Corley v. Department of Veterans Affairs

218 F. App'x 727
Court of Appeals for the Tenth Circuit·Decided February 20, 2007·No. No. 05-7137·Published·Cited by 2 cases

Opinion

ORDER AND JUDGMENT *

HARRIS L. HARTZ, Circuit Judge.

Fred Corley appeals the district court’s grant of summary judgment in favor of his former employer, the Department of Veterans Affairs (VA), on his claims for disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 791, and for constructive discharge. He alleges that he has a physical impairment — a seizure disorder — that substantially limits one or more major life activities, and that he is therefore disabled under the Rehabilitation Act. He claims that the VA failed to accommodate his disability and that he was constructively discharged when he chose to pursue retirement benefits rather than accept a demotion to a lower-paid position. We affirm.

I. Background

Mr. Corley began employment with the VA in 1992. At all times relevant to this case, he was an Education Case Manager (ECM). His job was to communicate with veterans about their education benefits via telephone, email, and faxes, as well as in person either at the VA office or during town-hall meetings. ECMs were required to be available to answer telephone calls from veterans for a large portion of their work days; as of March 2003 the minimum [729] time they were to be available was six hours per day. Any inquiry regarding a specific veteran’s education benefits required use of a computer to access the information.

Mr. Corley suffered the first of two major seizures in 2000, while stationed in Turkey on military duty. In January 2001 he suffered a second major seizure at home. He reported to Dr. Edward Moro-ney, his primary care physician at the Muskogee, Oklahoma, VA Medical Center (VAMC), that he was having seizure-like activity, primarily while he slept, as evidenced by urinary incontinence. Dr. Mo-roney referred Mr. Corley to a VAMC neurologist and advised that he should not ship out to Jordan with his Air National Guard unit. Mr. Corley began seeing Dr. L. Keith Simmons, a private neurologist, in connection with his seizure activity.

On February 1, 2001, Dr. Moroney made the following notation in Mr. Corley’s medical file:

The above referenced individual has developed a seizure disorder which is presently[ ] controlled [with] medication. However his stress should be kept at a minimum to prevent breakthro[u]gh seizure activity. He should not be required to spend more than 4 h[ou]rs/day on the telephone.

Aplt. App., Vol. I at 109. Mr. Corley presented this document to Phyllis Curtis, one of his supervisors at the VA, on March 22, 2001. Beginning that day he started assisting with training new employees for four hours per day, apparently reducing his available telephone time to at most four hours. Although the need to train new employees was temporary, Mr. Corley had indicated that possibly something could be done medically to control his seizures, so Ms. Curtis understood that Mr. Corley would again be able to perform his regular duties once the temporary assignment was completed.

On March 27, in describing his medical history to Dr. Madhusudan Koduri, a psychiatrist, Mr. Corley reported that once a week or more he was having seizures, during which he sometimes passed out. He also told Dr. Koduri that he was not driving. There are no further notations in Mr. Corley’s medical records regarding seizure activity for almost eight months. In November 2001 he reported to Dr. Simmons an increase in the frequency of his seizures since August but indicated that he had not had any further generalized convulsions. The seizures occurred more at night and were evidenced by urinary incontinence. He also had a few episodes at work when he became glassy-eyed, and on occasion the computer screen would induce a seizure. Dr. Simmons noted that Mr. Corley was on a modified work schedule and recommended that this schedule continue until the seizures were controlled.

Five months later, in April 2002, Mr. Corley reported a decreased frequency of seizure symptoms to Dr. Koduri. In June he reported to Dr. Moroney that he was having seizures once a week during the night. Dr. Moroney noted that Dr. Simmons was changing Mr. Corley’s seizure medication. Dr. Simmons provided Mr. Corley with a “return to work” form, at his request, which was effective June 17, 2002. The return-to-work form restricted only Mr. Corley’s use of hazardous equipment. The form also indicated that his seizure medication was being adjusted, which could initially result in increased seizures. The parties dispute whether the hazardous-equipment limitation was the only limitation after June 17, 2002, or was in addition to the previous four-hour limitation on telephone work. After Mr. Corley gave the return-to-work form to Ms. Curtis, he continued to work the modified schedule [730] limiting his telephone time to four hours per day. In August 2002 he reported to Dr. Moroney that he had had no more seizures after switching medications. He asked Dr. Moroney for a letter stating that he was fit for duty with the Air National Guard. That same month, Mr. Corley advised Dr. Koduri that his last seizure had been in May.

In December 2002 Ms. Curtis asked Mr. Corley to provide updated documentation of his medical condition. Mr. Corley sent an email to Dr. Simmons’s office on December 18, asking for a currently dated copy of Dr. Simmons’s previous note limiting him to four hours of telephone work per day. He told Dr. Simmons that he had had an increase in seizure activity, which seemed to be more prevalent with seasonal or weather changes. He also indicated that he had suffered a midsized seizure at work the previous week and another one the night before. Dr. Simmons faxed back the June 2002 return-to-work form containing only the restriction on use of hazardous equipment, with a note to continue that limitation. Mr. Cor-ley did not provide this return-to-work form to the VA. Instead, upon receiving Dr. Simmons’s fax, he sent another email to Dr. Simmons’s office on December 19, asking once again for a note limiting his telephone time to four hours per day. Dr. Simmons did not respond. The next day, December 20, Mr. Corley described his seizure spells to Dr. Koduri as intermittent and less intense. He also told Dr. Koduri that he had been playing football occasionally.

On December 31 Mr. Corley contacted Dr. Simmons again, this time asking the doctor to rescind the prior statement limiting him to four hours of telephone time and to put him back on a regular work schedule. Dr. Simmons released Mr. Cor-ley to a regular work schedule beginning January 2, 2003, with a note to avoid activity that might be hazardous if he loses consciousness. Once again Mr. Corley did not provide this new return-to-work form to the VA.

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Corley v. Department of Veterans Affairs, 218 F. App'x 727 (10th Cir. 2007).

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