The opinion of the court was delivered by: Newman, Senior Judge, United States Court of International Trade, sitting as a United States District Court Judge by Designation:
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, formerly a federal employee and Head Nurse at the
Veterans Administration's Franklin Delano Roosevelt Hospital,
Montrose, New York ("Hospital"), seeks an award of compensatory
and punitive damages, injunctive and other relief against
defendant, Secretary of the Department of Veterans Affairs, for
alleged handicap discrimination pursuant to the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 701 et seq. The court has
federal question jurisdiction pursuant to 28 U.S.C. § 1331. A
bench trial was held on May 1 and 2, 1991, decision was
reserved and the parties have filed post-trial submissions.
The primary issue to be resolved is whether plaintiff, who at
the time of her employment by the Hospital received medical
treatment for stress and depression, was an "otherwise
qualified handicapped individual" but was denied reasonable
accommodation by defendant. For the reasons that follow, the
complaint is dismissed.
The following constitute the court's findings of fact and
conclusions of law as required by Fed.R.Civ.P. 52(a).
2. Plaintiff's professional experience is extensive and quite
impressive: staff nurse, supervisory positions, psychiatric
nursing instructor at the City University of New York and Pace
University in New York City, Chairman of Psychiatric Nursing at
the Beth Israel Medical Center School of Nursing, Supervisor of
the Methadone Maintenance Training Program at Beth Israel
Medical Center, Assistant Director of Psychiatric Nursing at
Harlem Hospital, and Field Director of Community Mental Health
in Westchester County, New York. There is no dispute regarding
plaintiff's professional qualifications — which are obviously
outstanding — to hold the position of Head Nurse.
3. In February 1980 plaintiff commenced her employment at the
Hospital and in March 1980 assumed the position of Head Nurse.
She worked in that capacity until April 1986, when she retired
on a disability pension.
4. Shortly after assuming her duties as Head Nurse,
plaintiff's interpersonal relations with her supervisors
rapidly deteriorated, became extremely strained and
contentious, with various charges and countercharges that need
not be detailed. According to plaintiff's psychiatrist, Dr.
Cynthia D. Barnes of New York City, in December 1980
"[plaintiff's] supervisors * * * were seeking to destroy her
efforts for reasons that were never objectively identified"
(pltf's exh. 8, p. 2, emphasis added). There can be no doubt
whatever from the record that plaintiff suffered from stress
and depression early on, dating back to at least 1980 when she
sought treatment from the Hospital's personnel physician
(pltf's exh. 6, pp. 1-2). Plaintiff's mental difficulties were
significantly exacerbated by a strained relationship with her
supervisors and, from plaintiff's perspective, a stressful
environment at the Hospital dating back to 1980.
5. Commencing in January 1981, plaintiff began reporting to
Dr. Berg, an internist and long-time family physician,
complaints of severe anxiety, depression, insomnia and
headaches, which plaintiff attributed to stress on her job
(deft's exh. K).
6. In September 1981 plaintiff was reassigned to be Head
Nurse of the Drug Dependency Treatment Center.
7. By 1984, following an allegedly unrelenting episodic
history of brouhahas involving a number of personnel who set
out to undermine plaintiff's professionalism, more charges and
countercharges of misconduct and wrongdoing, plaintiff
developed migraine headaches, severe anxiety and a major
depressive episode, as described below (see pltf's exh. 8;
deft's exh. K)). Plaintiff's anxiety and depression became
progressively severe during 1984 and she sought further
treatment from the personnel physician at the Hospital. Upon
the advice of the personnel physician, plaintiff pursued
continued treatment by Dr. Berg.
8. In June 1984, Dr. Berg diagnosed plaintiff as severely
depressed. As part of her anxiety-depression syndrome,
plaintiff experienced: feelings of hopelessness, malaise,
insomnia, inability to get up in the morning, abnormally
increased appetite with resultant binging and significant
weight gain, chest pain, palpitations, extreme fatigue,
listlessness, inability to concentrate, memory deficit
(forgetfulness), irritability and a dread of going to work. Dr.
Berg recommended that plaintiff take two months leave of
absence from her job, initiated antidepressant drug therapy,
and referred plaintiff to Dr. Arnold Gallo, a psychiatrist, who
added sedatives to plaintiff's drug regimen (deft's exh. K).
9. During July and August 1984 plaintiff took the two months
sick leave recommended by Dr. Berg. She returned to the
Hospital in September 1984 and attempted to resume her normal
duties. However, plaintiff's depressive symptomatology quickly
recurred and in October 1984 she returned to Dr. Berg for
further treatment. Dr. Berg found plaintiff to be still
suffering from severe depression, particularly insomnia,
extreme fatigue, lack of ability to concentrate and make
decisions, listlessness — in short, great difficulty in
carrying on her normal activities. Plaintiff complained to Dr.
Berg of lack of support and
understanding from her co-workers and supervisors, hostility,
and her belief she was under constant attack from which she
needed to protect herself. Other symptoms reported by plaintiff
included a complete loss of interest in activities —
especially in good job performance — in which she had
previously taken a great interest and derived satisfaction,
feelings of extreme rage and anger directed at her supervisors
and others, general malaise, occasional nightmares, appetite
disturbance and weight gain, hopelessness, and especially
almost a total inability to get out of bed and prepare herself
to go to her job, which she felt had become intolerable.
10. Dr. Berg advised plaintiff to resume an extended
indefinite leave of absence from her job, and again referred
plaintiff to Dr. Gallo for reevaluation and drug therapy
(deft's exh. K)
11. Plaintiff was granted an extended leave of absence
— without pay — from February 8, 1985 to September 9, 1985
(approximately seven months) — after which plaintiff returned
to the Hospital and resumed all her duties. At the time,
plaintiff was active in patient treatment and was supervising
five employees in her ward (pltf's exh. 5). While plaintiff was
on her seven month leave of absence, the Head Nurse of an
adjoining ward concurrently covered plaintiff's ward and the
adjoining ward. Additionally, during plaintiff's long absence,
a staff nurse in the drug unit, Violet Sheedy, assumed many of
plaintiff's duties and was able to perform them well.
12. Unfortunately, plaintiff's depressive symptoms continued
during her extended leave of absence, and in September 1985
plaintiff began treatment under the care of Dr. Barnes.
Thereupon, Dr. Barnes wrote a detailed report concerning
plaintiff dated November 20, 1985 (deft's exh. K) and more
recently testified on behalf of plaintiff at trial in May 1991.
The symptomatology reported by Dr. Barnes includes feeling of
being unable to "go on," insomnia, extreme fatigue, lassitude,
physical deterioration, substantial weight gain, loss of
interest in everyday activities, malaise, difficulty in
concentrating, feelings of isolation and betrayal by her
supervisors and co-workers, crying spells, feelings of extreme
anger and rage, hopelessness, occasional nightmares, enormous
difficulty in getting out of bed in the morning and arriving at
work with enormous dread. A major depressive episode, as listed
in the American Psychiatric Association Diagnostic and
Statistical Manual of Mental Disorders III-R, includes many of
13. Viewing plaintiff's mental distress as multifaceted, Dr.
Barnes prescribed several psychopharmacologic modalities
— Desyrel (for depression), Valium (for anxiety and
agitation), and Fiorinal (for migraine headaches). These
medications typically, as a side effect, leave many patients
significantly sedated over an extended period of time. In point
of fact, "Desyrel is one of the most sedating antidepressant
medications" (deft's exh. Q, p. 3). However, given plaintiff's
symptomatology prior to treatment with drugs, particularly her
sleeping disturbances and inability to get up in the morning
(she was never a "morning person," pltf's exh. C), plaintiff's
assumption that her medications were solely responsible for her
morning drowsiness and inability to arrive at work prior to
10:00 A.M. was erroneous. Dr. Barnes believed that a
combination of depression and the medication accounted for
plaintiff's morning problem (deft's exh. Q, p. 2).
14. "As all antidepressant medications are equally
efficacious in combating depression, the prescription of an
antidepressant is based primarily upon its side-effect profile"
(deft's exh. Q, p. 3). Because sleep disturbance (particularly
insomnia) and extreme anxiety were among plaintiff's chief
complaints, Dr. Barnes selected a sedating antidepressant
— Desyrel — as the medication of choice in plaintiff's case
because of its tendency to relieve stress and induce sleep.
After experimenting with different medication schedules, Dr.
Barnes instructed plaintiff to take her complete daily dose of
Desyrel at dinnertime to promote sleep through the night.
16. After resuming work on September 9, 1985 following her
extended leave, plaintiff seldom arrived at the Hospital before
10:00 A.M. and frequently much later. Plaintiff's punctuality
and attendance were erratic, and plaintiff made unapproved
changes in working hours to accommodate her morning problem.
Plaintiff was repeatedly directed by her supervisors to arrive
at work by 8:00 A.M., but plaintiff persistently failed to do
so. Plaintiff's continued tardy arrivals were a source of
constant friction with her supervisors.
17. On or about September 19, 1985, approximately two weeks
after her return to work following the extended leave,
plaintiff, herself recognizing that she could not indefinitely
continue her erratic attendance and arrival times, requested
that her tour of duty as Head Nurse be officially changed to
allow her to work from 10:00 A.M. to 6:30 P.M. In support of
that request, plaintiff submitted a letter from Dr. Barnes,
dated September 19, 1985, stating that plaintiff was under her
care for "extreme stress" and "needs to work a later shift
daily. This could best be accomplished by her starting work
after 10 A.M. daily" (pltf's exh. 2). This terse request for a
change in plaintiff's regular work schedule, ostensibly for an
indefinite period of time, made no mention whatever of
plaintiff's depressive illness, treatment, medication regimen
or prognosis and offered no explanation whatever regarding the
significance of a 10:00 A.M. starting time.
18. A memorandum dated September 20, 1985 from Lily I. Lee,
R.N., Assistant Chief of Nursing Service/Psychiatry, discloses
that Lee met with plaintiff on September 19, 1985 and inquired,
inter alia, concerning why plaintiff "was working such odd
tours, as she was a Head Nurse and must work an administrative
work week of 7:30 a.m. to 4:00 p.m. or 8:00 a.m. to 4:30 p.m.,
as posted." Lee made it clear to plaintiff that to effectively
operate a unit, any other hours than an administrative tour of
duty would be unacceptable for a Head Nurse (deft's exh. F).
19. Dr. Richard Donn, Chief of Staff of the Hospital and
Clinical Associate Professor of Psychiatry, wrote to Dr. Barnes
on September 23, 1985 seeking information concerning
plaintiff's clinical history, onset and nature of symptoms,
diagnosis, treatment plan, prognosis, etc. Plaintiff refused
Dr. Barnes' request for consent to release of the medical
information sought by Dr. Donn (deft's exh. H); accordingly,
Dr. Barnes did not respond and furnish the requested medical
20. On September 24, 1985 Lee denied plaintiff's request for
a change in tour of duty and directed plaintiff, in writing, to
work an administrative tour of duty, 8:00 A.M. to 4:30 P.M.,
which could be changed only after discussion with her
supervisor (joint exh. 1A). Further, plaintiff was informed by
Lee: "Any deviation from this direct documented order shall
result in a disciplinary action" (Id.).
21. Dissatisfied with the denial of her request, plaintiff
immediately contacted an Equal Employment Opportunity (EEO)
Counselor for informal resolution of her problem. ...