The opinion of the court was delivered by: Gladys Kessler United States District Judge
This case presents the following bizarre situation. A highly qualified and experienced specialist in tax law, working for the Internal Revenue Service ("IRS") at the Department of the Treasury, employed at a GS-14, Step 6 level, had no substantive work to do and therefore sought a transfer to the IRS Office of Chief Counsel where she had worked at an earlier time, had performed with distinction, and had received a cash bonus as well as a Certificate of Merit. Because of the lack of substantive work, which the Government does not deny, the Plaintiff's pre-existing chronic, but mild and controllable, depression was exacerbated and deepened into a case of severe chronic depression. The Government seeks to block the transfer she seeks--not on the ground that she is not qualified to handle the work, not on the ground that she is not doing the work assigned to her at the IRS--not on the ground that the transfer is legally forbidden--but on the ground that such a transfer is not legally mandated. The practical result of the position the Government is taking in this case is that it would rather have the Plaintiff sit at her desk at the IRS doing virtually nothing, receiving a substantial salary ($79,999 in 1999) from the taxpayers of this country, than transfer her to the Office of Chief Counsel, which had 57 open attorney positions during the relevant period of time and where she had already served with dedication and success.
Plaintiff Tessa E. Bergman,*fn1 an employee of the IRS, brings this suit alleging disability discrimination and retaliation in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 et seq., against Henry M. Paulson, Jr. in his official capacity as Secretary of the Treasury. This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment as to the disability discrimination claim [Dkt. No. 29] and the Government's Motion for Summary Judgment as to all claims [Dkt. No. 31]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiff's Motion for Partial Summary Judgment is granted and the Government's Motion for Summary Judgment is denied.
Plaintiff Tessa Bergman is a 1978 graduate of the University of North Carolina School of Law and received an L.L.M. degree in taxation from Georgetown University in 1982. From 1984 to 1988, she was employed as an attorney with the IRS Office of Chief Counsel, where she was awarded a Certificate of Merit and a cash bonus for her work. Following her work at the Office of Chief Counsel, she worked as a tax attorney for two nationally prominent law firms in Chicago. In 1993, she returned to Washington, D.C. to serve as tax counsel for Representative William Jefferson, and later, Senator John Breaux.
From 1998 to 2000, Plaintiff worked in the IRS Office of Public Liaison ("OPL") in a non-legal role as a GS-14, Step 6 Management Program Analyst. She alleges she had almost no work to do at OPL and that what work she did receive was usually clerical or administrative in nature. Neither party disputes that the position did not involve substantive legal work.
Plaintiff alleges that she has long suffered from mild chronic depression. This mild depression was easily managed with medication and did not interfere with her work. In October 1999 however, her therapist, Dr. Judith Nowak, diagnosed her with acute depression brought about by her lack of substantive work at OPL. On October 22, 1999, Plaintiff submitted a request to the IRS for a reasonable accommodation under the Rehabilitation Act.
At the request of the Government, Dr. Neil Presant, a consultant with the U.S. Department of Health and Human Services, later reviewed at least some of Plaintiff's medical records.*fn3 Based on his review of these records, Dr. Presant wrote a letter stating that it was "very plausible that a major contributor to her depression is low self-esteem resulting from being in a position in which the required work product is not commensurate with her training and abilities." Correspondence from Neil Presant to Joan McIver, Dec. 3, 1999. Therefore, he concluded, "I would recommend from a medical point of view that she be accommodated with a position appropriate to her legal and educational background if there is such a position available in your agency." Id.
According to the deposition testimony of IRS employee Barry Fulcher, given on behalf of the Department of the Treasury pursuant to Fed. R. Civ. P. 30(b)(6), the IRS concluded that it was required to provide a reasonable accommodation for Plaintiff, based on Dr. Presant's findings. Dep. of Barry P. Fulcher, Mar. 19, 2002 ("Fulcher Dep.") at 11-12. Accordingly, the IRS searched for a position for Plaintiff that would involve substantive legal work.
Between early December 1999 and March 27, 2000, there were fifty-seven open attorney positions in the IRS Office of Chief Counsel, Agency's Supplemental Resp. to Complainant's First Set of Interrogatories, Apr. 11, 2002, No. 6 ("Def.'s Supp. Interrog. Resp."), and on several occasions Plaintiff requested reassignment to one of those positions. During this same time period, there were no open attorney positions in the IRS, outside of the Office of Chief Counsel, at Plaintiff's grade level in the Washington, D.C. area.
The Government does not deny that Plaintiff met the minimum qualifications for the Office of Chief Counsel positions. The Government, however, claims that it did not reassign Plaintiff to any of those positions because the Office of Chief Counsel and the IRS were separate appointing authorities.*fn4 The Government argues it was therefore not obligated to reassign Plaintiff to a position at the Office of Chief Counsel under the then-operative language of 29 C.F.R. § 1614.203(g).*fn5
Indeed, during the administrative review before the EEOC, the IRS admitted in response to Plaintiff's interrogatories that she was not offered a position in the Office of Chief Counsel because the IRS "had no legal obligation to place the complainant, an IRS employee, in a position in the Office of Chief Counsel because the Office of Chief Counsel and the Internal Revenue Service are separate organizations with separate personnel authorities." Def.'s Supp. Interrog. Resp. No. 4. Additionally, Susan Nieser, another witness deposed as a Treasury Department designee pursuant to Fed. R. Civ. P. 30(b)(6), testified that Plaintiff was denied a position only because "[s]he was not a part of the IRS Office of Chief Counsel." Dep. of Susan Nieser, Mar. 20, 2002 ("Nieser Dep.) at 18.
Plaintiff also alleges that she was subjected to retaliation after requesting a reasonable accommodation under the Rehabilitation Act on October 22, 1999. In December 1999, after she returned from a two-month absence from work, her supervisor, Barry Fulcher, allegedly informed her that the absence would be charged as absent without leave ("AWOL"), and not as medical leave. Later, Fulcher allegedly monitored Plaintiff's telephone and Internet usage. Additionally, Plaintiff claims that she was given no substantive assignments after returning to work. Fulcher also allegedly imposed "progressive disciplinary action" for Plaintiff's purported failure to repay a workplace loan that she contends had already been repaid. Pl.'s Opp'n at 36. Plaintiff additionally claims that Fulcher refused to grant her religious leave for Hanukkah.
Finally, Plaintiff alleges that David Williams, Chief of the OPL, "pressur[ed] his subordinates to reverse Dr. Presant's opinion, and he even went so far as to have a letter drafted instructing Plaintiff to submit to another medical examination." Id. at 37.*fn6
On March 7, 2000, the Government offered Plaintiff a lower grade position as an estate tax attorney in the IRS Virginia field office. Plaintiff accepted the position and entered into a pay retention agreement with the Government, by which her pay was frozen at her then current pay level of GS-14, step 6. As a result of accepting this position, Plaintiff was no longer eligible for step increases or full cost of living adjustments. She therefore claims $68,328 in lost wages.
After exhausting her administrative remedies in extended proceedings before the EEOC,*fn7 Plaintiff filed her Complaint in this Court, alleging (1) disability discrimination and (2) retaliation in violation of the Rehabilitation Act. Plaintiff filed a Motion for Partial Summary Judgment on her disability discrimination claim. The Government filed a Motion for Summary Judgment as to both claims. Both Motions are presently before the Court.
Summary judgment may be granted "only if" the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words, the moving party must satisfy two requirements: first, demonstrate that there is no "genuine" factual dispute and, second, that if there is it is "material" to the case. "A dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Arrington, (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it might affect the outcome of the case under the substantive governing law. Liberty Lobby, 477 U.S. at 248.
In its most recent discussion of summary judgment, in Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1776 (2007), the Supreme Court said,
[a]s we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 . . . (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 247-48.
However, the Supreme Court has also consistently emphasized that "at the summary judgment stage, the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 248, 249. In both Liberty Lobby and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000), the Supreme Court cautioned that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. In assessing a motion for summary judgment and reviewing the evidence the parties claim they will present, "the Court must draw all reasonable inferences in favor of the non-moving party." Reeves, 530 U.S. at 150. "To survive a motion for summary judgment, the party ...