DonnaMarie Kaminsky v. Robert Wilkie ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0247n.06
Case No. 20-3821
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 20, 2021
DONNAMARIE KAMINSKY, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
ROBERT WILKIE, Secretary of the U.S. ) OHIO
Department of Veterans Affairs, )
)
Defendant-Appellee. )
)
BEFORE: SILER, THAPAR, and MURPHY, Circuit Judges.
SILER, Circuit Judge. DonnaMarie Kaminsky appeals the district court’s judgment for
the Secretary. Kaminsky claims that the district court erred in granting summary judgment for her
disability and age discrimination claims, her failure to accommodate claim, and her retaliation
claim.
Kaminsky’s claims for disability and age discrimination are not supported on the record,
and many of the employment actions raised as proof of discrimination are not actionably adverse.
Kaminsky also fails to show any causal connection between her age, disability, or protected actions
with any of those employer actions by the VA and her supervisor, Debra King, that she claims
were adverse. The VA made multiple attempts to provide Kaminsky with her requested
accommodations, including a sit-to-stand desk. Whether Kaminsky was otherwise qualified for
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her position, which her supervisors believed she was not under Ohio law, has no actual bearing on
the outcome of this case because no actionable discrimination occurred. We AFFIRM.
I.
Kaminsky began working at the VA in 2001 as an education and training specialist in
Chaplain Services. In 2004, the VA created a new position specifically for Kaminsky within the
Social Work Service (SWS) because of her interest in grief and bereavement counseling. The VA
categorized the position as “Training Specialist,” but the organizational descriptive title was
“Grief/Bereavement Counselor & Educator.” This position included counseling veterans and
family members. She also provided grief counseling to veterans outside of the contract home
hospice program and to VA staff members. Kaminsky’s paygrade in this position was GS-12.
Kaminsky’s official duty station was the VA Wade Park Medical Care Center in Cleveland,
but she spent most of her time seeing patients in the community, not at her office. She had an
office at Wade Park that was borrowed by SWS from the Blind Rehabilitation Service. That office
was located at a different part of the medical center than the rest of SWS. Kaminsky was assigned
a GSA vehicle for travel to her counseling sessions with patients in their homes.
In May 2016, the VA assigned Debra King as the Assistant Chief of SWS. Since joining
the VA in 2008, no other employee, besides Kaminsky, ever complained that King treated them
unfairly or had ever filed a discrimination complaint against King, nor had she been disciplined
for any reason. King met with Kaminsky to review Kaminsky’s job functions, review her tour of
duty, and discuss the approval of compensatory time off. Following this meeting, King believed
that Kaminsky was within the program guidelines and doing her job appropriately. However,
during the meeting, Kaminsky became agitated and upset and raised her voice at King. Kaminsky
claims that King rattled off “I’m changing your job, I’m changing your work hours, I’m moving
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you from your office, I’m not giving you comp time. I’m changing everything about your job.
You’re not going to work alone. Everything about your job is going to be changed.” Kaminsky
and King had little to no contact after the meeting. Kaminsky notified King she would be filing
an EEO complaint.
King learned that, although Kaminsky had been working as a grief counselor since 2004,
she was not licensed by the Ohio Counselor, Social Worker, and Marriage and Family Therapist
Board (Ohio Board). See Ohio Rev. Code § 4757.23. In November 2016, the Geriatrics and
Gerontology Federal Advisory Committee (GGAC) conducted a periodic site visit. King was
informed that VA regulations did not authorize the post-grief counseling services that Kaminsky
was providing to families of deceased veterans. Upon further investigation, King discovered that
the VA did not have legislative authority to provide bereavement counseling to non-veteran family
members. King, King’s supervisor, Joe Aquilina, and Human Resources (HR) Classification
Specialist Eric Johnston attempted to rewrite Kaminsky’s position description to (1) eliminate any
counseling so that Kaminsky’s position complied with Ohio state law and VA regulations; and
(2) maintain Kaminsky’s grade as GS-12 so that her pay and benefits would not change. Despite
drafting several updated position descriptions, King and Aquilina were informed that removing
her counseling duties would reduce Kaminsky’s GS-12 grade level.
The issue was elevated and after conferring with Chief of Staff, Murray D. Altose, M.D.,
head of HR Charles Franks, and Medical Center Director Susan M. Fuehrer, the leadership decided
to move Kaminsky to a different position in HR where she could maintain her GS-12 grade. Franks
notified Kaminsky of the change on July 18, 2017, and she received official word of her
reassignment change on July 31, 2017. Kaminsky was informed her new position, beginning on
September 3, 2017, would be Human Resources Specialist (Employee Education and
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Development). For the time between the transition, Kaminsky was offered the opportunity to work
on a project with Jason Gatliff, the Integrated Ethics Program Officer, involving the roll-out and
implementation of a life-sustaining treatment program at the VA. Kaminsky declined to work on
this project, however, and Dr. Altose told King to assign Kaminsky administrative tasks until she
started her new position in HR. Kaminsky’s previous grief counseling position was eliminated
and neither her salary nor any of her benefits decreased because of her move to HR. On February
28, 2020, Kaminsky retired from the VA.
Due to various injuries to her spine and knee, Kaminsky suffered chronic pain that required
the use of a cane since 2012 and walker since 2019. The VA obtained a special GSA-assigned
vehicle, after a request in 2015, to help with her pain. On April 20, 2016, the VA approved
Kaminsky for a sit-to-stand desk. While this request was being processed, King and Aquilina
decided to move Kaminsky to the fifth floor of the Administration Building at Wade Park. King
and Aquilina informed Kaminsky about the change in June of 2016 and the move was made about
a month later.
Bruce Kafer, the local Reasonable Accommodation Coordinator, emailed Kaminsky on
August 9, 2016, telling her that her request for a sit-to-stand desk was “in process” and that the
desks “may be back ordered.” On August 15, 2016, John McNerney, the assigned interior designer
at the VA, told Aquilina in an email that he had attempted to reach Kaminsky about her request
for a sit-to-stand desk “on a number of occasions with no success.” Kaminsky replied to
McNerney’s email on August 23, 2016. She disclosed to McNerney and Kafer that she filed an
equal opportunity complaint (EEOC) against King and Aquilina and explained that she still needed
the desk but had been delayed in her response because she could not use her assigned office space.
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The next day, Kafer emailed the ergonomic design team again and told them “we need to install
the appropriate Sit to Stand Desk in Ms. Donnamarie Kaminsky’s new office . . .”
On September 20, 2016, Kaminsky and Kafer exchanged emails about setting up a call to
discuss her ergonomic needs. Kaminsky reiterated that she was not using the office space assigned
to her. Kaminsky was assigned a new office space in the VA’s Parma Community Based
Outpatient Clinic (CBOC). McNerney had a sit-to-stand desk installed for Kaminsky on
November 8, 2016. Parma remained Kaminsky’s official duty station from November 2016
through July 2017. Kaminsky continued to report issues with her sit-to-stand desk and the VA
made repeated attempts to correct all problems reported. The VA ultimately was able to resolve
the issues satisfactorily and accommodate Kaminsky.
In 2019, Kaminsky filed this suit against Defendant Robert Wilkie, Secretary of the VA,
in the district court. She included claims for (1) disability discrimination under the Rehabilitation
Act of 1973, 29 U.S.C. §§ 701-94; (2) age discrimination under the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 633a; (3) failure to accommodate under the
Rehabilitation Act; (4) hostile work environment under the Rehabilitation Act and ADEA; and (5)
retaliation under ADEA and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§
2000e-2000e-17.
The district court granted the Secretary’s motion for summary judgment in 2020, and
Kaminsky timely appealed.
II.
We review the granting of summary judgment de novo. Sec’y of Labor v. Timberline S.,
LLC, 925 F.3d 838, 843 (6th Cir. 2019).
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III.
A.
To make a claim for disability discrimination under the Rehabilitation Act, a plaintiff must
show that she is (1) disabled; (2) otherwise qualified to perform the essential functions of her
position; and (3) suffered an adverse employment action solely because of her disability. Jones v.
Potter, 488 F.3d 397, 403 (6th Cir. 2007). To make a claim for age discrimination under the
ADEA, a plaintiff must show that she (1) is forty years or older (protected class); (2) suffered an
adverse employment action; (3) was otherwise qualified for the position; and (4) was replaced by
a substantially younger employee, or additional evidence shows that the employer was motivated
by age. Deleon v. Kalamazoo Cty. Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014). In addition,
the ADEA requires a showing that age was the “but-for” cause of any adverse action. Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009).
Kaminsky highlights as discriminatory four actions of the VA in her brief: (1) the move of
her office space; (2) the “hospice oversight committee,” (3) the denial of advanced sick leave, and
(4) her transfer to HR.
King’s movement of Kaminsky’s office space from the Blind Rehabilitation space into a
cubicle does not constitute an adverse employment action because it is the kind of mere annoyance
or “petty slight that [courts] have held does not constitute actionable harm.” Fercello v. Cty. of
Ramsey, 612 F.3d 1069, 1078-79 (8th Cir. 2010) (citation omitted); Mitchell v. Vanderbilt Univ.,
389 F.3d 177, 183 (6th Cir. 2004) (holding a less desirable workspace did not amount to a
“materially adverse employment action” as compared to a reduction in salary, status, or
employment benefits). The move put Kaminsky in the same location and a similar office space as
the rest of her colleagues and there is no evidence that Kaminsky’s age or disability had any
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bearing on King’s office relocation decision. Rather, it seems King’s main motivation was to
relocate Kaminsky to the same geographical area as the rest of her department rather than to a
satellite location. Kaminsky’s claim that having to pack her own boxes and move from her office
was an adverse employment action has no basis in law. Ultimately, an employee named Michael
Jennings helped with her move.
There is no evidence that the creation of a follow-up template for veterans in the hospice
program by the hospice oversight committee had any adverse effects on Kaminsky’s employment
nor that it was created or influenced due to age or disability discrimination. Kaminsky attended
the group’s only meeting on November 16, 2016. She claims without evidence that she was
excluded from other alleged committee meetings and that a draft template evaluating whether
veterans “wanted to have services from Ms. Kaminsky in their homes” adversely affected her
employment but fails to explain why asking veterans that question is objectionable in the first
place. An email from Gatliff states that “I discussed our meeting with Debra [King] and she agreed
that DonnaMarie made a good point. It does make good sense to have DonnaMarie contact each
Veteran early . . . and introduce herself and the services she has to offer.” This email negates
Kaminsky’s claim that she was excluded and not allowed to provide any input to the committee.
Further, Kaminsky provides no evidence that her age or disability caused the creation of the
committee, influenced its decisions, or affected its findings.
Kaminsky complains of an instance in July 2016 where her request to use advanced sick
leave was initially denied by King because Kaminsky’s sick leave balance was negative. After
being informed that Kaminsky previously was approved to use advanced sick leave, King
approved the request, and Kaminsky used the sick leave. Separate authorities later denied
Kaminsky approval for advanced sick leave because she already had a negative balance of -166.5
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hours and had developed a pattern of requesting advanced sick leave on a regular basis for four
years. Both Aquilina and Employee/Labor Relations Specialist Jelena Zekanovc recommended
against approving the request based on VA policy and Kaminsky’s use of advanced sick leave on
a yearly basis since 2012. Therefore, Kaminsky instead had to use annual leave. Kaminsky offers
no evidence to support that King was involved in the process or how a denial of advanced sick
leave based on VA policy guidelines was discriminatory.
Kaminsky’s provides no evidence that discrimination based on her age or disability caused
her relocation to HR. King was concerned that Kaminsky was not licensed by the Ohio Counselor,
Social Worker, and Marriage and Family Therapist Board (Ohio Board). See Ohio Rev. Code
§ 4757.23. She also was concerned about the GGAC’s findings that VA regulations did not
authorize the post-grief counseling services that Kaminsky was providing to families of deceased
veterans and that the VA did not have legislative authority to provide bereavement counseling to
non-veteran family members. King, Aquilina, and Johnston attempted to rewrite Kaminsky’s
position description to conform with proper standards while maintaining her pay grade. Despite
several attempts, King and Aquilina were ultimately informed that Kaminsky’s position could not
conform to the VA standards without reducing her pay grade. They instead made the difficult
decision, after confiding with their own leadership, to relocate Kaminsky to HR to maintain her
current GS-12 status. There is no evidence that age or disability discrimination caused Kaminsky’s
transfer to HR or the elimination of her former position.
The district court held that “Kaminsky fails to point to any evidence here of causation—
that is, any evidence that these events, individually or in the aggregate, were the result of improper
consideration of age and/or disability.” It held that “Kaminsky has also not shown she was
replaced by someone outside her protected class.” Therefore, Kaminsky has not established the
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prima facie case for either age and/or disability discrimination. She does not point to any evidence
in the record that could satisfy her burden of proof as to either of these elements. Therefore, the
district court properly granted summary judgment on Kaminsky’s age and disability discrimination
claims.
B.
To state a claim for failure to accommodate under the Rehabilitation Act, Kaminsky had
to show that (1) she was disabled; (2) she was otherwise qualified for her position; (3) the VA was
aware of her disability; (4) an accommodation was needed; and (5) the VA failed to provide the
accommodation. Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir. 1997).
Kaminsky made her initial request for a sit-to-stand desk in March 2016. “[A]n employee
cannot base a disability discrimination claim upon an employer’s delay in providing a requested
accommodation where the delay is due to internal processing or to events outside the employer’s
control.” Gerton v. Verizon S., Inc., 145 F. App’x 159, 168 (6th Cir. 2005) (citing Kaltenberger
v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998)).
Kaminsky’s requested accommodation was delayed due to internal processing and events
outside the VA’s control due to a backorder on the equipment required. Further, Kaminsky was
at least partly to blame for the delay in her accommodation because she did not timely respond to
emails from the VA’s reasonable accommodations team. At one point, McNerney contacted
Aquilina about the request because he had reached out to Kaminsky “on a number of occasions
with no success” and was going to close the request if he did not hear back from her. “[T]he
interactive process requires communication and good-faith exploration of possible
accommodations.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007) (citation
omitted). Despite the delay in installation, the VA actively communicated with Kaminsky
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throughout the process and eventually installed her accommodations in her new office. It also
responded to all trouble requests she had after the installation. There is no evidence the
accommodations team acted in bad faith or with any discriminatory intent. See Kleiber, 485 F.3d
at 872 (rejecting the argument that an employer failed to engage in the interactive process where
the plaintiff offered no evidence of lack of good faith). Therefore, the district court properly
granted summary judgment on Kaminsky’s failure to accommodate claim.
C.
To state a claim for retaliation, Kaminsky must show that (1) she engaged in a legally
protected activity; (2) the VA had knowledge of her protected conduct; (2) the VA then took
adverse action against her; and (4) there was a causal connection between the protected activity
and the adverse employment action. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.
2003). Retaliation claims under the ADEA employ the same framework used in Title VII
retaliation claims. Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007).
To show adverse action under a retaliation claim, the “plaintiff must show that a reasonable
employee would have found the challenged action materially adverse . . .” which would dissuade
a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Kaminsky’s EEO complaint did not cause any legally
adverse actions to be taken against her. Following Kaminsky’s EEO complaint in July 2016,
Kaminsky received an overall rating of “Excellent” on her annual performance review and she
maintained her GS-12 salary and benefits through her retirement from the VA. Kaminsky claims
that she received a disciplinary letter due to her contacting legal counsel, but she received the letter
of counseling for an angry email about parking. Further, the letter of counseling in this case did
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not rise to the level of a materially adverse action. Taylor v. Geithner, 703 F.3d 328, 338 (6th Cir.
2013); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011).
Nor was Kaminsky’s relocation to HR caused by her EEO complaint. The VA attempted
to rewrite Kaminsky’s position description before eliminating her previous position and
reassigning her to HR. Her leadership actively attempted to help her maintain her current salary
and benefits while addressing their concerns about the position. The record clearly demonstrates
the EEO complaint was not the cause of her transfer or the elimination of her position, but rather
the leadership’s concern over her qualifications and the limits of the VA’s legislative authority to
perform such functions. There is also no evidence that the hospice oversight committee or its
actions had any adverse effects on Kaminsky’s employment, or that the committee was created in
response to her EEO complaint. Therefore, the district court properly granted summary judgment
on Kaminsky’s retaliation claim.
AFFIRMED.
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