Ferrero v. Henderson (341 F. Supp. 2d 873, 2004)

ORDER

OVINGTON, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Leslie D. Ferrero brings this employment discrimination case under the Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. §§ 791, et seq., and the Family and Medical Leave Act of 1993 (“the FMLA”), 29 U.S.C. §§ 2601, et seq. She brings her claims under the Rehabilitation Act against Defendant William J. Henderson, former Postmaster General of the United States Postal Service; she brings her claim under the FMLA against the United States Postal Service.

This case is before the Court, following a four-day bench trial, on Ferrero’s Proposed Findings of Fact and Conclusions of Law (Doc. # 120), Defendants’ Proposed Findings of Fact and Conclusions of Law (Doc. # sl21-125), and the record as a whole. The parties have consented to jurisdiction under this Judicial Officer pursuant to 28 U.S.C. § 636(c).

As Ferrero summarizes, “The essential issues in this case are whether the defendant discriminated against, harassed, constructively discharged, terminated, or retaliated against [her] in violation of the Rehabilitation Act or the' FMLA.” (Doc. # 120 at 2).

The following opinion contains findings of fact and conclusions of law as required under Fed.R.Civ.P. 52(a). The Court reaches its findings of fact based on a preponderance of the admissible evidence. In addition, the Court notes that Defendants’ Motion under Fed.R.Civ.P. 50 (Tr. 849), which was taken under submission at the close of Ferrero’s case in chief and which is properly brought under Rule 52(c), is denied because there is an eviden-tiary basis to support Ferrero’s claim of retaliatory termination under the Rehabilitation Act. See Fed. R. 52(c); see also infra, § III(B).

II. BACKGROUND

A. Ferrero’s Initial Employment and Injuries

On November 26, 1994, Ferrero began working part time for the United States Postal Service at its Post Office in Cedar-ville, Ohio. The Postmaster of the Cedar-ville Post Office was Roy Conover. Con-over hired Ferrero and was her immediate supervisor.

The Cedarville Post Office was not a large facility. In 1994, there were approximately nine Postal Service employees working at the Cedarville Post Office including both Ferrero and Conover. (Tr. 384-86).

Ferrero began working as a rural carrier associate. This involved substituting for a regular mail carrier on his or her day off. (Tr. 651). Approximately two years later, in December 1996, Ferrero began working full time and eventually took over the job duties of a regular mail carrier. (Tr. 386).

Prior to 1997 Ferrero was a happy friendly person, who was very lighthearted, exuberant and outgoing. (Tr. 112). She viewed herself as “energetic, outgoing, and friendly.” (Tr. 657). During her first years with the Postal Service, Ferrero had no difficulty. She acknowledges that prior to July 7,1997, Conover treated her “fairly and appropriately.” (Doc. # 98 at ¶ 17; Doc. # 120 at ¶ 9).

On July 7, 1997, Ferrero suffered an on-the-job injury when she tripped on a curb and fell. (Tr. 659). After she fell, she laid there approximately ten minutes. She was scared because she wanted to finish making her mail deliveries. (Tr. 660). She therefore got up, completed her deliveries in forty-five minutes, and returned to the Cedarville Post Office.

Ferrero reported her fall and injuries to Conover who became “really angry,” according to Ferrero. (Tr. 661). Conover did not believe Ferrero was injured; he believed she was lying to him. (Tr. 391-92; 518-19). Conover told Ferrero to complete an accident report (Defendant’s Exhibit 5) and asked her if she needed medical attention. She declined medical attention and drove home. Id.

B. July 7 — August 11,1997

Ferrero’s pain increased during the night of July 7-8, 1997. When Ferrero reported to work on July 8, 1997, she told Conover that she needed to see a doctor. Pursuant to Postal Service policy, Conover drove Ferrero to a see the physician retained by the Postal Service. (Tr. 393-94). After the physician examined Ferrero and had x-rays taken, he prescribed pain medication and imposed three work restrictions: no lifting over ten pounds, no raising her left arm above shoulder height, and no driving with her left arm. (Tr. 528, 662; Defendant’s Exh. 6 at 1). The physician informed Conover about these work restrictions, and also told Conover that Ferrero needed to take a prescription pain medication. (Tr. 661-62).

After they returned to the Cedarville Post Officer, Conover instructed Ferrero that she would have to abide by her work restrictions. (Tr. 530-31). Although Con-over knew the physician had prescribed pain medication for Ferrero (Tr. 662), Con-over instructed her to case mail. This involved looking at the address on a piece of mail and putting it in a slot labeled with the same address. (Tr. 529). This work caused Ferrero further pain, but she did not tell Conover because he appeared to her to be “extremely agitated.” (Plaintiffs Exh. 4 at 109). Significantly, this work prevented Ferrero from obtaining the prescribed pain medication until she completed casing the mail as Conover had instructed. (Tr. 662).

On July 9, 1997, Ferrero reported to work. Although she eased mail and separated and labeled twenty-two parcels, this work caused her pain. Ferrero alleges that Conover “just snickered and ignored the situation.” (Plaintiffs Exh. 4 at 111). He also told her to be sure not to lift her left arm over shoulder height but then smiled, snickered, and walked away. Id.

On July 10, 1997, Ferrero again cased mail. She had an appointment that day for a physical-therapy evaluation. Con-over told her that there was no way her fall caused those injuries and that physical therapy was “a real joke.” Id. at 111-12. The next day, according to Ferrero, Con-over “was at the boiling point.” Id. at 112. She continued to work in pain. By this time, her co-workers were avoiding conversation with her. Id. This kept them out of trouble with Conover.

Ferrero worked on July 12 and 14,1997. She noted on July 14th that her co-workers did not speak to her unless she spoke to them first. Id. at 113.

On July 15,1997, after reporting to work and easing mail, Ferrero went to a followup visit to the Postal Service physician. (Plaintiffs Exh. 4 at 114). This resulted in a more limited work restriction: no lifting over five pounds. (Defendant’s Exh. 6 at 4). When she returned to work and gave the physician’s further restriction to Con-over, he “blew up — threw the paper up in the air-” (Plaintiffs Exh. 4 at 114).

Ferrero cased mail on July 16, 1997, went to physical therapy, and returned to work. She answered phones and continued to be in a lot of pain. Id. at 115. On July 17, 1997, Ferrero went to another follow-up visit with the Postal Service physician. The physician reported that Ferre-ro would be unable to return to work. (Defendant’s Exh. 6 at 6). Conover phoned Ferrero at 11:30 P.M. and instructed her to report to work the next day, which she did. (Plaintiffs Exh. 4 at 115). The next day, Ferrero overheard Conover ask a union steward “how to get rid of her, what he could do.” (Tr. 668; Plaintiffs Exh. 4 at 115-16). She overheard this comment because Conover had instructed her to sit in an area where she could hear his conversation with the union steward. See Tr. 668; Plaintiffs Exh. 5 at 116.

The Postal Service physician’s treatment notes indicate that on July 18, 1997, he received a call from the Postal Service’s Medical Officer in Cincinnati offering Fer-rero a job answering telephones only. (Defendant’s Exh. 6 at 5). The physician noted, “This is acceptable job placement if honored by management. Will call [patient] to inform.” Id. at 5,' 8. Conover testified that he permitted Ferrero to work answering phones only. (Tr. 540).

Ferrero worked on July 18 and 19, 1999 (Plaintiffs Exh. 4 at 118-19). On July 21-25, 1997, Ferrero received the “silent treatment” from her co-workers. Id. at 120-21. On July 25, 1997, Conover snickered and told Ferrero — in front of her coworkers — that “it doesn’t pay to be hurt.” Id. at 122.

On July 26, 1997, Conover was not at work. Plaintiffs Exh. 4 at 122. Ferrero’s co-workers were a lot more friendly, and she worked without negative incident. Id. By this time, however, Ferrero had begun to vomit and experience other symptoms. She called in sick ,on her next scheduled work day, Monday, July 28, 1997, and continued to be pick through the week. Id. at 123. She went to her doctor on July 31, 1997 and her bloqd pressure was high. Id. She was reap shaky, vomiting, very dizzy, had severe diarrhea, was clammy, and had high blood pressure. (Tr. 673). Ferrero’s physician, informed her that she was suffering from “severe anxiety;” (Tr. 673, Plaintiffs Exh. 3). .. .

On August 1, 1997, Shahda Aziz, M.D., Ferrero’s physician, completed a certificate stating that Ferrero would not be able to return to work until August 4, 1997. Dr. Aziz noted, “work related ‘stress’ (severe) in which [patient] is vomiting/diarrhea.” (Defendant’s Exh. 6 at 11). Also on August 1, 1997, the Postal Service physician reported that Ferrero could work with the following restrictions: lifting, pulling, or pushing up to two pounds. (Defendant’s Exh. 6 at 12).

At some point during the summer of 1997, Ferrero contacted Lucille Welch, an employee of the Postal Service in Cincinnati who handled injury or workers’ compensation claims. (Tr. 665, Defendant’s Exh. 10 at 7). Ferrero told Welch about Conover’s harassment. (Tr. 665). Near August 4, 1997, Welch informed Ferrero that Conover went “ballistic on the phone with her [Welch].” (Tr. 671; Defendant’s Exh. 10 at 7). Conover testified at trial that he never went ballistic in a conversation with- Welch about Ferrero. (Tr. 634).

Ferrero returned to work on Monday, August 4, 1997, although she still felt “horrible” and “depressed.” (Tr. 675; Plaintiffs Exh. 4 at 125). She was still vomiting and was unable to sleep through the night because of the stress Conover had caused. (Tr. 675). She worked through the week, however, and still experienced the “silent treatment” from her co-workers. (Tr. 675; Plaintiffs Exh. 4 at 126-27). On August 7, 1997, Conover said in a very loud voice, “If anyone ever crosses me or does something I don’t like, I always get even. Right or wrong I always get even. It’s been that way for 35 years[,] that’s why no on every [sic] messes with me.” (Plaintiffs Exh. 4 at 127). On direct examination at trial, Conover testified that he did not say this. (Tr. 568). On cross examination, however, Conover acknowledged that during his deposition he testified that it was possible he had said this. (Tr. 636). He explained at trial that the more he thought about, the more he believed it was not possible that he had said this. (Tr. 636).

On August 8, 1997, the Postal Service physician altered Ferrero’s work restrictions to lifting, pushing, and pulling up to five pounds. (Defendant’s Exh. 6 at 13). Only four days later, however, the Postal Service physician reported that Ferrero was unable to report to work. (Defendant’s Exh. 6 at 14). This occurred just after the following events on August 11, 1997, the last day Ferrero reported to work.

At around 10:00 A.M. on August 11, 1997, Ferrero went outside for a break. She describes the next events as follows:

[A] customer ... pulled in the parking lot. And came up and talked to me and said: Leslie, what is going on. And I kind of asked her what she meant. And she said, something about me filing a sexual harassment suit and that Mr. Conover was going to get even with me. He was out to get me.

And I directly walked back in the post office. A[sic] told Mr. Conover that I was sick and I went home directly....

(Tr. 675).

Ferrero testified that she did not report to work after this because she “couldn’t tolerate the environment. It was hostile. I was sick.” (Tr. 678).

C. August 15, 1997 through September 1997

On August 15, 1997, the Postal Service physician estimated that Ferrero would be able to return to work on September 2, 1997. (Defendant’s Exh. 6 at 15). Also on August 15,1997, a physician reported to an Officer of Workers’ Compensation that Ferrero was suffering from costocondritis, chest wall contusion, and concurrent workplace stress. (Defendant’s Exh. 7). The physician noted that Ferrero had been referred to “[K]athy O’Hearn, Ph.D. for supportive counseling.” Id.; see Plaintiffs Exh. 4 at 129.

On August 27, 1997, the Postal Service physician reported that Ferrero would be able to return to work on September 2, 1997 with restrictions preventing her from lifting, pushing, pulling more than ten pounds, and from twisting more than six to ten times per hour. (Defendant’s Exh. 6 at 17). Ferrero did not return to work on September 2,1997. (Tr. 678).

On September 10, 1997, the date of Fer-rero’s next scheduled appointment with the Postal Service physician, the physician reported that Ferrero was able to return to work without restrictions. (Defendant’s Exh. 6 at 18). This conclusion, however, failed to take into consideration the significant psychological symptoms Ferrero was then suffering. See id. at 18-19.

On September 15, 1997, the Department of Labor accepted Ferrero’s claim for continued pay due to her “contusion of the left side of the chest....” (Defendant’s Exh. 27 at 36). One week later, Conover filed a form with the Department of Labor challenging, on behalf of the Postal Service, Ferrero’s claim for continued pay. (Defendant’s Exh. 27 at 38). The Department of Labor eventually disallowed Ferrero’s claim for continued pay after finding that “[t]he evidence on file fails to establish that an emotional injury or condition was sustained or incurred as alleged due to factors of the employment.” (Defendant’s Exh. 27 at 41).

In early September 1997, Ferrero’s physician referred her to psychologist Kathleen O’Hearn, Ph.D.

D. Ferrero’s Psychological Symptoms and Adjustment Disorder

In September 1997, Dr. O’Hearn certified Ferrero as unable to work. (Tr. 676; Defendant’s Exhs. 39-40). On September 8, 1997, Ferrero filed a form with the Department of Labor titled, “Notice of Occupational Disease and Claim for Compensation.” (Defendant’s Exh. 27 at 37). Ferrero stated in this form that she was suffering from an “anxiety disorder, secondary to injury.” Id.

Dr. O’Hearn treated Ferrero until late September 1997 when she referred Ferre-ro to Kathleen J. Burch, Psy.D., R.N. (Plaintiffs Exh. 42). Burch began treating Ferrero in late September 1997 and continued treating her until December 1999. (Tr. 244).

Burch initially diagnosed Ferrero as suffering from anxiety disorder. After additional sessions with Ferrero, Burch altered her diagnosis to adjustment disorder. According to Burch, a person suffering from an adjustment disorder experiences mixed symptoms of anxiety and depression due to an identifiable stressor. (Tr. 247, 253). Burch recognized that Ferrero suffered a range of symptoms of anxiety due to her work situation. (Tr. 248, 250). The stres-sor that caused Ferrero to seek mental health treatment was “the injury she had had and the response of her supervisor,” according to Burch. (Tr. 247).

Stephen Roy, a friend of Ferrero’s who did not work for the Postal Service, testified that before 1997, Ferrero was a very lighthearted, exuberant outgoing, happy, and friendly type of person who “made a lot of friends and knew a lot of people.” (Tr. 112-13). She was, in Roy’s words, “very outgoing, [a] very great person. Lots of fun to be around.” (Tr. 114).

Roy raises pure bred sheep. (Tr. 112). Ferrero worked for him showing sheep in national and international livestock shows. (Tr. 112). According to Roy, Ferrero “is was [a] very well renowned showman and fitter.” (Tr. 112). Roy respected Ferrero because she helped a lot of people in the livestock-showing industry. (Tr. 114). Referring to her activities in helping others, especially teaching children about showing livestock, Roy characterized Fer-rero as “one of the top people in the country.” (Tr. 114).

According to Roy, about one month after Ferrero was injured in July 1997, he asked her to show sheep for him at a National show in November 1997. (Tr. 113). Fer-rero was unable, however, to show sheep for Roy at this show and did not work for Roy after July 1997. (Tr. 113). Although Ferrero attended two or three livestock shows during the year after her injuries, Roy noticed that Ferrero “looked as though she was very stressed. And often would have a stiff neck type of thing. And she seldom smiled.” (Tr. 115). Roy further described Ferrero after July 1997 as “quite reclusive-” (Tr. 117).

In a letter dated January 11, 1998, Burch opined that Ferrero would never be able to return to work for the Postal Service “because of her feelings about the way she has been treated.... ” (Defendant’s Exh.45 at 26). In October 1998, Burch wrote that Ferrero was continuing to experience “significant symptoms of depression, anxiety, and neck pain and spasms. She continues to suffer loss of teeth and gastro-intestinal distress. She feels easily overstressed and exhausted.” Id. at 7. In March and December 1999, Burch confirmed her opinion that Ferrero “is unlikely to ever be able to tolerate work with the Postal Service.” Id. at 28-31.

E. Conover

As described above, supra, § 11(B), Conover began to treat Ferrero differently after she fell on July 7, 1997. According to Ferrero, Conover became “real ornery. And he just wouldn’t let up on anything. He was awful.” (Tr. 664). This caused Ferrero serious emotional stress. As discussed in more detail above, § 11(D), Fer-rero sought and received psychological treatment due to the stress caused by Conover’s conduct.

Conover testified that he did not believe Ferrero’s claim to a physical injury because he did not see any physical evidence of injury. (Tr. 459, 518-19). He testified, however, that he was not angry with Fer-rero and that he did not act mean or rude to Ferrero between July 7 and August 14, 1997, or at any time after she was hired. (Tr. 548-49). Ferrero, in contrast, testified that Conover “just wouldn’t relent I mean he is a big man and when he gets in your face, you are intimidated.” (Tr. 661).

One of Ferrero’s co-workers, Sheila Ze-man, testified that after she suffered an on-the-job hand injury, Conover began to treat her differently. (Tr. 186-87). Ze-man explained, “His attitude changed. He was less friendly. He was harsh about different things. He just — he seemed like he tried to intimidate me after the injury.” (Tr. 187).

Zeman testified that when one of her coworkers, Nancy Hatten, called in sick, Conover became irritated and a couple of times caller her “a bitch.” (Tr. 189-90). Ferrero also heard the same kind of talk from Conover. (Tr. 686). Conover testified that it was possible he called an employee “a bitch.” (Tr. 556).

At some point Zeman obtained a transfer to a different Post Office because the environment at the Cedarville Post Office was not friendly. (Tr. 191). Zeman attributed the cause of this to Conover. She testified:

I can give examples. His frustration when Nancy would not be at work. If someone was sick, that seemed to irritate him. And he shared different things about Leslie’s [Ferrero’s] employment as far as her on the job situation. How she handled her job. And what she did and what she didn’t do right. And then when things would happen, there would be other employees in the post office that would not have much to do with you or Say anything because no one wanted to cross Mr. Conover.

(Tr. 191).

Before 1997, Conover never drove past Ferrero’s home. On several occasions after the summer of 1997 arid into 1998, Ferrero saw Conover drive slowly past her home.. (Tr. 681). She viewed this as surveillance and harassment. (Tr. 681; see Doc. # 120 at ¶ 43). In late 1997 and after 1997, Zeman saw Conover drive past Fer-rero’s home on three or four occasions. (Tr. 188). Zeman recognized Conover’s car because it had personalized license plates. (Tr. 188).

. On March 31, 2002, when Conover retired, he took documents concerning Fer-rero and other employees to his home. (Court Exh. I; see Tr. 378, 381-83, 469). These documents concerning Ferrero included, in part, Conover’s handwritten notes; Postal Service documents, such as those relating to Ferrero’s EEO proceedings; and Ferrero’s personal medical documents including documents related to the mental health treatment she received. (Court Exh. I). Although Conover shredded other employee’s files, he did not shred Ferrero’s documents, because he “knew there was an action pending and [he] thought [he] might need some of [the] notes.” (Tr. 515; see 381-83).

Conover testified that he unknowingly required Ferrero to perform work in excess of her restrictions. (Tr. 462, 536-37). The work Conover required her to perform beyond her restrictions included pushing a cart with mail and parcels in it through doors. (Tr. 685). This cart weighed forty-four pounds when empty. (Tr. 685). Ferrero had to push the cart through two huge metal doors. (Tr. 686). The Postal Service determined that Con-over did not work Ferrero beyond her restrictions. (Plaintiffs Exh. 15).

F. Ferrero’s EEO Proceedings

In September 1997 Ferrero filed a document seeking informal pre-complaint counseling with the Postal Service’s Equal Employment Opportunity (“EEO”) office. (Plaintiffs Exh. 6). This led to “counseling,” a term the Postal Service’s EEO office uses to describe the investigation it conducts and its discussion with management to attempt to resolve the pre-com-plaint. (Tr. 45).

On November 18, 1997, a mediation session occurred involving a federal mediator, Ferrero, her attorney, and Conover. At that time, Ferrero had no intention of returning to work. (Tr. 758). Ferrero testified, “I just wanted it to be over with. I wanted Roy [Conover] to acknowledge what he had done. I wanted the post office to acknowledge that I was ill. I still wanted to work for them, but I knew that I couldn’t by that time.” (Tr. 679).

During the mediation, according to Fer-rero, Conover became “red faced and angry. And about that time the mediator terminated the meeting.... And Mr. Con-over grabbed the table and you could see his knuckles and they were really white and [he] picked it up just a little bit.” (Tr. 679).

Ferrero’s attorney at the mediation was Augustus Ross. Attorney Ross testified at trial that Conover was not prepared to go forward because he was not represented. (Tr. 217). Attorney Ross described Con-over as appearing “very agitated. And, of course, [he] always leered at Ms. Ferrero.” (Tr. 217; see Tr. 219). Attorney Ross testified that Conover’s “blood pressure was up. He was very red_[A]s soon as the mediator said he was permitted to leave, he grabbed the table and jumped up and the table bounced.” (Tr. 218).

In December 1997, Ferrero filed with the EEO office a document titled “EEO Complaint of Discrimination in the Postal Service.” (Plaintiffs Exh. 8). This Complaint contained a box designated “disability,” which was checkmarked. Ferrero alleged that the discrimination began on July 7, 1997, noting (through attorney Ross) as follows:

Over a period of time. When injury occurred Roy Conover didn’t believe Ms. Ferrero. He worked her against Workers Comp doctors orders; threatened her; followed her. Roy Conover caused a hostile work environment for Ms. Fer-rero, he followed her, called her late at night, had others follow her. Roy Con-over, by his actions, caused Ms. Ferrero physical, psychological and emotional damage causing her not to be able to move her neck without medication.

Id.

In the Spring of 1998, Ferrero and attorney Ross attended a meeting with Postal Service EEO counselor Arper Tentman. (Tr. 682). Ferrero was hoping for some sort of resolution of the situation. (Tr. 682). Attorney Ross testified that Tent-man began to ask Ferrero questions in a normal voice. Tentman then “got a little gruff with Mrs. Ferrero,” according to attorney Ross. (Tr. 227). After attorney Ross told Tentman to change his tone of voice or they would leave, Tentman became much more polite. (Tr. 227).

During the meeting, Tentman instructed Ferrero to fill out an affidavit despite the fact that she had already submitted a mul-ti-paged chronology. (Tr. 682). Attorney Ross suggested that they xerox the chronology and have Ferrero sign it, effectively making it her affidavit. Yet, Tentman rejected this idea and required Ferrero to physically rewrite the statement, a task that took her a couple of hours. (Tr. 682-83). During this meeting, Conover was also in the area and Ferrero overheard Conover call her a liar. (Tr. 684). Ferre-ro testified that if this meeting resulted in an offer of a position, she would have attempted to work. (Tr. 757). She further testified, however, that she was still shaky, did not feel well, and had no intention of returning to work at that time. (Tr. 758).

By August 1998, the Postal Service’s EEO office had completed its internal processing of Ferrero’s Complaint, and she requested a hearing before an Administrative Law Judge (“ALJ”) with the United States Equal Employment Opportunity Commission. (Plaintiffs Exh. 17; Defendant’s Exh. 37 at 2).

Defendant never disciplined Conover for his work conduct because, according to Defendant, there was no reason. (Doc. # 104 at ¶ 12).

G. Termination of Ferrero’s Employment

On February 16, 1999, Conover sent a letter to Ferrero. (Plaintiffs Exh. 20). Conover did not write this letter; he received it from the Postal Service Office in Cincinnati. (Tr. 592). Thomas Lang, the Postal Service’s Manager of Human Resources, Cincinnati District, testified about this letter, stating “We call it in house and options letter. It is providing just an outline of what options are available to employees predicated on specific circumstances surrounding their reasons for being unavailable for duty.... [I]t would go out if a person abandons a job. It would go out if a person was injured and recovers and the medical documentation states they can work, however, they continue to say ... they need light duty or they don’t show up for work.” (Tr. 153).

Although Conover signed the February 1999 letter, it was prepared by Vincent Catalano at Conover’s request. (Tr. 853). Catalano was a labor relations specialist for the Postal Service’s Cincinnati Division. (Tr. 850). Catalano understood that Ferrero had indicated to the Postal Service that she was totally disabled. (Tr. 855).

The letter gave Ferrero the following options: (1) returning to full-time work with no restrictions, (2) accepting disability retirement, (3) resigning, or (4) resigning with deferred annuity. (Defendant’s Exh. 29). In addition, the letter also informed Ferrero of the Postal Service’s willingness to “fully explore all options with [her] in order to assist [her] in making a decision.” Id. It further stated that Ferrero could obtain more information and counseling by meeting with Richard Broyles of the Postal Service’s Personnel Office. Id.

Catalano testified that this general letter was sent to employees prior to termination outlining the options that might be available to them, even though none of the options might be available. He explained, “Everybody has got different circumstances, so we make it a general type of letter where they may be entitled to one of these [options], some of them or none of them. We don’t know. We just provide it to them as an option prior to terminating them basically.” (Tr, 854-55).

On March 8, 1999, Ferrero and attorney Ross met with Richard Broyles for four or five minutes. (Tr. 216, 761). At that time, Ferrero still did not feel well enough to return to work. (Tr. 758-59). During the meeting, Broyles never said anything about the possibility of Ferrero returning to work with limitations. (Tr. 760-61). Instead, Broyles told Ferrero and attorney Ross that none of the four options set forth in the February 1999 letter were available to her. (Tr. 216; Defendant’s Exh. 38 at ¶ 8). Attorney Ross “was a little bewildered why they had gone to all of that trouble to bring us over there..., because they didn’t have anything to say to us so we left.” (Tr. 217).

Conover had not been notified about Ferrero’s meeting with Broyles. (Tr. 417). Conover never spoke with Broyles about Ferrero. (Tr. 417).

By April 1999, Conover believed that Ferrero had not responded to the February 16, 1999 letter. (Tr. 417). Consequently, on April 5,1999, Conover wrote to the Postal Service’s Labor Relations department, Cincinnati Division requesting “concurrence in administratively separating ... Ferrero ... from the United States Postal Service.” (Defendant’s Exh. 30). Conover explained as follows:

She has not been in to work or correspond [sic] with me in any way since August 11,1997.

Enclosed are some documents to consider and Labor Relations may be able to show you more, as I have talked to a couple of people in that Office.

A handwritten note on Conover’s Memo indicates its author (probably Todd Reilly, the person to whom Conover sent the letter) concurred in Conover’s decision to terminate her employment, “if Labor is in Agreement?” (Defendant’s Exh. 30). Labor was in agreement, and on April 15, 1999, Conover sent Ferrero a letter informing her of the Postal Service’s decision to administratively separate her, effective May 29, 1999. (Plaintiffs Exh. 23).

“Labor,” it turns out, was Catalano. Catalano drafted the April 15, 1999 letter for Conover to sign and send to Ferrero. (Tr. 856; see Plaintiffs Exh. 23). When drafting this letter Conover incorrectly assumed that Ferrero had not responded to his February 16, 1999 letter. (Tr. 457). Conover testified at trial that this was one reason he sent the April 15, 1999 administrative separation letter. (Tr. 420). Cata-lano understood at this time that Ferrero had “failed to exercise any of the options or that none of the options fit her particular case.” (Tr. 857). Yet, Catalano also testified that he merely played an advisory role in the final decision to terminate Fer-rero’s employment. (Tr. 857). He testified, “I was not the deciding official. I was not the post master. As the labor relations representative, we are only there to provide advice.... It’s up to them whether or not they will want to follow through on it.” (Tr. 857). This testimony and Conover’s position as Postmaster with supervisory authority over Ferrero constitutes proof by a preponderance of the evidence that Conover had the authority to terminate Ferrero’s employment and that Conover made the final decision to terminate Ferrero’s employment.

On April 27, 1999, attorney Ross sent a letter to Catalano explaining that Conover was again harassing Ferrero by sending her a letter containing four options when no options were actually available to her and by then sending her a letter terminating her employment. (Plaintiffs Exh. 24). Ross stated, “This is just another form of harassment on the part of Mr. Conover. Apparently, he is permitted to act with impunity and without any supervision. He knows full well there are two actions pending.” Id.

Conover responded by letter on April 30, 1999 stating, “In discussing this matter with the Personnel Office, Ms. Ferrero has not elected to pursue any possible options made available by management.” (Defendant’s Exh. 33). Conover had obviously failed to grasp the point that Ferrero had not in fact been offered any available options by management. This statement by Catalano in his letter of April 30, 1999 conflicts with the portion of his trial testimony, where he stated that he understood Ferrero had “failed to exercise any of the options or that none of the option fit her particular case.” (Tr. 857 (emphasis added)). In fact, when he prepared the termination letter in April 1999, Catalano knew that she had failed to exercise any of the options given by management, not alternatively that the options did not fit her particular case.

Ferrero testified at trial that she remained unable to work for the Postal Service as a rural mail carrier and that she would be unable to work for the Postal Service either with or without restrictions, because she gets “halfway ill” when she goes to any post office. (Tr. 749-50). She further explained that she “can’t lift” and that only on some days she can reach above her shoulder with her left arm. (Tr. 750).

III. ANALYSIS

A. The Rehabilitation Act and Ferre-ro’s Claims

The Rehabilitation Act prohibits the Postal Service from discriminating against its employees. 29 U.S.C.A. § 794(a).

Ferrero claims that the Postal Service, through Defendant Postmaster General (“Defendant”), violated her rights under the Rehabilitation Act in the following ways:

1. Retaliating against -her by terminating her employment and by engaging in numerous acts of harassment;

2. Terminating her employment because she is under a “disability”;

3. Failing to accommodate her disability and failing to engage in an interactive process concerning what accommodations could and must be provided; and

4. Discriminating against her by subjecting her to a hostile or abusive work environment.

Ferrero also claims that the Postal Service violated her rights under the FMLA in numerous ways.

B. Retaliation — Applicable Standards and Prima Facie Case

1.

The Rehabilitation Act and McDonnell Douglas/Burdine

The Rehabilitation Aet prohibits the Postal Service from retaliating against an employee because he or she engaged in a statutorily protected activity. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.2001). Ferrero need not show that she is under a “disability” to maintain a claim under the Rehabilitation Act based on the theory that her employer retaliated against her because she engaged in legally protected activities. Davis v. Flexman, 109 F.Supp.2d 776, 801-02 (S.D.Ohio 1999)(Rice, C.J.); see Barrett v. Lucent Technologies, Inc., 36 Fed.Appx. 835, 840 (6th Cir.2002).

Ferrero did not present direct evidence at trial to prove her retaliation claims. She may, however, rely on circumstantial evidence. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir.1997). Thus, the McDonnell Douglas/Burdine analytical framework applies, and under this framework, Ferrero must first establish a prima facie case of retaliation. See Gribcheck, 245 F.3d at 550. To do so she must produce evidence supporting four elements:

1. She engaged in a legally protected activity;

2. Her employer knew about her protected activity;

3. Her employer took an adverse employment action or a supervisor subjected her to severe or pervasive retaliatory harassment; and

4.Her legally protected activity and her employer’s adverse employment action were causally connected.

Gribcheck, 245 F.3d at 550; see Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir.1997).

If Ferrero establishes her prima facie case of retaliation, the burden of production then shifts to her employer “to articulate some legitimate, nondiscriminatory [i.e., non-retaliatory] reason” for its actions. See Gribcheck, 245 F.3d at 550 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If her employer satisfies its burden of production, Ferrero must prove by a preponderance of the evidence that the asserted reasons for the adverse employment action were a pretext for retaliation. See Gribcheck, 245 F.3d at 550.

The ultimate burden of persuasion to prove retaliation remains with Ferrero at all times. See Gribcheck, 245 F.3d at 550.

2.

Defendant’s Contentions and EEOC v. Avery Dennison Corp.

The parties each present proposed findings of fact and conclusions of law concerning the issue of whether Ferrero has established a prima facie case of retaliation. (Doc. # 120 at ¶¶ 20-28); (Doc. # 124 at 11-12). Most significantly, while Ferrero further presents finding and conclusions drawn from her burden shifting analysis, Defendant rests his opposition to Ferrero’s retaliation claim only on the contentions that Ferrero has not proven the elements of a prima facie case of retaliation. See Doc. # 124 at 11-12. However, Defendant’s approach is contrary to EEOC v. Avery Dennison Corp., 104 F.3d 858, 860-61 (6th Cir.1997).

In Avery Dennison, the Court of Appeals held that where, as in the instant case, the parties fully presented during a trial to the bench, the District Court erred by dismissing the case based on the .post-trial conclusion that the EEOC had failed to establish a prima facie case of discrimination. The Court of Appeals held, “it is inappropriate for a court to resolve a discrimination case on grounds that a prima facie case had not been made, after the case has been fully tried on the merits.” Avery Dennison, 104 F.3d at 860 (discussing United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 717, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). The issue of whether a plaintiff has shown a prima facie case “is a preliminary matter which cannot be revisited at a later time.” Avery Dennison, 104 F.3d at 861. The Court explained:

The proper inquiry following the presentation of all evidence in a Title VII case is whether plaintiff has proven its case by a preponderance under the McDonnell Douglas-Burdine-St. Mary’s burden shifting framework. At this stage in the case, the relevant inquiry should not be whether plaintiff has proven its prima facie case.

104 F.3d at 862. The Court of Appeals further explained, “By allowing the case to proceed to a trial on the merits, the district court implicitly acknowledged the existence of Plaintiffs prima facie case. Defendant would only have been entitled to judgment if Plaintiffs had failed to carry their burden of proving the ultimate issue of discrimination.” 104 F.3d at 863.

In the instant case, because the parties have fully presented their evidence during a trial to the bench on the merits of Ferre-ro’s retaliation claims, Defendant may not prevail solely by challenging her prima facie case. See Avery Dennison Corp., 104 F.3d at 861. This Court must instead conduct the burden shifting analysis and decide the ultimate issue of whether Fer-rero has met her burden of proving retaliation by a preponderance of the admissible evidence. See Avery Dennison, 104 F.3d at 862-63.

Avery Dennison, moreover, presents the same procedural background as Ferrero’s case: in both cases no pre-trial ruling was made on the merits of the employer’s challenge to the employee’s prima facie case. See Avery Dennison, 104 F.3d at 859. This mattered little in Avery Dennison: “The fact that the [district] court was faced with the prima facie question at the summary judgment stage and then allowed the case to go to trial, could be construed as a tacit acknowledgment of Plaintiffs’ prima facie case. Proof of the prima facie case is only the first step in the proof of a Title VII claim.” 104 F.3d at 861. Consequently, regardless of whether in Ferrero’s case the Court has tacitly acknowledged the existence of a prima facie case, the entire burden shifting analysis must be performed, and the ultimate issue of whether Ferrero has met her burden of proving retaliation must be resolved. See Avery Dennison, 104 F.3d at 861-63.

This, however, does not mean that Fer-rero is relieved of her burden of proving a prima facie case by a preponderance of admissible evidence. She must prove such a case. See Avery Dennison, 104 F.3d at 862. Her burden here, however, must not be confused with her ultimate burden of proving that retaliation has occurred. See id. The burden to prove a prima facie case of discrimination or retaliation — while measured under the preponderance of evidence standard — has been described as “low,” Gribcheck, 245 F.3d at 551, and “not onerous, but one easily met,” DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir.2004) (citation omitted), and “minimal,” Avery Dennison, 104 F.3d at 861. This standard is met with less evidence than is necessary to prove the ultimate question of discrimination or retaliation. Avery Dennison, 104 F.3d at 861.

How is this low evidentiary hurdle reconciled with the preponderance of evidence standard, which undoubtedly applies at the prima facie stage? Avery Dennison answers this question by instructing that at the prima facie stage, even after all the evidence has been presented in a trial on the merits, the Court sitting as fact-finder must credit the admissible evidence favorable to the plaintiff and draw all reasonable inferences in his or her favor. 104 F.3d at 861. If a prima facie case emerges from a preponderance of evidence viewed in this manner, then the plaintiffs burden is met even if a finder of fact could credit other contrary evidence and draw other contrary reasonable inferences. This analytical approach maintains the traditional role of prima facie proof — creating a rebuttable presumption of discrimination or retaliation — and distinguishes the burden of proving, by a preponderance of admissible evidence, a prima facie discrimination or retaliation from the ultimate question of whether the plaintiff has proven discrimination or retaliation by a preponderance of the admissible evidence. See Avery Dennison, 104 F.3d at 861-62. Indeed, not maintaining this distinction was reversible error in Avery Dennison, 104 F.3d at 861-63.

Accordingly, Defendant has erred by focusing on Ferrero’s failure to prove a pri-ma facie case of retaliation as the sole ground for defeating her claim. See Doc. # 124 at 11-12. Instead, the analysis set forth above applies, and the Court therefore considers whether Ferrero has met her burden of proving a prima facie case of retaliation.

3.

Ferrero’s Prima Facie Case

Ferrero has met her minimal burden of proving a prima facie case of retaliation by a preponderance of the admissible evidence.

Ferrero’s testimony and the documents admitted into evidence if credited show that she followed the Postal Service’s procedures for challenging Conover’s conduct by seeking informal counseling from the Postal Service’s EEO office, by submitting to the EEO office a chronology of her allegations, by attending mediation, by filing a Complaint with the EEO office, by meeting with EEO counselor Arper Tent-man, and by requesting and attending a hearing before an ALJ with the Equal Employment Opportunity Commission. See supra, § 11(F). This constituted protected activity under the Rehabilitation Act, and Ferrero has consequently established the first element of her prima facie case. See DiCarlo, 358 F.3d at 420-22.

The evidence further established that Conover knew about Ferrero’s protected activities, that he wrote a chronology of the events at issue and submitted it to the EEO, and that he attended mediation in November 1997. Vincent Catalano, author of Ferrero’s termination letter, knew about her act of filing a charge with the EEOC, because Catalano attended the EEOC’s hearing held before an ALJ. (Defendant’s Exh. 36 at 5). In addition, Ferrero’s attorney wrote to Catalono in April 1999 reporting Conover’s harassment. (Doc. # 32). Catalano, moreover, wrote and sent Ferrero an options letter in February 1999, at Conover’s request. See supra, § 11(G); see also Defendant’s Exh. 29. Ferrero has thus established the second element of her prima facie case.

Defendant’s act of terminating Ferrero’s employment on May 29, 1999 constituted the quintessential adverse employment action. See Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996); see also Defendant’s Exh. 31. Although rather than describing the end of Ferrero’s employment as a termination, Defendant describes it as a “separation” or her employment status as being “administratively separated.” (Defendant’s Exhs. 29, 31). These, however, are merely euphemisms for termination, because the record does not contain any evidence indicating that Ferrero had the right to return to work after May 29, 1999. Indeed, Defendant’s letter of April 15, 1999 did not provide her with the option of returning to work by May 29, 1999. It simply set May 29, 1999 as her last day of employment. (Defendánt’s Exh. 31). Consequently, Ferrero has shown the third element of her prima facie case.

Ferrero has shown the final element of her prima facie case — causation—through evidence indicating that after she first complained about Conover’s conduct to the Postal Service’s EEO office, Defendant, engaged in a pattern of retaliatory conduct through its mishandling of her complaints and its negative conduct towards her. Defendant began this pattern by holding merely a single brief meaningless mediation session in November 1997. Although Conover attended this session, he made no serious attempt to resolve Ferrero’s Complaints but instead acted angrily and leered at Ferrero. Attorney Ross, who represented Ferrero during the mediation, testified at trial that Conover appeared “very agitated. And, of course, always leered at Ms. Ferrero.” Supra, § 11(F). This testimony is credible as it is consistent with Conover’s management style and with his attempts to intimidate Ferrero during July-August 1999. See infra, § 111(B)(5). Defendant also failed to reschedule the mediation even though the issue that had prevented it from going forward was Conover’s desire to have a Union representative present — an issue that should have been easily resolved and should not have prevented other mediation efforts from occurring.

A pattern of retaliation began to emerge in the Spring of 1998 when Ferrero met with EEO' counselor Tentman. Rather than attempting to find a resolution, Tent-man became a little gruff with Ferrero, and he required her to write another affidavit even though she had given him her previously written chronology of the events at issue. Tentman, moreover, rejected attorney Ross’ reasonable suggestion that Ferrero’s previously written chronology could be photocopied, then signed by her, effectively making it a declaration or an affidavit. By rejecting this reasonable suggestion and requiring Fer-rero to rewrite her lengthy chronology and by not in any way indicating an intent to resolve her complaints about Conover, Tentman revealed an antagonism towards her complaints. This antagonism reveals an emerging pattern of retaliation against Ferrero, a pattern which establishes a causal connection between her protected EEO activities and her eventual termination.

In addition, Defendant had by this time required Ferrero to, in essence, jump through two hoops by requiring her to attend the meaningless mediation in November 1997 without rescheduling it, and by subjecting her to Tentman’s antagonism towards her complaints about Con-over in the Spring of 1998. Without any further attempt to resolve her complaints, Defendant permitted Conover to send her the February 1999 letter addressing four options available to her concerning her continued employment. (Plaintiffs Exh. 20). If viewed in isolation from the other evidence, this letter on its face contains no hint of retaliation. However, from Ferre-ro’s perspective, Defendant had completely failed to address her Complaints about Conover’s conduct, even though sixteen months had passed from the time she had first reported her complaints to the EEO office. The fact, moreover, that Defendant permitted Conover to sign and send this letter showed an insensitivity towards her complaints that is consistent with the pattern of retaliation that had emerged by that time.

Perhaps most significantly, this letter contained bogus options. Ferrero learned this when Defendant required her to go through another meaningless meeting. This occurred when she attempted to obtain further information and employment counseling from Richard Broyles in the Postal Service’s personnel office. However, when Ferrero and attorney Ross met with Broyles, he informed her that none of the four options offered in the February 1999 letter were available to her. Supra, § 11(G). Defendant notified Ferrero soon thereafter that she was being administratively separated effective May 29, 1999.

It should be again emphasized that at this point in the McDonnell Douglas/Bur-dine analysis, Ferrero’s burden to show causation is “minimal.” Avery Dennison, 104 F.3d at 861. Thus, while the evidence if credited differently than above may show innocent, non-retaliatory reasons for Defendant’s mishandling of Ferrero’s complaints about Conover, at the prima facie stage the admissible evidence credited as above reveals a pattern of retaliatory acts against Ferrero beginning only after she submitted her EEO complaint and continuing until the termination of her employment. Indeed, it can be reasonably inferred from the evidence that rather than engaging in at least one meaningful attempt to resolve her complaints about Conover, Defendant engaged in carrot- and-stick responses to her complaints, with an emphasis on the “stick” particularly during Tentman’s meeting in the Spring of 1998. On three separate occasions, with no intervening reconciliation efforts, Defendant set Ferrero up to believe it was attempting to resolve her complaints about Conover’s misconduct. Defendant then disappointed Ferrero by allowing Conover to reject mediation in November 1997 with no further mediation efforts, by subjecting her to Tentman’s antagonism towards her complaints in the Spring of 1998, and by offering her four bogus options regarding the terms of her employment in February 1999. Ferrero has therefore shown a causal connection between her EEO complaints and the termination of her employment.

Defendant contends that Ferrero’s attempt to show causation fails due to the lack of temporal proximity sufficient to create an inference of causation. This contention lacks merit in light of the evidence which if credited demonstrates a pattern of retaliation after Ferrero filed her EEO complaint. This is so despite the fact that a large amount of time passed between the date of Ferrero’s complaints to Defendant’s EEO Office (September 1997) and her EEOC charge (December 1997) and the date of her termination. The record contains sufficient evidence to create a reasonable inference that during this time, Defendant engaged in a pattern of retaliatory conduct culminating in Ferrero’s termination. This is all Ferrero needs to prove the causation element of her prima facie case. Consequently, under the circumstances of this case, Defendant’s contention regarding lack of temporal proximity lacks merit.

Accordingly, Ferrero has met her minimal burden of proving a prima facie case of discrimination by a preponderance of the admissible evidence.

4.

Prima Facie Case and Retaliatory Harassment

Ferrero further contends that Defendant engaged in retaliatory harassment through the following: (1) the hostile work environment created by Conover; (2) Con-over’s drive-bys; (3) Conover’s hostile conduct at meetings and the affidavit session; (4) the March 8, 1999 meeting; (5) records destruction; (6) inappropriate discovery conduct; (7) the termination of her employment. Ferrero errs here by characterizing as “retaliatory harassment” any act that is arguably “harassment” in the colloquial sense. What Ferrero misses is that to constitute retaliatory harassment in violation of the Rehabilitation Act, she must not only show that Defendant’s act or acts of harassment were perpetrated in retaliation for her legally protected activities, she must also show that the harassment was so severe and pervasive that it altered the conditions of her employment. See Akers v. Alvey, 338 F.3d 491, 498 (6th Cir.2003); see also Crawford v. Medina General Hosp., 96 F.3d 830, 834 (6th Cir.1996).

The allegedly hostile work environment Conover created during July and August 1997 did not constitute retaliatory harassment because at that time Ferrero had not engaged in an activity protected by the Rehabilitation Act. Ferrero’s first legally protected activity did not occur until she filed her complaint with Defendant’s EEO Office in September 1997. Before this, Conover could not have directed his negative conduct towards Ferrero for the later-occurring legally protected activities. She simply had not engaged in such activities until September 1997.

Accordingly, Ferrero’s contention that Conover’s retaliatory harassment satisfies the third element of her prima facie case lacks merit.

5.

Burden Shifting Analysis

Ferrero’s prima facie case of retaliation creates a rebuttable presumption that Defendant retaliated against her. See Burdine, 450 U.S. at 714, 101 S.Ct. 1425; see also Avery Dennison, 104 F.3d at 861. Defendant rebuts this presumption by asserting, through Conover, that Ferrero was terminated because she had not reported to work “in about two years, pretty close to two years.” (Doc. # 124 at 9, citing Tr. 592 ). Significantly, the termination letter sent to Ferrero also explained that she was being administratively separated due to her “inability to perform the duties of her position.” (Plaintiffs Exh. 31). It further explained that she had failed to exercise any of the four options made available to her in February 1999. Id. These constitute legitimate non-discriminatory reasons, if true, for Defendant’s decision to terminate Ferrero’s employment. The burden-shifting analysis thus turns to the issue of whether Ferrero can prove by a preponderance of the admissible evidence that these reasons were a pretext for retaliation. See DiCarlo, 358 F.3d at 420; see also Gribcheck, 245 F.3d at 550.

To establish pretext Ferrero must prove by a preponderance of the admissible evidence (1) that Defendant’s asserted reasons for her termination had no basis in fact or (2) that Defendant’s asserted reasons did not actually motivate Ferrero’s termination or (3) that Defendant’s reasons were insufficient to motivate her termination. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.1994); see also Gribcheck, 245 F.3d at 550 (pretext must be proven by preponderance of the evidence).

Ferrero has not proven by a preponderance of the admissible evidence that Defendant’s reasons for terminating her employment — she had not been to work in nearly two years — had no basis in fact. It is instead undisputed that Ferrero did not report to work after August 11, 1997, her last day of work. Ferrero has also not shown that she was able to work at the time of her termination. Instead, her testimony reveals that her inability to work continued to the date of trial when she acknowledged that even then she was not able to return to work for the Postal Service. See supra, § 11(G). Ferrero’s inability to return to work for the Postal Service for nearly two years and her inability to work for the Postal Service at the time of her termination constituted sufficient non-retaliatory grounds for terminating her employment. See Weigel v. Baptist Hosp. of East Tenn., 302 F.3d 367, 378 (6th Cir.2002)(absenteeism is a legitimate nondiscriminatory, nonretaliatory reason); Diehl v. Tele-Solutions, Inc., 57 F.3d 482, 483 (6th Cir.1995)(poor attendance record is a legitimate, nondiscriminatory reason). Accordingly, Ferrero has failed to meet her burden of proving the first and third Manzer tests for pretext.

Ferrero’s proof of pretext therefore rests on the second Manzer test. To prove, as required here, that Defendant’s asserted reasons did not actually motivate its termination decision, Ferrero must do more than present a prima facie case of retaliation; she must produce additional evidence of retaliation. See Manzer, 29 F.3d at 1084. “In such cases, the plaintiff attempts to indict the credibility of his [or her] employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination [or retaliation] makes it ‘more likely than not’ that the employer’s explanation is a pretext, or coverup.” Manzer, 29 F.3d at 1084.

The Court has reviewed the evidence and carefully considered the chronology of events from the time Ferrero was first injured (July 7, 1997) and the date of her termination (May 29, 1999), to determine if she has met her burden of proving by a preponderance of the admissible evidence that Defendant’s asserted reasons for terminating her employment were a pretext for retaliation. For the following reasons, the Cohrt finds that Ferrero has met her burden of proof.

Beginning with Ferrero’s credibility, the Court finds that her testimony — particularly concerning Conover’s statements and conduct after she was injured on July 7, 1997 — was credible. She presented her testimony in a straightforward manner and her demeanor was consistent with truthfulness. Conover’s testimony, in contrast, was less than credible in many respects. Although he was candid at times — as in his admission that he thought Ferrero was lying about her injuries' — his demeanor was often inconsistent with truthfulness. This was revealed especially during cross examination when Conover often appeared to become very tense and appeared to be struggling to control his anger when questioned about his past statements and conduct concerning Ferrero. In addition, given Conover’s very tense demeanor and struggles to control his anger during cross examination, Ferrero’s testimony about being intimidated by Conover — who is much taller than Ferrero — is likewise credible.

Ferrero’s testimony concerning the three meetings at issue (November 1997, Spring 1998, and March 1999) was in large part corroborated by attorney Ross’ testimony. Attorney Ross was a credible witness. His demeanor was both professional and consistent with truthfulness. He is not an attorney of record in this case, and as a result, he held no direct financial interest in the outcome of this case. He simply had nothing to gain by exaggerating or presenting untruthful testimony, while he had much to lose in terms of his professional reputation by testifying in a less than truthful manner. The substance of his testimony was significant since it confirmed that Conover was angry and that he leered at Ferrero during the November 1997 mediation. Attorney Ross also corroborated Ferrero’s testimony about Tentman’s antagonism during the Spring 1998 meeting and Broyles’ Conduct during the March 1999 meeting.

Ferrero’s testimony about Conover’s treatment of her during July and August 1997 after she reported her injuries was indirectly supported by Zeman’s testimony. Although Zeman did not testify that she saw Conover mistreat Ferrero, Zeman testified that Conover tried to intimidate her after she (Zeman) had reported an injury. Zeman further testified that she saw Conover become irritated and heard him refer to Nancy Hatten as a “bitch” when she called in sick. This testimony combined with Ferrero’s testimony proves by a preponderance of the admissible evidence that Conover’s management style doubtlessly included use of intimidation as a method of discouraging employees from taking sick time and from reporting injuries. This further bolsters Ferrero’s credibility about Conover’s acts of intimidation during July and August 1999. In addition, Zeman corroborated Ferrero’s testimony about Conover driving past her home in the fall of 1997.

In light of these credibility conclusions, a preponderance of the admissible evidence establishes that Defendant did not terminate Ferrero because of her absence or inability to work. The admissible evidence instead establishes that it was more likely than not that Conover retaliated against Ferrero for engaging in activities protected by the Rehabilitation Act.

Conover treated Ferrero well before she was injured. He began to mistreat her only after she was injured on July 7, 1997. His treatment of her from then on deteriorated. The intensity of Conover’s efforts to intimidate Ferrero during July and August 1997 revealed the severe level of his anger with her. He singled her out as the target of his hostility thereby alienating her from her co-workers. In this way, Cono