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Starkey v. Missouri Department of Elementary and Secondary Education

United States District Court, E.D. Missouri, Eastern Division

January 12, 2017




         This action is before the court upon the cross motions of the plaintiff and the defendants for judgment as a matter of law, based upon the administrative record. (ECF Nos. 19, 21.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court heard oral argument on July 14, 2016, and the matter is ready for disposition.

         On January 25, 2016, plaintiff Felisha Starkey commenced this action against defendants Missouri Department of Elementary and Secondary Education, Division of Vocational Rehabilitation (“VR”), and the Commissioner of the Department of Elementary and Secondary Education. Plaintiff brings the action under Title 1 of the Rehabilitation Act, 29 U.S.C. § 722(c)(5)(J)(i), which allows an aggrieved party to seek judicial review in a matter involving eligibility for vocational rehabilitation and the development of an individualized plan for employment.

         Plaintiff claims under 29 U.S.C. § 722(b)(3)(F) that defendants:

(a) failed to timely develop her individualized plan for employment (Count 1);
(b) denied her right to an informed choice between employment outcomes under 29 U.S.C. § 722(b)(3)(B) (Count 2);
(c) violated her due process rights under 29 U.S.C. § 722(a)(5) (Count 3);
(d) through the hearing officer violated her due process rights under 5 C.S.R. § 20-500.190(8) (Count 4);
(e) through the Commissioner violated her due process rights under 5 C.S.R. § 20-500.190(10) and (12) (Count 5);
(f) violated her rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et seq. (Count 6); and
(g) discriminated against her under § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Count 7).

         The court has subject matter jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 722(c)(5)(J)(i). The court must consider the record and decide the case by a preponderance of the evidence. See 29 U.S.C. § 722(c)(5)(J)(ii).


         From the record before it, the court makes the following findings and conclusions:

         A. Medical History

         On October 2, 2000, plaintiff was seen at Barnes-Jewish Hospital in St. Louis by Robert A. Swarm, M.D., in the Pain Management Clinic. She was prescribed several pain medications, including gabapentin, Percocet, OxyContin, Prozac, amitriptyline, and lorazepam for various mental health issues, as well as methylphenidate for excessive daytime sedation. (ECF No. 12 at 14.)

         On February 22, 2001, plaintiff was seen by Robert A. Swarm, M.D., for pain medication management. Plaintiff reported that the medication regime at the time allowed her to “have a life” and she had recently accepted a job. She reported right ulnar neuropathy, pain in the right arm through the elbow. Dr. Swarm did not adjust her pain medications at this visit. (Id. at 16.)

         On September 12, 2001, plaintiff was seen by Dr. Swarm for pain management. She reported significant life changes including an increase in daily exercise, cessation of smoking, and she discontinued her use of Prozac. Dr. Swarm increased plaintiff's gabapentin, and discontinued the amitriptyline. (Id. at 17.)

         On April 15, 2002, plaintiff was seen by Dr. Swarm for pain management. Plaintiff reported significant right side sciatica caused by a disc bulge. Plaintiff was being assessed by two spine surgeons for possible surgery. Plaintiff's medications controlled her pain, but she has had occasional flare-ups. She had ulnar nerve transposition for her right ulnar neuropathy. There were no changes to her pain medications. (Id. at 18-19.)

         On January 29, 2003, plaintiff was seen by Dr. Swarm for pain management. Plaintiff had visited an emergency room due to a migraine headache and was prescribed several medications. Dr. Swarm indicated that prophylactic therapy was not indicated for the migraine headaches as of yet, because plaintiff's migraines were highly infrequent. Dr. Swarm indicated a trial of Maxalt, a migraine pain medication, was initiated but did not change plaintiff's chronic pain medications. (Id. at 20.)

         On March 4, 2005, plaintiff saw Dr. Swarm for pain medication management. Her medications were not changed. (Id. at 21-22.)

         On May 15, 2006, plaintiff saw Dr. Swarm for pain management. She was complaining of increased back pain. Due to the severity of the pain, plaintiff had curtailed some of her normal activities and had to be absent from work. Dr. Swarm filled out Family Medical Leave paperwork for her due to these needed absences. No major changes were made to her medication list. (Id. at 23-24.)

         On October 5, 2006, plaintiff saw Dr. Swarm for pain management. She reported her back pain was more of a problem at this time than her facial neuralgia. She continued to express interest in decreasing her use of medication. She was to start another trial of pain medication, desipramine. Plaintiff was to consider physical therapy as well. (Id. at 25.)

         On March 31 and April 21, 2009, plaintiff filled out health assessments for VR Services. She listed the medications she was taking for chronic pain, depression, anxiety, and high blood pressure. She stated that she would have problems sitting or being upright for eight hours, and there was an inability to type. (Id. at 45-48.)

         On August 29, 2011, plaintiff filled out a health assessment questionnaire. She listed numerous medical issues including: pain, headaches, problems in her arms and legs, as well as depression. (Id. at 4-5.)

         On February 7, 2014, plaintiff's doctor, Anthony Guarino, M.D., sent a letter stating plaintiff would be capable of attending school and working with certain accommodations: voice activated software, digital textbooks, and a headset that would not put pressure on her head. (Id. at 6-7.)

         B. Vocational Rehabilitation History

         Plaintiff was first determined eligible for vocational assistance on February 15, 2007, and was determined to have post-lumbar laminectomy syndrome; ongoing back pain after surgery; secondary to atypical facial neuralgia; and intermittent, shooting pain in the face. The right side of her face was swollen and her left eye was partially swollen shut. As a result of her medications she can stay awake only three to four hours at a time before she has to rest. Also she has difficulty sitting or standing for long periods of time due to her back pain. (Id. at 1; ECF No. 13 at 3.)

         On October 8, 2007, plaintiff went to MERS-Goodwill for an exploratory evaluation to determine an appropriate vocational objective. Several tests were performed, but due to pain in plaintiff's hands and shoulders not all tests could be performed. (ECF No. 14 at 56-59.)

         On April 21, 2009, plaintiff was evaluated again and determined to be eligible for services. She was listed as primarily having degenerative disc disease and, secondarily, trigeminal/occipital neuralgia and nerve pain in her hands and arms. (Id. at 2.)

         On August 29, 2011, plaintiff filled out a health assessment questionnaire, which listed her current disabilities as facial pain, occipital neuralgia, nerve pain in both arms and hands, low back pain, nerve pain in both legs, migraines, anxiety, and depression. (ECF No. 12 at 53-54.) She also filed an application for vocational rehabilitation services. (ECF No. 13 at 1-5.)

         The Missouri Division of Vocational Rehabilitation determined that as of September 6, 2011, plaintiff was significantly disabled and eligible for VR services. Her listed impairments were atypical facial neuralgia and post-lumbar laminectomy syndrome. She had limited endurance and mobility; limited ability to bend, twist, or lift; limited upper extremity function; sensitivity to light, noise, and pressure on her head; chronic pain; the need to frequently change positions; and the need to avoid bending her arms. (Id. at 420-21.)

         On December 9, 2011, plaintiff moved to Pacific, Missouri, requiring the transfer of her case from one VR office to another closer to her. She indicated that she was starting to search for part-time employment based on her current abilities instead of predicting her future medical problems. (Id. at 412.)

         On July 16, 2013, plaintiff met with VR representatives regarding her case and her interest in acquiring employment as a speech language pathologist (SLP) or as a social worker. Plaintiff was of the opinion neither of those occupations would involve a significant amount of typing and would allow her to change posture positions as often as needed. Plaintiff did not seem interested in employment services that would try to obtain employment by using her existing skill set. (Id. at 367.)

         On August 12, 2013, Claire Beck, VR office director, added a case note regarding the denial of any additional educational training, given plaintiff's current level of education (a Bachelor's degree in psychology and a Master's degree in management information systems), as well as significant disabilities. (Id. at 363, 367.)

         On August 13, 2013, plaintiff sent an email to Ms. Beck expressing her frustration with the process. Plaintiff listed many of her problems with the employment options suggested so far by VR, including: customer service jobs, any significant telephone usage, and sales jobs with significant computer usage. Plaintiff did not believe she could reenter the employment market with any of her current skills and, therefore, she conducted research into speech pathology and social work. Both require significant additional education. (Id. at 359-62.)

         On August 19, 2013, VR sent plaintiff a letter discussing the decision to assist her in obtaining employment with her limitations and the accommodations she requires, but with the skills she already possessed. She was denied the funding for any further college training. She was advised she had the right to appeal that decision. (Id. at 355, 357.)

         On January 3, 2014, VR representatives discussed plaintiff's case and suggested Ms. Beck, the office supervisor, take over the case, because plaintiff was complaining about unresponsive personnel. Ms. Beck noted that plaintiff was only interested in contacting VR at the beginning of academic semesters. (Id. at 353.)

         On February 3, 2014, plaintiff was advised by a VR representative that her case has been pending as eligible for over 600 days, and that, if she did not supply updated medical records, her case would be closed. (Id. at 349.)

         On March 11, 2014, plaintiff met with Ms. Beck who summarized the meeting and indicated it may not be realistic to believe that plaintiff could work enough to get off social security disability because of the severity of her pain and symptoms. Plaintiff, who last worked 7 years earlier, described her current employment needs as work that does not cause her pain to flare up; allows her to interact with people, because that helps take her mind off her pain, counteracts her depression, anxiety, and worry, and increases her self-esteem; does not require her to type a lot, sit too long, hold her arms bent, stand, walk or twist a lot; is better scheduled for earlier in the day when her symptoms are better; involves no pressure on her head; avoids bright lights which hurt her eyes; allows her to move around, change positions, walk around, and control her activity; allows her to take breaks; and uses voice activation software, which she feels is needed as an accommodation. Plaintiff stated that she did not have a vocation goal in mind and was not set on speech pathology. (Id. at 346-47.)

         On April 10, 2014, plaintiff emailed Ms. Beck regarding her meeting with two other representatives. She refused to agree to VR interviewing her family and friends or providing VR representatives with her medication list. She stated that she did not want the list of medications placed in her file for fear someone might try and steal the medications. Additionally, plaintiff claimed that the representatives insisted she do jobs that she could not perform due to disabilities in her arms. She believed that these representatives were not taking her disabilities into due consideration. (Id. at 292-93.)

         On April 29, 2014, plaintiff signed a statement of understanding regarding the purpose of the Discovery and Exploration provided by the Missouri Division of Vocational Rehabilitation and MERS-Goodwill. Its purpose was to “determine a vocational goal that is suitable for me considering my skills, interests, aptitudes, abilities, and limitations.” (ECF No. 12 at 49.)

         Also on April 29, 2014, plaintiff applied for assistive technology for educational and future employment use. (ECF No.14 at 99-100.)

         On April 30, 2014, plaintiff met with both MERS-Goodwill representative Leslie Quarles and others about the Discovery and Evaluation process. It was noted that plaintiff was generally uncooperative with the representatives and she would only discuss those activities she could not do. VR determined that her pain was subjective and her limitations were so fused into her brain that she would automatically reject any suggestions that were not what she had already decided on-training for speech pathology. She was currently enrolled in two online classes for speech pathology through the University of Utah. Although she was currently using the computer to type and participate in these classes, she insisted that VR needed to provide her voice activated software for these classes. Plaintiff was described as being as difficult as possible; she would not look up phone numbers or make phone calls as part of the process without the voice software. Plaintiff stated that, if this does not work out the way she would like it to, she will “have a hearing and fight it out with you in court.” Plaintiff stated she could not do repetitive hand motions; needs to be able to sit, stand, walk, and do different physical activities; is interested in using her voice to do the job; and likes interacting and helping people. (ECF No. 13 at 290-91.)

         On April 29, 2014, plaintiff and Ms. Quarles met for a planning meeting. Plaintiff desired employment that would provide necessary minimum income instead of disability. Her limitations were listed again and she emphasized that she would need flexibility to do certain tasks at home or on other days due to her disabilities. (ECF No. 14 at 50-52.)

         On May 2, 2014, Ms. Beck provided plaintiff with a possible job opportunity and requested a copy of plaintiff's resume. Plaintiff stated she was interested, but saw no use in providing her resume as it had not been determined what type of employment she should be pursuing. (ECF No. 13 at 266-71, 276-80.)

         On May 12, 2014, an update email was sent regarding plaintiff's case. Plaintiff was uncooperative in providing specific information regarding her medications, or in releasing her medical information to her advocate. Goodwill's representative attempted to explain how the medical information would be necessary if a specific vocational goal was developed after the discovery portion of plaintiff's case was completed. Plaintiff reiterated that was not necessary and she wanted to see such a demand in writing. (ECF No. 13 at 256.)

         On May 27, 2014, plaintiff met with Goodwill staff member Donald Vaisvil who provided an overview of the voice-activated computer program. He explained that a user needed to spend several hours and sessions working with the program, which continues to adjust to the specific user. (ECF No. 14 at 1-3.)

         On June 3, 2014, Bob Cunningham, Ph.D., assessed plaintiff for an assistive technology assessment. Dr. Cunningham's goal was to investigate the use of assistive technology to assist with plaintiff's participation in work and post-secondary education. However, plaintiff could not demonstrate this technology for Dr. Cunningham because she lacked an alternative earphone or headset. Dr. Cunningham discussed the use of different note-taking software and some of the accessibility features of her Apple® products. It was noted that plaintiff might benefit from an adjustable desk due to her inability to sit or stand for prolonged periods of time. (ECF No. 14 at 47-49.)

         On June 4, 2014, plaintiff and Goodwill representatives exchanged emails regarding plaintiff's ability to answer some of the skill questionnaires. Plaintiff complained she could not continue having long meetings with VR personnel and Goodwill representatives. Goodwill noted that plaintiff had been complaining of constantly driving to appointments. (ECF No. 13 at 181-86.)

         On June 9, 2014, plaintiff and Goodwill representatives exchanged emails regarding her need for assistive devices. Plaintiff insisted her treatment and school had nothing to do with her employment evaluation and the reason her plans had not moved forward was the result of Goodwill and her advocate expecting her to do things her disabilities prevented her from doing, such as answering emails frequently, researching and following up on matters independently, or driving to appointments. Plaintiff insisted that, if she was denied these items, it was because the Goodwill representative has “a lack of understanding [regarding] invisible disabilities.” She then requested the representative's supervisor's contact information. (Id. at 164-80.)

         On June 13, 2014, plaintiff and Goodwill exchanged emails regarding meetings and her expectations, including an attempt to update her résumé. Plaintiff resisted updating her résumé and was unable to continue emailing Goodwill, because it was taxing on her ...

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