United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND
DEFENDANT'S MOTION TO STRIKE
RICHARD L. YOUNG, United States District Court Judge
Marytza Golden, was formerly employed by Defendant, the
Indianapolis Housing Agency (“IHA”), as a Public
Safety Officer. Following her diagnosis of breast cancer in
November 2014, Plaintiff sought leave under the Family
Medical Leave Act (“FMLA”), plus an additional
four weeks, in order to treat her condition. IHA terminated
her employment when it was determined that she was unable to
return to work following her sixteen-week leave.
present action, Plaintiff alleges IHA both failed to provide
her with a reasonable accommodation and terminated her on the
basis of her disability, in violation of the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq. The
parties cross-move for summary judgment on both claims, and
IHA separately moves to strike the Affidavit of Stephen
Golden. For the reasons set forth below, the court GRANTS
IHA's Motion for Summary Judgment, DENIES Plaintiff's
Motion for Summary Judgment, and DENIES as MOOT IHA's
Motion to Strike the Declaration of Stephen Golden.
a federally funded employer within the meaning of Section 504
of the Rehabilitation Act. (Filing No. 59-2, Deposition of
Rufus Myers at 22). Plaintiff was employed by IHA as a Public
Safety Officer from June 1999 to April 2015. (Filing No. 25,
Deposition of Marytza Golden (“Plaintiff Dep.”)
at 14, 29). IHA officers are police officers who are required
to carry a firearm and whose main functions include
responding to calls for service, investigating crimes,
protecting the public, protecting IHA assets, responding to
911 calls, providing emergency aid, and protecting and
serving the public. (Filing No. 47-18, Indianapolis Housing
Agency Job Description; see also Filing No. 47-26,
Deposition of Stephen Golden (“S. Golden Dep.”)
at 26 (testifying that public safety officers “respond
to calls for service, investigate crimes, protect the public,
protect agency assets, respond ¶ 911 calls, ”
make arrests and provide emergency aid)).
November 2014, Plaintiff was diagnosed with invasive triple
negative ductal carcinoma breast cancer. (Plaintiff Dep. at
51, 89). Plaintiff informed IHA of her serious medical
condition and, on December 11, 2014, requested FMLA leave.
(Filing No. 47-5, FMLA notes). Her request was granted.
(See Filing No. 47-10, Letter from Richard Simmons
to Plaintiff). On December 18, she underwent a right side
mastectomy and had five lymph nodes removed. (Plaintiff Dep.
at 51, 54). Plaintiff's cancer treatment included
chemotherapy and the necessity of additional surgeries.
(Id. at 51-52).
December 19, 2014, Plaintiff's doctor completed a
Certification of Health Care Provider (“CHP”)
form. At that time, the probable duration of her condition
was described as “ongoing.” (Filing No. 47-11,
December CHA, Part A). Her doctor described her period of
incapacity as “12/18/14 until released, ” and
noted that a further treatment plan would be determined
post-surgery. (Id., Part B).
understood that she would be medically unable to return to
work at the end of her FMLA leave (March 16, 2015).
(Plaintiff Dep. at 68). She therefore contacted Human
Resources Generalist Richard Simmons and told him she would
like to apply for long-term disability benefits under
IHA's group policy with Lincoln Financial Group.
(Id.). In the employee statement portion of the
application, which she Dated: March 2, 2015, Plaintiff
represented that she “cannot perform [her] job
descriptions safely” and that she needed hands-on help
to safely perform the activities of daily living, including
“bathing, cooking, [and] walking stairs.” (Filing
No. 47-29, Long-Term Disability Application at 14, Section
C). Simmons completed the employer portion of Plaintiff's
application and returned it to Plaintiff on March 6, 2015.
(Id. at 3). Four days later, Plaintiff's direct
supervisor, Michael Mays, completed the Long-Term Disability
Claim Job Analysis. (Id. at 4-5). Mays stated that
Plaintiff's job could not be modified to accommodate her
disability either temporarily or permanently and that it was
not possible to offer her assistance in doing her job.
(Id. at 5). Plaintiff submitted her long-term
disability claim to Lincoln Financial on March 11, 2015.
March 13, 2015, Simmons sent Plaintiff a letter informing her
that her FMLA leave expired on March 16, 2015. (Filing No.
47-6, Letter from Richard Simmons to Plaintiff). Simmons
noted that the latest information from Plaintiff's health
care provider did not provide an end date to her leave of
absence but that, per IHA custom, employees who cannot return
to work due to a medical condition may take an additional
four weeks of medical leave. (Id.). He enclosed a
new CHP form and requested that Plaintiff have her health
care provider give IHA updated information as to her
condition, and invited Plaintiff to contact the Human
Resources Department with any questions. (Id.).
Plaintiff took the additional four weeks of leave and thus,
was required to return to work on April 14, 2015.
(Id.; Plaintiff Dep. at 66).
March 31, 2015, Plaintiff's health care provider listed
the probable duration of her condition as
“ongoing.” (Filing No. 47-9, March CHA, Part A).
She noted that Plaintiff was unable to perform her job
functions due to the condition, and, as with her prior CHP,
listed the estimate for beginning and end dates for the
period of incapacity as “12/18/14 - until
release.” (Id., Part B).
April 13, 2015, Plaintiff came unannounced to IHA's Human
Resources office and had a meeting with Director of Human
Resources Kathy Walden and Simmons. (Filing No. 47-32,
Deposition of Kathy Walden (“Walden Dep.”) at
44-45). They discussed the March 13 letter, her retirement
benefits, and her long-term disability benefits.
(Id. at 45). At Plaintiff's request, Walden
provided her copies of long-term disability documentation,
the documentation IHA had received from Plaintiff's
health care provider, and the last CHA form IHA had received
regarding Plaintiff. (Id.). Plaintiff did not ask
for a reasonable accommodation during the meeting.
(Id. at 83).
that evening, at 6:10 p.m., Plaintiff sent an e-mail to
Walden and Simmons which stated:
I am requesting an unpaid leave of absence per city policy.
If you have additional questions please contact me as you are
aware I am off work due to diagnosis of cancer and I was
informed today by Human Resources that Tuesday, April 14,
2015 will be my last day of employment.
No. 47-16, April 13 Email). Walden replied on April 15:
“Your unpaid leave of absence request is denied. If you
have any additional questions, I can be reached at [phone
deposition, Walden testified that she interpreted
Plaintiff's email request as a request for leave pursuant
to IHA's General Leave of Absence (Unpaid Leave)
(“LOA”) policy. (Walden Dep. at 65; Filing No.
59-8, LOA policy). The policy provides, in relevant part:
The Director of Human Resources in conjunction with the
Department Director may approve a leave without pay for a
specified period of time (not to exceed six (6) months) when
it is determined that no other leave form is appropriate. All
such leaves are approved only after consideration of the
effect of the leave on the department's operations and
receipt of the appropriate supporting documentation.
Requests for leave must be filed initially with the Human
Resources Department. Except in emergencies, the employer is
required to make his/her request at least two (2) weeks in
advance of the anticipated leave.
. . .
The employee is expected to return to work as noted on the
approved leave request, unless an extension has been granted.
If the employee wishes to return to work before the approved
date, two (2) weeks' notice must be given to his/her
department and the Human Resources Department.
policy). The policy applies, Walden explained, to those who
seek military leave and to those who ask for a sabbatical, as
those forms of leave are not covered by another IHA leave
policy. (Walden Dep. at 33). IHA does not provide additional
medical leave beyond the twelve weeks of FMLA and four
additional weeks of IHA-provided leave. (Id. at 31,
was approved for long-term disability benefits on April 21,
2015. (Filing No. 47-36, Letter from Lincoln Financial to
July 6, 2015, Plaintiff was medically released by her
oncologist for light duty work, limited to a maximum shift of
eight hours but no more than twenty hours per week, and a
lifting restriction of no greater than fifteen pounds.
(Filing No. 47-12, Medical Release). On August 19, 2015,
Plaintiff was admitted to the hospital for a left mastectomy,
and was unable to work until September 8, 2015, when she had
a medical work release limiting her to working a maximum of
ten hours per week with an additional lifting restriction of
no more than ten pounds. (Filing No. 47-38, Operative Report;
Filing No. 47-13, Medical Release). On November 23, 2015,
Plaintiff underwent surgery again, and was medically released
to return to work without any restrictions on December 7,
2015. (Filing No. 47-39, Medical Release). Plaintiff became
medically unable to work three days later due to another
surgery. (Plaintiff Dep. at ...