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.
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
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.
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.
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