Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-CV-02435-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Defendant,

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to F.R.C.P. 56, Plaintiff Lillian F. Sandle moves for summary judgment on liability for violation of the Rehabilitation Act for Defendant's termination of Sandle because of her disability. Sandle states as follows in support of her Motion.

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TABLE OF CONTENTS

INTRODUCTION UNDISPUTED FACTS 1. 2. 3.

1 1

Sandle began working as a Staff Nurse at the VA Medical Center Nursing Home. 1 Sandle injured her back twice and, as a result, was placed in two short light duty positions and on nearly two years of leave without pay. 2 The VA placed Sandle in a year-long light duty position as Claims Clerk; her performance was "clearly above that expected of a fully competent employee 3 After a year of performing well in the Claims Clerk position, the VA terminated Sandle from that position because of her disability. 5

4. 5. 6.

The VA placed Sandle on leave without pay and denied Sandle's requests for reassignment to other positions. 5 The VA terminated Sandle's employment because of her disability. 7 7 8

SUMMARY JUDGMENT STANDARD REHABILITATION ACT STANDARD A. B.

The Rehabilitation Act prohibits discrimination based on disability ­ federal agencies have a heightened duty to be model employers for the disabled. 8 To prevail on her Rehabilitation Act claim, Sandle must show that she (1) is disabled; (2) is otherwise qualified for the position in question; and (3) suffered discrimination because of her disability. 9 9 Sandle is a disabled person within the meaning of the Act, as the VA admits. 9 1. 2. 3. Sandle has a physical impairment that substantially limits her major life activities. 10 Sandle has a record of her physical impairment. Sandle is regarded as being disabled. The position in question is Sandle's Claims Clerk position. The position in question is Sandle's Claims Clerk position, even though the relevant time period is prior to 1992. i 11 11 12 14

ARGUMENT A.

B.

Sandle is otherwise qualified for the position in question ­ Claims Clerk. 11 1. 2.

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3. C. D.

Sandle is otherwise qualified for the Claims Clerk position.

15 16

The VA discriminated against Sandle because of her disability.

Sandle has established a prima facie case of disability discrimination under the Rehabilitation Act. The burden now shifts to Defendant to disprove discrimination, which it cannot do, because of the VA's own admissions. 17 18

CONCLUSION

ii
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INTRODUCTION In the year leading up to October 31, 1990, life was full of promise for Lillian Faye Sandle, a nurse at the local VA Medical Center. After suffering two injuries at work, and nearly two years of unpaid leave, Sandle started a light duty position at the VA in November 1989. For close to a year she performed her duties in a manner that her supervisor called "clearly above" what was expected. But on October 31, 1990, the VA told Sandle she was terminated ­ because of her disability ­ even though her performance exceeded expectations. "Irony" may be one of the more misused words in the English language, but here it fits: the VA, the federal agency charged with caring for disabled veterans, would not take care of its own disabled nurse.

UNDISPUTED FACTS 1. Sandle began working as a Staff Nurse at the VA Medical Center Nursing Home. Sandle began working as a Staff Nurse in the Nursing Home Care Unit of the Denver Veterans Affairs Medical Center ("VA Medical Center") in July 1986.1 Prior to that, she worked for a similar medical center of the U.S. Department of Veterans Affairs ("VA") in Marlin, Texas.2 Sandle had earned a bachelor's degree in nursing, trained in the field extensively, and was a Registered Nurse.3

1 2

Exh. 1 (Defendant's Production ("Def.") 012254-55) at 1 ("Professional Experience"). Id. 3 Exh. 2 (Def. 013445-52) at 1; Exh. 3 (Def. 013000-013007) at 1 ("BACKGROUND"). 1
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2. Sandle injured her back twice and, as a result, was placed in two short light duty positions and on nearly two years of leave without pay. On January 7, 1987, Sandle injured her back while lifting a patient.4 As a result, she was placed in a light duty position in the VA Nursing Home from January 18 through March 7, 1987.5 A VA memorandum noted, regarding this short-term accommodation of Sandle's disability, that "[i]t was very demoralizing for the staff to have someone on light duty for this extended period of time."6 Several months after the injury, on August 4, 1987, Dr. Stewart K. Weinerman of Colorado Orthopedic Consultants examined Sandle and wrote to the VA Medical Center, stating that Sandle should not lift anything over 25 pounds and that "it would probably be appropriate at this time for someone in the VA system to try to find her a less vigorous type job as she is an intelligent lady and does want to work."7 The VA placed Sandle on long-term leave without pay beginning November 27, 1987.8 Another of Sandle's physicians at Colorado Orthopedic Consultants, Dr. Barry L. Lindenbaum, wrote to the VA Medical Center in January 1988, and stated, "[o]nce again, I asked for her to be trained for a lighter type of work within her training skills."9 Sandle's condition eventually improved and she returned to Staff Nurse duty nearly two years later.10 On September 12, 1989, just over a month after returning,

4 5

Id. at 1 ("Back Injury #1"). Exh. 4 (Def. 011341) at ¶ 2. 6 Id. 7 Exh. 5 (Def. 011294) at ¶¶ 1 & 2. 8 Exh. 3 at 2 ("Imaging Studies"). 9 Exh. 6 (Def. 011309) at ¶ 1. 10 Exh. 3 at 3 ("BACKGROUND, continued" and "Back Injury #2"). 2
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Sandle re-injured her back while transferring a patient.11 Sandle was again placed in a short light duty position, this time in Nursing Service.12 A VA memorandum, dated October 3, 1989, less than one month after the second injury, requested from the VA Chief of Personnel, "consultation and support in limiting the length of light duty time to 8 weeks on this most recent claim."13 The VA Medical Center terminated this light duty assignment on November 14, 1989.14

3. The VA placed Sandle in a year-long light duty position as Claims Clerk; her performance was "clearly above that expected of a fully competent employee." After the termination of these two short-term light duty assignments, Sandle was placed in the position of Claims Clerk in Medical Administration Service on November 27, 1989.15 This position entailed numerous administrative tasks and was primarily sedentary.16 The VA selected this position for Sandle because it "would be able to meet her medical restrictions and she would perform work within her knowledge, skills, and abilities."17 In performing the Claims Clerk position, Sandle "was doing work in support of the VA's mission, and particularly in the medical administration service. . . ."18

11 12

Id. ("Back Injury #2"). Exh. 7 (Def. 011349) at ¶ 1; Exh. 4 at ¶ 1. 13 Exh. 4 at ¶¶ 1, 5. 14 Exh. 7 at ¶ 1. 15 Exh. 8 (Def. 013348) at ¶ 1. 16 Exh. 9 (Def. 013508-12). 17 Exh. 10 (30(b)(6) Deposition of Edward Sanchez (on behalf of the VA)) at 27:16-28:1. 18 Id. at 32:5-13. 3
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And indeed, Sandle performed the work of the VA well; in a supervisory appraisal of Sandle covering her entire tenure in the Claims Clerk position, her supervisor and her reviewer rated her according to five factors or job elements.19 As to four of those five factors, Sandle's performance was "clearly above that expected of a fully competent employee . . ." and as to the other factor, her performance was "to the full extent expected of a thoroughly competent employee. . . ."20 Her supervisor and reviewer, citing numerous specific instances, made the following remarks about Sandle: · · · · · · "very knowledgeable" "demonstrates the abilities to interpret [and] explain" "displays tact, courtesy and compassion at all times" "presents a professional demeanor" "written communication" is "clear and concise" "demonstrated the ability to work well under stressful situations, recognized potentially dangerous situations and complete all work under time constrictions" "supportive to staff and co-workers" able "to complete assigned tasks effectively and efficiently"21

· ·

19 20

Exh. 11 (Def. 011596-601) at 2-4. Id. 21 Id. at 5-6. 4
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4. After a year of performing well in the Claims Clerk position, the VA terminated Sandle from that position because of her disability. The VA terminated Sandle from the Claims Clerk position effective November 17, 1990 on the ground that Sandle's disability would not allow her to return to the Staff Nurse position: "The purpose of light duty details 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."22 However, in March of 1990, almost eight months prior to Sandle's termination from the Claims Clerk position, the VA received a letter from Sandle's physician (which was cited shortly thereafter by VA memoranda), advising the VA that Sandle would not be able to return to her regular position of Staff Nurse because of her disability.23

5. The VA placed Sandle on leave without pay and denied Sandle's requests for reassignment to other positions. While she was still in the Claims Clerk position, a VA Medical Center memorandum stated that the VA would "search for permanent placement of Ms. Sandle in other positions at the same or lower grade."24 The VA Medical Center and the VA had a policy of reassigning disabled employees to positions they could perform.25

22 23

Exh. 12 (Def. 012911) at ¶¶ 1-2 (emphasis in original). Exh. 13 (Def. 013515-18). 24 Id. at 4 ¶ 2. 25 Id.; Exh. 14 (Def. 014042-50) at 7 ¶ D3; Exh. 15 (Def. 014114-16) at 3 ¶ 7. 5
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After termination from the Claims Clerk position, the VA placed Sandle on leave without pay beginning November 18, 1990.26 In her required application for this leave, Sandle declared: "This request for LWOP [(leave without pay)] due to on the job injury, is in protest. I am able to work, I want to work and can work where there is no heavy lifting."27 This was not Sandle's first request for work: prior to that, on July 24 and August 23, 1989, Sandle requested consideration for several specific positions and departments, and requested consideration generally for any position "that does not require a large amount of physical lifting."28 Beyond these broad requests, Sandle made numerous narrow requests for specific positions throughout 1989 and 1990.29 And although the VA now admits that Sandle "may have met the basic qualification requirements" for some of these positions, she was not reassigned.30 Though she was told in April 1990 that, regarding one position, the "decision [not to hire you] does not indicate that you are not highly qualified to continue in your present position."31 Finally, a VA memorandum dated May 17, 1991, and written by the VA Medical Center Employee Health Physician, stated that Sandle wished to work for the VA in some capacity, and further stated that she could be accommodated to do so, as

Exh. 3 at 4. Exh. 16 (Def. 011400). 28 Exh. 17 (Def. 013836) ¶¶ 3 & 4 and Exh. 18 (Def. 013341-42) ¶¶ 3-6. 29 Exh. 11; Exh. 19 (Plaintiff's Production ("Pl.") S000430; Def. 011569; Pl. S000456; Pl. S000271; Pl. P004237; Pl. S000478; Pl. P004200; Pl. P004201; Pl. P004203). 30 Exh. 20 (Defs.' Response to Pl.'s Third Set of Interrogatories) at 5 (Personnel Assistant and Program Clerk). 31 Exh. 19 at 6 (Pl. S000478).
27

26

6
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long as the position entailed no lifting or carrying over 40-45 pounds and no repeated bending or twisting.32

6. The VA terminated Sandle's employment because of her disability. "REASON FOR TERMINATION: DISABILITY" ­ "Effective Date 06-29-91" ­ so states the notification of personnel action recording Sandle's termination from the VA.33 The VA Medical Center wrote to Sandle on June 13, 1991 and stated she would be terminated on June 29, 1991 because "[y]ou have been determined to be physically incapable of performing the duties of the position of Staff Nurse. . . ."34 She was informed by the VA Medical Center, over a year later, "that the decision to separate you for disability from your position of Staff Nurse has been reviewed and sustained by the Chief Medical Director."35

SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56, summary judgment is proper where the moving party demonstrates that no genuine issue exists as to any material fact, and is therefore entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

32 33

Exh. 3 at 6 and 8. Exh. 21 (Pl. P004569). 34 Exh. 22 (Pl. P002906) at 1 ¶ 1. 35 Exh. 23 (Pl. P000643-45) at 1. 7
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REHABILITATION ACT STANDARD A. The Rehabilitation Act prohibits discrimination based on disability ­ federal agencies have a heightened duty to be model employers for the disabled. Under the Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, "federal employers are charged with a greater duty to ensure the employment of disabled workers than are federal grantees or private employers." Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997) (citing Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410 (1979)). "`[T]he EEOC-the agency charged with enforcing section 501-has issued a directive providing that `each agency has a special obligation to provide reasonable accommodation for employees who become disabled and to identify positions within the agency or in other agencies in which the individuals can function in spite of their disabilities.''" Id. (quoting Taylor v. Garrett, 820 F. Supp. 933, 936 (E.D. Pa. 1993) (in turn quoting Equal Employment Opportunity Management Directive No. EEOMD-712 at 9 (Mar. 9, 1983))). Moreover, the federal government is directed to "become a model employer of individuals with handicaps." 29 C.F.R. § 1614.203(a); see also Woodman, 132 F.3d at 1344 n.14 ("`There is little to stop the federal government from expending considerable money and effort to become a model employer of handicapped individuals, when that is its chosen policy.'") (quoting Lex K. Larson, Employment Discrimination § T106.44(a) (2d ed. 1997)).

8
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B. To prevail on her Rehabilitation Act claim, Sandle must show that she (1) is disabled; (2) is otherwise qualified for the position in question; and (3) suffered discrimination because of her disability. In order to establish a prima facie case of disability discrimination under Section 501 of the Rehabilitation Act, Sandle must prove that: (1) she is a disabled/handicapped person within the meaning of the Act; (2) she is otherwise qualified for the position in question; and (3) she was discriminated against because of the disability/handicap. Woodman, 132 F.3d at 1338. This standard must be viewed through the lens of "the heightened duties ascribed to federal employers under section 501." Id.36 Once Sandle establishes a prima facie case, the burden then shifts to Defendant to disprove disability discrimination. See Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981)).

ARGUMENT A. Sandle is a disabled person within the meaning of the Act, as the VA admits. The applicable regulations promulgated pursuant to the Rehabilitation Act define a "handicapped" or "disabled" person 37 as "one who (1) [h]as a physical or

36

See also Woodman, 132 F.3d at 1338 n.6 ("Because of the affirmative action duties placed upon federal employers under section 501, courts should be wary of applying cases interpreting federal grantees' duties of reasonable accommodation under section 504 to cases brought under section 501.") 9

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mental impairment which substantially limits one or more of such person's major life activities; (2) has a record of such an impairment, or (3) is regarded as having such an impairment." 29 C.F.R. § 1613.702(a) (1991) (emphasis added); accord 42 U.S.C. § 12102(2). The VA's own admissions satisfy any of these three disjunctive prongs.

1.

Sandle has a physical impairment that substantially limits her major life activities.

Sandle's back injury fits squarely within the definition of a physical impairment. Notably, the regulations include "working" and "performing manual tasks" as major life activities. 29 C.F.R. § 1613.702(c) (1991). Sandle's physician, as well as the VA Medical Center's physician, repeatedly acknowledged that Ms. Sandle had such a physical impairment. See, e.g., Exhs. 3, 13 and 21 - 23. Specifically, in a VA memorandum, the VA Medical Center Employee Health Physician stated that "Ms. Sandle readily admits that her chronic back condition has profoundly affected her life. She currently lives with her adult daughter and son, who `do all the heavy work' including lifting the groceries in and out of her car and household chores." See Exh. 3 at 4-5. The same memorandum states, "it is my professional opinion that because of Ms. Sandle's chronic low back condition, it is indeed unlikely that she can return to her full duties as a staff nurse in the foreseeable future." Id. at 8. As such, Sandle is a disabled person under the Act.

37

The 1992 amendments to the Rehabilitation Act substituted "disability" for "handicap." See Woodman, 132 F.3d at 1339 n.8. 10

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2.

Sandle has a record of her physical impairment.

Sandle's physical impairment is well documented. See, e.g., Exhs. 3, 13 and 21-23. As such, Sandle is a disabled person under the Act.

3.

Sandle is regarded as being disabled.

The VA terminated Sandle due to her disability. See Exhs. 21-23. It therefore cannot be disputed that she "was treated by an employer" as having a physical impairment that inhibited her ability to work. See 29 C.F.R. § 1613.702(e). As such, Sandle is a disabled person under the Act. Therefore, as a matter of law, under any of these three prongs, Sandle is a disabled person under the Rehabilitation Act.

B. Sandle is otherwise qualified for the position in question ­ Claims Clerk. To determine whether an individual is "otherwise qualified" within the meaning the Rehabilitation Act, the Court "must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue." Woodman, 132 F.3d at 1338-39. Furthermore: According to the EEOC regulations implementing the Rehabilitation Act, a "[q]ualified individual with handicaps" is "an individual with handicaps who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who . . .

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[m]eets the experience or education requirements . . . of the position in question." Id. at 1339 (quoting 29 C.F.R. § 1614.203(a)(6) (1996)) (emphasis added).

1.

The position in question is Sandle's Claims Clerk position.

In Woodman, the Tenth Circuit held that where an employee of a federal agency is placed in a light duty position, even if it is a temporary one, that position is the "position in question" relevant to determining whether an employee is "otherwise qualified for the job" under the Rehabilitation Act. See Woodman, 132 F.3d at 1337-41. In order to fully understand the Tenth Circuit's holding, it is best to start with the two seminal district court cases on the topic, Taylor and Valdez, both of which "held that a plaintiff need not be qualified to perform the duties of the position he was originally hired for in order to prove that he was `otherwise qualified.' Instead, the plaintiff can show that he is `otherwise qualified' if he can perform the duties of the light duty position to which he was reassigned." Karnes v. Runyon, 912 F. Supp. 280, 286 (S.D. Ohio 1995) (holding that "the position [plaintiff] held at the time of the alleged discrimination is more appropriate for determination whether she `can perform the essential functions of the job in question.'" (citing Taylor v. Garrett, 820 F. Supp. 933 (E.D. Pa. 1993); Valdez v. Albuquerque Pub. Sch., 875 F. Supp. 740 (D.N.M. 1994)). Taylor held that when an employee is placed in a light duty position, even where, as here, the light duty position is temporary, that is the position in question: "the relevant inquiry must be his qualifications to perform that work in which he was engaged when the alleged discrimination occurs." Taylor, 820 F. Supp. at 938 (emphasis 12
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added); see also Valdez, 875 F. Supp. at 745; Abrams v. Nicholson, No. 8:04-CV-492T-17EAJ, 2006 WL 2244920, *2 (M.D. Fla. Aug. 4, 2006) ("if an employee can not perform the duties of a position they were originally hired for, but they can essentially perform the duties of a light duty position where new accommodations were put into place to allow the employee to successfully perform, then the employee has shown that they are `otherwise qualified' within the meaning of the act."). In Woodman, which relies on Taylor for the proposition above, the Court reasoned that because a federal agency must offer reassignment to disabled employees who are unable to perform the essential functions of their original positions, requiring a disabled plaintiff to prove that she is qualified to perform her original position "would disqualify the very individuals the regulation is intended to benefit." Woodman, 132 F.3d at 1340. Ultimately, the Woodman court found that the relevant position in question in that case was the temporary light duty position to which the plaintiff had been assigned. See id.38 Here, Sandle was assigned to a light duty position ­ Claims Clerk ­ for nearly one year. See Exh. 12 ¶ 1. The VA terminated Sandle from that position, and then from her employment from the VA, because of her disability. See Exhs. 12 and 2123. Claims Clerk is the most recent and final position that Sandle held at the VA. See id. Notably, in the almost three years preceding Sandle's employment as Claims Clerk (January 1987 through November 1989) she worked "just over a month" as a Staff Nurse, and was otherwise placed in two short-term light duty positions and on long-term
38

See also Woodman, 132 F.3d at 1337 (describing as the relevant position "the temporary limited duty job assignment. . . ."). 13

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leave without pay. See Exh. 3 at 1-4. Given that she began working at the VA Medical Center in July 1986, Sandle actually worked longer in the Claims Clerk position than in her original Staff Nurse position, or any other position at the VA Medical Center. See id. Because Sandle was employed as a Claims Clerk at the time of her discriminatory treatment, that position is the "position in question" under the Rehabilitation Act. See Woodman, Taylor and Valdez, supra.

2.

The position in question is Sandle's Claims Clerk position, even though the relevant time period is prior to 1992.

Since the relevant events in this case occurred prior to 1992, another of Woodman's holdings is critical. Prior to 1992, when Congress amended the Rehabilitation Act, "a majority of courts [had] held that no statutory duty to attempt reassignment existed," but if a federal agency's policies provided for attempted reassignment, then any light duty position to which a disabled employee is assigned constitutes the "position in question." Woodman, 132 F.3d at 1340 (citing School Bd. v. Arline, 480 U.S. 273, 289 n. 19 (1987) (a federal employer "cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies."); Rhone v. U.S. Dep't of the Army, 665 F. Supp. 734, 744 (E.D. Mo. 1987) (granting summary judgment on liability in favor of a plaintiff on a Rehabilitation Act claim where the federal employer did not reassign a disabled employee, even though the agency's policies provided for reassignment)). Here, the VA and VA Medical Center had clear policies providing for attempted reassignment, prior to the 1992 amendment, that applied to Sandle. See Exh. 14
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13 at 4 ¶ 2; Exh. 14 at 7 ¶ D3; Exh. 15 at 3 ¶ 7. Because of these VA and VA Medical Center policies, the "position in question" is Sandle's Claims Clerk position. See Woodman, Arline and Rhone, supra.

3.

Sandle is otherwise qualified for the Claims Clerk position.

The VA placed Sandle in the position of Claims Clerk in Medical Administration Service because the position "would be able to meet her medical restrictions and she would perform work within her knowledge, skills, and abilities." See Exh. 10 at 27:16-28:1. The VA recognizes that in performing the Claims Clerk position, Sandle "was doing work in support of the VA's mission, and particularly in the medical administration service. . . ." Id. at 32:5-13. Sandle's performance proved what the VA believed: that Sandle would be able to perform work within her knowledge, skills, and abilities, notwithstanding her disability. In the Claims Clerk position, Sandle excelled ­ in a supervisory appraisal of Sandle, her supervisor and her reviewer rated her according to five factors or job elements. See Exh. 11 at 2-4. As to four of those five factors, Sandle's performance was "clearly above that expected of a fully competent employee . . ." and as to the other factor, her performance was "to the full extent expected of a thoroughly competent employee. . . ." Id. In this review, Sandle's supervisor and reviewer provided a dozen concrete examples demonstrating that Sandle's performance was clearly above that of a thoroughly competent employee, and that she was able "to complete assigned tasks effectively and efficiently." Id. at 5-6.

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Given that the VA selected Sandle for the Claims Clerk position because it believed she was qualified to perform the work, and given that Sandle's own supervisor and reviewer at the VA Medical Center plainly state that Sandle's performance as a Claims Clerk exceeded expectations for a person in that position, it cannot be disputed that in spite of her disability, Sandle was qualified for, and able to perform the essential functions of, her position as Claims Clerk (and any similar position, for that matter).39 Furthermore, not only was she able to do so "without endangering the health and safety of [herself] or others," Woodman, 132 F.3d at 1339, she was able to "work under stressful conditions, recognize[] potentially dangerous situations and complete all work under time constrictions." Id. at 5 ¶ 4 (emphasis added). Therefore, as a matter of law, Sandle is otherwise qualified for the position in question under the Rehabilitation Act.

C. The VA discriminated against Sandle because of her disability. Finally, Sandle must prove that she was discriminated against because of her disability. Woodman,132 F.3d at 1338. The notification of personnel action recording Sandle's termination from the VA states: "REASON FOR TERMINATION: DISABILITY" Exh. 21 ("Remarks"). The VA Medical Center wrote to Sandle on June 13, 1991 and stated that she would be terminated on June 29, 1991 because she was "determined to be physically incapable of performing the duties of the position of Staff Nurse. . . ." Exh. 22 at 1 ¶ 1. Sandle was informed by the VA Medical Center, over one

39

The Claims Clerk position description may be found in Exhibit 9. 16

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year later, "that the decision to separate you for disability from your position of Staff Nurse has been reviewed and sustained by the Chief Medical Director." Exh. 23 at 1 (emphasis added). This is the same reason why Sandle was terminated from her position as Claims Clerk. See Exh. 12 ¶ 2. Simply put, the VA cannot dispute that it terminated Sandle from the Claims Clerk position and from her employment with the VA due to her disability. Therefore, as a matter of law, the VA discriminated against Sandle based on her disability under the Rehabilitation Act.

D. Sandle has established a prima facie case of disability discrimination under the Rehabilitation Act. The burden now shifts to Defendant to disprove discrimination, which it cannot do, because of the VA's own admissions. Based on all of the above, Sandle has established a prima facie case of disability discrimination. See Williams, 79 F.3d at 1005. The burden now shifts to Defendant to attempt to overcome Sandle's case. Defendant cannot meet its burden because of the VA's own admissions that: (1) Sandle is disabled; (2) Sandle performed the Claims Clerk position in an manner that exceeded expectations; and (3) the VA terminated Sandle from the Claims Clerk position and from her employment with the VA because of her disability. See ARGUMENT §§ A-C, supra. Thus, Sandle is entitled to summary judgment on her claim for violation of the Rehabilitation Act based on discriminatory termination.

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CONCLUSION For the reasons stated above, the Court should enter partial summary judgment against Defendant for liability for violation of the Rehabilitation Act due to the VA's discriminatory termination of Sandle because of her disability. The Court should order a trial on damages and other relief to which Sandle is entitled due to this violation.

Respectfully submitted this 1st day of September, 2006. HOGAN & HARTSON L.L.P.

s/ Dugan Bliss Sean R. Gallagher Dugan W. Bliss 1200 Seventeenth Street, Suite 1500 Denver, CO 80202 Telephone: (303) 899-7300 Fax: (303) 899-7333 E-mail: [email protected] [email protected] Attorneys for Plaintiff Lillian F. Sandle

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

Document 242

Filed 09/01/2006

Page 22 of 22

CERTIFICATE OF SERVICE This is to certify that on this 1st day of September, 2006, I electronically filed the foregoing PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Michael Conrad Johnson U.S. Attorney's Office ­ Denver, Colorado 1225 17th Street, Suite 700 Denver, Colorado 80202 [email protected]

Magistrate Judge Patricia A. Coan United States District Court 901 19th Street Denver, Colorado 80294 [email protected]

s/ Dugan Bliss

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