Davis v. Thompson

• Decision Date: 24 March 2005
• Docket Number: No. CIV. PJM 04-445.,CIV. PJM 04-445.
• Citation: 367 F.Supp.2d 792
• Parties: Joseph E. DAVIS, Plaintiff, v. Tommy G. THOMPSON, Secretary, Department of Health and Human Services,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — District of Maryland

367 F.Supp.2d 792

Joseph E. DAVIS, Plaintiff, v. Tommy G. THOMPSON, Secretary, Department of Health and Human Services,¹ Defendant.

No. CIV. PJM 04-445.

United States District Court, D. Maryland.

March 24, 2005.

COPYRIGHT MATERIAL OMITTED

Charles R. Work, Francine Allyn Hochberg, Mark Hunter Churchill, Washington, DC, for Plaintiffs.

Allen F. Loucks, Kristine L Sendek Smith, Baltimore, MD, for Defendants.

OPINION

MESSITTE, District Judge.

Joseph E. Davis has sued the Secretary of the U.S. Department of Health and Human Services (HHS) for violation of the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 691 et seq. (Count 1) and violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (Count 2).² Defendant has filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. Having considered the briefs and oral arguments of counsel, the Court will GRANT the Motion to Dismiss as to the FMLA claim and the Motion for Summary Judgment as to the disability discrimination claim.

I.

Davis was hired as an animal caretaker in the Center for Biologics Evaluation and Research (CBER) of the Food and Drug Administration (FDA), an agency within HHS. As of Fall 2000 he had worked in that capacity for 24 years and was approximately 52 years of age.

In October 2000 Davis was diagnosed with throat cancer and sought leave from work. On the basis of accumulated sick leave as well as donated leave from fellow employees, leave was granted.

On or about December 4, 2000, Dr. Sheela Puttaswamaiah, Davis's radiation oncologist, wrote a letter to Dr. Philip Snoy, Davis's supervisor, advising him: that Davis's radiation treatment had commenced on October 25, 2000 and was expected to last 7½ to 8 weeks; that Davis would suffer various side effects, including fatigue; that, while all his symptoms would improve within the first 2-3 weeks after completion of the radiation treatment, the fatigue might last as long as 2-3 months; and that Davis appeared to be "significantly affected by the fatigue to the point that he feels he is unable to perform his daily activities, including his job." Although Puttaswamaiah noted that Davis's "overall prognosis after receiving radiation treatment should be very good to excellent," she requested that "he be allowed some time off work to allow him to cope and recover from his symptoms."

Based on this letter, Snoy granted Davis sick leave through December 15, 2000, and later added two weeks of sick leave until January 2, 2001. Snoy's understanding of Puttaswamaiah's letter was that there was no impediment to Davis returning to work in January, albeit there would be obvious limitations in view of his medical condition.

Snoy has stated in an affidavit that, on December 27, 2000, he advised Davis by phone that he was obliged to file a further request for leave and that he had to provide more extensive medical documentation indicating why he was unable to return to work. Failing that, Snoy told him, Davis was expected to return to work on January 2, 2001. Snoy did not mention leave potentially available under the Family Medical Leave Act. Davis has alleged in this suit — although he never did so while his claim was being considered by either HHS or the Merit Systems Protection Board — that Snoy told him in that conversation that it would be futile for him to ask for leave and that is why he never asked for it. Davis says Snoy expressed his belief that Davis was lying about his condition and demanded that he return to work immediately.

Davis did not return to work on January 2, 2001 and never returned to work thereafter.

On February 16, Snoy sent him a letter reiterating that he had run out of medical leave in December and that therefore, since January 2, he was in Absence Without Leave (AWOL) status. Snoy cautioned Davis that if he was "medically unable to report for duty as ordered and to perform the duties of [his] position of Biological Science Laboratory Technician," he "must provide acceptable medical documentation ... must be responsive to the Documentation of a Medical Condition" form Snoy enclosed with the letter. Snoy also instructed Davis to complete one of three enclosed forms depending on whether he wished to request leave, disability retirement, or simply retirement.

Snoy closed his letter warning Davis that if he failed to follow Snoy's order to report for duty by no later than March 9, or if he failed to provide acceptable medical documentation on the basis of which Snoy could approve or disapprove of his absence, Snoy would initiate administrative action proposing Davis's removal from his position. Snoy directed Davis to call him if he had any questions or concerns about Snoy's orders, and provided Davis with the name and contact information of an employee in the Division of Employee and Labor Management Relations who could answer any questions concerning the policies and procedures at issue. On February 22, Davis called Snoy, acknowledging his receipt of this letter.

On March 13, Snoy and Davis spoke again by phone. Davis inquired whether Snoy had received his medical documentation and Snoy said he had not. Snoy again advised Davis that he needed to submit the required leave forms included in the letter of February 16, and that Davis remained on AWOL status.

Shortly thereafter Snoy received a copy of a letter from Davis's treating physician, Dr. Joel Schulman, that bore the date March 7. In the letter, Schulman noted that, while Davis was suffering from diverticulosis/diverticulitis³ and unexplained weight loss, he presented as a "relatively well developed, well nourished, anxious male" whose "prognosis at this time is hopefully good." Schulman said nothing about Davis's inability to perform the essential duties of his job.

Snoy forwarded Schulman's letter to the FDA's consulting physician, Dr. Bruce Butler, for an opinion as to whether the conditions noted by Schulman prevented Davis from returning to work. Butler's eventual report was that "the letter does not indicate any current impairment that would prevent useful and efficient service," and that Davis's diagnosis did not indicate any condition that would "interfere with [his] ability to perform the essential functions of his job."

Snoy sent Davis another letter on March 22, 2001, advising him of Butler's conclusions. The gist of the letter was that since Schulman, "did not state that [Davis] was incapacitated for duty," Snoy expected Davis to "report to duty within 5 days of receipt of [the] letter" or he would "begin proceedings to remove [Davis] from [his] position and employment with the Food and Drug Administration."

On March 28, Davis responded to the letter by calling Snoy and informing him that he still did not "feel right." Snoy again told Davis that he had not received any of the required leave forms or appropriate medical documentation. Snoy indicated to Davis that he would work with him on his feelings of fatigue, but that Davis needed to return to work. In the meantime Davis was told he remained on AWOL status. That same day Davis sent Snoy a handwritten note from Schulman, indicating that Davis was being referred to a neurologist after he reported feeling "pins and needles" throughout his spine. Snoy forwarded Schulman's note to Butler for a further opinion.

On April 4, Butler called Schulman to inquire about Davis's ability to return to work. Butler asked Schulman if he was aware of any medical reasons that would prevent Davis from returning to full unrestricted duty. Schulman said he was not aware of any such reasons, stating that, while Davis had returned to his office several times with new complaints, in each instance Schulman's tests and referrals showed no objective support for his symptoms. Schulman concluded by hypothesizing that "there could be a psychiatric condition causing the prolonged work absence." In light of this conversation, Butler advised Snoy that "[t]o date, there is no biologic or psychological justification for the continued absence from work" and that Schulman was "unaware of any impairment that would significantly interfere with Mr. Davis's ability to provide useful and efficient services in his job position."

On April 10, Davis faxed Snoy a copy of a letter from Davis's neurologist, Dr. Norman Luban, to Schulman. In the letter Luban informed Schulman that he had examined Davis and had received an MRI report that mentioned that Davis had discogenic disease with posterior disc bulges at two levels. Luban continued: "[a]part from that he is healthy," the "neurological examination is normal," and "[m]ental status is normal with good comprehension and fluent speech." Luban concluded by stating his concern that Davis might be at risk for a more serious injury if he were involved in a slip-and-fall situation or a rear-end collision, but made no observations about Davis's inability to return to work.

On April 11, Davis called Snoy to see if he had received the copy of the letter from Luban to Schulman. Snoy confirmed his receipt of the letter and informed Davis that he had forwarded it to Butler for his review. Snoy again urged Davis to submit the required leave forms, as he was still on AWOL status.

On review of the correspondence between Luban and Schulman, Butler once again concluded that there "is no medical evidence that clearly inhibits or would substantially interfere with the ability to perform the essential functions of the job."

On April 23, Davis faxed to Snoy a one-page handwritten note from Dr. John Barrett in which Barrett indicated that Davis was disabled from work from April 23 until May 15, 2001 due to "cervical disc and cervical strain." Since this notation was unaccompanied by any explanation, the FDA's reviewing physician was unable to conclude that the note justified Davis's continuing absence from work.

Davis called Snoy on the same day he faxed Bennett's note to Snoy to confirm Snoy's receipt of the note. Snoy confirmed his receipt of the...