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

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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, Department of Veterans Affairs, Defendant.

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I.

INTRODUCTION AND SUMMARY OF ARGUMENT

Defendant R. James Nicholson, by and through his undersigned counsel, hereby opposes plaintiff Lillian Faye Sandle's motion for partial summary judgment. Ms. Sandle contends that defendant failed to accommodate her by terminating her from the Claims Clerk position in Medical Administration Service ("MAS"). Her motion should be denied because material issues of fact are in dispute and she is not entitled to judgment as a matter of law. Ms. Sandle did not exhaust her administrative remedies regarding her claim that

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she was unlawfully terminated from the Claims Clerk position. She failed to contact an EEO counselor regarding the "termination" within the requisite 30-day period of time. Even if Ms. Sandle's failure to exhaust is excused, her motion should be denied because, at bottom, she did not have a physical impairment which substantially limited her ability to work. She has admitted that she was not significantly restricted in the ability to perform a class of jobs in the field of Nursing, and has admitted that she was not significantly restricted in the ability to perform a broad range of jobs in various classes in the field of Nursing. She had no record of a disability, because she did not actually suffer an impairment that substantially limited her ability to work as a nurse. Nor was she regarded as disabled, because the Denver VA Medical Center did not regard her as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes. Consequently, this Court need never reach Ms. Sandle's central argument, that the "position in question," which she asserts the Court should analyze for purposes of determining whether she was a "qualified individual with a disability," is her Claims Clerk temporary detail at MAS. Nevertheless, even if the Court reaches that argument, Ms. Sandle's motion should be denied. The VA did not have a policy prior to 1992 of creating permanent positions for employees injured on the job, particularly if it involved paying them their prior customary salary even though they might be performing work in

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their new permanent position at a much lower grade level and much lower salary level. II. A. PERTINENT FACTUAL BACKGROUND

Plaintiff's Injury and Light Duty Assignments in General Ms. Sandle injured her back in January 1987 while working as a staff nurse in the

Nursing Home Care Unit ("NHCU"). See Plaintiff's Motion for Partial Summary Judgment (hereafter, "P. Mot."), Exhibit 3 at 2. She re-injured her back on September 12, 1989. Id. at 4. She admits that her injury prevented her from performing certain essential functions of her position as a staff nurse, including lifting and positioning patients. Id. at 6-7. She was placed on several light duty temporary details beginning in 1987 and continuing through 1990, as a consequence of her back injury. Ms. Sandle was able to return to full unrestricted nursing duties at the NHCU in the summary of 1989. Id. at 4 (referring to Ms. Sandle's physician's statement that she had "returned to her pre-injury status."). Exhibit A-2 at 2. Upon re-injuring her back in September of 1989, she was returned to light duty details. The purpose of Ms. Sandle's temporary light duty assignments was to 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. See Exhibit A-4 (Sanchez Declaration) at ¶ 13. None of her temporary light duty detail assignments were

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permanent positions. Id. at ¶ 12. B. Plaintiff's Claims Clerk Light Duty Temporary Assignment One of Ms. Sandle's temporary light duty details was as a Claims Clerk in Medical Administration Service. The detail was effective beginning on November 26, 1989, see P. Mot., Exhibit 8 at 1, and it ended on November 17, 1990. Id. at Exhibit 12 at 1. Ms. Sandle was specifically notified by letter dated October 31, 1990, that the Claims Clerk detail would end on November 17, 1990. Id. at Exhibit 12 at 1. The Claims Clerk temporary detail was not at the same grade or level as Ms. Sandle's Staff Nurse position. See Exhibit A-4, attached, at ¶ 18. Rather, the Claims Clerk detail was a GS-4 assignment, which would normally result in a salary at the GS-4 level. Id. at ¶ 16. Ms. Sandle was nevertheless paid her normal salary as a Staff Nurse during this temporary detail. Id. Her normal Staff Nurse salary was at a GS-9 salary level. The Claims Clerk temporary detail assignment was not a funded vacant permanent position. Id. at ¶ 17. The position could have been encumbered by multiple individuals, and at the time of Ms. Sandle's temporary detail to this position, she may have simply been an extra person in that assignment. Id. Ms. Sandle could not have been permanently assigned to the Claims Clerk position without drastically reducing her salary to that of a GS-4 employee. The VA was

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prohibited by pay regulations from paying Ms. Sandle on a permanent basis her GS-9 salary for performing GS-4 work. Id. at ¶ 19. Notably, no documentary evidence suggests that Ms. Sandle ever requested to stay in the Claims Clerk position on a permanent basis at a GS-4 salary level. Id. at ¶ 20. The available evidence does not suggest that, prior to 1992, any Denver VA Medical Center employee 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 even though performing work in the new permanent assignment at a much lower grade level and salary. Id. at ¶ 21. C. The VA's Policies Prior to 1992 Regarding Reassigning Employees Injured on the Job 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 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. Id. at ¶ 22. Nor did the VA 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. Id. at ¶ 23. D. Plaintiff Reaches Maximum Medical Improvement Ms. Sandle had not reached maximum medical improvement when she was 5

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temporarily detailed to the light duty assignment as a Claims Clerk at MAS. Id. at ¶ 24. In 1990 Ms. Sandle's doctors informed VA officials at the Denver VAMC that her position had finally stabilized. See P. Mot., Exhibit 13. Efforts were made to locate a permanent position for Ms. Sandle that fit her medical needs, see P. Mot., Exhibit 13 at 5, but the VA was unable to locate such a position. E. Plaintiff's Present Motion for Partial Summary Judgment Ms. Sandle brings two causes of action in her Second Amended Complaint, filed November 9, 2005. See Docket No. 169. In Count I of her Second Amended Complaint she alleges that defendant failed to accommodate her disability, in violation of the Rehabilitation Act of 1973. Id. at 14. This count is the subject of her motion for partial summary judgment. Ms. Sandle's motion essentially contains three arguments. First, she argues that she has a physical impairment which substantially limits her ability to work. See P. Mot., at 9-11. Her second argument is that the Court should analyze her temporary detail to the Claims Clerk position in MAS, not her position as a Staff Nurse, as the position at issue in determining whether she was "otherwise qualified" to perform the essential functions of the position. Id. at 11-15. Her third argument is that she was terminated from the Claims Clerk detail and from her employment with the VA due to her disability, in violation of the Rehabilitation Act. Id. at 16-17.

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F.

Plaintiff's Failure to Exhaust Her Administrative Remedies Regarding Her Assertion That She Was Terminated from the Claims Clerk Position In Violation of the Rehabilitation Act A review of the many EEO complaints that Ms. Sandle filed with the VA suggests

that only one formal written administrative complaint appears to fit within the time frame relevant to her claim that she was not accommodated, when her temporary detail assignment as an MAS Claims Clerk ended. That formal written administrative complaint is dated August 28, 1991. See Exhibit A-1.1 It appears to have been filed on or about September 3, 1991, and was identified by the EEO as Complaint No. 1790 or Agency Complaint No. 93-1790. See Exhibit A-2 at 4. The EEO counselor's memoranda concerning Agency Complaint No. 93-1790 indicates that Ms. Sandle contacted an EEO counselor on December 18, 1990. See Exhibit A-2 at 4; Exhibit A-3 at 1. December 18, 1990 was exactly 31 days after the date Ms. Sandle's Claims Clerk detail ended. No documentation in any of Ms. Sandle's EEO files indicates that she contacted any EEO counselor within 30 days after her Claims

This appears clear from an assessment of the timing of Ms. Sandle's many EEO formal written administrative complaints. Her written complaint identified as Agency Complaint No. 93-1785 was filed on November 29, 1989. See Exhibit A-2 at 1. Her written complaint identified as Agency Complaint No. 93-1821 was filed on June 8, 1990. Id. at 3. These administrative complaints were filed prior to the end of her detail as a Claims Clerk in November 1990. Her next formal written administrative complaint is dated September 30, 1993. See Defendant's Motion for Summary Judgment at Exhibit A32. 7

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Clerk detail ended on November 17, 1990. When Ms. Sandle contacted the EEO counselor on December 18, 1990, she never raised the issue of the termination of the Claims Clerk detail. See Exhibit A-2, Exhibit A-3. Rather, she raised only three allegations: (1) she was told her nursing license had expired, (2) she was not given a pay adjustment that other nurses received in April 1991, and (3) she was being subjected to a "fitness for duty" examination. Id. Ms. Sandle does mention in her formal administrative complaint identified as Complaint No. 1790 that she was "detailed to MAS for one year." See Exhibit A-1 at 1. Nowhere in that document, however, does she assert that she was improperly terminated from the MAS detail or that termination of the detail violated her rights in any way. Id. III. STANDARD OF REVIEW

Summary judgment is not appropriate when the record demonstrates the existence of a genuine issue of material fact. The proper inquiry is whether there is a need for a trial, i.e., whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact is one that would change the outcome of the litigation. Id. at 247. Summary judgment in favor of a party is not appropriate where the evidence presented is insufficient "to establish the existence of an element essential to that party's case, and on

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which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Nor is summary judgment appropriate if the moving party is not entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant has the burden of demonstrating that, as a matter of law, it is entitled to judgment. Murray v. City of Tahlequah, Okl., 312 F.3d 1196, 1200 (10 th Cir. 2002). If it has not met its burden then summary judgment is not appropriate, and "[n]o defense to an insufficient showing is required." Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970). IV. A. ARGUMENT

This Court Lacks Subject Matter Jurisdiction to Consider Plaintiff's "Failure to Accommodate" Claim Because Plaintiff Did Not Exhaust Her Administrative Remedies Exhaustion of administrative remedies is a jurisdictional prerequisite to the

exercise of subject matter jurisdiction over an employment discrimination claim. Jones v. Runyon, 91 F.3d 1398, 1399-1400 (10 th Cir. 1997); Woodman v. Runyon, 132 F.3d 1330, 1341-42 (10 th Cir. 1997) ("The Rehabilitation Act encompasses this exhaustion requirement"). A complainant is required to exhaust each discrete act of discrimination. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 111-113 (2002); Martinez v. Potter, 347 F.3d 1208, 1210 (10 th Cir. 2003) (each discrete employment action must be exhausted; continuing violation doctrine abrogated).

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EEO regulations in effect up through the end of 1991 required an employee to contact an EEO counselor within 30 days of the date of the discriminatory events, or within 30 days of the date when the complainant first became aware or should reasonably have become aware of the alleged discrimination. See 29 C.F.R. § 1613.214(a)(I) (1987). Additionally, the employee was required to specify in his written administrative complaint the facts and nature of the claim being asserted, in order to exhaust administrative remedies. Annett v. University of Kansas, 371 F.3d 1233, 1338 (10 th Cir. 2004). The allegations must be sufficient to put the employer on notice of the claim. Martinez, 347 F.3d at 1211. Here, Ms. Sandle did not contact an EEO counselor within 30 days of the date her Claims Clerk temporary detail ended. See Exhibits A-2 at 4, A-3. She thus failed to adhere to the time limit set forth in 29 C.F.R. § 1613.214(a)(I) (1987). Nor did she allege in any EEO complaint that the VA violated the Rehabilitation Act when it her Claims Clerk detail concluded on November 17, 1990. Accordingly, she has failed to timely exhaust her administrative remedies. This Court lacks jurisdiction over her contention that her rights under the Rehabilitation Act were violated when the Claims Clerk detail ended. B. Material Facts Are in Dispute Regarding Plaintiff's "Failure to Accommodate" Claim Even if this Court finds that Ms. Sandle did timely exhaust her administrative 10

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remedies regarding the termination of her Claims Clerk detail, or otherwise excuses her failure to exhaust, Ms. Sandle's motion should be denied. She cannot show that she was disabled or that she was a "qualified individual with a disability." 1. Plaintiff Was Not Disabled

In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, a plaintiff must show that: 1) he is a disabled person within the meaning of the law; 2) he is otherwise qualified for the job; and 3) he was discriminated against because of his disability. See Wells v. Shalala, 228 F.3d 1137, 1144 (10 th Cir. 2000); Pack v. Kmart Corp., 166 F.3d 1300, 1304 (10 th Cir. 1999). The Rehabilitation Act defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." See Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999) ( citing 42 U.S.C. § 12102(2)). To make out a prima facie case of disability discrimination, a plaintiff must show that he has an actual disability (subsection (A)), or has a record of a disability (subsection (B)), or is regarded as having a disability (subsection (C)). Sutton, 527 U.S. at 478. Ms. Sandle cannot make out a prima facie case under any of these subsections. a. Plaintiff Did Not Have a Physical Impairment That Substantially Limited Any Major Life Activity

Ms. Sandle argues in her motion that her back injury substantially limited her 11

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major life activities. She does not specifically state which major life activities were in fact substantially limited, but suggests that they may be "working" and "performing manual tasks." P. Mot., at 10. Ms. Sandle cannot show that either major life activity was so affected. With respect to whether Ms. Sandle's back injury substantially limited her ability to work, the Supreme Court in Sutton v. United Air Lines, Inc., held that "[w]hen the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs." 527 U.S. at 491. But Ms. Sandle has admitted, in her answers to defendant's requests for admissions, that she was not significantly restricted in the ability to perform a class of jobs in the field of Nursing, as compared to the average person having comparable training, skills and abilities. See Defendant's Motion for Summary Judgment at Exhibit A-21 at 4 (Request for Admission No. 47). She has also admitted that she was not significantly restricted in the ability to perform a broad range of jobs in various classes in the field of Nursing, as compared to the average person having comparable training, skills and abilities. See id. at 4 (Request for Admission No. 48). In short, Ms. Sandle has conceded that her physical limitations due to her back injury did not substantially limit her ability to work. Gupton v. Commonwealth of Virginia, 14 F.3d 203, 205 (4 th Cir. 1994)(assuming the major life activity at issue is working, a plaintiff

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must show not merely that her disability rendered her "incapable of satisfying the singular demands of a particular job," but that it "foreclosed [her] generally from obtaining jobs in [her] field.") With respect to whether Ms. Sandle's back injury affected her ability to "perform manual tasks," she did not raise this claim in her deposition, even though she was repeatedly asked the question. Indeed, she expressly denied that her back injury in 1987, and the re-injury of her back in 1989, in any way affected her ability to perform manual tasks. See Exhibit A-5, attached, at 2, lines 4-15. In Toyota Motor Mfg., Ky. Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court held: When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. Toyota, 534 U.S. at 200-01. But here, Ms. Sandle stated under oath that her injury did not affect her ability to perform manual tasks. She cannot now claim that her back injury substantially limited her ability to perform manual tasks. Even if Ms. Sandle suggests that she was substantially limited in her ability to lift, she cannot make out a prima facie case. Ms. Sandle had a lifting restriction of 40 to 45 pounds, according to her Special Physical Examination conducted on May 9, 1991. See P. Mot., Exhibit 3 at 8 ("no heavy lifting or carrying over 40-45#"). But medical records 13

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with a forty pound lifting restriction do not establish a history of substantial limitation on the life activity of lifting. Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1160 (10 th Cir. 2002) (citing Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240-41 (10 th Cir. 2001). See also Pryor v. Trane Co., 138 F.3d 1024, 1025 n. 2 (5 th Cir. 1998) (upholding jury verdict that found twenty pound repetitive lifting restriction from back injury was not substantially limiting); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6 th Cir. 1997) (holding restriction limiting frequent lifting to ten pounds due to carpal tunnel syndrome was not substantially limiting). In short, Ms. Sandle cannot show that she was substantially limited in the major life activity of working or performing manual tasks, and therefore cannot make out a prima facie case under the Rehabilitation Act. Ms. Sandle is also incapable of showing that the impact of her impairment is permanent or long term. When determining whether an impairment substantially limits a major life activity, courts look to (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact of or resulting from the impairment. 29 C.F.R § 1630.2(j)(2) (emphasis added). Ms. Sandle admits that her back condition has steadily improved beginning in 1992, that she has not been under any lifting restriction since 1992, and is not under any bending or stooping restriction. See Defendant's Motion for Summary Judgment (Docket No. 243)

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at 48-49, and exhibits cited therein. Ms. Sandle has thus admitted that her "impairment" is not permanent. b. Plaintiff Did Not Have a Record of Disability

In order for a plaintiff to prove that he has a record of disability under subsection (B) of the disability definition, the plaintiff must show that he has a history of, or has been misclassified as having, an impairment that substantially limits a major life activity. Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1161 (10 th Cir. 2002); Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10 th Cir. 1999). The record of disability standard is satisfied only if the plaintiff actually suffered an impairment that "substantially limited" one or more of his major life activities. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1132 (10 th Cir. 2003) (emphasis added). As noted above, Ms. Sandle cannot show that she actually suffered an impairment that "substantially limited" one or more of her major life activities. Consequently, she cannot show that she has a "record of disability." Ms. Sandle argues in her motion for partial summary judgment that she has a "physical impairment [that] is well documented." P. Mot., at 11. Defendant does not dispute that she had a physical impairment, but that does not classify her as having a record of disability under the Rehabilitation Act. See Doebele, 342 F.3d at 1132.

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c.

Plaintiff Was Not Regarded as Disabled

The Supreme Court has ruled that there are two ways in which a plaintiff may prove that he was "regarded as disabled" under subsection (C) of the disability definition: 1) by showing that his employer mistakenly believed that the plaintiff has a physical impairment that substantially limits a major life activity; or 2) by showing than an employer mistakenly believes that an actual, non-limiting impairment substantially limits a major life activity. See Sutton, 527 U.S. at 489. In order for a plaintiff to establish that he was "regarded as disabled" with respect to the major life activity of working, the plaintiff must show that the defendant regarded the plaintiff as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes. See Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523 (1999); Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10 th Cir. 2001). Here, the Denver VA did not regard Ms. Sandle as being substantially limited in performing either a class of jobs in the field of Nursing or a broad range of jobs in various classes. No evidence demonstrates that VA regarded her in such a manner. Ms. Sandle points to three exhibits attached to her motion as demonstrating that she was terminated due to her disability. See P. Mot., at 11 (citing Exhibits 21-23). The term "disability" does appear on these documents, but the term appears to have been used only in a generic sense. See Exhibit A-4, attached, at ¶¶ 5-10. The term was not

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apparently used in the strict legal sense in which it is employed in the Rehabilitation Act of 1973 or the Americans With Disabilities Act. In these documents, the VA appears to have employed the term "disability" as meaning "one who is dis-abled from working in his or her position." Id. No document in Ms. Sandle's Official Personnel File suggests that the VA ever classified, or mis-classified, Ms. Sandle as having any impairment that substantially limited any major life activity, such as work. Id. In short, the documents Ms. Sandle relies on do not suggest that the Denver VA regarded Ms. Sandle as being substantially limited in performing either a class of jobs in the field of Nursing or a broad range of jobs in various classes. She was not "regarded as" disabled by the VA. 2. Plaintiff Was Not a Qualified Individual With a Disability

In addition to establishing that she has a disability, Ms. Sandle must also show that she is qualified. See generally Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). A qualified individual with a disability is one who can, with or without reasonable accommodation, perform the essential functions of the position in question. 29 C.F.R. § 1630.2(m). Ms. Sandle contends that the "position in question" is the position of Claims Clerk at MAS. See P. Mot., at 11-16. Her entire argument is based on a strained application of the Tenth Circuit's decision in Woodman v. Runyon. That decision is inapposite for a number of reasons.

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First, there was apparently no dispute in the Woodman case that the plaintiff, Patricia Woodman, was disabled as that term is defined and applied in the Rehabilitation Act. See Woodman, 132 F.3d at 1338, n.7. By contrast, in the present case Ms. Sandle is incapable of demonstrating that she meets the definition of "disabled" under the Act, as defendant has shown above and in its Motion for Summary Judgment filed September 1, 2006. See Docket No. 243. Consequently, this Court need never reach the issue of whether Ms. Sandle's "position in question" is the Claims Clerk position. Second, the Tenth Circuit found that Woodman concerned matters subsequent to the 1992 amendments to the Rehabilitation Act. See 132 F.3d at 1341. Ms. Sandle's case, by contrast, concerns only pre-amendment matters, in that she was separated from employment on June 29, 1991. See P. Mot., Exhibit 22 at 1. The Tenth Circuit recognized in Woodman that, prior to 1992, the Rehabilitation Act did not require reassignment as a possible reasonable accommodation. Id. at 1339. It noted, however, that a federal employer "cannot deny an employee alternate employment opportunities reasonably available under the employer's existing policies." Woodman, 132 F.3d at 1340. But here, the VA did not have an "existing policy" at the time that would have permitted Ms. Sandle to be placed permanently in the Claims Clerk position and continue to receive her GS-9 salary. Admittedly, the VA did have a policy in the late 1980s of assisting individuals

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deemed disabled under the Rehabilitation Act or the Americans With Disabilities Act by "giv[ing them] full opportunity to continue employment in their present positions or, if possible, assigned to more suitable positions." See P. Mot., Exhibit 15, p. 4 of 4. But Ms. Sandle's temporary detail as a Claims Clerk at MAS was not a "suitable" permanent position. She was not assigned to the position on a permanent basis. It was provided to her on a temporary basis until her medical condition stabilized and she had reached maximum medical improvement. Indeed, the Claims Clerk temporary detail assignment was not a funded vacant permanent position. See Exhibit A-4 at ¶ 17. It was not at the same grade or level as Ms. Sandle's Staff Nurse position. Id. at ¶ 18. 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, and was supposed to pay a salary at the GS-4 level. Id. at ¶ 16. Ms. Sandle could not 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. Id. at ¶ 19. Notably, Ms. Sandle's OPF and her EEO files do not demonstrate that she ever requested to stay in the Claims Clerk position on a permanent basis at a GS-4 salary level. Id. at ¶ 20. Indeed, to the contrary, her actions during this general period of time demonstrate

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convincingly that she would not agree to a GS-4 salary. She was seeking nurse positions at this time. See, e.g., P. Mot., Exhibits 18, 19. The VA simply did not have an existing policy, prior to 1992, of creating permanent positions for employees injured on the job, such as Staff Nurses 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. See Exhibit A-4 at ¶ 22. 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. Id. at ¶ 23. Ms. Sandle is unable to identify 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 much lower salary. For these reasons, the Claims Clerk position at MAS cannot be deemed the "position in question" for purposes of Ms. Sandle's "failure to accommodate" claim. The Claims Clerk position was not a vacant permanent position, and the VA could not permanently reassign her to that position and allow her to retain her GS-9 salary.

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3.

Defendant Had Legitimate Non-Discriminatory Reasons for Ending Plaintiff's Light Duty Detail as a Claims Clerk

Finally, defendant had legitimate non-discriminatory reasons for ending Ms. Sandle's Claims Clerk detail. She had reached maximum medical improvement. The VA could not continue to pay her a GS-9 salary for GS-4 work as a Claims Clerk. The position was not a funded vacant permanent position. Allowing Ms. Sandle to remain in the position at a GS-9 salary would pose an undue hardship on defendant. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10 th Cir. 1999) (en banc) (no reassignment is required if it is not a "reasonable" accommodation or if it poses an "undue hardship."). CONCLUSION For the above reasons, and any which may be presented at a hearing on this matter, plaintiff Lillian Faye Sandle's Motion for Partial Summary Judgment should be denied. Dated this 29 th day of September, 2006. Respectfully submitted, TROY A. EID United States Attorney s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 29 th day of September, 2006, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Counsel for Plaintiff:

Dugan William Edward Bliss Email: [email protected] Sean Robert Gallagher Email: [email protected]

s/ Michael C. Johnson MICHAEL C. JOHNSON Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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