Solomon v. Vilsack
| Decision Date | 16 September 2009 |
| Docket Number | Civil Action No. 07-1590(JDB). |
| Citation | 656 F.Supp.2d 55 |
| Parties | Linda SOLOMON, Plaintiff, v. Thomas J. VILSACK, U.S. Secretary of Agriculture,<SMALL><SUP>1</SUP></SMALL> Defendant. |
| Court | U.S. District Court — District of Columbia |
John F. Karl, Jr., McDonald & Karl, Washington, DC, for Plaintiff.
Harry B. Roback, U.S. Attorney's Office, Washington, DC, for Defendant.
Plaintiff Linda Solomon, a former employee of the United States Department of Agriculture ("USDA"), brings this employment discrimination and retaliation action against defendant Thomas J. Vilsack in his official capacity as the Secretary of Agriculture ("the Secretary"). Solomon seeks relief under three statutes: the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Now before the Court is the Secretary's motion for summary judgment. The primary issue presented is whether Solomon's application for and receipt of federal employees' retirement disability benefits precludes her Rehabilitation Act and Title VII claims. The Court concludes that those claims are precluded. Hence, upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Secretary's motion will be granted.
Solomon began working as a budget analyst at the USDA in 1997. See Def.'s SOF at ¶ 63 & Pl.'s SOF at 3.2 She has a long history of depression and has been treated by numerous mental health professionals, including Dr. Dennis Cozzens, a psychiatrist. See Def.'s SOF at ¶¶ 1-9 & Pl.'s SOF at 1. Solomon's depression intensified in late 2003 because of various personal hardships she experienced at that time. See Def.'s SOF at ¶¶ 10-32 & Pl.'s SOF at 1-2. Her mental health in late 2003 into 2004 "was often unpredictable" and she had "intermittent and sporadic" problems sleeping, concentrating, and focusing. Pl.'s SOF at 2. She began suffering from "panic disorder" and "agoraphobia,"3 and Dr. Cozzens believed that Solomon had entered a downward cycle by May 2004. See Def.'s SOF at ¶¶ 39-41 & Pl.'s SOF at 3. [redacted] See Def.'s SOF at ¶¶ 42-46 & Pl.'s SOF at 3. According to Dr. Cozzens, Solomon's condition remained poor in June 2004, and Solomon describes herself as having been in "crisis" in July 2004. See Def.'s SOF at ¶¶ 47, 53 & Pl.'s SOF at 3. Her condition did not improve in August 2004. See Def.'s SOF at ¶¶ 55-58 & Pl.'s SOF at 3.
As her depression worsened, Solomon began missing time at work. In the first ten weeks of 2004, she used more than 110 hours of leave, including 50 hours of leave without pay. See Def.'s SOF at ¶ 72 & Pl.'s SOF at 5. By early March 2004, Solomon began communicating with her supervisors about her condition, and on March 24, 2004, Dr. Cozzens confirmed to USDA that Solomon was under his care. See Def.'s SOF at ¶¶ 73-74 & Pl.'s SOF at 5. Dr. Cozzens requested a "flexible work schedule" for Solomon — a schedule that would permit her "to determine whether she was able to work on a particular day and to work at home when necessary."4 See Def.'s SOF at ¶ 74 & Pl.'s SOF at 5. Solomon also requested a larger cubicle. See Def.'s SOF at ¶ 79 n. 1 & Pl.'s SOF at 6. Solomon and her supervisor communicated about these requests in April 2004, but Solomon stopped going to work on April 23, 2004. See Def.'s SOF at ¶¶ 84-86 & Pl.'s SOF at 6.
Dr. Cozzens sent several letters to the USDA about Solomon after she stopped working. On May 10, 2004, he wrote that Solomon's condition had "prevented her from attending work." See Def.'s SOF at ¶ 88 & Pl.'s SOF at 6. Dr. Cozzens wrote on June 2, 2004 to inform the USDA about Solomon's [redacted] and reported that she remained unable to work, although he estimated that she would be able to return to work in mid-July. See Def.'s SOF at ¶ 91 & Pl.'s SOF at 6. At the same time, Solomon continued to communicate with her supervisors. On May 26, 2004, she asked permission to telecommute part-time. See Def.'s SOF at ¶ 94 & Pl.'s SOF at 6-7. And in early July 2004, Solomon applied to enter the USDA's Voluntary Leave Transfer Program. See Def.'s SOF at ¶ 96 & Pl.'s SOF at 7.
But by mid-July, Solomon wrote to Dr. Cozzens that she had "decided to go for[ward] with the permanent disability package." See Def.'s SOF at ¶ 102 (quoting Def. Mem. Ex. 19) & Pl.'s SOF at 7. Solomon was referring to retirement disability benefits available under the Federal Employees Retirement System ("FERS") program. Solomon (and Dr. Cozzens) completed the documentation required for FERS disability benefits and submitted the forms on August 30, 2004. See Def.'s Mem. Ex. 2. The application queried whether the "agency [has] been able to grant your request [for accommodations]," to which Solomon responded "No." Id. In an attachment to the application, Solomon wrote that Id. Dr. Cozzens also submitted a letter in support of Solomon's application for FERS benefits, opining that "[i]t has become clear that disability retirement is the only viable option in this case." Def.'s Mem. Ex. 25.
Solomon's application for FERS disability benefits was approved on December 16, 2004, see Def.'s Mem. Ex. 3, and she began receiving benefits (retroactive to the date of application) in January 2005, see Solomon Dep. at 43:18-44:8. Beginning in January 2005, Solomon received approximately $1,400 per month in FERS disability benefits.5 Id. at 46:3-19. Since then she has continued to represent that she cannot return to work because of her disability. See Def.'s Mem. Ex. 18 at 26 () (dated Dec. 5, 2007). On September 7, 2007, Solomon filed the pending complaint. The Secretary filed a motion for summary judgment on February 4, 2009. Briefing was completed on August 6, 2009, and the motion is now ripe for resolution.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505.
The Court's analysis of Solomon's Rehabilitation Act claim begins and ends with the resolution of a threshold issue: whether a plaintiff who applies for and receives FERS disability benefits may pursue a claim for failure to accommodate a disability. Because, as discussed below, FERS disability benefits are only available for individuals whose disabilities cannot be accommodated, the Court concludes that the recipient of such benefits is precluded from pursuing relief under the Rehabilitation Act based on a claim that failure to accommodate a disability was discriminatory.
FERS disability benefits are available to federal employees who have completed eighteen months of civilian service and who are "unable, because of disease or injury, to render useful and efficient service." See 5 U.S.C. § 8451(a)(1). The Office of Personnel Management ("OPM"), the agency responsible for administering FERS, has promulgated implementing regulations providing that FERS disability benefits are only available if "[accommodation of the disabling medical condition in the position held [is] unreasonable." 5 C.F.R. § 844.103(a)(4).
These requirements for eligibility distinguish FERS disability benefits from most other federal disability benefits programs. The SSDI program, for example, "does not take the possibility of `reasonable accommodation' into account." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (emphasis in original). Hence, there may be "situations in which an SSDI claim and an [Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101. et seq.] claim can comfortably exist side by side." Id. The Supreme Court therefore concluded in Cleveland that receipt of SSDI benefits does not automatically preclude plaintiffs from claiming that they should have been provided reasonable...
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...Linda Solomon began working as a budget analyst at the U.S. Department of Agriculture ("Department") in 1997. Solomon v. Vilsack, 656 F.Supp.2d 55, 57 (D.D.C.2009). Solomon "has a long history of depression" and has also been diagnosed with agoraphobia, "an anxiety disorder characterized by......
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