Boriski v. City of College Station

• Decision Date: 14 September 1999
• Docket Number: No. Civ.A. H-98-847.,Civ.A. H-98-847.
• Parties: Wendy BORISKI, Plaintiff, v. CITY OF COLLEGE STATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

65 F.Supp.2d 493

Wendy BORISKI, Plaintiff, v. CITY OF COLLEGE STATION, Defendant.

No. Civ.A. H-98-847.

United States District Court, S.D. Texas.

September 14, 1999.

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Robert S DuBoise, DuBoise Hengst and Henderson, Houston, TX, for Wendy Boriski, plaintiff.

Tom M Davis, Jr, Davis & Shank, Houston, TX, Marshall Harvey Cargill, Jr, College Station, TX, for City of College Station, defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant City of College Station's ("College Station" or "the City") Motion for Summary Judgment (# 18). College Station seeks summary judgment on Plaintiff Wendy Boriski's ("Boriski") claims under the Family and Medical Leave Act of 1993, ("FMLA"), 29 U.S.C. §§ 2601-2654. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted.

I. Background

Boriski, also known as Wendy Leinhart and Wendy Leinhart-Boriski, was employed by the City in various positions between 1989 and 1996. On March 27, 1989, she began working part time for the College Station Parks Department and was subsequently employed in a full-time capacity on May 14, 1989. In July 1989, Boriski was promoted to the position of utility clerk in the College Station Water and Sewer Department, was again promoted on August 1, 1990, to the position of secretary within the same department, and, in 1993, was promoted to the position of senior secretary in the department. On December 1, 1994, she was promoted to the position of operations assistant (database administrator) in the College Station Water/Wastewater Department and was given a raise. At the time of her departure from the City, she was paid an annual salary of $22,800.00.

As an operations assistant in the Water/Wastewater Department, Boriski's primary responsibilities included maintaining the computer database, collecting and inputting data, and working with the personnel who created maps. When she started in this position, her supervisor was Robert Gadbois, and, later, she was supervised by Susan Sharp and Bill Riley ("Riley"). Eventually, Jeff Koska ("Koska") became her immediate supervisor. In May 1995, Koska was named the water superintendent for College Station and remained in that position throughout the balance of Boriski's employment. Riley, the wastewater manager, was Koska's supervisor.

In late 1994 or early 1995, Boriski injured her left shoulder in a deer hunting accident. On January 30, 1995, Dr. Mark Riley ("Dr.Riley") diagnosed her condition as "subacromial bursitis and rotator cuff tendinitis" for which he prescribed rest, heat, restricted activities, and certain medications. In late February 1995, Boriski exacerbated her prior injury in an automobile accident. Dr. Riley continued to treat her for shoulder problems until at least June 16, 1997.

Boriski alleges that on January 30, 1995, following the deer-hunting incident, she returned to work with her left arm in a sling. She asserts that she informed Riley or Koska of her limitations and requested several modifications to her job including: assistance from other office personnel in bending, stooping, and lifting items; having job orders brought to her desk rather than having to retrieve them; assistance with typing; and permission to elevate and rest her arm as necessary. She maintains that all of these requests were denied. Boriski also alleges that Koska denied her request to adjust her work schedule so that she could attend physical therapy, resulting in her having to use sick leave or vacation time to go to therapy. She additionally claims that Koska "continually harassed [her] about using sick leave and vacation leave to attend therapy sessions and in October of 1995 he gave [her] a written reprimand stating that [she] had engaged in inappropriate use of sick leave." Koska recalls working with Boriski to ensure that she could do her job properly despite her injury and maintains that he allowed Boriski to take the necessary time off for therapy. He further contends that although he reprimanded her on October 20, 1995, for improper use of sick time, he was not referring to instances in which she received physical therapy but to time taken off from work when it was not "absolutely necessary." At deposition and in her answers to interrogatories, Boriski identified only one specific instance, on April 7, 1996, approximately six months after the reprimand, when her request to attend physical therapy was denied. Boriski's subsequent deposition testimony revealed that she was not actually denied the opportunity to obtain physical therapy, but was merely "denied the schedule that the doctor and the physical therapist requested for [her] for a given week."

On October 23, 1995, Boriski filed a grievance with Riley regarding Koska's reprimand, and on December 11, 1995, Boriski complained to Riley that Koska had harassed her by verbally abusing her, screaming at her, and lunging at her. Riley denied her grievance in a written memorandum, but on February 8, 1996, Riley's supervisor, John Woody ("Woody"), agreed to remove the reprimand from Boriski's file.

Boriski asserts that she was subjected to further harassment during early 1996. She alleges that in February 1996, Koska ordered her to punch a time clock even though other employees at her level in the department were not required to do so. She further contends that in March 1996, Lawrence Carter, another of her supervisors, began questioning her spouse as to her health and whereabouts. She also maintains that during the same month, Koska and Riley discussed her personal and medical business during staff meetings. Finally, Boriski alleges that in April 1996, Riley ordered her not to attend staff meetings which she had always attended, eliminated the ordering of office supplies from her job duties, forbade her from answering the telephones of other employees who were away from their desks, and threatened to terminate her if she took time off from work to attend therapy.

On April 11, 1996, Boriski sent a letter to Karen Pavlinski ("Pavlinski") in the City's Human Resources Department, notifying her that she had been under a doctor's care for an injury, that she would need more therapy and possibly surgery, and that she was "seeking protection under the ADA Law [the Americans with Disabilities Act]." On April 22, 1996, Pavlinski sent Boriski a memorandum acknowledging the letter and seeking clarification as to whether she was requesting an accommodation and, if so, the type of accommodation needed. Pavlinski also asked Boriski to provide information from her physician documenting her impairment and limitations. In response, Boriski submitted a letter dated April 23, 1996, from Dr. Riley, stating:

To Whom It May Concern:

Wendy Leinhart has been under my care for intermittent problems with her left shoulder and neck. She has signs of subacromial bursitis and rotator cuff tendinitis of her left shoulder. Initially, her problems began without an injury, but her symptoms have been aggravated by a car accident. They have significantly limited her on an intermittent basis. This is especially true with regards to overhead reaching and grabbing and lifting activities.... I am hoping that her symptoms will ultimately resolve with conservative treatment, but it is possible she could ultimately require surgical treatment if she has recurrent problems.

Dr. Riley also explained that "[f]or at least the next 6-12 months I think she should avoid repetitive overhead reaching, pulling, or lifting more than 20 lbs." and noted that if she had more frequent or persistent episodes, surgical treatment could be necessary in the future. Subsequently, in May 1996, Boriski requested and was granted a leave of absence for "shoulder surgery & recovery" for the dates May 13, 1996, through May 28, 1996. On June 21, 1996, the Human Resources Department directed a memorandum to Boriski designating her leave of absence as "Family/Medical Leave" under the FMLA.

Boriski claims that after she requested the leave of absence in May, Koska harassed her by yelling at her and demanding doctor's notes from her in front of other employees. She further alleges that Koska ordered her to train another employee, Amy Carter ("Carter"), to do her job, causing her to believe that she would soon be fired and Carter would replace her.

Following her surgery on May 13, 1996, Dr. Riley released Boriski to return to work on May 29, 1996, with her arm in a sling and a medical restriction that she perform no lifting, pushing, or pulling with her left arm. Boriski contends that upon her return from leave, she experienced further harassment. She alleges that Koska removed her from all work-related committees, questioned other employees as to her whereabouts whenever she left her desk for a few minutes, and sent Carter to attend an annual seminar relating to the database software that she had previously attended. Boriski also claims that Riley requested copies of all medical records relating to her leave merely to see if she had any. On July 10, 1996, Boriski filed a grievance with Woody, alleging that Koska and Riley were harassing her and creating a hostile work environment. She also complained that she was being discriminated against due to her gender and that she was being retaliated against for filing a previous grievance about an incident of unauthorized absenteeism. Woody denied her grievance on August 2, 1996. Boriski maintains that after she filed this second grievance, Riley threatened to terminate her if she did not refrain from complaining to the Human Resources Department.

Boriski asserts that "[t]he final straw came in July of 1996 when she informed Mr. Koska that she needed to leave work early to attend a medical appointment." According to Boriski, "Mr. Koska told [her]...