United States District Court, W.D. Louisiana, Shreveport Division
CAROL T. DEAN
STATE OF LOUISIANA
S. MAURICE HICKS, Jr., Magistrate Judge.
Before the Court is a Motion for Summary Judgment filed by the defendant, The State of Louisiana, through the Department of Children and Family Services ("the Department"/ "DCFS") (Record Document 32). Defendant contends it is entitled to summary judgment because there is no genuine dispute of material fact regarding whether the plaintiff received a reasonable accommodation. Plaintiff opposes this motion, contending that she never received an agreed upon accommodation as required by the ADAAA.
For the following reasons, the Court hereby DENIES defendant's Motion for Summary Judgment (Record Document 32).
The following factual background is drawn from the statement of facts contained in Defendant's Motion for Summary Judgment. Most of these facts are uncontested. Any contested facts are cited to the original document in the record. Plaintiff, Carol Dean, filed this action for damages pursuant to the Americans with Disabilities Act as amended by Americans with Disabilities Amendments Act of 2008 (ADAAA), 42 U.S.C.A. §12101, complaining of major discrimination based upon disability in employment by constructive discharge and failure to provide timely and reasonable accommodations. Ms. Dean was employed by the Louisiana Department of Social Services (currently titled the Louisiana Department of Children and Family Services) beginning in December of 2001. (Record Document 32-1). Ms. Dean had problems with trigger finger syndrome on both hands as well as carpal tunnel syndrome on the right hand. During February of 2010, Ms. Dean had surgery for her trigger finger syndrome. Following the surgery, Ms. Dean returned to work with no limitations in March 2010. A second surgery was scheduled to address both the carpal tunnel syndrome and trigger finger on her right hand for June 2, 2010. Ms. Dean informed her supervisor, Larry Barbee, that she needed FMLA leave beginning on June 1, 2010 for her surgery. The forms were completed for FMLA and the leave was approved. The procedures were postponed and performed on June 11, 2010. Ms. Dean returned to see her doctor, Dr. Ritter, on June 22, 2010, and was provided with a Work Restriction Form completed by the doctor's office. The Work Restriction Form contained a work limitation from July 12, 2010 until August 25, 2010, limiting her to an ergonomic work station and a vertical mouse. It also contained a recommendation that "Voice recognition system (e.g. Dragon Speaking) would be beneficial" and to limit typing to 4 hours daily, up to 2 hours at a time.
Soon after the June 22, 2010 Work Restriction Form was presented to Mr. Barbee, a meeting was held between Ms. Dean, Mr. Barbee and James Goudeau, the Programs Operations Manager for the Bossier Parish Child Welfare Office. The meeting was held to discuss Ms. Dean returning to work, and Mr. Goudeau was provided with a copy of the Work Restriction Form. There was discussion about whether Ms. Dean could be provided this accommodation but that she could not return to work on limited duty. In her deposition, Ms. Dean stated that Mr. Goudeau said he did not have to provide any"accommodation, " and that she couldn't return to work on limited duty. Ms. Dean did acknowledge in her deposition that by the end of the meeting, Mr. Goudeau stated the requested accommodations would be submitted to the regional office and HR would make the decision. Ms. Dean contests this fact, stating that when she met with Mr. Goudeau on July 14, 2010, she was told that he would not forward the recommendations of her doctor because they were not in the form of a prescription. (Record Document 41-2, Exhibit A-2 at page 85:15-19).
Ms. Dean had a follow up appointment with Dr. Ritter on August 10, 2010, and was provided with a second Work Restriction Form, requesting she use a vertical mouse, ergonomic work station, and voice recognition software. After speaking with her supervisor, Mr. Barbee, she was informed that her FMLA leave had been extended to November 10, 2010.
On August 11, 2010, the work restriction form was apparently scanned on the DSS/DCFS computer system and sent via email to Hope Davis, HR analyst. Ms. Davis sent an email response that she was working with IT on the voice recognition device, but had not heard anything back from them. According to Ms. Davis, no request for accommodation was denied, unless there was a very high cost and the expense was unreasonable. The Dragon Speak program would have cost $173.20 and, therefore, it would have been approved. On September 28, 2010, Hope Davis sent an email to Connie Wagner, deputy assistant secretary of field services, who was one of the people responsible for approving expenditures for pending ADA accommodations. Ms. Wagner responded that Ms. Davis needed to contact Denise Fair for approval. It is not clear whether Ms. Davis made this request, although she stated that she didn't remember but would have done it because she was told to do so.
On October 1, 2010, Ms. Davis left to work as the Human Resources Director of a different state agency. Debra Wilson filled Ms. Davis's position in the HR department beginning on October 18, 2010. On October 29, 2010, Debra Wilson emailed Connie Wagner to follow up on Hope Davis's request for approval to purchase Dragon Speak, and Ms. Wagner replied that it was her understanding that Denise approved the purchase.
Ms. Dean visited Dr. Ritter on November 9, 2010 and got a revised work restriction, limiting her "typing to 4 hours daily until FCE has been completed." Also on November 9, 2010, Ms. Wilson sent an email to Larry Barbee asking if the Dragon Speak software had been received. Mr. Barbee forwarded the email to Mr. Goudeau. After receiving the email, Mr. Goudeau forwarded the email to the DCFS User Support Center asking if the help desk had received the item. The Support Center replied that there was no ticket number for the request on Ms. Dean.
On November 12, 2010, Ms. Dean contacted someone within the Department asking about the requested equipment and her leave status. Mr. Goudeau informed Ms. Dean that her sick leave was almost depleted and she would be terminated if she did not return when her sick leave was exhausted. Ms. Dean has asserted that it is inaccurate that she did not return to work because no accommodation was being provided for her return to work. (Record Document 41-2, Exhibit A-1, No. 11& 13). On November 19, 2010, Ms. Dean called Baton Rouge and spoke with Shelly Johnson about transferring her sick leave to annual. Ms. Dean received a phone call a few days later and was told her annual leave in lieu of sick leave had been approved, permitting Ms. Dean to remain on leave until approximately December 8, 2010. On November 30, 2010, Mr. Goudeau received a call from Mr. Barbee stating that Ms. Dean had called and told him that she had decided to retire. Mr. Barbee requested the billing code for the Dragon Naturally Speaking for Ms. Dean on December 6, 2010, the same day Ms. Dean signed an application for retirement. Ms. Dean continued to work from December 8 through the end of January, 2011, with her effective retirement date February 18, 2011. Ms. Dean alleges her employer failed to provide a reasonable accommodation, giving her no choice but to retire. (Record Document 1 at 16).
LAW AND ANALYSIS
I. Summary Judgment Standard
Summary judgment should be granted if the record, taken as a whole, "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate "the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also, Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir. 1995). A party moving for summary judgment "must demonstrate the absence of a genuine issue of material fact, ' but need not negate the elements of the nonmovant's case." Little v. Liquid ...