Pearce-Mato v. Eric K. Shinseki Sec'y of the Dep't of Veterans' Affairs, 2:10-cv-1029

SANDRA PEARCE-MATO, Plaintiff,vERIC K. SHINSEKI Secretary of the Department of Veterans' Affairs, Defendant.

2:10-cv-1029

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: June 11, 2012

MEMORANDUM OPINION AND ORDER OF COURT

Pending now before the Court is DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, filed at Doc. No. 27. In support of the motion, Defendant has also filed an appendix (Doc. No. 28), concise statement of material facts (Doc. No. 29), and brief in support (Doc. No. 30). Plaintiff responded with the filing of PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 33), with brief in support (Doc. No. 34), response to Defendant's concise statement of material facts (Doc. No. 35), Plaintiff's own concise statement (Doc. No. 36), and appendix (Doc. No. 37). Defendant has responded to Plaintiff's concise statement, and replied to Plaintiff's brief (Doc. No. 38). The motion is now ripe for disposition.

Generally speaking, this is an employment discrimination action in which Plaintiff brings a claim for constructive discharge against her former employer, Eric K. Shinseki, Secretary of the Department of Veterans Affairs, under the Rehabilitation Act (the "Act"), 29 U.S.C. §§ 701, et seq. Plaintiff seeks back pay, front pay or reinstatement, and other monetary compensation. See Doc. No. 15, Amended Complaint.

The Department of Veterans Affairs (the "VA") has filed a motion for summary judgment, arguing primarily that Plaintiff cannot satisfy the prima facie case for discrimination because she was not "regarded as" disabled by her employer, and she was not qualified for the position she held at the time of her retirement. See Doc. No. 30. In the alternative, Defendant argues that, even if Plaintiff was able to establish a prima facie case, the VA has set forth a legitimate non-discriminatory reason for its actions that resulted in her decision to retire when she did. Id.

For the following reasons, the VA's motion for summary judgment will be denied.

Factual Background

Plaintiff Sandra Pearce-Mato was employed by the VA at the VA Medical Center in Butler, PA ("Butler VAMC") as a full time employee from January 5, 1975 until she was medically terminated on October 10, 1990, and again from March 8, 1992, until she retired effective May 1, 2009. During her former period of employment from 1975 to 1990, Plaintiff worked as a nurse. She sustained a work related injury on December 28, 1988 when a patient kicked her in her lower and upper back. Between October 10, 1990 and her return to work at the Butler VAMC in 1992, Plaintiff collected worker's compensation benefits.

Plaintiff returned to work at the Butler VAMC on March 8, 1992 as a Coding Clerk. Beginning on or about December 6, 2003, and continuing until on or about June 21, 2008, Plaintiff worked as a Medical Records Technician/Lead Scanner. Beginning on June 22, 2008, Plaintiff's position became Clinical Applications Coordinator ("CAC"), a position she held until her retirement in 2009. The record indicates, however, that, despite the position/title change, she continued to work as a Medical Records Technician/Lead Scanner until October 12, 2008. As aCAC, Plaintiff's first line supervisor was Nevada "Sue" Legacy, and her second line supervisor was Douglas George. There were three (3) CACs at the Butler VAMC during the relevant time period: Plaintiff, Carol Niggel, and Janice Martin, with Carol Niggel as Team Leader (although she did not supervise Plaintiff).

According to Plaintiff, she "lost [her] voice" for the first time in approximately May 1984, and that her "[v]oice returned" on June 25, 1991. See Doc. No. 28-1, Plaintiff's Depo. at Tr. p. 30. This voice loss is apparently a result of mercury toxicity, a condition Plaintiff developed from having mercury fillings in her mouth for approximately fifteen cavities. During this period, Plaintiff described her voice as "hoarse and very low", and that this condition was consistent throughout the seven year period. Id. at Tr. pp. 32-33. Plaintiff undertook speech therapy, which she also called voice therapy, "for a long periods of time" during this period, to no apparent avail. Id at Tr. pp. 34-35. Beginning in the latter months of 1984, and continuing until she was medically terminated in December 1990, Plaintiff utilized an electrolarynx device while working, which is an electronic device that she would hold to the side of her neck that would vocalize sounds as she spoke. Plaintiff testified during her deposition that she began using the electrolarynx after a speech pathologist at the VA informed her about the device. She denied that she was required to ask any of her supervisors at the Butler VAMC if she could use to electrolarynx while working and she further testified that no supervisors ever objected to her use of the device. Id. at Tr. p. 39.

Following her return to work at the Butler VAMC, Plaintiff lost her voice intermittently between June 25, 1991, and October 15, 2008, testifying that, "Periodically throughout this whole time, I would lose my voice for a period of time, maybe a month, maybe less, but there was no problem." Id. at Tr. pp. 40-41. Plaintiff contends that she lost her voice for a secondextended period of time beginning on October 15, 2008, a loss which lasted until July 2009. Plaintiff started training on a full-time basis for the CAC position on October 12, 2008. She was trained by a retired Butler VAMC employee who had been asked to return to the facility in order to train her. According to Plaintiff, the trainer came to work on October 14, 2008, "with a very bad upper respiratory infection." Id. at Tr. pp. 48-49. That evening, Plaintiff began to develop scratchiness and soreness in her throat, and she developed laryngitis the next day. She contacted her physician, Roy Kerry, M.D., on or about October 16, 2008, and was prescribed antibiotics.

She contacted Dr. Kerry once again on October 24, 2008, and scheduled an appointment to see him on November 4, 2008. After examining Plaintiff, Dr. Kerry noted the following impression: "She has slight vocal cord edema from excessive use. We'll recommend that she have light duty, meaning that she can do her nursing duties with reduction of the amount of speech use required. Therefore, I would recommend that she be removed from the position of teaching and return to other nursing care that does not require the continuous use of her voice for a period of about 4 weeks." Doc. No. 28-9, Med. Records form Dr. Kerry dtd. Nov. 4, 2008. As per that recommendation, Plaintiff was placed on light duty beginning on or about November 4, 2008, although that duty entailed continuing to work as a CAC undergoing computer training.

Also at some point in late October, 2008, Plaintiff approached Team Leader Carol Niggel about using her electrolarynx. According to Plaintiff, she was told by Ms. Niggel that she "could not use one of those mechanical things (electrolarynx), and that I had to use my own voice." Doc. No. 28-1 at Tr. p. 43. At some point thereafter, Plaintiff asked her first line supervisor Sue Legacy about using an electrolarynx, also informing Legacy of Niggel's response. According to Plaintiff, in response Ms. Legacy "just smiled and said 'oh well'". Id. Plaintiff interpreted this reaction from Legacy as an adoption of Niggel's position that the use of the electrolarnyx wasnot permitted. Plaintiff submitted an Application for Promotion or Reassignment for the position of Supervisory Medical Records Technician, also known as Lead Coder, on December 8, 2008. Ultimately, Plaintiff was not selected for this position.

At the request of her employer, Plaintiff underwent a Fitness for Duty examination with Donald McGraw, M.D., on December 9, 2008. Dr. McGraw referred Plaintiff to Joseph Turner, M.D., an ear, nose, and throat specialist. Plaintiff was also away from work at the Butler VAMC on sick leave from December 17, 2008 until March 13, 2009 for surgery on her hand and wrist. The surgery resulted from an injury sustained on December 16, 2008, when Plaintiff slipped and fell on ice. On January 6, 2009, Plaintiff was examined by Dr. Turner for a second Fitness for Duty examination, who then referred her to Priya Krishna, M.D., at the University of Pittsburgh Voice Center. Dr. Krishna conducted a Fitness for Duty examination, Plaintiff's third such exam, on February 6, 2009. Dr. Krishna recommended that Plaintiff undergo voice therapy, and that she follow-up for a re-evaluation following completion of the therapy. Ultimately, Plaintiff did not undergo voice therapy because, according to her, she could not afford to pay for it, and her employer would not cover the expense.

Plaintiff returned to work during the week of March 13, 2009, and was placed on light duty assignment in the Business Office beginning on March 16, 2009. During this assignment, Plaintiff was no longer training for the CAC position; instead, she was doing general administrative work. At some point following the February 6, 2009, Fitness for Duty examination, Plaintiff met with Michelle Dominski, Butler VAMC Human Resources Officer, for the first time. It was during that meeting that Plaintiff contends she was informed that Defendant would not pay for voice therapy because it was not a work-related injury. Doc. No.28-1 at Tr. pp. 66-67. Not inconsistent with Plaintiff's recall, Dominski described what occurred during that first meeting in slightly greater detail:

During the meeting, [Plaintiff] indicated that she was not able to speak and was unsure as to if and/or when the situation would be resolved. We discussed the fact that she had undergone a fitness for duty, a referral to an ENT, and then a final referral to the Voice Center. We discussed the fact that the Voice Center recommended that she undergo voice therapy, as well as, follow up at the completion of voice therapy for re-evaluation. She stated that she was unwilling to undergo voice

...