249 F.3d 259 (4th Cir. 2001), 00-1439, Lewis v. Caldera

Docket Nº:00-1439
Citation:249 F.3d 259
Party Name:CHERYL M. HOOVEN-LEWIS, Plaintiff-Appellant, v. LOUIS CALDERA, Secretary of the Army, Defendant-Appellee.
Case Date:May 01, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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249 F.3d 259 (4th Cir. 2001)

CHERYL M. HOOVEN-LEWIS, Plaintiff-Appellant,

v.

LOUIS CALDERA, Secretary of the Army, Defendant-Appellee.

No. 00-1439

United States Court of Appeals, Fourth Circuit

May 1, 2001

        Argued: January 26, 2001

        Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.

        (CA-97-3459-DKC)

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[Copyrighted Material Omitted]

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        COUNSEL ARGUED: John Wesley Davis, Washington, D.C., for Appellant. Ariana Wright Arnold, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas J. Gagliardo, GAGLIARDO & ZIPIN, Silver Spring, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

        Before WILLIAMS and TRAXLER, Circuit Judges, and Gerald Bruce LEE, United States District Judge for the Eastern District of Virginia, sitting by designation.

        Affirmed by published opinion. Judge Lee wrote the opinion, in which Judge Williams and Judge Traxler joined.

        OPINION

        LEE, District Judge:

        Plaintiff-Appellant Cheryl M. Hooven-Lewis appeals a final order of the United States District Court for the District of

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Maryland granting Defendant-Appellee Louis Caldera's motion for summary judgment and entering judgment for Appellee on Appellant's claims. Appellant Hooven-Lewis alleged that the Army discriminated against her in violation of the Rehabilitation Act because of her disability (a hand tremor); that the Army subjected her to placement in improper job positions and terminated her in retaliation for her Equal Employment Opportunity activity, in violation of the Rehabilitation Act; and that the Army terminated her in violation of the Whistleblower Protection Act for informing on superiors who failed to report errors in laboratory data.

        The issues before the Court are whether Hooven-Lewis has a disability under the Rehabilitation Act or was regarded by her employer as having such a disability, whether Hooven-Lewis made out a prima facie case of retaliation under the Rehabilitation Act, and whether the Merit Systems Protection Board was arbitrary and capricious or abused its discretion in finding that Hooven-Lewis' employer did not terminate her for informing upon her superior. The Court holds that Hooven-Lewis does not have a disability under the Rehabilitation Act because she does not have a condition that substantially limits her in any major life activity. In addition, Hooven-Lewis' employer does not perceive her as having such a disability. The Court further holds that Hooven-Lewis has not made out a prima facie case of retaliation under the Rehabilitation Act because she has failed to show a causal connection between protected activities and alleged acts of reprisal. The Court also holds that Hooven-Lewis' whistleblower retaliation claim fails because the Merit Systems Protection Board did not act arbitrarily or abuse its discretion in dismissing Hooven-Lewis' whistleblowing claim; the record before the Court demonstrates that the Board considered the evidence and made a reasoned decision.

        FACTS

        Plaintiff-Appellant Cheryl Hooven-Lewis entered active duty in the United States Army in January, 1985. While enlisted, Hooven-Lewis received training as a medical laboratory specialist 1 and was ultimately assigned to the Walter Reed Army Hospital Institute of Research ("Walter Reed"). After her discharge from duty in January, 1988, Hooven-Lewis obtained civilian employment at Walter Reed as a biological laboratory technician. Between January, 1988 and May, 1989, Hooven-Lewis worked under the supervision of Dr. Susan Loring while she was in training. From 1989 to 1993, Hooven-Lewis worked in the division of retrovirology under Dr. Victoria Polonis. Her job involved working with laboratory specimens, various chemicals, and electrical and mechanical laboratory equipment. During her time with Dr. Polonis, Hooven-Lewis suffered from an undiagnosed hand tremor. Dr. Polonis accommodated Hooven-Lewis' tremor by not requiring her to handle any hazardous or infectious substances. Other laboratory technicians would lyse the live infectious cells, rendering them inactive.

        When Dr. Polonis resigned her commission, Hooven-Lewis was recruited to work in several laboratories because of her excellent work record and commendations. Hooven-Lewis accepted a position with Dr. Maryanne Vahey in October, 1993. When interviewing with Dr. Vahey, Hooven-Lewis told Dr. Vahey that her previous supervisors had not required Hooven-Lewis to work with lethal pathogens or live materials that were highly infectious

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and dangerous. Dr. Vahey assured Hooven-Lewis that it would not be a problem. However, Hooven-Lewis did not tell Dr. Vahey about her hand tremor. Upon beginning work with Dr. Vahey, Hooven-Lewis continued to do much of the same work with chemicals and lysed infectious agents that she had done with Dr. Polonis. In addition to the laboratory "bench work," Hooven-Lewis also organized the lab and did administrative work. Most of the administrative work was done at home.

        In November, 1993, Hooven-Lewis discovered some errors in the data in Dr. Vahey's lab. Hooven-Lewis discussed the errors with Dr. Vahey. Hooven-Lewis expressed the concern that the errors could result in inaccurate experiments because other labs shared Walter Reed's results for use in their experiments. Dr. Vahey assured Hooven-Lewis that she would alert the partner labs to the errors. Hooven-Lewis consulted with her previous supervisor, Dr. Loring, and obtained her opinion that the errors could result in AIDS patients receiving improper dosages of their medications. A week later, in December of 1993, doctors diagnosed Hooven-Lewis as having a physiological hand tremor that caused difficulty with fine motor dexterity. However, Hooven-Lewis did not ask to be removed from her job as a technician because she was not working with active (nonlysed) HIV. In that same month, Dr. Vahey ordered her lab staff to throw away all protocols and records that had been used in several experiments, including those experiments containing erroneous data.2

        Walter Reed promoted Hooven-Lewis to a supervisory position as "a laboratory protocol manager" in February, 1994. However, the work Hooven-Lewis performed remained substantially the same, constituting mostly bench work and administrative work performed at home after business hours. From February to April, 1994, HoovenLewis discovered other errors in the lab and communicated them to Dr. Vahey. In May, Hooven-Lewis learned that Dr. Vahey had not told the other labs of the errors, and that a researcher at Walter Reed was going to present findings based on the erroneous data at an AIDS conference in Japan. Hooven-Lewis confronted Dr. Vahey about this, and Hooven-Lewis asserts that Dr. Vahey reacted angrily.

        In early June, 1994, Dr. Vahey ordered Hooven-Lewis to begin working with active (non-lysed) HIV samples. On August 23, 1994, Dr. Vahey told Hooven-Lewis to leave the lab after Hooven-Lewis refused to let Dr. Vahey communicate with her doctor about her hand tremor. In a meeting on August 30, 1994, several division heads met with Hooven-Lewis to discuss Hooven-Lewis' medical condition and her duties. Colonel David Burke, the director of the Retrovirology Division, decided to take Hooven-Lewis out of retrovirology and detail her to other duties pending an evaluation of her medical problem and the impact Hooven-Lewis' medical condition would have on her work handling dangerous infectious, radioactive, and chemical substances. That same day, Hooven-Lewis told Colonel Burke about the laboratory errors and Dr. Vahey's requiring her to work with unlysed agents.

        With the help of the Walter Reed personnel office, Hooven-Lewis was placed in several temporary assignments pending her medical determination. On October 7 and 11, 1994, Hooven-Lewis first consulted

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the office of Equal Employment Opportunity ("EEO") about her rights and about filing a complaint of discrimination. In that same month, Hooven-Lewis requested that she be permitted to return to Dr. Vahey's lab or be transferred to another lab within Retrovirology. Hooven-Lewis believed that she should be permitted to work in the lab and that her supervisors should accommodate her condition by having others lyse the materials with which she would work. HoovenLewis' request to return to a lab in Retrovirology included a statement that the only task required of her that was involved in her request for the lysing accommodation was the task of isolating nucleic acids, and that, aside from that, she was able to perform all other duties of her position with Dr. Vahey. However, after repeated requests, HoovenLewis never provided the Army with medical records indicating definitively that she was permanently precluded from performing work in the lab handling dangerous agents. Therefore, the Army had no verifiable proof that any accommodation was necessary. On October 22, 1994, after reviewing the conflicting medical documentation supplied by Hooven-Lewis, reviewing Hooven-Lewis' job description, and visiting Dr. Vahey's lab, the chief of occupational medicine at Walter Reed, Dr. Kenneth Phillips, issued a medical determination stating that there was no indication that Hooven-Lewis could not perform all of the duties required of her in the labs without restrictions or limitations. In the same month, Hooven-Lewis filed an informal complaint with the EEO.

        Hooven-Lewis had been placed in several temporary assignments after her removal from Dr. Vahey's lab, including one in the Logistics Division which lasted several months. Despite her failure to provide the requested...

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