Norden v. Samper
| Decision Date | 03 August 2007 |
| Docket Number | Civil Action No. 05-1232(RMC). |
| Citation | 503 F.Supp.2d 130 |
| Parties | Beth M. NORDEN, Plaintiff, v. Cristian SAMPER<SMALL><SUP>1</SUP></SMALL> Acting Secretary, Smithsonian Institution, Defendant. |
| Court | U.S. District Court — District of Columbia |
Alex Tanas Sliheet, Law Office of Ronald Marron, San Diego, CA, Vickie Inge Fang, Lanham, MD, for Plaintiff.
John F. Henault, Jr., U.S. Attorney's Office Public Corruption, Washington, DC, for Defendant.
This is that rare case in which a plaintiff wins on summary judgment. Plaintiff Beth M. Norden contracted Dengue Hemorraghic Fever ("DHF") in 2000 while traveling in Brazil on the business of her employer, the Smithsonian Institution. The disease nearly killed her and has left her with the permanent presence of dengue antibodies that cause her to suffer from continuing physical and mental ailments. After years of recovery and unsuccessful efforts to return to work part time, in late 2003 Dr. Norden's doctors assured the Smithsonian that she could work a full 40-hour week if she received proper accommodations. In response, the Smithsonian conditioned Dr. Norden's return to work on retaliatory and illegal terms and, when she asked for better accommodations for her genuine disability, it fired her. The Smithsonian does not defend its conduct by arguing that Dr. Norden could not fulfill the essential functions of her job; rather, it asserts that she was not disabled at all. This defense being patently contrary to the undisputed facts, partial summary judgment will be granted to Dr. Norden. Specifically, the Court finds that the Smithsonian violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., when it failed and refused to return Dr. Norden to work in 2004 and discharged her. The factual record is insufficient, however, to rule on whether the Smithsonian also violated Dr. Norden's rights when it put her on unpaid leave in November 2002.
Dr. Norden holds a Ph.D in entomology.2 Pl.'s Statement of Material Facts Not at Issue ("Pl.'s Facts") ¶ 1. She worked at the Smithsonian's Department of Entomology at the Museum of Natural History for approximately 15 years. Id. Before contracting DHF, Dr. Norden consistently received positive performance evaluations. Id.; see also Def.'s Statement of Material Facts Not at Issue ("Def.'s Facts") Ex. 26. She was awarded a Fulbright Fellowship to perform research in Sri Lanka and she has published over 50 professional papers in her field. Pl.'s Facts ¶ 2. The vast majority of Dr. Norden's work at the Smithsonian required little supervision, and she worked very long hours, often alone, on weekends and evenings. Id. ¶ 3.
In the summer of 2000, Dr. Norden Contracted DHF while in Brazil in support of a Smithsonian research project conducted by Dr. Ted Schultz. Id. ¶ 4; Reply Aff. of Beth Norden ¶ 86. The DHF caused a near-fatal level of hemorrhage that required approximately three weeks of hospitalization. Pl.'s Facts ¶ 5. The infection affected all of Dr. Norden's organ systems in different ways: she suffered neurological damage, including brain trauma; an impaired immune system; and a damaged circulatory system in the form of an increased tendency for her capillaries to bleed. Id.
After leaving the hospital, Dr. Norden spent months in intense pain and encephalitic confusion, unable even to read a newspaper competently.3 Id. ¶ 6. Although her condition improved during the next year, her neuropsychologist documented cognitive impairment in the areas of attention and information processing speed, learning and memory, and performance on timed measures of mental flexibility. Id. In April and May 2001, Dr. Norden took a series of neurological tests at Georgetown University. Id. She tested at the 16th percentile for auditory attention span; at the 5th percentile for a test that measured auditory, working memory, and processing speed; and at the 14th percentile for verbal learning. Id. By January 2003, however, the same tests revealed that Dr. Norden's intellectual capacity had returned to a "high level of cognitive function." Id. ¶ 7; Pl.'s Ex. 2.
Dr. Norden spent almost the entire period from September 2000 to April 2002 on complete disability. Pl.'s Facts 118. She attempted a return to work in 2001 at 12 hours per week, but after four months her doctors determined that even this limited schedule was too physically stressful for her to continue. Id. Records of her illness and impaired functioning were sent to the Smithsonian's physician, Dr. Thomas Lawford, and there appears to be no dispute that Dr. Norden was too ill to work at that time. Id. ¶ 9.
In early 2002 Dr. Norden informed the Smithsonian that she was ready to return to work on a part-time basis. Id. ¶ 12. Her physicians and neuropsychlogist supported her return to work with accommodations, and Dr. Lawford was provided access to her medical records in order to make his own assessment. Id. ¶¶ 13-14. At that time, Dr. Norden had demonstrated substantial cognitive improvement and no longer suffered from acute dengue infection; she did, however, continue to suffer from intense fatigue and other symptoms, such as debilitating migraines. Id. ¶¶ 15-16. Dr. Norden's doctors made clear that the light-duty hours were temporary and that her hours could be reevaluated at the end of 2002. Id. ¶ 16. Both her neurologist and Dr. Lawford advised the Smithsonian that Dr. Norden needed "flex time" as an accommodation so that she could go to her many doctors' appointments and take time off when she suffered a migraine or other symptoms of her illness. Id. ¶ 19.
After Dr. Norden returned to work in April 2002 she began to have difficulties because the museum contained high concentrations of naphthalene, a chemical used to protect insect specimens from being eaten by live insects. Id. ¶ 21. Specifically, Dr. Norden suffered persistent and severe nosebleeds that would abate only when she left her work area on the second floor and remained outside the presence of naphthalene for an extended period of time. Norden Aff. ¶ 22. The naphthalene also caused Dr. Norden to suffer frequent and severe migraine headaches and diminished her ability to concentrate. Id. Dr. Norden made several requests for some accommodation to reduce or eliminate her exposure to naphthalene. Pl.'s Facts ¶ 26. The parties dispute whether the Smithsonian failed to provide appropriate protection for Dr. Norden to assist her in avoiding naphthalene fumes or whether Dr. Norden refused to accept the protection offered. Id. ¶¶ 27-40; Def.'s Fact Response ¶ 27. The Court does not need to resolve this dispute. Suffice it to say that by October 2002, Dr. Lawford sent a memo to Smithsonian management that noted that Dr. Norden
has progressively exhibited symptoms, including nosebleeds, intense headaches, and nausea. Both hemorrhagic fever, and naphthalene, can cause these symptoms, as well as hematological dysfunction. ... In Dr. Norden's case, the two conditions appear to be acting in concert to aggravate her symptoms considerably .... We ask that you notify us as soon as possible to the course of actions to be taken to minimize naphthalene exposure to Dr. Norden in the course of her work.
Pl.'s Ex. 15.
Dr. Lawford then met with Dr. Schultz and Marilyn Slomba, of the Smithsonian's Labor and Employee Relations office, to discuss Dr. Norden's exposure to naphthalene. Pl.'s Ex. 16. Dr. Schultz asked Ms. Slomba if "we have to offer light duty" and was told "not if it is insufficiently productive toward the departments [sic] goals." Id. Thus freed from an obligation he did not like, Dr. Schultz promptly issued a November 18, 2002, memo to Dr. Norden informing her that her light duty accommodation would be terminated at the end of the month. Def.'s Ex. 3. No explanation was provided. See id. Dr. Norden was returned to 100% disability status on worker's compensation. See Pl's Facts ¶ 36.
After receiving the memo, Dr. Norden sent an email to numerous people asking, "How do I know when it might be safe to return if it is the naphthalene which is activating my current blood problems?" and "Will anything dealing with my exposure be different on return, or is my return based upon no longer being sensitive to naphthalene?" Pl.'s Ex. 18. Dr. Lawford responded, Pl.'s Ex. 19. Smithsonian Program Manager of Cultural Diversity/Affirmative Action Carol Glover sent Dr. Norden an email telling her that "[t]he goal is for you to successfully return to your job full time." Pl.'s Ex. 20. A coworker sent Dr. Norden an email to tell her that Dr. David Furth, Dr. Norden's co-supervisor, had said that "as of November 30th you have been given a year off to try and recuperate fully." Pl.'s Ex. 21.4 Dr. Norden replied to both the coworker and Dr. Furth, stating, Id.
But Dr. Norden was not happy to be out of work, and in April 2003 she filed an informal EEO complaint alleging that the Smithsonian had failed to accommodate her disability. Pl.'s Facts ¶ 59. She also began receiving therapy from Dr. Donald Oberg, who diagnosed her as suffering from Major Depressive Disorder, Recurrent Severe without psychotic features, and Post-Traumatic Stress Disorder. Id. ¶¶ 59-60. These psychological conditions have caused Dr. Norden to experience problems socializing, sleeping, and eating. Id. In addition, she has experienced poor self-image and an inability to take pleasure in life. Id. ¶ 60.
On November 5, 2003, approximately one year after Dr. Norden's part-time assignment was terminated, Dr. Schultz sent Dr. Norden a letter saying...
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