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Erbel v. Johanns

May 8, 2007

DR. COLLEEN ERBEL, PLAINTIFF,
v.
MICHAEL O. JOHANNS, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips/Guyton)

MEMORANDUM AND ORDER

In the matter before the Court, plaintiff alleges claims against her former employer for failure to accommodate her disability pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"); hostile work environment based upon gender, disability, and protected activity in violation of the Rehabilitation Act and Title VII of the Civil Right Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq. ("Title VII"); unlawful suspension based upon gender, disability, and protected activity in violation of the Rehabilitation Act and Title VII; constructive discharge; and retaliation for engaging in a protected activity. Defendant filed its motion for summary judgment on all claims [Doc. 23]. Parties have been given sufficient time to file responses, replies, and sur-replies. For the reasons that follow, defendant's motion for summary judgment [Doc. 23] is GRANTED in part and DENIED in part.

I. Summary of the Facts

As the law requires, all disputed facts and inferences are resolved most favorably for the movant. As many of the facts are utilized to support more than one claim, the Court will organized its summary of the events in chronological order. Furthermore, the Court merely provides an abridged summary of facts for the purposes of this opinion.

Plaintiff Dr. Colleen Erbel ("Dr. Erbel") began work as a veterinarian with the Department of Agriculture, Animal and Plant Health Inspection Service (the "Agency") in October of 1987. In 1990, Dr. Erbel became Area Veterinarian in Charge ("AVIC") for the Agency over the state of North Carolina. In 1993, Dr. Erbel changed positions to a Veterinary Medical Officer ("VMO") in the Agency's Eastern Region of Tennessee, where she stayed until leaving Agency employment in 2002. Throughout her career, her performance appraisals were fully satisfactory or better until the events subject to this litigation transpired.

In 1998, Dr. Robert Southall ("Dr. Southall") was appointed as the AVIC in Tennessee, and he began supervising plaintiff and the other VMOs in Tennessee. That year, Dr. Southall assigned plaintiff to conduct an epidemiological survey. While other colleagues, who were male, received cash awards or other benefits for such projects, plaintiff did not receive a cash award after the completion of the epidemiological survey. Although plaintiff believed Dr. Southall's actions to be discriminatory, she did not contact an EEO counselor at that time.

Thereafter, in October of 2000, Dr. Southall gave the plaintiff a performance review. In a self-evaluation performed in advance of the review, the plaintiff rated herself as "does not meet fully successful" with respect to section work (assignment discretion) and administrative duties. Apparently, around that time, plaintiff was moving her residence and thus her home office, as well as completing an extended 30 day detail assignment in Michigan.*fn1 Plaintiff was having difficulty re-organizing and re-establishing her work office, systems, and routines. Although Dr. Southall rated the plaintiff as "fully successful" and above, he sent plaintiff a letter informing her that the two performance areas that plaintiff had identified herself were indeed not up to the standard of field VMOs. In response, plaintiff informed Dr. Southall that she was going to contact the employee relations specialist; that she wanted Dr. Southall to withdraw the letter; and that she wanted to be placed upon a performance improvement plan ("PIP"). Subsequently, Dr. Southall withdrew the letter. Further, in January of 2001, when plaintiff did not receive requested support, plaintiff confidentially advised Dr. Southall of her mental disability in the context of requesting accommodations to return her back to normal functioning. Dr. Southall notified the employee relations specialist of plaintiff's disability claim and about plaintiff's inquiry for information with respect to requesting accommodation. Plaintiff believes that Dr. Southall may have disclosed information regarding her disability to others notwithstanding plaintiff's request for confidentiality.

Around that time, that is in January of 2001, plaintiff received a reprimand related to cell phone usage. In July of 2000, Dr. Southall had asked plaintiff about a number of charges on her cell phone and contemporaneously issued a memorandum to Tennessee area employees giving instructions on appropriate use of government cell phones. Plaintiff states that she was advised that she could use her cell phone through the problematic move of her office/residence and that she contacted Dr. Southall to pay for personal calls in August of 2000. Nonetheless, in October of 2000, Dr. Southall began a process of reprimanding plaintiff for inappropriate government cell phone usage. Dr. Southall did not discuss the cell phone use during an October 2000 performance review; rather, plaintiff was presented with a letter of reprimand in January, 2001. Plaintiff asserts that other male non-disabled peers have participated in similar cell phone activity with no reprimand.

On January 29, 2001, in response to plaintiff's accommodation inquiry, Dr. Southall sent plaintiff a letter advising her as to the method to request accommodations, specifically asking plaintiff to have her doctor review her job description to assess the impact of her disability on her work as a field VMO; asking plaintiff to provide a medical release; and further imposing a two week deadline for plaintiff to deliver medical documentation to support an accommodation. Ultimately, plaintiff did not protest the Agency's conclusion that plaintiff was not making a request for an accommodation at that time; however, plaintiff had initiated a Conflict Prevention Resolution ("CPR") event with Dr. Southall and was in the process of scheduling a mediation. Plaintiff asserts that she believed that she could address her concerns for an accommodation in this venue.

In April of 2001, a CPR mediation took place between plaintiff and Dr. Southall.

Plaintiff claims that she initiated that event because a fellow VMO had informed her that she was being discussed negatively in the Nashville area office when, at the same time, Dr. Southall had given her no indication of problems with her work. During the mediation, plaintiff participated in a discussion and received guidance regarding her job responsibilities and clarification regarding her relationship with Dr. Southall. Plaintiff understood that her requests for accommodation were denied. In addition, as a result of the mediation, Dr. Southall created a list of duties and responsibilities and circulated it to all VMOs under his supervision. Plaintiff claims that this list became a tool opening opportunity to create a record of misconduct. Dr. Southall began a series of exhaustive memos relating to plaintiff's late reporting, inaccuracies in paperwork, and similar misconduct.*fn2

As a result of the mediation, Dr. Southall was to meet monthly with plaintiff to provide plaintiff with feedback as to job performance and expectations. Dr. Southall only met with plaintiff for the first monthly meeting, thereafter stating that his travels to Florida did not permit time for such meetings. In the first meeting in May, which also happened to be the normal mid-year appraisal, Dr. Southall reported that he was satisfied with plaintiff's performance. Dr. Southall continued to voice satisfaction, that is until plaintiff received an unfavorable evaluation in February of 2002.

In January of 2002, Dr. Southall notified all Tennessee VMOs of a request from the region for volunteers for detail assignments in New Jersey, Chicago, and Detroit. When no volunteers came forward, Dr. Southall sent plaintiff an e-mail stating that it was her turn to take a 30 day detail in New Jersey. Plaintiff asserts that other nondisabled male VMOs were in front of her in the detail rotation; that a two week detail would have been sufficient; that another VMO agreed to fill a two-week rotation, which in effect would have satisfied the request for a VMO; and that she had annual leave scheduled during the requested dates. Plaintiff returned an e-mail stating that she could not go on the detail for medical reasons. Plaintiff was sent a letter dated January 31, 2002 requesting medical documentation to support an accommodation related to the detail. Plaintiff expressed concern in signing a release to the Agency and also felt that the two week deadline to gather and deliver medical information was too short a time period.

In February 2002, Dr. Southall presented Plaintiff with her performance appraisal for the period from October 1, 2000 to December 31, 2001, in which he rated Plaintiff overall as "marginal" based upon rating her performance of administrative duties as not fully successful. Attached to the appraisal form was a statement supporting the ranking of "not fully successful" on administrative duties. Plaintiff disputes the accuracy of Dr. Southall's statement as to frequency and seriousness of timeliness and inaccuracies in her paperwork, and the examples he used to justify the rating. Plaintiff claims that Dr. Southall used instances outside of the rating period. Further, plaintiff submits that other individuals, non-disabled male VMOs, who were not singled out, made many of the same mistakes. The Agency asserts that plaintiff agreed with the evaluation with the exception of issues regarding travel vouchers. As a result of the evaluation, plaintiff contacted an EEO counselor on February 14, 2002 to report various forms of discrimination, which include discrimination based on sex and disability.

Also in February of 2002, Dr. Southall worked with the employee relations specialist to prepare a leave restriction letter that required plaintiff to follow strict guidelines for sick leave approval. The letter was sent to plaintiff on February 21, 2002 and required plaintiff, for the period of one year, to request sick leave within the first 30 minutes of her scheduled start time and to provide a certification signed by her physician to support each instance of sick leave within three days of her return to duty. Plaintiff was informed by the letter that failure to comply with the restriction would result in absences being charged as AWOL and potential discipline. The bases for the letter expressly included incidents regarding alleged irregular use of leave or use of leave contrary to approved leave on February 1, 6, 7, and 19 of 2002. Plaintiff disputes that she inaccurately reported these incidents and/or that Dr. Southall's actions caused her to change her leave days.

After plaintiff provided medical documentation on February 14, 2002, the Agency postponed her detail to New Jersey to allow time to evaluate and review the medical records in considering whether to grant or deny an accommodation that would allow plaintiff to be exempt from the New Jersey 30 day detail.*fn3 By letter dated February 21, 2002, Dr. Southall again requested additional information from plaintiff's physician with respect to the request for accommodation. After the information was provided on February 28, 2002, plaintiff was not required to go on the detail to New Jersey. Thereafter, plaintiff sought accommodation to be exempt from all 30 day details.

On March 26, 2002, Dr. Southall sent plaintiff a letter proposing a 14-day suspension for failure to follow instructions and failure to follow instructions in a timely manner. The Agency states that Dr. Southall first proposed this discipline to his supervisor, Dr. Dick, on February 15, 2002, because of three incidents that had been brought to Dr. Southall's attention beginning in late January 2002. Plaintiff asserts that Dr. Southall routinely asked staff members about her and even threatened staff members with termination if they were reluctant to "cooperate" by providing negative information about her. The suspension involved three alleged incidents: (1) plaintiff did not accompany co-workers to inspect a livestock market in preparation for potential citations in accordance with Dr. Southall's instructions; (2) plaintiff was late in delivering a presentation and provided some inaccurate information during the presentation; (3) and plaintiff's actions involving completion of a trace of infected sheep, which caused the unnecessary euthanization of one sheep. On March 29, 2002, the day after plaintiff learned of the proposed suspension, she called the EEO Counselor, Beatrice Jacobs ("Jacobs"), to report the action taken against her. Plaintiff documented the report in her weekly activity report and faxed a copy of the documents relevant to her suspension to Jacobs. Further, plaintiff's attorney communicated with Jacobs regarding the suspension within the 45 day window approximately six times. Defendant disputes the notice stating that only on May 14, 2002 did the plaintiff notify the EEO office for the first time that Dr. Southall had proposed a 14 day suspension for plaintiff.

On May 21, 2002, an oral reply conference regarding the three alleged instances of misconduct was held. The matter was taken under advisement.

Also in May of 2002, additional information was requested regarding plaintiff's request for accommodation to be exempt from all 30 day details, and the information was provided on June 5, 2002. By letter dated July 12, 2002, plaintiff's request to be relieved from all details of 30 days or more was formally granted and the Agency "determined that no further action is warranted at this time." Plaintiff was instructed that "if [her] needs change, [she should] provide the appropriate medical documentation along with a written request for any additional accommodations that may be necessary."

Around that same time period, the plaintiff and Dr. Southall exchanged e-mails regarding requests for accommodation and assistance. After Dr. Southall questioned plaintiff's ability to manage her time, plaintiff asked Dr. Southall, what she had "failed to do" that her "requests for assistance have not been considered?" Dr. Southall responded that he was not aware that plaintiff had made a "formal request" for assistance. Plaintiff then returned the email on June 26, 2002, asking "what constitutes a formal request" for accommodation. Dr Southall did not respond to plaintiff's e-mail. On July 16, 2002, plaintiff sent a letter to Dr. Southall, again asking how to make a "formal request" for accommodation.

On July 25, 2002, Dr. Southall wrote to plaintiff in response to these communications, reiterating that the agency has no medical documentation or request that would allow any accommodation other than the relief from details of 30 days or more. The letter instructed plaintiff to provide information from her medical providers if she needed additional accommodation, including information about (1) "the nature, severity, and duration of [plaintiff's] impairment"; (2) "the activity or activities that [plaintiff's] impairment limit[ed]"; (3) "the extent to which the impairment limit[ed] [plaintiff's] ability to perform the duties of [her] position"; and (4) "why the requested reasonable accommodation is needed." Plaintiff responded by letter requesting clarification and additional time to provide the information.

On August 12, 2002, plaintiff received the Report of Oral Conference regarding the three instances of misconduct which purportedly warranted a suspension. Two of the charges were sustained, one with mitigating factors. The plaintiff disputes that her actions were improper; that Dr. Southall contributed to the instances due to poor communication; others, who were not disciplined, shared responsibility of tracing the sheep; the official was biased for the Agency; and the official was not aware of the burden of proof to sustain the instances of alleged misconduct, which fundamentally indicates improper review of her "offenses." Nevertheless, a ten day suspension was imposed from August 26, 2002 through September 4, 2002.

It appears that plaintiff did not return to work after the last day of her suspension, that is September 4, 2002. Plaintiff states that her emotional distress had escalated to a degree that she could no longer tolerate working in the present environment and successfully perform her job without accommodations. Thereafter, plaintiff requested eleven specific accommodations by letter dated September 13, 2002. On September 23, 2002, plaintiff submitted her application for disability retirement to the Agency for completion of the supervisor's portion. In response to the plaintiff's September 13, 2002 letter, on October 4, 2002, the Agency sent a letter denying some accommodation requests, stating essentially that some accommodations were already in effect as part of her relationship with the Agency, and also stating that they needed medical documentation to support requests for accommodations. On the same day, plaintiff's physician sent a letter to the Agency essentially requesting the accommodations listed in plaintiff's September 13, 2002 letter.

Also on October 4, 2002, plaintiff withdrew her disability application because she decided that she submitted the application too hastily and that she wished to provide more details. Plaintiff applied again for disability retirement on October ...


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