Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02435-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02435-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. R. JAMES NICHOLSON, Secretary, Veterans Affairs, Defendant.

DECLARATION OF EDWARD SANCHEZ

I, Edward Sanchez, being of lawful age, hereby declare as follows: 1. I am employed by the U.S. Department of Veterans Affairs as Chief of the

Human Resources Service of the VA Eastern Colorado Health Care System, located at the VA Medical Center in Denver, Colorado. 2. As part of my duties as the Chief of Human Resources, I am responsible for

the collection, consolidation, and processing of information related to personnel issues of employees which can include but is not limited to hiring for vacancies and determination qualifications of applicants. 3. I am familiar with the case captioned above, Sandle v. Principi, Civil

Action No. 03-cv-02435-PSF-PAC, and I am familiar with the allegations raised by Ms. Sandle in her Second Amended Complaint. I am also familiar the EEO

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files generated as a consequence of Ms. Sandle's formal written administrative complaints of discrimination and retaliation. 4. At the time of Ms. Sandle's termination from her position as a Staff Nurse

at the Denver VA Medical Center, I was employed at the Denver VA Medical Center as the Assistant Chief of Personnel. 5. I have reviewed Ms. Sandle's Official Personnel Folder (OPF) and I am

aware that two or three documents in her file indicate that she was terminated or separated for "disability." The term "disability" as used on these documents appears to concern whether or not Ms. Sandle was viewed as able to continue to perform the essential duties of her position as a Staff Nurse, in light of her back injury. 6. For example, the VA issued a Standard Form 50-B to Ms. Sandle on June

29, 1991, which indicated in the "Nature of Action" box: termination - disability. The term "disability" as used by the VA on this Standard Form 50-B concerned the VA's determination that, because of her back injury, Ms. Sandle could no longer perform the essential duties of her position as Staff Nurse. 7. I note also that Ms. Sandle's file contains a letter dated October 1, 1982 to

Ms. Sandle from Fred Salas, who was the Medical Center Director at the time. In that letter Mr. Salas referred to "the decision to separate you for disability. . . ."

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8.

The VA appeared to use the term "disability" in these documents in a

generic sense. The term was not apparently used in the strict legal sense in which it is employed in the Rehabilitation Act of 1973 or the Americans With Disabilities Act. It does not appear to have the same meaning in these documents as it otherwise would have in the context of the Rehabilitation Act of 1973 or the Americans With Disabilities Act. In these documents, the VA appears to employ the term "disability" as meaning "one who is dis-abled from working in his or her position." 9. I have not been able to locate any document in Ms. Sandle's OPF

suggesting that the VA ever classified, or mis-classified, Ms. Sandle as having any impairment that substantially limited any major life activity, such as work. 10. I am not aware that, following Ms. Sandle's injury to her back in January

1987, any VA employee, or the Denver VA Medical Center itself, regarded Ms. Sandle as being substantially limited in performing either a class of jobs related generally to Nursing, or a broad range of jobs in various classes related to Nursing. 11. Ms. Sandle was provided several temporary light duty detail assignments

during the course of her employment with the Denver VA Medical Center. 12. These temporary light duty detail assignments were not permanent

positions. 13. The purpose of Ms. Sandle's temporary light duty detail assignments was to

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provide her work on a temporary basis until her physical condition had stabilized and improved and she could return to her full duties in her position as a Staff Nurse. 14. The VA Medical Center in Denver temporarily details injured employees to

light detail assignments until the employee's physician releases the employee to return to his or her regular duties. 15. Ms. Sandle's light duty details were not reassignments. They were only

light duty details. The Denver VAMC has never had a policy of providing permanent light duty assignments to injured employees. Only if an injured employee reaches maximum medical improvement and is found at that time to be unable to perform the essential duties of his or her prior position does the Denver VAMC look for alternative permanent placement for the injured employee. 16. One of Ms. Sandle's temporary light duty details was as a Claims Clerk in

Medical Administration Service from approximately November 1989 to approximately November 1990. Ms. Sandle was paid her normal salary as a Staff Nurse during this temporary detail. Her normal Staff Nurse salary was at a GS-9 salary level. The Claims Clerk temporary detail was a GS-4 position, paying a salary at the GS-4 level. 17. The Claims Clerk temporary detail assignment was not a funded vacant

permanent position. It was listed as "Agency Position 2471A." This means that

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the position could have been encumbered by multiple individuals. This is what the "A" means in the position number. At the time of Ms. Sandle's temporary detail to this position, she may have simply been an extra person in that assignment. 18. The Claims Clerk temporary detail was not at the same grade or level as

Ms. Sandle's Staff Nurse position. 19. Ms. Sandle was not permanently assigned to the Claims Clerk position, nor

could she have been permanently assigned to the Claims Clerk position without drastically reducing her salary to that of a GS-4 employee. The VA was prohibited by pay regulations from paying Ms. Sandle on a permanent basis her GS-9 salary for performing GS-4 work. 20. My review of Ms. Sandle's OPF and her EEO files does not demonstrate

that Ms. Sandle ever requested to stay in the Claims Clerk position on a permanent basis at a GS-4 salary level. 21. I am not aware, prior to 1992, of any other employee who was assigned on

a permanent basis to another position, due to a work-related injury, for which the employee continued to receive his or her prior salary while now performing work in the new permanent assignment which was at a much lower grade level and salary. 22. The VA did not have an existing policy, prior to 1992, of creating

permanent positions for employees injured on the job, such as Staff Nurses

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employed at the VA, particularly if it involved paying them their prior customary salary even though they might be performing work in their new permanent position at a much lower grade level and much lower salary level. 23. Similarly, the VA did not have an existing policy, prior to 1992, of

permanently reassigning employees injured on the job to other positions if the injured employee had not yet reached maximum medical improvement. 24. Ms. Sandle had not reached maximum medical improvement when she was

temporarily detailed to the light duty assignment as a Claims Clerk at MAS.

Pursuant to 28 U.S.C. Section 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 29 th day of September, 2006, at Denver, Colorado.

s/ Edward Sanchez Edward Sanchez

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