United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, JUDGE
case involves claims under the Rehabilitation Act ("the
Act"), 29 U.S.C. § 701 et seq., by a
civilian federal employee of the United States Army, Nancy
Morea. Morea asserts that, after she suffered a minor heart
attack that required the insertion of several stents, she had
a disability that her employer, the U.S. Army Corps of
Engineers (the "Army"), did not reasonably
accommodate. Morea brings claims of discrimination and
retaliation. With discovery complete, the Army has moved for
partial summary judgment, limited to Morea's claim of
discrimination, and to the argument that Morea's
post-stent condition did not rise to the level of a
disability within the meaning of the Act. For the reasons
that follow, the Court grants the Army's motion.
discrimination claim is based on the fact that, following her
mid-June 2014 heart attack, the Army denied her August 2014
request to expand, from twice-weekly to four-times-a-week,
her "teleworking" schedule, intended to facilitate
her visits to a cardiac rehabilitation facility near her
home. Morea claims that this denial was unreasonable. In
moving for summary judgment on that claim, the Army argues
solely that the evidence before the Court does not support
Morea's assertion that she had a disability
"substantially limiting" a major life activity or
bodily function, as required for the Act to apply to her. The
Army does not pursue summary judgment on other grounds
(e.g., the reasonableness of its denial of her
request for additional teleworking days). The pertinent facts
are as follows.
Morea's Heart Attack
2008, Morea began working for the Army as a "realty
specialist, " tasked with managing the armed forces'
career centers in New Jersey. JSUF ¶ 2. Morea has lived
in Hackettstown, New Jersey, at all relevant times, and she
commuted to work at the Federal Building at 26 Federal Plaza
in downtown Manhattan. JSUF ¶ 3. Within six months of
starting work for the Army, Morea was granted two days of
telework per week as part of the Federal DOD Alternative
Workplace Program, and thereby worked from her New Jersey
home on Mondays and Fridays. Compl. ¶ 14. She was
promoted each year, ultimately holding a "FS 12-5"
pay grade. Id. ¶ 12. As of June 2014, Morea had
not received any negative evaluations or disciplinary
actions. Id. ¶ 15.
17, 2014, Morea suffered a heart attack. She was admitted to
Morristown Memorial Hospital in New Jersey. JSUF ¶ 7.
Dr. Barry Lowell, the affiliated cardiologist who treated
Morea, determined that the cause of Morea's heart attack
was that her coronary arteries had become so blocked that
only minimal blood could flow through them. Hu Deck, Exh. 4
(Deposition of Barry Lowell) ("Lowell Dep.") at
20-21, 24. Dr. Lowell performed a percutaneous coronary
intervention (PCI) on Morea's right coronary artery and
on her left anterior descending artery. JSUF ¶ 8. Three
stents were placed in Morea's heart during this
procedure, following which blood flow was restored through
the treated vessels. Id. ¶¶ 8-10. Morea
was released from the hospital the following day.
Id. ¶ 11.
Morea's Post-Heart Attack Convalescence and Travel
20, 2014, three days after the PCI procedure, Dr. Lowell sent
a note to the Army, stating in pertinent part that:
Nancy Morea recently had coronary stenting-as she recovers
it's advised she be restricted to not travel long
distances for 2 weeks. She may work remotely. She will be on
meds and it's recommended she attend cardiac rehab which
is 3x/wk for 12 weeks-following this she will have no
restrictions. Perhaps she may be permitted a 3rd day to work
remotely so she can complete the rehab program.
Hu Decl., Exh. 4 at 41. Dr. Lowell testified that he
recommended that Morea "not travel long distances for
two weeks" as a result of the incision and bruising in
Morea's leg, because "the movement and motion of the
leg may sometimes be painful." Lowell Dep. at 31-32. Dr.
Lowell testified that there was no restriction on Morea's
ability to ride as a passenger in a vehicle during those two
weeks, as opposed to doing the driving herself, and that
Morea could work remotely during her two-week period of
convalescence. Id. at 32-34.
supervisor, Cartavius Whitehead, granted Morea's request
to telework on an ad hoc basis during the two weeks
following her PCI. This period lasted until July 3, 2014.
Morea 56.1 ¶ 7.
Morea's Normal Stress Test
her PCI, Morea continued to see Dr. Lowell approximately once
every three months. Lowell Dep. at 15.
11, 2014, Morea underwent a stress test at Dr. Lowell's
office. The purpose of that test was to measure Morea's
heart's functioning in the wake of the heart attack and
PCI procedure. Id. at 57-58. Morea's ejection
fraction, which Dr. Lowell explained "demonstrates the
efficiency of her heart's function, " was determined
to be normal. Id. at 58. Although Dr. Lowell
testified that there was "notable dysfunction of the
back wall of her heart, " he also explained that Morea
did not have any "substantial injury" to her heart,
and that Morea's heart attack had been "minor."
Id. at 58-59.
Lowell's notes from the stress test report reflect that
Morea had demonstrated "normal hemodynamic response to
exercise, " Hu Decl., Exh. 4 at 31; Dr. Lowell explained
that at the time of the stress test, Morea "was able to
remain on the treadmill and demonstrate a good functional
status ... [with] no evidence of coronary insufficiency,
" Lowell Dep. at 52. Asked whether Morea was
"substantially impaired" with regard to her ability
to engage in exercise or any other physical activities, Dr.
Lowell testified that she was not. With regard to Morea's
heart condition, Dr. Lowell testified that
"[t]here's no impairment." Id. at
Morea's Cardiac Rehabilitation at Saint
28, 2014, Dr. Lowell referred Morea to Saint Clare's
Hospital in Denville, New Jersey, for cardiac rehabilitation
("rehab") services, JSUF ¶ 1, -the same
services to which Dr. Lowell had referred in his June 20,
2014 note to the Army. Hu Deck, Exh. 4 at 41. Dr. Lowell
testified that the purpose of such a rehab program is to
"provide  for a monitoring period" to ensure that
the patient is "not in danger of having lethal heart
rhythm disturbances." Lowell Dep. at 94. The program
consists of "a teaching phase that instructs patients to
improve their lifestyle"; it also offers
"physiologic benefits" insofar as doing exercise
and maintaining fitness reduces a person's adrenaline
levels, "thus likely diminishing the instance of
arrhythmias." Id. Dr. Lowell did not attest
that failure to complete the rehab program would heighten
Morea's risk of a heart attack; Morea's functional
improvement after the insertion of the stents had already
been demonstrated. Id. at 92-93. Dr. Lowell
testified that there were no physical restrictions on Morea
during the rehab program. However, Dr. Lowell testified, he
regarded it as medically necessary that Morea complete such a
program. Id. at 36-38.
Lowell testified that he recommended St. Clare's Hospital
because he is the director of that facility. Id. at
38-39. He testified, however, that there was no medical need
for Morea to complete a rehab program in that particular
facility; had Morea asked for a referral to a facility in New
York City such as near her Army workplace, Dr. Lowell would
have provided one. Id. The time of day at which
Morea attended the rehab program was also not consequential.
Id. at 41-42.
23, 2014, Dr. Lowell gave Morea a note intended for her
employer, stating that her rehabilitation schedule at St.
Clare's called for her to be there three days a week from
8 am-11 am, which included the two-hour rehab program plus
travel time between the facility and Morea's
Hackettstown, N.J., home, beginning on July 31 and ending on
or about October 21, 2014. Hu Decl., Exh. 2 at 29; see
also, Lowell Dep. at 42, 69, 91. Dr. Lowell testified
that, when he had (in his June 20 note to the Army) suggested
the possibility of a third day of telework, it was in order
to facilitate Morea's attendance at the program at St.
Clare's (Morea had mentioned a "work
commitment" to him, and his support for the additional
telework was "a suggestion" that might help her
"complete the program" at St. Clare's). Lowell
Dep. at 38.
Morea's August 8, 2014 Examination and Ensuing
weeks after her stress test, Morea experienced arrhythmias,
or palpitations, leading Dr. Lowell, in a memo documenting an
August 8, 2014 examination, to describe "palpitations,
supraventricular tachycardias, and atrial
fibrillations." Lowell Dep. at 56. However, Dr. Lowell
testified, these symptoms did not reflect any impairment to
Morea's walking, seeing, hearing, thinking, driving,
moving, or working. Id. at 56-57. On the contrary,
he testified that there had been no such impairment reflected
in either Morea's July 11, 2014 stress test or her August
8, 2014 exam. Id. Palpitations, Dr. Lowell
testified, are common, and may be triggered by drinking a cup
of coffee; arrhythmias and fibrillation (a type of
arrhythmia) are also common and may reflect stress.
Id. at 98-100. Further, while persons with
excessive atrial fibrillation are prone to stroke,
some atrial fibrillation also occurs in healthy hearts.
Id. at 100. Dr. Lowell encouraged Morea to
participate in "[a]ll the activities of daily
living"; he did not advise her to refrain from any
activities. Id. at 76.
the August 8, 2014 examination, Morea reported various
sources of stress in her life, such as the fact that that
"she was alone, " had "problems with her
significant other, children, [and] ex-husband, " was
trying to balance work and cardiac rehabilitation, and
"hadn't been sleeping well." Id. at
64. Dr. Lowell testified that these did not, however, give
rise to concerns about Morea's cardiovascular health at
that time. Id.
Morea's request, Dr. Lowell that day filled out a Medical
Information Sheet for the Equal Employment Opportunity
Office. It stated: "Nancy would like to work from home
on rehab days, quite reasonable!" Hu Decl., Exh. 4 at
43. On the same note, Dr. Lowell wrote that Morea's
prognosis was "[e]xcellent, " adding, "No
impairment to jot)-needs to finish rehab." Id.
Dr. Lowell testified that, while he did not regard Morea as
impaired or restricted in any activity, he supported her
desire to work from home because he "wanted to see to it
that that [rehab] course was completed." Lowell Dep. at
67. And while it was not required that Morea continue her
rehab at Saint Clare's, it was logically sensible for
Morea to do so because she had begun her sessions there, and
teleworking on rehab days "would facilitate her ability
to get to rehab." Id. at 68-69. Dr. Lowell
understood from Morea that she "had a long ...