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FERGUSON v. SMALL

September 26, 2002

EVE FERGUSON, PLAINTIFF,
V.
LAWRENCE M. SMALL, SECRETARY OF THE SMITHSONIAN INSTITUTION, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Eve Ferguson is suing the Secretary of the Smithsonian Institution, claiming that her termination during her probationary period of employment was the result of retaliation for a letter written by her attorney to the Institution's General Counsel. In the letter, plaintiff's attorney argued that she was entitled to reassignment as a reasonable accommodation, and requested that the Institution withdraw a request for medical information. A few days after plaintiff's supervisors received copies of this letter, plaintiff's employment was terminated. The stated reason for plaintiff's termination was "poor attendance." Plaintiff asserts that this retaliatory termination constituted a violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.

Pending before the Court is defendant's renewed motion to dismiss or, in the alternative, for summary judgment. The Court has carefully considered the defendant's motion, the response and reply thereto, and the entire record herein. Drawing all reasonable inferences in favor of plaintiff, the Court finds that a reasonable jury could find that defendant unlawfully retaliated against her. Plaintiff has presented evidence demonstrating that genuinely disputed material facts preclude entry of summary judgment in this case. Accordingly, the Court denies defendant's motion for summary judgment.

I. Factual Background

While the Court ultimately finds that significant factual disputes exist that preclude the entry of summary judgment, many of the underlying facts of this matter are not disputed. The progression of events leading to plaintiff's termination is, for the most part, clear from the parties' statements of fact, responses to requests for admissions and submitted deposition testimony.

Eve Ferguson was employed by the Anacostia Museum, a unit of the Smithsonian Institute, as a public affairs specialist. Response to Pl.'s Request for Admission No. 1 ("RPRA 1") Plaintiff's supervisor was Louis Hicks, the Public Programs Coordinator for the Anacostia Museum. Id. 3, 4. Ms. Sharon Reinckens was the Museum's Deputy Director, and Steven Newsome was the Museum Director. Id. 3, 5.

From October 4, 1994 to November 21, 1994, Ms. Ferguson used 8 hours of medical leave, 4 hours of annual leave, 11.25 hours of leave without pay ("LWOP"), and 8 hours compensatory time. Def.'s Stint. of Facts ¶ 3. From Ms. Ferguson's start date of October 4, 1994 through November 21, 1994, Ms. Ferguson arrived late to work on at least 20 separate days. Id. ¶ 4.

On November 21, 1994, plaintiff was injured in an on-the-job automobile accident in which plaintiff was a passenger. RPRA 6. Ms. Ferguson was hospitalized for six days, and sustained a liver contusion. Id. Following the accident, Ms. Ferguson was on leave for more than six weeks, from November 21, 1994 through January 7, 1995. Def.'s Stint. of Facts ¶ 6. Plaintiff received compensation for that entire period. Id. When she returned to work, she provided a document dated January 6, 1995 signed by Dr. Cynthia Dragula of George Washington University Hospital, which stated that Ms. Ferguson was able to return to work. Id. ¶ 7. This letter did not list any work restrictions. Id.

In April 1995, Ms. Ferguson requested that she be permitted to arrive at work 15 minutes later than general work hours because of her bus schedule. Id. ¶ 8. This request was granted. Id. At some point, Ms. Reinckens offered to reduce Ms. Ferguson's work week to 35 hours. Id. ¶ 10, 11. However, Ms. Ferguson testified that she discussed this offer with her doctor, who recommended that she take medical leave instead. Id. ¶ 11.

On or about May 12, 1995, Ms. Ferguson was placed on leave restriction. Id. ¶ 14. According to the leave restriction letter, the reason for the leave restriction was that, despite the later arrival time granted her on April 3, 1995, Ms. Ferguson continued to arrive late and to use unscheduled leave to cover her late arrivals. The May 12, 1995 memorandum further stated:

If you do not properly request and gain approval of leave, you may be charged AWOL, for which you may be disciplined or removed from employment because of failure to follow leave procedures even if the leave is otherwise appropriate and approved.

Id. ¶ 15. On the same day, Ms. Ferguson also received a memorandum confirming counseling about taking excessively long lunch breaks. Id. ¶ 16.

Ms. Ferguson's leave restriction was initially due to expire on July 12, 1995. However, sometime around June 29, 1995, Mr. Hicks informed plaintiff that, on account of her anticipated leave during the month of July, the leave restriction letter would expire on August 17, 1995.

A letter from Drs. Cosgrove and Borenstein recommended that Ms. Ferguson be transferred to a job or division where she would not have to carry out certain types of activities. Id. ¶ 17. This recommendation was based upon a diagnosis of neck strain and elbow pain. Id. Ms. Ferguson began to discuss the contents of this letter with people at the Smithsonian in late June of 1995. Id. However, the Smithsonian determined that it was unable to offer Ms. Ferguson such a reassignment because no vacancies for positions that would meet the requirements of the letter and for which Ms. Ferguson was qualified.

In June 1995, Ms. Royal informed plaintiff that the Smithsonian would attempt to accommodate plaintiff as much as possible. Id. ¶ 20. However, if accommodation was unavailable, management might take steps to terminate plaintiff's employment if she was unable to perform the duties of her job. Id.

On June 27, 1995, plaintiffs submitted a leave request memo to Mr. Hicks covering the month of July and a doctor's note from her internist, as well as a May letter from a rheumatologist. ROI*fn1 33, Mem. from Ferguson to Hicks, 6/7/95. This request was accompanied by a letter dated June 22, 1995 from Dr. Jones stating that Ms. Ferguson was under her care for "post traumatic stress syndrome and depression" resulting from the car accident and recommending that Mr. Ferguson take July 1-31, 1995 off from work. Def.'s Stmt of Facts 21. Ms. Ferguson provided this letter to Steve Neslen of the Smithsonian's Employee Assistant Program ("EAP"). Id. Ms. Reinckens testified that Ferguson's EAP, Steven Nelsen, recommended that the Institute grant this leave. Reinckens, at 38:16-23. Mr. Nelsen wrote an e-mail indicating that plaintiff had submitted valid medical documentation justifying the leave. Hicks Ex. 1. On June 28, 1995, the defendant granted the request for leave for the month of July, but stated that plaintiff's leave would be without pay because she had no leave time available. ROI 34. The Institute later determined that paid leave was available in plaintiff's account, and permitted plaintiff to use paid leave for the month of July.

In late July 1995, Mr. Hicks drafted a memorandum to Ms. Ferguson requesting that she provide additional documentation about her current medical condition "as it related to her job assignments" to the Smithsonian's Occupational Health Services Center. Id. ¶ 26; ROI 36. The letter, in part, states:

Please submit the requested medical information no later than the close of business on July 26, 1995, to allow time for me to be advised by the Smithsonian physicians before your anticipated return to work.

ROI 36. The attachments to Mr. Hicks' memorandum required information including plaintiff's medical chart, narratives on numerous subjects such as compliance with therapy, a description of activities that helped and aggravated plaintiff's neck and the nature and location of symptoms. Id.

Mr. Hicks' memorandum requesting medical documentation was dated July 21, 1995, and was delivered to Ms. Ferguson's home by Federal Express on Saturday, July 22, 1995. Id. Her response was due by close of business on Wednesday, July 26, 2002. Mr. Neslen testified that it would be difficult for an employee to return a request in that period of time. Neslen Dep. at 34, 37-38.

On Monday, July 24, 1995, Ms. Ferguson left a message for Mr. Hicks stating that she had received the July 21 memorandum, but that she could not provide the information requested by Wednesday, July 26, as required, because she did not have a doctor's appointment until July 27. Reinckens Dep., Ex. 3.

On July 27, 1995, Ms. Ferguson's attorney, June Kalijarvi, faxed a letter to defendant's Acting General Counsel. ROI 37. This letter expressed "deep[] concern" over defendant's failure to provide plaintiff with reasonable accommodation, and complained that Ms. Ferguson's supervisors had been harassing the plaintiff. Id. The letter further stated: "I would appreciate it if the demand that Ms. Ferguson provide additional medical reports be rescinded." Id.

On August 1, 1995, Ms. Ferguson apparently called Mr. Hicks from her doctor's office. Pl.'s Stmt. of Facts, 35. Mr. Hicks testified that, during this conversation, he told Ms. Ferguson that she could not return to work immediately because she had not yet seen the doctor and did not have a return to work certificate. Hicks Dep. at 91-92. Ms. Reinckens testified that Mr. Hicks informed her that Ms. Ferguson had called and was attempting to see the doctor. Reinckens Dep. at 104-106. On August 2, 1995, Ms. Ferguson called Mr. Hicks again and left two messages indicating that she had seen the doctor and did not have a return to work certificate, but would fax something to Mr. Hicks. Reinckens Dep., Ex. 3. On August 3, Ms. Ferguson faxed a note from her doctor to two different fax numbers at the Museum, indicating that she would have to be on medical leave until August 25, 1995. Id. at 128. Ferguson argues that she was entitled to unpaid leave under the FMLA if the Museum did not wish to provide her paid medical leave during August. Pl.'s Stmt. of Facts 57, 58.

Ms. Reinckens was the responsible agency official who recommended Ms. Ferguson's termination. Pl.'s Stmt. of Facts, 41. Ms. Reinckens first discussed the possibility of terminating plaintiff with some of her colleagues in early August. Reinckens Dep. at 83. Ms. Reinckens first met with Director Newsome, and then discussed the possibility of terminating plaintiff at a larger management meeting. Id. at 84. According to Ms. Reinckens, Mr. Newsome was angry, frustrated and upset about the letter received from attorney June Kalijarvi. Id. at 208, 236-37. At deposition, ...


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