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Zblewska v. Shulkin

United States District Court, N.D. Illinois, Eastern Division

July 29, 2019

DAVID J. SHULKIN, Secretary of Veterans Affairs, Defendant.



         Plaintiff Magdalena Zblewska (“Plaintiff”) brings this action against the Secretary of Veterans Affairs (“Defendant”) for violation of the Rehabilitation Act (Count I) and the Americans with Disabilities Act (Count II). Currently before the Court is Defendant's Motion for Summary Judgment [25]. For the reasons explained below, Defendant's motion [25] is denied with respect to Count I and granted with respect to Count II. Judgment will be entered for the Defendant on Count II. This case is set for status hearing on August 21, 2019, at 9:00 a.m. Additionally, the Court orders the substitution of Robert L. Wilkie, Jr., Secretary of Veterans Affairs, for David J. Shulkin, under Federal Rule of Civil Procedure 25(d).

         I. Background

         The Court takes the relevant facts primarily from the parties' Local Rule 56.1 statements, [27], [28], [29], [30], and [36] and, where applicable, the Complaint [1] and Answer [12]. The following facts are undisputed except where a disagreement between the parties is noted.

         This Court has subject matter jurisdiction over the Plaintiff's federal claims pursuant to 28 U.S.C. § §1331 and 1343. Venue in this judicial district is proper because the events alleged in Plaintiff's complaint occurred within the Northern District of Illinois.

         The Edward Hines Jr. Veterans Administration Hospital (“Hines”) is part of the United States Department of Veterans Affairs. The Department of Veteran Affairs (“VA”) is an Executive department as listed in 5 U.S.C. § 101. Pursuant to 5 U.S.C. § 105, an Executive department is an “Executive Agency.” David J. Shulkin was the Secretary of the Department of Veterans Affairs at the time the suit was filed. His successor is Robert L. Wilkie, Jr.

         Plaintiff Magdalena Zblewska began working at Hines as a certified pharmacy technician, GS-0661-3, Step 1, in May 2006. She worked in the inpatient pharmacy. An inpatient pharmacy technician's duties at Hines are laid out in the “Functional Statement, Inpatient Pharmacy Technician (0661 GS6) Hines VA Hospital. [27-1]. An inpatient pharmacy technician's duties include filling prescriptions, filling orders, stocking supplies, making deliveries, answering phones, and working with intravenous (IV) mixtures. See Id. The Occupational Safety and Health section of the Functional Statement, subsection d., states in part: “May require lifting and carrying light loads, including boxes, equipment, unit dose-cassettes, and IV solutions; stooping or kneeling (e.g., to pick up items from the floor, remove and replace items on lower shelves, and to file documents in lower file drawers, etc.); sitting, walking, or standing for long periods of time.” [27-1] at 159.

         At her deposition, Plaintiff testified that she was diagnosed with fibromyalgia and degenerative disc disease in 2010 ([27-1] at 42) and that certain activities cause pain and stiffness in her back (id. at 57). Her doctor limited her pushing, pulling, overhead lifting, excessive bending, and use of stairs. [28] at 1-2. On April 18, 2013, Plaintiff received a doctor's note that stated, “Plaintiff may return to work full time, with the following restrictions: no lifting greater than 10 [pounds], limited pushing and pulling.” Plaintiff asked her supervisor at the time, Floyd Fineman, not to assign her certain tasks based on those limitations. Fineman agreed, and as of at least February 2014, Plaintiff was not required to work in the IV room[1] or push heavy carts (known as “ECC carts”), which were used to deliver medication and supplies to different parts of the hospital.[2] As early as 2013, the pharmacy at Hines was in the process of “going cartless” and using other methods to deliver and dispense medication. [36] at 2-3. The pharmacy was still using at least one ECC cart at least as late as May 2017. [36] at 3.

         By 2015, Plaintiff had a new supervisor, Adam Powell. Powell continued Fineman's practice of not assigning Plaintiff to push heavy carts or work in the IV room until May 2015. In early May 2015, Powell instructed Plaintiff to fill out a Written Confirmation of Request for Accommodation (VA Form 0857a) and sign an authorization to release her medical records. Plaintiff filled out the form and submitted it to Powell and Danilla Miller, the Accommodation Coordinator at Hines. As an accommodation, Plaintiff requested “no pushing, pulling, and picking up heavy items; no pushing carts; haven't worked IV because of back stiffness and pain.” [27-1] at 175. In the “Reason for Request” section, Plaintiff wrote “herniated disc l5; leg swelling/numbness; sciatica.” With the request for accommodation, Plaintiff submitted documentation from her physician. Miller stated that she was unable to read the physician's notes and asked for more specific, detailed, and legible responses from Plaintiff's physician. Plaintiff's physician responded to that request, but his notes did not contain a restriction on pushing or pulling. From May to October 2015, while Hines was processing the request, Plaintiff did not work in the IV room or push or pull the heavy ECC carts.

         On October 15, 2015, Powell denied Plaintiff's request for accommodation at least in part, although the parties disagree on exactly what happened. According to Defendant, Powell offered to let Plaintiff use a cushioned chair in the IV room and agreed to require her to lift no more than 25 pounds. [28] at 4. Powell denied the accommodation request regarding pushing and pulling carts, because the medical documentation did not support the request, but offered to allow Plaintiff to use “a different cart” for transporting deliveries. [28] at 4. Defendant says that Plaintiff declined these accommodations and refused to meet with the Accommodation Coordinator (Danilla Miller) when Powell suggested she do so.

         According to Plaintiff, Powell offered no accommodation regarding pushing or pulling carts, including the use of a different cart, and Plaintiff had already been using a lighter cart to make deliveries. [29] at 2. Plaintiff agrees that Powell offered to accommodate her request regarding lifting heavy items and says that the offer of a chair in the IV room satisfied her request for an accommodation. Id. Plaintiff denies that she declined any offers of accommodation. Plaintiff admits that she refused to meet with the Miller. She says that she refused because a prerequisite of the meeting was signing VA Form 0857h, which she did not want to do.[3] [28] at 4.

         It is undisputed that, within a few weeks, Plaintiff submitted a second request for accommodation and provided Hines with another doctor's note on November 3, 2015. The new note stated: “Plaintiff may return to work full time, with the following restrictions: No lifting repetitively greater than 25 [pounds]. No over head lifting. No pushing or pulling greater than a small med cart or 50 [pounds]. May carry 25 [pounds] or less. No repetitive bending from waist level. No use of ladders, or scaffolds, or stairs greater than 8 at one time. Need frequent positional changes.” [29-6].

         On November 17, 2015, Powell denied Plaintiff's second request for accommodation. Powell said that he determined that Hines could not accommodate Plaintiff in her position as a pharmacy technician because she could no longer perform the essential functions of her position due to her functional limitations. Plaintiff again declined to fill out VA Form 0857h or meet with the accommodation coordinator.

         On or around November 24, 2015, Plaintiff and Powell had a conversation, which included another pharmacy technician, Yolanda Clayton. The parties' accounts of this conversation differ. Plaintiff says she had learned that the IV room had been remodeled such that she would not have to bend down to get supplies, and that the stool in the room had been replaced by better chairs; as a result, she told Powell that she could and would work in the IV room. [28] at 6. She also says that she asked Powell again for an accommodation regarding pushing carts and Powell suggested that Plaintiff take the patient medications out of the cassettes, relabel the medications, and deliver them in lighter carts, which Plaintiff agreed to do. Id.

         Defendant agrees that Powell and Plaintiff had a conversation about the IV room, but denies that the conversation was a decision about Plaintiff's accommodation request. Powell also emailed Plaintiff on November 30, 2015 asking Plaintiff to provide a doctor's note supporting the position that she was able to work the IV room, but in a December 2 conversation, Plaintiff declined to seek an updated doctor's note.

         On December 11, 2015, Plaintiff and her union representatives met with Powell and Miller. Miller asked Plaintiff to authorize her to look for a reassignment for Plaintiff within the VA and for her input on other potential departments by signing a VA Form 0857h. Plaintiff again refused. Also on December 11, 2015, Plaintiff received a letter from Chief of Pharmacy Donald Lynx stating that there were no light duty positions available in pharmacy. [27-2]

         After that meeting, Plaintiff did not report to work. She first took sick leave, then leave without pay, for the next several months. On February 16, 2016, Plaintiff filed a formal complaint of discrimination, VA Form 4939. Subsequently, Plaintiff amended her complaint, which was accepted by the Office of Resolution Management of the Department of Veterans Affairs on March 24, 2016.

         The parties dispute whether Plaintiff could perform the essential functions of her position. An undated[4] “Report of Contact, ” signed by Powell, lists nine duties that he determined Plaintiff could not complete:

“Fill prescriptions and medical supplies for mail and window │Task involves standing for long periods of time including heavy lifting Fill unit dose carts, unit stock, and automated dispensing devices. │Task involves standing for long periods of time Compound Sterile preparations │Task may involve standing or sitting for long periods of time and may involve heavy lifting Stock fluids and necessary medical supplies │Task would involve heavy lifting Able to perform manipulations in laminar flow hood and retain certification in USP 797 │ Task may involve standing or sitting for long periods of times Perform compounding using barrier isolator cabinets. │Task may involve standing or sitting for long periods of times Compounding chemotherapeutic intravenous solutions │Task may involve sitting ...

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