 (1981). The
    report noted that Britting‟s inability to follow the basic instruction not to release
    her work before it had been reviewed had resulted in serious transcription errors.
    Furthermore, Britting‟s lack of accuracy required the supervisor to review all of
    her work, thereby reducing the department‟s overall productivity.
          On October 15, 2007, Britting received notice of the VA‟s intent to
    terminate her employment. Although a vacancy existed at the time in the file
    room, management rejected such a transfer because the job required a high degree
    of accuracy and was incompatible with Britting‟s ability. Britting‟s termination
    became effective on November 27, 2007. Britting challenged her suspension and
    termination, but the Merit System Protection Board upheld the VA‟s actions.
    Britting then filed a complaint in the United States District Court for the Middle
    District of Pennsylvania. Britting claimed that she was discriminated against on
    the basis of her disability, thereby violating the Rehabilitation Act, 29 U.S.C. §
    794(a).1 She also sought judicial review of the VA‟s decision to suspend and to
    terminate her employment under 5 U.S.C. § 7703(b)(2).
           At the time of Britting‟s 2007 termination, the Americans with Disabilities
    Act (ADA) was interpreted narrowly and the standard for determining whether an
    individual had a disability included consideration of whether the impairment had a
    permanent or long-term impact. The ADA Amendments Act of 2008 (ADAAA),
    however, rejected this narrow interpretation and reinstated the broad scope of
    protections available under the ADA. P.L. 110-325, §§ 2 and 3, 122 Stat. 3553,
    3556 (Sept. 25, 2008). In amending the ADA, Congress set forth several rules of
    construction governing the definition of disability, including that “[a]n impairment
    that is episodic or in remission is a disability if it would substantially limit a major
    life activity when active.” Id. § 3(4)(D), codified at 42 U.S.C. § 12102(4)(D).
           The VA moved for summary judgment, contending that Britting could not
    establish a disability under the narrow interpretation of that term that prevailed at
       The Rehabilitation Act specifies that the “standards used to determine whether this
    section has been violated . . . shall be the standards applied” under the Americans with
    Disabilities Act. 29 U.S.C. § 794(d).
    the time she was terminated. Britting argued to the contrary. In addition, she
    asserted that the ADAAA was retroactively applicable. The District Court
    concluded that the ADAAA was not retroactively applicable and that Britting was
    unable to establish a disability under the more demanding standard applicable at
    the time of her termination. The District Court also concluded that there was
    substantial evidence to support the Merit System Protection Board‟s decision. This
    timely appeal followed.2
          We agree with the District Court that the ADAAA is not retroactively
    applicable. In deciding whether a statute is retroactively applicable, the Supreme
    Court has instructed that the “first task is to determine whether Congress has
    expressly prescribed the statute‟s proper reach.” Landgraf v. USI Film Products,
    511 U.S. 244
    , 280 (1994). If Congress‟s intent is not clear, “the court must
    determine whether the new statute would have retroactive effect, i.e., whether it
    would impair rights a party possessed when he acted, increase a party‟s liability for
    past conduct, or impose new duties with respect to transactions already
    completed.” Id. Nothing in the ADAAA‟s text expressly prescribes that the
       The District Court exercised jurisdiction over the Rehabilitation Act claim under 28
    U.S.C. § 1331 and over the Merit Systems Protections Board appeal under 5 U.S.C. §
    7703(b)(2). Appellate jurisdiction exists under 28 U.S.C. § 1291. “We exercise plenary
    review over the District Court‟s grant of summary judgment” and “apply the same
    standard that the District Court should have applied.” Shuman ex rel. Shertzer v. Penn
    Manor Sch. Dist., 
    422 F.3d 141
    , 146 (3d Cir. 2005) (internal citations omitted).
    statute is retroactively applicable. Furthermore, in expanding the definition of
    disability, the ADAAA clearly increased the VA‟s liability for past conduct. As a
    result, we conclude that the ADAAA cannot be applied retroactively.3
          Britting argues that the new statute is nevertheless applicable because it
    effects a waiver of sovereign immunity. As a result, she contends that it is a
    jurisdictional statute, which (as Landgraf acknowledged) is a kind of legislation
    that is “regularly applied” retroactively. 511 U.S. at 274. The Landgraf Court‟s
    acknowledgment, however, was qualified:
          Application of a new jurisdictional rule usually “takes away no
          substantive right but simply changes the tribunal that is to hear the
          case.” Present law normally governs in such situations because
          jurisdictional statutes “speak to the power of the court rather than to
          the rights or obligations of the parties[.]”
    Id. (citations omitted). By using the term “usually,” Landgraf signaled that there
    may be instances where a jurisdictional statute may not be applied retroactively.
    Such an instance may arise where the new jurisdictional statute affects a party‟s
    substantive rights or obligations. Id. Indeed, the Court concluded in Hughes
      We are not alone in this conclusion. Our sister circuits, which have considered the
    question, have uniformly concluded that the ADAAA is not retroactively applicable. See
    Ragusa v. Malverne Union Free Sch. Dist., 381 F. App‟x. 85, 87 n.2 (2d Cir. 2010);
    Nyrop v. Indep. Sch. Dist. No. 11, 
    616 F.3d 728
    , 734 n.4 (8th Cir. 2010); Thornton v.
    United Parcel Serv., Inc., 
    587 F.3d 27
    , 34 n.3 (1st Cir. 2009); Becerril v. Pima County
    Assessor’s Office, 
    587 F.3d 1162
    , 1164 (9th Cir. 2009); Fredricksen v. United Parcel
    581 F.3d 516
    , 521 n.1 (7th Cir. 2009); Lytes v. DC Water & Sewer Auth., 
    572 F.3d 936
    , 940-42 (D.C. Cir. 2009); Milholland v. Sumner County Bd. of Educ., 
    569 F.3d 562
    565-67 (6th Cir. 2009); EEOC v. Agro Distribution, LLC, 
    555 F.3d 462
    , 469 n.8 (5th Cir.
    Aircraft Co. v. United States, 
    520 U.S. 939
     (1997), that a new statute, which
    eliminated an affirmative defense in qui tam actions, “create[d] jurisdiction where
    none previously existed; it thus speaks not just to the power of a particular court
    but to the substantive rights of the parties as well. Such a statute, even though
    phrased in „jurisdictional‟ terms, is as much subject to our presumption against
    retroactivity as any other.” Id. at 951. Thus, we conclude that the ADAAA, even
    though it may be jurisdictional in nature with regard to the VA, is not retroactively
    applicable because it affects the substantive rights of the parties.
          Having concluded that the ADAAA is not retroactively applicable, we turn
    to Britting‟s contention that the District Court erred in its determination that she
    did not establish a disability under the more demanding pre-ADAAA standard.
    We conclude that the District Court did not err. Britting confirmed that her IBS
    was episodic in nature and did not afflict her every day.
          Finally, Britting contends that her suspension and termination are not
    supported by substantial evidence. Substantial evidence “„means such relevant
    evidence as a reasonable mind might accept as adequate to support a conclusion.‟”
    Bradley v. Veterans Admin., 
    900 F.2d 233
    , 234 (Fed. Cir. 1990) (quoting Consol.
    Edison Co. v. Labor Bd., 
    305 U.S. 197
    , 229 (1938)). Our review of the record
    reveals that there is substantial evidence to support the VA‟s actions.
             For the reasons set forth above, we will affirm the judgment of the District