Enica v. Principi

• Decision Date: 06 October 2008
• Docket Number: No. 06-2187.,06-2187.
• Citation: 544 F.3d 328
• Parties: Lucia ENICA, Plaintiff, Appellant, v. Anthony J. PRINCIPI, Secretary of the Department of Veterans Affairs; Department of Veterans Affairs, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

544 F.3d 328

Lucia ENICA, Plaintiff, Appellant, v. Anthony J. PRINCIPI, Secretary of the Department of Veterans Affairs; Department of Veterans Affairs, Defendants, Appellees.

No. 06-2187.

United States Court of Appeals, First Circuit.

Heard September 12, 2007.

Decided October 6, 2008.

Sanford A. Kowal, on brief for appellant.

Gina Walcott-Torres, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, on brief for appellees.

Before SELYA and LIPEZ, Circuit Judges, and DELGADO-COLÓN,^* District Judge.

DELGADO-COLÓN, District Judge.

On June 28, 2004, appellant, Lucia Enica ("Enica" or "Appellant"), a registered nurse employed by the Department of Veterans Affairs, brought suit against the Secretary of Veterans Affairs ("VA" or "Appellee"), alleging that the VA failed to accommodate her disability in violation of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794(a), and that, after she sought accommodations and submitted a worker's compensation claim, retaliated against her by failing to accommodate her, subjecting her to a hostile work environment, and denying her a promotion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Each party moved for summary judgment and on May 30, 2006, the district court entered a memorandum and order denying Enica's motion for summary judgment and granting the VA's motion for summary judgment. Enica v. Principi, Civ. No. 04-11468, 2006 WL 1540486 (D.Mass. May 30, 2006). Enica appealed. We affirm in part and vacate in part.

I. Background

The following facts are presented in a light most favorable to the non-moving party Enica. See Plumley v. S. Container, Inc., 303 F.3d 364, 367 (1st Cir.2002).

A. Enica's Disability and Requests for Accommodations

1. Medical History and Educational Background

Enica was diagnosed with poliomyelitis as a child. The disease caused her to suffer nerve damage and paralysis in her right leg beginning at ten months of age. When she was approximately twelve years old, she fractured her right femur and underwent several reconstructive surgeries, leaving her right leg shorter than her left. She also suffers from severe arthritis in her right knee, and ankylosis, a condition causing stiffness, in her right ankle. She walks with a limp, drives a specially equipped car and has limited ability to lift. Enica obtained a bachelor's degree in nursing from New York University, a master's degree in psychiatric nursing from University of Massachusetts at Lowell and has nineteen years of experience working as a nurse.

2. Employment History Prior to EEO Claim

In 1994, Appellant was hired as a Registered Nurse of Psychiatry at the VA hospital in Jamaica Plain. Her responsibilities included providing basic care for patients with physical and emotional needs. Prior to commencing her employment, she underwent a "fitness for duty" examination which concluded that she had no conditions limiting her ability to work as a psychiatric nurse.

In 1995, Enica learned that the psychiatric unit in which she worked was closing. Concerned that she might be transferred to a medical unit, she approached her manager, Mary Farren ("Farren"), and explained that her physical condition precluded her from performing the work required of nurses in the medical units. Enica also informed the Chief of Nursing, Carol Coulter ("Coulter"), and the Assistant Chief of Nursing, Cecilia McVey ("McVey"), about the limitation of her physical condition and inability to work in a medical unit. She was subsequently transferred to another psychiatric unit within the Jamaica Plain campus.

Thereafter, sometime in 1996, Enica was asked to push a patient on a stretcher to and from an electric compulsive shock therapy ("ECT") room and to assist him into bed. She informed Beverly Reardon ("Reardon"), her supervisor at the time, that she was in pain and could not perform said tasks. Reardon asked Enica to bring a medical certificate explaining her limitations and restrictions. In May of 1996, Enica saw Dr. Richard Wright, an orthopedist. After an examination, Dr. Wright stated and recommended that Enica should avoid repetitive low back activity, repetitive or heavy pushing and pulling, and indicated that she was not suited for medical or surgical floor assignments. In his recommendation he noted that "[i]t is not possible to spell out restrictions for all circumstances patient must be permitted some discretion."

Enica submitted this assessment to Reardon, who requested that she undergo another medical examination to determine if she was physically capable of performing the duties of a staff nurse. Dr. John Harris, III, Chief of Orthopedic Surgery at the VA, conducted an examination in July of 1996 and concluded that Enica could not lift, carry, or push forty-five pounds.¹ Dr. Harris' report indicated that he notified Enica of his diagnosis and advised that she go to her supervisors.

According to the VA, after Enica returned to work, her job functions were modified inasmuch as she was excused from carrying or pushing more than forty-five pounds.² Once this modification was put in place, the VA claims that Enica did not speak to anyone in a VA management position about her disabilities from 1996 to 2002.

In contrast, Enica claims that while Dr. Harris' report was timely delivered to the VA, she was neither informed of his suggested restrictions nor provided with any information to give to her supervisors. Instead, she alleges that immediately upon returning from the exam with Dr. Harris, her supervisor sent her to a medical unit where she was asked to transport a patient in a wheelchair. Furthermore, she claims that after this limitation was put in place, she "was still consistently required to take patients to ECT or floated to medical units" and "assigned to do only physical tasks for patients."³

3. The EEO Claim and Additional Requests for Accommodation

On April 9, 1997, Enica filed a complaint with the EEOC alleging discrimination based on national origin and disability, and retaliation against her for initiating EEO counseling. The EEOC concluded that she had failed to establish her claims. The complaint did not address any requests for accommodation or indicate that she had been retaliated against for requesting the same.

In 2000, the VA decided to integrate all inpatient care services at the Jamaica Plain campus with the West Roxbury and Brockton campuses. Over the next two years, the VA negotiated with the labor unions to transfer employees from Jamaica Plain to either of the two other campuses. Enica learned about the impending transfer sometime in May of 2002, and requested to remain at the Jamaica Plain campus in a mental health position. She was informed, however, that no positions were available.

Again concerned that her unit would close and she would be transferred to a more physically demanding position, Enica informed Farren that Enica had been experiencing knee and back pain and could not walk long distances. Based on the advice of a union representative, Enica saw Dr. Robert Provost to obtain additional documentation of her physical restrictions and limitations. In a note dated May 13, 2002, Dr. Provost recommended that Enica not be placed in a position that would require her to stand for more than five minutes at a time, or participate in either psychiatric crisis interventions or walking rounds. When Enica gave Farren the note; she claims that Farren became "very upset." Beginning in May of 2002, and continuing up until June of 2002, Enica engaged in an email dialogue with VA management regarding reasonable accommodations.

On June 28, 2002, Enica met with William Warfield ("Warfield"), Chief of Employee Relations, Karen Basset, Associate Director of Nursing and Patient Care, McVey, and Lisa Cargill, a union representative, concerning the closing of her unit at the Jamaica Plain campus. Enica was then informed that she was being transferred along with ten other nurses, to a new crisis stabilization unit ("CSU") in West Roxbury. At this meeting, Enica again raised the issue of her disabilities and need for accommodation. Specifically, she was concerned that the distance between buildings in the West Roxbury campus would require more walking than she could safely do.

As a result of the meeting, an agreement was reached to modify Enica's duties at the CSU. In particular, Enica would not be required to participate in the physical aspect of any crisis intervention, including "Code Greens."⁴ In addition, and although not documented in writing, Enica claims that she was excused from doing anything that she could not do. According to the affidavit submitted by McVey, it was expected that because the CSU contained only three beds, the work would be less physically demanding and, therefore, more suitable for Enica.

Enica began working in the CSU on July 1, 2002. On her first day she was asked to complete walking rounds throughout the entire hospital. Apparently, because her unit had only one or two patients per week, Enica and the other CSU nurses worked on the medical unit and participated regularly in walking rounds.⁵ According to Enica, she tried not to participate in these rounds but "got pressure from my supervisors to participate." In addition, the nurses in that unit escorted agitated psychiatric patients housed on the inpatient units and provided "one on one" assistance and supervised confused or agitated patients on a rotating schedule every hour. This work entailed walking to different parts of the hospital, and the distances she was required to walk were longer than those in her previous position. Enica estimates that she walked between one and a half and two and a half miles per day while at the CSU. As a result, the pain in Enica's leg and back worsened, making it difficult for her to perform the walking rounds.⁶

As best as the court can discern, on or about August 9, 2002, Enica, through her...