Labor & Employment Law Daily Wrap Up, DISCRIMINATION—5th Cir.: Nursing assistant, fired for using mobile phone at work, cannot revive claims, (Feb 10, 2025)

By Jason Albright, J.D.

A patient he was assigned to observe attempted suicide during the former employee’s shift.

The VA was entitled to dismissal of the discrimination and CSRA claims of a former nursing assistant who was fired for using a mobile phone at work while assigned to maintain line-of-sight observation of two patients, one of whom attempted suicide during his shift, the Fifth Circuit affirmed in an unpublished opinion. The former employee forfeited any argument that he timely exhausted his administrative remedies as to his Title VII, ADA, RA, or ADEA claims. And the MSPB did not err in finding that the “very serious” nature of his VA policy violation warranted dismissal (Casillas v. Collins, No. 24-50308 (5th Cir. Feb. 6, 2025, unpublished)).

Nursing assistant. From 2010 to 2021, the plaintiff was employed by the VA as a nursing assistant.

Oops. The VA fired him, however, for using a mobile phone at work while assigned to maintain line-of-sight observation of two patients, one of whom attempted suicide during his shift.

EEOC complaint. The former nursing assistant filed two separate complaints to challenge his termination. First, he filed one with the EEOC, alleging discrimination under Title VII, the ADA, the Rehab Act, and the ADEA. After receiving informal EEOC counseling, he asserted in a formal complaint that a coworker commented on his age and suggested he should retire; that the same coworker threw away medical reports that he intended to submit to DOL’s Office of Workers’ Compensation Programs; and that unspecified others “laugh[ed] [and] punished” him in connection with a disability affecting his hands.

The EEOC dismissed his complaint as untimely, and it later did the same for his appeal from that dismissal. He then sought review of that decision in federal district court.

MSPB appeal. He also pursued an administrative appeal of his termination before the MSPB. There, he alleged that his termination violated the Civil Service Reform Act (CSRA) because it was not supported by a preponderance of the evidence and constituted impermissible retaliation for whistleblowing regarding improper treatment of a patient. He also asserted that the VA violated his due process rights by not considering photos he presented of other employees using their mobile phones at work.

The MSPB denied his appeal, and he then petitioned for review from the Federal Circuit.

Transferred to Northern District of Texas. In his MSPB petition, the former nursing assistant also raised the discrimination claims from his EEOC complaint. For that reason, the Federal Circuit transferred the petition to the Northern District of Texas, which has exclusive jurisdiction over “mixed cases” in which a federal employee challenges in its district a personnel action under both the CSRA and federal antidiscrimination laws.

Having before it the plaintiff’s appeals from both the EEOC and MSPB decisions, the district court consolidated the two into the present case. The government moved to dismiss that consolidated action for failure to state a claim, and the district court granted the motion on grounds that his discrimination claims were unexhausted and factually insufficient to state a claim, and because his CSRA challenge lacked a viable legal or factual basis.

The former nursing assistant timely appealed to the Fifth Circuit.

Discrimination claims. Affirming, the appeals court first found that the former employee forfeited any argument he timely exhausted his administrative remedies as to his Title VII, ADA, RA, or ADEA claims.

First, after the EEOC closed his informal counseling, it issued him a notice to inform him that he had 15 days to file a formal complaint. He acknowledged receipt of that notice but did not file his formal EEOC complaint until 10 days after the deadline. Second, after the EEOC issued its final agency decision dismissing his formal complaint as untimely, it informed him that he had 30 days from the date of receipt to appeal to the EEOC or 90 days to file a civil action in district court. However, he filed only a notice of appeal with the EEOC 79 days after he and his non-attorney advisor received that notice via email—and 54 days after that notice was delivered to his own home. And he neither explained nor justified his untimeliness.

The Fifth Circuit thus concluded that the former nursing assistant forfeited any argument that he exhausted his administrative remedies or that the court should excuse his failure to do so.

CSRA claims. Finally, the appeals court found that the CSRA claims were properly dismissed as well. Upholding his termination, the MSPB had cited the former nursing assistant’s failure to follow established VA policy and the severity of his offense. Specifically, it explained that his repeated use of his mobile phone while assigned to maintain line-of-sight observation of two patients violated a VA policy prohibiting employees assigned to such monitoring from “perform[ing] any activity that may distract full attentiveness to include, but not limited to... use of personal cellular phones (including texting).”

“[V]ery serious” violation. As the government observed, the former nursing assistant did not dispute that he violated this policy. He admitted to the MSPB that he spent “more than 13 minutes” making phone calls during his monitoring shift. And the MSPB found that the “very serious” nature of his violation warranted dismissal. As the MSPB explained, he was assigned to monitor two patients with suicidal ideations “in a mental health unit, where patients are at a high risk to harm themselves and others.” And one of the patients attempted suicide either during or in the minutes following his supervision.

The district court’s dismissal of the case was accordingly affirmed.

The case is No. 24-50308.

Judge: Per curiam.

Attorneys: Victor M. Casillas, pro se. Robert D. Green, U.S. Attorney's Office, for Douglas A. Collins.

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