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Norris v. Principi

August 11, 2006

ROSE NORRIS, PLAINTIFF,
v.
ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Rose Norris ("Norris") filed a complaint against Anthony Principi ("Principi"), the Secretary of the Department of Veterans Affairs. In her complaint, Norris asserted claims for (I) disparate treatment and failure to provide a reasonable accommodation in violation of the Americans with Disabilities Act ("ADA"); (II) intentional infliction of emotional distress; (III) retaliation in violation of Title VII of the Civil Rights Act of 1964; (IV) hostile environment harassment in violation of the ADA; and (V) breach of contract. Defendant has moved for summary judgment. Also before the Court is plaintiff's motion for leave to amend her complaint and her motion for leave to file instanter. For the reasons set forth below, the Court grants plaintiff's motion for leave to file instanter, denies plaintiff's motion for leave to amend her complaint and grants defendant's motion for summary judgment.

I. Background

The following facts are undisputed unless otherwise noted.*fn1

Norris began working for Lakeside Veterans Affairs Hospital (the "Hospital") in 1980. Over the course of her employment with the Hospital, Norris filed at least three Equal Employment Opportunity ("EEO") complaints.

From 1980 to 1988, Norris worked as a medical technologist in the Microbiology laboratory. During those years, Norris was supervised by Eileen Mathews ("Mathews"). Norris filed an EEO complaint regarding Mathews in 1988, when Mathews allegedly preselected someone to replace herself in the position she was resigning.

After Norris filed her 1988 EEO complaint, Norris received a new supervisor. Beginning in 1988, Lola Sims ("Sims") supervised Norris as Norris continued to work in Microbiology. Sims disciplined Norris a few times. For example, in 1990, Norris failed to file certain reports while she was out of the office with bronchitis. Norris assumed her supervisor would file the report, but, instead, her supervisor gave Norris two letters of admonishment for not filing the reports. Sims also "wrote up" Norris for giving another employee improper directions for mixing acid. Because of the improper directions, the other employee was severely burned in an explosion. At some point (the time is unclear from the record), Norris filed an EEO complaint about the discipline to which Sims subjected her. Still, Sims remained Norris's supervisor.

Norris suffered a stroke on or about April 30, 1998 and stopped showing up for work. On June 22, 1998, Sims sent Norris a letter, which advised Norris that she needed either to report for work on June 30, 1998 or to submit a request for leave supported by documentation. It is unclear from the record when or how Norris advised the Hospital that she would be out of work for quite some time, but it is clear that she did not return to work until June 1999. In the meantime, the Hospital considered her absent without leave ("AWOL") for at least part of that time. Ultimately, the Hospital agreed to change her status to leave without pay ("LWOP") for the period of April 30, 1998 to June 30, 1999.

On or about June 1, 1999, Norris returned to work at the Hospital. Norris's doctor wrote a note saying that she could "perform light duty work for about 3-4 hours a day for approximately 4-6 weeks." Although Norris wanted to be assigned to the Urinalysis Department, the Hospital assigned her to the front desk of the chemistry department. There, Norris's job was to accept specimens dropped off by doctors and nurses.

In the chemistry department, Norris was supervised by Cheryl Murphy, but it was another supervisor with whom Norris had difficulties. Another supervisor in the area, Clara Lastre ("Lastre"), made comments to Norris while she worked in the chemistry department. In June 1999, Lastre made the following comments to Norris: "Hurry, you have to move faster,"; "You are so slow!"; and "What are you doing now?" Lastre also made derogatory comments to Norris and accused Norris of pretending to be disabled. Norris complained to Dr. Borensztajn about Lastre's comments. After Norris complained about Lastre to Dr. Borensztajn in early 2001, Norris was transferred. Specifically, no later than February 1, 2001, Norris was transferred to the Hematology Department, which Lastre supervised. Lastre was not involved with the decision to transfer Norris to Hematology, and Lastre was unaware of Norris's previous EEO complaints. Lastre believed that Norris could perform the essential functions of her job without an accommodation.

Within a few months after Norris began working for Lastre, Norris triggered EEO proceedings. First, on April 24, 2001, Norris sought EEO counseling. Norris filed a formal EEO complaint on June 15, 2001. In that complaint, Norris asserted that Lastre subjected her to harassment and retaliation. Norris testified that Lastre: remarked that Norris was pretending to be disabled; failed to allow Norris to use a step stool and a telephone; disallowed Norris to put her initials on a report; disallowed Norris to talk to secretaries; told Norris to read slides 100 times; harassed her three times when Norris was trying to eat lunch; and followed her to the restroom and told her to move faster. Norris's EEO claim was tried before an Administrative Law Judge at the EEOC, and her claim was denied.

Norris continued to work in the Hematology Department at the Hospital until August 2003. At that point, Norris was transferred to the Hematology Department at West Side Hospital, where she continues to work.

In the meantime, Norris continued to seek medical treatment. Norris's doctor wrote three letters (in March, July and September 2001), in which he stated that Norris should not work in a "highly stressful environment." No record evidence establishes whether Norris ever supplied those letters to her employer. In September 2003, one of Norris's doctors wrote a letter in which he stated that Norris was "physically disabled."

According to Norris, the Hospital accommodated Brandell Norton--a phlebotomist--when he hurt his back by giving him light duty in the secretarial pool. The Hospital also accommodated Rebecca Bertermann by allowing her to work at home after she delivered twins.

II. Summary Judgment Standards

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however, when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A genuine issue of ...


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