The opinion of the court was delivered by: Judge Conner
Plaintiff Elizabeth Pinegar ("Pinegar"), a former employee of the Department of Veterans Affairs ("VA"), brings this action pursuant to § 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act" or "RA"), 29 U.S.C. § 791 et seq. Pinegar alleges that defendant, the Secretary of Veterans Affairs,*fn1 unlawfully failed and refused to make reasonable accommodations for her disability and that her subsequent retirement was a constructive discharge. Presently before the court is defendant's motion for summary judgment (Doc. 26). For the reasons that follow, the motion will be denied.
I. Statement of Facts and Procedural History*fn2
In June of 1998, plaintiff was hired as a program assistant for the VA's Memorial Program Service in Lebanon, Pennsylvania. (Doc. 27 ¶ 3; Doc. 55 ¶ 3.)
Plaintiff processed applications for a program under which a deceased veteran could qualify for government funds for the veteran's headstone or grave marker in a private cemetery. (Doc. 27, Ex. A at 41; Doc. 27 ¶ 6; Doc. 55 ¶ 6.) To process these applications, plaintiff entered data on a computer. (Doc. 27, Ex. A at 42; Doc. 27 ¶ 6; Doc. 55 ¶ 6.) When plaintiff received applications that were deficient in some respect, she would search for the missing information on her computer or contact funeral homes or applicants' relatives-usually by phone, or through correspondence if necessary. (Doc. 27, Ex. A at 41-42; Doc. 27 ¶ 7; Doc. 55 ¶ 7.) Plaintiff sporadically communicated with her supervisor, (Doc. 27, Ex. A at 43-44), but her job did not generally require her to meet with her co-workers, except when she trained incoming employees, (Doc. 27, Ex. A at 44).
Plaintiff was diagnosed with breast cancer in July of 2004. (Doc. 41, Ex. G at 2.) She underwent a right radial mastectomy and lymph node resection in September of 2004. (Doc. 41, Ex. G at 2.) Plaintiff has lymphedema as a result of the removal of her lymph nodes, and it causes swelling of her right hand and right arm. (Doc. 1 ¶ 9.) After completing chemotherapy in March of 2005 and radiation therapy in May of 2005, (Doc. 41, Ex. G at 3), plaintiff commenced a five-year course of drug therapy treatment, (Doc. 1 ¶ 8). As a result of her drug therapy, plaintiff experiences severe joint and muscle pain, and she fatigues easily. (Doc. 27, Ex. A at 15-24.) These medical conditions require plaintiff to rest, and they prevent plaintiff from driving to her regular work site at the VA Medical Center. (Doc. 27, Ex. A at 15-16, 20-24.)
At the suggestion of her direct supervisor, Jim Flanagan ("Flanagan"), plaintiff agreed to work from home as an accommodation for her medical needs. (Doc. 41, Ex. G at 3; Doc. 27, Ex. A at 77:12-14.) In December of 2004 and January of 2005, plaintiff worked from home, with modified duties. (Doc. 27 ¶¶ 24-25; Doc. 55 ¶ 25.) She processed a backlog of applications for Presidential Memorial Certificates, and she processed only "clean" applications, which required no phone calls or letters to find missing information.*fn3 (Doc. 41, Ex. G at 3; Doc. 27, Ex. A at 83, 99.) After the backlog was eliminated in January 2005, plaintiff requested that Lindee Lenox ("Lenox"), the acting director for the VA's Memorial Program Service, terminate her assignment to work from home; plaintiff advised Lenox that she planned to return to work, but she was equivocal about the time of her return. (Doc. 27 ¶¶ 30-31; Doc. 27, Ex. A at 121, 132; Doc. 27, Ex. J.) She stated that she was "considering returning to the office" as early as February 7. (Doc. 27, Ex. J.) However, she also stated that she might wait "until the end of March," as she had already submitted a request for an extension until that time. (Doc. 27, Ex. I; Doc. 27, Ex. J.)
On March 2, 2005, plaintiff notified Lenox of her intention to return to work on March 21, pursuant to her doctor's orders. (Doc. 27 ¶ 34; Doc. 27, Ex. A at 132-33; Doc. 27, Ex. K.) She asked Lenox if she could work under a different supervisor, because her working relationship with Flanagan had deteriorated, and she had already contacted an Equal Employment Opportunity ("EEO") counselor regarding a hostile work environment claim. (Doc. 27 ¶ 34; Doc. 27, Ex. K; Doc. 41, Ex. A.) George Corsoro ("Corsoro"), a VA employee who worked in the area of Human Resources, contacted plaintiff to discuss the situation. (Doc. 27, Ex. L.) On March 17, he notified plaintiff that she was approved to work at home, with modified duties,*fn4 beginning March 21. (Doc. 21, Ex. L.)
Plaintiff filed an administrative complaint on April 5, 2005. (Doc. 41, Ex. A.) Plaintiff complained that Flanagan created a hostile work environment*fn5 and discriminated against her on the basis of her disability and her age. She also complained of discriminatory denial of pay, claiming that she was charged leave for days that she had worked. (Id.) Plaintiff and the VA settled this complaint in an agreement dated June 20, 2005. (Doc. 41, Ex. D.) According to the terms of the settlement agreement, the VA allowed plaintiff to work from home until August 31, 2005. (Id.) It also agreed to assist her in "apply[ing] for medical disability from her current position" and to "explore the possibility of an available position within the Lebanon Medical Center...." (Id.) The agreement stated that the VA had no further obligation to provide plaintiff with reasonable accommodations. (Id.) If all options failed, plaintiff would be required to return to work on September 1, 2005, or she could choose to resign. (Id.)
On August 23, 2005, Corsoro, who was then serving as acting Chief of Operations, notified plaintiff by letter that she would have to return to work on September 1, 2005. (Doc. 27 ¶ 49; Doc. 27, Ex. V.) Plaintiff requested to continue working from home,*fn6 but Corsoro denied this request. (Doc. 55 ¶¶ 50-51; Doc. 41, Ex. G at 3-4; Doc. 27 ¶ 51.) On September 2, plaintiff requested 240 hours of advanced sick leave or leave without pay ("LWOP"). (Doc. 27, Ex. Y.) Flanagan denied plaintiff's request for advanced leave on September 7, (Doc. 27 ¶ 54), but granted her LWOP status until September 17, (Doc. 27, Ex. Z). After plaintiff could no longer be carried on LWOP status, she would be reported as absent without leave ("AWOL") if she did not return to work. (Doc. 41, Ex. G at 4.) Plaintiff's LWOP status was ultimately extended a bit longer, but plaintiff was on AWOL status from October 1 to October 15, 2005. (Id.) Plaintiff also requested to participate in the Voluntary Leave Transfer Program. (Id.; Doc. 27, Ex. A at 183-84.) This request was initially denied on October 19, 2005, (Doc. 41, Ex. G at 4), but subsequently granted in December 2005, (Doc. 27, Ex. SS).
In the meantime, plaintiff contacted another EEO counselor and applied for disability retirement. (Doc. 41, Ex. E; Doc. 41, Ex. G at 4.) On December 21, 2005, plaintiff filed her second formal administrative complaint, alleging discrimination based on disability, age, and reprisal for filing her previous complaint. (Doc. 41, Ex. E.) Plaintiff complained of her employer's failure to accommodate her disability, as well as harassment and a hostile work environment. (Doc. 41, Ex. E.) On January 10, 2006, the VA's Office of Resolution Management ("ORM") accepted this claim "for investigation and further processing." (Doc. 41, Ex. F.) The ORM assigned the complaint to an investigator, and after the investigative process was complete, it provided plaintiff with a copy of the file and an opportunity to request a final agency decision from the Office of Employment Discrimination Complaint Adjudication ("OEDCA"). (Id.) Meanwhile, on April 26, 2006, the Office of Personnel Management approved plaintiff's application for disability retirement, (Doc. 41, Ex. G at 5), and plaintiff retired, with an effective retirement date of September 30, 2005, (Doc. 27 ¶ 62). During supplemental investigation of plaintiff's second administrative complaint, a claim of constructive discharge was added. (Doc. 41, Ex. G at 2.) On January 18, 2007, the OEDCA issued its final agency decision, concluding that plaintiff failed to prove that she was discriminated against Plaintiff filed the instant suit on February 19, 2007, alleging that her retirement from the VA was a constructive discharge resulting from defendant's failure to make reasonable accommodations for her disability, in violation of the RA. (Doc. 1.) Defendant thereafter filed a motion for summary judgment (Doc. 26) asserting that plaintiff failed to timely exhaust administrative remedies and failed to make out a prima facie case of discrimination. The parties have fully briefed these issues, which are now ripe for disposition.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
Plaintiff contends that the VA, her former employer, violated § 501 of the RA and constructively discharged her by failing and refusing to accommodate her disability. The Rehabilitation Act is applicable to federal employers, and it is, in many respects, the functional equivalent of the Americans with Disabilities Act ("ADA"). It "forbids employers from discriminating against persons with disabilities in matters of hiring, placement, or advancement." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996)). Under both statutes, "the substantive standards for determining liability are the same." Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996) (quoting McDonald v. Pa. Dep't of Pub. Welfare, 62 F.3d 92, 95 (3d Cir. 1995)); see 29 U.S.C. § 791(g); see also Wishkin, 476 F.3d at 184 ("The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., applicable to federal employers....").*fn7 Plaintiffs suing under § 501 of the RA must "exhaust administrative remedies" before suing an employer. Freed v. Conrail, 201 F.3d 188, 191 (3d Cir. 2000).
A. Failure to Exhaust Administrative Remedies
Federal regulations require plaintiffs to contact the Equal Employment Opportunity Commission (EEOC) within 45 days of the events which they allege to be discriminatory. 29 C.F.R. § 1614.105(a). A plaintiff who does not do so in a timely manner will be barred from suit, unless he or she can establish a justification for bypassing the exhaustion requirement, such as waiver, estoppel, tolling, or futility. See Wilson v. MVM, Inc., 745 F.3d 166, 174-75 (3d Cir. 2007). Defendant asserts that each denial of one of plaintiff's requests for an accommodation*fn8 was an act after which plaintiff had a 45-day window to contact an EEO counselor. Plaintiff failed to contact the EEOC within 45 days of some of these events; therefore, defendant argues, plaintiff failed to timely exhaust the administrative remedies for her claim. ...