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Ella Ward v. Eric K. Shinseki

November 19, 2012

ELLA WARD,
PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS,
DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION OFFICIAL REPORTERS

MEMORANDUM OPINION*fn1

Plaintiff Ella Ward worked as an attorney for the Department of Veterans Affairs ("Department") between 2001 and 2007. She filed a complaint against the Department in August 2010 claiming two violations of the Rehabilitation Act, 29 U.S.C. § 791 et seq.: Failure to Accommodate and Constructive Discharge. (Dkt. No. 1). Both Ms. Ward and the Department have moved for summary judgment. (Dkt. Nos. 25 & 26). Because no material facts are in dispute, the time for a decision is ripe. After careful consideration of the materials submitted by both parties, for the reasons below the Court finds that the Defendant's Motion for Summary Judgment, (Dkt. No. 25), is granted, and Plaintiff's Motion for Summary Judgment, (Dkt. No. 26), is denied.

I. Factual Background

The Department hired Ms. Ward around June 2001 as an attorney advisor. (Dkt. No. 26, Ex. 1). Attorney advisors at the Department review appeals submitted by U.S. veterans and prepare draft opinions. Initially hired at the GS-11 level, the Department continued to promote her, eventually to GS-14 Step 2. (Id.).

Attorney advisors are required to complete 156 case credits per year, an average of three per week. (Dkt. No. 25, Ex. 1 ("Ward Dep.") at 20:11-21:17). With some exceptions, each case is one credit. Although three credits per week was not a rule, it was a goal known as a "fair share goal." Attorney advisors had some limited physical requirements as well, including picking up case files, carrying them to their office, and returning them when done. (Id. at 22:3-24). No one was assigned to help attorney advisors do this lifting. (Id. at 24:16-25:1).

Around May 2005, doctors diagnosed Ms. Ward with lymphedema of the lower right extremity. Lymphedema causes fluid retention and tissue swelling, and can lead to swollen limbs. That same month, Ms. Ward received a review describing her performance as satisfactory, although "it should be noted that throughout the year, Ms. Ward struggled somewhat to keep abreast of the week to week fair share goals. . . . [I]t is expected that she should be able to focus more clearly on increasing decision timeliness and productivity during the upcoming year, in order to further the objectives of the Board." (Dkt. No. 25, Ex. 3).

Ms. Ward's lymphedema caused her to miss a great deal of work. From approximately 2005 to March 2007, she used up all of her leave, including under the Family and Medical Leave Act ("FMLA"). (Dkt. No. 1 ¶ 13; Ward Dep. 74:7-75:1; Dkt. No. 25, Ex. 13). Between April 30, 2006 and September 17, 2006 she worked part time because of her health. (Dkt. No. 25, Exs. 11 & 12). During her part time work, sometimes she could write three opinions per week and sometimes she could not. (Ward Dep. 69:23-70:1). Her review in March 2006 included nearly identical language as the previous year's: she "had some difficulty in keeping abreast of the week to week fair share goals" but the Department "expected" she would "focus more clearly on increasing decision timeliness and productivity during the upcoming period." (Dkt. No. 25, Ex. 4).

Ms. Ward's lymphedema worsened. At her deposition she stated her condition "began going to the severe stage around the end of 2006, the end of 2007." (Ward Dep. 45:4-9). During the period when she returned to work full time in September 2006 and when she left in 2007, she did not always write three opinions per week. (Id. at 70:2-13).

Ms. Ward first requested an accommodation for her lymphedema around March or April 2007.*fn2 At her deposition Ms. Ward testified that she asked her supervisor Constance Tobias to be allowed to work from home as an accommodation around March 2007. (Ward Dep. 63:3-64:24). This date is contradicted elsewhere by both Ms. Tobias as well as Ms. Ward herself. At her deposition, Ms. Tobias stated Ms. Ward made no such request to her. (Dkt. No. 25, Ex. 6 at 12:11-13:17). And in a letter authored by Ms. Ward in June 2007, she stated that she first submitted a request for accommodation at the end of April 2007. (Dkt. No. 25, Ex. 14). Also around this time Ms. Ward appears to have had a "fully successful" performance review on April 5, 2007 from Ms. Tobias. (Dkt. No. 26, Ex. 6). The review occurred despite the fact that Ms. Ward "didn't have a lot of work to review and the work that she did submit was submitted to the judge." (Dkt. No. 26, Ex. 7 at 15:3-11). Much of the review form is blank, with no achievement level marked for "timeliness of tentative decisions" or "productivity of decisions," for example. (Dkt. No. 26, Ex. 6). Ms. Tobias left the Department shortly thereafter.

After Ms. Tobias left, Mark Greenstreet briefly served as chief judge on Decision Team II, the team Ms. Ward worked with. (Dkt. No. 25, Ex. 9 at 12:2-6). Ms. Ward submitted her request for accommodation to Mr. Greenstreet, spoke to him about her request, and presented him with a March 27, 2007 letter from Dr. David A. Rose about her condition. (Ward Dep. 64:23-24, 72:2-17). Plaintiff gave the letter to Mr. Greenstreet around the second or third week in April. (Id. at 73:11-13). The letter from Dr. Rose is eight sentences. It states in part: "Ms. Ward will benefit from a schedule that allows her to work from home. The maximum number of daily work hours will be determined as the condition stabilizes." (Dkt. No. 25, Ex. 15).

By May 2007, Ms. Ward "had used all of her FMLA substituted paid annual and sick leave either to go home to manage her disability or to go to the hospital for treatment." (Dkt. No. 26, at 18). The Department then approved her for FMLA leave without pay. On May 3, 2007, Ms. Ward attended a meeting with Judge Joaquin Aguayo-Pereles (Deputy Vice Chairman of Decision Team II), Jonathan Kramer (Special Counsel to the Senior Deputy Vice Chairman), and Mr. Greenstreet. At the meeting, the participants told Ms. Ward she needed to provide additional information about her medical condition. (Ward Dep. 78:11-13). That day Ms. Ward was given a memorandum signed by Mr. Greenstreet detailing the additional information required. It states that "additional medical documentation is needed to process your request. Specifically, your physician needs to provide more details concerning the diagnosis and prognosis." The memorandum stated even more information may be required, if necessary. (Dkt. No. 25, Ex. 17).

Shortly after the May 3, 2007 meeting, Steven Cohn became chief veterans law judge of Decision Team II. (Dkt No. 25, Ex. 2 at 29:14-24). Cohn "may" have "r[u]n across" a letter from Mr. Greenstreet about Ms. Ward in her employee file, and asked Mr. Greenstreet about the status of Ms. Ward's accommodation request "because I think there was a request for medical information that we hadn't gotten." Not much later, a fax arrived from another of Ms. Ward's doctors, Dr. Alice Fuisz, and Mr. Greenstreet shared it with Mr. Cohn. (Id. at 28:22-29:13).

The letter from Dr. Fuisz is undated, although it arrived on or around May 21, 2007. (Dkt. No. 26, Ex. 17 at 22:7-23:10). The letter states that Ms. Ward's condition "causes fatigue" and "can cause significant impairment of daily activities." It notes that her disability "is becoming more debilitating." It continues: "She should sit for only short intervals of time as tolerated . . . . Her right lower extremity is permanently increased in size and weight which substantially limits prolonged sitting, standing, going up and down stairs, or carrying moderately heavy case files, which the patient has to do in order to perform her job duties." Ms. Ward's "disability also affects travel to and from work, but she should be able to commute to work once a week as required." The letter concludes by stating Ms. Ward "needs immediate accommodation of flexible no-pay leave of about 15 to 25 hours a week, in order to continue the daily treatment routines until a work-at-home program is implemented." (Dkt. No. 25, Ex. 13) (emphasis in original).

On May 25, 2007, Mr. Cohn asked to meet with Ms. Ward. This was the first time the two met. At the meeting, Mr. Cohn said to Ms. Ward: "'Look, let's-you know, have you thought about maybe doing part time? What is it that we can do for you?' I asked her to think about that, and I said that we would then meet again." (Dkt. No. 25, Ex. 8 at 13:5-9). According to counsel for Ms. Ward, this conversation constituted an offer to work part time. (Court Tr. ...


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