Everett v. McHugh
OPINION AND ORDER by District Judge James H. Payne granting 39 Motion for Summary Judgment (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PATRICK MURPHY, Secretary of the
Department of Army,
Case No. 15-CV-372-JHP
OPINION AND ORDER
This matter comes before the court on Defendant’s Motion for Summary
Judgment (Dkt. # 39). Plaintiff filed a response on November 9, 2016 (Dkt. # 47). In her
response, Plaintiff indicated she was dismissing all gender based discrimination claims
against the defendant. Id., at p. 26. The defendant replied on November 23, 2016 (Dkt. #
Statement of Undisputed Facts
1. Plaintiff, Lisa Everett, began her employment with the Army on April 27, 1987
as a GS-3 Supply Clerk at McAlester Army Ammunition Depot.
2. Everett went through a series of promotions and realignments and eventually
became a GS-9, Physical Science Technician, on September 10, 2000. When she began
this position, her work hours were 6:30 a.m. to 5:00 p.m., four days a week and her
immediate supervisor was Brad Black.
3. Everett alleges that through the years she developed various medical conditions
including Seronegative Spondyloarthropathy, Sjorgren’s Syndrome, Inflamatory Eye
Disease, Chronic migraine/Neuralgic headaches, Cervical Radiculitis and Inflammatory
Bowel Disease. Dkt. # 3, at ¶ 8.
4. Everett alleges her symptoms are worse in the mornings and her symptoms can
involve morning “auras” or “grogginess.” According to Everett, these symptoms can
last anywhere from 30-45 minutes or longer after she wakes up. Everett claims the
symptoms are not dependent on the time when she goes to bed the night before.
5. In 2000, shortly after becoming a GS-9, Physical Science Technician, Everett
requested that her hours be changed from 6:30 a.m. to 5:00 p.m. to 7:30 a.m. to 6:00 p.m.,
still four days a week. Everett claims she presented a letter from a neurologist, Dr.
Savage, which indicated a later start time would help with work functioning.1 Her
supervisor, Brad Black, granted the request.
Approximately two years later, in 2002, while still a Physical Science
Technician, Everett requested a switch to a “5-4-9” schedule in which she would work
nine hours a day for 5 days one week and 4 days the next week. Again, her immediate
supervisor, Brad Black, granted her request.
In 2004, Plaintiff was promoted to GS-11 QAS at the McAlester Army
This letter was apparently not placed in Plaintiff’s personnel folder and, therefore, it is impossible to ascertain what the letter
actually said. As can be seen from the facts, Plaintiff was, however, given permission to began her work day at a later time.
8. In 2005, Plaintiff became a GS-12 Quality Assurance Specialist. After this
promotion, sometime in 2006, Everett requested and was granted another schedule
change, in which she worked 8 hour days, five days a week with a starting time between
6:30 a.m. and 9:00 a.m. Initially, Everett reported at 8:00 a.m.; however, this start time
slowly evolved until Everett was reporting around 9:00 a.m.
9. In September, 2010, Everett was reassigned to GS-12 supervisory QAS, which
did not involve a pay increase but did change her duties and she became responsible for
supervising 6-9 employees. Everett’s subordinates worked four days a week, ten hours a
day starting at 6:00 a.m. Everett made a request to her second level supervisor, Robert
Golden, Chief of Staff/Director of Quality Assurance, that she be allowed to maintain her
5 days a week, eight hour schedule. Golden granted her request.
10. Immediately after taking the job, plaintiff moved to Boston, Massachusetts in
order to enroll in a course of study at Massachusetts General Hospital. Everett lived in
Boston from approximately September, 2010 to March, 2011.
11. Around October of 2011, Supervisor Black had a conversation with Everett in
which he expressed concerns about Everett coming in for work three hours after her
subordinates. Black tried to convey to Everett that morale among her subordinates was
becoming a problem because of her work schedule. At some point, Black suggested
Everett appoint someone as a work leader during her absence. Everett disagreed with
Black’s suggestion and indicated if her schedule was adjusted to conform to that of her
subordinates, she might have to take more sick leave.
12. At some point between October, 2011 and the spring of 2012, Black and
Everett again discussed aligning her work schedule with that of her team’s and “at that
point she agreed, but asked that it wait until May when her youngest daughter was out of
school as she was currently driving her to school every morning and it would be
inconvenient to change at that time.” Dkt. # 39-3, at p. 1 ¶ 7.2 Black agreed to allow the
shift change to wait until after school was out.
13. In May, 2012, Robert Golden, Everett’s second level supervisor retired or was
replaced and Roger Sarter took over as Everett’s second level supervisor. Sartor began
having concerns that Everett was actually reporting hours as worked when she was not at
work, prompting Sartor to ask Black about Everett’s schedule. When Black informed
Sartor that Everett’s schedule began at 9 a.m., Sartor informed Black that “it was
inappropriate for a 1st line supervisor of wage grade employees to work a schedule that
started 3 hours later than the team.” Id., at p. 2 ¶ 8 and Dkt. # 39-4, at p. 1 ¶ 3.
According to Sartor, this caused confusion and inefficiency in the work team. As a
result, Sartor checked with the human resources office and discovered no reasonable
accomodation request was contained in Everett’s personnel records.
14. On May 31, 2012, Sartor sent an email to Black indicating, effective June 3,
2012, Everett would be placed on the same standard work schedule as the employees she
supervised. Black immediately forwarded the email to Everett. Everett sent a response
to Sartor asking him to hold off on the schedule change until she could submit a “new
In her deposition, Everett initially stated she was not regularly driving her daughter to school in 2012. Dkt. # 47-1, at p. 133.
After being reminded of having asked Black to put off her schedule change until school was out, Everett remembered that her
mother-in-law had become a poor driver and Everett had been taking her daughter to school on a daily basis. Id., at p. 134.
formal request for special accomodations” and provide appropriate supporting
15. On June 3, 2012, Plaintiff began a 4-10 schedule, starting at 6:00 a.m.
16. On June 4, 2012, Plaintiff had a short meeting with Black in which she
presented him with some medical records.
According to Plaintiff, the medical
documentation she had submitted in 2000 from Dr. Savage indicated she needed a change
in work shift because of her medical condition. The medical records she presented in
2012, however, did not contain any statement from a medical professional indicating
plaintiff required a 5-8 schedule with a 9:00 a.m. starting time or anything to that effect.
Dkt. # 39-1, at p. 51.
17. On June 5, 2012, Everett emailed a “reasonable accommodation” request to
Sartor and Black in which she requested “an alternate work schedule” or to allow
“continuation of M-F 8-hr flextime with core hours of 0830 to 1500 with 2 flexible hours
(flexible hours between 0630 to 0830 and 1500-1700), Dkt. # 39-3, at p. 32.
On June 22, 2012, Everett submitted a Confirmation of Request for
Reasonable Accomodation form to the EEO Manager, Coluah R. Stanfield, at the
McAlester Army Ammunition Plant. On June 25, 2012, Mr. Stanfield asked Everett to
submit the medical documentation that supported her request.
19. On June 27, 2012, Everett wrote a “Memorandum for Record” indicating she
had attempted to retrieve the 2000 statement from Dr. Savage-Edwards, including “a
letter regarding [her] medical condition and recommendation for later work shift;” but,
she was unable to obtain it.
20. On July 9, 2012, Everett submitted a letter from a Dr. Michael Boyer, M. D.,
which indicated he had been treating Everett for the following conditions: 1. Chronic
neuralgic migraine headaches; 2. Cerviclagia (neck pain); 3. Right shoulder pain from a
failed surgery. This letter did not suggest any accomodation was needed or necessary.
21. The only medical records in Everett’s personnel file indicating she had ever
been placed on work restrictions were from Dr. Rogers, the MCAAP clinic doctor, and
Dr. Hawkins, an Orthopedic Specialist. Dr. Rogers indicated, on June 28, 2012, that a
lifiting restriction and overhead reaching restriction were appropriate. Dr. Hawkins,
however, returned Everett to work “without restrictions” on August 9, 2012. Neither of
these doctors indicated or recommended that a change of schedule was necessary for
Everett due to her medical conditions.
22. On July 17, 2012, Black emailed Everett indicating he had “yet to receive
further medical documentation towards this request as verbally requested.” Dkt. 39-3, at
p. 2 ¶ 16 and p. 48. Additionally, Black advised Everett to review her information and
“forward any pertinent medical professional documentation to support that work shift
start time has an impact upon [her] medical condition.” Id.
23. Thereafter, Everett never provided any documentation to support the need for
an altered work schedule. Rather, Everett indicated in emails to Black that she was “only
requesting the accommodation as an interim assistance while applying for disability
retirement.” Id., at p. 47.
24. On July 25, 2012, Black again advised Everett he needed a medical opinion
necessitating the shift change in order to approve it. However, Black advised he was
withholding a decision on Everett’s request to give her time to provide the needed
medical opinion. Id., at p. 46.
On August 6, 2012, Everett requested a “final determination on the
documentation submitted.” Id., at pp. 45-46. The next day, Black denied her request for
accomodation “due to a lack of medical documentation.” Black further advised Everett,
if she obtained the documentation requested, her accomodation request could be
26. In or around September, 2012, Everett applied for disability retirement.
27. In or around December, 2012, William Tollett (plaintiff’s then second level
supervisor) offered to accommodate Plaintiff by moving her back into the position where
she had previously worked the 5-8 shift without issues; but Plaintiff refused.
28. Plaintiff retired on disability retirement in July, 2013.
Summary judgment is appropriate where there is no dispute of material facts and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56. When
presented with a summary judgment motion, this Court must determine whether there
“are any genuine factual issues that properly can be resolved only by the finder of fact
because they may reasonably be resolved in favor of either party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When
evaluating a motion for summary judgment, this Court must examine the factual record
and reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988).
The party opposing summary judgment, however, “may not rest upon mere allegations or
denials of his pleading but . . . must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (quoting First National
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569
Everett alleges claims under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. and Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794.
The Rehabilitation Act prohibits the federal government from
discriminating against an “otherwise qualified individual with a disability.” 28 U.S. §
794(a). Pursuant to this statute, the government has an obligation to provide reasonable
accommodations to disabled employees. Sanchez v. Vilsack, 695 F.3d 1174, 1177 (10th
Cir. 2012). To succeed on an ADA claim, the burden rests on a plaintiff to show (1) she
is disabled as defined by the ADA; (2) she is “otherwise qualified” to perform the
essential functions of the job with or without reasonable accomodation; and (3) she
suffered discrimination on the basis of her disability.
Corrections, 587 F.3d 1255, 1261 (10th Cir. 2009).
Hennagir v. Utah Dept. of
The substantive standards for
determining whether an individual is disabled are the same under both the Rehabilitation
Act and the ADA.
As a general rule, it is the responsibility of the individual with the disability to
inform the employer that an accommodation is needed. Taylor v. Principal Financial
Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). The federal regulations implementing the
ADA describe an “informal, interactive process” through which the employer and
employee will “identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1171 (10th Cir. 1999) (en banc) (quoting 29 C.F.R. §
Once the employee gives appropriate notice, the employer’s
responsibilities within the interactive process are triggered. Thereafter, both parties have
an obligation to proceed in a good-faith manner to resolve the issue. Id., at 1172. “An
employee’s request for reasonable accommodation requires a good deal of
communication between the employee and employer . . . . [B]oth parties bear
responsibility for determining what accommodation is necessary.”
Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 633-634 (7th Cir. 1998). Neither party, however, should be
able to cause a breakdown in the process for the purpose of either avoiding or inflicting
liability. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.
Rather, courts should look for signs of failure to participate in good faith or
failure by one of the parties to make reasonable efforts to help the other
party determine what specific accommodations are necessary. A party that
obstructs or delays the interactive process is not acting in good faith. A
party that fails to communicate, by way of initiation or response, may also
be acting in bad faith. In essence, courts should attempt to isolate the cause
of the breakdown and then assign responsibility.
If an employee refuses to provide medical documentation in response to the
employer’s reasonable request for such document, the employee will be found to have
caused a failure of the interactive process.
Bundy v. Chaves County Board of
Commissioners, 215 Fed.Appx. 759 (10th Cir. 2007)(“[B]y failing to respond to the
repeated requests for [medical] documentation concerning his ability to return to work,
[plaintiff] never triggered the Board’s duty to consider [a reasonable accomodation].”);
Gilliard v. Georgia Department of Corrections, 500 Fed.Appx. 860, 870 (11th Cir.
2012)(breakdown in interactive process caused by plaintiff who “failed to provide any
medical documentation outlining her work limitations or any substantive reason
explaining why the proposed alternative accommodation was unreasonable.”)
Everett asserts she is a “qualified individual with a disability” as defined by 42
U.S.C. § 12131(2) and that her medical conditions create physical and mental
impairments that substantially limit major life activities, including work.
however, a request was made for Everett to provide current medical documentation
regarding her need for a modified work schedule, she refused to provide such
documentation instead relying upon a 2000 doctor’s note that apparently never made it
into her work files and which she was not able to produce. Since medical conditions can
change over time, it is not unreasonable for an employer to request updated medical
records. An employee who repeatedly fails to provide requested medical updates will be
responsible for the breakdown in the interactive process. See, Jefferson v. MillerCoors,
L.L.C., 440 Fed.Appx. 326, 330-331 (5th Cir. 2011).
An ‘employer need not take the employee’s word for it that the employee
has an illness that may require special accomodation. Instead, the employer
has the ability to confirm or disprove the employee’s statement. If this
were not the case, every employee could claim a disability warranting
special accomodation yet deny the employer the opportunity to confirm
whether a need for the accomodation exists.’
Kennedy v. Superior Printing Co., 215 F.3d 650 (6th Cir. 2000)(quoting E.E.O.C. v.
Prevo’s Family Market, Inc., 135 F.3d 1089, 1094-95(61h Cir. 1998).
The undisputed facts in this case indicate, on June 5, 2012, Everett notified her
employer that she needed an reasonable accomodation which she described as
“Continuation of previously approved work schedule of 5-8’s flextime.” In making this
request, Everett described the following conditions for which accomodation was needed
as: “Chronic migraine with cervical, nerve pain, occipital neuralgia, and aura. Nonparalytic orthopedic impairment: chronic pain, stiffness and weakness in right shoulder
with some loss of ability to use right arm.” Dkt. # 39-3, at p. 29. Everett also submitted
a “Memorandum for QA” in which she stated, in part, the following:
1. I would like to make the following new Request for Accommodation
due to existing and documented health conditions. The request is for an
alternate work schedule. An original written request for alternate work
schedule for this reason was originally made to you and approved in
approximately the year 2000. Since this time you have worked with me on
maintaining a schedule which helps to manage my health conditions.
2. In 2010, Robert Golden discussed with me the conversion of my GS-12
Quality Assurance Specialist position to GS-12 Supervisory Quality
Assurance Specialist and asked if I would agree to and accept the reclassification. At this time I asked Mr. Golden if my work schedule could
remain in effect, if I accepted the change in classification and additional
duties. He assured me that it would.
3. My earlier request was due to chronic migraine with aura and cervical
nerve pain. I experienced increased symptoms upon waking in the morning
due to the pressure placed on the nerves when lying down. I also often had
poor quality sleep due to these associated symptoms. Therefore, working a
later shift allowed time for some symptoms to resolve, when present, and
also helped prevent occurrence or exacerbation.
4. This current request is also due to the continuing condition of chronic
migraine with aura and cervical nerve pain/occipital neuralgia and for the
additional condition of shoulder pain.
5. As you are aware, I sustained a work-related shoulder injury on 8/10/11,
which was not successfully resolved by surgery (1/15/2012). Post-surgical
physical therapy did not meet long term goals and I have pain, limitations
and restrictions regarding use of my right arm. I also experience increased
pain at night, which affects quality of sleep. I do not anticipate this
condition changing significantly, as no changes/improvements were
achieved in the last 8 weeks of therapy, and Dr. Rogers, Army Occupation
Health Physician, has recommended that I obtain another MRI and second
opinion from another surgeon. At this time I do plan to obtain a second
opinion, but do not anticipate undergoing surgery again in the very near
Id., at p. 32. Everett continued her memorandum by stating supporting medical records
had been provided and were available in the Occupational Health Clinic and requested a
5 day per week, 8-hour flexible shift (5-8’s flextime).
On June 25, 2012, Mr. Stanfield, the EEO manager, asked Everett to submit
medical documentation that supported her request.
Thereafter, as shown by the
undisputed facts above, Everett never submitted any medical documentation regarding
her need for a reasonable accommodation of a modified work schecule. None of the
documents provided in 2012 discussed whether an accomodation would be medically
appropriate or necessary. By failing to provide the requested medical documentation, this
Court finds Everett was responsible for the breakdown in the interactive process.
Moreover, the Court finds the Army made an attempt to accommodate Everett.3
Supervisor Tollett suggested Everett move back to a GS-12 non-supervisory position,
with the same pay but with the hours she had requested.
Everett refused this
While the ADA requires an employer to “mak[e] reasonable
The government claims the Army made two attempts to accommodate Everett. However, one of these attempts occurred before
Everett filed her written request for accommodation. Specifically, on Ocotber 12, 2011, Black suggested Everett either report to
work during the same shift as the employees she supervised or appoint someone as a work leader during her morning absences.
See, Dkt. # 39-3, at p. 12. Everett did not like his suggestion and offered to change her schedule to make it conform to that of her
subordinates, noting that she might have to take more sick leave.
accomodations to the known physical and mental limitations of an otherwise qualified
indidivual,” 42 U.S.C. § 12112(b)(5)(A), the proposed accommodation satisfied that
requirement. By failing to provide the requested medical documentation and rejecting
the proposed accommodation, this Court finds Everett was responsible for terminating the
interactive process and, therefore, is not entitled to relief under the ADA.
B. GENDER DISCRIMINATION CLAIM
Everett’s complaint also alleged claims under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. and the Oklahoma Anti-Discrimination Act
(“OADA”), 25 O.S. § 1101, et seq. Everett’s response indicates she is dismissing all of
her gender discrimination claims.
For the reasons stated herein, this Court hereby grants Defendant’s Motion for
Summary Judgment (Dkt. # 39) and dismisses this case.
It is so ordered on this 19th day of December, 2016.
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