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Janet Schmidt v. Hilda Solis

September 18, 2012

JANET SCHMIDT, PLAINTIFF,
v.
HILDA SOLIS, SECRETARY OF LABOR, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I conclude that plaintiff has prevailed on her claims for failure to accommodate and for retaliation. Below are my findings of fact and conclusions of law.

FINDINGS OF FACT

Background*fn1

1. From February 1994 to July 2008,*fn2 plaintiff, Janet L. Schmidt, was employed by the Department of Labor ("DOL") in the Employee Benefits Security Administration ("EBSA"), Office of Exemption Determinations ("OED"), as a Pension Law Specialist (GS-12). DEX*fn3 1, 18.

2. Defendant, Hilda Solis,*fn4 is the Secretary of Labor and is being sued in her official capacity. The EBSA is a part of the DOL. Complaint [#1] ¶ 6.

3. Schmidt was responsible for preparing recommended opinions, letters, and Federal Register publications, and engaging in conferences with applicants and her managers, in response to requests for exemptions from the Employee Retirement Income Security Act, ("ERISA").*fn5 11/07/2011 AM Tr. at 100-02; DEX 1.

4. Schmidt suffers from adhesive disease of the pelvis and endometriosis. 11/09/2011 PM Tr. at 4, 7; PEX 1, 9, 11.

5. Her menstrual cycles are abnormal, painful, and often accompanied by profuse and uncontrollable bleeding. Before and during her employment with the DOL, she was losing bowel control, both within and outside of her menstruation cycle. Her condition worsened as she matured. 11/07/2011 AM Tr. at 32-38, 40-62.

6. Schmidt was first diagnosed with endometriosis in 1994. At that point, she underwent the first of what would be four or five different surgeries. 11/07/2011 AM Tr. at 32-33.

7. Schmidt took medication to decrease her pain and manage her condition, although she declined to take certain medications at the time of diagnosis due to the risk of severe, "masculinizing" side effects. 11/07/2011 AM Tr. at 32-33.

8. As Schmidt's condition progressed, the onset of her symptoms, including severe pain and losing bowel control, could not be predicted in advance. 11/07/2011 at 32-33; PEX 1, 3, 8, 9. 2001

9. By 2001, Schmidt's condition had progressed to the point where maintaining a regular 40-hour work week at the office was difficult. On May 15, 2001, Schmidt sent a series of e-mails to her supervisor at DOL, Emmett ("Fil") Williams, indicating her intent to request a flexible work schedule as a reasonable accommodation for her medical condition. PEX 14 at 1-3.

10. On May 30, 2001, Williams sent Schmidt a letter detailing the information necessary to make a determination on her request, including: 1) "a diagnosis and history of the specific condition;" 2) "the prognosis for the condition;" 3) "the disability and functional impairments necessitating the accommodation;" 4) how the condition "impact[s] on [her] current ability to perform the essential functions (duties) of the job;" 5) "the nature, severity, and duration of [her] impairment;" 6) "the activity or activities [her] impairment limits;" 7) "the extent to which [her] impairment limits [her] ability to perform the activity or activities;" and 8) "the reasonable accommodation which would enable [Schmidt] to perform the functions of [her] job." PEX 14 at 1.

11. In response to Williams' letter on June 8, 2001, Schmidt's treating gynecologist, Dr. Andre Hall, M.D., submitted a letter to DOL's Public Health Service Medical Consultant, Dr. Neal Presant, explaining Schmidt's condition and her need to work from home for at least seven months while she underwent a chemical treatment for her condition. PEX 1 at 1; PEX 14 at 3.

12. Dr. Hall stated that Schmidt suffered from "a case of endometriosis that causes significant and disabling menstrual and non-menstrual pain." PEX 1 at 1. Dr. Hall indicated that Schmidt's pain was a result both of the worsening endometriosis and the side effects of a medication called leuprolide, which Schmidt was taking to treat her endometriosis. Id.

13. Dr. Hall stated: "Concerns with commuting to and from her job as well as periods of bed rest during the day make it seem unlikely that [Schmidt] could fulfill the essential elements of her job at the office." PEX 1 at 2.

14. Dr. Hall also noted that working at home would remove Schmidt's concerns about commuting and permit her to rest periodically, and that if she could work at home, "the likelihood of performing the job[] based on the above statements markedly increases." PEX 1 at

15. In August 2001, Schmidt submitted a report from Dr. David Zenger, who agreed with Dr. Hall's assessment of Schmidt's health -- that she was suffering from a chronic and recurring condition that caused substantial pain. PEX 3 at 1.

16. Dr. Zenger's report also indicated that Schmidt was being treated with a "chemical injection" used to retard the excessive growth of tissue in the pelvic and abdominal area that could not excised by surgery. PEX 3 at 1. Dr. Zenger indicated that side effects from this medication include gastrointestinal pain, dizziness, and chest pain "upon physical exertion." Id. Dr. Zenger then noted that Schmidt clearly suffered from gastrointestinal symptoms and abdominal pain in the mornings that tended to taper off in the afternoon, as well as dizziness, chest pain, and shortness of breath when walking more than short distances, climbing stairs, and lifting bulky objects. Id. at 2. Like Dr. Hall, Dr. Zenger recommended that Schmidt work from home five days a week until January 31, 2001, the end of her chemical therapy. Id. at 6.

17. DOL's medical expert, Dr. Presant, reported that the documents he had reviewed established that Schmidt suffered from a disabling condition, that it appeared impossible for her to come to DOL on any regular, predictable schedule, and that it was "far more likely that she would be able to piece together an eight hour day working from home." PEX 5 at 1.

18. On August 8, 2001, Williams e-mailed Schmidt, with a copy to James Hampton, senior adviser to EBSA on reasonable accommodation matters, in response to a phone call on August 6, 2001, in which Schmidt expressed concern about the confidentiality of her medical records. Williams responded:

[W]hen an employee is concerned about a supervisor reviewing [medical information] either the employee or his/her doctor may forward such medical records directly to the DOL's CRC (attention: Dawn Johnson) with a cover letter explaining the situation and the need for a referral to Dr. Presant of the Public Health Service. In such instances, neither James Hampton nor I will see these medical records.

PEX 15 at 2-3.

2002

19. On February 1, 2002, Dr. Richard Tureck, M.D., sent Williams a letter indicating that Schmidt was suffering from "pain with walking and other symptoms which cannot be managed in the office and render her unable to work in the office." PEX 14 at 22.

20. On February 11, 2002, Dr. Presant sent a letter to Annabelle Lockhart, Director, Directorate of Civil Rights, Office of the Assistant Secretary for Administration and Management, DOL, stating that he had reviewed Schmidt's submissions from her physicians and spoken with Drs. Tureck and Zenger. PEX 14 at 23.

21. Dr. Presant stated: "Ms. Schmidt is suffering from a disabling condition. The condition interferes with her ability to commute and to perform her work on a sporadic basis. From a medical point of view, Ms. Schmidt could likely work from home for eight hours a day, but the hours are likely to be sporadic and not within the usual eight hour day." PEX 14 at 23.

22. Dr. Presant also stated: "Based on the new information, the accommodation request of working from home on an irregular schedule depending on the level of her symptoms appears to be medically reasonable." PEX 14 at 23.

23. Finally, Dr. Presant stated that Schmidt's "ability to come to the office and to work a regular schedule is impaired." PEX 14 at 23.

24. On March 12, 2002, Williams granted Schmidt's request for a "five day-a-week flexiplace arrangement as a reasonable accommodation." JEX 1 at 1.

25. This accommodation stated that DOL would allow Schmidt to work from home under a temporary arrangement, provided that Schmidt was "able to come to the office at least one day a week for a few hours to discuss [her] assignments and attend to any other pending matters which may require [her] physical presence." JEX 1 at 1.

26. On May 2, 2002, Williams issued an addendum to the March 2002 reasonable accommodation to clarify that Schmidt was not required to come into the office if she was not medically able to do so, and was not required to come into the office once a week every week. JEX 2.

27. On May 16, 2002, Williams issued an additional addendum to the March 2002 reasonable accommodation that clarified that, although the usual flextime plan hours are 6:00 AM to 8:00 PM, Schmidt would be allowed to work after 8:00 PM from Monday to Friday if she notified Williams in advance. Schmidt would receive regular pay for hours worked Monday to Friday during a regular five day-a-week work schedule and after 8:00 PM. On days when she was unable to work, Schmidt was to call her OED supervisor to report that she was not working. JEX 3.

28. Sometime after instituting the 2002 reasonable accommodation, Williams allowed Schmidt to work on the weekends. 11/15/2011 AM Tr. at 27.

29. Williams also permitted Schmidt to shift hours from one day to the "core hours" of another day on her time sheet. This was because the time sheet system used by the DOL would "disregard" hours entered outside of the normal work day or grant Schmidt overtime pay for hours put in after 8:00 PM. Williams allowed Schmidt to shift these hours to ensure that the time system still recognized Schmidt as working "full-time" when medically able, with 80 hours of work per pay period. 11/15/2011 AM Tr. at 28-29.

30. This arrangement of shifting hours from one evening to the core business hours on other days was approved by James Hampton of the EBSA Human Resources office. 11/15/2011 AM Tr. at 29.

2003

31. On or around February 3, 2003, Dr. David Katzka, M.D., sent a letter to Williams stating that he had conferred with Drs. Tureck and Schmidt and determined that Schmidt was still suffering from the same symptoms described in earlier correspondence, including abdominal pain related to physical exertion, as described by Dr. Tureck. PEX 6 at 1.

32. Dr. Katzka reiterated that Schmidt needed a "flexible work arrangement due to her condition." PEX 6 at 2. He also stated that Schmidt's "condition has remained unchanged." Id. Finally, he indicated that "she has been working from home and this has worked well for her, as she can rest as needed and piece together a forty-hour week." Id.

2004

33. On February 17, 2004, Williams requested that Schmidt provide updated medical information to support the continuation of the reasonable accommodation within 15 days. JEX 4 at 1-2.

34. On March 4, 2004, Williams granted Schmidt's request for an extension of the 15-day deadline to April 14, 2004 for providing updated medical information because Dr. Katzka was scheduled to reevaluate Schmidt at the end of the month. JEX 5 at 1.

35. On March 4, 2004, Williams sent an e-mail to Schmidt, with a copy to Hampton, clarifying the instructions for providing updated medical information. These instructions indicated that Schmidt and her physician were to decide what continuing accommodations were appropriate "based on the nature and severity of her impairment and other considerations." JEX 5 at 2.

36. In April of 2004, Eric Raps ("Raps") succeeded Williams as Schmidt's supervisor. 11/14/2011 AM Tr. at 3.

37. Before Williams left, he and Raps participated in a "hand-off" meeting to bring Raps up to speed about Schmidt. Williams testified that he and Raps discussed Schmidt's previously submitted medical information to support her request for an accommodation. Williams also informed Raps about his arrangement with Schmidt that she could work on weekends and after 8:00 PM. 11/15/2001 AM Tr. at 40-41.

38. On April 8, 2004, Dr. Katzka, who had become Schmidt's primary physician, wrote a letter addressed to Raps providing the updated medical information requested by Williams in March of 2004. PEX 7 at 1.

39. On April 13, 2004, Schmidt e-mailed Raps to discuss how Dr. Katzka's letter should be submitted to DOL. In her e-mail, Schmidt suggested various options for delivery that would protect her privacy, including faxing the letter to a specific machine not open to general office use, or calling ahead to Raps to make sure he was waiting close to the machine to receive the fax before it was sent. PEX 17 at 1. Schmidt was concerned that faxing the report to a more public machine would create the risk of other DOL employees viewing her confidential medical information. Id.

40. Sometime between April 13 and April 14, 2004, Schmidt faxed Dr. Katzka's April 8th letter to Raps. The faxed copy was redacted as to Schmidt's diagnosis and her prescribed medications. PEX 18 at 1; PEX 7, 8.

41. In an April 14, 2004 e-mail, Schmidt explained that she redacted this information to protect her privacy and because the medications she took were used "to treat other conditions which [she] would not want anyone to think [she had]." PEX 18 at 1. Schmidt did not want her supervisor or anyone in the office to know specific details about her medical condition, and she expressed concern regarding the people with whom this information would be shared. 11/7/2011 PM Tr. at 58-59, 61, 64; PEX 17; PEX 18. The letter remained un-redacted as to the general nature of Schmidt's condition.

42. On April 28, 2004, Schmidt requested, and was granted, annual leave from Raps to visit her mother who was ill with a heart condition. PEX 19; 11/7/2011 PM Tr. at 65-67.

43. The trip to see her mother in Wisconsin required Schmidt to take a number of precautions, including getting assistance traveling to the airport, using a wheelchair through the airport, and ensuring that she was seated next to the lavatory on the plane. 11/7/2011 PM Tr. at 66-68.

44. The trip was so painful for Schmidt that she had to remain in bed for several days after the flight. The only additional travel she did while in Wisconsin was to and from the hospital to visit her mother in the Intensive Care Unit. 11/7/2011 PM Tr. at 69.

45. On May 12, 2004, Raps issued a memorandum to Schmidt stating that the April 8, 2004 letter from Dr. Katzka did not respond to DOL's request for updated information in a number of material ways. JEX 6 at 1.

46. Specifically, the memorandum stated that the submitted medical report failed to include 1) the nature and description of Dr. Katzka's examination, 2) the diagnostic procedures performed by Dr. Katzka, 3) the laboratory tests relied upon by Dr. Katzka's for his diagnosis, and 4) Dr. Katzka's prognosis for recovery. JEX 6 at 1-2.

47. However, Dr. Presant testified that all that was necessary was some sort of report from one of Schmidt's treating physicians stating that her condition was on-going and that she continued to need accommodation. 11/09/11 AM Tr. at 19-23; 11/8/2011 AM Tr. at 52-53.

48. The memorandum also stated that Dr. Katzka's report should not have been redacted. JEX 6 at 1.

49. Further, Raps stated that he "reviewed [Schmidt's] time and attendance records for the last 31 pay periods" and found that Schmidt claimed sick leave for only 4% of the number of hours worked and in only 4 of the 31 pay periods. In light of this, Raps requested that Dr. Katzka reevaluate his statements made in the April 8, 2004 letter to ensure "that his most recent medical report reflects all relevant information." Specifically, Raps pointed to Dr. Katzka's statements that Schmidt could no longer engage in activities ...


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