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Angela Lupe v. Eric K. Shinseki

August 24, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Plaintiff Angela Lupe ("plaintiff") brings this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701--796l ("Rehabilitation Act") and 42 U.S.C. § 2000e et seq. ("Title VII") based on employment-related disability discrimination, harassment and retaliation. Presently before the Court is defendant's motion for summary judgment and dismissal of plaintiff's complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 20). Plaintiff opposes the motion. (Dkt. Nos. 22 - 25).


The record contains few undisputed facts. Plaintiff is a veteran of the United States Army and participated in a fourteen month deployment to Iraq in February 2003. In January 2005, plaintiff was honorably discharged from the Army. In April 2008, plaintiff became employed by the Veterans Administration ("VA") as a Veterans Integrated Service Network 2 ("VISN2") administrative support assistant. Barbara Casey ("Casey") was employed as an administrative officer within VISN2 and was plaintiff's immediate supervisor. From 2004 until 2010, Linda Weiss ("Weiss") was the VISN2 Deputy Director and was Casey's immediate supervisor. Frances Peters ("Peters") was employed as the network health benefits officer for VISN2 and the Operation Enduring Freedom/Operation Iraqi Freedom contact person. Donna Dardaris was a health systems specialist and considered Weiss a "close friend" whom she has known her for at least twenty years. Dardaris testified that she reported to Tom Sharpe, the Chief Financial Officer not to Weiss. Dardaris had no responsibilities with regard to plaintiff.

Casey and Peters described plaintiff as an "excellent" employee. The VISN2 office was located in a converted two story apartment building known as Building Number 7 on the grounds of the Veterans Administration Medical Center. Weiss' office was on the first floor in a small area that was formerly an enclosed porch and approximately 9 x 12 in dimension. When plaintiff began working in Building Number 7, her office was located on the second floor.

During the course of plaintiff's employment at VISN2, plaintiff was periodically absent to attend medical appointments to treat, inter alia, plaintiff's diagnosed Post Traumatic Stress Disorder ("PTSD"). Plaintiff advised some of her co-workers of her difficulties. In a treatment noted from May 21, 2008, Elizabeth P. Donovan, plaintiff's Clinical Social Worker, noted that plaintiff was the primary caregiver for her stepson who suffered from Downs Syndrome and exhibited "challenging behavior". The VA has a formal process utilized in the evaluation of formal reasonable accommodation requests. VA policy specifies that a reasonable accommodation request be acted upon within ten days of receipt of the completed package.

After plaintiff began working at VISN2, she began to ambulate with a cane.*fn2 Casey noticed that plaintiff was having difficulties walking and asked Weiss to move plaintiff's office to the first floor. Weiss asked plaintiff whether she felt confident making her way to her work area on the second floor and plaintiff stated that she was fine. Weiss later observed plaintiff going to the second floor by sitting on the stairs and lifting herself up to the next step. Plaintiff reiterated that she was fine. However, Weiss moved plaintiff's office to the first floor.

During the winter of 2008 and 2009, Casey noticed plaintiff "struggling" to walk. In or around April or May 2009, plaintiff began to use a wheelchair. Casey and Weiss observed plaintiff in the wheelchair at work. As a result of plaintiff's wheelchair use, the lip on the ramp into the building was removed. During the latter part of March 2009, plaintiff advised Weiss and Casey that she was having difficulty with mobility and no longer felt confident to drive. Plaintiff, Weiss and Casey discussed the possibility of plaintiff using the STAR bus for transportation to work.*fn3

In April 2009, plaintiff began using the STAR bus for transportation to work. On May 26, 2009, Casey and plaintiff had a meeting. Casey later summarized the meeting in an email sent to plaintiff at 12:56 p.m. The email provided, in pertinent part: "tour changes can only be made when requested to me for approval first and then final approval by Linda [Weiss]. If I deny the request you have the right to go directly to Linda for her approval/denial. Tour changes also must be requested ahead of time at least a week in advance, and cannot randomly be made. Also flex time is not used here". Plaintiff confirmed the earlier conversation noting, "if flex time is not going to be an option for me for a little while, then I will need to look into alternatives, however that may happen. My bus can go 10 business days out in schedule . . . but it wouldn't be consistent even if Gage wasn't in the picture". Casey replied, "[w]e will still meet with Linda regarding advanced noticed tour changes for a specific time period as discussed which I guess I left out of the message below and if approved then we can proceed with that". Plaintiff concluded the email exchange with "Ok. However the chips may fall . . . I left my weapons in Iraq".

On May 26, 2009 at 1:38 p.m., minutes after plaintiff's email exchange with Casey, Suzanne H. Deane, Polytrauma Case Manager, entered the following Progress Note: T/C from plaintiff with questions about disability, FMLA, etc. as she is having difficulty in the workplace maintaining a schedule and is having issues with childcare for her son. States she has a meeting with her managers this afternoon and is nervous about the outcome and is thinking of just "quitting". Writer explained disability - SSD, VA disability programs and that they take a long time to apply and to receive approval. Encouraged [plaintiff] to remain in her job and find alternative arrangements while keeping her employment such as using FMLA or speaking to the EEO office for additional support with reasonable accomodations [sic].

On May 28, 2009, Donovan made the following Progress Note:

60 minute session requested by [plaintiff] to discuss problems she is having in the workplace, related to her medical conditions and wheelchair level mobility. She needs to start PT [physical therapy], she needs wheelchair van transportation (which is not affordable or available privately in this area) and reports that her supervisors at the job site may not fully understand her needs for accommodation.

Sometimes not able to go to work due to not sleeping well, and having trouble with schedule and transportation. Suzanne Dean [sic], OEFOIF case manager joined the session at the end, to provide additional support regarding the employment concerns. By the end of the session, Ms. Lupe had the needed forms to review/complete for Accommodation requests as well as Family Medical Leave usage.

Initially, she stated that she did not want to ask for her employment rights, by the end of the meeting, she was willing to review the guidelines and work with her health providers to pursue this step by step. She has been anxious and depressed lately, she has sent several emails about how worried and frustrated she has been. Financial and family care pressures are contributing to the anxiety and frustrations, as well has [sic] her changes in health status.

Sometime between the end of May 2009 and June 1, 2009, plaintiff provided Casey with a proposed work schedule for the entire month of June. Plaintiff told Casey, in general conversation, that it would be better for her to work from home because of her son's schedule and problems with transportation to school. Plaintiff also provided Casey with a Request for Accommodation.*fn4

In plaintiff's accommodation request, plaintiff indicated that she wanted to work from home two days per week on Monday and Friday and to adjust her hours to facilitate STAR bus transportation. Plaintiff described her medical condition and how it interfered with her performance, conduct and/or attendance:

(1) I cannot bathe or fully dress myself most days. (2) I push myself to do daily tasks and what I can't my spouse does. (3) I can't walk or stand. (4) Difficulty sleeping. (5) Incontinence from Iraq. Loss of independence in many ways physically has made my PTSD worse and Army Pride hurt. I am used to being a "do-er" and I now physically can't. I can't even play with my son like I used to or drive my car.

On June 1, 2009, plaintiff emailed her social worker, Elizabeth Donovan, and advised that she gave the accommodation paperwork to Casey. Donovan replied that she spoke with Kara Merendo*fn5 and that plaintiff needed to take copies of the request to Jane Curtin*fn6 "for accommodation and person with disability" and instructed plaintiff that, "[o]nce HR gets your requests, the turn around time is 10 days or so to respond. People can't just say no. What they usually do is bring people to the table, and address the accommodation. You can request that I be there if you want".

On June 1, 2009, plaintiff met with Weiss and Casey for approximately forty minutes in Weiss' office.*fn7 Plaintiff was told that her request for temporary accommodation was unworkable. After meeting with plaintiff, Weiss called for an EEO representative. Weiss and Casey met with Kara Merendo for approximately thirty minutes.

On June 1, 2009, plaintiff had an urgent visit with Donovan. Donovan prepared a Progress Note that indicated:

"Presenting problem: She had a surge of PTSD symptoms at work today, as she describes a panic attack during a supervisory meeting to discuss her pending request for FMLA and accommodation of her physical disabilities. She states she was forced into a small office, and a manager was speaking loudly and at close range. She became overwhelmed, tearful, panicky. She was encouraged by her supervisor to be seen by undersigned for mental health today, and also has appointments in Rehab Medicine today for physical therapy. She has significant medical problems, with pain and limits on her mobility. Also family problems have been adding to her stress level (see previous notes), which have increased her PTSD symptoms.

On June 2, 2009, Deane prepared a Progress Note:

Rec'd voicemail message yesterday from [plaintiff] . . . [plaintiff] states that she has been in contact with EEO office and is working with the EEO representative. She reports that she is doing better today and is back at work.

On June 4, 2009, Donovan prepared the following entry:

Workplace issues exacerbated PTSD symptoms yesterday.

Undersigned was away at training, but spoke to [plaintiff] by phone yesterday and today. Yesterday she stated that in the process of trying to make arrangements to use Family Medical Leave Act benefits to arrange for her health care needs, she has been called in to meetings abruptly, with closed doors, with an administrator who she feels in unsympathetic; further, she overheard the manager discussing her personal situation in the lunch room with another administrator in an unrelated department. When she asked the administrator why her personal situation was being discussed in a public place, the administrator reportedly told her that she (the admin.) Had the right to vent to a peer. The [plaintiff] is trying to work within the EEO and Human Resources processes for leave use and now exploring privacy violations. Assessment: workplace stressors, health stressors, complicating her PTSD at this time. She is feeling harassed, unsafe.

She states she is having intense anxiety, is not sleeping well, does not feel she can go back to work at this time because of how anxious she is feeling.

On June 2, 2009, plaintiff reported to work. On the same day, a note from Dr. Jeffrey J. Burdick, one of plaintiff's treating physicians, was faxed to plaintiff's office. The letter supported plaintiff's request to "work from home two days a week for approximately three months".*fn8

On June 3, 2009, plaintiff reported for work and overheard a conversation between Weiss and Dardaris regarding plaintiff's medical information and accommodation request.*fn9 Dardaris admitted that she had an earlier morning conversation with Weiss in the kitchen of the Network office and testified that during the conversation, the kitchen door was open and she assumed that they we were the only people in the building. Dardaris could not recall how the conversation started but testified:

I believe Linda said - - I don't even remember all of it. I remember - -I felt bad for Angie and I remember expressing that, because - - and I don't have any clinical background, but just observing her, it at least appeared to me that she had some sort of progressively deteriorating medical condition or some condition that was really impinging on her functioning, not in her job, but her physical functioning as far as her mobility went. And I don't really know how the conversation went from there.

I know that I might have asked Linda, was there anything we could do, isn't there anything we could do for Angie, like flex time or something.

And Linda said they had already let her change her hours [. . .] Dardaris continued:

I remember that we were talking about Angie, and I said, I feel so bad for her. I said, I don't understand why they can't figure out what's going on with her. And, as I said, I have no clinical knowledge, but Angie went, from the time she started working with us, from being very mobile. She had an office upstairs, the stairs with no problem, was driving her own car, to - - by the time I recall having this conversation, she wasn't driving, she was riding the Star bus to work, she couldn't do stairs, she couldn't walk without - - she went to using a cane, she was walking hanging onto walls and she had a cane, then she was in a wheel chair. So at least it appeared to me she had something very debilitating going on.

Dardaris stated:

Q. You told me, you said that you felt bad for Angie and you had asked if there was anything you could do for her. What else was said in the conversation?

A. You know, I can't recall it perfectly. I believe - - I think I specifically asked about flex-time, if there wasn't a way to flex her hours. And Linda said, we have already adjusted her hours according to the schedule she asked us for. And I think there was - - there was something else about Angie wanted a further change made, but Linda indicated it had to do with childcare more than her disability.

Dardaris testified that Weiss did not say anything negative about plaintiff but admitted that Weiss may have made comments about plaintiff's medical condition. Dardaris was "surprised to some degree" that Weiss would discuss plaintiff's private issues.

Weiss admitted that she and Dardaris discussed plaintiff's request for accommodation but explained that:

A. I asked Miss Dardaris - - Mrs. Dardaris if she was going to be in the office. And she said yes. And I said, good, I intend to be on travel either tomorrow or early next week. And as she was one of the senior health systems specialists, that there were a few issues that the rest of the staff may need some guidance or support on. And I said that, you know, particularly Barbara, if there's any issues that came up in terms of processing the request for reasonable accommodation for Ms. Lupe.

Weiss continued to explain that, "[this was] an issue that we were working on, wanted to keep it moving forward and that we were trying to be as supportive as possible of Ms. Lupe, she was having a difficult time".

Plaintiff reported the incident to the VA's EEO representative, Kara Merendo. Ms. Merendo advised plaintiff to discuss the matter with Weiss. The same day, plaintiff met with Weiss in Weiss' office. The parties dispute what occurred during that conversation however, plaintiff admits that she asked Weiss about resigning. After plaintiff's conversation with Weiss, plaintiff's co-worker, Yvonne Natale, observed plaintiff crying.

On June 3, 2009, at 9:20 a.m., plaintiff sent an email to Peters with attachments. Peters sent an email asking, "[w]hat is this please??" Plaintiff responded with a second email at 9:26 a.m. and stated:

Bombarded you with attachments. I am quitting right now. If you weren't able to get stuff I sent I am sure IS can get into my computer for it. More stuff. And even this will be read by Linda. But I guess an email I sent you that you sent to barb got to Linda. Etc. etc. etc.

Sorry to leave you like this. With so much. We will talk soon. Safe journeys.

Plaintiff telephoned her brother to pick her up and immediately went outside. The record contains conflicting accounts of the events that transpired after June 3, 2009 and the contradictory accounts will be discussed in detail infra. However, the parties agree that plaintiff did not return to her employment with the V.A. after June 3, 2009.

On July 29, 2009, plaintiff applied for Supplemental Security Income. At the time of her deposition, plaintiff was receiving monthly Social Security Disability benefits. On February 19, 2010, plaintiff filed a complaint in this Court asserting four causes of action: (1) discrimination based on disability; (2) retaliation; (3) a hostile work environment; and (4) failure to provide a reasonable accommodation. (Dkt. No. 1). Plaintiff claims that she suffered from adverse employment actions, including but not limited to termination/constructive discharge as a result of the first three causes of action.


Defendant moves for summary judgment and dismissal of plaintiff's complaint in its entirety.


Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ( c ). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the Court, viewing the evidence in the light most favorable to the non-movant, determines that the movant has satisfied this burden, the burden then shifts to the non-movant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See id. If the non-movant fails to carry this burden, summary judgment is appropriate. See id.

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F .3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56 ( c ). In applying this standard, the court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citation omitted). These determinations are within the sole province of the jury. Id.


"Section 501 of the Rehabilitation Act establishes a program within the federal government to encourage the employment of individuals with disabilities, and applies to '[e]ach department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch' ". Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (29 U.S.C. § 791(b) (1994)). Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency." Id. (citing 29 U.S.C. § 794(a)). "[S]section 504 is enforceable through Title VI of the Civil Rights Act of 1964, which provides (inter alia) for the termination of federal financial assistance to recipients who discriminate in violation of section 504." Id. (citing 42 U.S.C. § 2000d-1 (1994)). As a federal employee, plaintiff's claims are governed by the Rehabilitation Act.

The plaintiff in a Rehabilitation Act suit bears the initial burden of establishing a prima facie case under the Act. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994). Courts analyze claims of intentional discrimination under the Rehabilitation Act with the McDonnell Douglas burden-shifting analysis established for employment discrimination cases under Title VII of the Civil Rights Act of 1964. Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 -49 (2d Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). "If the plaintiff makes out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their employment decision."

Reg'l Econ. Cmty. Action Program, Inc., 294 F.3d at 48-49. (citations omitted). If the defendants meet that burden, the plaintiff must then prove that the stated reason is mere pretext for discrimination, i.e., that the defendants intentionally discriminated against them on a prohibited ground. Id. If, "the plaintiff makes a substantial showing that the defendant's proffered explanation was false, "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. (citations omitted).

Although the Act forbids employment discrimination based on disability, "an employer is entitled to make employment decisions based on the 'actual attributes of the handicap.' " Mattison v. Potter, 515 F.Supp.2d 356, 375 -376 (W.D.N.Y. 2007) (citing Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 515 (2d Cir.1991)). If the employer relies upon the employee's disability as the reason for the adverse employment action, it is the employer's burden to rebut the inference that the disability was improperly considered by demonstrating that the disability is relevant to qualifications for the position. Heilweil, 32 F.3d at 722. An employer relies on an employee's disability if the employer takes an adverse job action against the employee "solely be reason of" his disability. ...

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