Bourque v. Shinscki
Filing
18
Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER. Defendant's motion for Summary Judgment is ALLOWED. (RGS, law3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-10164-RGS
ROBERT J. BOURQUE
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
December 9, 2011
STEARNS, D.J.
Robert Bourque, a former nurse at the Department of Veterans Affairs (VA) in
Bedford, Massachusetts, brought this pro se action appealing an adverse decision of the
Equal Employment Opportunity Commission (EEOC). Bourque alleges that his VA
employer discriminated against him, in violation of Title VII of the Civil Rights Act of
1964 and sections 501-504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794(a).
On September 22, 2011, the court converted a motion to dismiss brought by defendant
Eric Shinseki, the Secretary of the VA (Secretary), to one for summary judgment
pursuant to Fed. R. Civ. P. 56(c).
BACKGROUND
The facts, in the light most favorable to Bourque as the nonmoving party, are as
follows.1 As a licensed practical nurse (LPN), Bourque was required to engage in
“extensive periods of standing and walking,” as well as “regular and recurring bending,
lifting, stooping, stretching and similar activities on a regular basis.” LPN Functional
Statement, Ex A.2 Bourque was often required to lift patients in order to bathe and
dress them, and to help them with other hygienic tasks.
In 1998, Bourque suffered a work-related shoulder and neck injury. Compl. ¶
9. In 2002, he was reinjured. Although Bourque apparently recovered to some extent,
the injury remanifested in 2005. Id. ¶ 10. The recurring injury made it impossible for
Bourque to lift more than 20 pounds on a regular basis, thus significantly restricting his
ability to perform patient care duties. See Id. ¶ 12. As a result, Bourque was placed
on light duty status in 1998, and remained on one version or another of light duty status
until 2006. Id. ¶¶ 9-11; Bourque Dep. Ex. D; Bourque v. Shinseki, 2010 WL 4388607,
at *2 (EEOC Office of Fed. Operations Oct. 29, 2010), Ex. F.
In December of 2005, Bourque filed an administrative charge of discrimination
with the EEOC. The charge was settled in March of 2006.3 Compl. ¶¶ 14-15. From
1
See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993).
2
Most exhibits cited can be found attached to the Jindra Affidavit in Docket #
12.
3
The details of the charge are not a part of the record. In an EEOC letter
appended to Bourque’s opposition, a summary of the settlement noted that “[t]he
2
sometime in 2005 to November of 2006, Bourque worked a day shift Monday through
Friday, and was not required to work weekends or on holidays. Id. ¶ 13. Because the
day shift was heavily staffed, Bourque was able to depend on the assistance of coworkers for the LPN tasks that he was unable to perform by himself. Id.
On November 6, 2006, hospital management reassigned Bourque to a rotating
day tour that required him to work on weekends and on holidays. At the meeting at
which he was reassigned, Bourque provided the Assistant Chief of Nursing with
doctors’ notes verifying his shoulder strain, neck sprain, bulging discs, carpel tunnel
syndrome, and degenerate disk disease. Bourque Dep. Ex. D. In response, the
Assistant Chief of Nursing gave Bourque an official request for accommodation form.
Compl. ¶ 18. Bourque gave the form to his treating physician, Dr. Eric Holstein. For
whatever reason, Dr. Holstein never completed the form. Id. ¶ 19. Despite his
protests, Bourque was reassigned.
On December 14, 2006, Bourque filed a charge with the EEOC, alleging that the
VA’s failure to offer a reasonable accommodation constituted discrimination on the
aggrieved party requested that his light duty assignment be honored as his reasonable
accommodation and he be placed on the late tour of 12 midnight-8:00 a.m.” It further
noted that “Mr. Bourque was advised by management and HR that he may not remain
on light duty indefinitely. He agreed with this statement.” Id. Bourque signed the
agreement.
3
basis of sex (male), disability, and age (Bourque was born in November of 1950), as
well as retaliation for engaging in protected EEOC activity (in March of 2006).
Bourque, 2010 WL 4388607, at *1-2.4
The VA’s Office of Employment Discrimination Complaint Adjudication
completed its investigation on October 18, 2007, concluding that Bourque had failed
to make out a viable claim of discrimination. See Ex. I. The EEOC informed Bourque
of his right to a hearing before an administrative law judge. When Bourque failed to
respond within the time period allotted by 29 C.F.R. § 1614.108(f), the VA’s decision
became final. Bourque, 2010 WL 4388607, at *3. Bourque appealed the decision to
the EEOC’s Office of Federal Operations, which affirmed the final decision in October
of 2010. Id.
On appeal to this court, Bourque argues broadly that the EEOC erred. He
reasserts all of his claims of discrimination, including the claim of retaliation.5 In an
Order issued on September 22, 2011, the court defined the relevant issues for the
parties to address on summary judgment. Bourque submitted his response to the Order
4
In late 2007, finding himself unable to cope with the new shift assignment and
frustrated with his unsuccessful attempts to find a less physically taxing position within
the VA, Bourque elected to retire. Bourque Dep. Ex. D.
5
“This court has de novo review of the EEOC’s decision.” Taylor v. Dole, 1988
WL 96591, at *2 (D. Mass. Aug. 30, 1988), citing Chandler v. Roudebush, 425 U.S.
840, 844 (1976).
4
on November 3, 2011, and the Secretary replied on November 23, 2011.
DISCUSSION
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “To succeed, the moving party must show that
there is an absence of evidence to support the nonmoving party’s position.” Rogers v.
Fair, 902 F.2d 140, 143 (1st Cir. 1990). If this is accomplished, the burden then “shifts
to the nonmoving party to establish the existence of an issue of fact that could affect
the outcome of the litigation and from which a reasonable jury could find for the
[nonmoving party].” Id. The nonmoving party “must adduce specific, provable facts
demonstrating that there is a triable issue.” Id. (internal quotation marks omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986) (emphases in original).
TITLE VII: DISCRIMINATION
To make out a claim of age and sex discrimination Bourque must show that: (1)
he is a member of a protected class; (2) he was qualified for the light-duty status
position he sought; (3) he was subjected to an adverse employment action; and (4) he
5
was treated differently than similarly situated employees outside his protected class.
See Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). “In a disparate treatment
case, the plaintiff has the burden of showing that [he] was treated differently from
‘persons similarly situated’ ‘in all relevant aspects.’” Smith v. Stratus Computer, Inc.,
40 F.3d 11, 17 (1st Cir. 1994), quoting The Dartmouth Review v. Dartmouth Coll., 889
F.2d 13, 19 (1st Cir. 1989). The proponent must show that the individuals with whom
he seeks to be compared have “engaged in the same conduct without such
differentiating circumstances that would distinguish their conduct or the employer’s
treatment of them for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Bourque contends that he was “singl[ed] out of the hospital nursing staff because
[he] did not fit into the elderly female dominate class.”6 In his opposition, Bourque lists
former co-workers who were granted accommodations, but admits ignorance as to
6
As an initial matter, Bourque’s age discrimination claim can be disposed of
summarily. Although Bourque is a member of the relevant protected class – he is over
forty years of age – so too are the “comparable” individuals whom he claims received
more favorable treatment. In his charge filed with the EEOC, he pointed to a female
nurse a year younger than he, who was not removed from light duty status. Bourque,
2010 WL 4388607, at *5. The EEOC concluded, however, that Bourque was not
similarly situated to this individual because “the record revealed that [the female nurse]
provided the requisite detailed medical documentation to management regarding her
medical condition, whereas [Bourque] did not.” Id.
6
whether they had submitted formal requests for such accommodations, which he
admittedly did not do. Instead, Bourque suggests that the court initiate further
discovery by ordering the VA to produce information about each of the suggested
comparables. See Pl.’s Opp’n to Mot. for Summ. J. The court sees no reason for
additional discovery on the issue of possible gender discrimination as Bourque’s list of
persons whom he alleges received preferable treatment is divided nearly equally
between men and women.7
REHABILITATION ACT
The Rehabilitation Act prohibits the federal government, acting as an employer,
from discriminating against an employee based on a real or perceived disability and
from retaliating against an employee who complains to the EEOC about a violation of
the Act. See Calero-Cerezo v. United States, 355 F.3d 6, 20 (1st Cir. 2004); QuilesQuiles v. Henderson, 439 F.3d 1, 8 (1st Cir. 2006); 29 U.S.C. §§ 791 & 794. The
standards used to determine whether the Rehabilitation Act has been violated are the
same as those applied under the Americans with Disabilities Act (ADA). See CaleroCerezo, 355 F.3d at 11 n.1, 20; see also Duncan v. Washington Metro. Area Transit
7
Of the eleven individuals Bourque lists, six are females (four of whom are over
50 years of ago, one over 40 years of age), and five are male (two of whom are over
60, two over 40, and one over 20).
7
Auth., 214 F.R.D. 43, 49 (D. D.C. 2003) (“Section 504 further clarifies that ‘[t]he
standards used to determine whether this section has been violated in a complaint
alleging employment discrimination under this section shall be the standards applied
under [T]itle I of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et
seq.) and the provisions of sections 501 through 504, and 510, of the Americans with
Disabilities Act of 1990 (42 U.S.C. §§ 12201-12204 and § 12210), as such sections
relate to employment.’ Id. 794(d).”).
Reasonable Accommodation
To establish a prima facie case of disability discrimination based on a failure of
his employer to allow him a reasonable accommodation, Bourque must prove, by a
preponderance of the evidence, that: (1) he is disabled within the meaning of the
Rehabilitation Act; (2) he is a “qualified individual,” in other words, he is able to
perform the essential functions of his job if given a reasonable accommodation; and (3)
despite its knowledge of the disability, the VA did not afford him an accommodation.
See Calero-Cerezo, 355 F.3d at 20; Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259
(2001). If a claimant meets this prima facie burden, it falls to the federal employer to
show that the accommodation requested “would impose an undue hardship on the
operation of its business.” 29 C.F.R. § 1630.9(a). See also Reed, 244 F.3d at 259.
The Secretary devotes most of his brief to Bourque’s alleged failure to perfect
8
his request for an accommodation. According to EEOC guidelines, the VA “is entitled
to request updated medical documentation to verify a complainant’s continuing need
for accommodation after a period of time.” Bourque, 2010 WL 4388607, at *6. The
Secretary urges the court to adopt the EEOC’s conclusion that Bourque had provided
only “scant” medical documentation from 2005 and 2006 that failed to establish the
extent of Bourque’s condition or its expected duration.
Bourque, for his part, admits that he never submitted a formal request for an
accommodation, but states that he did not do so because (a) it was “not part of or
required as part of my signed settlement agreement;” (b) “I was already on a light duty
status assignment as the result of a filed and accepted OWCP [Office of Worker’s
Compensation Program] claim and a signed settlement for light duty;” and (c) “I did
provide medical documentation, on or about May 31, 2007, I hand delivered a copy of
form OWCP-5C, Work Capacity Evaluation, completed by my physician, to Bedford
V.A. Human Resources OWCP Specialist, Linda McDonald. In addition, a copy was
faxed by my physician to her, advising of the necessity for light/limited duty.” Pl.’s
Opp’n to Mot. for Summ. J.8
8
A U.S. Department of Labor Work Capacity Evaluation signed by Dr. Eric
Holstein on May 31, 2007, and appended to Bourque’s opposition, states, in response
to the question “How long will the restrictions apply?”: “[N]ear future, unlimited.”
9
Although a “request must be ‘sufficiently direct and specific,’ giving notice that
[one] needs a ‘special accommodation’” the request need only explain “how the
accommodation requested is linked to some disability.” Reed, 244 F.3d at 261. In
contrast to the employee in Reed, who gave no clear indication that “due to a disability,
she needed some special sort of accommodation as to conflicts at work,” Bourque
made it known to the VA that he required an accommodation because of the neck and
shoulder injuries that had left him chronically physically limited. Id.; see also EEOC
Enforcement Guidance: Reasonable Accommodation and Undue Hardship, 2002 WL
31994335, at *4 (Oct. 17, 2002)
(“When an individual decides to request
accommodation, the individual or his/her representative must let the employer know
that s/he needs an adjustment or change at work for a reason related to a medical
condition. To request accommodation, an individual may use ‘plain English’ and need
not mention the ADA or use the phrase ‘reasonable accommodation.’”).
The Secretary acknowledges that Bourque explained his injuries and his desire
for an accommodation at the November of 2006 assignment meeting, but argues that
after management told Bourque that he needed to document his request and eligibility
by completing the specified paperwork, Bourque failed to comply. See EEOC
Enforcement Guidance, 2002 WL 31994335, at *7 (“If an individual’s disability or
need for reasonable accommodation is not obvious, and s/he refuses to provide the
10
reasonable documentation requested by the employer, then s/he is not entitled to
reasonable accommodation.”).
Bourque, for his part, notes that Dr. Holstein submitted a Department of Labor
work capacity evaluation form to the VA in May of 2007 documenting the severity and
durational needs of his injury. Because the Secretary has not addressed this (albeit late)
submission in his brief, the court cannot confidently state that there is no genuine
factual dispute as to whether Bourque had sufficiently made his disability and need for
an accommodation known to the VA.9
Bourque’s accommodation claim fails for a different reason: He cannot show that
he is a “qualified individual” within the meaning of the Rehabilitation Act.10 To be a
9
It is nonetheless doubtful that Dr. Holstein’s brief letter in May of 2007 would
have satisfied the requisite standards for medical documentation. For persons seeking
an accommodation, these include, inter alia: “history of the specific medical
condition(s), including references to findings from previous examinations, treatment .
. .”; “clinical findings”; “assessment of the current clinical status and plans for future
treatment”; “estimate of the expected date of full or partial recovery”; “an explanation
of the impact of the medical condition on life activities both on and off the job”;
“assessment of the degree to which the medical condition has or has not become static
or has stabilized”; “narrative explanation of the medical basis for any conclusion that
restrictions or accommodations are or are not warranted and, if they are, an explanation
fo their therapeutic value . . . .” Edith Nourse Rogers Mem’l Veteran’s Hosp., Hosp.
Memo. on Reasonable Accommodation for Emp., at 18 (Jun. 28, 2004), Ex. G.
10
The EEOC assumed, for purposes of its decision, that Bourque was disabled.
Being disabled under the statute is defined as having an impairment that substantially
limits one or more major life activities. See 42 U.S.C. § 12102(2). Following the
EEOC’s lead, the court will assume that Bourque is in fact disabled.
11
“qualified individual” under the Act (the second element of a plaintiff’s prima facie
case), Bourque must show that were he given a reasonable accommodation he could
perform the essential functions of his job. “‘An ‘essential function’ is a fundamental
job duty of the position at issue . . . [it] does not include the marginal functions of the
position.’” Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006), quoting
Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001). “Evidence of whether a particular
function is essential includes, but is not limited to: ‘[t]he employer’s judgment as to
which functions are essential’; ‘[w]ritten job descriptions prepared before advertising
or interviewing applicants for the job’; ‘[t]he work experience of past incumbents in the
job’; and ‘[t]he current work experience of incumbents in similar jobs.’” Mulloy, 460
F.3d at 147, quoting 29 CFR § 1630.2(n)(3).
It is undisputed that the physical demands required of a LPN include lifting more
than 20 pounds on a regular basis. Functional Statement of Duties, Ex. A. Bourque
described the essential functions of his job to an EEOC investigator as follows: “‘total
patient care’ . . . that include[s] bathing, hygiene, dressing, assisting patients out of bed
and skin care . . . [t]he Complainant testified that he cannot perform all the essential
functions of his job; specifically patient care functions that may require lifting.”11 Ex.
11
In his deposition, Bourque explained that “they [the VA] need staff that can
do full patient care, which I can’t do under my restrictions. And for age, actually,
12
C; see Bourque Dep., Ex. D.
Bourque also acknowledges that the accommodation he seeks, remaining
permanently on “light duty” status, is an arrangement that relies on other nurses doing
the heavy lifting and other tasks that he cannot perform. See Compl. ¶ 13. In other
words, Bourque is seeking an accommodation that would excuse him from essential
functions of his job. By definition this does not make him a “qualified individual.” See
Mulloy v. Acushnet Co., 2005 WL 1528208, at *10 (D. Mass. Jun. 20, 2005), aff’d by
Mulloy, 460 F.3d 141 (“The fact that others could pick up aspects of [the employee’s]
job does not advance his ‘essential function’ argument.”).
Phelps v. Optima Health Inc., 251 F.3d 21 (1st Cir. 2001), is a case with nearly
identical facts. Phelps, a nurse, injured her back at work. She was, as a result,
restricted from doing any heavy lifting. Fortunately for Phelps, her sister worked with
her as a nurse and performed patient care she could not manage; when her sister was
unavailable other nurses would volunteer their assistance.
This job-sharing
arrangement was unofficially condoned until new management requested that Phelps
update the medical documentation of her physical limitations. When her doctor stated
they’re trying to force me to retire because they’re looking for younger help, stronger
help. And I can understand part of that, but that’s, I have no control over my injuries
or what happened. And that’s really it, they’re looking for somebody healthier and
younger.” Bourque Dep. at 53, Ex. D.
13
that she could not lift more than fifty pounds, Phelps was terminated from her position.
The First Circuit, in affirming the district court’s determination that Phelps was not a
“qualified individual,” observed that
[a]lthough a reasonable accommodation may include job restructuring, 42 U.S.C.
§ 12111(9)(B), an employer need not exempt an employee from performing
essential functions, nor need it reallocate essential functions to other employees.
Feliciano v. State of Rhode Island, 160 F.3d 780, 785 (1st Cir. 1998);
Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir.1998). Appellees
therefore did not have to allow Phelps to engage in job-sharing as a reasonable
accommodation. The fact that appellees previously allowed Phelps to engage
in a job-sharing arrangement does not obligate them to continue providing such
an accommodation.”
Phelps, 251 F.3d at 26.
Bourque has the burden of proving that a reasonable accommodation would
permit him to adequately perform the essential functions of his job. This he has failed
to do. See id., citing Feliciano, 160 F.3d at 786; see also Kvorjak, 259 F.3d at 55,
quoting Reed, 244 F.3d at 259 (plaintiff must make a showing “that the accommodation
‘would effectively enable [him] to perform [his] job.”); Basith v. Cook Cnty., 241 F.3d
919, 930 (7th Cir. 2001) (employer is not required to make an accommodation that is
unreasonable merely because for a time, at least, it went above and beyond what was
legally required); Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000) (affirming
summary judgment for defendant because “[t]wo new jobs would have to be
manufactured, one for [the employee] and one for his helper. The Act does not require
14
that.”). “To request elimination of an essential function as an accommodation is, in the
words of the Tenth Circuit, ‘not, as a matter of law, a reasonable or even plausible
accommodation.’” Mulloy, 2005 WL 1528208, at *10, quoting Mason v. Avaya
Commc’ns Inc., 357 F.3d 1114, 1122-1123 (10th Cir. 2004).
Retaliation
To make out a prima facie case of retaliation under the Rehabilitation Act,
Bourque must prove that: (1) he was engaged in protected conduct, (2) he suffered an
adverse employment action, and (3) there was a casual connection between the two.
Miller v. Verizon Commc’ns, Inc., 474 F. Supp. 2d 187, 200 (D. Mass. 2007), citing
Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003).12 It is undisputed that
the filing of an EEOC complaint alleging disability discrimination is protected activity
and that Bourque suffered an adverse employment decision. In attempting, however,
to establish the causal connection, Bourque relies solely on a temporal nexus. See
Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir. 1994) (“One way of showing
12
“The ADA incorporates the procedures and enforcement mechanisms of Title
VII, the basic statute prohibiting discrimination in employment. [42 U.S.C.] § 12117(a).
Accordingly, guidance on the proper analysis of [claimant’s] ADA retaliation claim is
found in Title VII cases. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of
New England, Inc., 37 F.3d 12, 16 (1st Cir.1994).” Soileau v. Guilford of Maine, Inc.,
105 F.3d 12, 16 (1st Cir. 1997). Because the Rehabilitation Act incorporated the
ADA’s retaliation provision, Title VII cases are also applicable to it. See Duncan, 214
F.R.D. at 49.
15
causation is by establishing that the employer’s knowledge of the protected activity was
close in time to the employer’s adverse action.”).
The time span here, however, from March of 2006 to November of 2006, is
simply too extended to bridge the gap. There must be something more than a few weak
inferences to surmount the summary judgment hurdle where the polar events are widely
separated in time. Lewis v. Gillette Co., 22 F.3d 22, 25 (1st Cir. 1994). Where
temporal proximity is the only evidence establishing retaliation, the proximity must be
“very close.” Bishop v. Bell Atl. Corp., 299 F.3d 53, 60 (1st Cir. 2002), quoting Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (one-year gap
between protected activity and adverse action insufficient to establish a nexus). See
also Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (nine months
insufficient).
ORDER
For the foregoing reasons, the Secretary’s motion for summary judgment is
ALLOWED. The Clerk will enter judgment accordingly and close the case. A copy
of this decision and the judgment is to be forwarded to Bourque by U.S. mail.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE
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