Enica v. Principi

United States Court of Appeals
For the First Circuit

No. 06-2187

LUCIA ENICA,

Plaintiff, Appellant,

v.

ANTHONY J, PRINCIPI, Secretary of the Department
of Veterans Affairs; DEPARTMENT OF VETERANS AFFAIRS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,
and Delgado-Colón,* District Judge.

Sanford A. Kowal, on brief for appellant.
Gina Walcott-Torres, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, on brief for
appellees.

October 6, 2008

*
Of the District of Puerto Rico, sitting by designation.
 DELGADO-COLÓN, District Judge. On June 28, 2004, appellant,

Lucia Enica (“Enica” or “Appellant”), a registered nurse employed

by the Department of Veterans Affairs, brought suit against the

Secretary of Veterans Affairs (“VA” or “Appellee”), alleging that

the VA failed to accommodate her disability in violation of the

Rehabilitation Act, 29 U.S.C. §§ 791 and 794(a), and that, after

she sought accommodations and submitted a worker’s compensation

claim, retaliated against her by failing to accommodate her,

subjecting her to a hostile work environment, and denying her a

promotion, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16. Each party moved for summary judgment

and on May 30, 2006, the district court entered a memorandum and

order denying Enica’s motion for summary judgment and granting the

VA’s motion for summary judgment. Enica v. Principi, Civ. No. 04-

11468, 2006 WL 1540486 (D. Mass. May 30, 2006). Enica appealed.

We affirm in part and vacate in part.

I. Background

The following facts are presented in a light most

favorable to the non-moving party Enica. See Plumley v. S.

Container Inc., 303 F.3d 364, 367 (1st Cir. 2002).

A. Enica’s Disability and Requests for Accommodations

1. Medical History and Educational Background

Enica was diagnosed with poliomyelitis as a child. The

disease caused her to suffer nerve damage and paralysis in her

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right leg beginning at ten months of age. When she was

approximately twelve years old, she fractured her right femur and

underwent several reconstructive surgeries, leaving her right leg

shorter than her left. She also suffers from severe arthritis in

her right knee, and ankylosis, a condition causing stiffness, in

her right ankle. She walks with a limp, drives a specially

equipped car and has limited ability to lift. Enica obtained a

bachelor’s degree in nursing from New York University, a master’s

degree in psychiatric nursing from University of Massachusetts at

Lowell and has nineteen years of experience working as a nurse.

2. Employment History Prior to EEO Claim

In 1994, Appellant was hired as a Registered Nurse of

Psychiatry at the VA hospital in Jamaica Plain. Her

responsibilities included providing basic care for patients with

physical and emotional needs. Prior to commencing her employment,

she underwent a “fitness for duty” examination which concluded that

she had no conditions limiting her ability to work as a psychiatric

nurse.

In 1995, Enica learned that the psychiatric unit in which

she worked was closing. Concerned that she might be transferred to

a medical unit, she approached her manager, Mary Farren (“Farren”),

and explained that her physical condition precluded her from

performing the work required of nurses in the medical units. Enica

also informed the Chief of Nursing, Carol Coulter (“Coulter”), and

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the Assistant Chief of Nursing, Cecilia McVey (“McVey”), about the

limitation of her physical condition and inability to work in a

medical unit. She was subsequently transferred to another

psychiatric unit within the Jamaica Plain campus.

Thereafter, sometime in 1996, Enica was asked to push a

patient on a stretcher to and from an electric compulsive shock

therapy (“ECT”) room and to assist him into bed. She informed

Beverly Reardon (“Reardon”), her supervisor at the time, that she

was in pain and could not perform said tasks. Reardon asked Enica

to bring a medical certificate explaining her limitations and

restrictions. In May of 1996, Enica saw Dr. Richard Wright, an

orthopedist. After an examination, Dr. Wright stated and

recommended that Enica should avoid repetitive low back activity,

repetitive or heavy pushing and pulling, and indicated that she was

not suited for medical or surgical floor assignments. In his

recommendation he noted that “[i]t is not possible to spell out

restrictions for all circumstances patient must be permitted some

discretion.”

Enica submitted this assessment to Reardon, who requested

that she undergo another medical examination to determine if she

was physically capable of performing the duties of a staff nurse.

Dr. John Harris, III, Chief of Orthopedic Surgery at the VA,

conducted an examination in July of 1996 and concluded that Enica

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could not lift, carry, or push forty-five pounds.1 Dr. Harris’

report indicated that he notified Enica of his diagnosis and

advised that she go to her supervisors.

According to the VA, after Enica returned to work, her

job functions were modified inasmuch as she was excused from

carrying or pushing more than forty-five pounds.2 Once this

modification was put in place, the VA claims that Enica did not

speak to anyone in a VA management position about her disabilities

from 1996 to 2002.

In contrast, Enica claims that while Dr. Harris’ report

was timely delivered to the VA, she was neither informed of his

suggested restrictions nor provided with any information to give to

her supervisors. Instead, she alleges that immediately upon

returning from the exam with Dr. Harris, her supervisor sent her to

a medical unit where she was asked to transport a patient in a

wheelchair. Furthermore, she claims that after this limitation was

put in place, she “was still consistently required to take patients

to ECT or floated to medical units” and “assigned to do only

physical tasks for patients.”3

1
In fact, Dr. Harris stated that Enica was “barely able to push
. . . 15 lbs.”
2
In support, the VA submitted an affidavit of McVey, wherein she
states that the VA “modified Ms. Enica’s job functions by excusing
her from carrying or pushing more than 45 pounds.”
3
The district court did not consider the portion of Enica’s
affidavit which it found inconsistent with her deposition
testimony. Specifically, Enica stated during her deposition that

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 3. The EEO Claim and Additional Requests for
Accommodation

On April 9, 1997, Enica filed a complaint with the EEOC

alleging discrimination based on national origin and disability,

and retaliation against her for initiating EEO counseling. The

EEOC concluded that she had failed to establish her claims. The

complaint did not address any requests for accommodation or

indicate that she had been retaliated against for requesting the

same.

In 2000, the VA decided to integrate all inpatient care

services at the Jamaica Plain campus with the West Roxbury and

Brockton campuses. Over the next two years, the VA negotiated with

the labor unions to transfer employees from Jamaica Plain to either

of the two other campuses. Enica learned about the impending

transfer sometime in May of 2002, and requested to remain at the

she did not speak to management between 1996 and 2002 about her
physical condition; however, she stated the opposite in her
affidavit. As is settled, when an interested witness gives clear
answers to unambiguous questions, she cannot create a question of
fact by providing a contrary statement without any explanation of
the change. See Torres v. E.I. Dupont De Nemours & Co., 219 F.3d
13, 20 (1st Cir. 2000). Notwithstanding, Enica further states in
her affidavit that she was assigned to take patients to ECT and
consistently floated to the medical floor. She also averred that
she was trying “to get some fair treatment and to obtain reasonable
work conditions.” Accordingly, while Enica is bound by her
deposition testimony indicating that she did not discuss her
disability with management between 1996 and 2002, we accept as
true, for the purpose of summary judgment, the portion of her
affidavit claiming that throughout this time she was consistently
assigned tasks that she could not perform.

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Jamaica Plain campus in a mental health position. She was

informed, however, that no positions were available.

Again concerned that her unit would close and she would

be transferred to a more physically demanding position, Enica

informed Farren that Enica had been experiencing knee and back pain

and could not walk long distances. Based on the advice of a union

representative, Enica saw Dr. Robert Provost to obtain additional

documentation of her physical restrictions and limitations. In a

note dated May 13, 2002, Dr. Provost recommended that Enica not be

placed in a position that would require her to stand for more than

five minutes at a time, or participate in either psychiatric crisis

interventions or walking rounds. When Enica gave Farren the note;

she claims that Farren became “very upset.” Beginning in May of

2002, and continuing up until June of 2002, Enica engaged in an

email dialogue with VA management regarding reasonable

accommodations.

On June 28, 2002, Enica met with William Warfield

(“Warfield”), Chief of Employee Relations, Karen Basset, Associate

Director of Nursing and Patient Care, McVey, and Lisa Cargill, a

union representative, concerning the closing of her unit at the

Jamaica Plain campus. Enica was then informed that she was being

transferred, along with ten other nurses, to a new crisis

stabilization unit (“CSU”) in West Roxbury. At this meeting, Enica

again raised the issue of her disabilities and need for

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accommodation. Specifically, she was concerned that the distance

between buildings in the West Roxbury campus would require more

walking than she could safely do.

As a result of the meeting, an agreement was reached to

modify Enica’s duties at the CSU. In particular, Enica would not

be required to participate in the physical aspect of any crisis

intervention, including “Code Greens.”4 In addition, and although

not documented in writing, Enica claims that she was excused from

doing anything that she could not do. According to the affidavit

submitted by McVey, it was expected that because the CSU contained

only three beds, the work would be less physically demanding and,

therefore, more suitable for Enica.

Enica began working in the CSU on July 1, 2002. On her

first day she was asked to complete walking rounds throughout the

4
Specifically, the letter memorializing this meeting, dated June
28, 2002, states, in relevant part:

After meeting with you, Mr. Warfield, and Ms. McVey, and
discussing the scope of practice for a Registered Nurse
in the Crisis Stabilization Unit at West Roxbury Campus
. . . it was agreed that you would provide all functions
with the following exceptions/modifications:
1. You would not participate in the physical
aspects of any crisis intervention, such as a
response to a Code Green. This did not
exclude you from responding, but limited your
involvement to non-physical aspects of such a
response.
2. As indicated in the meeting I will ensure that
Nursing management at West Roxbury division is
aware of this.

. . . .

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entire hospital. Apparently, because her unit had only one or two

patients per week, Enica and the other CSU nurses worked on the

medical unit and participated regularly in walking rounds.5

According to Enica, she tried not to participate in these rounds

but “got pressure from my supervisors to participate.” In

addition, the nurses in that unit escorted agitated psychiatric

patients housed on the inpatient units and provided “one on one”

assistance and supervised confused or agitated patients on a

rotating schedule every hour. This work entailed walking to

different parts of the hospital, and the distances she was required

to walk were longer than those in her previous position. Enica

estimates that she walked between one and a half and two and a half

miles per day while at the CSU. As a result, the pain in Enica’s

leg and back worsened, making it difficult for her to perform the

walking rounds.6

As best as the court can discern, on or about August 9,

2002, Enica, through her attorney, contacted an EEO Specialist,

Sharon O’Leary, complaining that the accommodation was not working

and the excessive walking was causing increased pain and risking

further disability.7 Enica requested, among other things, that she

5
Enica also participated in psychiatric team rounds conducted by
the director of psychiatry three times a week.
6
As a result, Enica took pain medication on a daily basis.
7
It is unclear whether this letter was actually sent or delivered
on August 9, 2002. Although the letter bears that date and Enica’s
interrogatory answers suggest as much, VA documents indicate that

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be transferred to an outpatient unit and again be relieved from

responding to any “Code Greens” or any task requiring long walks,

such as conducting patient rounds and patient consults. A copy of

this letter was also sent to Warfield, with whom she had met in

June of 2002. On August 21, 2002, Enica contacted the Office of

Resolution Management and spoke with EEO Counselor Gregory E.

Jones, Sr. (“Jones”). She requested immediate relief from walking

to patient consults and rounds and participating in “Code Greens”

on foot. She also asked to be reassigned to the Outpatient Mental

Health Clinic at West Roxbury. In an October 10, 2002, report,

Jones noted his attempt to resolve the situation by communicating

Enica’s complaint to Warfield. After rejecting a number of Enica’s

proposed accommodations, Warfield agreed to provide her with a

motorized scooter (“scooter”) for use in her current job. Further,

Warfield agreed that Enica would not be required to work more than

she could manage until the scooter became available.

The record reflects that on September 9, 2002, the pain from

walking became so great that Enica nearly fell. As a result, Enica

was placed on paid administrative leave. While on leave, Dr.

Provost diagnosed Enica with bursitis caused by excessive walking.

In his report, he noted that Enica had developed pain in her left

hip from trying to protect her right leg while walking. He

she did not seek to initiate EEO counseling until August 20 or 21
of 2002.

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“strongly” recommended that she be transferred to an outpatient

facility. Enica remained on leave until November 3, 2002.

During this time, Enica filed a worker’s compensation

claim. The Office of Workers’ Compensation Programs District

Office of the Department of Labor denied Enica’s request for

compensation because it found that her condition was not causally

related to her job. Enica disagreed with the decision and

requested an oral hearing in front of a hearing representative.

The hearing representative rejected Enica’s request, but conducted

an investigation, ultimately finding that the excessive walking at

work caused bursitis to develop in Enica’s left hip, and concluding

that she was entitled to worker’s compensation benefits.

On September 19, 2002, informal counseling with respect

to her complaint to the EEO counselor was terminated and Enica was

provided a Notice of Right to File a Discrimination Complaint. A

formal complaint was filed on October 1, 2002.

On November 4, 2002, Enica returned to work with the

scooter. The scooter successfully addressed her walking problems,

allowing her to do rounds and work with patients in different

buildings. Shortly after returning to work, however, Enica was

asked to perform tasks that she was physically unable to do.8 When

Enica objected, she was not required to perform the tasks. In her

8
On November 6, 2002, the person in charge of the medical unit
ordered Enica to physically restrain a patient. Later, on December
19, 2002, she was asked to control a combative patient who was
attempting to pull out his IV lines.

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deposition, however, she testified that on one occasion she was

disciplined for objecting.

As a result of Enica’s inability to perform the requested

tasks, the VA, pending the receipt of medical information, again

placed Enica on paid administrative leave. Enica was on leave from

December 30, 2002, until April 7, 2003.

When Enica returned to work, she was assigned to the

primary care Telephone Advisory Program (“TAP”) at the Jamaica

Plain campus, the position that she currently holds. The TAP job

entails communicating with patients, pharmacies, and primary care

providers by telephone. No walking, lifting, bending, or carrying

is required.

B. Clinical Nurse Specialist Opening (Title VII Claim)

In December of 2002, Dr. Robert W. McCarley sought

funding for a Nurse Practitioner position in the Outpatient Mental

Health Clinic on the Jamaica Plain campus, and advertised the

vacancy from February 14 to March 7, 2003. Although seven people

applied, Dr. McCarley decided not to fill the position, choosing

instead to recruit a Clinical Nurse Specialist. Enica did not

apply for this position. The Clinical Nurse Specialist opening was

posted from June 5 to June 26, 2003. Appellant and one other

individual applied.

According to an affidavit submitted by Warfield, Dr.

McCarley ultimately determined that it was more economical for the

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VA to combine certain funds, save certain funds from VA’s budget

and hire a psychiatrist instead of a clinical nurse. The VA

approved the request and around April of 2004 the position was

filled by Dr. Harriet Scheft. Between 2004 and 2005, there was no

communication between Enica and the VA regarding the position Enica

had applied for. In November 2005, Enica learned that said

position had been eliminated.

II. Standard of Review

A district court’s grant of summary judgment is reviewed

de novo, considering the facts in the light most favorable to the

nonmoving party. See Orta-Castro v. Merck, Sharp & Dohme Quimica

P.R., Inc., 447 F.3d 105, 109 (1st Cir. 2006); Vélez-Rivera v.

Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006). Summary judgment

is properly granted if the movant can demonstrate 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).

“Once the moving party avers the absence of genuine issues of

material fact, the nonmovant must show that a factual dispute does

exist, but summary judgment cannot be defeated by relying on

improbable inferences, conclusory allegations, or rank

speculation.” Ingram v. Brink’s Inc., 414 F. 3d 222, 228-29 (1st

Cir. 2005); see also Freadman v. Metro. Prop. and Casualty Ins.

Co., 484 F.3d 91, 99 (1st Cir. 2007). In the summary judgment

context, “genuine” has been construed to mean “that the evidence

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about the fact is such that a reasonable jury could resolve the

point in favor of the nonmoving party.” United States v. One

Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir. 1992).

Similarly, a fact is “material” if it is “one that might affect the

outcome of the suit under the governing law.” Morris v. Gov't Dev.

Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994) (internal citation

and quotation marks omitted).

III. Discussion

A. Reasonable Accommodation

1. Collateral Estoppel

First, Enica contends that the district court erred in

refusing to apply the doctrine of offensive collateral estoppel to

the question of whether the VA provided Enica with a reasonable

accommodation. Since the application of the collateral estoppel

doctrine primarily presents a question of law, the court affords de

novo review. See Keystone Shipping Co. v. New England Power Co.,

109 F.3d 46, 50 (1st Cir. 1997).

Collateral estoppel, also known as issue preclusion,

prohibits a party from re-litigating issues that have previously

been adjudicated. See Parklane Hosiery Co., Inc. v. Shore, 439

U.S. 322, 327 n.5 (1979); In re Belmont Realty Corp., 11 F.3d 1092,

1097 (1st Cir. 1993); Rogers v. Town of Northborough, 188 F. Supp.

2d. 10, 13 (D. Mass. 2002). Collateral estoppel may be used

defensively, to prevent a plaintiff from asserting a previously

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litigated claim against the defendant, or offensively, to foreclose

the defendant from re-litigating an issue that it previously lost.

Parklane, 439 U.S. at 326 n.4. Offensive use of collateral

estoppel, the form Enica seeks to invoke here, raises concerns of

fairness to the VA. See Acevedo-García v. Monroig, 351 F.3d 547,

574 (1st Cir. 2003). As such, the determination of whether the

doctrine applies is conditioned on “whether defendants received a

full and fair opportunity to litigate their claims” in the first

proceeding. Id. at 575. In this regard, Enica must establish (1)

that the issue to be precluded is the same as that disputed in a

prior proceeding, (2) that the issue was actually litigated in the

earlier proceeding, (3) that the issue was determined by a valid

and binding final judgment or order, and (4) that the determination

of the issue in the prior proceeding was essential to the final

judgment or order. Id.; Plumley, 303 F.3d at 373; Faigin v. Kelly,

184 F.3d 67, 78 (1st Cir. 1999). As the district court correctly

concluded, Enica’s proffer cannot clear the first of these hurdles.

With respect to the first element, identity of issues,

“[i]t is common ground that the reach of collateral estoppel ‘must

be confined to situations where the matter raised in the second

suit is identical in all respects to that decided in the first

proceeding.’” Faigin, 184 F.3d at 78 (quoting C.I.R. v. Sunnen,

333 U.S. 591, 599-600 (1948)). It is undisputed that the issue

addressed and resolved by the Department of Labor was whether

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Enica’s injuries (bursitis) were caused by excessive walking in the

course of her employment at the VA. By contrast, the issue before

the district court was whether the VA failed to provide Enica with

reasonable accommodations in connection with her disability. This

determination involves, among other considerations, the VA’s

knowledge of her physical limitations (as they evolved over time)

and the feasibility of accommodations and interactive process

between the parties. In other words, although factually related,

the issue of whether the VA failed to provide her with reasonable

accommodations under the Rehabilitation Act was not essential to,

much less addressed, by the Department of Labor’s finding that

excessive walking at the workplace contributed to her injuries.9

See id. (“[T]he mere presence of a modicum of factual commonality

does not establish the requisite identity of issues for purposes of

collateral estoppel.”); compare Plumley, 303 F.3d at 373

(collateral estoppel as to Family and Medical Leave Act eligibility

did not apply to arbitration proceeding where issue was neither

determined or essential), with Bath Iron Works Corp. v. U.S. Dep’t

of Labor, 125 F.3d 18, 22 (1st Cir. 1997) (applying collateral

estoppel to state administrative decision that claimant’s injuries

had no lasting effect on his condition).

9
It bears mention that the factual determination of the Department
of Labor—that Enica’s injuries were caused by excessive
walking—appears largely undisputed in this case. As such, we do not
reach the issue of whether said finding would be binding in the
instant action.

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 Accordingly, being unable to conclude that the same

issues were considered in the previous administrative proceeding,

we conclude that collateral estoppel is inapplicable to the instant

action.

2. Failure to Accommodate

Next, Enica challenges the district court’s determination

that she failed to establish a prima facie case of failure to

accommodate under section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794.10

In addition to prohibiting disparate treatment of

individuals with disabilities, the Rehabilitation Act and Americans

with Disabilities Act (“ADA”) “impose an affirmative duty on

employers to offer a reasonable accommodation to a disabled

employee.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19-

20 (1st Cir. 2004)11; see also 42 U.S.C. § 12112(b)(5)(A); García-

Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n.9 (1st Cir.

2000) (“[T]he ADA does more than prohibit disparate treatment. It

also imposes an affirmative obligation to provide reasonable

accommodation to disabled employees.”).

10
Enica also alleged a claim under section 501 of the
Rehabilitation Act. 29 U.S.C. §791(b). The district court granted
the VA’s cross-motion for summary judgment with respect to this
claim, finding that Enica failed to offer any evidence to support
it. Enica does not appeal this determination.
11
As a federal employee, Enica is covered under the Rehabilitation
Act and not the ADA. Nevertheless, since the same standards apply
to both the Rehabilitation Act and ADA, we rely on precedent
construing both statutes. See Calero-Cerezo, 355 F.3d at 12 n.1.

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 In order to assert a claim for failure to accommodate

under the Rehabilitation Act, Enica must establsh that she (1)

suffers from a “disability” within the meaning of the statute, (2)

is a qualified individual inasmuch as she is able to perform the

essential functions of her job, with or without reasonable

accommodation, and (3) that, despite its knowledge of her

disability, the VA did not offer a reasonable accommodation. See

Calero-Cerezo, 355 F.3d at 20. The VA concedes that Enica

satisfies the first two requirements, but argues that she does not

meet the third element inasmuch as she failed to establish that the

VA failed to provide her with reasonable accommodations.

In determining whether an employer has failed to provide

a reasonable accommodation, we follow the two-step analysis

outlined in Reed v. LePage Bakeries, Inc., 244 F.3d 254 (1st Cir.

2001). See Calero-Cerezo, 355 F.3d at 23. First, the employee

must show “not only that the proposed accommodation would enable

her to perform the essential functions of her job, but also that,

at least on the face of things, it is feasible for the employer

under the circumstances.” Reed, 244 F.3d at 259. Second, the

employee must prove that the request was sufficiently direct and

specific so as to put the employer on notice of the need for an

accommodation. Id. at 261; see also Wynne v. Tufts Univ., 976 F.2d

791, 795 (1st Cir. 1992).

Once the plaintiff satisfies these two elements, “the

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defendant may attempt to prove that, in fact, the proposed

accommodation was not feasible and would constitute an ‘undue’

hardship.” Calero-Cerezo, 355 F.3d at 23 (citing Reed, 244 F.3d at

261). This “requires the employer to produce at least some modicum

of evidence showing that the [requested accommodation] would be a

hardship, financial or otherwise.” Id. (quoting Ward v. Mass.

Health Research Inst. Inc., 209 F.3d 29, 37 (1st Cir. 2000)).

In some cases, an employee’s request for an accommodation

may trigger a duty on the part of the employer to engage in an

interactive process. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d

100, 108 (1st Cir. 2005); Calero-Cerezo, 355 F.3d at 23; Phelps v.

Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001); Reed, 244

F.3d at 262 n. 11. As part of this process, the employer is

“expected to engage in a meaningful dialogue with the employee to

find the best means of accommodating that disability.” Tobin, 433

F.3d at 108. Although the degree of interaction required varies in

accordance to the circumstances of each case, the process requires

open communication by both parties, and an employer will not be

held liable if it makes “reasonable efforts both to communicate

with the employee and provide accommodations based on the

information it possessed . . . .” Phelps, 251 F.3d at 28 (quoting

Beck v. Univ. of Wis. Bd. Of Regents, 75 F.3d 1130, 1137 (7th Cir.

1996)); see also Tobin, 433 F.3d at 109 (recognizing that the

standard governing the interactive process is less than clear);

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Calero-Cerezo, 355 F.3d at 24.12 Where a breakdown in the process

has been identified, “courts should look for signs of failure to

participate in good faith or failure by one of the parties to make

reasonable efforts to help the other party determine what specific

accommodations are necessary.” Beck, 75 F.3d at 1135. For

instance, “[a] party that obstructs or delays the interactive

process is not acting in good faith.” Id.

Though the issue of good faith is relevant in examining

the interactive process, a showing of discriminatory intent or

animus is not required in cases alleging a failure to accommodate.

See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264

(1st Cir. 1999). Instead, “an employer who knows of a disability

yet fails to make reasonable accommodations violates the statute,

no matter what its intent, unless it can show that the proposed

accommodation would create undue hardship for its business.” Id.

(citing 42 U.S.C. § 12112(b)(5)(A)). Furthermore, the “duty to

provide a reasonable accommodation is a continuing one, however,

and not exhausted by one effort.” Ralph v. Lucent Tech., Inc., 135

F.3d 166, 172 (1st Cir. 1998).

Enica’s primary argument seems to be that because the VA

12
29 C.F.R. § 1630.2(o)(3) provides, in relevant part, that “[t]o
determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal,
interactive process with the qualified individual . . . . This
process should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could
overcome these limitations.”

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has been aware of her condition since 1996, there exists a question

of fact as to whether or not her immediate supervisors knew about

her condition, and acted to protect her.13 Simply stated, Enica

argues that her injuries were so obvious that this triggered a

continuing obligation on the part of the VA to provide her with

necessary accommodations. See, e.g., Reed, 244 F.3d at 261 n.7.

In Reed, we stated that “sometimes the employee’s need

for an accommodation will be obvious; and in such cases, different

rules may apply.” Id. In that context, we were addressing

situations where the nature of the disability and accommodation

required are so obvious that “there may be little or no need for

discussion” with the employee. EEOC Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act, EEOC Notice 915.002 (October 17, 2002),

available at http://www.eeoc.gov/policy/docs/accommodation.html.

To the extent an employer might successfully provide an

accommodation with little interaction with the employee, such a

situation does not present itself here. Although Enica’s

disability was obvious, the record makes clear that her condition

and duties at work required different accommodations at different

times. Indeed, her doctor recognized as early as 1996 that “it was

not possible to spell out restrictions for all circumstances” and

13
For example, Enica walked with a limp, had a handicapped sticker
on her car, parked in a handicapped spot, had asked for special
accommodations previously, and had medical notes on file
recommending that her physical activities be limited.

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that she “must be permitted some discretion.” More specifically,

in 1996 her limitations involved pushing or pulling patients and

did not appear to include excessive walking. As time went on and

the nature of her duties and condition changed, it became clear

that Enica could not engage in excessive walking without it causing

an inordinate amount of pain or worsening of her condition. As

such, we do not view this to be a case where a disability is so

obvious that an employer would be required to provide a particular

accommodation.

Having found that the VA was not required to provide an

accommodation on its own accord based on an obvious disability,

Appellant’s specific requests for accommodations may be grouped

into two distinct time periods; namely, her 1996 request for

accommodations relating to the pushing and pulling of patients and

her 2002 request for accommodation not to engage in excessive

walking.

a. 1996 Requests for Accommodation

In her affidavit, Enica alleges that despite the

restrictions imposed in 1996, she was continually required to take

patients to ECT or to float to medical units where she was assigned

to perform physical tasks. Although the record supports these

allegations, nowhere does it appear that she complained to her

supervisors. Rather, it appears that Enica continued performing

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her duties up until 2002, without incident or objection.14 As such,

we agree with the district court that absent any communications

from Enica regarding the inadequacy of her accommodations, no

factfinder could hold the VA responsible for either a breakdown in

the interactive process or failing to correct an inadequate

accommodation since it was not made aware that a deficiency

existed.

b. 2002 Requests for Accommodation

In 2002, however, as the district court pointed out,

Enica made a number of separate, albeit similar, requests for

accommodation. Enica’s first request came in May of 2002, when she

informed her supervisor that she was experiencing knee and back

pain and could not walk long distances. To support her request,

she underwent a medical evaluation and submitted an evaluation from

Dr. Provost which recommended, inter alia, that Enica not be placed

in a position that would require her to participate in psychiatric

crisis interventions, or in walking rounds.15 Based upon the

forgoing, Enica engaged in an email dialogue with VA management

regarding reasonable accommodations to address this limitation.

14
Enica highlights that there may be situations where an
employee feels too intimidated to object to an employer’s refusal
to accommodate. See Freadman, 484 F.3d at 105. Though we agree
that such situations occur, there is no evidence that such a
situation occurred here.
15
Dr. Provost further stated that “with the passage of time, it
is possible that her disability may increase,” and that he did not
expect Enica to make a full or partial recovery from her
disability.

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 Enica’s second request occurred during a June 28, 2002,

meeting with her supervisors. In said meeting, Enica again raised

the issue of her disabilities and need for accommodation.

Specifically, she expressed concern that the distance between

buildings in the West Roxbury campus would require more walking

than she could safely do. As a result of the meeting, an agreement

was reached whereby Enica’s duties at the CSU were modified. In

particular, the agreement memorialized that Enica would not be

required to participate in the physical aspect of any crisis

intervention, including “Code Greens.” Further, Enica avers that

she was excused from taking part in anything that she could not do.

Shortly after reaching this agreement, on July 1, 2002,

Enica was transferred to, and began working at, the CSU. On the

day she started, she was informed that she, along with the other

CSU nurses, were required to complete walking rounds in other

medical units. That decision was given even though Enica had

previously provided a medical certificate from Dr. Provost

specifically stating that she should not take part in walking

rounds. Moreover, she was required to participate in psychiatric

team rounds three times a week. When she requested that she be

relieved from participating in the walking rounds, as her agreement

allowed her to do, Enica asserts that she was pressured by her

supervisors to complete them. According to Enica, she walked

between one and a half and two and a half miles a day. As a

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result, the pain in her leg and back worsened, causing her to take

pain medication on a daily basis to alleviate the pain.

As a result of the above, Enica sent a letter to an EEO

specialist, dated August 9, 2002, complaining that the

accommodation was not working, and that the excessive walking was

causing increased pain and placing her at risk for further

disability. Said letter was copied to Warfield. Enica requested,

inter alia, that she be transferred to an outpatient unit and again

be relieved from responding to “Code Greens” or any task requiring

long walks, such as conducting patient rounds and patient consults.

On August 21, 2002, Enica again contacted the EEO office

complaining of discrimination, and requested that she be

transferred to an outpatient unit and be relieved from responding

to “Code Greens” or any task requiring long walks.16 As part of his

investigation, and in an attempt to resolve the situation, Jones,

the EEO counselor addressing Enica’s complaint, conducted an

interview with Warfield on September 6, 2002, and conveyed to him

Enica’s complaints. Sometime subsequent to the interview, and

after rejecting some of Enica’s requests, Warfield agreed to

provide Enica with a scooter for use on the job. Furthermore, he

agreed that Enica would not be required to walk more than she could

manage until such time as the scooter became available.

On September 9, 2002, Enica was placed on paid

16
The contents of Enica’s complaint were memorialized in an
October 10, 2002 report, created by EEO counselor Jones.

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administrative leave because she was complaining of extreme pain.

While on leave, plaintiff returned to Dr. Provost, who diagnosed

her with bursitis caused by excessive walking. Dr. Provost also

“strongly” recommended that Enica be transferred to an outpatient

facility to “eliminate the repetitive stress to the advanced

arthritic changes in her right lower extremities.”17

Enica returned to work on November 4, 2002, and was

provided with the scooter. The scooter addressed her walking

problems, allowing her to do rounds and work with patients in

different buildings. Shortly after returning, however, Enica was

once again asked to perform tasks that she was physically incapable

of doing, and in direct contravention of her submitted medical

certificates.18 For example, on November 6, 2002, Enica was ordered

to physically restrain a patient. Later, on December 19,2002, she

was asked to control a combative patient who was attempting to pull

out his IV lines. When Enica objected, she was not required to

17
On September 19, 2002, informal counseling with respect to her
complaint to the EEO counselor was terminated and Enica was
provided a Notice of Right to File a Discrimination Complaint. A
formal complaint was filed on October 1, 2002.
18
As previously discussed, in May of 1996, Enica saw Dr. Wright,
who recommended that she avoid repetitive low back activity,
repetitive or heavy pushing and pulling, and indicated that she was
not suited for medical or surgical floor assignments. On July of
1996, Enica submitted a medical certification from Dr. Harris
clearly stating that she could not lift, carry, or push forty-five
pounds. Moreover, during the June 28, 2002, meeting between Enica
and her supervisors, it was specifically agreed that Enica would
not have to participate in the physical aspect of any crisis
intervention.

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perform the tasks.19 Again, as a result of Enica’s inability to

perform the requested tasks, the VA placed her on paid

administrative leave from December 30, 2002, until April 7, 2003.20

Based on the foregoing, we find that, while it is an

extremely close question, a triable issue of fact exists as to

whether the VA provided Enica with reasonable accommodations.

While the VA certainly took part in the interactive process and

made some effort to work with Enica, as the district court

correctly pointed out, it is less than clear that it provided Enica

with reasonable accommodations. See Tobin, 433 F.3d at 108 n.7

(finding that it is “possible for an employer to satisfy its duty

to engage in ‘interactive process’ yet still fail to provide

‘reasonable accommodation’ to a disabled employee”).

The VA, for its part, argues that it was never required to

provide Enica with the accommodation of her choice, but rather

required to engage in a good faith interactive process in finding

her a reasonable accommodation. See Phelps, 251 F.3d at 27-28.

Though the VA correctly states that an employer is neither required

to provide an employee with an accommodation of her choice nor to

create a new position for that employee, we note that once an

19
Enica did testify, however, that on one occasion she was
disciplined for objecting.
20
Upon her April 7, 2003, return, Enica was assigned to the TAP
at the Jamaica Plain campus. The TAP position entails
communicating with patients, pharmacies, and primary care providers
by telephone. No walking, lifting, bending, or carrying is
required.

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employer agrees to provide a particular accommodation, it must act

reasonably in implementing said accommodation. See id.; Calero-

Cerezo, 355 F.3d at 25.

Moreover, aside from the VA’s delayed response to her

complaints about the inadequacy of the accommodation, there is

evidence that the VA neglected to take substantive action in

implementing the accommodations in the first instance. In

particular, the evidence supports a finding that an agreement was

reached on June 28, 2002, at least in principle, that the upcoming

transfer to the CSU would not require Enica to walk long distances

or otherwise perform any tasks she could not physically do.21

Despite this agreement, on July 1, 2002, three days after the

meeting and the first day she reported to CSU, Enica was required

to engage in walking rounds throughout the hospital and in spite of

her objections, she allegedly received pressure from her

supervisors to do so.

The VA submits that it made the decision to transfer

Enica to the CSU based on the belief that working in a small unit

21
The memorandum memorializing the meeting between Enica and
modifications to be implemented did not indicate that she would be
exempt from performing walking rounds. Indeed, the list of duties
provided explicitly states that Enica would “[m]ake rounds of the
psychiatric patients housed on the medical units, when time
allows.” Nevertheless, in her deposition, Enica testified that
McVey and Warfield also told her that she would not have to walk
excessively, or do anything that she could not physically do.
Moreover, the May 13, 2002, medical certification from Dr. Provost
clearly recommended Enica not be placed in a position requiring her
to participate in walking rounds.

-28-
with only three beds would be less physically demanding than her

current position. Elsewhere in the record, however, the VA

concedes that because the CSU saw only one or two patients a week,

it would ask its nurses, including Enica, to perform walking rounds

in other medical units. This admission, the physical distance

separating the units and fact that Enica was required to engage in

walking rounds on the first day she reported for duty, combine to

cast into doubt whether the VA made any effort, or had any

intention, to implement the accommodation to which they had agreed

a few days prior. See Higgins, 194 F.3d at 265. Moreover, even

after the VA provided Enica with a scooter to address her walking

problems, her supervisors still asked her to perform physical tasks

that were beyond her clearly stated, and throughly documented,

capabilities. See Ralph, 135 F.3d at 172 (“The duty to provide

reasonable accommodation is a continuing one . . . and not

exhausted by one effort.”).

In sum, evidence exists from which a reasonable

factfinder could conclude that, despite her repeated requests for

accommodations during the several months before and after her

transfer in July of 2002, the VA violated the Rehabilitation Act in

failing fully to implement the accommodations it had agreed to or

provide a reasonable response once it became clear that the

provided accommodations were insufficient.22

22
Although a factfinder may conclude that the VA acted and
responded appropriately with respect to accommodating Enica’s

-29-
 B. Retaliation Claim

To prove a retaliation claim under Title VII, a plaintiff

must show that: “(1) she engaged in protected conduct; (2) she

experienced an adverse employment action; and (3) there was a

causal connection between the protected conduct and the adverse

employment action.” Calero-Cerezo, 355 F.3d at 25 (citing Gu v.

Boston Police Dep’t., 312 F.3d 6, 14 (1st Cir. 2002)). Once the

plaintiff establishes a prima facie showing of retaliation, the

McDonnell Douglas burden-shifting approach applies. See id. at 26.

Under this framework, the defendant must articulate a legitimate,

non-retaliatory reason for its employment decision. Id. If the

defendant does so, the burden shifts to the plaintiff to show that

“the proffered legitimate reason is in fact a pretext and that the

job action was the result of the defendant’s retaliatory animus.”

Id.

The district court found that although Enica engaged in

protected activity, she nonetheless failed to establish the

existence of an adverse employment action. In her appeal, Enica

argues that the district court failed to consider the

circumstantial evidence supporting a finding that she was

improperly denied a promotion based upon her engaging in protected

condition, sufficient evidence exists in the record at this time to
withstand summary judgment.

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activity.23 Although circumstantial evidence may certainly

establish discriminatory motive, see E.C. Waste, Inc. v. N.L.R.B.,

359 F.3d 36, 42 (1st Cir. 2004), Enica fails to point to any

evidence to support such an inference. All she claims is that the

district court improperly relied upon the purportedly inadmissible

hearsay affidavit of Warfield, stating that the nursing position

Enica applied for was never filled but instead eliminated, because

it was deemed more cost effective to hire a psychiatrist instead.

Even assuming, arguendo, that it was error to rely on

Warfield’s affidavit, Enica does not point to—nor can we find—any

direct or circumstantial evidence indicating that the VA’s failure

to award her the position that she applied for was done in

retaliation for engaging in protected activity. See Conto v.

Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001) (noting that

the Federal Rules of Appellate procedure require that appellants,

rather than the court, ferret out and articulate the record

evidence considered material on appeal).

IV. Conclusion

Although Enica failed to present sufficient evidence to

meet her burden of establishing that the VA failed to accommodate

23
Before the district court, Enica also identified the failure to
accommodate her disability and the existence of a hostile work
environment as identifiable adverse employment actions. Although
she does not raise this argument on appeal, we nonetheless fail to
find support for either theory here. Though Enica testified in her
deposition that she was once disciplined for not performing a task
which she could and would not perform, this general averment is
insufficient to survive summary judgment.

-31-
her disability in 1996 or retaliated against her for engaging in

protected activity under the Rehabilitation Act, we find that there

is sufficient evidence on record to establish a triable issue as to

whether the VA failed to implement the accommodation requests at

the time of Enica’s transfer to the CSU in 2002. Accordingly, the

trial court’s judgment is affirmed in part and vacated in part.

Each side shall bear their own costs.

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