The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff Jason Cannon, a former employee of the Internal Revenue Service ("IRS"), brings this suit pursuant to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § § 701 et. seq., against Secretary of the Treasury Henry M. Paulson, Jr. This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 24]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is denied as to Count I of the Complaint, and granted as to Count II.
Plaintiff, who was fifty-two years old when this case was filed, was previously employed as a telecommunications specialist with the IRS. According to the Complaint, he suffers from a number of medical conditions, including heart disease, depression, panic disorder, nephrotic syndrome, anemia, and sleep apnea. He alleges that his sleep apnea, depression, and panic disorder substantially limit major life activities, such as his short-term memory, ability to concentrate, and ability to interact with others.
Like all employees in his section, Cannon was permitted to telecommute four days a week from home. As an accommodation, he requested that he be allowed to work five days a week from a General Services Administration telecommuting center in Stafford, Virginia, approximately three miles from his home. (Stafford is approximately seventy-five miles from IRS headquarters in Washington, D.C.). The Defendant claims that he made this request because his physician advised him that the telecommuting center would provide a more structured environment. Plaintiff claims that this accommodation request was denied. The Defendant contends that Cannon withdrew the request before it was acted upon.
The Complaint alleges that in April 2002, Cannon's supervisor, Linda Wallace, pressured him into submitting his disability retirement paperwork by that May. The Defendant contests this account, arguing that Cannon considered various options, but voluntarily chose to apply for disability retirement in May 2002.
On July 11 2002, Cannon filed an EEO complaint requesting that he be allowed to work from the Stafford telecommuting center. He claims that this request was denied.
On September 30, 2002, Cheryl Opalack, an IRS physician, wrote that Mr. Canon [sic] suffers from a chronic serious medical condition which effects [sic] his activities of daily life. Whether his condition will improve over the long term is in question; however, this employee is very motivated to work and the accommodation requested would allow him to perform his job most efficiently. This employee, therefore, meets the medical criteria for ADA and I would recommend that his accommodation be instituted.
Letter from Cheryl Opalack to Rona Evans (IRS EEO Officer), Sept. 30, 2002 (Investigative File, p. 404).
Cannon retired due to disability on September 12, 2003. He claims that his retirement was forced on him and amounted to a constructive discharge in violation of the Rehabilitation Act. The Defendant argues that Cannon's decision to accept disability retirement was voluntary.
Cannon's initial EEO complaint did not allege constructive discharge. On August 11, 2004, he filed a motion to amend his administrative complaint to include the constructive discharge claim. Plaintiff then filed suit in this Court before the administrative law judge could rule on his motion to amend. According to two sworn declarations submitted by the Defendant, and based upon a review of the Defendant's files and incoming mail and facsimile logs, the Defendant was never served with a copy of the motion.
Plaintiff's Complaint alleges two causes of action. In Count I, Plaintiff alleges that the Defendant failed to make reasonable accommodations for his disability in violation of the Rehabilitation Act. In Count II, Plaintiff claims that he was constructively discharged in violation of the ...