Julie Graham v. Secretary United States Department of Veterans Aff

• Court: Court of Appeals for the Third Circuit
• Decided: March 7, 2023
• Docket: 22-2633
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2633 ___________

JULIE A. GRAHAM, Appellant

v.

SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:19-cv-01339) Magistrate Judge: Honorable Susan E. Schwab (by consent) ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on March 7, 2023

Before: SHWARTZ, BIBAS, and PHIPPS, Circuit Judges

(Opinion filed: March 7, 2023) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Pro se appellant Julie Graham appeals the District Court’s order granting summary

judgment to the defendant, the Secretary of the Department of Veterans Affairs. For the

reasons detailed below, we will affirm the District Court’s judgment.

While employed by the Department of Veterans Affairs (“the VA”) as a licensed

practical nurse, Graham was charged with aggravated assault, sexual assault, simple as-

sault, and recklessly endangering another person. Each of the charges concerned Gra-

ham’s alleged failure to disclose her HIV-positive status to a sexual partner.

The VA then placed Graham on paid leave pending “the completion of administrative

investigations regarding criminal complaints made against you.” ECF No. 38-1 at 7. Af-

ter Graham waived her right to a preliminary hearing, the VA suspended her without pay

“until the completion of the law enforcement investigation and any related judicial pro-

ceedings pertaining to this conduct.” Id. at 13.

Eventually, the Commonwealth withdrew the three assault charges, and the remaining

charge, reckless endangerment, was resolved through accelerated rehabilitative disposi-

tion. Soon thereafter—about a year after the initial suspension—the VA lifted the sus-

pension and directed Graham to return to work. See id. at 34. Graham did so, and

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 requested, through counsel, that she be given back pay and other benefits that she missed

out on due to her suspension. See id. at 36. The VA denied the request on the ground

that the suspension was appropriate and it would not be financially responsible to pay an

employee for time on suspension pending criminal charges.

Graham then filed a complaint with the U.S. Equal Employment Opportunity Com-

mission (EEOC), alleging that the VA discriminated against her on the basis of her disa-

bility when it denied her request for back pay and benefits for the time she was sus-

pended. The EEOC concluded that Graham had not shown that she had been subjected to

disability discrimination and issued a right-to-sue letter. See id. at 97–98.

Graham then filed her federal complaint. She alleged that the VA “discriminated

against Plaintiff because of Plaintiff’s Disability after she was diagnosed as HIV positive

and her condition was made public.” ECF No. 1 at 2. The District Court, interpreting

Graham’s complaint to raise claims under the Americans with Disabilities Act (ADA)

and the Rehabilitation Act (RA), granted summary judgment to the defendant because

Graham failed to show that the VA discriminated against her based on her disability.

We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of

review, and apply the same standard as the District Court to determine whether summary

judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566

F.3d 86, 89 (3d Cir. 2009).

3 We agree with the District Court’s analysis of this case. To analyze Graham’s claims

of disparate treatment under the ADA and RA, 1 we apply the burden-shifting framework

set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This requires Gra-

ham to first make out a prima facie case that she was (1) disabled, (2) subject to an ad-

verse employment action, (3) qualified for her position, and (4) the adverse employment

action was because of her disability. Fowler v. AT&T, Inc., 19 F.4th 292, 298 (3d Cir.

2021). Like the District Court, we will assume that Graham made this showing. The

burden then shifts to the defendant “to provide a legitimate, non-discriminatory reason

for its actions.” Id. We agree with the District Court that the defendant did so: it denied

back pay and benefits because Graham had been suspended pending the resolution of se-

rious criminal charges. See generally In re Trib. Media Co., 902 F.3d 384, 402 (3d Cir.

2018).

The burden then shifted back to Graham. To survive summary judgment, she needed

to present evidence that the VA’s explanation “is merely a pretext, meaning evidence that

could cause a jury either to (1) disbelieve the employer’s articulated legitimate reasons,

or (2) believe that an invidious discriminatory reason was more likely than not a motivat-

ing or determinative cause of the employer’s action.” Fowler, 19 F.4th at 299 (altera-

tions, quotation marks omitted). “To discredit the employer’s proffered reason, however,

the plaintiff cannot simply show that the employer’s decision was wrong or mistaken,

1 We consider the ADA and RA claims “together because the substantive standards for determining liability are the same.” Furgess v. Pa. Dep’t of Corr., 933 F.3d 285, 288 (3d Cir. 2019) (quotation marks omitted). 4 since the factual dispute at issue is whether discriminatory animus motivated the em-

ployer, not whether the employer is wise, shrewd, prudent, or competent.” Fuentes v.

Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

The District Court correctly concluded that Graham failed to present evidence dis-

crediting the VA’s explanation. In its contemporaneous communications, the VA invari-

ably identified the criminal charges as the impetus for its actions, and its conduct—esca-

lating the suspension after Graham waived her preliminary hearing and then lifting the

suspension when the charges were resolved—was consistent with that explanation.

Graham argues at some length that the criminal charges were illegitimate and that

the VA should not have relied on them, but this does not show that the VA’s reliance was

pretextual. See id. Further, while Graham has vaguely claimed that another employee

who was charged with driving under the influence was treated more leniently, this does

not make the necessary showing because she has failed to establish that that employee

was “similarly situated in all respects.” In re Trib. Media Co., 902 F.3d at 403 (quotation

marks and alteration omitted). Finally, it is true, as Graham says, that in its written state-

ment discussing the appropriate penalty, the VA did at times refer to her disability. See

ECF No. 38-1 at 17–20. However, we agree with the EEOC that Graham’s “criminal

charges were intertwined with her medical condition, and it would have been nearly im-

possible to discuss and evaluate the criminal allegations without mentioning her medical

condition.” ECF No. 38-1 at 97.2 The written statement focused on Graham’s conduct,

2 In her appellate brief, Graham contends that the VA denied her due process, but because she did not raise this claim in the District Court, we will not address it here. See Simko 5 not her disability, and the references to HIV do not reflect animus toward Graham’s disa-

bility or suggest that the VA was not actually focused on the criminal charges. See gen-

erally Salley v. Cir. City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998); Harris v. Polk

Cnty., 103 F.3d 696, 697 (8th Cir. 1996).

Accordingly, we will affirm the District Court’s judgment.

v. U.S. Steel Corp., 992 F.3d 198, 205 (3d Cir. 2021). We note also that the District Court concluded that Graham failed to exhaust any direct challenge to the suspension. See ECF No. 44. Graham has not challenged that decision in her appellate brief, so we likewise will not address that issue. See M.S. by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020). 6