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Fourth Circuit hears dispute over top intelligence officer’s depressive episode

The former Office of the Director of National Intelligence employee alleges she was denied a job based on her depression.

RICHMOND, Va. (CN) — The Fourth Circuit heard heated arguments Wednesday over whether a former top intelligence officer deserves backpay after being denied a position based on a depressive episode. 

The Office of the Director of National Intelligence assigned the plaintiff, labeled under the pseudonym Hannah P, as a senior analyst for a five-year term in 2011. She was selected to lead the intelligence community's response to former National Security Agency contractor Edward Snowden's unauthorized disclosures. The high-pressure, high-profile assignment lasted from the end of 2013 to the beginning of 2015. 

After her Snowden assignment ended, the plaintiff, who had a history of suffering from depression, began experiencing acute bouts of mental illness. Her doctor recommended in April 2015 that she take a month off from work to recuperate following the intense assignment.  

The plaintiff's supervisors denied her request for leave and failed to inform her of her option to use leave under the Family Medical Leave Act.

"This began a period of struggle, in which Hannah attempted to get her leave approved, but was consistently met with defendant's unclear instructions and denial of her request," the plaintiff's brief states. "This flagrant FMLA interference led to Hannah being tardy eight days and calling in last-minute absences four days from April 9 through April 30, 2015."

The plaintiff finally received her month off beginning in May 2015 but was forced to use annual leave rather than sick leave. The plaintiff applied for a cybersecurity position in June but was denied at least partially based on her behavior in April. 

The plaintiff filed a civil action against the ODNI in 2016, bringing counts of violations of the Rehabilitation Act and interference and retaliation in violation of the FMLA. The originating district judge granted summary judgment to the government on all claims. The Fourth Circuit in 2019 affirmed the district court's decision regarding the rehabilitation claims and a retaliation claim but reversed the summary judgment on the interference claim. 

Following a bench trial, the district court concluded that the plaintiff had sufficiently pled that the government had interfered with the FMLA by failing to inform her of all available leave options. The district court awarded $19,000 in damages, well below the over $1.5 million the plaintiff sought in additional damages because the agency did not hire her for the cyber position. 

The plaintiff and the government dispute whether she was denied the position due to behavior that occurred after the FMLA interference in April. The government contends that attendance was a problem that factored into the hiring decision before the issues that arose in April. 

"The district court noted that Mr. Ewing seemed uninterested in her attendance record after her return either at the time of the decision or even several weeks later," the government's brief states referring to ODNI official Mark Ewing. "Thereby underscoring that a few more weeks of satisfactory attendance would not have made a difference." 

Attorney Timothy Bosson of Bosson Legal Group, representing the plaintiff, contended that the ODNI failed to show that they would not have hired her regardless of April's behavior. 

"The reason why this was an interference that caused harm is because ODNI then considered the interference period attendance issues against Hannah in the hiring decision," Bosson told the three-judge panel.

Chief Judge Roger Gregory, a Bill Clinton appointee, grilled the government on the facts of the case. 

"No one wants to talk about the facts of this case because the facts of this case to me make it very simple," Gregory said. "Tell me the facts that support that she wasn't entitled to damages?" 

Attorney Caroline Lopez, representing the government, argued that the hiring manager lost interest in hiring the plaintiff after discovering that she continued to struggle with attendance after being sent to counseling with the employee assistance program on April 9. Gregory contended that she should have never been sent to the EAP because she should have been given the leave to begin with. 

"This case, to me, turns logic and justice on its head," Gregory said. "She was assigned one of the most important cases in America at the time — and did that dealing with depression issues." 

Gregory asserted that ODNI knew of her depression and still denied her leave despite completing a high-pressure assignment. 

"She worked through it for eighteen months," Gregory said. "You didn't even tell her she was entitled to FMLA benefits, a woman who had done all this for her nation." 

Gregory made clear that he did not believe it was fair to hold the plaintiff's attendance record against her while dealing with a depressive episode. 

"People who are depressed aren't late because they don't have a clock," Gregory said. "This case is one of the most egregious I've seen in terms of FMLA violations." 

U.S. Circuit Judges Stephanie Thacker, a Barack Obama appointee, and Marvin Quattlebaum Jr., a Donald Trump appointee, completed the panel. Attorneys for the plaintiff and the government did not respond to requests for comment Wednesday. 

The judges did not indicate when an opinion would be issued. 

Categories / Appeals, Employment, Government, National

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