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Morea v. Fanning

United States District Court, S.D. New York

August 4, 2017

NANCY MOREA, Plaintiff,
ERIC K. FANNING, Secretary of the Army, U.S. Army Corps of Engineers, Defendant.

          OPINION & ORDER


         This 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.

         I. Background

         Morea's 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.

         A. Factual Background[1]

         1. Morea's Heart Attack

         In 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.

         On June 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)[2] 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.

         2. Morea's Post-Heart Attack Convalescence and Travel Restrictions

         On June 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.[3]

         Morea's 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.

         3. Morea's Normal Stress Test

         After her PCI, Morea continued to see Dr. Lowell approximately once every three months. Lowell Dep. at 15.

         On July 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.

         Dr. 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 53.[4]

         4. Morea's Cardiac Rehabilitation at Saint Clare's

         On July 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.

         Dr. 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.

         On July 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.

         5. Morea's August 8, 2014 Examination and Ensuing Condition

         In the 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.

         During 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.

         At 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 ...

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