Free Motion for Summary Judgment - 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. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant Anthony J. Principi, by and through his undersigned counsel, hereby moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b), on the grounds that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. The plaintiff, Lillian F. Sandle, was not retaliated against by VA officials for her prior EEO protected activity. Nor were her rights under the Rehabilitation Act violated. She was not a qualified individual with a disability. She merely suffered from some lower back pain that precluded her performing the essential functions of her job as a staff nurse, such as lifting and moving patients. Defendant's motion should therefore be granted and this matter should be dismissed.

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I.

INTRODUCTION AND PROCEDURAL BACKGROUND

Ms. Sandle is a former nurse at the Department of Veterans Affairs Medical Center ("VAMC") in Denver. She began working for the VAMC in Marlin, Texas, before relocating to Denver. While in Marlin, Texas, she filed in 1984 two EEO complaints against the VAMC in Marlin. See Docket No. 169 (Second Amended Complaint) at ¶ 9. She transferred to the VAMC in Denver two years later, in 1986. Id. at ¶ 10. She worked as a staff nurse in the Nursing Home Care Unit ("NHCU"). In January 1987, while working in the NHCU, plaintiff injured her back while lifting a patient. See Exhibit A-2 at 1. Her injury prevented her from performing certain essential functions of her position as a staff nurse, including lifting and positioning patients. She was placed on several light duty assignments in 1987, as a consequence of her back injury in January 1987. Plaintiff was able to return to full unrestricted nursing duties at the NHCU in July of 1989, see Exhibit A-2 at 2, but she then re-injured her back on September 12, 1989 while moving another patient. See Exhibit A-2 at 3-4. She was placed on a light duty detail until November 1989, and then in November of that year was placed on another detail, in Medical Administration Service, that lasted until November 1990. The VAMC in Denver made efforts to locate a permanent position for plaintiff that

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fit her medical needs, but was unable to locate such a position. On or about March 7, 1991, VAMC officials submitted a request to conduct a Physical Standards Board to determine plaintiff's physical capability. See Exhibit A-16. The Board found Ms. Sandle "not physically capable of performing the duties of staff nurse." Exhibit A-3. Ultimately, she was issued a "Notice of Separation" on June 13, 1991, based on the determination that plaintiff was "physically incapable of performing the duties of the position Staff Nurse." See Exhibit A-17. Plaintiff filed numerous formal administrative complaints with the EEO office at the Denver VAMC, during her approximately five and a half year tenure at the hospital. Approximately three years after she filed her EEO administrative complaints at the VAMC in Marlin, Texas, she filed with the EEO office at the Denver VAMC, in the fall of 1987, a formal written complaint of discrimination and retaliation dated September 18, 1987. See Exhibit A-28. She did not allege discrimination based on handicap in this administrative complaint. Id. at 1, box 7. Plaintiff then filed another formal written complaint of discrimination and retaliation, dated December 23, 1987, with the EEO office. See Exhibit A-27. Almost two years later, plaintiff submitted her third administrative complaint of discrimination, dated November 29, 1989, to the Denver VAMC EEO office. See Exhibit A-29. Her fourth formal administrative complaint to the EEO is dated June 6, 1990. See Exhibit 31. Her fifth administrative complaint is dated

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August 28, 1991, see Exhibit A-30, and her sixth administrative complaint is dated September 30, 1993. See Exhibit A-32. The Agency investigated the matters about which plaintiff complained. Her formal administrative complaints have been identified by the VA as administrative case numbers 89-0440, 89-0441, 93-1785, 93-1790, 93-1821 and 94-0858. On April 2, 1997, plaintiff and the VA entered into a settlement agreement regarding her claims. Thereafter, upon plaintiff's own motion, the EEOC's Office of Federal Operation invalidated the settlement agreement and remanded the cases to the EEOC's Denver District Office instructing that the matters be reinstated. From August 15 to August 22, 2001, a hearing was conducted on the consolidated formal administrative complaints before an administrative law judge "(ALJ"). At the conclusion of the week-long hearing, the ALJ ruled against plaintiff on all of her claims. She administratively appealed the decision to the Equal Employment Opportunity Commission ("EEOC"), but the EEOC also ruled against her. Thereafter, she filed suit in this Court. II. STATEMENT OF THE CASE

Plaintiff brings two causes of action in her Second Amended Complaint, filed November 9, 2005. See Docket No. 169. She alleges that defendant failed to accommodate her disability, in violation of the Rehabilitation Act of 1973. Id. at 14. She

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also alleges that defendant retaliated against her for prior EEO activity, in violation of both Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act. She sues defendant Anthony Principi, Secretary, Department of Veterans Affairs, in his official capacity. III. STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56©; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is one that could change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Thus, the nonmovant cannot manufacture genuine issues of material fact with "conclusory allegations . . . unsubstantiated assertions, . . . or a scintilla of evidence." See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5 th Cir. 1994) (citations omitted). IV. A. ARGUMENT

DEFENDANT MOTION SHOULD BE GRANTED WITH RESPECT TO PLAINTIFF'S RETALIATION CLAIM 1. Legal Background

To withstand summary judgment on her retaliation claim, plaintiff must first meet

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her prima facie burden and show that: (1) she engaged in protected opposition to discrimination; (2) she was subjected to an adverse employment decision; and (3) there exists a causal connection between the protected activity and the adverse employment decision. Meiners v. University of Kansas, 359 F.3d 1222, 1229 (10 th Cir. 2004). A causal connection can be established either by direct evidence or by inferences arising from an adverse employment action that closely follows the protected conduct. Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10 th Cir. 1994). While a temporal link between protected activity and an adverse employment action can be evidence of retaliation, a delay between the protected activity and the adverse action breaks the causal link. For example, the Tenth Circuit has held that five months' time between protected activity and the adverse action, by itself, is insufficient to make out a prima facie case of retaliation. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10 th Cir. 1997). The elements of a prima facie case of discrimination in which the plaintiff alleges that he or she has been denied placement in a specific position are as follows: (1) plaintiff is a member of a suspect class, (2) plaintiff applied and was qualified for an available position, and (3) after plaintiff's rejection, the employer continued to seek applicants who were no more qualified than plaintiff. Stella v. Mineta, 284 F.3d 135, 144

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(D.C. Cir. 2002) (emphasis added) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If no job opening exists, the failure to select an individual cannot give rise to the inference of discrimination that underlies McDonnell Douglas. Id. If the plaintiff has presented a prima facie case, the burden shifts to the Agency to articulate some legitimate non-retaliatory reason for its actions. A complainant may then show that the reason articulated by the Agency is a mere pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); McDonnell Douglas, 411 U.S. at 804. The ultimate burden of persuading the trier of fact that the Agency retaliated against plaintiff remains at all times with her. 2. Plaintiff Cannot Show the Necessary Causal Connection with Respect to her Retaliation Claims

Plaintiff has filed numerous formal administrative complaints in this matter. But with respect to a number of claims in her administrative complaints, she cannot show the necessary nexus between those administrative complaints and any prior protected EEO activity. There is no temporal proximity between various events. With respect to plaintiff's first administrative complaint to the VAMC in Denver, that complaint is dated September 18, 1987. See Exhibit A-28. In it she alleges that the VA took retaliatory actions against her beginning in May of 1987. Id. at 2-3. But her earlier EEO protected activity occurred in Marlin, Texas in 1984, approximately two and a half years earlier. See Docket No. 169 at ¶ 9. 7

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With respect to her November 29, 1989 administrative complaint, she alleged that the agency retaliated against her beginning in July 1989 when she was subjected to certain adverse agency actions. See Exhibit A-29 at 2. But her prior protected EEO activity occurred approximately a year and a half earlier, in December 1987, when she filed her second administrative complaint with the Denver VAMC. See Exhibit A-27. With respect to her June 6, 1990 administrative complaint, plaintiff alleged that the agency retaliated against her on March 29, 1990 when she was given a proficiency report. See Exhibit A-31 at 1. Her prior protected EEO activity occurred four months earlier, on November 29, 1989 when she filed her third administrative complaint with the Denver VAMC. See Exhibit A-29. The fact that plaintiff's protected activity was temporally remote from the agency actions complained of in her September 18, 1987; November 29, 1989; and June 6, 1990 administrative complaints undermines plaintiff's contention that the adverse actions she complained about in those administrative complaints were motivated by reprisal. In Clark County School District v. Breeden, 532 U.S. 268 (2001), the Supreme Court concluded that summary judgment was appropriate in a Title VII retaliation case given the absence of proof regarding causal connection. There, the employee argued that the alleged discriminating official was aware that the employee had filed a discrimination complaint twenty months before the adverse action, and that the issuance of the right to

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sue letter three months before the challenged decision in essence provided renewed notice of the protected activity. The Supreme Court observed that even if the alleged discriminating official was presumed to have knowledge of the filing of the complaint, given the lack of temporal proximity, the evidence was insufficient to present a triable factual issue on the causation element. Id. at 273-74. Indeed, the Supreme Court specifically noted that as a general rule the federal courts have held that "mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action" is insufficient proof of causation unless the temporal proximity is "very close." Id. (citations omitted). In fact, in those cases where knowledge of the prior protected activity can be established with competent proof, but the prior activity is temporally remote, this Court has consistently held that a time lapse consisting of as little as three months between the protected activity and the challenged action is insufficient, standing alone, to create an inference of retaliatory motive. See, e.g., Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir 1999) (a three-month period, standing alone, is insufficient to raise an inference of retaliatory intent); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding that inference of retaliatory motive unwarranted where more than three months had elapsed between time employer learned of plaintiff's protected activity and alleged adverse action).

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Here, plaintiff cannot provide competent proof that the VAMC officials responsible for the allegedly retaliatory actions set forth in her September 18, 1987; November 29, 1989; and June 6, 1990 administrative complaints had prior knowledge of her prior protected activity. Given the absence of any evidence that the VAMC officials responsible for those actions had the necessary prior knowledge of plaintiff's prior protected activity, plaintiff's claims for retaliation as set forth in her September 18, 1987; November 29, 1989; and June 6, 1990 administrative complaints must fail. 3. Plaintiff's Individual Claims of Retaliation Are Without Merit for a Variety of Reasons

In plaintiff's First Supplemental Responses to Defendants' First Supplemental Set of Discovery Requests, plaintiff identified each "adverse employment action" allegedly suffered by her in violation of Title VII which is at issue in this case. See Exhibit A-36 (Plaintiff's First Supplemental Responses to Defendants' First Supplemental Set of Discovery Requests) at 3-5.1 She has identified over 30 separate adverse employment action which she contends are at issue. Plaintiff contends she suffered retaliation with respect to each of these actions. Defendant demonstrates below that it is entitled to summary judgment as to each alleged adverse employment action.

Plaintiff identified the same adverse employment actions in Plaintiff's Second Supplemental Responses to Defendants' First Supplemental Set of Discovery Requests. See Exhibit A-25 at 3-5. 10

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A Position in Nursing Service/Education as an Instructor (November, 1986) Plaintiff has failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim. 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).2 Plaintiff acknowledges that she did not make any contact with any EEO investigator or counselor until September 18, 1987, regarding any alleged discrimination or retaliation during her employment at the Denver VA Medical Center. See Exhibit A-25 (Plaintiff's Second Supplemental Responses to Defendants' First Supplemental Set of Discovery Responses) at 10. Plaintiff asserts she exhausted this claim in "Complaint (¶ 2) filed on 9/18/87." See Exhibit A-15 (Plaintiff's Responses to Defendants' Fourth Supplemental Set of Interrogatories) at 3. Nowhere, however, in "paragraph 2" of plaintiff's September 18, 1987 formal written administrative complaint does she state that she was discriminated against or retaliated against because in or about November, 1986 she was denied a position in Nursing Service/Education as an Instructor. At most, in paragraph 2 of her

In 1992, these regulations were amended to require an employee to initiate contact within 45 days of the alleged act of discrimination. See 29 C.F.R. § 1614.105(a)(1). 11

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September 18, 1987 formal written administrative complaint, she only asserts as follows: "Denied opportunity to use my skills and promotions or advancement. . . ." See Exhibit A-28 at 1. This statement did not suffice to place defendant on notice that she was challenging defendant's decision not to select her for the Instructor position. The purpose of the formal written administrative complaint is to put the agency on notice of the complainant's claims. If the plaintiff subsequently files a lawsuit, her claims are restricted to only those claims that are asserted in the administrative complaint and that are "like or reasonably related to the allegations of the charge and [which grow] out of such allegations." Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7 th Cir. 1994). Requiring that a plaintiff assert in an administrative complaint all charges that could form the basis of a lawsuit provides the charged party with notice of the claim and helps "narrow the issues for prompt adjudication and decision." Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n. 325 (D.C. Cir.1976). A plaintiff must state her charges with some degree of specificity, and a court should not interpret an administrative charge so liberally as to permit a plaintiff to bypass the Title VII administrative process. Christopher v. Billington 43 F.Supp.2d 39, 47 (D.D.C. 1999) (citing Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995); Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985)). Plaintiff's claim that she was denied the position in Nursing Service/Education as

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an Instructor is not "like or reasonably related" to any other claim asserted in any complaint, nor does it "`grow' out of such allegations." This Court therefore lacks jurisdiction to consider this claim. McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10 th Cir. 2002). In any event, defendant had legitimate non-retaliatory reasons for not selecting plaintiff for the position. Plaintiff was not best qualified for the position. The position required the selectee to have a master's degree. See Exhibit C-1 (Wilson deposition transcript) at 19, lines 10-21. Cynthia McCormack was hired for the position, and she had a master's degree. Plaintiff did not. Id. Ms. McCormack also had highly satisfactory proficiency reports and performance evaluations, and plaintiff did not. Id. See also id. at 52, line 22 to 53, line13. The position of Geriatric Evaluation Unit Coordinator on December 18, 1986. Plaintiff failed to exhaust this claim for the same reasons as set forth above. No evidence demonstrates that she timely contacted an EEO counselor. She failed to submit a written administrative complaint regarding the claim. Plaintiff asserts she exhausted this claim in "Complaint (¶ 2) filed on 9/18/87." See Exhibit A-15 at 3. But the claim does not appear anywhere in "paragraph 2" of plaintiff's September 18, 1987 formal written administrative complaint. See Exhibit A-28 at 1. It is not "like or reasonably related" to any other claim asserted in that administrative complaint

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Defendant had legitimate non-retaliatory reasons for not selecting plaintiff for the position. Plaintiff was not best qualified for the position. Jill Poole was hired instead of plaintiff for the position. See Exhibit C-1 at 20, lines 12-14. Ms. Poole had experience in the nursing ward where the Geriatric Evaluation Unit was housed, she had highly satisfactory performance evaluations, and she had experience in "med./surg." Id. at 20, lines 15-20. Plaintiff on the other hand had performance at the time that was minimal or marginal, and lacked a good reference recommendation from her supervisors. Id. at 20, lines 3-11. See also id. at 53, line 22 to 54, line 11. Plaintiff also lacked the qualities required of the position: the ability to function independently, and make good judgments and critical decisions. Id. at 20, lines 3-11. Plaintiff's Contention that she was improperly placed on a Performance Plan In October 1987, Martha Weeks placed plaintiff on a performance plan. See Exhibit A-7 at 292-295. The plan was designed to provide a tool to work on and resolve issues surrounding plaintiff's weaknesses and to get her performance up to satisfactory levels. Id. Ms. Weeks specifically knew that plaintiff wished to be promoted and that the performance plan would help her work toward that level. Id. Ms. Weeks was concerned that plaintiff was not performing satisfactorily. Id. The purpose of the performance plan was to provide plaintiff assistance in obtaining a higher grade level in the NHCU. Id. Plaintiff cannot establish a prima facie case of retaliation, because she cannot

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show that she suffered an adverse employment action. She experienced no "significant change in employment status, such as ... firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits" Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 761 (1998). No concrete disciplinary action accompanied Ms. Weeks' placement of plaintiff on a performance plan. Even if plaintiff can be viewed as suffering an adverse employment action as a consequence of her placement on a performance plan, defendant had legitimate nondiscriminatory and nonretaliatory reasons for placing her on the plan. Ms. Weeks was concerned that plaintiff was not performing satisfactorily. The purpose of the performance plan was to provide Ms. Sandle assistance in improving her performance so that she could obtain a higher grade level. Plaintiff has no evidence to demonstrate that defendant's nondiscriminatory, nonretaliatory reasons were pretextual. See Exhibit A-8 at 126-127. The position of Administrative Assistant in Nursing Service (April 16, 1987) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim. She asserts she exhausted the claim in "Complaint (¶ 2) filed on 9/18/87." See Exhibit A-15 at 3. But the claim does not appear anywhere in "paragraph 2."

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Defendant had legitimate non-retaliatory reasons for not selecting plaintiff for the position. Plaintiff was not qualified for the position. The position was an administrative position, and the duties in the position were not nursing duties. See Exhibit C-1 at 23. Linda Morena was hired for the position. Id. She was a personnelist and had extensive experience preparing reports, compiling information, responding to complaints, collecting data, and working on a computer. Id. at 23-24. Nothing in plaintiff's resume or background suggested that she possessed such skills. See Exhibit A-24 (plaintiff's application for federal employment). Termination of Light Duty Detail in Rehabilitation Medicine on May 14, 1987 Plaintiff was placed in a light duty assignment in Rehabilitation Medicine Services ("RMS"). Her light duty assignment in RMS became effective April 6, 1987, not to exceed June 4, 1987. While she was on light duty in RMS she constantly complained that her back hurt when filing. See Exhibit A-40 at 3. She was gone for long periods of time. Id. at 2. She gave patients inappropriate advice. Id. at 3. She made inappropriate comments on the telephone and on the intercom, which disturbed the therapists in RMS. Id. On or about May 1, 1987, the Chief of RMS, Robert Rondinelli, M.D., requested that plaintiff be reassigned out of the unit. He asserted that this was necessary because of numerous complaints about her work including, "complaints ranging from inappropriate questions addressed to RMS patients to ineptness in phone answering and message

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transmission from patients . . . levied on five occasions." Id. at 2-3. He also noted that she took long breaks often without saying why she needed to be gone, and even when she was in the RMS did not really accomplish much of anything and had no motivation. Id. at 2. As a result, her detail to RMS was terminated in May 1987. Defendant has articulated legitimate non-retaliatory reasons for its actions. Plaintiff's detail to RMS was terminated because of her poor performance in the position. She has no evidence to suggest that such reasons were a pretext for retaliation. See Exhibit A-8 at 92-94. "Merely disagreeing with an employer's negative performance assessment is insufficient to show pretext." Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002). See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir.1999) (noting that the manager's perception of employee's performance, rather than the employee's own evaluation of his or her performance, is relevant in determining pretext); Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996) ("an employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact"). Plaintiff's proficiency rating (May 28, 1987) On May 28, 1987, plaintiff was rated for her performance in the NHCU by Ms. Weeks, her supervisor. See Exhibit C-2. In recording plaintiff's rating, Ms. Weeks completed the scoring sheet which was customarily used in the Denver VAMC. Id. at 1.

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Plaintiff received a total score of 60. Id. This was considered below average although it fell within the satisfactory range. In the narrative portion of the proficiency report, Ms. Weeks identified many deficiencies in plaintiff's performance. Among the deficiencies noted, Ms. Weeks asserted that plaintiff had "difficulty following instructions of a varied nature." Id. at 3. She also noted that plaintiff was "not always able to elicit cooperation from staff," had "difficulty focusing on the subject being discussed," her charting was "not always timely," she didn't "always follow instructions," and her "written and oral communication skills require improvement." Id. Jan Kost, the supervisor in the NHCU at the time, opined that she had to repeat information to plaintiff and that Ms. Sandle had "a problem following instructions." Exhibit A-18 at 3-4. She stated: "[Y]ou would tell her something and it would seem to be clear and then she would come back and ask for the same information." Id. Ms. Weeks testified: "she just wasn't able to . . . I had a very difficult time getting her to focus on one topic. She would always go off on a tangent and end up talking about things that weren't even related to the issue at hand." Exhibit C-3 at 21, line 5. Defendant has articulated legitimate nondiscriminatory and nonretaliatory reasons for rating plaintiff as it did. Ms. Weeks has indicated that plaintiff received the low rating because her performance was simply not up to par. Actual performance may constitute a legitimate basis for different treatment. See Furr v. Seagate Tech., Inc., 82 F.3d 980, 988

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(10 th Cir. 1996). Plaintiff cannot show that the reason given was a pretext for retaliation. The allegation that Plaintiff was Issued an Unfair Proficiency Report On or about March 26, 1990, plaintiff received a proficiency report prepared by Ms. Weeks. See Exhibit C-4. The proficiency covered her on duty time between May 2, 1987, and November 14, 1989. The proficiency rated her at the five level with a total score of 52.5. Id. at 513. The narrative noted that she met her counseling requirements and opportunity for improvement and that in fact she demonstrated satisfactory performance. It also noted that some deficiencies in plaintiff's performance still existed. The proficiency outlined some of the deficiencies. Ms. Weeks noted in the proficiency that plaintiff still had difficulty "following instructions, and her focus was limited to her own assignments or needs rather than the overall functioning of the unit." She also noted that plaintiff's interpersonal skills had improved but "she continued to require guidance in her role as a team member." She further noted that plaintiff was assigned duties to demonstrate her leadership but that, "she was not able to comprehend these in her staff nurse role." Id. at 515. As noted, plaintiff received a satisfactory rating on her proficiency report. A satisfactory performance evaluation, even if lower than previous evaluations, is not an adverse employment action if the employee presents no evidence of adverse action relating to her evaluation. See Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th

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Cir. 1994). Assuming for the sake of argument that the plaintiff suffered an adverse employment action as a consequence of the proficiency report, the Agency articulated legitimate nondiscriminatory and nonretaliatory reasons for rating her as it did. Ms. Weeks indicated in the proficiency report that plaintiff received the rating because it accurately reflected her performance based upon Ms. Weeks' direct observations. It should be noted that Ms. Weeks indicated in the proficiency not only weaknesses but also areas of improvement. For example, she stated, "Ms. Sandle had been able to demonstrate satisfactory performance in her handling of patients and her therapeutic abilities on the unit. She was able to calm a restless patient by utilizing therapeutic touch." See Exhibit C-4 at 515. This lends credence to the honesty of the evaluation, and suggests that the evaluation was not tainted by retaliatory and/or discriminatory animus. Denial of promotions on June 17, 1987, July 10, 1987, and September 30, 1987, and denial of reconsideration for a promotion With respect to plaintiff's claim that she was retaliated against when she was denied a promotion on June 17, 1987, she failed to exhaust her administrative remedies. No evidence demonstrates that she timely contacted an EEO counselor about the claim. The claim is not in any EEO counselor's report and she never included this claim in any of her formal written administrative complaints. She states she exhausted the claim in "Complaint (¶ 2) filed on 9/18/87", see Exhibit A-15 at 3, but the claim is not within 20

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paragraph 2. Id. The claim is not included anywhere within the multitude of claims identified and addressed by the Administrative Judge at the August 2001 administrative hearing. See Exhibit A-34 at 2-7. With respect to plaintiff's June 17, 1987 promotion denial, and her other promotion denials, defendant had legitimate, non-retaliatory reasons for denying plaintiff the promotion to intermediate grade. Nurses eligible for promotion could be considered for promotion by the Nurse Professional Standards Board at the Denver VAMC. See Exhibit A-10 at 213-218. The Board was responsible for reviewing the performance and qualifications of nurses to determine whether or not promotion to the next grade was appropriate. Id. On or about June 17, 1987, the Board met to consider the promotion of plaintiff to the intermediate grade. See Exhibit A-14. The Board did not find that she Sandle met the standards for promotion, stating: [T]he proficiencies do not indicate that this nurse has had or taken the opportunity to fully demonstrate intermediate grade criteria requirements. The score reflects satisfactory, however, the narrative documents marginal performance in meeting even Full Grade qualifications standards. Exhibit A-14 at 1. The proficiency report referred to in the board action was dated May 28, 1987 and written by Ms. Weeks. See Exhibit C-5. In the proficiency report Ms. Weeks stated: Ms. Sandle has not demonstrated the ability to work effectively with professional and supportive personnel who provide patient care . . . Ms. Sandle has difficulty following instructions of a varied nature . . . As a charge nurse she is not always 21

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able to illicit cooperation from staff . . . Ms. Sandle often created conflicts between herself and staff because of her lack of communication . . . Her oral and written communicative skills require improvement . . . Ms. Sandle has difficulty with adhering to personal and professional obligations and responsibilities. See Exhibit at 2-3.

On or about September 30, 1987, the Board again considered plaintiff for promotion. The Board again recommended against promoting Ms. Sandle based on her low proficiency scores. See Exhibit A-14 at 3. Plaintiff has not identified any particular facts to suggest that the defendant's nonretaliatory reasons for her proficiency rating were pretextual. See Exhibit A-8 at 4750. She simply relies on "all the incidents that happened in 1987 up through the present time. . . ." Id. at 50. Defendant has articulated legitimate nondiscriminatory and nonretaliatory reasons for its actions. Plaintiff was not promoted because her performance and her proficiencies were not sufficient to justify promotion. See Exhibit A-14. See also Exhibit C-1 at 37. She was not performing at the required higher level of performance. Id. at 37-38. Plaintiff cannot establish that the asserted reasons were a pretext for discrimination and/or retaliation. She has provided no objective evidence to demonstrate that her proficiency report was in any way inaccurate. Actual performance may constitute a legitimate basis for different treatment. See Furr, 82 F.3d at 988.

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Denial of transfer out of the Nursing Home Care Unit (October 21, 1987) On or about October 19, 1987, plaintiff wrote a letter to Jane B. Sheldon, the Chief, Nursing Service, through Jan Kost, R.N. Supervisor and Martha Weeks, R.N. Head Nurse, requesting a transfer out of the NHCU. See Exhibit A-19. On October 21, 1987, Jane Sheldon responded to plaintiff's request, stating: "In reviewing your performance as a staff nurse in the NHCU, I do not feel I could transfer you to the more acute areas of the Medical Center." See Exhibit A-20. Plaintiff was on a performance plan at the time to improve her performance. See Exhibit C-1 at 39-40. She was not transferred because she was expected to remain in her current position and improve her performance before transferring. Id. at 40. Plaintiff cannot make out a prima facie case of retaliation. She did not suffer an adverse employment action when she was denied the transfer. She has no evidence to demonstrate that her transfer request, if granted, would result in a promotion. At most, she was requesting only a lateral transfer where she would continue to function as a staff nurse. Cf. Sanchez v. Denver Public Schools, 164 F.3d at 532 (an involuntary lateral transfer does not constitute an adverse employment action when the transfer does not alter the plaintiff's responsibilities, salary, or benefits). Even if plaintiff can establish a prima facie case, defendant had legitimate nonretaliatory reasons for denying plaintiff the transfer. The record reflects that plaintiff in

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fact did have performance problems which were documented in her performance review. Denial of transfer out of the Nursing Home Care Unit (November 2, 1987) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor. The claim is not included in any formal written administrative complaint. She states she exhausted the claim in "Complaint (¶ 7) filed on 12/23/87." See Exhibit A-15 at 4. To the contrary, the claim in that paragraph concerns a memo she states she received on October 19, 1987 denying her a transfer, not her claim that her request on November 2, 1987 was later denied. The claim is not included anywhere within the claims identified and addressed by the Administrative Judge at the August 2001 administrative hearing. See Exhibit A-34 at 2-7. Plaintiff cannot establish a prima facie case. At most, plaintiff was requesting only a lateral transfer where she would continue to function as a nurse. She suffered no adverse personnel action when her request was denied. Moreover, defendant had legitimate nonretaliatory reasons for its actions. Ms. Sandle was not transferred because she had performance problems which were documented in her performance review. See Exhibit C-1 at 39-40. The position of Head Nurse (November 20, 1987) Plaintiff failed to exhaust this claim for the same reasons as set forth above. No evidence demonstrates that she timely contacted an EEO counselor about the claim. She

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asserts she exhausted this claim in "Complaint (¶ 1) filed on 12/23/87." See Exhibit A-15 at 4. As noted above, plaintiff apparently submitted two written administrative complaints dated December 23, 1987. But in neither written administrative complaint does she raise the claim that she was denied the position of Head Nurse which was announced on November 20, 1987. See Exhibit A-26 (December 27, 1987 complaint #1) and Exhibit A-27 (December 27, 1987 complaint #2). Defendant had legitimate non-retaliatory reasons for not selecting plaintiff for the Head Nurse position. Plaintiff was not qualified for the position. She was not available to come to work in November 1987 because of her injuries. See Exhibit C-1 at 29, lines 1219. She could not perform all of the duties of a nurse. In addition, she was on a performance plan at the time and was not performing at the highly satisfactory level required of someone seeking a Head Nurse position. Id. at 29, line 20 to 30, line 11. The position of Quality Assurance Specialist, a vacancy that was announced on January 6, 1988 Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim, or that she included this claim in any formal written administrative complaint. She asserts she exhausted this claim in "Complaint (¶ 3) filed on 11/29/89." See Exhibit A-15 at 4. The claim does not appear anywhere in paragraph 3 of that administrative complaint. Defendant had legitimate non-retaliatory reasons for not selecting plaintiff for the 25

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Quality Assurance Specialist position. The position was not a nursing position. See Exhibit C-1 at 31, lines 14-16. The position was a "Chief of Staff" position. Dorothy Duncan was selected for the position. Nothing in plaintiff's background suggested that she had the experience or qualifications for the position. Moreover, plaintiff was not qualified for the position because she was not available to come to work in January 1988 because of her injuries. Id. at 31, lines 22-25. A position in Ambulatory Care (January 10, 1989) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim. Plaintiff cannot make out a prima facie case. No evidence demonstrates that a position was open and available to be filled in January 1989. A position did come open in the fall of 1989, but plaintiff was not qualified to fill the position. The position was a Staff Nurse position. See Exhibit C-6 (Sandle deposition transcript) at 165, lines 20-23. The position included duties in the emergency room, and required the selectee to be able to perform the duties of a staff nurse, including lifting and moving patients, bending, etc. See Exhibit C-1 (Transcript of Judith Wilson deposition) at 55, line 15 to 56, line 2. See also Exhibit C-6 at 166, line 23 to 167, line 9. Plaintiff concedes that her back injury precluded her from performing these duties. Id. at 167, lines 6-9. A position in Home Base Home Care (January 10, 1989)

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Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim or included it in a written administrative complaint. She states she exhausted the claim in "Complaint (¶¶ 2, 3) filed on 11/29/89." See Exhibit A-15 at 4. It does not appear in either paragraph of that complaint. Id. She also asserts that this claim was raised before EEO Investigator Flores, at page 2, paragraph III(c) of his report. Nowhere in that paragraph does EEO Investigator Flores assert that plaintiff was making such a claim. See Exhibit C-7 at 2. Plaintiff cannot make out a prima facie case of retaliation. No evidence demonstrates that a vacancy was available in Home Base Home Care at that time. See Exhibit C-8. See also Exhibits C-9, C-10. Because no position was open, plaintiff cannot make out a prima facie case of retaliation. See Stella, 284 F.3d at 144. Defendant had legitimate non-retaliatory reasons for its actions. No position was available, but even if one was, the Home Base Home Care position was a staff nurse position, and plaintiff could not perform the duties of a staff nurse due to her back condition at that time. See Exhibit C-11 at 32, lines 22-25. A position in Nursing Education (August 3, 1989) This position appears to be the position of nursing instructor in Nursing Education which became available on August 3, 1989. See Exhibit C-12. Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about

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the claim. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. No evidence demonstrates that plaintiff was qualified for the position. One of the qualifications for the position was a masters degree in nursing or a related field.. See Exhibit C-12. Plaintiff lacked a masters degree in nursing, or in any other field. See Exhibit C-6 at 57, lines 8-19. Cynthia Adamek was hired for the position instead of plaintiff. See Exhibit C-13 at 12. Ms. Adamek had a master's degree. Id. Ms. Adamek was also a high performer. Id. Plaintiff was not a high performer, obtaining only minimally satisfactory performance evaluations. Request for transfer from the Nursing Home Care Unit (August 23, 1989 and September 12, 1989) Plaintiff cannot establish a prima facie case, because she was requesting only a lateral transfer where she would continue to function as a nurse. She suffered no adverse personnel action when her request was denied. Although a transfer from the NHCU to another assignment might have involved some different responsibilities, a mere alteration of job responsibilities does not constitute an adverse employment action. Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10 th Cir. 2000). Moreover, defendant had legitimate nonretaliatory reasons for its actions. Plaintiff requested to be transferred out of the NHCU by memo dated August 23, and 28, 1989. 28

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See Exhibit A-42 at 609-610. On or about September 11, 1989, Judith Wilson responded to Ms. Sandle's request, stating: "Your request for transfer will be considered after areas noted for improvement in your last proficiency have been demonstrated and documented." Id. at 605. Plaintiff has no evidence to suggest that the reasons given to her for denying her request for a transfer were a pretext for discrimination or retaliation. See Exhibit A-8 at 116-117, 120-121. Request to take a class in critical care (August 8, 1989 and September 12, 1989) Defendant had legitimate non-retaliatory reasons for denying plaintiff's request to take a critical care course. Judy Wilson, the Assistant Chief of the Nursing Service, denied the request, stating in her written denial: I declined to accept you into the critical care course scheduled for October 10, 1989. This decision was made after reviewing your last proficiency dated May 1987, and considering that you have not worked in nursing for almost two years. See Exhibit A-42 at 605. Plaintiff did not suffer any adverse employment action when she was denied the opportunity to take the critical care training course. She experienced no "significant change in employment status," Ellerth, 524 U.S. at 761, when her request to take the critical care course was denied. But assuming she did suffer an adverse employment action, defendant has articulated a legitimate nonretaliatory reason for its actions. Ms. Wilson declined to choose plaintiff for the training course because of her prior 29

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performance issues and the fact that she had not worked in the Nursing Service for almost two years. Plaintiff has no evidence to suggest that these reasons were a pretext for discrimination or retaliation. See Exhibit A-8 at 116-117, 120-121. The position of Nuclear Medicine Technologist (August 8, 1989) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim or included it in a written administrative complaint. She states she exhausted the claim in "Complaint (¶¶ 2, 3) filed on 11/29/89." See Exhibit A-15 at 4, but it does not appear in paragraphs 2 or 3 of that administrative complaint. See Exhibit A-29. She also asserts that this claim was raised before EEO Investigator Flores, at page 2, paragraph III(d), but it does not appear anywhere in that paragraph. See Exhibit C-7 at 2. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. In August 1989 plaintiff had limited experience in the Nuclear Medicine field. Her only work experience was for a period of 252 days from July 1, 1970 to June 30, 1971 as a trainee. See Exhibit C-14 (Second Sanchez declaration) at 2-3. This was insufficient to meet the one-year experience requirement for the position. Consequently, she was not qualified for the position. Id. A position on the EEO counselor committee (August 19, 1989) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely

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contacted an EEO counselor about the claim, and although she contends she exhausted the claim in "Complaint (¶¶ 2, 3) filed on 11/29/89," see Exhibit A-15 at 4, it does not appear in those paragraphs. See Exhibit A-29. She also asserts that this claim was raised before EEO Investigator Flores, at page 2, paragraph III(d) of his report, but it also does not appear in that paragraph. See Exhibit C-7 at 2. Plaintiff cannot establish a prima facie case of retaliation, because she did not suffer any materially adverse consequences as a result of not receiving the position. The position was not a paid position. See Exhibit C-6 at 185, lines 18-21. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. To qualify for this position, an individual was required to be an EEO counselor. The work experience in plaintiff's OPF does not reflect she had any specialized experience as an EEO Specialist at any grade level. See Exhibit C-14 (Second Sanchez declaration) at 2-3. Consequently she was not qualified for this position. A position of Staff Nurse in the Center Program of the Dialysis Unit (September 23, 1989) Plaintiff failed to exhaust this claim. She states that she was informed on October 19, 1989 that she was denied the position. See Exhibit C-6 at 196, lines 1-4 and 18-22. No evidence demonstrates that she timely contacted an EEO counselor about the claim following the October 19, 1989 denial. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. 31

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Plaintiff was not qualified for the position. A year of "med./surg. experience" was required. See Exhibit C-1 at 33, line 25 to 34, line 11. Plaintiff's resume and application materials do not demonstrate that she had a year of professional experience in "med./surg." She also had no prior experience performing dialysis or dialysis-related work in 1978. See Exhibit C-6 at 195, lines 5-25. The position was a staff nurse position. See Exhibit C-6 at 196, lines 1-4. Plaintiff was not qualified to fill the position, because she was not able to perform the physical duties of a staff nurse at that time, particularly given that she re-injured her back only a month earlier, on September 12, 1989. Id. at 200, lines 3-7. The position of Night Relief Supervisor (September 29, 1989) Plaintiff failed to exhaust this claim. She alleges that she contacted an EEO counselor regarding the position some time in October 1989, see Exhibit C-6 at 206, lines 7-10, but no evidence supports her assertion. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. Plaintiff was not qualified for the position. The position was a staff nurse position, and plaintiff could not perform the physical requirements of the position due to her re-injury of her back on September 12, 1989.. The position of Geriatric Evaluation Unit Coordinator (October 20, 1989) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely

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contacted an EEO counselor about the claim, and she did not include the claim in any formal written administrative complaint. She states she exhausted the claim in "Complaint (¶¶ 2, 3) filed on 11/29/89", see Exhibit A-15 at 5, but it does not appear in either of those paragraphs of that administrative complaint. See Exhibit A-29. Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. She was not qualified for the position. The position is a staff nurse position. See Exhibit C-13 at16. Plaintiff was suffering from her re-injured back in October 1989, and could not perform the duties of a staff nurse at that time. Termination of Light Duty (November 14, 1989) Plaintiff failed to exhaust her claim regarding this claim. No evidence demonstrates that she timely contacted an EEO counselor. The claim is not included in any of her formal written administrative complaints. The claim is not included anywhere within the claims identified and addressed by the Administrative Judge at the August 2001 administrative hearing. See Exhibit A-34 at 2-7. Defendant had legitimate, non-retaliatory reasons for terminating this light duty detail. On or about September 12, 1989, approximately six weeks after she returned to work from her year and a half absence, Ms. Sandle suffered an injury while lifting a patient to transfer the patient from a wheelchair to a bed. On September 19, 1989, her physician, Dr. Rodgers, wrote a letter stating: "[T]his is to document that Lillian Sandle

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was seen in my office this date and I have advised her she may return to work provided no repetitive heavy lifting is required. If this work is not available, then she is to be off of work until I see her again in one week." See Exhibit A-51at 20. Consequently, plaintiff was placed on light duty in the NHCU. On October 3, 1989, Martha Weeks wrote a memo to the Chief of Personnel. In her letter, she stated the following: Ms. Lillian Sandle claimed a work related injury on Tuesday, September 9, 1989. She has presented a doctor's statement requesting light duty. She has now used approximately one week of COP and two weeks of light duty for this claimed injury. Each doctor's statement has further restricted activity. This is very difficult to accommodate in the NHCU. Id. at 16. She further stated that "the NHCU using up to eight weeks as a benchmark, has not accommodated any employee more than eight weeks of light duty for any injury, work related or non-work related." Id. She also requested "consultation and support" in limiting Ms. Sandle's light duty time to eight weeks. Id. On October 19, 1989, Michael Winn, the Personnel Officer, responded to Ms. Weeks' memo. In his response, he advised that "although no specific time limitations on light duty placements are presently established, a service does not have an obligation to continue such assignments indefinitely." Id. at 11. On or about October 31, 1989, Rebecca Williams wrote a memo to personnel advising that Nursing Services could no longer accommodate Ms. Sandle's light duty "as

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of 4:00 p.m. on November 14, 1989." Id. at 9. Nevertheless, on or about November 24, 1989, another light duty temporary assignment was located for plaintiff, this one in Medical Administration Service ("MAS"), and she was placed on that assignment. See Exhibits B-77, B-78. Thus, she was only displaced from a light duty assignment for a few days before beginning another assignment. Consequently she cannot show that she experienced any adverse employment action and cannot establish a prima facie case. Assuming she is deemed to have met her burden of establishing a prima facie case, defendant had legitimate nonretaliatory reasons for discontinuing her light duty assignment in the Nursing Home Care Unit and initiating her next light duty assignment in MAS. Plaintiff could only perform very limited duties in her light duty assignment in the NHCU. As Ms. Weeks noted, "this is very difficult to accommodate in the NHCU." Id. at 16. Plaintiff cannot show pretext. The position of Patient Health Education Coordinator/ Administrative Assistant (February 27, 1990) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim. She never included this claim in any formal written administrative complaint. Although she states she exhausted the claim in "Complaint (¶ 3) filed on 6/6/90", see Exhibit A-15 at 5, it does not appear in paragraph 3 of that administrative complaint. See Exhibit A-31. 35

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Defendant had legitimate, non-retaliatory reasons for denying plaintiff the position. She was not qualified for the position. The position required a Master's degree, preferably in education or a related field. See Exhibit C-15. Plaintiff does not possess any master's degree. See Exhibit A-24. Mariam Frank was hired for the position. See Exhibitn C-1 at 34-35. Ms. Frank was a nurse practitioner and had extensive experience in health education, as well as administrative skills and excellent interpersonal skills. Id. Plaintiff lacked patient education experience and the administrative skills to operate a department, and she had a marginal proficiency record. Id. Termination of Light Duty Detail (November 17, 1990) Plaintiff failed to exhaust her administrative remedies regarding this claim. No evidence demonstrates that she timely contacted an EEO counselor. The claim is not included anywhere within the claims identified and addressed by the Administrative Judge at the August 2001 administrative hearing. See Exhibit A-34 at 2-7. She did not suffer an adverse employment action when her detail in Medical Administration Services ("MAS") was terminated after one year, in November 1990. It was only a detail. A temporary or "lateral transfer or the denial thereof, without more, does not constitute an adverse employment action." Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002) (emphasis added) (denial of an "acting" designation cannot be considered an adverse employment action because "this type of temporary designation is

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not one of the terms, conditions, or privileges of employment contemplated by Title VII"); Smith v. District of Columbia, 271 F.Supp.2d 165, 172 (D.D.C.2003) (temporary reassignment without diminution in pay and benefits is not an adverse employment action). Plaintiff retained her same pay while on the detail. See Exhibit C-16 (Sanchez transcript) at 17-18. Defendant had legitimate, non-retaliatory reasons for terminating this light duty detail. It did not appear that plaintiff would be able to return to her position in the Nursing Service, due to her injury. The Nursing Service was paying for her salary even though she was performing non-nursing duties on the detail. She was performing work as a claims clerk at the GS-4 level, but was being paid the salary of a registered nurse, which was the equivalent of a GS-9 salary. Because she was detailed, Nursing Service could not backfill her position. This created additional work for staff nurses on the Nursing Service. See Exhibit C-16 at 17-18. The position of Contact Representative (December 1990) Plaintiff failed to exhaust this claim. No evidence demonstrates that she timely contacted an EEO counselor about the claim, or included the claim in any formal written administrative complaint. She states she exhausted the claim in "Complaint (¶ 8) filed on 8/28/91." See Exhibit A-15 at 6. But nowhere in paragraph 3 of that administrative complaint does this claim appear. See Exhibit A-30.

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Defendant had legitimate, non-retaliatory reasons for its actions. Plaintiff lacked the specialized work experience necessary for the position. See Exhibit C-14 at 4. Termination from the VA on June 29, 1991 On August 7, 1989 and September 5, 1989, plaintiff saw her physician, Sheldon Rogers, M.D., and expressed concern about lifting patients. On or about September 12, 1989, approximately six weeks after she returned to work from her approximately year and a half absence, plaintiff suffered an injury while lifting a patient to transfer the patient from a wheelchair to a bed. See Exhibit A-51 at 23-25. On September 19, 1989, Dr. Rogers wrote a letter to the VA, stating: "[T]his is to document that Lillian Sandle was seen in my office this date and I have advised her she may return to work provided no repetitive heavy lifting is required. If this work is not available, then she is to be off of work until I see her again in one week." Id. at 20. On or about September 25, 1989, Martha Weeks wrote a memo, stating: 1) 2) The nurse should not be taking medications that would alter mental status. The physical demands of total patient care involve regular walking, bending, lifting, turning, moving, supporting and positioning of patients. Patient weights range from 75- 300 pounds. The work requires the use of appliances and equipment such as lifts, wheelchairs and walkers. The work requires use of correct body mechanics in order to accomplish these procedures without injury to the employee or patient. The work requires rotation of all shifts to provide 24 hour patient care. The shifts are usually in eight hour time frames five days a week. Inability to meet the above physical expectations as documented by medical statements is considered light duty. 38

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Exhibit A-51 at 19. On September 26, 1989, Dr. Rogers, wrote the Agency, stating: In her work in the east wing, she relates that she has to do at least twice a shift, lifting of most of the patients that she is in charge of. As you know these patients are usually severely disabled and cannot help, in fact often resist efforts at movement. I don't see how her condition can improve if she continues to work under these working arrangements. This letter is being written in regards to the possibility of changing her to a different work situation if possible. Id. at 18. Plaintiff was placed on light duty. On October 3, 1989, Martha Weeks wrote a memo to the Chief of Personnel. In her letter, she stated the following: Ms. Lillian Sandle claimed a work related injury on Tuesday, September 9, 1989. She has presented a doctor's statement requesting light duty. She has now used approximately one week of COP and two weeks of light duty for this claimed injury. Each doctor's statement has further restricted activity. This is very difficult to accommodate in the NHCU. Id. at 16. She further stated that "the NHCU using up to eight weeks as a benchmark, has not accommodated any employee more than eight weeks of light duty for any injury, work related or non-work related." Id. On or about November 27, 1989, plaintiff was assigned a light duty assignment in the Medical Administration Service. On or about January 30, 1990, Dr. Rodgers submitted an updated restriction evaluation. In his evaluation, he indicated that plaintiff could do no crawling, twisting, kneeling, or squatting and noted that plaintiff "should be

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able to work if she does no heavy lifting." Id. at 8. On March 7, 1990, Michael Winn wrote Dr. Rogers and asked if the restrictions were permanent and asked if plaintiff would be able to return to her position as Staff Nurse. Id. at 6. On March 19, 1990, Dr. Rogers responded to the inquiry, stating: I believe that the restrictions as far as her returning to her previous position as a staff nurse would be permanent in that she would not be able to participate in the lifting and bending requirements which are functional requirements of the job. Id. at 5. On or about April 2, 1990, Claire Long wrote a memo to the Selective Placement Coordinator advising that plaintiff would not be able to return to her regular position because of her restrictions and advised the coordinator to "search for permanent placement of Ms. Sandle in other positions at the same or lower grade level." Id. at 4. On October 31, 1990, Rebecca Williams wrote plaintiff advising that her light duty would be terminated effective November 17, 1990. The letter stated: The purpose of light duty is to provide a temporary alternative for injured employees, with the expectation that they will be able to resume their regular duties. * * * There is no documentation to indicate that you may be able to return to your regular position. You may request annual leave, sick leave, and/or leave without pay at a date to commence no later than November 18, 1990. Id. at 2. On or about March 7, 1991, Rebecca Williams requested the initiation of a Physical Standards Board to determine plaintiff's "physical capability." See Exhibit A-

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52. On April 8, 1991, the Board met to review the matter and recommended the completion of a special physical examination. See Exhibit A-53. On April 10, 1991, Fred Salas, the Medical Center Director, wrote to Ms. Sandle directing her to report for a physical examination. On May 9, 1991, Dr. Steven Oboler, the Employee Health Physician, performed the special physical examination of Ms. Sandle. On May 21, 1991, Dr. Oboler submitted the report of his findings which were dated May 17, 1991. See Exhibit A-2. His "final diagnosis of Ms. Sandle's condition was as follows: 1) Lumbosacral strain, chronic intermittent and 2) Systemic lupus erythematosis which was asymptomatic. Id. at 8. He noted that Ms. Sandle has been able to "perform[] her unrestricted nursing duties in the NHCU for only about one month out of the past four years." Id. at 8. He also noted that both Ms. Sandle and her orthopaedic specialist agree that she is unable to do heavy lifting, or repeated bending and that these restrictions are most likely permanent in nature. He further noted that "it is indeed unlikely that she can return to her full duties as a staff nurse in the foreseeable future." Id. In closing he noted that "accommodations that might allow Ms. Sandle to return to limited nursing duties would include 1) no lifting or carrying over 40-45#; and no repeated bending or twisting." Id. The Physical Standards Board convened to consider the matter presented to it. On

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June 4, 1991, the Board issued its recommendation. The board's recommendation stated, "After careful review of Ms. Sandle's medical records and Special Physical exam report, the Physical Standards Board has determined that she is not physically capable of performing the duties of Staff Nurse. Therefore, the Board recommends that she be separated for