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Burns v. McAleenan

United States District Court, W.D. Texas, El Paso Division

August 19, 2019

JOSEPH L. BURNS, Plaintiff,
v.
KEVIN MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          ANNE T. BERTON UNITED STATES MAGISTRATE JUDGE

         On this 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”).[1] 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. 39).

         For the 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.

         I. BACKGROUND

         a. Procedural Background

         “Plaintiff's 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, 2019).

         b. Factual Background [2]

         Burns 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.).[3] 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).

         While 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).

         Burns's 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.[4] (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).

         Notably, 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).

         Subsequently, 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”). (Id.).

         On 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 43).

         On 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).

         On 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).

         In 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 climb. (Id.).

         On 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 medication. (Id.).

         Between 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. (Id.).

         On 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).

         II. LEGAL STANDARD

         Summary 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 original).

         If the 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)).

         III. ANALYSIS

         McAleenan's 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).

         “[F]ederal 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.

         As an initial matter, both parties appear to be proceeding under § 791 and not § 794 as the statutory basis for Burns's claims.[5] 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.[6] The Court will address each claim raised in McAleenan's Motion in turn, below.

         a. Disability Discrimination

         McAleenan 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 . . . .”).

         Under 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.

         1. Prima Facie Case of Disability Discrimination

         A prima 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.[7] LHC Grp., Inc., 773 F.3d at 697 (5th Cir. 2014).

         A. Burns's Status as Disabled

         Under 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 ...


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