The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Plaintiff Sharyn Brown brings this action against Defendant R. James Nicholson, in his official capacity as United States Secretary of Veterans Affairs,*fn1 under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, et seq.*fn2 Plaintiff alleges that her employer, the New York Harbor Healthcare System, Manhattan Campus, of the Department of Veterans Affairs (the "VA Hospital"), subjected her to employment discrimination and retaliation based on her alleged disability, fibromylagia syndrome ("FMS").*fn3 Defendant now moves for summary judgment.
I. Plaintiff's Position as a Respiratory Therapist
Plaintiff has been employed as a Respiratory Therapist ("RT") by the VA Hospital since 1988. Her duties include monitoring patients, providing treatment, obtaining equipment such as oxygen tanks, and making floor calls and rounds. These duties involve a great deal of physical activity, including substantial amounts of walking, pushing, pulling and lifting, as well as prolonged periods of sitting or standing.
Starting in 1998, the VA Hospital required RTs to work ten eight-hour shifts every two weeks.*fn5 The three daily shifts were known as the day (8am-4pm), evening (4pm-midnight), and night (midnight-8am) shifts, and RTs were, as a general matter, assigned full-time to one of the three. Each shift had a minimum staffing level, and RTs were required to perform mandatory overtime shifts when necessary to cover staffing shortfalls. Plaintiff was assigned to the night shift when she first joined the VA Hospital staff.
Helen Planzos ("Planzos"), the Technical Director of the Respiratory Therapy Department, set the staffing levels of each shift and the monthly work schedules of every RT. Planzos declares that both the evening and night shifts were staffed at or above the minimum level during the period covered by this action, but it is undisputed that there were staffing shortages on the day shift. Planzos also declares that she believed that when RTs had to be transferred from one shift to another, the terms of the union contract at the VA Hospital required that they be transferred in order of seniority. During the relevant period, Plaintiff was the least-senior RT assigned to the night shift after April 2001, when a night shift RT with less seniority was reassigned to the day shift.
Night Shift and Day Shift Duties
The duties of RTs are the same regardless of shift, though the day shift is busier than the night shift and also has higher staffing levels. Plaintiff alleges that the day shift required a greater degree of physical activity and produced more stress than the night shift, essentially due to the extra activity. The senior night shift RT, Genetha Middleton ("Middleton") testified to the contrary, opining that the lower staffing levels result in night shift RTs working harder than day shift RTs.
II. Plaintiff's Requests for Accommodation Prior to 2002
On November 23, 1998, Plaintiff first submitted a request to the Chairperson of the Reasonable Accommodation Committee ("RAC"), asking that she not work shifts longer than 12 hours because of her FMS. The RAC never responded. More than two years later, on January 28, 2001, Plaintiff submitted another request, asking that she not be assigned to consecutive shifts at a data entry workstation (the "stat lab"), which required prolonged sitting and, allegedly, body contortions. The RAC again failed to respond. On July 2, 2001, at Planzos's suggestion, Plaintiff renewed her 1998 request not to work more than 12 consecutive hours. The request was granted in or around November 2001.
III. 2002 Assignment to the Day Shift and Request for Accommodation
In March 2002, Planzos assigned Plaintiff to a mix of day and night shifts. The least-senior evening shift RT was also assigned to the day shift at times during this period. On March 8, 2002, Plaintiff requested that she not be assigned to the day shift, and the request was formally denied on June 6, 2002. Planzos continued to assign Plaintiff to mixed shifts until June 2002, though Plaintiff did not report for most of the day shifts to which she was assigned. In or around June 2002, Planzos assigned Plaintiff exclusively to the day shift, and Plaintiff requested and was denied leave under the Families and Medical Leave Act. On July 3, 2002, Plaintiff filed an informal complaint with an Equal Employment Opportunity (EEO) counselor. Having used all her remaining sick leave ...