The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Pending now before the Court is DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, filed at Doc. No. 27. In support of the motion, Defendant has also filed an appendix (Doc. No. 28), concise statement of material facts (Doc. No. 29), and brief in support (Doc. No. 30). Plaintiff responded with the filing of PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 33), with brief in support (Doc. No. 34), response to Defendant's concise statement of material facts (Doc. No. 35), Plaintiff's own concise statement (Doc. No. 36), and appendix (Doc. No. 37). Defendant has responded to Plaintiff's concise statement, and replied to Plaintiff's brief (Doc. No. 38). The motion is now ripe for disposition.
Generally speaking, this is an employment discrimination action in which Plaintiff brings a claim for constructive discharge against her former employer, Eric K. Shinseki, Secretary of the Department of Veterans Affairs, under the Rehabilitation Act (the "Act"), 29 U.S.C. §§ 701, et seq. Plaintiff seeks back pay, front pay or reinstatement, and other monetary compensation. See Doc. No. 15, Amended Complaint.
The Department of Veterans Affairs (the "VA") has filed a motion for summary judgment, arguing primarily that Plaintiff cannot satisfy the prima facie case for discrimination because she was not "regarded as" disabled by her employer, and she was not qualified for the position she held at the time of her retirement. See Doc. No. 30. In the alternative, Defendant argues that, even if Plaintiff was able to establish a prima facie case, the VA has set forth a legitimate non-discriminatory reason for its actions that resulted in her decision to retire when she did. Id.
For the following reasons, the VA's motion for summary judgment will be denied.
Plaintiff Sandra Pearce-Mato was employed by the VA at the VA Medical Center in Butler, PA ("Butler VAMC") as a full time employee from January 5, 1975 until she was medically terminated on October 10, 1990, and again from March 8, 1992, until she retired effective May 1, 2009. During her former period of employment from 1975 to 1990, Plaintiff worked as a nurse. She sustained a work related injury on December 28, 1988 when a patient kicked her in her lower and upper back. Between October 10, 1990 and her return to work at the Butler VAMC in 1992, Plaintiff collected worker's compensation benefits.
Plaintiff returned to work at the Butler VAMC on March 8, 1992 as a Coding Clerk. Beginning on or about December 6, 2003, and continuing until on or about June 21, 2008, Plaintiff worked as a Medical Records Technician/Lead Scanner. Beginning on June 22, 2008, Plaintiff's position became Clinical Applications Coordinator ("CAC"), a position she held until her retirement in 2009. The record indicates, however, that, despite the position/title change, she continued to work as a Medical Records Technician/Lead Scanner until October 12, 2008. As a CAC, Plaintiff's first line supervisor was Nevada "Sue" Legacy, and her second line supervisor was Douglas George. There were three (3) CACs at the Butler VAMC during the relevant time period: Plaintiff, Carol Niggel, and Janice Martin, with Carol Niggel as Team Leader (although she did not supervise Plaintiff).
According to Plaintiff, she "lost [her] voice" for the first time in approximately May 1984, and that her "[v]oice returned" on June 25, 1991. See Doc. No. 28-1, Plaintiff's Depo. at Tr. p. 30. This voice loss is apparently a result of mercury toxicity, a condition Plaintiff developed from having mercury fillings in her mouth for approximately fifteen cavities. During this period, Plaintiff described her voice as "hoarse and very low", and that this condition was consistent throughout the seven year period. Id. at Tr. pp. 32-33. Plaintiff undertook speech therapy, which she also called voice therapy, "for a long periods of time" during this period, to no apparent avail. Id at Tr. pp. 34-35. Beginning in the latter months of 1984, and continuing until she was medically terminated in December 1990, Plaintiff utilized an electrolarynx device while working, which is an electronic device that she would hold to the side of her neck that would vocalize sounds as she spoke. Plaintiff testified during her deposition that she began using the electrolarynx after a speech pathologist at the VA informed her about the device. She denied that she was required to ask any of her supervisors at the Butler VAMC if she could use to electrolarynx while working and she further testified that no supervisors ever objected to her use of the device. Id. at Tr. p. 39.
Following her return to work at the Butler VAMC, Plaintiff lost her voice intermittently between June 25, 1991, and October 15, 2008, testifying that, "Periodically throughout this whole time, I would lose my voice for a period of time, maybe a month, maybe less, but there was no problem." Id. at Tr. pp. 40-41. Plaintiff contends that she lost her voice for a second extended period of time beginning on October 15, 2008, a loss which lasted until July 2009. Plaintiff started training on a full-time basis for the CAC position on October 12, 2008. She was trained by a retired Butler VAMC employee who had been asked to return to the facility in order to train her. According to Plaintiff, the trainer came to work on October 14, 2008, "with a very bad upper respiratory infection." Id. at Tr. pp. 48-49. That evening, Plaintiff began to develop scratchiness and soreness in her throat, and she developed laryngitis the next day. She contacted her physician, Roy Kerry, M.D., on or about October 16, 2008, and was prescribed antibiotics.
She contacted Dr. Kerry once again on October 24, 2008, and scheduled an appointment to see him on November 4, 2008. After examining Plaintiff, Dr. Kerry noted the following impression: "She has slight vocal cord edema from excessive use. We'll recommend that she have light duty, meaning that she can do her nursing duties with reduction of the amount of speech use required. Therefore, I would recommend that she be removed from the position of teaching and return to other nursing care that does not require the continuous use of her voice for a period of about 4 weeks." Doc. No. 28-9, Med. Records form Dr. Kerry dtd. Nov. 4, 2008. As per that recommendation, Plaintiff was placed on light duty beginning on or about November 4, 2008, although that duty entailed continuing to work as a CAC undergoing computer training.
Also at some point in late October, 2008, Plaintiff approached Team Leader Carol Niggel about using her electrolarynx. According to Plaintiff, she was told by Ms. Niggel that she "could not use one of those mechanical things (electrolarynx), and that I had to use my own voice." Doc. No. 28-1 at Tr. p. 43. At some point thereafter, Plaintiff asked her first line supervisor Sue Legacy about using an electrolarynx, also informing Legacy of Niggel's response. According to Plaintiff, in response Ms. Legacy "just smiled and said 'oh well'". Id. Plaintiff interpreted this reaction from Legacy as an adoption of Niggel's position that the use of the electrolarnyx was not permitted. Plaintiff submitted an Application for Promotion or Reassignment for the position of Supervisory Medical Records Technician, also known as Lead Coder, on December 8, 2008. Ultimately, Plaintiff was not selected for this position.
At the request of her employer, Plaintiff underwent a Fitness for Duty examination with Donald McGraw, M.D., on December 9, 2008. Dr. McGraw referred Plaintiff to Joseph Turner, M.D., an ear, nose, and throat specialist. Plaintiff was also away from work at the Butler VAMC on sick leave from December 17, 2008 until March 13, 2009 for surgery on her hand and wrist. The surgery resulted from an injury sustained on December 16, 2008, when Plaintiff slipped and fell on ice. On January 6, 2009, Plaintiff was examined by Dr. Turner for a second Fitness for Duty examination, who then referred her to Priya Krishna, M.D., at the University of Pittsburgh Voice Center. Dr. Krishna conducted a Fitness for Duty examination, Plaintiff's third such exam, on February 6, 2009. Dr. Krishna recommended that Plaintiff undergo voice therapy, and that she follow-up for a re-evaluation following completion of the therapy. Ultimately, Plaintiff did not undergo voice therapy because, according to her, she could not afford to pay for it, and her employer would not cover the expense.
Plaintiff returned to work during the week of March 13, 2009, and was placed on light duty assignment in the Business Office beginning on March 16, 2009. During this assignment, Plaintiff was no longer training for the CAC position; instead, she was doing general administrative work. At some point following the February 6, 2009, Fitness for Duty examination, Plaintiff met with Michelle Dominski, Butler VAMC Human Resources Officer, for the first time. It was during that meeting that Plaintiff contends she was informed that Defendant would not pay for voice therapy because it was not a work-related injury. Doc. No. 28-1 at Tr. pp. 66-67. Not inconsistent with Plaintiff's recall, Dominski described what occurred during that first meeting in slightly greater detail:
During the meeting, [Plaintiff] indicated that she was not able to speak and was unsure as to if and/or when the situation would be resolved. We discussed the fact that she had undergone a fitness for duty, a referral to an ENT, and then a final referral to the Voice Center. We discussed the fact that the Voice Center recommended that she undergo voice therapy, as well as, follow up at the completion of voice therapy for re-evaluation. She stated that she was unwilling to undergo voice therapy as she had the same issue years ago and voice therapy didn't help her problem. She stated that she had a follow up appointment scheduled with the Voice Center on April 6, 2009. At that time, she asked whether she was going to be fired. I explained that was a course of action that we could take, i.e., separation due to medical inability to perform the duties of her position and that in lieu of being separated she might want to think about disability retirement. Complainant indicated that she was eligible to retire and had already received an estimate from the HRMS Assistant who handles retirements. [Plaintiff] asked whether she would be terminated immediately or [if she] could go to her follow up appointment with the Voice Center on April 6, 2009. I told her [Plaintiff] that she would not be terminated immediately; we would reassess the situation after she underwent her follow up appointment with the Voice Center.
Doc. No. 28-8, Dominski ORM Affidavit, pp. 2-3.
Plaintiff was examined in the follow up appointment by Dr. Krishna on April 6, 2009. Dr. Krishna was unable to determine Plaintiff's fitness to return to work given the fact that she had not participated in voice therapy. On April 7, 2009, Plaintiff met with Sue Legacy and Lori Young, a Human Resources Specialist, and was told, once again, that Butler VAMC would not pay for speech therapy, but that Young would discuss the possibility that therapy could take place at Butler VMAC. Plaintiff met with Ms. Dominski on April 13, 2009, and was told that she would be medically terminated as of April 17, 2009. Plaintiff submitted her Application for Immediate Retirement on that day, with May 1, 2009, as her date of final separation.
Plaintiff testified that she had requested a meeting with the Director, Ms. Nealon, but that she was first required to meet with Mr. Cotter, and that he wanted the meeting to include Ms. Dominski and Mr. George. Plaintiff requested the meeting even though she had already submitted her retirement paperwork. Doc. No. 28-1, Plaintiff's Deposition, pp. 74, 76, 111. Plaintiff's meeting with Messrs. Cotter and George and Ms. Dominski allegedly took place on April 16, 2009. Plaintiff testified that, at that meeting, she "asked three main questions, and the one question was because the doctor did not determine whether I was fit for duty or not, what doctor made that determination, and Michele [Dominski] said, 'No doctor made that determination, I made that determination.'" According to Plaintiff, Ms. Dominski explained that she made the determination because Plaintiff refused to attend voice therapy unless the VA paid for it, or Plaintiff was permitted to have it at the Butler VAMC. Id. at pp. 74-75.
Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed. R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir.2007). The burden is initially on the moving party to demonstrate that the record evidence does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). When the nonmoving party bears the burden of proof at trial, the moving party may meet its burden by showing that the admissible record evidence would be insufficient to carry the nonmoving party's burden of proof. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324, 106 S.Ct. 2548. The nonmoving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations set forth in pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989).
Generally speaking, Plaintiff argues that she was constructively discharged due to her disability. Defendant, on the other hand, asserts that Plaintiff was not terminated, and that she voluntarily chose to retire effective May 1, 2009. Defendant presents a somewhat layered argument that: 1) Plaintiff has not properly brought a claim premised upon an actual disability under the Rehabilitation Act; 2) that Plaintiff cannot establish a prima facie case of discrimination resulting from having been perceived to be disabled; and, 3) that, even assuming that Plaintiff did successfully establish a prima facie case, the VA has established a legitimate and non-discriminatory reason for its actions, and that Plaintiff has failed to adduce any evidence that such reasoning was pretext for discriminatory animus. See generally Doc. No. 30.
"The Rehabilitation Act prohibits discrimination based on disability by Government agencies." Kondas v. Potter, 328 F. App'x 116, 119 - 120 (3d Cir.2008)(citing 29 U.S.C. § 794(a)).*fn1 In McDonald v. Com. of Pa., Dep't of Public Welfare, Polk Center, 62 F.3d 92 (3d Cir.1995), the Court of Appeals for the Third Circuit acknowledged that "[w]hether a suit is filed under the Rehabilitation Act or under the [ADA], the substantive standards for determining liability are the same." Id. at 95 (citing Myers v. Hose, 50 F.3d 278, 281 (4th Cir.1995)). As such, courts analyze a plaintiff's discrimination claims according to the familiar burden shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.2000) ("parties' burdens in establishing and defending claims" for discrimination are determined by procedure set forth in McDonnell Douglas Corp. v. Green). "Under this approach, the plaintiff must first establish a prima facie case. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. If the defendant does so, the presumption of intentional discrimination disappears, but the plaintiff can still prevail by showing that the employer's proffered reason is merely a pretext for discrimination." James v. Sutliff Saturn, Inc., 10--4742, slip op., at *4 (3d Cir. Mar. 15, 2012). On summary judgment, Plaintiff may meet her burden by "providing evidence that would allow a fact finder reasonably to (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer's action." See id. at 4--5 (citing Sarullo v. United States Postal Service, 352 F.3d 789, 799--800 (3d Cir.2003) (citations and internal quotations omitted)).
To establish a prima facie case of discrimination under the ADA, "a plaintiff must show (1) that [she] is disabled within the meaning of the ADA, (2) that [she] is otherwise qualified for the job, with or without reasonable accommodations, and (3) that [she] was subjected to an adverse employment decision as a result of discrimination." Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir.2010) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999)). The Rehabilitation Act defines an "individual with a disability" as someone "who (1) has a physical or mental impairment that substantially limits his/her major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." Kania v. Potter, 358 Fed. Appx. 338, 342 (3d Cir.2009) (citing 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)). A "substantial limitation" is a "significant restriction on a major life activity 'as compared to ... the average person in the general population.'" Id. (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195--96, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)) (internal citation omitted). A major life activity is one that is "of central importance to daily life," Williams, 524 U.S. at 197, such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working," 29 C.F.R. § 1630.2(i).
The ADA Amendments Act of 2008 ("ADAAA"), Pub.L. 110--325, 122 Stat. 3553 (2008), effective on January 1, 2009, applies to this case because Plaintiff retired on May 1, 2009. The amendments broadened the scope of the ADA by expanding the definition of disability, which had been narrowed by Supreme Court interpretation. See id. (finding that Supreme Court precedent, such as Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and regulations promulgated by the Equal Employment Opportunity Commission had narrowed the definition of disability in a manner inconsistent with congressional intent). With the passage of the ADAAA, Congress expanded the statute's non- exhaustive list of "major life activities" and declared that "[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." Pub.L. No. 110--325, §§ 2(b)(1)-(6), 3(2)(a), § 4(a), 122 Stat. 3553, ...