Curry v. Wilkie

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE

         This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 58.)^[1] Plaintiff Adrienne Curry has sued defendant Robert Wilkie, Secretary of the United States Department of Veteran Affairs [hereinafter the VA], alleging that the VA discriminated against her on the basis of her disability and that it retaliated against her for complaining about discrimination. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendant's Motion for Summary Judgment, (doc. 58), is due to be granted.

         I. SUMMARY JUDGMENT STANDARD

         Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state that the non-moving party cannot meet its burden at trial”).

         In deciding a motion for summary judgment, the court's function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party “need not be given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). And, “when conflicts arise between the facts evidenced by the parties, [the court] credit[s] the nonmoving party's version. [Its] duty to read the record in the nonmovant's favor stops short of not crediting the nonmovant's testimony in whole or part: the courts owe a nonmovant no duty to disbelieve his sworn testimony which he chooses to submit for use in the case to be decided.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005)(emphasis in original); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1296 (11th Cir. 2012)(quoting Evans).

         II. STATEMENT OF FACTS

         Curry began work at the VA hospital in Birmingham, Alabama, in 1985. (Doc. 1 ¶ 8; doc. 57-1 at 30 [Plaintiff's Depo. at 117].) She has never worked, applied for a job, or even considered working anywhere other than the VA. (Doc. 57-1 at 18, 30 [Plaintiff's Depo. at 69-70, 117].)

         Until 1996, Curry worked as a program assistant in the VA's outpatient substance abuse clinic. (Id. at 11, 12 [Plaintiff's Depo. at 43, 45-46, 48].) There, she kept track of the administrative part of the clinic - admitting patients, assigning them a therapist, and maintaining data on patient numbers. (Id. at 12 [Plaintiff's Depo. at 46]; see generally doc. 57-12 at 2-4 [“major duties” of a program clerk/typist in Psychological Services].) The program assistant position was a GS-4. (Doc. 57-1 at 12 [Plaintiff's Depo. at 47-48].)

         However, in 1996, Curry went on worker's compensation due to depression and anxiety. (Id. at 12, 14 [Plaintiff's Depo. at 48, 55].) In her worker's compensation claim, she alleged that the VA patients who came in for therapy “hit on [her] all the time, ” meaning they made “romantic overtures” or harassed her. (Id. at 11 [Plaintiff's Depo. at 43-44].) She also claimed, “Because [she] rejected his advances, [her supervisor] started making life difficult.” (Id. [Plaintiff's Depo. at 44].) “In May 1997 the Federal Office of Worker's Compensation Program [OWCP] accepted [Curry's] claim for prolonged chronic depressive reaction (chronic depression)[, ] placed her on total disability[, ] and removed her from her employment with the [VA].” (Doc. 1 ¶ 9; see also doc. 57-1 at 17 [Plaintiff's Depo. at 67-68].) While Curry was receiving worker's compensation benefits, she received Social Security Disability benefits, which made up for the difference between worker's compensation and total disability. (Doc. 57-1 at 13 [Plaintiff's Depo. at 50].)

         Curry testified that she has been on medications for depression, sleep, and anxiety since she went out on worker's compensation. (Id. at 3 [Plaintiff's Depo. at 9-10].) She believes the medications are effective and, when taking the medications, her “medical conditions” do not “make it impossible for her to work” or “affect [her] day-to-day functioning in any other way.” (Doc. 57-1 at 3 [Plaintiff's Depo. at 11].) With regard to whether she is “disabled, ” Curry stated:

Q. . . . [A]re you disabled?

A. That's my answer. It's a disability. And that's my answer.

Q. Okay. It's a disability. What's a disability?

A. Depression and anxiety.

Q. And are you disabled as a result of depression and anxiety?

A. It's a disability.

Q. Well, you need to testify on the record whether you believe that you're disabled. Do you, Adrienne Curry.

A. I have a condition that I live with. So that's my answer.

Q. So you have a medical condition that you live with.

A. Yes.

Q. How does it affect your living?

A. Well, you know, you're able to function but you have, you know, your peaks and valleys. You know, it's something you live with.

Q. Does it impair your day-to-day activities?

A. Sometimes.

Q. Describe how it does.

A. You know, you just get down and blue, you know, and sometimes you get stressed and it's hard to sleep, you know, because you're constantly being mistreated so . . .

Q. Anything else other than getting down and blue?

A. That's enough, I would think.

Q. Do you ever get so down and blue that you can't go to work?

A. That's kind of hard to say. That's kind of hard to say.

Q. So not in recent memory that you know?

A. You know, there have been times when, you know, your - you know, if you're, you know, harassed at work constantly, you just don't feel like going to work to face that so . . .

Q. So your depression and anxiety stems from being mistreated and being harassed at work; is that what you're testifying to?

A. Yes. It can be exacerbated. I'll put it that way. You know, it takes you back.

(Id. at 15 [Plaintiff's Depo. at 57-58].)^[2]

         Prior to her on-the-job injury, Curry had taken some nursing classes at Lawson State Community College in the 1990's. (Id. at 6 [Plaintiff's Depo. at 22-23].) While receiving disability and worker's compensation benefits, she attended nursing school and graduate nursing school. (Doc. 57-10 at 8.) She received a Masters of Nursing Administration in 2008. (Doc. 57-1 at 5-6 [Plaintiff's Depo. at 20-21].)

         On or about December 4, 2008, Plaintiff filed an EEO complaint regarding her unsuccessful attempts to return to work in October 2008. (Doc. 57-1 at 19-20 [Plaintiff's Depo. at 76-77]; doc. 57-9 [her EEO Complaint states, “I have attempted to return to work and have tried to seek assistance regarding the proper procedure in doing so. I have been ignored. I have been unable to get any assistance. I was once told ‘what make[s] you think they would want you back?'”].) She also alleged that the VA was harassing her “by having private investigators . . . follow[ ] [her] absolutely ‘everywhere'.” (Doc. 57-9.) Thereafter, Curry filed a civil action, which was dismissed; the dismissal of her claims based on her 2008 EEO Complaint was affirmed by the Eleventh Circuit. Curry v. Shinseki, No. 2:09-CV-02441-AKK, 2011 WL 13129972 (N.D. Ala. Aug. 31, 2011), aff'd in part, vacated in part 518 Fed.Appx. 957 (11th Cir. 2013).^[3]

         In early 2009, Tara Encalade, a VA Human Resources Specialist, sent a request to the OWCP for updated medical evidence for Curry's worker's compensation file. (Doc. 57-14 at 3 [Encalade Test. at 7-8].) The OWCP requires a federal agency to have updated medical evidence describing an employee's medical limitations before the agency may make a job offer after total disability has ended. (Doc. 57-3 at 5, § 8-4(A).)^[4] The VA was required to look at its employees receiving worker's compensation “on a regular basis and try to . . . keep their case file[s] current and up-to-date.” (Doc. 57-14 at 3 [Encalade Test. at 6].)

         On May 13, 2009, Lyle Shehi, M.D., examined Curry and prepared a Work Capacity Evaluation, Psychiatric/Psychological Condition, and an accompanying report. (See doc. 57-2; see also doc. 57-14 at 4 [Encalade Test. at 10].) Dr. Shehi stated, in part:

[Curry]] maintains . . . this very broad persecutory delusional system regarding the VA, and yet she only seeks to return to work for the VA. I had attempted to go around her defenses and suggest that she might work for other people and certainly with her education now, one would think that she could, but she says that she has so much time tied up in the VA, that the VA was the only place she would want to work and she did not want to start over anywhere so she would have some 20 years of service in the VA if she were able to return to the VA system.

. . .

. . . [S]he is markedly delusional now. She feels constantly followed. [S]he feels that people from the VA have broken into her home to steal things from her and this delusional system is well crystallized and almost impenetrable to any psychotherapy as she will find a way to incorporate everything into this delusional system regarding the VA.

. . .

I would think that the patient should be able to function in a vocational rehabilitation program. Her delusional system surrounds the VA. She is preoccupied with returning to work with the VA in a nursing role and tells me right up front that she wants to go back to work. My guess is that she succeeded with these [education] programs because she took them with low class loads and that she studied diligently, perhaps a lot harder than others in her class[, ] to obtain her degree. If she were reemployed by the VA as an RN and the VA chose to use her ...