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Gilbert v. Nicholson

January 23, 2007


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Lillie Gilbert filed a two-count complaint against defendant R. James Nicholson, Secretary of the U.S. Department of Veterans Affairs ("VA"), alleging disability discrimination in violation of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act") (Count I), and constructive discharge (Count II). Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, defendant's motion is denied as to Count I and granted as to Count II.


Plaintiff was hired by defendant in 1982 as a respiratory therapist at the Lakeside VA Hospital in Chicago, Illinois. Her duties included monitoring ventilators, conducting breathing treatments for patients, performing blood gas analyses, and engaging in other types of patient respiratory care.

In 2003, defendant closed the Lakeside facility and transferred plaintiff to Jesse Brown Medical Center. The functional statement for plaintiff's position at Jesse Brown listed the following tasks as "Major Duties and Responsibilities": (a) participating in cardiopulmonary resuscitation ("CPR"), including initiation of mechanical ventilators and chest compressions if necessary; and (b) proper care of respiratory equipment, including the transportation and storage of therapeutic gases. The functional statement also listed plaintiff's "Physical Demands" as: (a) standing and walking for prolonged periods of time, and (b) frequent bending, reaching, stooping, and stretching to set up and take apart respiratory equipment, position patients, and push and pull moderately heavy objects such as ventilator equipment. The statement also indicated that respiratory therapists perform work in intensive care units ("ICUs") and wards of the hospital and work in all types of hospital environments, including with patients with severe respiratory disorders.

When plaintiff moved to Jesse Brown, she assumed the duties included in the functional statement. Plaintiff claims, however, that respiratory therapists were required to move ventilators (pieces of wheeled equipment weighing more than 100 pounds) only when assigned to the hospital wards, not the ICUs. Defendant claims that respiratory therapists at Jesse Brown, including plaintiff, were also required to move oxygen cylinders because Jesse Brown did not have a department that handled such equipment. Plaintiff agrees that respiratory therapists were required to obtain oxygen cylinders, which are approximately two to three feet tall and weigh no less than thirty pounds, from a storeroom or dock, lift them into a "grocery cart"-like basket, and push the basket of cylinders to an assigned floor or ward to ensure that there were at least six oxygen cylinders on each floor of the hospital. Plaintiff maintains, however, that Jesse Brown had employees who worked as "transporters" of patients from ward to ward, and that these transporters moved patients' oxygen cylinders as needed. Plaintiff also asserts that Jesse Brown employed equipment technicians to clean and store the equipment and transport it to the wards, and that nurses typically moved oxygen cylinders when their patients were moved.

In October 2003, approximately two months after transferring to Jesse Brown, plaintiff suffered low back pain after lifting oxygen cylinders. As a result, plaintiff spent the weekend and an additional two days in bed. Plaintiff alleges that she has had an undiagnosed back condition for twenty to thirty years, but the condition did not affect her work until the October 2003 incident. Plaintiff had some physical therapy approximately five years before her transfer to Jesse Brown, but she never had surgery, visited a chiropractor, or took medication for the condition. Plaintiff alleges that her back condition affects her ability to lift, bend, sit, stand and walk. Plaintiff claims that she has pain when lifting heavy objects and does not lift five- or ten-pound bags without assistance, and that she limits the amount of weight she places in grocery bags when shopping so that she can carry them to and from her car. With respect to bending, plaintiff maintains that she can vacuum, mop and clean only with pain or limitation. Plaintiff alleges that she cannot sit on benches without backs and must have support for her back. She also claims that she can walk for only five to ten minutes without resting and can stand for only fifteen minutes without support.

After approximately four days of rest, plaintiff returned to work, where she could not lift oxygen cylinders or push ventilators without aggravating her lower back pain. Plaintiff asserts that she learned how to position her body to complete certain tasks, but that she could not bend over to bed level.

On November 22, 2003, plaintiff sent an e-mail to her supervisor, Larry Barlow, which stated, among other things: (a) plaintiff realized that moving oxygen cylinders was part of her work assignment; (b) she had been experiencing pain in her neck, back and shoulder over the past few months; and (c) she was unable to continue transporting oxygen cylinders. On December 1, 2003, plaintiff met with Barlow and a union representative and told Barlow that she could not transport oxygen cylinders or push and pull ventilators. She also asked Barlow if there was anything he could do to accommodate her, to which Barlow responded that plaintiff would need to provide medical documentation of her condition.

On December 5, 2003, Barlow sent plaintiff a memo summarizing the meeting and advising plaintiff that: (a) she was expected to perform oxygen delivery and provision of ventilatory support, because those duties were a large portion of her job as a respiratory therapist; (b) she needed to bring in a statement from her physician if she felt she could not fulfill her duties for medical reasons; and (c) if she had additional comments, she should submit them in writing or inform Barlow orally. Approximately two weeks later, plaintiff brought two documents from her physician, Dr. Charlotte Harris, stating that plaintiff could not lift more than twenty pounds for the next two months and that she had prescribed four sessions of physical therapy. Dr. Harris did not prescribe surgery or other corrective measures.

After plaintiff informed management of her inability to move oxygen cylinders and ventilators, defendant relieved plaintiff of those duties and assigned her to work only on the hospital floors, rather than the ICU.*fn2 Plaintiff received a "fully satisfactory" performance evaluation while working only on the hospital floors. As a respiratory therapist, plaintiff typically worked alone on the floors, so when plaintiff required help moving an oxygen cylinder or ventilator, another respiratory therapist was required to leave his or her assignment, assist plaintiff, and return to his or her assignment. Defendant did not assign a "floater" therapist to assist other employees with their assignments. Additionally, because plaintiff no longer worked in the ICU, the other respiratory therapists were assigned to the ICU on a more frequent basis. Plaintiff received no complaints from fellow employees about changes to their schedules based on her need to work outside the ICU.

On January 22, 2004, plaintiff again met with Barlow to discuss her condition. On January 23, 2004, Barlow issued a memo to plaintiff stating:

1. The purpose of this memo is to provide a summarization of our discussion on January 22, 2004. During this conversation you stated that because of back problems, you could no longer lift oxygen cylinders, transport patients, stand for long periods of time, move ventilators to and from the patient's bedside, or perform CPR at "Code Blue" calls.

2. I am sympathetic to your physical limitation, but the department is unable to accommodate you. Respiratory Therapy is a physically demanding job. The work requires standing, walking, bending, and the ability to move moderately heavy objects.

3. I cannot ask other personnel to do their job and additionally assist you in your job also. I am referring you to Employee Relations ...

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