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Norden v. Samper

August 3, 2007

BETH M. NORDEN, PLAINTIFF,
v.
CRISTIAN SAMPER*FN1 ACTING SECRETARY, SMITHSONIAN INSTITUTION, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This is that rare case in which a plaintiff wins on summary judgment. Plaintiff Beth M. Norden contracted Dengue Hemorraghic Fever ("DHF") in 2000 while traveling in Brazil on the business of her employer, the Smithsonian Institution. The disease nearly killed her and has left her with the permanent presence of dengue antibodies that cause her to suffer from continuing physical and mental ailments. After years of recovery and unsuccessful efforts to return to work part time, in late 2003 Dr. Norden's doctors assured the Smithsonian that she could work a full 40-hour week if she received proper accommodations. In response, the Smithsonian conditioned Dr. Norden's return to work on retaliatory and illegal terms and, when she asked for better accommodations for her genuine disability, it fired her. The Smithsonian does not defend its conduct by arguing that Dr. Norden could not fulfill the essential functions of her job; rather, it asserts that she was not disabled at all. This defense being patently contrary to the undisputed facts, partial summary judgment will be granted to Dr. Norden. Specifically, the Court finds that the Smithsonian violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., when it failed and refused to return Dr. Norden to work in 2004 and discharged her. The factual record is insufficient, however, to rule on whether the Smithsonian also violated Dr. Norden's rights when it put her on unpaid leave in November 2002.

I. FACTUAL BACKGROUND

Dr. Norden holds a Ph.D in entomology.*fn2 Pl.'s Statement of Material Facts Not at Issue ("Pl.'s Facts") ¶ 1. She worked at the Smithsonian's Department of Entomology at the Museum of Natural History for approximately 15 years. Id. Before contracting DHF, Dr. Norden consistently received positive performance evaluations. Id.; see also Def.'s Statement of Material Facts Not at Issue ("Def.'s Facts") Ex. 26. She was awarded a Fulbright Fellowship to perform research in Sri Lanka and she has published over 50 professional papers in her field. Pl.'s Facts ¶

2. The vast majority of Dr. Norden's work at the Smithsonian required little supervision, and she worked very long hours, often alone, on weekends and evenings. Id. ¶ 3.

In the summer of 2000, Dr. Norden contracted DHF while in Brazil in support of a Smithsonian research project conducted by Dr. Ted Schultz. Id. ¶ 4; Reply Aff. of Beth Norden ¶ 86. The DHF caused a near-fatal level of hemorrhage that required approximately three weeks of hospitalization. Pl.'s Facts ¶ 5. The infection affected all of Dr. Norden's organ systems in different ways: she suffered neurological damage, including brain trauma; an impaired immune system; and a damaged circulatory system in the form of an increased tendency for her capillaries to bleed. Id.

After leaving the hospital, Dr. Norden spent months in intense pain and encephalitic confusion, unable even to read a newspaper competently.*fn3 Id. ¶ 6. Although her condition improved during the next year, her neuropsychologist documented cognitive impairment in the areas of attention and information processing speed, learning and memory, and performance on timed measures of mental flexibility. Id. In April and May 2001, Dr. Norden took a series of neurological tests at Georgetown University. Id. She tested at the 16th percentile for auditory attention span; at the 5th percentile for a test that measured auditory, working memory, and processing speed; and at the 14th percentile for verbal learning. Id. By January 2003, however, the same tests revealed that Dr. Norden's intellectual capacity had returned to a "high level of cognitive function." Id. ¶ 7; Pl.'s Ex. 2.

Dr. Norden spent almost the entire period from September 2000 to April 2002 on complete disability. Pl.'s Facts ¶ 8. She attempted a return to work in 2001 at 12 hours per week, but after four months her doctors determined that even this limited schedule was too physically stressful for her to continue. Id. Records of her illness and impaired functioning were sent to the Smithsonian's physician, Dr. Thomas Lawford, and there appears to be no dispute that Dr. Norden was too ill to work at that time. Id. ¶ 9.

In early 2002 Dr. Norden informed the Smithsonian that she was ready to return to work on a part-time basis. Id. ¶ 12. Her physicians and neuropsychlogist supported her return to work with accommodations, and Dr. Lawford was provided access to her medical records in order to make his own assessment. Id. ¶¶ 13-14. At that time, Dr. Norden had demonstrated substantial cognitive improvement and no longer suffered from acute dengue infection; she did, however, continue to suffer from intense fatigue and other symptoms, such as debilitating migraines. Id. ¶¶ 15-16. Dr. Norden's doctors made clear that the light-duty hours were temporary and that her hours could be reevaluated at the end of 2002. Id. ¶ 16. Both her neurologist and Dr. Lawford advised the Smithsonian that Dr. Norden needed "flex time" as an accommodation so that she could go to her many doctors' appointments and take time off when she suffered a migraine or other symptoms of her illness. Id. ¶ 19.

After Dr. Norden returned to work in April 2002 she began to have difficulties because the museum contained high concentrations of naphthalene, a chemical used to protect insect specimens from being eaten by live insects. Id. ¶ 21. Specifically, Dr. Norden suffered persistent and severe nosebleeds that would abate only when she left her work area on the second floor and remained outside the presence of naphthalene for an extended period of time. Norden Aff. ¶ 22. The naphthalene also caused Dr. Norden to suffer frequent and severe migraine headaches and diminished her ability to concentrate. Id. Dr. Norden made several requests for some accommodation to reduce or eliminate her exposure to naphthalene. Pl.'s Facts ¶ 26. The parties dispute whether the Smithsonian failed to provide appropriate protection for Dr. Norden to assist her in avoiding naphthalene fumes or whether Dr. Norden refused to accept the protection offered. Id.

¶¶ 27-40; Def.'s Fact Response ¶ 27. The Court does not need to resolve this dispute. Suffice it to say that by October 2002, Dr. Lawford sent a memo to Smithsonian management that noted that Dr. Norden has progressively exhibited symptoms, including nosebleeds, intense headaches, and nausea. Both hemorrhagic fever, and naphthalene, can cause these symptoms, as well as hematological dysfunction. . . . In Dr.

Norden's case, the two conditions appear to be acting in concert to aggravate her symptoms considerably. . . . We ask that you notify us as soon as possible to the course of actions to be taken to minimize naphthalene exposure to Dr. Norden in the course of her work.

Pl.'s Ex. 15.

Dr. Lawford then met with Dr. Schultz and Marilyn Slomba, of the Smithsonian's Labor and Employee Relations office, to discuss Dr. Norden's exposure to naphthalene. Pl.'s Ex. 16. Dr. Schultz asked Ms. Slomba if "we have to offer light duty" and was told "not if it is insufficiently productive toward the departments [sic] goals." Id. Thus freed from an obligation he did not like, Dr. Schultz promptly issued a November 18, 2002, memo to Dr. Norden informing her that her light duty accommodation would be terminated at the end of the month. Def.'s Ex. 3. No explanation was provided. See id. Dr. Norden was returned to 100% disability status on worker's compensation. See Pl's Facts ¶ 36.

After receiving the memo, Dr. Norden sent an email to numerous people asking, "How do I know when it might be safe to return if it is the naphthalene which is activating my current blood problems?" and "Will anything dealing with my exposure be different on return, or is my return based upon no longer being sensitive to naphthalene?" Pl.'s Ex. 18. Dr. Lawford responded, "Re when might it be safe to return to (some) naphthalene. That is an issue where I am in standby waiting for your docs to take the lead in advising. . . ." Pl.'s Ex. 19. Smithsonian Program Manager of Cultural Diversity/Affirmative Action Carol Glover sent Dr. Norden an email telling her that "[t]he goal is for you to successfully return to your job full time." Pl.'s Ex. 20. A co-worker sent Dr. Norden an email to tell her that Dr. David Furth, Dr. Norden's co-supervisor, had said that "as of November 30th you have been given a year off to try and recuperate fully." Pl.'s Ex. 21.*fn4 Dr. Norden replied to both the co-worker and Dr. Furth, stating, "I had not known before how compassionate our dept. could be. Happy holidays to you both, hold the fort!" Id.

But Dr. Norden was not happy to be out of work, and in April 2003 she filed an informal EEO complaint alleging that the Smithsonian had failed to accommodate her disability. Pl.'s Facts ¶ 59. She also began receiving therapy from Dr. Donald Oberg, who diagnosed her as suffering from Major Depressive Disorder, Recurrent Severe without psychotic features, and Post-Traumatic Stress Disorder. Id. ¶¶ 59-60. These psychological conditions have caused Dr. Norden to experience problems socializing, sleeping, and eating. Id. In addition, she has experienced poor self-image and an inability to take pleasure in life. Id. ¶ 60.

On November 5, 2003, approximately one year after Dr. Norden's part-time assignment was terminated, Dr. Schultz sent Dr. Norden a letter saying that the Smithsonian was permanently terminating her employment. Def.'s Facts ¶ 16; Def.'s Ex. 6. Dr. Schultz described the history of Dr. Norden's attempts to return to work after contracting DHF and concluded that, based on her "medical limitations," she could not "perform the essential functions of [her] position." Def.'s Ex. 6. Dr. Norden responded on November 13, 2003, that she was ready to return to work full time with accommodations for naphthalene sensitivity, "flex time" to accommodate her many doctor appointments and migraine headaches, and an absence of retaliation and hostility from the Smithsonian. Def.'s Ex. 7. One month later, Dr. Schultz sent a memo to his superiors with the subject line, "My resignation as Norden's supervisor," which stated in part:

I want to make it perfectly clear that in the event that Beth Norden returns to duty in the Department of Entomology, I will not serve as her supervisor. . . .

In her letter of 13 November 2003, transmitted via her attorney Vickie Fang, Beth requests a "protocol" to protect her from the "retaliation" and "continued hostility" that she expects to encounter when she returns. Given this fear, and given the events that have transpired during the three years since Beth contracted dengue fever, I think a "fresh start" is in the best interests of both Beth and myself. In my opinion, Beth should be assigned to another supervisor and another unit, ideally outside of Entomology.

Pl.'s Ex. 30 (boldface in original).

Dr. Schultz's ultimatum notwithstanding, the Smithsonian asked Dr. Norden to submit updated medical records. Pl.'s Facts ¶ 66. Dr. Norden provided letters from her doctors, which were reviewed by Dr. Lawford. Id. ¶ 67; Def.'s Exs. 8-10. Dr. Lawford also spoke with Dr. Norden's doctors and with her, Def.'s Facts ¶ 21, and, based on his review, he drafted a report advising Ms. Slomba as follows:

Her illness and outage are an accepted [Office of Workers' Compensation Programs] case, caused by her contracting a near fatal mosquito-borne disease while on the job in Brazil in August of 2000. This was/is a multisystem disease which affected her physically, mentally and neurologically. Her last return to work in her department, Entomology, was from April to November in 2002 at 20 hours per week. Her department felt that they could not continue with this accommodation.

Overall Recovery: Both providers advise me that she has, albeit slowly, made great progress in recovery from her cluster of symptoms. While her disease is still present in vastly diminished form, it is considerably improved from the period she attempted work at 20 hours per week. They both feel that she is now capable of performing her full duties for 40 hours per week. . . .

Dr. Oberg has (successfully) been treating her for a mental state of dysfunctionality caused by "a state of devaluation" and her perception of punishment by the combination of her disease and her management's unacceptance. He advises that for her to remain mentally healthy and fully functional, she should be given work that is as mentally demanding as the "work she performed prior to contracting" her disease. He says that "this is particularly important in that doing less intellectually demanding work in all likelihood will . . . deprive her of the intellectual stimulation essential to neurological recovery" and possibly resurrect her former mentally dysfunctional status.

Migraines - naphthalene Beth has a history of migraine headaches. They occurred sporadically before her disease process began in August of 2000. After her disease began in August of 2000 the migraines were almost nonstop, requiring narcotics. Their frequency and intensity gradually lessened over the next several years. Beth discovered upon her attempts to return to work that naphthalene . . . would trigger a migraine. . . . Both of her providers are certain, as am I, that the naphthalene trigger is a feature generated by her August 2000 disease.

Dr. Oberg writes that for her return to be successful she "would require protection from exposure to naphthalene -- this would include both atmospheric exposure and direct contact due to specimen handling. Dr. Norden's sensitivity to naphthalene is a direct consequence of the (diagnosis August 2000) [sic]."

Dr. Granite writes that "I believe that she is a strong candidate for . . . [c]ontrol procedures to limit her exposure to naphthalene." He earlier said in his letter that the August 2000 disease causes her to have capillary fragility and easy bleeding which is triggered by naphthalene. This easy bleeding in turn triggers migraines. I concur in this.

Both providers advised that management should be prepared for her need for "flex time." . . . They are strictly speaking of any time lost to leaving work from a migraine, which she might want to make up another day. Of even more consequence, however, is the fact that Beth has numerous medical appointments each month. Some she can schedule outside of work hours, others she cannot. . . .

Migraine Frequency Beth is, at this stage in recovery down to having typically two, sometimes three migraines in a month's time. Her providers agree with this figure. The question I know management wants to ask me is "What will be the frequency once she re-enters the naphthalene ambient atmosphere [in] her department?" I have asked both providers, and even asked Beth. No one knows. Her overall disease process and its symptoms have lessened since she last worked 20 hours per week, so I would hold that she should experience less migraine frequency in the workplace than she had one year ago.

Def.'s Ex. 10. Dr. Lawford ended his memo recommending that Dr. Norden return to work. Id.

Several months later, in April 2004, Dr. Norden received a return-to-work proposal, from the Smithsonian ("the RTWP"), which was comprised of two separate documents: a Work Plan that specified, among other things, the type of work that Dr. Norden would be assigned when she returned to work; and a "Settlement Agreement," which imposed further terms and conditions on Dr. Norden's continued employment at the Smithsonian. Pl.'s Facts ¶ 69; Def.'s Exs. 11-12. Under the Work Plan, Dr. Norden would perform collections work almost exclusively; she would not perform any research or writing projects similar to the work she did before contracting DHF. Def.'s Ex. 12. Because the collection work involved dealing with preserved insect specimens, it would require prolonged daily exposure to high concentrations of naphthalene. Pl.'s Facts ¶ 72. The Work Plan also detailed specific tasks and the length of time allowed to complete them. See Def.'s Ex. 12. For instance, in "Month 3," Dr. Norden was to "crea[te] and affix all drawer labels needed in the Odonate envelope collection (3 days); take data, create & affix labels to the Mallophaga collection drawers (3 days); and upgrade and inventory the Tiphiid collection (13 days)." Id. From the outset, the Smithsonian made clear that it was unwilling to negotiate the "work assignments" and "standards" that were described in the Work Plan. Pl.'s Ex. 5 at p. 1.

The other component of the RTWP, the so-called "Settlement Agreement," purported to provide the accommodations that Dr. Norden requested and imposed other conditions on Dr. Norden's return to work. See Def.'s Ex. 11. That document indicated that Dr. Norden would receive an office on the fourth floor, away from the insect collections, and a respirator but not a portable air filter, as she had requested, because "the Smithsonian Office of Environmental Safety had determined [it] would be ineffective." Id.; Pl.'s Facts ¶ 71. It also included an Alternative Work Schedule, requiring Dr. Norden to work from 8:00 a.m. to 5:30 p.m., Monday through Friday, with the second Friday of the pay period off, during which she could work as needed to make up any missed hours. Def.'s Ex. 11. Dr Norden would not be permitted to "perform work outside of these hours." Id. The Settlement Agreement also included the following paragraphs:

* Dr. Norden agrees to meet her performance standards by accomplishing the tasks outlined in her work plan in an accurate and timely manner, and to demonstrate satisfactory and punctual attendance . . . .

* Dr. Norden's supervisors will review her performance and her attendance every 320 hours (8 weeks) and on an as-needed basis, to assess and provide feedback on her success in meeting the standards established in the performance plan as specified in her work plan.

* The Smithsonian agrees to hold Dr. Norden's separation in abeyance while she demonstrates satisfactory performance and attendance as shown by compliance with this agreement, as judged at the end of each 320-hour (8-week) review cycle. Absences will not be acceptable reasons for not meeting the work plan and performance requirements.

* The parties understand that it is critical that Dr. Norden adhere to each of the provisions of this agreement and that any failure to adhere to those provisions, as evaluated at the end of each 8-week review cycle, will result in her separation from the rolls of the Smithsonian as ...


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