Flickinger v. Department of Veterans Affairs

CourtDistrict Court, S.D. Ohio
DecidedSeptember 30, 2025
Docket3:23-cv-00130
StatusUnknown

This text of Flickinger v. Department of Veterans Affairs (Flickinger v. Department of Veterans Affairs) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flickinger v. Department of Veterans Affairs, (S.D. Ohio 2025).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION (DAYTON)

KRISTY FLICKINGER, : Case No. 3:23-cv-00130 : Plaintiff, : Magistrate Judge Caroline H. Gentry : (by full consent of the parties) vs. : : DOUGLAS A. COLLINS, Secretary of : the Department of Veterans Affairs of the : United States, : Defendant. :

DECISION & ORDER

Plaintiff Kristy Flickinger previously worked as a Therapeutic Radiologic Technologist at the Dayton Veterans Administration Medical Center (“Dayton VAMC”). Effective April 22, 2022, while Plaintiff was a probationary employee, Dayton VAMC terminated her employment because she refused—based on her religious beliefs—to be vaccinated for COVID-19 or submit to nasopharyngeal testing for COVID-19. Plaintiff exhausted her administrative remedies and then filed this lawsuit against Defendant Secretary of the Department of Veterans Affairs (“Defendant Secretary”) for wrongful termination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973. Currently pending before this Court is Defendant Secretary’s Motion for Summary Judgment (Doc. No. 17), which has been fully briefed. For the reasons that follow, Defendant’s Motion for Summary Judgment is GRANTED. I. STATEMENT OF FACTS The following facts are taken from the admissible evidence contained in the depositions, declarations, and authenticated exhibits that were submitted and relied upon

by the parties. As it is required to do, the Court construes the facts set forth below in favor of Plaintiff, as the non-moving party, and draws all reasonable inferences in her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A. Plaintiff Was Hired As A Probationary Employee Before she was hired, Plaintiff asked Dayton VAMC Human Resources Specialist

Shalonda Harris whether she would be a probationary or permanent employee, given that she had prior federal service. (Flickinger Dep., Doc. No. 17-1, PageID 1025-26.) It was of the utmost importance to Plaintiff that her prior federal service be credited toward her employment with Dayton VAMC, both for purposes of calculating her retirement and pension benefits and “to eliminate any probationary period.” (Flickinger Decl., Doc. No.

23-2, PageID 1405-06.) Plaintiff “would not have accepted the position with probation contingency” and “relied on [her] accepted employment offer to be accurate and true.” (Id. at PageID 1410.) On May 20, 2021, Harris notified Plaintiff in writing that: “It is our pleasure to confirm you selection for the position of Therapeutic Radiologic Technologist with

Therapeutic & Diagnostic Imaging Service at the Dayton VA Medical Center.” (5/20/21 Letter, Doc. No. 17-1, PageID 1088.) The 5/20/21 Letter also stated: Appointment Type: Permanent Probationary/Trial Period: Previously completed. (Id.) The following month, Harris sent Plaintiff a signed copy of the 5/20/21 Letter at her request. (Doc. No. 17-1, PageID 1091-94.)

Plaintiff’s employment with Dayton VAMC effectively began on July 18, 2021, although her first day of work was on July 19, 2021. However, Plaintiff was not hired as a permanent employee. Instead, the Notification of Personnel Action (Standard Form 50), which was approved on July 27, 2021, hired Plaintiff as a “conditional” employee. (7/27/21 Form, Doc. No. 17-2, PageID 1100.) The Form also stated: “Appointment is subject to completion of one year initial probationary period beginning 7/18/21.” (Id.)

To explain this discrepancy, Defendant submitted a declaration from Dayton VAMC Supervisory Human Resources Specialist Willie Turner Jr., who supervises Harris. (Turner Decl., Doc. No. 17-2, PageID 1095-98.) Turner explained that Dayton VAMC could not lawfully give Plaintiff credit for her prior federal service, for two reasons. The first reason is that “[o]nly prior federal service in the same agency can be

credited to an employee’s probationary period.” (Id. at PageID 1097-98 (citing 5 CFR 315.802(b)(1)).) Plaintiff’s prior employment was with a U.S. Department of Defense facility, not a Veterans Administration facility. (Id.) The second reason is that the new employer can only give prior credit if there is no more than a 30-day break in service between the past and new employment. (Id. at PageID 1098.) Plaintiff, however, had a

ten-year break in service. (Id.) Nevertheless, based on her communications with Harris, Plaintiff believed that she was a permanent employee. Plaintiff did not know that Dayton VAMC considered her to be a probationary employee until December 13, 2021, when her immediate supervisor, Amber Gabbard, gave Plaintiff a memorandum titled “Probationary Period.” (12/13/21 Memo, Doc. No. 17-1, PageID 1085.) The 12/13/21 Memo stated, in relevant part:

1. Your current appointment under excepted appointment as a Therapeutic Radiologic Technologist has a one (1) year probationary/trial period which commenced on 7/18/2021. 2. SPECIFICATION: Conduct failure, eavesdropping on private supervisory phone meeting in supervisor’s office, invasion of privacy, and being argumentative/accusatory when informed of inappropriateness. 3. As noted above, you are currently serving a one (1) year probationary period, the purpose of which is to determine your fitness for continued federal service. This determination is made based on your performance and/or conduct (which includes attendance) on the job. Any further deficiencies in conduct, performance or attendance may affect the decision to retain you beyond the probationary period. (Id.) After Plaintiff received the 12/13/21 Memo, she informed Gabbard that she was “not a probationary employee, per [her] commitment letter.” (Flickinger Dep., Doc. No. 17-1, PageID 1013-14; Flickinger Decl., Doc. No. 23-2, PageID 1408.) Plaintiff spoke to her union representative, who assured her that she would address the issue with Gabbard. (Flickinger Decl., Doc. No. 23-2, PageID 1409.) Because Plaintiff heard nothing further about the issue, she believed that it had been resolved and Dayton VAMC understood that she was not a probationary employee. (Id.) B. Plaintiff Was Employed As A Therapeutic Radiologic Technologist Plaintiff was employed as a Therapeutic Radiologic Technologist. The vast majority of Plaintiff’s patients were treated for cancer. (Gabbard Dep., Doc. No. 17-4, PageID 1125-26.) Plaintiff’s job required her to deliver radiation to patients as directed by a radiation oncologist. (Id.; Flickinger Dep., Doc. No. 17-1, PageID 1001-02.) After a

patient laid on the table and removed clothing to expose marks on their body, Plaintiff “would use some lasers, level the person out, straighten them, put them on their marks and step out of the room to do imaging.” (Flickinger Dep., Doc. No. 17-1, PageID 1002.) Although Plaintiff could sometimes instruct a patient to move a certain way or “utilize a sheet and roll them or straighten them,” she did have to touch patients. (Id. at PageID 1000, 1002-03.)

C. Plaintiff Requested Exemptions From Dayton VAMC’s COVID-19 Vaccine And Testing Requirements Based Upon Her Religious Beliefs On August 13, 2021, Defendant Secretary implemented a COVID-19 vaccine mandate. Shortly thereafter, on August 31, 2021, Plaintiff sought a religious exemption by submitting a request to Employee Occupational Health. (COVID-19 Vaccination Form, Doc. No. 17-7, PageID 1260; Flickinger Dep., Doc. No. 17-1, PageID 1028.) On October 4, 2021, Defendant Secretary issued a policy that required employees of Dayton VAMC to either certify and provide proof of vaccination status or request an

exemption.

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Flickinger v. Department of Veterans Affairs, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flickinger-v-department-of-veterans-affairs-ohsd-2025.