Crump v. U.S. Dept. of Navy, Civil Action No. 2:13cv707

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Mark S. Davis, United States District Judge
• Citation: 205 F.Supp.3d 730
• Parties: Summer CRUMP, Plaintiff, v. UNITED STATES DEPT. OF NAVY, by and through Ray Mabus, Secretary of the Dept. of Navy, Defendant.
• Docket Number: Civil Action No. 2:13cv707
• Decision Date: 08 September 2016

205 F.Supp.3d 730

Summer CRUMP, Plaintiff,
v.
UNITED STATES DEPT. OF NAVY, by and through Ray Mabus, Secretary of the Dept. of Navy, Defendant.

Civil Action No. 2:13cv707

United States District Court, E.D. Virginia, Norfolk Division.

Signed September 8, 2016

205 F.Supp.3d 735

Ann Katherine Sullivan, Deborah Yeng Collins, Melissa Morris Picco, Sullivan Law Group, P.L.C., Norfolk, VA, David Michael Pearline, Law Office of David Pearline, Virginia Beach, VA, for Plaintiff.

Kent Pendleton Porter, Virginia Lynn Van Valkenburg, United States Attorney Office, Norfolk, VA, D'Ontae D. Sylvertooth, Department of the Navy, Washington Navy Yard, DC, for Defendant.

OPINION AND ORDER

Mark S. Davis, United States District Judge

Plaintiff, Summer Crump ("Plaintiff" or "Crump"), is a hearing-impaired former employee of the United States Department of Navy ("the Navy").¹ Plaintiff brought

205 F.Supp.3d 736

suit against the Navy, alleging that the Navy violated the Rehabilitation Act by failing to reasonably accommodate her in her work as a physician assistant at the Navy's Sewells Point Branch Medical Clinic ("Sewells Point Clinic").² Following a two-week jury trial, the jury returned a verdict in Plaintiff's favor, finding that the Navy failed to provide Plaintiff a reasonable accommodation, but awarded Plaintiff no compensatory damages. Verdict Form, ECF No. 314. The only matter remaining for consideration is Plaintiff's request for equitable relief in the form of back pay, front pay, and pre– and post-judgment interest. Following the conclusion of the jury trial, the Court heard additional evidence on Plaintiff's request for equitable relief and the parties have submitted post-trial briefs. Therefore, Plaintiff's request for equitable relief is ripe for decision.

I. FACTUAL BACKGROUND³

Plaintiff suffers from bilateral profound sensorineural hearing loss, and has utilized cochlear implants for approximately fifteen years. See Op. & Order, 9-10, ECF No. 183; Jury Trial Tr. Excerpt Vol. I, LeMay Test. 7:11-19, Feb. 17 and 19, 2016, ECF No. 335 [hereinafter "LeMay Test."]; Jury Trial Tr. Excerpt Vol. I, Crump Test. 185:23-186:4, Feb. 17 and 19, 2016, ECF No. 335 [hereinafter "Feb. 19 Crump Trial Test."]. After obtaining such cochlear implants, Plaintiff became a licensed physician assistant and has worked as a physician assistant since she received her Masters Degree from Eastern Virginia Medical School in 2007. See Op. & Order at 10; Feb. 19 Crump Trial Test, at 190:1-3, 193:9-23.

On September 14, 2008, the Navy entered into a five-year contract with third-party contractors, TCoombs & Associates, LLC and TCMP Health Services, LLC (collectively "TCA" or "TCMP"), to provide physician extenders services to Sewells Point Clinic. Contract (N62645-08-D-5008), AX-1.⁴ TCA's contract lapsed in 2013 and, as of September 4, 2013, Chesapeake Educational Services contracted to provide physician extenders to Sewells Point Clinic. Crump Damages Test. at 93:6-21; Contract N62645-09-D-5021-0025, Chesapeake Educational Services, PX-306.

TCA hired Plaintiff to provide physician extender services,⁵ under its contract with the Navy, beginning "on or about June 3, 2010." Letter from TCMP Offering Employment, AX-99; cf. Feb. 19 Crump Trial Test, at 195:11-196:23 (credentialing concluded May 19, 2010). When Plaintiff began working at Sewells Point Clinic, she worked forty hours a week and received $51.00 per hour. Feb. 19 Crump Trial Test, at 198:24-199:3; Bench Trial Tr. Excerpt, Crump Test., 3:20-4:2, Feb. 26 and 29, 2016, ECF No. 333 [hereinafter "Crump Damages Test."]; Letter from TCMP Offering

205 F.Supp.3d 737

Employment, AX-99. Plaintiff was also projected to receive an annual raise in September of each year of her employment, equaling an additional one dollar and two cents. Crump Damages Test. at 3:20-4:2. Plaintiff received such raise in September 2010, and her pay was increased to $52.02 per hour. Id. at 64:16-20. Plaintiff testified that, while she was working at Sewells Point Clinic, she received "dental, vision, life insurance, short-term disability ... [and] 401(k) benefits," id. at 3:20-4:2, and that TCA contributed to Plaintiff's insurance benefits, id. at 74:23-75:4.⁶ Plaintiff also testified during the jury trial that she received paid time off, sick leave, a continuing medical education allowance, and a uniform allowance. Feb. 19 Crump Trial Test, at 201:13-22. Plaintiff worked at Sewells Point Clinic until she left work for cochlear implant revision surgery on April 26, 2011. Jury Trial Tr. Excerpt, Crump Test., 6:4-6, Feb. 22 and 23, 2016, ECF No. 334 [hereinafter "Feb. 22 Crump Trial Test."]. At the time she left work at Sewells Point Clinic, Plaintiff was working forty hours a week and receiving $52.02 per hour. Crump Damages Test. at 4:3-11. While out of work for her cochlear implant revision surgery, Plaintiff was on unpaid leave under the Family and Medical Leave Act ("FMLA"). Id. at 83:22-84:2.

A. Plaintiff's Accommodation Requests

Plaintiff's recovery from surgery took longer than expected, but she was cleared to return to work with no medical restrictions on July 20, 2011. LeMay Test, at 44:7-15; Feb. 22 Crump Trial Test, at 130:17-131:3; RTW Note (TCA) from LeMay, AX-8. However, as of July 2011, Plaintiff's full hearing capabilities had not yet returned. Dr. LeMay explained that, while Plaintiff was able to return to work without restrictions, Plaintiff required an accommodation to be "successful in returning to work" at Sewells Point Clinic, including reduced noise levels and use of a video relay service for communication on the telephone. LeMay Test, at 20:14-24:7, 44:4-45:18; Letter from LeMay (Clinical Audiologist) regarding Crump Diagnosis, AX-24.

Plaintiff began seeking such accommodation and to return to work in June 2011.⁷ Feb. 22 Crump Trial Test, at 10:20-11:15. Plaintiff met with TCA employee Angela Green on June 27, 2011 and requested several accommodations that would allow her to return to work, including use of a video relay phone for making telephone calls. Id. at 11:19-12:15; Email from Plaintiff to Green, "re: RE: Summer Crump Accommodations," AX-22. However, Plaintiff's accommodations request was not approved immediately and she was not able to return to work as she had planned. On August 1, 2011, the Navy, through Commander Sarah Neill, approved Plaintiff's accommodation requests, including the use of a video relay phone. Email from Marivic Williams to Cynthia Carpenter on 8/1/11, DX-2. Such approval was later communicated

205 F.Supp.3d 738

to Plaintiff. However, installation of the video relay phone was delayed, and Plaintiff understood that she could not return to work until such accommodation was in place. Feb. 22 Crump Trial Test, at 22:15-23:15; Crump Damages Test. at 216:7-217:15; Email from Williams to Plaintiff, Green, "re: RE: Return of PA Summer Crump," AX-33; Email Badura to Crump, "re: RE: RTW," AX-101 ("Previously TCMP would not allow me to RTW without the accommodations due to my 'limitations' under the contract."). On August 16, 2011, Plaintiff was informed by TCA employee Angela Green that "[s]ince the government approved accommodations, we have to wait until the installation is complete prior to you returning FTE." Email from Williams to Plaintiff, Green, "re: RE: Return of PA Summer Crump," 2, AX-33. Such instruction was reiterated to Plaintiff by her supervisor, Lieutenant Commander Lina Badura, in a personal email on August 16, 2011: "Bottom line, we need to wait for TCMP to coordinate with Sorenson and have all equipment available ... so that I can coordinate with our communications dept[.] about actual installation. I guess you can't come back until all in place." Email from Badura to Crump dated 8/16/11, "re: Sorenson," PX-87; see also Email from Williams to Green, "re: FW: PA Summer Crump," AX-26 ("PA Crump cannot return to work until I receive a medical release from TCMP stating that PA Crump is fit for full duty."). Further, Plaintiff was informed by Lieutenant Commander Badura that approval/disapproval for use of particular software "may take a few months."⁸ Email from Green to Jackie Harris, Williams, "re: FW: Ntouch," AX-29; see Feb. 22 Crump Trial Test, at 21:15-18.

As demonstrated at trial, throughout the following months Plaintiff continued to communicate with TCA and the Navy regarding her requested accommodations. In response to the Navy's request, in October 2011, Plaintiff again submitted her requests for accommodation on a request for accommodation form, provided to her by the Navy, and she submitted a proposed meeting agenda regarding her requests for accommodation. Email from Williams, "re: FW: Summer Crump, Attachments: Crump Accommodation Request, Completed Medical Support Information, VRS Interpreter, Request for Reasonable Accommodation Form, Authorization to Release Medical Information," AX-48; Email from Robles to Carpenter, "re: FW: Summer Crump; Attachments: Request for Reasonable Accommodation Form, Authorization for Release of Medical Information," AX-51. However, as of February 22, 2012, Plaintiff had not received an accommodation and had not returned to work at...