Cahill v. Wilkie

          OPINION AND ORDER

          George A. O’Toole, Jr. Senior United States District Judge.

         This is an employment discrimination lawsuit filed by the plaintiff, Patricia Cahill, against her former employer, the United States Department of Veterans Affairs (“VA”). The amended complaint brings claims under Title VII of the Civil Rights Act of 1964 (Counts I, IV, and V) and the Rehabilitation Act of 1973 (Counts II and III). The defendant has moved for summary judgment in its favor on all claims.

         I. Factual Background

         Cahill, a registered nurse, started working at the VA in 1994. In 2000, she sustained injuries unrelated to this litigation and was out of work for approximately ten years. In 2011, she returned to the VA working as a Revenue Utilization Review Nurse.

         In early 2012, she suffered a brain injury that resulted in ongoing cognitive issues, including an inability to multi-task or concentrate. As a result of these injuries, she reported to the VA’s Reasonable Accommodation Committee (“RAC”) in March 2012 that she was unable to perform the functions of her position. At all times relevant here, her main point of contact to the RAC was VA Human Resources Officer James Tavares.

         In August 2012, Cahill accepted an accommodation in the form of a temporary detail assignment in the Home Telehealth Department at the VA’s Brockton campus. Throughout the course of her detail, she frequently worked in a shared office with co-workers Johnny Stewart and Marilyn Murguia.

         On November 19, 2013, Cahill and Stewart had a disagreement of some sort which Cahill described to her supervisor, Eileen Tarsky, through the VA instant messaging (“IM”) system minutes after it occurred:

MM [Marilyn Murguia] & I were working quietly...both on phone w/pts...Johnny [Stewart] walks in MM off phone, asks MM for cigarette and talking LOUDLY, I asked to lower voice as on phone w/pt...I couldn’t hear the pt...when I hung up he started yelling at me to get my own office and that I “needed help”. He then took off and slammed the door...I’m terrified of him...he’s always telling me what to do!

(Second Weida Decl., Ex. H (dkt. no. 99-8).)

         According to Murguia, who witnessed the event:

Patricia was on the phone and at the same time Johnny asked me a question in a normal tone of voice. At this point Patricia became agitated and made an exaggerated physical [gesture] about the noise. Johnny then got up and headed toward my desk to continue the conversations while lowering his voice. Following this Patricia and Johnny had a short verbal dispute, with Johnny leaving the room. There was no yelling or physical contact during this time. Shortly after Johnny returned to work and all was quiet until the end of the work day.

(First Weida Decl., Ex. F (dkt. no. 97-6).)

         After speaking to various individuals about the incident, Tarsky and the other managers agreed to assign Cahill permanently to the shared office, and to relocate Stewart to another office on a different floor. Tarksy also drafted an incident report, describing both the incident and the corrective action that was taken. The VA’s Safety Manager and Chief of Police both reviewed the report and concluded that no further action was necessary. Cahill maintains in this litigation that she was assaulted during the incident and that she and Stewart were never effectively separated.

         A week later, on November 26, Cahill received a duty status report containing an evaluation from Dr. Tammy Harris at the VA’s Occupational Health Services. The report diagnosed Cahill with situational anxiety and found her unfit for duty pending a follow-up evaluation in early January 2014. The report also included as a workplace restriction that Cahill was not to be exposed to hostile co-workers. Cahill then ceased to attend work until August 2014.

         On February 6 and 28, 2014, Tavares and then Tarsky each sent a letter to Cahill instructing her to return to work. In April, Tavares suggested that Cahill could return to the Patient Call Center in Jamaica Plain, where she had worked on an interim basis in 2012. Cahill rejected the idea and stated that she wanted to return to the Home Telehealth Department in Brockton.

         On May 1, Cahill initiated contact with an EEO counselor about the November 19, 2013 incident, claiming race and disability discrimination, ...