Zaleski v. McDonough

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CRISTEN ZALESKI, Plaintiff, v. DENNIS McDONOUGH, Defendant.

No. 21-13004

United States District Court, E.D. Michigan, Southern Division

January 17, 2024

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO 27)

F. Kay Behm, United States District Judge

This case is before the court on a motion for summary judgment filed by Defendant Dennis McDonough, Secretary of Veterans Affairs. (ECF No. 27). Plaintiff Cristen Zaleski filed her initial complaint against McDonough and the U.S. Department of Veterans Affairs (“VA”) on December 24, 2021 alleging that she was discriminated against and faced retaliation on the basis of her disability and for seeking reasonable accommodations in violation of the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act. (ECF No. 1). Zaleski's complaint raises claims for failure to accommodate (Count I) disability discrimination (Count II), retaliation (Count III), and a hostile work environment (Count IV). Id., PageID.7-13. This case was initially before District Judge Denise Page Hood, but was reassigned to the undersigned on November 17, 2023. The court held a hearing on this motion on January 4, 2024, and both parties participated in oral argument. For the reasons stated below, the court GRANTS IN PART AND DENIES IN PART Defendant's motion.

I. FACTUAL BACKGROUND

Zaleski was employed at the VA hospital in Ann Arbor, Michigan from February 20, 2018 through September 14, 2020. (ECF No. 1, PageID.2). Zaleski asserts that she is a “veteran with service-connected disabilities, and is disabled as defined under the ADA [] with multiple disabilities that substantially limit one or more major life activities.” Id., PageID.3. Specifically, Zaleski testified that she suffers from “Barrett's esophagus, IBS, gastric reflux, gastric ulcer disease, internal prolapse, fecal incontinence, rectocele, anxiety, [and] depression.” (ECF No. 27-4, PageID.165, Zaleski Deposition). Because of her disability, Zaleski was appointed to her position under the VA's “Schedule A hiring authority,” which “is used to appoint persons with physical disabilities, psychiatric disabilities, and intellectual disabilities.” (ECF No. 27, PageID.107-08); see also 5 C.F.R. § 213.3102(u). Individuals who are appointed under the Schedule A hiring authority may qualify for conversion to permanent status after two years of satisfactory service. 5 C.F.R. § 213.3102(u)(6)(i). Because of her appointment under this status, Zaleski claims her direct supervisors had notice that she was disabled. (ECF No. 29, PageID.302-03).

Zaleski was initially hired as a supply technician but was transferred to a purchasing agent position on September 16, 2018, after she suffered a shoulder injury. (ECF No. 27-2, SF-50 Notification of Personnel Action); (ECF No. 33, SF-50 Notification of Personnel Action^[1]). The purchasing agent position was a desk job and did not have the same physical demands as the supply technician position. (See ECF No. 27-4, PageID.172) (“Q. Okay. So was the...purchasing agent position less physically demanding as [sic] the supply technician, is that why they offered it to you? A. Yes.”). This was a “lateral transfer,” and Zaleski maintained the same salary across both positions. Id. As a purchasing agent, Zaleski's responsibilities included “making purchases of medical supplies, such as band aids, gloves, syringes, etc.” (ECF No. 27, PageID.109); (ECF No. 27-7, Position Description). The general process for making a purchase begins with a “2237 form,” which is associated with a request for supplies from different VA hospital departments. (See ECF No. 27-4, PageID.186, Dotson Deposition) (“Q. Remind me what the 2237 is? A...the 2237 is the initial document that you use to create the purchase order.”). Each of these 2237 forms must be signed by the relevant purchasing agent within 24 hours of each order. See id. (“Q. Was it your understanding that purchase orders had to be signed within 24 hours of placing the order? A. Yes, I believe so.”). Purchasing agents are also supplied with a government purchasing card and are required to complete certain trainings to maintain the activation of that card. (See ECF No. 27-16, PageID.268) (“Please complete trainings and provide certificates for your card to be re-activated.”). Pursuant to the position description, the purchasing agent position “[r]equires some physical effort such as standing, sitting, walking, or bending” but “[t]here are no special physical demands.” (ECF No. 27-7, PageID.256).

As a purchasing agent, Zaleski was directly supervised by inventory manager Lori Kraft (“Kraft”), who served under the head of the logistics department, chief supply chain officer Mark Dotson (“Dotson”). (ECF No. 27, PageID.108); (see also ECF No. 27-4, PageID.173 (“Q. All right, and who was your direct supervisor as a purchasing agent? A. Lori Kraft.”); ECF No. 27-6, PageID.220 (“Q. Who was your second-line supervisor? A. After him, it would be Mark Dotson.”)). Zaleski testified that she “was consistently rated very highly in her performance reviews in all respects.” (ECF No. 29, PageID.303). “Between September 9, 2018, and December 7, 2018, she was rated ‘fully successful' in every performance category, including ‘purchasing card duties,' ‘customer service,' ‘Procurement support,' and ‘Training'” and was “again rated ‘fully successful' in every category from December 08, 2018, to September 30, 2019, meeting numerous objective performance metrics.” Id.; see also ECF No. 29-4, 2018 Performance Appraisal; ECF No. 29-5, 2019 Performance Appraisal. Zaleski claims she was never formally disciplined as a purchasing agent. Id.

Zaleski alleges her health began to decline in the summer of 2019 and her disabilities became more pronounced. Id. Zaleski further alleges, around that time, Kraft began to penalize her for health-related absences, “despite [Zaleski] continuously asking Kraft for help in relation to her disabilities and her need for accommodation.” (ECF No. 1, PageID.3). In October 2019, Zaleski was designated “AWOL” for failing to attend work on a number of occasions, “despite Zaleski's requests for assistance and medical documentation she provided reflecting the reason for her absences.” Id., PageID.4; ECF No. 29, PageID.306. She also alleges Kraft accused her of misusing her sick leave, and she was placed on a “sick leave certification plan,” which came with increased monitoring and required the submission of a doctor's note following each absence. (See ECF No. 27-4, PageID.183); (see also ECF No. 29-7, Sick Leave Certification). Because of her health decline, Zaleski eventually applied for FMLA leave and her application was granted on November 25, 2019. (ECF No. 29, PageID.306).

From the time her health began to decline until her termination, Zaleski claims Kraft was openly hostile to her because of her more pronounced disabilities, and took the following actions: (1) she interrogated Zaleski about her disabilities and asked why her conditions “made her so sick;” (2) she called Zaleski a “f***ing hot mess,” as well as stated “you're falling apart,” “I wouldn't want to be one of your kids,” and “you're f***ed up all the way around;” (3) she told Zaleski she needed to “toughen up” and compared Zaleski's disability to Kraft's own need for brain surgery; (4) she singled out Zaleski for disparate treatment and subjected her to unmerited discipline; (5) she held Zaleski to “different standards than comparable non-disabled peer employees regarding punctuality and performance;” (6) she ignored Zaleski's scheduling requests and requests to enroll in job training; (7) she asked Zaleski invasive questions about her disabilities and asked other employees about Zaleski's health; and (8) she failed to give Zaleski a COVID bonus, while all other non-FMLA employees allegedly received one. (ECF No. 1, PageID.4-5); (ECF No. 29, PageID.307).

In or around July 2020, Zaleski was informed by her physician that she needed to undergo surgery to treat a hiatal hernia. (ECF No. 1, PageID.5). In late August 2020, Zaleski claims she informed Kraft and Dotson her surgery was scheduled for September 30, 2020. Id., PageID.6. Zaleski claims she also informed them she would need four weeks of leave to recover and, upon her return, she would be unable to lift more than 25 lbs. Id. Zaleski provided a letter from her treating physician supporting this request. (See ECF No. 27-19, Letter from Stephanie Brodie, NP). This letter stated, in part: “Ms. Cristen Zaleski will be undergoing laparoscopic vs transthoracic hiatal hernia repair on September 30, 2020 at the Ann Arbor VA Hospital. She will remain in the hospital for approximately 3-5 days and will be reevaluated at 4 weeks postop when she can return to work. She will have a lifelong lifting restriction of up to 30lbs.”^[2] Id.

Kraft allegedly told Zaleski that “if she had a [lifting] restriction of any kind, she could not keep her job. (ECF No. 29, PageID.309) (emphasis in original). Zaleski further claims that, after receiving this letter, Dotson contacted her physician's office and spoke with Stephanie Brodie, “demand[ing] information regarding Zaleski's upcoming planned absence,” which Brodie said was “unprofessional.”

(ECF No. 29-10, PageID.428, sworn statement of Stephanie Brodie, NP). Finally, Zaleski alleges Kraft ignored her requests and impeded her ability to seek donated leave^[3] and Disabled Veteran Leave (DVL) to cover her recovery time after surgery. (ECF No. 29, PageID.308-09) (“Ms. Zaleski submitted her DVL application to Ms. Kraft to sign, but Ms. Kraft would not process it.”).

Zaleski claims she contacted EEO Program Manager Diana Cass (“Cass”) on September 11, 2020 to make a formal...