The opinion of the court was delivered by: Susan K. Lee United States Magistrate Judge
Before the Court is the motion of Defendant, John E. Potter, Postmaster General, United States Postal Service ("Defendant" or "USPS"), for summary judgment pursuant to Fed. R. Civ. P. 56 [Doc. No. 41]. Defendant filed a memorandum [Doc. No. 42] with exhibits [Doc. No. 43] in support of his motion. Plaintiff Tracy McDonald ("Plaintiff") filed a response in opposition [Doc. No. 56] with exhibits [Doc. No. 57].*fn1 Defendant also filed a reply brief [Doc. No. 61]. Oral argument was held on the motion on August 3, 2007. Consequently, Defendant's motion is now ripe for review. For the reasons which follow, Defendant's motion for summary judgment [Doc. No. 41] will be GRANTEDand Plaintiff's claims against Defendant will be DISMISSED WITH PREJUDICE.
II. Procedural and Factual Background
Plaintiff's first contact with an Equal Employment Opportunity Commission ("EEOC" or "EEO") counselor was on May 11, 2001 [Doc. No. 43, Exhibit A-1]. In her information for pre-complaint counseling, Plaintiff stated on May 3, 2001, she smelled a fragrance on two co-workers working beside her and moved [id. at 1]. Plaintiff handed a note to a supervisor, Hannah Rogers ("Rogers"), asking if she would speak to the co-workers when she went to lunch [id.]. After lunch, one of the co-workers was still present, and Rogers stated the worker denied wearing anything scented. Rogers said she could not smell a scent on the co-worker [id.]. As a remedy, Plaintiff requested, inter alia, a "[f]ragrance ban instituted immediately [and] enforced [with] consequences for violators." [Id. at 2]. This complaint was designated EEOC case No. 4H-370-0176-01 [id. at 1; Exhibit A-2].
Plaintiff made another contact with an EEOC counselor on February 4, 2003, after she was given a Letter of Warning ("LOW") on January 14, 2003 [id., Exhibit B-1 at 1; Exhibit B-2]. This case was designated as EEOC case 1H-379-0001-03 [id.].
In a decision issued on November 1, 2004, an EEOC administrative law judge ("ALJ") granted partial summary judgment denying several of Plaintiff's claims and set the remainder of Plaintiff's claims for an administrative hearing [id. at 43-47]. On September 27, 2005, following an administrative hearing that included six days of testimony, the ALJ found the USPS did not discriminate against Plaintiff based upon any of her claims [id., Exhibit C-2 at 77-81, 84]. On October 6, 2005, the USPS issued its notice of final action on Plaintiff's claims [id., Exhibit C-1].
Plaintiff filed her complaint in district court on January 6, 2006, asserting claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. [Doc. No. 1 at 1]. Plaintiff asserts she is an employee of Defendant with a disability as defined in the ADA [id. at ¶¶ 4, 5]. Plaintiff asserts she is disabled by the medical impairments of migraines and vascular rhinitis (fragrance sensitivity) [id. at 2, ¶ 11]. Plaintiff alleges that exposure to fragrances in her environment results in "debilitating Migraine headaches." [Id.]. Plaintiff further asserts she is also disabled by a back condition, i.e., disc protrusion with lumbar radiculopathy [id. at ¶ 12]. Plaintiff alleges these impairments interfere with and limit her major life activities of "caring for herself, working, performing manual task[s], breathing, thinking, walking and lifting." [id. at ¶ 13].
Plaintiff asserts that while employed by Defendant she was exposed to heavy fragrances worn by her co-workers which resulted in migraine headaches [id. at 2-3, ¶¶ 15, 16]. Plaintiff alleges that despite being on notice of her need for accommodation, "Defendant refused to provide Plaintiff with effective accommodations made necessary by her physical impairment." [Id. at 3, ¶ 17]. Specifically, Plaintiff asserts Defendant "refused to either implement a fragrance ban as it previously had, or to enforce the stated policy of light wearing of fragrances." [Id.]. Plaintiff also asserts Defendant "used harsh cleaning chemicals during the Plaintiff's shift and have refused to remove a fragrance sprayer from the restroom." [Id. at ¶ 21]. Plaintiff further asserts that the continued presence of strong fragrances on the work floor has resulted in her having "to move frequently from work station to work station, aggravating her back condition." [Id. at ¶ 22].
Plaintiff asserts that after she filed a complaint with the EEOC, Defendant's agents required her to undergo a fitness for duty examination in retaliation for her protected activity [id. at 3-4, ¶ 23]. Plaintiff further asserts that as the result of Defendant's agents ignoring her complaints, her "absenteeism rate was increased and the benefits of employment to which she was otherwise entitled were withheld from her," including, "performance awards as well as promotions to desired positions and a demotion from higher level work that she had been allowed to perform." [Id. at 4, ¶ 24]. Finally, Plaintiff asserts that as the result of her continuing complaints and efforts to protect her rights, Defendant's agents subjected her "to continued retaliation in the form of harassment and heightened disciplinary standards." [Id. at 25].
Plaintiff presents the following claims:
1. Whether Defendant was required to, and failed to, reasonably accommodate Plaintiff's migraine condition since March of 2001; namely, fragrance and heat sensitivity, i.e., requests to control the odors from co-workers fragrances and cleaning supplies and paint in the work place;
2. Whether Defendant was required to, and failed to, reasonably accommodate Plaintiff for her back condition since March of 2001 (i.e., requests to limit her moving from work station to work station);
3. Whether Defendant retaliated against Plaintiff for protected EEO activity when it sent her for a Fitness for Duty medical examination on July 17, 2001;
4. Whether Defendant retaliated against Plaintiff for protected EEO activity when she was issued a LOW for absenteeism on January 14, 2003;
5. Whether Defendant retaliated against Plaintiff for protected activity when she was not selected as an Acting or 204B Supervisor; rather than Dana Wheeler on March 3, 2003;
6. Whether Defendant discriminated against Plaintiff due to a disability when she was removed from performing a higher level clerk (Level 5 rather than Level 4); namely, training Level 4 clerks during the implementation of a new "flat" system at her work site on or about June 6, 2002; and
7. Whether Defendant created a "hostile work environment" on the basis of a disability or retaliation for prior protected EEO activities from September 1999 to November 2004.
[Doc. No. 56 at 6; Doc. No. 42 at 1-2].
Apparently as a result of days of hearing testimony, depositions and medical examinations, the factual information submitted by both parties is quite voluminous. The facts are, however, largely undisputed. The material facts relied upon in this memorandum and order are either uncontroverted or, if controverted, viewed in the light most favorable to Plaintiff.
Plaintiff is one of approximately 750 Data Conversion Operators ("DCOs") employed at the Chattanooga Remote Encoding Center ("REC") operated by the USPS [Doc. No. 43, Exhibit E, Declaration of John McCollum (McCollum")]. The REC has a large room, approximately 104 feet by 128 feet, with rows of computer monitors and keyboards and a rolling secretarial-type chair at each work station. [id. at ¶ 4]. The room is carpeted, and there is a small divider between each work station [id.].
The REC receives images of mail, via "LAN lines" from 27 different mail processing sites across the Southeastern United States and two mail processing sites in the New York area, which cannot be read by mail processing machines at the sites [id. at ¶ 5]. In 2003, the REC had 28 areas of the workroom floor designated to receive images of letters from mail processing sites and five areas designated to receive images of "flats," which are mail images larger than letters such as magazines [id.]. The REC is configured so that images from particular mail processing sites are sent to particular computers on the workroom floor via dedicated computer lines [id.].
The DCOs at the REC key into their computer a code of the address on the image shown on their computer monitors, and this information is transmitted back to the mail processing site, causing the correct barcode to be placed on the mail [id. at ¶ 6]. The images received from the mail processing sites vary throughout the day, which necessitates moving the operators to different work stations where the images are received [id.].
Several hundred employees work on the same work shift, which is called a "tour," at the REC [id. at ¶ 7]. Because tours overlap, Plaintiff could come into contact with approximately 500 people during the workday [id.]. The REC currently employs approximately 800 people and expects to hire more [id. at ¶ 2]. McCollum stated the heaviest shift is Tour 3 from 3:00 p.m. to about 11:30 p.m., because that coincides with the time when most of the mail in the country is collected [Doc. No. 57, Exhibit 20 at 31]. McCollum stated that starting times for people on Tour 3 are staggered, employees arrive at 3:00, 3:30 and 4:00 p.m., and most of the transitional employees ("TEs"), who are coming from other jobs, arrive at 5:30 and 6:00 p.m. [id. at 32]. McCollum stated that some of the employees on Tour 3 work four hours, some work six hours, some work seven and one-half hours, and some work eight hours [id.].
Plaintiff began working at the REC in October 1994 [Doc. No. 43, Exhibit G at 28]. Plaintiff works from 3:30 p.m. to midnight, with two off days [id. at 31]. In the past, Plaintiff and a number of her friends, including Patrish Garvich ("Garvich")*fn2 , worked together on images received from the Jacksonville (Florida) site [id., Exhibit H at 116-17; Exhibit F at 183-87; Exhibit J at 43-44]. The images from the Jacksonville site were sent to a designated group of computers, so Plaintiff could sit at the same set of computers for more of the workday [id.].
However, at some point, management at the REC reconfigured the workforce and made the jobs non-site specific [id., Exhibit H at 117; Exhibit F at 182-90]. As the technology improved and the computer equipment was able to read more mail, fewer images were received from a particular mail processing site, the result being DCOs had to be moved around to different computer work stations [id.]. This resulted in some of the employees who worked together on the Jacksonville site mail having different off days and also changed where and by whom they sat next to in the REC [id., Exhibit F at 81-82; Exhibit I at 12-13].
2. Plaintiff's Alleged Disabilities
Plaintiff testified during her deposition and also during the EEOC administrative hearing. Plaintiff testified she has two disabilities: (1) migraines with vasomotor rhinitis and (2) a back condition [id., Exhibit G at 40-41].*fn3
a. Migraine/Fragrance Sensitivity Impairment
Plaintiff testified her migraines started in 1978 after a car wreck and go in and out of remission [id. at 41-50]. Although she has been having migraines since 1978,
The migraines never rose to the level of a disability until the fragrance sensitivity kicked in. And it wasn't until working here where I was bombarded with so many fragrances that I started to become sensitized to more and more things. And then it became a really serious problem. [Id., Exhibit H at 98].
Plaintiff stated she believes her fragrance sensitivity was the result of another automobile accident in 1990*fn4 [id., Exhibit F at 150; Exhibit H at 102]. Her migraines became more frequent in 2001 and have continued at about the same frequency since then [id., Exhibit G at 68]. Plaintiff testified that when she has a migraine, she stays in bed for as long as two days [id. at 69]. Plaintiff stated her migraines are unpredictable and occur at different times of the day and week [id. at 67].
Until recently, but during the period relevant to the issues in this action, Plaintiff lived alone in an apartment with six cats [id. at 67-69]. Plaintiff stated she was able to care for her six cats and changed their litter daily [id. at 69-70]. She stated she is not bothered by the odors from her cats [id. at 70]. Plaintiff testified she did her own grocery shopping and cleaning [id. at 68, 70; Exhibit I at 103]. Plaintiff used lemon-scented wipes to clean her house [id., Exhibit G at 70]. At various times, Plaintiff also used Clorox wipes, Windex wipes and Pledge wipes, which she stated started to bother her shortly before the administrative hearing because she asserts she is becoming "increasingly more sensitive to things" [id., Exhibit G at 71; Exhibit I at 104]. Plaintiff testified that in 2003 she used Pine-Sol for cleaning and that it did not bother her [id., Exhibit G at 72]. However, by the time of her administrative hearing in 2004, she stated Pine-Sol did bother her [id.].
There was a flood at Plaintiff's apartment and Plaintiff testified she cleaned her apartment herself with bleach and water on May 11 and 12, 2004 [id. at 71]. Plaintiff stated she was at home due to a migraine when the flood hit on May 11, 2004 [id. at 73]. Plaintiff admitted that although the bleach she used aggravated her migraine, she did the cleaning herself [id. at 71-73, Exhibit I at 105-07]. Plaintiff was not off work as the result of using the bleach and records for leave year 2004, show Plaintiff worked on both May 13 and 14, 2004 [id. at 105-08, Exhibit E, attachment 2].
Plaintiff also testified she used Ivory soap, scented shampoo from a hair salon, hair gel, and hair spray [id., Exhibit G at 208-210, Exhibit I at 108-09]. She uses unscented laundry detergents [id.; Exhibit I at 108-09]. Plaintiff further testified that scents from toothpaste and mouthwash did not bother her [id., Exhibit I at 108-09]. In addition, Plaintiff testified she goes to stores, and went to one store's perfume counter once [id., Exhibit K at 167-70]. Plaintiff also goes out to eat with friends, using them as a "shield from fragrances" in the restaurant [id., Exhibit K at 117].
Plaintiff testified that she can detect the smell of a fabric softener from three or four rows of computers away at the REC [id., Exhibit I at 111]. She also testified she can smell the "vapor trails" of people after they are gone [id., Exhibit K at 182]. Plaintiff testified she considered the fragrances in fabric softeners and laundry detergents to be a problem [id., Exhibit I at 115]. Plaintiff testified about a certain employee at the REC, stating she could not get within ten rows of computers without smelling what turned out to be the employee's fabric softener [id.].
Plaintiff acknowledged that fragrances are not the only trigger for her migraines [id., Exhibit H at 107]. Plaintiff stated strong odors such as cleaning chemicals, pesticides, weather, and stress also trigger her migraines [id.]. She further stated that not every absence she has had from work is related to a migraine [id. at 133]. In addition, when asked, Plaintiff could not identify any particular fragrance which she finds particularly offensive [id., Exhibit K at 32]. Plaintiff stated that whether a fragrance or odor affects her is "a trial and error thing." [Id.].
Plaintiff stated she wanted the REC management to enforce a fragrance ban by sending "fragrant" employees home or by disciplining them up to, and including, removal [id., Exhibit G at 102-03]. She testified she does not believe the supervisors who tell her that they cannot smell a fragrance on an employee when she claims to smell a fragrance [id. at 103-04]. Plaintiff further testified that no one, including Plaintiff herself, complains to the REC management when they smell fragrances on other employees because they think such complaints are useless [id. at 104].
Plaintiff stated the first time she recalled notifying the REC management of her objections to fragrances on the workroom floor was in 1998 [id., Exhibit G at 76], although she complained about the smell involved in the re-tarring of the roof at the REC in 1995 [id. at 78]. According to Plaintiff, when she complains she detects a fragrance on another REC employee and a supervisor asks that employee if he or she is wearing anything with fragrances, "it happens all the time" that the employee denies they are wearing any fragrance [id. at 191]. Plaintiff states that on the occasions where the supervisor can smell a fragrance and questions the employee, that employee will claim to only have on lotion and that he or she will claim they only put on a little much earlier in the day [id.].
Plaintiff testified concerning one employee who had changed to a new fabric softener. Plaintiff testified she thought that employee was wearing perfume and that she "would have sworn on a stack of Bibles that it was perfume, . . .." [Id. at 192]. Plaintiff stated she started staying away from that employee [id. at 192-93]. During a migraine, Plaintiff has sensitivity to light and sound [id., Exhibit 49 at 73]. She testified that the light from the computer monitors at the REC will exacerbate her migraine [id.]. Plaintiff further testified that when she has a migraine "some days all I can do is just go to bed turn out the lights, and turn off all the sound and just lay there . . . you pretty much can't do anything when you have a severe migraine . . .." [Id.]. Plaintiff also testified "I don't always miss work when I have a migraine." [Id. at 77]. She stated that "[m]igraines vary in degree of intensity . . . You just get like a twinge or you just feel it coming on. You feel really bad because . . . I don't throw up but I get severe nausea with my migraines. . . But I have gone into work and like made it through some of the days, you know, with difficulty, but I do work with some of them." [Id.].
In addition, Plaintiff testified she thought there were more days when she had a migraine than when she did not have a migraine [id. at 77]. Plaintiff also testified she has difficulty concentrating or thinking when she has a migraine [id. at 116-17]. Plaintiff stated she has "a difficult time working" when she has a migraine because "[y]ou can't think, you can't concentrate, it's hard to . . . all you are thinking about and concentrating on is the throbbing in your head. You just can't focus." [Id. at 117]. During her November 2004 deposition testimony, Plaintiff stated the frequency of her migraines has increased [id., Exhibit 10 at 104-05]. Plaintiff also stated the symptoms of her migraines had changed and that she was "getting light sensitivity, sound sensitivity. I'm starting to get lightheaded, I get dizzy. I kind of get disoriented on some.. . . Some have been so strong, I've gotten a sore throat from them . . .." [Id. at 105].
In addition, Plaintiff has also complained about the temperature at the REC, on the ground that heat also causes her to experience migraines.*fn5 Vickie Campbell ("Campbell"), a Tour 3 supervisor, testified the thermostat at the REC is kept at 68 to 70 degrees [Doc. No. 57, Exhibit 21 at 135]. Campbell stated she receives complaints about the temperature during Tour 3 about once a week [id.]. When Campbell receives a complaint, she has a technician check on the temperature and, if no technician is available, she checks on the temperature herself [id.]. Campbell stated the temperature throughout the REC is not constant because there are places where there is better airflow [id. at 136]. Campbell stated if Plaintiff, or another employee, needs to be cooler, she has them move to a location with better airflow [id. at 136]. Campbell also testified the air conditioning at the REC usually breaks about twice a summer [id.].
McCollum stated he receives frequent complaints about the temperature on the workroom floor -- some employees complain they are too hot, others complain they are too cold [id., Exhibit 20 at 44]. McCollum stated the temperature at the REC is kept in the low seventies and the thermostat will be turned down when it gets really hot outside [id. at 45]. McCollum stated the REC did have occasional problems with its air conditioning system because it is over ten years old [id. at 45].
Sharon Miller ("Miller"), another supervisor, testified the thermostat for the air conditioner was kept at 72 degrees [id., Exhibit 18 at 208]. Miller stated when Plaintiff complained about the heat, she would move her to another site and also would try to adjust the temperature [id.].
Gertha Lee ("Lee") testified she has received complaints about the temperature at the REC [id. at 271]. Lee stated if the thermostat setting appears to be okay and other nearby employees do not complain they are too warm, the complaining employee is allowed to move to a cooler site [id.]. Lee stated if the other nearby employees also complain they are too warm, a technician is called to check the thermostat [id.].
A December 12, 2002 letter from Dr. Liezelle Jurgens states she is the primary care physician for Plaintiff and states Plaintiff "relates a medical history of perfume related migraine headaches, and for this reason it is my recommendation that accommodations be considered to allow her to work within a fragrance-free environment." [Doc. No. 57, Exhibit 52]. A similar letter from Dr. Jurgens dated April 28, 2003, also appears in the record [id., Exhibit 55].
Dr. Jurgens' deposition was taken on December 14, 2006 [id., Exhibit 7]. During her deposition, Dr. Jurgens states that throughout her treatment of Plaintiff, Plaintiff consistently stated that fragrances and chemicals triggered her migraines and she had no reason to doubt Plaintiff's statements in that regard [id. at 26]. However, Dr. Jurgens acknowledged that other than Plaintiff's own statements that fragrances and chemicals triggered her migraines, she had no empirical data upon which such a conclusion could be based [id. at 29]. Dr. Jurgens further testified that allowing Plaintiff to work in a fragrance free environment would benefit Plaintiff, "if the migraines are truly triggered by the fragrances . . .." [Id. at 16-17].
Dr. Michael DeShazo, M.D., a specialist in neurology and a member of the American Headache Society, testified telephonically during the hearing before the ALJ [id., Exhibit 10]. Dr. DeShazo estimated he had treated approximately ten thousand patients for headache related complaints over a 27-year period [id. at 52]. Dr. DeShazo testified he had reviewed numerous medical records concerning Plaintiff [id. at 53]. With regard to Plaintiff's fragrance sensitivity, Dr. DeShazo testified he had not seen a patient in his practice who was as sensitive to fragrances as Plaintiff [id.]. Dr. DeShazo testified:
Many patients are very sensitive to fragrances, and there are certain ones, but she's probably the most sensitive person I think I've seen, at least in reviewing our records, it's very few people - - I don't think that anybody's ever reported fabric softener as triggering headaches. I suppose there may be one out there that could be more scented than the others.
Pursuant to an agreed order granting Defendant's request for an independent medical examination under Fed. R. Civ. P. 35 [Doc. No. 19], Plaintiff was examined by Dr. Alan Hirsch on February 4, 2007, in connection with her migraine condition. Dr. Hirsch's report of his evaluation of Plaintiff states:
The patient states that for most of her life, she has had no problems with odors, except for sensitivity to very strong smells. She states she routinely would use perfumes, as well as regular detergents. . . .
Approximately six months after the auto accident in 1990, she slowly began to note that she was more sensitive to scents. Smells would bother her more. She was unable to wear perfume . . . odors caused her to have headaches . . . She states that perfume, such as Opium, or cigarette smoke, would cause her to develop headaches, dizziness, and lightheadedness, accompanied by palpitations and trouble thinking. She states that after five to ten minutes of exposure to odors, she would get a headache, photophobia, and sonophobia. . . .
As the years progressed, less intense odors began to bother her. She states at work there are 700 people at arms-length away from each other . . . She state[d] then and even now she frequently misses work secondary to fragrance triggers of her headaches. She also occasionally experiences headaches which are triggered by weather. She states that last year she took more than twelve weeks off work secondary to migraines and low back pain.
She states her odor sensitivity continued to worsen so that she was avoiding stores and would also avoid the baby and laundry aisles at grocery store. She is only able to go out to the mall approximately two times per year . . .. She continued to worsen to the current point of severity. It is so severe now that she is functionally disabled.. . . She states that this is affecting her life now in the sense that she only goes to work, home, and the doctor. . . .
At work, her employers (the Post Office) would move her to sites with low smell. She finds she cannot go to the break room secondary to strong odors. When people wear AXE, the underarm spray, her symptoms become markedly worse. Odors that bother her now include perfumes, scented lotions, cleaning chemicals, scented detergents, and her roommate's shampoo. . . .
She states that after being exposed to a paint smell at work, she experienced symptoms which caused her to miss work for approximately one week. Even after one week when she returned to work, she could not sit near the walls. This lasted for approximately three weeks after the walls had been painted. [Doc. No. 57, Exhibit 8 at 2-4].
Based upon a medical history, physical examination, cranial nerve examination, a range of motion examination, a motor examination, gait examination, cerebellar examination, sensory examination, reflex examination, chemosensory testing, and psychological testing, Dr. Hirsch's impression included: odor-induced migraine, rule out seizure (doubt); cacosmia; phantageusia; status-post motor vehicle accident with neck and low back pain; agoraphobia; depression; pseudohyperosmia (rule out adreocortical deficiency); partial hyposmia; atypical cephaliga with components of cervical radiculopathy, post-traumatic cephalgia, and migraine; dysgeusia (Topamax-induced); pseudohypergeusia; odor-induced multiple chemical sensitivity-like syndrome; ocular migraine; amigraneous migraine; vasomotor rhinitis; insomnia; bilateral S1 radiculopathy; right L5 radiculopathy; Post's pseudodementia versus mild cognitive impairment; and panic attacks. [Id. ].
This patient's disabling symptoms may very well be managed, including the odor-induced headaches and odor-induced other symptoms following with different medication approaches. A neurologist may be able to consider a trial of the following medications: Trileptal, Paxil, Protriplyne, Fluvoximine, Petadolex, or Prednisone, pending the results of the additional suggested tests. While she is markedly bothered by her symptoms at the current time, working in a low odor environment temporarily and using medication to control her symptoms, would more likely than not, lead to a marked reduction in her symptomatology and ability for her to return to work. [Id. at 18].
In an addendum to his report, Dr. Hirsch responded that as a result of his testing he found evidence of an olfactory impairment [id. at 19]. When asked if this impairment substantially limited any of Plaintiff's major life activities, Dr. Hirsch responded:
Yes it does. While she is able to walk, stand, sit[,] bend and breathe, she experiences difficulty in work situations in the presence of strong odors. She could work in another position such as data entry clerk or a situation without the presence of odors, or, after appropriate treatment, I believe that her symptoms will become much improved. With appropriate medication management, I feel she could probably work in the absence of the above-mentioned restrictions. [Id.].
When asked what accommodations would allow Plaintiff to perform a data entry clerk position, Dr. Hirsch responded:
If she could be in a room that would limit her exposure to strong odors in the environment and from her co-workers, this would allow her to function at a very high level. [Id. at 20]. When asked what sensitivities he found to a reasonable degree of certainty and what types of medical restrictions Plaintiff's employer would have to abide in the workplace, Dr. Hirsch further responded:
Her sensitivity would primarily be to solvents and other strong chemical odors. She would not be able to work in the presence of these strong odors, but other odors may also bother her as well including strong food odors, body odors, perfumes and the like. However, having said this, I would encourage her to work in environments without these and be able to work fine, but even more importantly, I believe appropriate treatment with medications will allow her to ultimately work even in the presence of these odors.
[Id.]. Dr. Hirsch stated that Plaintiff's:
Medical restrictions . . . at this time would be such that she should work in a low-odor environment if at all possible. Working in an area of high odor will make her symptoms much worse and will make it impossible for her to work. These restrictions will not prevent future harm or aggravation, but rather, prevent her immediate effect. [Id.].
With regard to Plaintiff's migraines, Dr. Hirsch stated:
Migraines that she has do cause her to be intermittently incapacitated and when these headaches occur, forces her to lie down in the dark and miss work. The most effective action the UPSP [sic] could do to prevent this incapacity, is (1) prevent her exposure to strong odors which induce her migraine. . ..
Her current migraines are presently incapacitating to her, but I do not believe she should be disabled by her chemosensory problems or her migraines.. . . Without . . . intervention, in her current state, she would require substantial restrictions in terms of being in the presence of strong odors and would experience frequent headache which may require her to miss multiple work days. [Id. at 21].
The transcript of the June 21, 2007 deposition of Dr. Hirsch appears in the record [Doc. No. 61-4]. Dr. Hirsch testified about the results of his examination of Plaintiff on February 4, 2007 [id. at 9], stating his examination of Plaintiff lasted "at least 12 hours, is my best recollection" [id. at 17]. Dr. Hirsch testified Plaintiff had odor induced migraines, which can be debilitating if they are severe [id. at 19, 21].
Dr. Hirsch testified Plaintiff also had multiple chemical sensitivity which he stated is: not accepted by the vast majority of the medical literature. It's traditionally described as individuals who respond to odors or to low levels of chemicals, develop . . . symptomatology including not only headache, but dizziness, confusion, palpitations, desire to leave the environment -- an overwhelming desire to leave the environment.
[Id. at 22]. Dr. Hirsch stated Plaintiff also had "[v]asomotor rhinitis . . . an abnormality whereby the nose will intermittently become very stuffed up." [Id. at 24].
Dr. Hirsch's opinion was that if Plaintiff could be kept in "an environment where the aesthethics are such that there's a very low level of ambient aroma, . . . she would be at a much better ability to work, . . . especially until her medications were given that would kick in to help reduce her symptoms." [Id. at 25]. With regard to an accommodation that would allow Plaintiff to be more successful in her work, Dr. Hirsch stated: there's two different ways of doing this. The logical and easy approach would be to treat her with medication to try and get it better.
The less logical, more challenging. . . approach would be to modify her environment so that she's not exposed to levels of odor. [Id. at 28-29].
Dr. Hirsch further stated Plaintiff experiences "cacosmia" meaning "smell that otherwise should be interpreted hedonically as being very positive, as being a pleasant aroma, is interpreted by the individual as being horribly distorted and unpleasant." [Id. at 26]. With regard to the odors that bother Plaintiff, Dr. Hirsch stated: at the time I saw her, it was very clear that strong odors were the most bothersome to her, particularly the solvents, but even other strong odors. . . . an individual with odor-induced migraine headaches, if they perceive the odor is coming from a co-worker they dislike, the odors are horrible and cause headaches. On the other hand, when the person perceives the identical odor as coming from somebody they like or from another environment that's a positive one for them, the odor doesn't bother them. This is just part of the nature of the problem. [Id. at 29-30].
Dr. Hirsch stated that minimizing strong odors like solvents, nail-polish odors, cigarette odors and strong food odors in Plaintiff's work environment "would have a positive impact on her ability to work and reduce the headaches, but I would do this only as an adjunct to medical intervention." [Id. at 30]. Dr. Hirsch further testified that "while perfumes and colognes bother [Plaintiff] at work and sometimes bother her at home, the same perfumes and colognes in another environment may not bother her." [Id. at 32]. Dr. Hirsch stated that with aggressive medical intervention, he believed Plaintiff would have a high likelihood of recovery [id. at 33].
When asked if it would be difficult for a REC supervisor to detect the odors that bothered Plaintiff, Dr. Hirsch stated:
Yeah, it would be. It would be impossible for them to know which ones are going to be perceived by her as being positive or negative. . . . It's hard, because in some individuals with -- It's been described in the past that some individuals with odor-sensitive migraines, even the opening of a newspaper in the morning, an ink newspaper, is enough to induce them to have migraine headaches . . . one's olfactory ability varies depending upon the time of day, menstrual cycle, and also some other parameters, how hot and cold it is outside. So it would be very challenging. [Id. at 36-37].
With regard to the REC, a facility with over 500 employees in one room, Dr. Hirsch testified that "[i]t's not possible to maintain something that's a fragrance-free environment. You can ask people to minimize the amount of perfume or cologne they wear; however, the smell is present anyhow, whether it be through underarm spray or any of other things. Even the strong smell of food may be enough to induce a problem." [Id. at 37-38]. Dr. Hirsch also stated this would be a problem in Plaintiff's case because not all of her migraines are caused by smells/odors [id. at 39].
With regard to modifying the environment in the REC to accommodate the Plaintiff, Dr. Hirsch stated such would not be possible because:
[y]ou would have to either change the architecture such that you put her in a separate room with low odors or - to do that in a large open room, you can try to do little things like move her away from one type of machinery or another. But when you're dealing with so many people and when she's bothered by so many different things, anything from cleaning lotions to scented lotions to scented detergents to scented shampoo, all of these can intermittently be bothersome to her and you'd almost have to have her either in a separate room or, preferably, give her medications that will help her so that the odors don't bother her. [Id. at 39]. Dr. Hirsch stated:
Although you can encourage people to minimize their odor, it's going to be there whether you want it to or not.. . . I think it would be a reasonable accommodation for a work site to encourage people not to wear perfume and cologne, but the ideal approach is medical intervention. [Id. at 42]. With regard to the success or ability of supervisors in the REC to control fragrances, Dr. Hirsch stated:
I think it's very hard for management because people will do -- on their own will do what they want to do. All management can do is encourage people to -- or discourage people from using. . . high levels of odor. It's very hard to strictly enforce. . . . You can mandate enforcement under certain circumstances when people really know that it's going to be . . . if people are aware of the extent of the problem, like in the asthma unit or here . . .where people can't wear smells around or it impacts upon our testing. It's much harder in an environment where there's - - where there are so many people over many shifts and where so many different smells are affecting the individual. [Id. at 54-55]. Finally, with regard to possible presence of strong fragrance wearers in the REC, Dr. Hirsch testified:
The problem is, is that - - Well, there's several problems. The paint from the walls bother her, the smell from the food around. There's many - - Even just the smell of the Axe or the underarm smell is enough to bother her. So limiting the perfumes may help her a little bit. More likely than not, limiting the perfumes will just then redirect things that bother her to some other odors that are there that she now detects that she couldn't detect before because of the high levels of the perfume or cologne. [Id. at 58].
Plaintiff testified that as of 2004, none of her doctors had heard of the Family and Medical Leave Act ("FMLA") [id., Exhibit K at 140]. She stated, "I've never been to a doctor yet that has heard of the [FMLA]." [Id.]. Plaintiff testified she has had to explain the FMLA to each of her physicians and complete the FMLA forms for their signature [id., Exhibit H at 135-36, 150, 207; Exhibit I at 86; Exhibit K at 226-27]. Plaintiff testified she would tell her doctors that she needed her FMLA forms "worded in a specific way" so she wrote them herself [id., Exhibit H at 136]. Plaintiff also testified that "[t]he reason I typed them out was, from working in the medical profession. I know for a fact that doctors do not like paperwork." [Id., Exhibit K at 139].
The FMLA certification concerning Plaintiff completed by Mary Chrostowski, M.D. dated August 30, 1999, stated the Plaintiff has migraine headaches [Doc. No. 57, Exhibit 1 at 1]. The FMLA certification stated that Plaintiff will be intermittently incapacitated by migraine headaches, and the incapacity "will be more frequent if the patient [is] exposed to triggers such as perfume and other strong odors." [Id.].
The FMLA certification concerning Plaintiff completed by Kellie Jolley, M.D. dated May 4, 2000, also stated that Plaintiff has migraine headaches [Doc. No. 57, Exhibit 2 at 1]. The certification indicates Plaintiff's impairment based upon migraine headaches will be intermittent and will be more frequent if she is exposed to triggers such as perfume [id.].
The additional FMLA certification concerning Plaintiff completed by Dr. Jolley dated May 7, 2001, also stated Plaintiff has intermittent migraine headaches [id., Exhibit 3 at 1]. The certification states Plaintiff's episodes of migraines will be more frequent if she is exposed to triggers, such as perfume, cleaning products, or other strong odors [id.].
Plaintiff testified her back started hurting in 2001 and, since that time, she has had chronic, but not consistent, back pain [Doc. No. 43, Exhibit G at 114]. Plaintiff testified she has been able to control her back pain by epidurals, which she stated "have helped tremendously" [id. at 116-17]. Plaintiff testified she has been involved in four automobile accidents which injured the same area of her back [id. at 45-46]. Plaintiff testified that despite her back pain, she has continued to drive, go grocery shopping and do everything for herself [id. at 115].
Plaintiff's pain physician, Steven Dreskin, M.D., testified during his deposition of June 19, 2006, that Plaintiff's back "is able to function in a relative sense of doing her ordinary daily life functions." [Id., Exhibit Q at 57]. Dr. Dreskin testified "Plaintiff has limitations and restrictions, but she's certainly not like some patients who have -- which are completely nonfunctional and housebound." [Id.]. A report from Dr. Dreskin, dated November 11, 2002, diagnosed Plaintiff with L5-S1 disc protrusion with intermittent radiculopathy and stated that Plaintiff should avoid moving site to site and avoid repetitive bending [Doc. No. 57, Exhibit 34].
The FMLA certification signed by rheumatologist Charles Sienknecht, M.D. dated March 10, 2003, states that Plaintiff has L5, S1 disc protrusion with intermittent radiculopathy [Doc. No. 57, Exhibit 35 at 1]. Dr. Sienknecht stated that Plaintiff "may be unable to drive or have difficulty walking and/or bending." [Id. at 2]. Dr. Sienknecht also recommended that for a one-year period Plaintiff limit moving from site to site as much as possible, avoid repetitive bending, and avoid lifting two to five pounds repetitively [id.].
On November 11, 2002, Gregory White, M.D., submitted a report stating in pertinent part that Plaintiff was experiencing "[r]ight lower extremity radiculitis with central disc protrusion at L5-S1 [Doc. No. 43, Exhibit U at 2]. Dr. White also commented that at her request Plaintiff "was given a work restriction sheet to avoid moving site to site and to avoid repetitive bending." [Id.].
A report by Roger W. Catlin, M.D. dated August 4, 2003, states the physician's impression as: "[Plaintiff] report[s] low back pain, either of the sacroiliac, bilateral SI joint, or low lumbar facet joint arthropathy. Note: There is no indication that [Plaintiff] has true discogenic pain nor radiculopathy." [Doc. No. 43, Exhibit R at 4]. Dr. Catlin commented that Plaintiff's "pain diagram does not support a 'radicular pain.'" [Id. at 1]. Dr. Catlin also commented he was "having a difficult time putting [Plaintiff's] historical data together with her imaging studies, electrodiagnostic studies, psychological examination, current physical examination and her current claims of pain. The pieces do not fit a clinical picture. At best, on objective studies, [Plaintiff] has mild degenerative changes of the lumbar spine, specifically at L5-S1 and potentially at L2-L3." [Id. at 3]. Finally, Dr. Catlin stated:
I do not see any evidence that any form of physical activity will be damaging to [Plaintiff]. Although she may claim and in fact experience some discomfort in function, physical activity, even at a moderate to significantly moderate level, should not be damaging for her, and in fact may be therapeutic. [Id. at 5].
Pursuant to an agreed order granting Defendant's request for an independent medical examination by an orthopedic specialist under Fed. R. Civ. P. 35 [Doc. No. 20], Plaintiff was examined by Dr. W. H. King, Jr. on February 5, 2007 [Doc. No. 43, Exhibit S]. Dr. King's impression was chronic lumbosacral strain; mild degenerative disc disease L4-5 and L5-S1 [id. At 2]. Dr. King stated Plaintiff "is to have activity as tolerated" and: The [Plaintiff] should not be limited in her walking activities or breathing activities. She may well be limited in sitting for long periods of time and certainly from bending and stooping frequently. The [Plaintiff] would not have limitation of duties in a light duty capacity, such as described as a data conversion operator. An ergonomic work environment would be ideal . . .. She would also most probably benefit from the ability to change position as necessary. These work accommodations would help her then [sic] further aggravation of her low back condition.
3. Requested Accommodations
In a written request for reasonable accommodations dated November 21, 2002, Plaintiff asked for the following accommodations: (1) a fragrance ban due to her "migraines and related symptoms brought on by [her] severe sensitivities to fragrances;" (2) a limit on moving from site to site within the REC as much as possible; namely, Plaintiff wanted "to be the last person moved out of site when the mail volume is low due to severe pain caused by my L5, S1 disc protrusion"; and (3) the air conditioner to be set at a reasonable temperature, 72 degrees [Doc. No. 57, Exhibit 11 at 1-2] (emphasis in original).
In her notes from a "reasonable accommodation teleconference" on January 8, 2003, Plaintiff stated she told the reasonable accommodation committee that when she used the word fragrance:
I told them I used this word because people were always thinking I was complaining about just perfume when in reality I was encompassing all products with smell -- perfumes, scented lotions, detergents, cleaning chemicals, etc. The same man asked exactly what accommodation I was asking for and I told him that if the perfumes were done away with, the lotions (and I told them both hand and body since many of the perfume manufacturers made lotions to correspond with their perfumes and to me, there was no difference between a perfumed body lotion and perfume) and the air freshener dispensers and hand sanitizer dispensers were done away with, that should give me enough of a barrier removal in order to perform my duties. [Id., Exhibit 24 at 3].
A committee evaluation form also dated January 28, 2003, states with regard to the accommodations requested by Plaintiff:
[Plaintiff] requested to be provided a fragrance-free environment. [Plaintiff] identified "fragrance" as colognes, hair products, air fresheners, sanitizers, cleaning solutions, laundry detergents, scented lotions, perfumes -- anything with odor. She also requests that no cleaning be done while she is in the building, and that the supply door remain closed at all times. . . . [Plaintiff] also stated that moving site to site creates difficulties for her because she is required to bend at an odd angle to adjust her workstation up and down, and suggested ...