MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re Document No.: 75
The plaintiff commenced this action against his employer, the Federal Aviation Administration ("the FAA" or "the defendant"), asserting claims of retaliation and disparate treatment based on race, gender, age and disability, in violation of various federal statutes including the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. The court previously granted summary judgment to the defendant, a decision which the plaintiff subsequently appealed. The Circuit affirmed in part but reversed the portion of the court's ruling regarding the plaintiff's claim that the defendant violated the Rehabilitation Act by failing to provide a reasonable accommodation for his disability -- the only claim remaining at this juncture.
The case is now before the court on the defendant's second motion for summary judgment, in which it asserts that the plaintiff failed to provide the defendant adequate notice of his alleged disability or provide sufficient medical documentation in support of his requested accommodation. The defendant also maintains that even if the plaintiff had provided notice and proper documentation, the plaintiff received a reasonable accommodation for any alleged disability. The court determines that because a genuine dispute of material fact exists with regard to these issues, summary judgment must be denied.
In 1995, while working as a Division Manager at the FAA, the plaintiff suffered a workplace injury, sustaining injuries to his shoulder, hip and back. Pl.'s Statement of Genuine Issues of Material Fact ("Pl.'s Statement") ¶¶ 1-2. The plaintiff's supervisor at the time approved a Telecommuting Agreement allowing the plaintiff to work from home beginning in November 1995 ("1995 Telecommuting Agreement"). Id. ¶ 3. He was also granted a "maxi-flex schedule" which permitted the plaintiff to determine the hours he would work within every two-week, eighty-hour pay period.*fn1 Pl.'s Opp'n to Def.'s 2d Mot. for Summ. J. ("Pl.'s Opp'n"), Pl.'s Decl. ¶ 5.
In April 1996, Carson Eoyang ("Eoyang") became the plaintiff's supervisor. Id. ¶ 8. Because the plaintiff was away on detail to another agency at the time, the plaintiff actually began working with Eoyang in February 1997. Id. ¶ 7. During the time that the plaintiff was on detail he continued to receive his maxi-flex schedule and telecommuting privileges. Id. ¶ 5.
In May 1997, the plaintiff took medical leave for a shoulder surgery related to his 1995 accident. Id. Days after his surgery, the plaintiff submitted to the defendant a preliminary medical report from his surgeon, Dr. Edward McFarland, indicating that the "extent of his recovery, disability and return to duty would be determined in [future medical reports]" and explaining that the plaintiff had been referred to an orthopedic specialist, Dr. Claudia Thomas for his "back and hip." Pl.'s Opp'n, Ex. I ("Dr. McFarland's Preliminary Report, May 7, 1997") at 1.
In the months following his surgery, the plaintiff submitted updated medical reports by Drs. McFarland and Thomas to the Office of Workers' Compensation Program ("OWCP"). Pl.'s Statement ¶¶ 9, 23. According to the plaintiff, he provided the OWCP with all of his doctors' reports beginning after his 1995 accident to allow the OWCP to process his workers' compensation payments. Pl.'s Statement ¶ 23. Dr. McFarland's November 1997 report indicated that the plaintiff was having pain in his shoulder, back and hip, and recommended that the plaintiff "cut back on his activity" to help ease the pain. Pl.'s Opp'n, Ex. 3 ("Dr. McFarland's Report, Nov. 17, 1997") at 1. Dr. Thomas's December 1997 report focused on the plaintiff's back problems, noting that the plaintiff was struggling with prolonged periods of walking, sitting and standing due to "chronic low back pain, secondary to L5-S1 facet degeneration." Pl.'s Opp'n, Ex. 4 ("Dr. Thomas's Report Dec. 9, 1997") at 1.
Around the same time, the OWCP referred the plaintiff to another orthopedic surgeon, Dr. Levitt, in an effort to obtain a second and independent opinion regarding the plaintiff's impaired status. Pl.'s Opp'n, Ex. 2 (Dr. Levitt's Independent Medical Examination, Dec. 4, 1997 ("IME")) at 1. Dr. Louis Levitt determined that although the plaintiff's shoulder injury had resulted in a permanent impairment and that the plaintiff should "avoid repetitive use of his arms above shoulder level," it did not compromise his work capability or prevent him from handling his "pre-injury level of work responsibilities." Id. at 2-3; Def.'s Statement of Material Facts ("Def.'s Statement") ¶ 8. Furthermore, Dr. Levitt concluded that the plaintiff's back and hip appeared "entirely normal" and found "no active pathology . . . as residual of his September 1995 accident." Id. at 3. Notwithstanding the plaintiff's assertion that he could not "handle his normal work responsibilities" given his increasing back and hip pain, Dr. Levitt concluded that there was "no basis to permanently restrict his work or avocational activities." Id.1-2.
Following Dr. Levitt's IME, the plaintiff submitted two additional examination reports by Dr. McFarland to the OWCP. Pl.'s Statement ¶¶ 13-14. In his January 1998 report, Dr. McFarland identified continued pain in the plaintiff's shoulder and low back and determined that the plaintiff had not yet reached a "maximum level of improvement" from his shoulder operation. Pl.'s Opp'n, Ex. J ("Dr. McFarland's Report, Jan. 16, 1998") at 2.*fn2 Dr. McFarland specifically recommended that the plaintiff limit any lifting over one pound and that upon returning to work in February he work only three to four hours per day, steadily increasing his hours after four to six weeks. Id. Dr. McFarland also noted that Dr. Thomas was treating the plaintiff for pain in his lower back and hips. Id. at 1. Dr. McFarland's February 1998 report mainly reiterated his previous findings, adding only that over the next three months the plaintiff should "continue his therapy, medication, evaluation, etc. in order to reach maximum recovery level." Pl.'s Opp'n, Ex. 8 ("Dr. McFarland's Supplemental Report, Feb. 3, 1998") at 1.
In February 1998, after nine months on medical leave, the plaintiff returned to work on a part-time basis, gradually increasing his hours until he returned full-time in March 1998. Id. ¶¶ 12-13. Upon his return to work, the plaintiff was permitted to resume his maxi-flex schedule and telecommuting privileges. Pl.'s Decl. ¶ 14. In early February 1998, however, Eoyang sent the plaintiff a memorandum notifying him that the FAA would be re-assessing the plaintiff's "tour of duty, restrictions, and capabilities" in light of his medical reports. Def.'s 2d. Mot. for Summ. J. ("Def.'s 2d Mot."), Ex. 12 ("Eoyang's Feb. 9, 1998 Memorandum") at 1. Indeed, internal communications between the plaintiff's supervisors suggest that around this same time, they were considering whether or not to continue the plaintiff's requested maxi-flex and telecommuting accommodations. See Pl.'s Opp'n, Ex. 12 (Patricia Pointer's Memo, Feb. 18, 1998) at 1 (noting that "telecommuting may well be a reasonable accommodation to [the plaintiff's] disabling condition").
In April 1998, Eoyang requested that the plaintiff submit updated medical documentation so that Eoyang could determine whether continuing the plaintiff's maxi-flex and telecommuting schedule would be an appropriate accommodation for his impairments. Def.'s 2d Mot., Ex. 15 (Eoyang's Letter, Apr. 30, 1998) at 1. In response, the plaintiff notified Eoyang that his medical documentation "was filed with [the] OWCP" and had been reviewed by an FAA personnel specialist "over thirty days ago." Pl.'s Opp'n, Ex. L (Pl.'s May 1, 1998 E-mail) at 1. According to the plaintiff, all of his medical reports that were filed with the OWCP were provided to the FAA and handled by Ms. Barbara Williams who was in charge of managing OWCP claims and related matters for the FAA. Pl.'s Statement ¶ 5.
Additionally, Dr. McFarland faxed a letter to the FAA on May 1, 1998, in which he stated that [i]t is indicated in my report from [January 1998] that [the plaintiff] should return to regular full time administrative duties as a senior management official, with appropriate accommodations. I think [the plaintiff's] request for a flexible work schedule is reasonable, particularly in light of [his] back problems. Any accommodations that could be made at work to prevent increased stress in [his] shoulder would be recommended.
Def.'s 2d. Mot., Ex. 16 (Dr. McFarland's Letter, May 1, 1998) at 1. Upon receiving Dr. McFarland's letter, Eoyang sent the plaintiff an e-mail requesting that he "advise as to what specific accommodations and flexibilities [he would] need." Def.'s Statement ¶ 22 (Eoyang's May 18, 1998 E-mail).*fn3 Less than two weeks later, Dr. McFarland sent the FAA a second letter, explaining that his evaluation of the plaintiff on May 27, 1998 had revealed that the plaintiff had a thirty percent impairment rating based on the American Medical Association's guidelines, Pl.'s Opp'n, Ex. 9 ("Dr. McFarland's Letter, May 29, 1998") at 1; see also Def.'s 2d Mot, Ex. 17 ("Dr. McFarland's Report, May 27, 1998") at 1. Dr. McFarland concluded that "[a] flexible work schedule would be compatible with the patient's impairment."*fn4 Id.
Unsatisfied with the level of specificity in the plaintiff's medical reports, Eoyang discontinued the plaintiff's maxi-flex schedule and telecommuting privileges on September 3, 1998. Def.'s 2d Mot., Ex. 19 ("Eoyang's Sept. 3, 1998 E-mail") at 1-2. Through an e-mail, Eoyang informed the plaintiff that:
[w]hile I am willing to consider some flexibilities, please be advised that I can no longer accommodate a schedule whereby I do not know from day-to-day whether you will report to the office or not . . . . Any request to telecommute in the future must be discussed with me and . . . any future absence from the office must ...