United States District Court, N.D. Alabama, Southern Division
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE
case is presently pending before the court on defendant's
Motion for Summary Judgment. (Doc. 58.) 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.
SUMMARY JUDGMENT STANDARD
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”).
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).
STATEMENT OF FACTS
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].)
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].)
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
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
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
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
Q. So you have a medical condition that you live with.
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?
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
A. That's kind of hard to say. That's kind of hard to
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
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
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].)
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).
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).) 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].)
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 ...