United States District Court, W.D. Texas, El Paso Division
JOSEPH L. BURNS, Plaintiff,
KEVIN MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
T. BERTON UNITED STATES MAGISTRATE JUDGE
day, the Court considered “Defendant's Motion for
Summary Judgment” (ECF No. 22), as substituted by
“Defendant's Substituted Motion for Summary
Judgment” (ECF No. 31), filed by Defendant Kevin
McAleenan (“McAleenan”). The matter was referred to
this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule
1(d) of Appendix C of the Local Court Rules for a Report and
Recommendation (“R&R”) on July 2, 2019, by
United States District Judge David C. Guaderrama. (ECF. No.
reasons set forth below, the Court
RECOMMENDS that “Defendant's
Motion for Summary Judgment” (ECF No. 22), as
substituted by “Defendant's Substituted Motion for
Summary Judgment” (ECF No. 31), be GRANTED IN
PART and DENIED IN PART.
Original Complaint and Demand for Jury Trial”
(“Complaint”) was filed in the United States
District Court for the Western District of Texas, El Paso
Division, on August 24, 2017, by Plaintiff Joseph L. Burns
(“Burns”), alleging claims of disability
discrimination, hostile work environment, and retaliation.
(ECF No. 1). On April 4, 2019, McAleenan filed
“Defendant's Motion for Summary Judgment”
seeking summary judgment on all of Burns's claims. (ECF
No. 22). After being granted two extensions of time to file
his response and granted leave to exceed page limitations
(Text Orders dated April 23, 2019 & April 26, 2019),
Burns filed his “Plaintiff's Response in Opposition
to Defendant's Motion for Summary Judgment
(“Response”) on May 3, 2019. (ECF No. 25). On May
30, 2019, McAleenan was granted leave to file his substituted
motion for summary judgment and a reply to Burns's
Response. (Text Orders dated May 30, 2019). On May 31, 2019,
McAleenan filed his “Defendant's Substituted Motion
for Summary Judgment' (“Motion”) (ECF No. 31)
and his “Defendant's Reply to Plaintiff's
Response in Opposition to Defendant's Motion for Summary
Judgment” (“Reply”) (ECF No. 32). On June
13, 2019, Burns filed his “Plaintiff's Sur-Reply in
Opposition to Defendant's Motion for Summary
Judgment” (“Sur-Reply”) (ECF No. 35) after
being granted leave to file. (Text Order dated June 7, 2019).
Finally, McAleenan's “Defendant's Response to
Plaintiff's Sur-Reply in Opposition to Defendant's
Motion for Summary Judgment”) (“Sur-Reply
Response”) (ECF No. 37) was filed on June 21, 2019,
after being granted leave to file. (Text Order dated June 20,
Factual Background 
is a Field Technology Officer (“FTO”)
Telecommunications Specialist who began working for the
United States Customs and Border Protection
(“CBP”) on August 12, 2012. (ECF No. 25-2, p. 1).
At the start of his employment, Burns submitted certification
from the Department of Veterans Administration
(“VA”) of his service-connected disability
rating. (Id.). Even though Burns has this disability
certification from the VA, during his employment with CBP as
a FTO, Burns has been capable of performing his job as a FTO,
has not had any safety issues, and has never sought a
reasonable accommodation. (ECF No. 25-2, p. 8).
Burns's job duties include climbing tall towers, which is
done in teams of two, he is a supplemental climber, meaning
he is not required to climb towers every day. (Id.
at 1-2). When Burns is required to climb towers, he receives
hazardous duty pay. (Id. at 2).
current supervisor, Marcus Yrrobali (“Yrrobali”),
became his supervisor in December 2015. (Id.). Prior
to becoming a supervisor, Yrrobali was a FTO and Burns's
colleague. (Id.). During Yrrobali's transition
into his role as supervisor, Yrrobali was informed by the
previous supervisor, Richard Apodaca (“Apodaca”),
of concerns allegedly raised by some of Burns's
co-workers related to Burns's medical
issues. (Id.). Apodaca contends that the
safety concerns of the co-workers were brought to his
attention by his secretary, Jeanie Molinar
(“Molinar”), which she contests. (Id. at
3). Further, while he was Burns's supervisor, Apodaca
allowed Burns to have his own office so that he could sit in
a dark room to prevent or alleviate his migraines.
(Id. at 8).
none of Burns's “RVSS camera team members”
stated that they ever reported any concerns to Apodaca or
Molinar regarding Burns. (ECF No. 32 at 43-44). After being
notified of the concerns by Apodaca, Yrrobali did not
independently verify those concerns with Molinar or any other
employee. (ECF No. 25-2 at 3).
Yrrobali consulted with his supervisor Victor Fernandez
(“Fernandez”) for guidance on how to address the
safety concerns brought to his attention by Apodaca.
(Id.). In turn, Fernandez directed Yrrobali to seek
guidance from Maria Benn (“Benn”)with CBP's
Labor and Employee Relations (“LER”).
March 14, 2016, Yrrobali emailed Benn (“March 14
Email”) addressing the medical concerns that Apodaca
brought to his attention. (Id.). Notably, the
parties dispute the scope of the contents of the March 14
Email and whether it contained Yrrobali's subjective
opinion, his first-hand knowledge, and whether or not it went
beyond the scope of the information received from Apodaca.
(Id.). In response to the March 14 Email, Benn
advised Yrrobali to prohibit Burns from climbing until
medical documentation was provided. (Id. at 3-4).
Both Benn and Fernandez relied on Yrrobali's March 14
Email to determine their course of action. (ECF No. 32 at
April 6, 2016, Yrrobali issued a letter to Burns
(“April 6 Letter”), restricting him from climbing
based on medical concerns until Burns submitted medical
documentation. (ECF No. 25-2 at 4). In response, on April 27,
2016, Burns provided a letter to Yrrobali from Dr. Robbie
Rampy (“Rampy”), dated April 26, 2016
(“Rampy Letter”). (Id.). The Rampy
Letter identified Burns as suffering from degenerative disc
disease of the lumbar spine as well as chronic migraine
headaches. (Id.). The Rampy Letter further stated
that while Burns did not appear to be a danger to himself or
others, Rampy could not comment, without speculating, because
of Rampy's lack of behavioral health specialization.
(Id. at 4-5). The Rampy Letter was sent by LER to
CBP's Medical Fitness Branch (“MFB”) who
informed Benn on May 5, 2016, that the letter was inadequate
to determine if Burns could safely resume his hazardous
duties and further recommended a request for additional
information while continuing to restrict Burns to
nonhazardous duties. (Id. at 5).
August 22, 2016, Burns received a letter from Yrrobali, dated
August 18, 2016 (“August 18 Letter”), informing
Burns that the Rampy Letter was insufficient and requesting
additional medical information. (Id.). After
receiving the August 18 Letter, Burns sought Equal Employment
Opportunity (“EEO”) counseling in late August
2016. (Id. at 5-6).
early September 2016, Burns and Yrrobali discussed the
possibility of Burns continuing to inform his team when he
could not climb, as he had done since 2012, as a possible
resolution to the ongoing issues. (Id. at 6). The
parties dispute whether Burns also suggested that he inform
Yrrobali when he had taken his medications and could not
September 14, 2016, after consultation with Benn and
Fernandez, Yrrobali issued Burns a letter (“September
14 Letter”), rescinding the August 18 Letter's
request for additional medical documentation and instead
prohibiting Burns from climbing when he had taken his
April 6, 2016, and September 14, 2016, Burns was unable to be
recertified as a climber because he was prohibited from
climbing. (Id. at 7). Since the recertification
classes were only offered annually, Burns was ultimately
restricted from climbing for approximately thirteen months.
September 22, 2016, CBP notified Burns of the conclusion of
the EEO counseling and of his right to file an EEO complaint.
(Id. at 6). Subsequently on September 30, 2016,
Burns filed an EEO complaint alleging the denial of his
rights under Title VII of the Civil Rights Act, the Americans
with Disabilities Act as amended (ADA), and the
Rehabilitation Act. (Id. at 6-7). The EEO complaint
alleged harassment, based on Burns's physical disability,
which allegedly occurred between April 6, 2016, and September
14, 2016. (Id.). On May 26, 2017, a Final Agency
Decision (“Decision”) was issued by DHS, finding
no discrimination or harassment. (ECF No. 22-5).
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A genuine dispute of fact exists
when evidence is sufficient for a reasonable jury to return a
verdict for the non-moving party, and a fact is material if
it might affect the outcome of the suit.” Willis v.
Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citation
and quotations omitted). A “party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” EEOC v. LHC Group, Inc., 773 F.3d 688,
694 (5th Cir. 2014) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)) (alteration in
moving party meets this initial burden, “the onus
shifts to ‘the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.'” Id. (quoting Celotex
Corp., 477 U.S. at 324). The Court must draw all
reasonable inferences in favor of the nonmoving party and
refrain from making credibility determinations. Id.
(quoting Turner v. Baylor Richardson Med Ctr., 476
F.3d 337, 343 (5th Cir. 2007)).
Motion addresses Burns's claims of disability
discrimination, hostile work environment, and retaliation
(ECF No. 31, p. 6, 17, 21). After Burns addressed an improper
medical inquiry claim in his Response, McAleenan argued in
his Reply that Burns's improper medical inquiry claim
should also fail. (ECF No. 32, p. 2).
employees may bring disability discrimination claims against
the Government under either § 501 or § 504 of the
Rehabilitation Act (29 U.S.C. §§ 791 &
794).” Pinkerton v. Spellings, 529 F.3d 513,
515 (5th Cir. 2008). “The [Rehabilitation Act] and the
[Americans with Disabilities Act] are judged under the same
legal standards, and the same remedies are available under
both Acts.” Kemp v. Holder, 610 F.3d 231, 234
(5th Cir. 2010). However, the causation standard to determine
if a violation has occurred differs between § 791 and
§ 794. Title 29 U.S.C. § 791(f) specifically
incorporates the standards of Title I of the Americans with
Disabilities Act of 1990 as the applicable standard when
determining if a violation has occurred. “Under the
ADA, discrimination need not be the sole reason for an
adverse employment decision [but] must actually play a role
in the employer's decision making process and have a
determinative influence on the outcome. This rule governs
cases under Section 501 of the Rehabilitation Act [29 U.S.C.
§ 791] as well.” Pinkerton, 529 F.3d at
519 (5th Cir. 2008) (alteration in original) (internal
quotation omitted). This “motivating factor”
standard for § 791 is in contrast to the standards, for
actions brought pursuant to 29 U.S.C. § 794, where the
Fifth Circuit has held “that Congress did not intend to
adopt the ADA standard of causation with the § 794(d)
amendment.” Soledad v. U.S. Dep't of
Treasury, 304 F.3d 500, 505 (5th Cir. 2002). Therefore,
in actions brought pursuant to § 794, “[l]iability
can only be found when the discrimination was ‘solely
by reason of her or his disability,' not when it is
simply a ‘motivating factor.'” Id.
initial matter, both parties appear to be proceeding under
§ 791 and not § 794 as the statutory basis for
Burns's claims. See (ECF No. 25, p. 11)
(“Plaintiff has brought his disability claims under
§ 501 of the Rehabilitation Act, therefore, the correct
standard of showing is ‘motivating
factor.'”); (Id. at 20) (“Here,
Burns has asserted his claims under §501 as he is a
federal employee covered under §501. . . .”); (EFC
No. 32, p. 3) (“In Defendant's Motion, Defendant
inadvertently and incorrectly referenced the wrong causation
standard that should be applied to Plaintiff's claim. . .
. The correct causation standard for disability
discrimination claims asserted pursuant to section 501 of the
RA is the ‘motivating factor' test . . . .”).
Because Burns unambiguously states on several occasions that
he brings his claims under § 791 without mentioning
§ 794 and his subsequent filings do not contest
McAleenan's statement that “Defendant, however,
interprets Plaintiff's Response to only be asserting his
claim under 29 U.S.C. § 791 and not both” (ECF No.
32, fn. 3), the Court will analyze his claims pursuant to
§ 791. The Court will address each claim raised
in McAleenan's Motion in turn, below.
argues that summary judgment is appropriate for Burns's
claim of disability discrimination because there was no
discrimination based on disability. (ECF No. 31, p. 6).
“A plaintiff alleging disability discrimination can
either provide direct evidence of the discrimination or rely
on the McDonnell Douglas burden-shifting
framework.” Diggs v. Burlington N. & Santa Fe
Ry. Co., 742 Fed.Appx. 1, 3 (5th Cir. 2018) (citing
E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th
Cir. 2014)). “Both parties agree here that Burns is
proceeding under McDonnell Douglas.” (ECF No.
25, p. 11); see (ECF No. 32, p. 4) (“Under the
McDonnell Douglas framework . . . .”).
the McDonnell Douglas burden-shifting analysis, a
plaintiff alleging disability discrimination must first
establish a prima facie case of discrimination. Delaval
v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479
(5th Cir. 2016). If the plaintiff successfully establishes a
prima facie case, the defendant must articulate a legitimate,
nondiscriminatory reason for the employment action.
Id. The plaintiff then has the burden of showing
that the articulated reason is pretextual. Id.
Prima Facie Case of Disability Discrimination
facie case of disability discrimination requires the
plaintiff to show: (1) the plaintiff has a disability; (2)
the plaintiff was qualified for the job; and (3) the
plaintiff was subject to an adverse employment decision on
account of his disability. LHC Grp., Inc., 773 F.3d at
697 (5th Cir. 2014).
Burns's Status as Disabled
the ADA, a person has a disability if they have: “(A) a
physical or mental impairment that substantially limits one
or more major life activities of such individual; (B) a
record of such an impairment; or (C) be[en] regarded as
having such an ...