Walders v. Garrett, Civ. A. No. 90-785-A.

Decision Date12 June 1991
Docket NumberCiv. A. No. 90-785-A.
Citation765 F. Supp. 303
CourtU.S. District Court — Eastern District of Virginia
PartiesVaile F. WALDERS, Plaintiff, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant.

June D.W. Kalijarvi, Kalijarvi, Chuzi & Stetina, P.C., Washington, D.C., for plaintiff.

Hudson, Henry Edward, U.S. Atty., Alexandria, Va., Dennis Szybala, Asst. U.S. Atty., Anne N. Brennan, Asst. Counsel, Naval Sea Systems Command, for defendant.


ELLIS, District Judge.

This is a handicap discrimination action under § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (the "Act"). Plaintiff, a former civilian employee of the Navy, alleges that the government violated the Act by terminating her employment and failing to offer reasonable accommodation for her handicapping condition, Chronic Fatigue Immune Dysfunction Syndrome ("CFIDS"). The matter came before the Court for a bench trial. In the course of the trial, numerous documents were admitted into the record and the Court heard the testimony of eight witnesses, including plaintiff, her former physician, her immediate supervisor and two higher level supervisors. For the reasons recorded here,1 the Court concludes that plaintiff is not a "qualified handicapped employee" within the meaning of the Act. Accordingly, judgment in favor of the defendant is warranted.


Plaintiff was employed by the Naval Sea Systems Command ("NAVSEA") from December 1984 until her removal on August 18, 1989. She worked first as a librarian and was reassigned in 1987 to a Freedom of Information Assistant position, level GS-7, in the Freedom of Information and Privacy Act Branch (the "Branch"). This Branch was responsible for processing and responding to requests for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a.

The quality of plaintiff's work is not in dispute. The evidence confirms that when she was present, plaintiff was an effective worker who satisfied her job requirements. The problem arises, as will become evident, from the frequency and unpredictability of her absences from work.

Between October 1988 and August 1989, the Branch consisted of fewer than 15 employees. Supervisor Judy Wise was responsible for overall office management. The staff was divided into three teams. Plaintiff's team consisted of five employees (four full time and one part-time) and was responsible for processing routine FOIA requests and a variety of essentially administrative tasks. Plaintiff's principal duty was to prepare responses to FOIA requests for certain types of delivery orders and technical documents. Also included among her duties were keeping track of office productivity statistics, taking the lead in preparation of the Branch's annual report to Congress, and maintaining the freedom of information library.

During plaintiff's tenure, the Branch operated under certain statutory deadlines2 and was struggling with a substantial backlog of requests as well as a degree of judicial scrutiny resulting from FOIA suits challenging the Branch's failure to process requests in a timely manner.3 Both Wise and Earl Wright, plaintiff's second level supervisor, testified emphatically to the need for rapid processing and closing of cases and the substantial pressure placed on the Branch by the Navy and, in some instances, by the Department of Justice. Both also testified that they sought increases in staff and support for the Branch. These requests, they reported, fell victim to federal budgetary and personnel constraints.

In early August 1988, Dr. Robert Hallowitz diagnosed plaintiff as having CFIDS.4 The disease appears to be a dysfunction of the immune system that results in chronic viral activity, extreme fatigue, and other symptoms.5 In plaintiff's case, as with other CFIDS sufferers, the disease strikes unpredictably. When it is active, plaintiff may be totally debilitated (i.e., unable to get out of bed) or may experience less severe symptoms such as headaches, sore throat, or low grade fever. When the disease is dormant, plaintiff experiences few, if any, symptoms and can function normally.

Plaintiff's tenure at NAVSEA was consistently marked by a high rate of absenteeism. The parties stipulated that during each of the calendar years 1985 through 1988 plaintiff was absent from work, excluding vacation and sick leave,6 for more than four weeks per year.7 Also stipulated was her attendance record for the first half of 1989, when she was absent from work in a non-pay status for more than 100 hours. Similarly, Wise testified that according to her contemporaneously-maintained records, plaintiff was absent, excluding annual and sick leave, for (i) all or part of thirty-two days for the four-month period September 1988 through the end of the year, and (ii) for all or part of thirty days between March and August 1989. In sum, plaintiff's rate of absenteeism was substantial and fairly constant; including the annual and sick leave which she almost invariably exhausted, plaintiff missed work for all or part of more than sixty days per year, and probably much closer to 90 days. On the basis of this history, the Court finds that a similar rate of absenteeism for plaintiff would likely occur in the future.8 Consistent with this expectation, Dr. Hallowitz testified that once CFIDS has persisted for three years, "the probability of it going into a complete spontaneous remission is virtually nil." He further testified that "the pattern seems to be that patients will hover somewhere around the 50 percent or 60 percent of their former vitality, with waxing and waning courses of exacerbation and remissions."9

In November 1988, plaintiff applied for a transfer of leave for the purpose of entering a hospital for treatment of multiple viral infections related to her condition. The Navy subsequently permitted plaintiff to use a combination of donated leave,10 leave without pay, and accrued leave to cover her period of hospitalization from January 9 to February 21, 1989. The Navy also extended plaintiff's period of leave by two weeks at the request of her physician. Before plaintiff entered the hospital, the Navy issued her a letter of leave restriction stating that she would be permitted to use annual and sick leave to cover periods of unscheduled absence, but would be charged as Absent Without Leave (AWOL) for any unscheduled absence for which she lacked accrued leave.11

When plaintiff returned from the hospital her work attendance temporarily improved. Subsequently, however, her absenteeism again increased to at least the pre-hospitalization level. During this period, the parties discussed appropriate accommodations for plaintiff, even though the Navy was not then formally treating plaintiff as a handicapped person. On one hand, Wise told plaintiff that further leave without pay would not be granted, that non-emergency sick leave must be scheduled in advance, and that future unscheduled absences not covered by available leave would be charged as AWOL. Yet, the Navy also offered plaintiff the option of working on weekends or her compressed day off12 to accumulate compensatory time for future absences.13 Beyond this, Wright testified that he searched unsuccessfully within NAVSEA for a position better suited to plaintiff's needs.14 Plaintiff apparently rejected the Navy's offer and requested instead that she be permitted to work weekends or compressed days off at the overtime rate, a proposal the Navy rejected. Plaintiff also testified that she requested donated leave, although Wise testified that she received no such request.15

Between April 6 and June 2, 1989, plaintiff was charged as AWOL for fifteen days. On June 1, 1989, Wise provided plaintiff with a written request for specific medical information for the purpose of determining whether "you are able to perform your assigned duties on a full-time basis, if you are a handicapped employee, or if I must initiate action to remove you from your position for unavailability for full-time duty." Wise also offered to refer plaintiff, at her option, for a fitness for duty examination. In a June 6 written response, plaintiff, in lieu of the requested information,16 offered instead an explanation for the deterioration in her attendance record. Plaintiff attributed the initial improvement in her attendance to medication prescribed for her during the course of her hospitalization and stated that her recent difficulties were the result of exhausting the supply of medication. Plaintiff requested an opportunity to demonstrate that she could improve her attendance and maintain a full-time position once she resumed taking the medication. By memorandum to plaintiff dated June 7, 1989, Wise reiterated her request for medical information to determine whether plaintiff could continue to perform her duties. By letter dated June 26, 1989, Wright proposed plaintiff's removal. He testified that plaintiff's continued absenteeism compelled him to conclude that plaintiff could not be relied upon to maintain a regular, full-time work schedule, citing the fifteen days of AWOL. Approximately a month later, plaintiff replied orally to Charles Tittle, her third level supervisor and the deciding official. In this oral reply, plaintiff advised Tittle that she had received helpful medication during her hospitalization, but had discontinued taking it because of cost and other factors. She stated that she had reinitiated the medication on June 23, 1989, and that her single day of absence since June 6 showed that she could improve her attendance while on the medication.

Tittle testified that he planned to render his final decision within about two weeks of plaintiff's oral reply. During this two-week period, plaintiff was absent on an unscheduled basis on July 31, August 1, and August 7, 1989. Tittle testified that these absences served as the final straw. They demonstrated, in his view,...

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