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Duncan v. Harvey

March 28, 2007


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


Plaintiff Beverly Duncan brings this action against Francis Harvey, in his official capacity as Secretary of the Army,*fn1 under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112, the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq ("Title VII"). Plaintiff alleges that the Army failed to accommodate her disability when she was a medical technologist at the Walter Reed Army Medical Center. Plaintiff also claims that defendant engaged in race discrimination and retaliation. Currently pending before the Court is defendant's motion for summary judgment, which argues that plaintiff cannot establish a prima facie case of discrimination as to disability, race, or retaliation. Defendant also asserts that plaintiff was terminated for legitimate, non-discriminatory reasons. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court determines that plaintiff has failed to put forth sufficient evidence to create a genuine issue of fact as to disability discrimination, race discriminations or retaliation. Therefore, for the reasons stated herein, defendant's motion for summary judgment is GRANTED.


Duncan, an African-American female, was employed as a medical technologist at the Walter Reed Army Medical Center from January 8, 1995 to July 2, 1999. Compl. ¶ 5. She worked in the Department of Cellular Pathology. Id. Her job duties included pipetting (transferring small amounts of liquid from one container to another using a mechanical device), opening and closing tubes, conducting inspections, performing chemical and supply inventories, and updating quality control manuals. Id. ¶ 8.

On June 2, 1997, plaintiff developed a work-related injury diagnosed as "bilateral tendinitis with a rotator cuff tear." Id. The injury was caused by the repetitive wrist motions associated with pipetting, and resulted in "debilitating pain" in plaintiff's back, shoulders, and arms. Id. On June 4, 1997, she was placed on medical leave. Id. On November 18, 1997, plaintiff returned to her position in the Department of Cellular Pathology but was sent home after only six hours of work due to an inability to perform pipetting. Id. ¶ 10.

On December 4, 1997, plaintiff was given a light duty assignment in the Department of Personnel working as a receptionist. Id. ¶ 11. This position ended on February 28, 1998, when the position was contracted out. Id. During her time at the Department of Personnel, plaintiff met with an Equal Employment Opportunity ("EEO") officer to complain about harassing behavior and discriminatory treatment by her supervisors. Id. ¶ 13. On January 22, 1998, plaintiff wrote a letter to her supervisors informing them of her meeting with the EEO officer.

On June 11, 1998, defendant offered plaintiff a position as a library technician. Id. ¶ 14. This position involved no pipetting, and the job description was approved by plaintiff's physician. See Hr'g Tr., Def.'s Ex. 1, at 35 (Lichy Test.). Despite her medical clearance, plaintiff rejected the job several months later claiming that the position would exacerbate her rotator cuff tear. Compl. ¶ 14.

On February 11, 1999, Dr. Lichy, plaintiff's supervisor, sent her a warning letter which explained that she would be removed from her position unless she returned to duty immediately or scheduled a meeting to discuss her medical limitations. See Lichy Aff. Attach., Def.'s Ex. 3, at 2 [hereinafter Lichy Warning Letter]. In response to this letter, plaintiff scheduled a meeting with Lichy on February 17, 1999. Compl. ¶ 18. During this meeting, plaintiff "discussed her ability and desire to return to the Department and how the Department's purchase of certain automated equipment decreased or eliminated the repetitive motions that she was unable to perform." Id. A memorandum by Lichy notes that they "discussed her options of returning to work in her previous capacity, accepting the offer of an alternative job [as a library technician], pursuing medical retirement, or resigning her position." Pl.'s Ex. C at 2 (memo. for record dated Feb. 17, 1999) [hereinafter Feb. 17 Memo.].

After this meeting plaintiff wrote Lichy a letter which included a list of requested accommodations. Lichy Aff. Attach. at 3-4 (letter from Duncan to Lichy dated Feb. 19, 1999) [hereinafter Duncan Feb. Letter]. Plaintiff's proposed accommodations included (1) restructuring her position to eliminate pipetting, (2) creating or upgrading her to a supervisory position, or (3) supporting her through a four-year educational program. Id.

Rejecting these accommodations as unreasonable, Lichy recommended plaintiff be removed from her position. Compl. ¶ 19; see also Pl.'s Ex. C at 7-8 (letter from Lichy to Duncan proposing removal dated Mar. 30, 1999) [hereinafter Lichy Removal Letter]. A letter from Lichy to plaintiff explained that she had the right to oppose her recommended removal, and encouraged plaintiff to submit "any and all evidence you feel is relevant to the case." Id. at 8. On April 3, 1999, plaintiff responded to Lichy's proposed removal letter by requesting copies of all information that would be considered in the final decision-making process. See Pl.'s Ex. C at 9 (letter from Duncan to Lichy dated Apr. 3, 1999). She also attached a copy of her "latest medical update" to the letter. See generally Pl.'s Ex. C at 10 (work capacity evaluation dated Feb. 11, 1999) [hereinafter Duncan Work Capacity Evaluation]. On April 22, 1999, plaintiff's attorney also responded to Lichy's proposed removal letter, and reiterated plaintiff's opposition to the proposed removal. See id. at 14 (letter from David Branch, Esq. to Col. Becker dated Apr. 22, 1999).

On May 19, 1999, plaintiff filed a formal EEO complaint, claiming race discrimination, failure to accommodate, and retaliation. She also argued that the library technician position was an unreasonable accommodation. Compl. ¶ 21.

Plaintiff was formally removed from her position on July 2, 1999. An agency memorandum written on June 25, 1999, explained that the basis of plaintiff's removal was her prolonged unavailability for duty and her ongoing inability to perform the essential duties of her position including pipetting. Pl.'s Ex. C at 20-21 (letter from Col. Becker to Duncan). The memorandum concluded that because plaintiff "decline[d] a formal offer, approved by [her] attending physicians, for reassignment to a position in the AFIP library," her removal was justified. Id. at 21.

On January 4, 2000, plaintiff filed a second formal EEO complaint alleging that defendant discriminated against her on the basis of race and disability when she was removed from her position. Compl. ¶ 26. Plaintiff filed a complaint in this Court on September 24, 2004, claiming disability discrimination, race discrimination, and retaliation. On May 25, 2006, defendant moved for summary judgment.


Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by ...

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