Opinion
C. A. 4:20-cv-1025-SAL-KDW
01-24-2022
Juantia Green, Plaintiff, v. Merrick Garland, Attorney General;[1]Bureau of Prisons, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Plaintiff Juantia Green (“Plaintiff” or “Green”) filed an employment action against her former employer, the federal Bureau of Prisons (“BOP” or “Defendant”), bringing claims of discrimination and retaliation on the basis of gender and disability. She also brings a state-law-based claim for intentional infliction of emotional distress. Compl., ECF No. 1. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (R&R) on Defendant's Motion for Summary Judgment, ECF No. 35, to which Plaintiff has responded, ECF No. 39, and Defendant replied, ECF No. 42. Based on the parties' submissions and applicable law, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 35, be granted and this case be ended.
Both the Attorney General and BOP are named as Defendants. As both parties reference Defendant in the singular, the undersigned does also.
I. Background
Plaintiff was formerly employed by BOP as a Correctional Officer at the Federal Correctional Institution, Williamsburg (FCI Williamsburg). Plaintiff went out of work on medical leave in early 2014. She has filed three separate Equal Employment Opportunity (EEO) claims since then; however, only the second such claim is the subject of this litigation. See Pl. Mem. 1, ECF No. 39. Plaintiff's Second EEO Complaint-BOP-2015-02227 & EEOC No. 43-2019-0474X (Case 2)-includes claims of alleged discrimination based on race, physical disability, and reprisal for previous EEO activity. See generally Declaration of BOP Assistant General Counsel Marie Clarke ¶¶ 6-15, ECF No. 35-2 at 3-5; and exs. 7 through 24 thereto for documentation related to the Second EEO Complaint, ECF No. 35-2 at 48 through 35-3 at 101. Both parties refer to portions of the Record of Investigation (ROI) for the Second EEO Complaint by bates-stamp numbers. For continuity, the court will do the same, referring to the pages as “Case 2 ROI at nnnn.” The bates-stamped portions of the ROI for the Second EEO Complaint are found at ECF No. 35-2 at 48 through 35-3 at 71 (bates-stamped 000018 through 000171). Similarly, the parties sometimes refer to information from Plaintiff's First EEO Complaint (BOP-2014-01257 & EEOC No. 430-2015-00420X (Case 1)), and her Third EEO Complaint (BOP-2019-00882 & EEOC No. 410-2020-00354X (Case 3)). Attached to Clarke's Declaration are documents, including the ROIs, for those Cases. See Clarke Decl. ¶¶ 3-5 (referencing exhibits related to Case 1, which are found at ECF No. 35-2 at 7-47), id. ¶ 16-20 (referencing exhibits related to Case 3, which are found at ECF Nos. 35-3 at 102-27, 35-4 at 1-34). To consider issues as raised in Defendant's Motion for Summary Judgment and Plaintiff's response thereto, background regarding all three administrative cases is informative. To the extent supported by the record, these facts are construed in the light most favorable to Plaintiff.
A. Plaintiff's employment as Correctional Officer
In October 2010, Plaintiff, Juantia Green, was hired by the BOP as a GS-7 Correctional Officer at FCI Williamsburg. Case 2 ROI at 58-59. The BOP's Position Description provides that a Correctional Officer “[s]erves as a Senior Officer and performs the full range of duties and responsibilities for detention, correctional supervision, protection, control, and accountability of inmates.” Case 2 ROI at 146; see Id. at 146-49 for detailed listing of “Major Duties and responsibilities, ” “Nature of Assignment, ” and “Level of Responsibility.”
Additional detail regarding the duties of a Correctional Officer such as Plaintiff are discussed in more detail below to the extent they inform her disability-related claims.
B. Plaintiff's diagnosis and restrictions
On January 15, 2014, Plaintiff's physician, Matthew Welsch, diagnosed her with bilateral de Quervain's and bilateral carpal tunnel syndrome, with a recommendation for surgery. Case 1 ROI at 252. Plaintiff previously reported bilateral hand and wrist pain in September 2013. Id. Plaintiff testified that this condition was work-related, caused by the turning of keys in cell doors. Case 2 ROI at 62. On January 31, 2014, Dr. Welsch imposed restrictions that Plaintiff was to have “no repetitive use of BOTH HANDS” and no lifting/carrying over 10 pounds. Case 1 ROI at 254. Dr. Welsch further indicated, “If patient is unable to adhere to the above restrictions, consider patient off work.” Id. The medical note indicated Plaintiff's return appointment was “PENDING WORKMAN'S COMP.” Id. Dr. Welsch's note dated February 17, 2014, indicated Plaintiff could return to work on February 18, 2014, so long as she was restricted to “No Repetitive Use both hands.” Id. at 255. The note indicated “employer must consider the patient off work” if unable to adhere to the stated restrictions. Id.
C. Plaintiff's OWCP Claim
Plaintiff filed a claim with the Office of Workers Compensation Programs (“OWCP”) in January 2014. Declaration of Daniel Whitehurst, Program Management Officer with Centralized Workers' Compensation Unit (“CWCU”), ¶ 12, ECF No. 35-1. Plaintiff's OWCP claim was accepted by the Department of Labor (“DOL”) on February 19, 2014, and she received continuation of pay (“COP”) benefits retroactive to January 2014. Id. These benefits are calculated and administered by DOL under the provisions of the Federal Employees' Compensation Act (FECA), which are found at 5 U.S.C. § 8118. Whitehurst Decl. ¶ 12. The CWCU processes workers compensation claims that have been accepted by DOL. Id. ¶ 6.
On February 27, 2014, FCI Williamsburg's Safety Manager, Gary Rose, advised Captain Eric Rayburn, as follows: “We received an updated CA-5c with limitations stating “No Repetitive Use both hands” need to know if there's a TAD [Temporary Alternative Duty] assignment that can be offered to meet her limitations. Let me know and I will inform CWCU.” Case 1 ROI at 287, ECF No. 35-2 at 45. Captain Rayburn responded, “I can not think of any position that does not require repetitive use of one or both hands.” Id.
Plaintiff was offered and accepted various TAD positions from August 2014 until May 2015.
D. 2014 Surgeries and Medical Restrictions
On March 18, 2014 Plaintiff underwent surgery of her left wrist. Pl. Testimony, Case 2 ROI at 67-68; see also Medical Report, Case 2 ROI at 159. Post-surgery, Plaintiff's medical restrictions dated April 11, 2014, indicated Plaintiff could return to work only if the following restrictions were in place: no carrying/lifting anything over 2 pounds and “NO REPETITIVE USE.” Dr. Welsch Medical Report, Case 1 ROI at 256.
Plaintiff underwent surgery of her right wrist on May 29, 2014. Pl. Testimony, Case 2 ROI at 67-68; see also Medical Report, Case 2 ROI at 159. Dr. Welsch's “Work Capacity Evaluation” dated June 20, 2014, indicated the following restrictions on the right extremity: no repetitive reaching, no reaching above her shoulder, no pushing, pulling or lifting over 2 pounds. Medical Records, Case 1 ROI at 305, ECF No. 35-2 at 30. Plaintiff's doctor did not believe that she had reached maximum medical improvement. Id. Plaintiff's medical restrictions dated July 21, 2014, indicated the following restrictions: no carrying/lifting anything over 10 pounds. Case 2 ROI at 257. The “no repetitive use” restriction remained in place. Id.
E. 2014-2015 Light Duty Assignments
On August 27, 2014, former FCI Williamsburg Warden, M. Cruz, wrote Plaintiff and offered her a “temporary limited duty assignment” (also abbreviated TAD) as a “Correctional Officer as a Relief for Sick and Annual (With the Exception of Housing Units, and SHU”), beginning August 30, 2014. Case 1 ROI at 264-65. The Warden clarified: “While you are assigned to this temporary limited duty assignment you will adhere to all restrictions as stated by your attending physician. You will not be required to respond to emergency situations.” Id. Plaintiff acknowledged her acceptance returning the form on September 10, 2014. Id. The record also contains a memorandum from Plaintiff in which she noted a conversation with Administrative Lt. Patterson in which it was discussed that Plaintiff's work restrictions would be honored and she would be permitted to continue to attend her work-hardening therapy appointments and that she would “return to light duty” following a conference among herself, the Safety Manager, and her immediate supervisor. Sept. 15, 2014 Mem., Case 1 ROI at 288; see also Id. at 258-59 (Occupational Therapy (OT) information).
On October 8, 2014, Warden Cruz offered to extend Plaintiff's light duty assignment to Plaintiff working as a relief officer, excluding duty in any of the Housing Units. Id. at 269-70. The Warden again clarified: “While you are assigned to this temporary limited duty assignment you will adhere to all restrictions as stated by your attending physician. You will not be required to respond to emergency situations.” Id. The memorandum indicated the assignment would end “upon release from your attending physician or until November 7, 2014, whichever comes first.” Id. Plaintiff accepted the TAD in writing on October 18, 2014. Id.
Dr. Welsch issued similar restrictions on Plaintiff on October 29, 2014 (no lifting/carrying over 5 pounds, no repetitive use, “Can't Shoot”), and on December 1, 2014 (no lifting/carrying over 5 pounds, “no shooting/no repetitive use right arm”). Case 1 ROI at 261, 263. Plaintiff was extended similar light duty assignments, excluding Housing Units and Mobile Patrol (armed post) and/or assignments limited to the Front Lobby/Visiting area, authorized by the Warden on October 30, 2014; on December 3, 2014; on February 20, 2015 and on March 19, 2015. TAD Documents, Case 1 ROI at 271-78.
F. Plaintiff's permanent medical restrictions
Dr. Welsch, who was Plaintiff's treating physician who performed the surgeries in 2014, left his practice in December of that year. DOL arranged for a follow-up consultation by a doctor in the same medical group, Dewey Ervin, M.D. Correspondence & Ervin Medical Report, Case 2 ROI at 157-58. Dr. Ervin issued a report stating that he examined Plaintiff on March 31, 2015, and concluded she had permanent medical restrictions:
[Plaintiff] returns today for a follow-up of her bilateral wrist symptoms. Patient is status post bilateral carpal tunnel release by Dr. Matthew Welsch. The left wrist was performed on 3/18/14 and the right on 5/29/14. Patient was last seen by Dr. Welsch on 12/5/14 at which time [a Functional Capacity Examination (FCE)] was ordered. Patient complains of occasional bilateral hand pain and swelling. She has been taking ibuprofen as well as occasional Hydrocodone, which causes itching. Patient is currently working light duty with no repetitive use or lifting greater than 5 lbs. and no shooting. She states that she is presently working the visitor's post. ***
Patient is advised to discontinue Hydrocodone. She can continue working light duty. The patient has reached maximum medical improvement. She has 15% permanent partial impairment of the right and left hand. Permanent restrictions are based on her functional capacity evaluation which state that she can stand and sit constantly (67-100%) of the day, walk and bend frequently (34-66%) of the day and reach, climb, squat, kneel and crawl occasionally (1-33%) of the day. Permanent restrictions also include no operating a firearm and no extensive repetitive motion with her hands.Id. at 159-60.
G. DOL places Plaintiff in Vocational Rehabilitation Counseling
On April 23, 2015, DOL, Office of Workers' Comp Programs communicated Dr. Ervin's medical findings to BOP, stating, “[i]f possible, please offer [Plaintiff] a permanent job within [Dr. Ervin's] restrictions.” Case 2 ROI at 157. If BOP is “unable to accommodate [Plaintiff] with permanent light duty, ” it was to advise DOL. DOL noted that if BOP was unable to accommodate the restrictions DOL “will proceed with vocational rehabilitation intervention as necessary.” Id.
In a May 8, 2015 Memorandum Gary Rose, Safety Manager for FCI Williamsburg, advised that, because Dr. Ervin's May 31, 2015 report indicated Plaintiff's medical restrictions are permanent, BOP “will not be able to offer [Plaintiff] a Temporary Assigned Duty.” Case 2 ROI at 161. BOP requested that Plaintiff be placed in vocational rehabilitation. Id.
After receiving Plaintiff's permanent restrictions on April 27, 2015, Safety Manager Gary Rose and Capt. Rayburn met with Plaintiff to explain that she could no longer be provided light duty assignments given findings that she had permanent restrictions that did not meet the minimum requirements for a law enforcement officer. She was informed of the next step in the OWCP process, which was possible vocational rehabilitation by DOL. Safety Manager Rose Testimony, Case 2 ROI at 115-23. Although Rose did not recall the exact date of the meeting, Plaintiff indicated it was May 6, 2015; she interpreted this May 6, 2015 meeting as her having been “dismissed” from her employment. Pl. Testimony, Case 2 ROI at 59-60.
Plaintiff was subsequently accepted by DOL into their Vocational Rehabilitation Program on June 1, 2015; she was notified of her placement on June 2, 2015. Whitehurst Decl. ¶ 13; Rose Testimony, Case 2 ROI at 119.
H. Additional medical opinions
Subsequent to filing Case 2, while Plaintiff was participating in DOL's Vocational Rehabilitation Program, she underwent a Fitness for Duty Examination by Donald Getz, M.D. Dr. Getz opined on January 21, 2016, that “[a]ssuming there are not 62 malfunctioning doors in the workplace, as claimed by [Plaintiff, she] is able to perform all of the essential functional requirements of her employment including the 14 physical requirements as there is no objective basis for restrictions based on my examination.” Getz Fitness for Duty Report, Case 2 ROI at 169; see Id. at 164-71 (full report).
Plaintiff was then sent for a second opinion exam by Orthopedic Surgeon Dowse D. Rustin, M.D.; and in a report dated May 24, 2016, Dr. Rustin concurred with the earlier findings of Dr. Dewey Ervin, that Plaintiff's restrictions were permanent. Rustin Medical Report, Case 3 ROI at 219-23. Dr. Rustin concluded, after his examination and review of medical records, that Plaintiff's restrictions were permanent due to bilateral moderately severe carpal tunnel syndrome and de Quervain's disease, and her restrictions included: no repetitive use of both hands; no lifting, pushing or pulling 20 pounds; she should avoid climbing, grasping or dummy drag activities. Id. Dr. Rustin also concluded that Plaintiff was at maximum medical improvement. Dr. Rustin opined that Plaintiff could work a light duty position only and, in conclusion stated: “It is also my opinion as I stated previously that she should not return to duties as a correctional officer[]. Even with restrictions it would place her in harm's way for recurrent problems.” Id. at 222.
I. 2018 activity regarding request for accommodation
In April 2018 Plaintiff's attorney, Pheobe Clark, wrote FCI Williamsburg Human Resource Manager, Lori Wilson, stated Plaintiff's medical condition had not changed, and requested that Plaintiff's permanent restrictions be accommodated. Apr. 16, 2018 Ltr., including medical release, Case 3 ROI at 319. Attorney Clark requested that BOP “assess [Plaintiff's] renewed request since January 2014 to return to work with permanent restrictions to perform the majority of her job duties and receive back pay from January 2014 to present.” Id. (emphasis omitted).
On June 11, 2018, Plaintiff submitted a DOJ Form 100A Request for Reasonable Accommodation, stating that she wanted to continue working the light duty posts to which she was assigned in 2014-2015, before being referred to DOL's Vocational Rehabilitation Program in May 2015. DOJ Form 100A Request, Case 3 ROI at 288. Plaintiff identified the following duties she had performed when “receiving accommodations”: “front lobby/visitation officer. Other duties included phone monitoring and reading of inmate mail.” Id.
On November 13, 2018, the Warden at FCI Williamsburg, B. M. Antonelli, notified Plaintiff that BOP's efforts to search for a possible reassignment “in BOP and DOJ” were unsuccessful. Reasonable Accommodation Denial Ltr., Case 3 ROI at 215-18. The Warden explained that because of Plaintiff's medical restrictions, she was not capable of working in a correctional environment and they were unable to locate any funded position outside a correctional institution for which she qualified, based on the search criteria she identified. Id. The Warden also explained that “BOP will not remove essential functions of a position or waive their performance.” As a result, Plaintiff's request for a reasonable accommodation reassignment was denied. Id. See also DOJ Form 100C Denial of Reasonable Accommodation, Case 3 ROI 217-18 (indicating requested accommodation would be ineffective, would cause undue hardship, would require removal of essential job function, and would require lowering of performance or production standard).
J. Plaintiff's termination for physical/medical inability
On December 3, 2018, Captain Curtis Jones issued a letter to Plaintiff advising he was proposing her removal from the position of Correctional Officer, GL-0007-07/05, for “Physical/Medical Inability to Perform the Duties of Your Position.” Case 3 ROI at 329-31. In the letter, Plaintiff was also advised as follows:
The Warden will make the final decision on this proposal. You may reply to the Warden orally, in writing, or both orally and in writing. Your reply may include affidavits or other supporting documents. If there are accommodations which you believe would enable you to perform your duties, you should communicate them to the Warden in conjunction with any reply you choose to make. Any reply which you make must be received by the Warden within fifteen (15) working days from the date you receive this letter. Consideration will be given to extending this time limit if you submit a written request, to the Warden, stating your reasons for desiring more time.Id.
On January 30, 2019, Warden B. M. Antonelli issued a decision letter to Plaintiff. He began the letter by noting Plaintiff had not asked to meet with him, nor had she provided any updated information. Jan. 30, 2019 Ltr., Case 3 ROI 332-35. In the letter, the Warden notified Plaintiff of her termination, stating in part:
In making my decision, I considered, among other factors, that there is no expectation that your condition will improve to the point where you can safely perform the essential functions of your position in a correctional environment. Specifically, you have been medically unable to safely perform the essential functions of your position since January 2014. You have worked, intermittently, in a “light duty” capacity only. ***
I considered reassignment to other positions, however, there are no positions at the prison, or in any other correctional setting, where you would not present a risk to your safety or the safety of others. Moreover, there are no permanent “light duty” positions. As a Correctional Officer, you have responsibilities for the “detention, correctional supervision, protection, control, and accountability of inmates.” A Correctional Officer must be able to work in a variety of positions with varying complexity, to include Front and Rear entrances, Control Center, Visiting Room, the Housing Units and Special Housing Units. Additionally, as with all staff who work in a correctional setting, correctional workers are designated law enforcement officers, with primary responsibility for maintaining security of the institution, regardless of job title. ***
You must be able to use physical control in situations where necessary, such as fights among inmates, assaults on staff and institutional disturbances or escape attempts. You are also required to complete annual training which includes performing self-defense maneuvers and firearms qualification. . . . Your physical/medical limitations do not allow you to safely perform these duties and put yourself and others at risk of harm.Id. at 332-35.
II. Administrative EEO process
Title VII creates a right of action for federal employees such as Plaintiff alleging discrimination on the basis of “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-16 (concerning claims by federal government employees); 29 U.S.C. § 794a (indicating Rehabilitation Act, which concerns federal employees' claims of job discrimination based on disability, incorporates “remedies, procedures, and rights set forth in” Title VII); Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Prior to filing an action in this court, an employee such as Plaintiff must contact an EEO counselor and seek pre-complaint counseling within 45 days of the alleged discriminatory action. 29 C.F.R. § 1614.105(a). If counseling is unsuccessful, then the EEO must provide the complainant with notice of his right to file a formal complaint of discrimination. 29 C.F.R. § 1614.105(d). The complainant must file any formal complaint within 15 days receipt of the notice. 29 C.F.R. § 1614.106(b).
Following investigation of the formal complaint, the complainant may either request a hearing and decision from an administrative judge or request a final decision from the agency with which the complaint was filed. 29 C.F.R. § 1614.108(f). If the complainant chooses the former course of action, then “[w]hen [the] administrative judge . . . issue[s] [his or her] decision . . ., the agency shall take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and . . . decision.” 29 C.F.R. § 1614.110(a). The agency's final order must provide the complainant with notice of his right to appeal to the EEOC and right to file a civil action in federal district court, as well as notice of required deadlines for taking such actions. Id. If the agency fails to issue a final order within the required 40-day time period, “then the decision of the administrative judge . . . become[s] the final action of the agency.” 29 C.F.R. § 1614.109(i). A complainant may appeal the agency's final action to the EEOC's Office of Federal Operations (“OFO”) within 30 days following receipt of the final agency decision. 29 C.F.R. § 1614.402(a). Alternatively, the complainant may “opt-out of the administrative process . . . by filing a de novo civil action.” Laber, 438 F.3d at 416 n.9 (citing 29 C.F.R. §§ 1614.401(a), 1614.407(a); and 42 U.S.C. § 2000e-16(c)). Such judicial action must be filed “[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or unit.” 42 U.S.C. § 2000e-16(c). Here, Plaintiff chose to opt-out of the EEOC's OFO review of the Final Agency Decision (“FAD”). ECF No. 1.
A. Administrative Procedural History
As noted above, Plaintiff filed three separate formal EEO complaints, resulting in three separate Reports of Investigation (“ROI”). Clarke Decl. ¶ 3. Only the second one, Case 2, is the subject of the instant action. Following is more detailed information regarding the procedural history of three EEO complaints.
1. Case 1: EEO Complaint 1 (BOP-2014-01257 & EEOC Case No. 430-2015-00420X):
Plaintiff first sought EEO counseling on September 15, 2014, alleging BOP failed to accommodate her disability from January 31, 2014, until August 20, 2014. Plaintiff complained about not being offered a TAD assignment, also known as “light duty, after she was diagnosed with bilateral carpel tunnel syndrome, which she alleged was work-related. Case 1 EEO Counselor's Report and Green's Request for Counseling, Case 1 ROI 32-39, ECF No. 35-2 at 7-14; see also Case 1 EEO Complaint, Case 1 ROI 24-25, ECF No. 35-2 at 15-16.
The parties resolved that case, executing a settlement agreement on June 7, 2019. Exhibit 6 to Clarke Decl. ¶ 5; June 11, 2019, Notice of Settlement and Dismissal, ECF No. 35-2 at 47.
2. Case 2: EEO Complaint 2 (BOP-2015-02227; EEOC Case No. 43-2019-00474X):
On September 9, 2015, Plaintiff again sought EEO counseling, alleging discrimination based on physical disability and reprisal, and claiming she had been involuntarily referred to Vocational Rehabilitation Counseling and told she could no longer be accommodated with light duty assignments. Case 2 EEO Counselor's Report and Plaintiff's Request for Counseling, Case 2 ROI at 18-26. The “Chronology of EEO Counseling” lists the “date of alleged discriminatory event” as August 10, 2015. Case 2 ROI 19. Additional “Chronology of Events” contained in the “Allegations of Discrimination” indicate Plaintiff's supervisor telephoned her at home on May 5, 2015 and advised her not to return to work and that when she reported to work on May 6, 2015, and was “informed by the Captain in front of the Safety Manager and Union Representative that the BOP could no longer accommodate her.” Id. at 21. May 8, 2015 is listed as the date “[Plaintiff] states the agency requested Vocational Rehabilitation for her to seek other employment.” Id.
Whitehurst indicates in his declaration that Plaintiff was accepted by DOL into DOL's Vocational Rehabilitation program effective June 1, 2015 and Plaintiff was advised of that placement on June 2, 2015. June 1, 2015. Whitehurst Decl., ¶ 13.
In the “Notice of Rights and Responsibilities” portion of the counseling forms Plaintiff initialed the section that indicated she was entitled to have representation. However, the portion of this form indicating Plaintiff did or did not have such representation is left blank; no representative is listed. Plaintiff signed this form on September 20, 2015. Case 2 ROI at 27-29; see also Id. at 30-31, 32-34 (additional forms signed by Plaintiff on September 20, 2015, leaving the signature line for her representative blank). Plaintiff permitted a 60-day extension of the EEO Counseling period. ECF No. 35-2 at 68.
BOP's EEO Office sent Plaintiff a Notice of Right to File Discrimination Complaint via certified mail delivered on December 7, 2015. Notice of Right to File Discrimination Complaint, ECF No. 35-2 at 66-67. The Notice instructed Plaintiff that any EEO Complaint must be filed within 15 days. Id.
Plaintiff filed an EEO Complaint in Case 2; the Complaint of Discrimination was signed by Plaintiff on January 6, 2016, and stamped received on January 20, 2016. Case 2 ROI at 11. The Complaint form itself indicates Plaintiff is bringing claims for physical disability and reprisal that took place as recently as September 15, 2015, but contains no details regarding the alleged discrimination. Id. In a letter also dated January 6, 2016, Plaintiff acknowledged her Complaint had been filed outside of the 15-day window. Plaintiff explained the delay by indicating she had believed she had been receiving a copy of the documentation and that the documents would have also been sent to her counsel, Pheobe Clark. Jan. 6, 2016 Letter, ECF No. 35-2 at 70.
BOP's EEO Office wrote Plaintiff in a letter dated February 3, 2016, noting her Complaint had been deemed filed as of January 15, 2016, the date of the postmark sending the Complaint. Feb. 3, 2016 Ltr., Case 2 ROI at 43. BOP's EEO Office noted the Complaint had been untimely submitted and permitted Plaintiff an opportunity to explain why it had been delayed. BOP also requested contact information for Plaintiff's counsel. Id. at 44. Plaintiff again explained that she had been “under the assumption that I was merely receiving a copy of what was sent to my attorney….” Feb. 12, 2016 Ltr., Case 2 ROI at 46. Further, Plaintiff explained she had retained Attorney Clark on October 1, 2015, Clark was representing her in another EEO matter (Case 1), and she had informed “the Institution as well as Mr. Powell [EEO Counselor] that all correspondence should be sent to [Attorney Clark].” Id.
In a March 7, 2016 letter, the BOP advised Plaintiff her claims, as “encapsulated” in the letter, “had been accepted for investigation[.]” March 7, 2016 Letter, Case 2 ROI at 50-51. The letter identified the claim to be investigated as follows:
Whether the Complainant was discriminated against on the bases of disability (physical) and reprisal when on August 10, 2015, she was involuntarily assigned to a vocational rehabilitation counselor and not provided an alternative option to maintain employment with the agency.Id. at 50. Plaintiff was advised she would be contacted by an investigator; she was permitted to have a representative, whose information should be provided to the EEO; and she was to provide the investigator with witnesses she believed should be interviewed in connection with her claim. Id. at 50-51. Attorney Clark was copied with this letter and identified as Plaintiff's Representative. Id. at 51.
During the course of the investigation of Case 2, Plaintiff identified a Union staff member as her designated representative. In her testimony and in her investigative correspondence she did not reference having an attorney. See, e.g., May 17, 2016 Ltr. from Plaintiff to EEO Investigator Mejia, Case 2 ROI at 89 (indicating she wished to have her “representative Mr. Fleming” present during an upcoming conference call); see also Id. at 57-88; 83, 90-93.
In a letter dated April 5, 2017, the completed ROI was sent to Plaintiff. April 5, 2017 EEO Office Letter to Plaintiff, ECF No. 35-3 at 72-79. That letter advised Plaintiff she had 30 days to request a hearing and decision from an EEOC administrative judge or to request a final agency decision from DOJ. Id. at 72-73. There is no indication the EEO sent this letter or the ROI to Attorney Clark or any other representative of Plaintiff.
According to the EEOC's Order dismissing Case 3 (but not otherwise discussed or documented by the parties in this matter), on October 25, 2018, counsel for Plaintiff wrote the BOP's EEO Office inquiring about the status of Case 2 and requesting to amend the complaint. See Case 3 Order of Dismissal 1-2, ECF No. 35-4 at 3. The letter did not include additional factual information or information about the requested amendment. Id. Case 2 was never amended. In Plaintiff's Chronology of EEO Counseling submitted in beginning Case 3 Plaintiff notes that a request for amendment of Case 2 made during a May 15, 2019 pre-hearing call was denied by the Administrative Judge. Case 3 ROI at 39, ECF No. 35-3 at 103.
On June 12, 2019 Plaintiff's counsel submitted a letter to the EEOC requesting a hearing. June 12, 2019 Letter, ECF No. 35-3 at 82. The EEOC notified the BOP of the hearing request in an email dated June 28, 2019. The EEOC advised BOP it had opened an EEOC case. June 28, 2019 email, ECF No. 35-3 at 80.
According to a subsequent order of the EEOC Administrative Judge, an order was issued on June 28, 2019 setting an August 19, 2019 initial conference in the matter. When Plaintiff and counsel did not appear at that conference, an Order so Show Cause was issued on August 26, 2019. The record does not appear to include copies of the August 19 or August 26, 2019 orders.
On September 11, 2019, the assigned EEOC Administrative Judge issued an Order Imposing Sanctions and Dismissing Hearing Request due to the failure of Plaintiff and her counsel to appear at a scheduled August 19, 2019 Initial Conference, or respond to the August 26, 2019 Order to Show Cause. September 11, 2019 Order Imposing Sanctions and Dismissing Hearing Request, ECF No. 35-3 at 83. In the Order, the Administrative Judge indicated the Order to Show Cause had been sent to Plaintiff and to her representative's email addresses on file and had not been returned as undeliverable. Id. The case was remanded back to the agency for processing a final agency decision. Id. The Order was served on Plaintiff, Attorney Clark, and Agency Attorney Marie Clarke. Id. at 84.
On December 13, 2019, the Department of Justice, Complaint Adjudication Office issued an FAD discussing the merits of the claim and finding “the record does not support a claim of intentional discrimination on the basis of sex and disability or a claim of EEO retaliation, and that the record does not support a claim that management failed to meet its obligations under the Rehabilitation Act.” Letter transmitting December 13, 2019 FAD, ECF No. 35-3 at 85-88; FAD, ECF No. 35-3 at 89-101. In that letter Plaintiff was advised that she could appeal to the EEOC within 30 days or could file a civil action in United States District Court within 90 days of receipt of the FAD. ECF No. 35-3 at 85-86. Plaintiff opted to do the latter, filing the instant civil action on March 12, 2020.
The FAD addresses Plaintiff's allegations of gender-based discrimination, but notes that Plaintiff did not add such claims until her EEO Statement. FAD 1 n.1, ECF No. 35-3 at 89; see Case 2 ROI at 75.
3. Case 3: EEO Complaint 3 (BOP-2019-00882; EEOC Case No. EEOC No. 410-2020-00354X)
On May 21, 2019, Plaintiff sought EEO counseling for a third time alleging reprisal and a failure to accommodate for the timeframe of March 6, 2018 through the present time. Plaintiff claims she was subjected to a failure to accommodate and reprisal from March 6, 2018 through the date of her termination, January 30, 2019. EEO Counselor's Report and Green's Request for Counseling, Case 3 ROI at 39-45; ECF No. 35-3 at 102-09. Plaintiff notes she tried to amend Case 2 to include these allegations but was advised by the Administrative Judge in Case 2 that these matters were too separate to adjudicate together. Case 3 ROI at 40. Plaintiff filed her third EEO Complaint on August 29, 2019. Id. at 12, ECF No. 35-3 at 110.
On April 2, 2021, the assigned EEOC Administrative Judge issued an order holding that Plaintiff's termination and reasonable accommodation claims were well beyond the 45-day period for raising a claim; and dismissed the entire case as untimely. April 2, 2021, Order of Dismissal, ECF No. 35-4 at 2-10. The Order also indicated that, even if claims had been timely brought, termination-related claims were barred by collateral estoppel and that the termination portion of the claim was “most likely not properly before” the Administrative Judge. Id. at 5-6.
On May 11, 2021, the Department of Justice Complaint Adjudication Office issued an FAD, agreeing with the Administrative Judge's “decision that [Plaintiff's] claims of disability discrimination and retaliation for prior EEO activity are untimely and are otherwise procedurally barred.” May 11, 2021 FAD and related correspondence, ECF No. 35-4 at 12-23. In concluding the decision DOJ also notes that all three of Plaintiff's EEO complaints centered around her 2014 carpal tunnel syndrome diagnosis, and no new facts had been provided to alter the conclusion that Plaintiff could not perform all essential functions of her position. Id. at 21.
4. Plaintiff's USDC Complaint
Plaintiff filed her USDC Complaint on March 13, 2020. Compl., ECF No. 1. Plaintiff has acknowledged that the Complaint relates to Case 2.
III. Standard of review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
IV. Analysis
A. Employment claims
Plaintiff acknowledges she seeks judicial review of Case 2 only. Pl. Mem. 1, ECF No. 39 (“The present litigation covers Plaintiff's second EEO claim.”). In her Complaint, she references her January 6, 2016 Charge of Discrimination and the Agency's FAD dated December 13, 2019. Id. ¶¶ 5, 8. The Complaint sets out a cause of action for violation of Title VII, claiming she was treated differently from male employees. She also includes causes of action for violations of both Title I and Title II of the ADA and for violation of Section 501 of the Rehabilitation Act. Plaintiff also brings a state-law-based claim for intentional infliction of emotional distress. Compl., ECF No. 1.
Although in one portion of the Complaint Plaintiff characterizes her Charge as including claims of race-based discrimination, Compl. ¶ 8, race is not referenced in the Title VII cause of action, nor is it included in the January 6, 2016 Charge. Other than mentioning “race” on the first page of her opposition memorandum Plaintiff does not argue she has presented a viable race-based claim. Summary judgment should be granted as to any race-based Title VII claim Plaintiff may purport to bring.
1. Failure-to-exhaust arguments: timing
Defendant argues Plaintiff failed to exhaust administrative remedies as to the whole of Case 2, arguing that she a) did not meet with an EEO counselor within the requisite 45 days of the discrimination, b) did not file her EEO Complaint with DOJ within the requisite 15 days of receiving the Notice of Right to File Discrimination Complaint, c) did not submit a hearing request within the required 15 days of receiving the ROI, and d) did not appear at the EEOC's initial conference or the hearing on the Rule to Show Cause conducted by the EEOC's administrative judge. Def. Mem. 17- 23.
When Plaintiff made initial contact with an EEO counselor on September 9, 2015, she listed the “date of alleged discriminatory event” as August 10, 2015. Case 2 ROI at 19. Plaintiff indicated that on August 10, 2015, “the [Vocational] Rehabilitation Counselor began job search between DOL Examiners and her after being told by the agency that [Plaintiff] would be separated from the agency[, ] giving the Counselor 90 days to designate a job for her.” Id. at 21. Plaintiff also listed earlier dates in May 2015 in identifying when the agency requested Vocational Rehabilitation for Plaintiff. Id. (indicating she was advised by BOP representative on May 6, 2015 that BOP could “no longer accommodate her” and that BOP requested that Plaintiff be placed on Vocational Rehabilitation on May 8, 2015).
A federal employee must initiate contact with an EEO counselor within 45 days of the alleged discriminatory action. 29 C.F.R. § 1614.105(a)(1). Defendant argues that the September 9, 2015 EEO contact was not timely because it took place more than 45 days after May 5, 2015, the date Plaintiff indicated she believed she was referred to Vocational Rehabilitation. Defendant submits the BOP's EEO office focused on the August 10, 2015 date improperly identified by Plaintiff as the date she was “involuntarily assigned to vocational rehabilitation” in not dismissing Case 2 as untimely at the time it was filed. Def. Mem. 19-20. Plaintiff does not dispute that her EEO contact was more than 45 days after the time she was advised she was being assigned to vocational rehabilitation. Rather, Plaintiff submits that, because the EEO accepted and considered her claims and ultimately issued a right to sue by issuing an FAD, “subject matter jurisdiction [was] established once [she brought] the complaint” in this matter. Pl. Mem. 9.
Somewhat similarly, Plaintiff submits that her delay in filing her EEO Complaint and her delay in requesting a hearing and in appearing before the EEOC related to mistakes by the agency and/or the EEOC in notifying Plaintiff's counsel of various steps in the administrative process. At bottom, Plaintiff's argument focuses on what she characterizes as mistakes by the agencies in providing notice to her counsel. Conversely, Defendant points to various discrepancies in the documents provided by Plaintiff regarding whether she was, or was not, represented by counsel in Case 2.
At bottom, under the facts of this case the undersigned is of the opinion that Plaintiff's various delayed filings arguably are attributable to mistakes by the agency in either identifying whether the initial contact was timely or in notifying Plaintiff's counsel of important steps in the proceeding.
While such arguable mistakes do not rise to the level of agency misconduct, the undersigned agrees that it is appropriate to move forward and consider the merits of Plaintiff's claim as framed in Case
2. As Plaintiff points out, the Agency and the EEOC considered the merits of Plaintiff's claim. Plaintiff did timely file the instant Complaint upon receiving the right to sue from the Agency. Accordingly, judicial economy simply is not served by more detailed rehashing of procedural timing in this matter. As the Fourth Circuit has noted,
Federal employees . . . who seek to enforce their rights under Title VII, the Americans with Disabilities Act, and the Rehabilitation Act must exhaust their available administrative remedies before pursuing an action in federal court. 29 U.S.C. § 794a(a)(1) (2012); 42 U.S.C. § 2000e-16(c) (2012); 42 U.S.C. § 12117(a) (2012);
Brown v. Gen. Serv. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Laber v. Harvey, 438 F.3d 404, 415-16 (4th Cir. 2006); 29 C.F.R. § 1614.103(a), (b)(2) (2014). The exhaustion requirement exists to minimize “judicial interference with the operation of the federal government.” Doe v. Oberweis Dairy, 456 F.3d 704, 712 (7th Cir. 2006). The requirement is meant “‘to give the agency the opportunity to right any wrong it may have committed.'” Jasch v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002) (quoting McRae v. Librarian of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988) (per curiam)). “If the agency has had this opportunity and has made a determination concerning discrimination, the administrative process has not been obstructed. It has been exhausted.” Jasch, 302 F.3d at 1096.Melendez v. Sebelius, 611 Fed.Appx. 762, 763 (4th Cir. 2015). Here, while the route was at times circuitous, there is no indication that Plaintiff ever failed to cooperate with investigation by the agency (BOP). Rather, BOP had the opportunity to conduct an investigation and it rendered a substantive FAD. Under these facts it is appropriate that the claim as accepted in Case 2 is considered to have been exhausted. In so-recommending, the undersigned is aware that, in Melendez itself the Fourth Circuit determined the claimant had failed to exhaust administrative remedies because Melendez failed to cooperate with the administrative procedure in such a way that it “precluded the possibility of exhaustion by preventing a determination by the administrative judge on the merits of her claims.” Melendez, 611 Fed.Appx. at 764. Here, however, although Plaintiff admittedly missed certain delineated deadlines for furthering administrative review of her case, she did cooperate with the investigation and the DOJ ALJ had sufficient information to render a substantive decision on the merits of her claims as set forth in the FAD. Here, then, it is recommended that the court continue with a review of Plaintiff's Case 2.
2. Failure-to-exhaust arguments: scope of claim under review
Although the parties agree that it is Case 2 that is before the court they disagree as to what Case 2 encompasses. Defendant submits that the scope to be reviewed in this court is that set forth in Plaintiff's Case 2 EEO Complaint, as accepted for investigation in the underlying administrative proceedings. The accepted issue was set out as follows:
Whether the Complainant was discriminated against on the bases of disability (physical) and reprisal when on August 10, 2015, she was involuntarily assigned to a vocational rehabilitation counselor and not provided an alternative option to maintain employment with the agency.
Letter defining the accepted issue dated March 7, 2016, Case 2 ROI at 50-51. Defendant notes that the accepted issue and Complaint did not include claims of race or sex discrimination (although the EEO considered claims of sex discrimination that were added by Plaintiff during the course of the EEO investigation). Although Plaintiff belatedly sought to amend the scope of Case 2, that amendment was denied. According to Defendant, then, the only issue that may be reviewed is the narrow issue accepted by the BOP. Defendant notes the August 10, 2015 date set out in the accepted issue is a mistake and that the actual date Plaintiff was assigned to vocational rehabilitation was in May 2015. Defendant takes the position that the claim is limited to this mid-2015 timeframe. Def. Mem. 23-24.
Plaintiff seems to argue, though, that Case 2 concerns Defendant's continuing to “refuse to return Plaintiff to work from May 2015 to March 2018.” Pl. Mem. 7. Plaintiff concedes that matters concerning Plaintiff's return to work as of March 2018, the BOP's subsequent reasonable accommodation reassignment efforts, and Plaintiff's termination relate to Case 3 and are not the subject of this litigation. Id.
First, the undersigned finds that only claims raised in the administrative Complaint, “accepted, ” and considered by the BOP are appropriately considered herein. To the extent Defendant is arguing the court ought not consider any sort of a “failure to accommodate” claim raised by Plaintiff, the undersigned disagrees. The accepted issue, while focused on Plaintiff's involuntary assignment to vocational rehabilitation, also concerns Plaintiff's allegation that she was “not provided an alternative option to maintain employment with the agency.” Letter defining the accepted issue dated March 7, 2016, Case 2 ROI at 50-51. To the extent this may be considered a failure-to- accommodate claim during the time at issue-May (or August) 2015-the court will consider it herein, as did the agency in its FAD. See FAD 12 (considering Plaintiff's “somewhat unclear” reasonable accommodation claim and finding management's actions in May 2015 did not violate the Rehabilitation Act). In considering this limited failure-to-accommodate claim, however, the court is not accepting Plaintiff's argument that all issues considered herein run from May 2015 through May 2018. The court is mindful that Case 3, which is not before the court, more specifically concerned later failure-to-accommodate claims.
As the accepted issue and the resulting ROI and subsequent decisions did not include race discrimination, Plaintiff's Title VII race-based claims are not properly before the court. Whether the sex-based claims are appropriately before the court is a closer issue. To be sure, the Case 2 Complaint form did not reference sex-based discrimination or reprisal, nor did the accepted issue reference them. Nonetheless, the Agency opted to consider and rule on Plaintiff's claims of sex-based discrimination and reprisal. Out of an abundance of caution, the undersigned will consider the sex-based claims on their merits.
Regarding the time-frame of the claims being considered, Defendant references the continuing violation theory, but submits it does not salvage Plaintiff's claims for events subsequent to those raised in Case 2. Def. Mem. 24 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). As Defendant notes, Morgan stands for the proposition that certain wrongs may be comprised of “discrete acts” of discrimination that are to be considered separately. Id. The continuing-violation doctrine relates more to whether claims have been timely brought and whether previous, otherwise untimely acts might be considered “continuing acts” of discrimination sufficient to make them related to timely acts and considered. In response, Plaintiff does not clearly focus on a continuing-violation analysis. Rather, she focuses more on the continuation of her damages. Pl. Mem. 14 (“Clearly, Plaintiff is alleging she was denied a reasonable accommodation search and even if it is considered a ‘discrete act' of denying a reasonable accommodation search, Plaintiff was damaged with leave without pay from May 2015 through 2018, which is continuing damages.”). Plaintiff cites no case law to support her argument that, simply because she continued to suffer damage, claims for alleged violations beyond her claim raised in September 2015 concerning mid-2015 events, are properly before the court.
In summary, the undersigned is of the opinion that the issue as accepted by BOP in considering Plaintiff's Case 2 Complaint is what was exhausted and is considered herein. The accepted issue concerns Plaintiff's involuntary placement in Vocational Rehabilitation in mid-2015 and, to the extent it is covered by the accepted issue, BOP's failure to accommodate her at that time by placing her in a different position. The issues exhausted do not include matters beyond the mid-2015 timeframe. As did the FAD, the court will consider disability- and sex-related claims. As admitted by Plaintiff, the issues before the court do not include matters covered in Case 3-particularly her termination claim and her failure-to-accommodate claim for March 2018 through the date of her January 2019 termination.
B. Disability discrimination claims
Plaintiff purports to bring disability-related claims under both the Rehabilitation Act and the ADA, as amended. Compl. ¶¶ 25-43. As noted by Defendant, however, the Rehabilitation Act, not the ADA, applies to disability-related claims brought by federal employees such as Plaintiff. See Hatcher v. Wilkie, C/A No. 3:17-2535-JMC-PJG, 2019 WL 2090810, at *5 (D.S.C. Feb. 27, 2019) (collecting cases). Other than briefly indicating she is bringing both Rehabilitation Act and ADA claims, see Pl. Mem. 2, Plaintiff does not dispute that it is the Rehabilitation Act that is applicable herein. The court considers Plaintiff's disability-related claims as having been brought pursuant to the Rehabilitation Act only. Summary judgment is appropriate as to the ADA-based claims set out in Plaintiff's Complaint. In considering Plaintiff's Rehabilitation Act claims, the court may look to case law interpreting both the Rehabilitation Act and the ADA. See generally, Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
When, as here, Plaintiff has provided no direct evidence to support her claim, the familiar burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973) applies. To establish a prima facie case of discrimination under the Rehabilitation Act, Plaintiff must show the following:
(1) that [s]he has a disability; (2) that [s]he is otherwise qualified for the employment or benefit in question; and (3) that [s]he was excluded from the employment or benefit due to discrimination solely on the basis of the disability.Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). Whether Plaintiff was “otherwise qualified” turns on whether she could “perform the essential functions” of her position “with or without reasonable accommodation” from her employer. See 42 U.S.C. § 12111(8). Plaintiff bears the burden of demonstrating that she could perform the essential functions of her job with reasonable accommodation. Tyndall v. Nat'l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994).
Defendant sets out the prima facie elements in a slightly different manner. Def. Mem. 26.
Assuming for the sake of the motion that Plaintiff was disabled within the meaning of the Rehabilitation Act, Defendant submits Plaintiff cannot demonstrate prima facie disability discrimination because she is not “otherwise qualified” for her position as a correctional officer based on her physician's March 2015 opinion that she had reached maximum medical recovery and that her restrictions included not using a firearm. Defendant submits firearm use is an essential function of a correctional officer's job description. Def. Mem. 27-28.
Plaintiff spends several pages arguing why she should be considered “disabled, ” conflating an argument that she was actually disabled with one that she was regarded as being disabled. Pl. Mem. 15-17. While Defendant does not altogether concede that Plaintiff falls within the statutory definition of “disability, ” it concedes for purposes of the motion that Plaintiff is considered “disabled” under the statute. Def. Mem. 27. Because Defendant does not contest the “disabled” prong herein, the court assumes Plaintiff has shown she is an “individual with a disability” under the meaning of the Rehabilitation Act.
In a failure-to-accommodate case, Plaintiff can show a prima facie case by showing the following:
“(1) that [s]he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of [her] disability; (3) that with reasonable accommodation [s]he could perform the essential functions of the position . . .; and (4) that the [employer] refused to make such accommodations.”Griffin v. Holder, 972 F.Supp.2d 827, 847 (D.S.C. 2013) (quoting Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001)). Similarly, Defendant submits Plaintiff cannot prevail on a failure-to-accommodate claim because Plaintiff has not identified a “reasonable accommodation” that would permit Plaintiff to perform the essential functions of her job, in particular using a firearm. Def. Mem. 29-30.
Plaintiff submits that her “only identified job duty was that of a correctional officer; she was not obligated to even carry a firearm.” Pl. Mem. 16. She submits she was “successfully performing her job at the visitation post” when she was removed from it. Pl. Mem. 16, see also Id. at 17 (indicating she had demonstrated she could perform “the majority of her duties in the visitation post”). Plaintiff also points to language in the job description that indicates she would be required to carry a firearm only “from time to time, ” showing that requirement was not an essential function. Pl. Mem. 19.
In other words, the heart of Plaintiff's disability claims hinge on whether carrying/using a firearm is an “essential” function of her job as a correctional officer.
Physical Requirements for Institution Positions and Correctional Officer Position Description
The BOP's Position Description for a Correctional Officer (Senior Officer) such as Plaintiff provides in relevant part as follows:
[The Correctional Officer] [s]erves as a Senior Officer and performs the full range of duties and responsibility for detention, correctional supervision, protection, control and accountability of inmates. . . . Major Duties and Responsibilities . . .
From time to time, may be authorized to carry firearms and to use physical force, including deadly force, to maintain control of inmates.
Is subject to being in such hostile or life-threatening situations as riots, assaults and escape attempts….
Must successfully complete specialized training in firearms proficiency, self-defense, management of medical emergencies, safety management and interpersonal communication skills…
Nature of Assignment
. . .
Must maintain the control and discipline of inmates in such areas as the auditorium,
housing units, segregation, recreation areas, dining room, etc….
Incumbent must successfully complete specialized training in firearms proficiency, self defense, management of medical emergencies, safety management and interpersonal communication skills.
Works in a variety of positions with varying complexity. . . .Required to respond promptly to any emergency situation such as escape, fog patrol, riots, major disturbances, etc….
Level of Responsibility . . .
The work performed within a federal prison and the incumbent is subject to possible hostage and assault situations. The duties of this position require frequent direct contact with individuals in detention suspected or convicted of offenses against the criminal laws of the United States. Daily stress and exposure to potentially dangerous situations such as physical attack are an inherent part of this position; consequently, it has been designated as a law enforcement position. Accordingly, the incumbent is covered under the special retirement provisions for law enforcement officers contained in Chapters 83 and 84 of Title 5, United States Code.
Position Description, Case 2 ROI 146- 49, ECF No. 35-2 at 149, ECF No. 35-3 at 1-3.
The physical requirements for staff within a federal prison are as follows:
[C]urrent employees in law enforcement positions must meet the following physical activities:
(1) Walking for up to one hour;
(2) Standing for up to one hour;
(3) Seeing a human figure at a distance of one-fourth of a mile;
(4) Seeing a target at a distance of 250 yards;
(5) Hearing and detecting movement;
(6) Hearing commands and radio broadcasts.
(7) Ability to use various firearms, including pistols, rifles and shotguns;
(8) Ability to perform self-defense movements;
(9) Running an extended distance;
(10) Dragging a body an extended distance;
(11) Carrying a stretcher with one other person;
(12) Ability to smell smoke and drugs;
(13) Climbing stairs; and
(14) Lifting objects weighing 25 pounds.See Whitehurst Declaration ¶¶ 17-18 and ex. 1, ECF No. 35-1 at 8-9.
Defendant found Plaintiff's permanent restrictions, including the no-shooting restriction, would not permit her to perform the essential functions of her job as a Correctional Officer. Accordingly, BOP referred Plaintiff to Vocational Rehabilitation and discontinued her employment in various “light duty” temporary assignments. Gary Rose Sworn Testimony, Case 2 ROI 115-16, ECF No. 35-2 at 121-22. As explained by Rose, once work-related restrictions become permanent, BOP will no longer assign temporary light-duty positions. Case 2 ROI at 115. Rather, if the permanent restrictions do not permit an employee to meet the minimum requirements for a law enforcement officer, the employee is placed in Vocational Rehabilitation. Id.
Plaintiff takes issue, claiming she did not typically even carry a firearm and that the job description's indication that she would be required to carry a firearm “from time to time” show the non-essential nature of firearm use to the job of correctional officer. Pl. Mem. 16, 19. Other than her own feelings regarding whether shooting is an “essential function” of being a correctional officer, Plaintiff cites no testimony or legal precedent to support her position that shooting is not an essential function for a correctional officer at FCI Williamsburg.
Applicable regulations define an “essential function” as “the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions' does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). Although not an exhaustive list, certain evidence may be considered in determining whether a particular function is essential:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n)(3) (recognizing the list of potential evidence is illustrative rather than comprehensive).
In considering a whether a dental hygienist employed at the same federal correctional institution as Plaintiff could be excused from law-enforcement-related duties of her job, the court found she could not because the law-enforcement functions were essential. “Because Plaintiff's position as a dental hygienist required her be a correctional officer first, eliminating that duty would amount to eliminating an essential function of her position, which the Rehabilitation Act does not require.” Griffin v. Holder, 972 F.Supp.2d 827, 848-49 (D.S.C. 2013). In that case, a dental hygienist, a non-custodial employee, was requesting she be “exempt from a correctional post, ” in which she could be required to cover custodial positions when custodial officers were at training. Id. at 847. Here, the facts are even more compelling: Plaintiff is a correctional officer, not a dental hygienist who could be called upon to sometimes be correctional officer. Part of her job was to help maintain order and to control the prison population when necessary. The consequences of her not being able to perform that function could be dire. Plaintiff's job description includes a requirement that she be capable of using firearms. That the requirement indicates she may be required to do so only “from time to time” is a factor to be considered. However, based on the facts herein, the BOP's judgment that ability to use firearms is an essential duty, the job descriptions, and the consequences of her not being able to use firearms combine to make the ability to use firearms is “essential” to the position of Correctional Officer. Further, the March 2015 permanent restrictions included no repetitive use of her hands and no lifting more than 5 pounds, Case 2 ROI at 159-60, both of which kept Plaintiff from performing her job duties. Accordingly, Plaintiff cannot demonstrate that she is a “qualified individual” for purposes of her Rehabilitation Act discrimination claim. Summary judgment is appropriate on that cause of action.
The undersigned notes Plaintiff made other arguments not related to whether the firearms restriction kept her from being a “qualified individual” in 2015. For example, several times Plaintiff focuses on an argument that the BOP has violated the Rehabilitation Act by requiring that an employee have no restrictions on his or her ability to work before it would provide him or her with another permanent position. The evidence does not bear that out. The evidence here is that, once Plaintiff's permanent restrictions were determined, the BOP considered whether such restrictions impacted her ability to perform the essential functions of her job. Plaintiff also looks to a 2016 medical examination that did not include a shooting restriction. However, the focus of Case 2 is 2015, and it is not disputed that Dr. Ervin's March 2015 opinion included restrictions on repetitive movement and shooting. Further, even if considering later opinions, a second opinion rendered in 2016 agreed with Dr. Ervin's assessment that Plaintiff had permanent restrictions, including limitation of repetitive use-of-hands and other exertional restrictions that would prevent her from performing the physical requirements of her job as a correctional officer. Case 2 ROI at 219-23.
Similarly, to the extent Case 2 includes a failure-to-accommodate claim it is doomed by a finding that the use of firearms is essential to the job of a correctional officer. See Rhoads, 257 F.3d at 387 n.11 (indicating third prong of failure-to-accommodate claim is that “with reasonable accommodation [the employee] could perform the essential functions of the position”). As in Griffin, BOP's eliminating the essential job function of firearm use to accommodate Plaintiff's restrictions “would amount to eliminating an essential function of her position, which the Rehabilitation Act does not require.” Griffin, 972 F.Supp.2d at 848-49. Additionally, that BOP placed Plaintiff in temporary positions that did not require firearms use or ability does not require that it do so permanently or that it somehow failed to accommodate Plaintiff. See Laurin v. Providence Hosp., 150 F.3d 52, 60-61 (1st Cir. 1998) (“An employer does not concede that a job function is ‘non-essential' simply by voluntarily assuming the limited burden associated with a temporary accommodation, nor thereby acknowledge that the burden associated with a permanent accommodation would not be unduly onerous.”) (as quoted in Griffin, 972 F.Supp. at 849). To the extent Case 2 includes a failure-to-accommodate claim summary judgment should be granted as to it.
C. Title VII discrimination claims
As noted above, Plaintiff's initial EEO Complaint did not include claims of sex- or race-based discrimination, although her Complaint before this court includes both. Defendant seeks dismissal of both Title VII claims for failure to exhaust. Plaintiff does not challenge the race-based claims and is deemed to have abandoned them. “The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.” Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009).
Arguably, the sex-based claims appropriately may be dismissed because they were not initially raised with the EEO counselor. However, because the Agency considered sex-based claims in its investigation and in its FAD, the court briefly considers these claims herein. In any event, Plaintiff's Title VII claims of sex discrimination are subject to summary judgment.
To establish a prima facie case of sex discrimination, Plaintiff must show: (1) she is a member of the protected class; (2) she suffered an adverse employment action; (3) at the time of the adverse action, she was performing at a level that met her employer's legitimate expectations; and (4) she was treated differently from similarly situated employees outside the protected class. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Plaintiff is, of course, a member of a protected class. For purposes of this motion Defendant has conceded that placement in vocational rehabilitation is an adverse action. See Def. Mem. 34. Defendant does not focus on the legitimate expectations prong. Rather, Defendant briefly argues that Plaintiff has not set out evidence of similarly situated male employees who were treated differently and cannot establish her prima facie case. Def. Mem. 29 n.8.
The undersigned agrees with Defendant. Plaintiff attempts to show disparate treatment based on two male coworkers. Plaintiff identified James Woods, a white male, with whom she had worked. Plaintiff observed Woods performing light duty when he had a back injury. Case 2 ROI at 82. She offers no other information about Woods other than to say that he had “transferred.” Id. Plaintiff also identified coworker Derek Perry, a black male, who slipped and fell and had a back injury and was permitted to work light duty. Id. The only additional information Plaintiff provides regarding Perry is that he had been a correctional officer but was promoted to administration in the finance department. Id.
Plaintiff references the interrogatory response provided by Captain Rayburn regarding Woods' and Perry's being provided “light duty accommodations and options to maintain their employment.” Rayburn's response was that if “those staff members were provide[d] light duty assignments they provided documentation that they would be able to return to work full duty with no restrictions.” July 2015 Rayburn Aff. by Interrog. 30, Case 2 ROI at 133. This hypothetical response does nothing to inform the court as to those employees' restrictions, work status, or the essential requirements of their positions.
Plaintiff's evidence is insufficient because she has not provided any competent evidence comparing the injuries, permanency status, or essential job duties of Woods or Perry. To use comparator evidence, Plaintiff must show that all relevant aspects of the comparator's work situation were nearly identical to her own. “The similarity between comparators . . . must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008).
Plaintiff was given several temporary light-duty assignments and, once it had been medically determined that her restrictions were permanent, was referred to vocational rehabilitation. The scant information regarding Woods and Perry-that they at one time were injured and worked light-duty positions-is not sufficient. The record contains no information regarding their work restrictions, when they were imposed, and whether they had been deemed permanent at the time they worked in light-duty roles. Plaintiff cannot establish the fourth prong of her prima facie sex-based discrimination claim. Summary judgment is appropriate.
D. Reprisal
Defendant seeks summary judgment as to Plaintiff's claim of reprisal (retaliation) under the Rehabilitation Act and Title VII. To establish her prima facie case, Plaintiff must show: (1) that she has engaged in protected conduct; (2) that she suffered an adverse action subsequent to engaging in the protected conduct; and (3) that the adverse action was “causally connected to [her] protected activity.” S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 78 (4th Cir. 2016); Myers v. Hose, 50 F.3d 278, 281 (4th Cir. 1995) (noting “the substantive standards for determining liability are the same” under the Rehabilitation Act and the ADA); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997) (Title VII). If Plaintiff establishes a prima facie case of retaliation, the burden shifts to Defendant to produce evidence of legitimate, nonretaliatory reasons for the complained-of acts. If it does so, the burden returns to Plaintiff to demonstrate that Defendant's proffered reasons for its actions were pretextual.
“Importantly, although intermediate evidentiary burdens shift back and forth under this framework, [Staley retains] the ultimate burden of persuading the trier of fact, ” Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011) (internal quotation marks and alteration omitted), that her engagement in the protected activities was a “but for” cause of her non-conversion to permanent status. Univ. of Tex. Sw. Med. Ctr. v. Nassar, , 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)[.]Staley v. Gruenberg, 575 Fed.Appx. 153, 155 (4th Cir. 2014) (applying but-for causation standard in analyzing whether plaintiff alleging retaliation under ADA, Rehabilitation Act, and Title VII had established pretext).
Plaintiff claims she was placed in vocational rehabilitation and removed from her temporary light-duty assignments in retaliation for her having brought Case 1-her September 2014 EEO complaint in which she had alleged disability discrimination based on the BOP's not placing her on light-duty assignments from January 31 through August 20, 2014. See ECF No. 35-2 at 9.
Defendant seeks summary judgment, arguing Plaintiff cannot establish a prima facie case or, if she could, she cannot show pretext. Def. Mem. 33-36. Defendant acknowledges that Plaintiff's EEO Case 1 is protected activity, and for purposes of this motion, does not dispute that Plaintiff's assignment to vocational rehabilitation could be considered materially adverse. Id. at 34. Defendant asserts, though, that Plaintiff cannot establish the causation prong of her prima facie case. Id. (arguing Plaintiff must establish but-for causation at prima facie stage and has not done so).
The undersigned is of the opinion that Plaintiff has set forth sufficient evidence to establish a prima facie retaliation claim, however, because the “causation” requirement at the prima facie stage is not as stringent as at the pretext stage. Staley, 575 Fed.Appx. at 155. As Plaintiff notes, Case 1 was ongoing at the time she was placed in vocational rehabilitation. Pl. Mem. 21. Prima facie causation can be established by a close relationship in time between the protected activity and the complained-of action. See Williams v. Newport News Sch. Bd., No. 4:20-CV-41, 2021 WL 3674983, at *16, n.10 (E.D. Va. Aug. 19, 2021) (noting formal complaints that were ongoing at the time of the materially adverse action could establish prima facie causation). While the undersigned is not persuaded that the mere fact that a previously filed EEO action is ongoing at the time of the complained-of action necessarily is sufficient to demonstrate prima facie causation, the court assumes, arguendo, that Plaintiff has established the light burden of prima facie causation here. See generally Strothers v. City of Laurel, Md., 895 F.3d 317, 335 (4th Cir. 2018) (noting that “establishing a ‘causal relationship' at the prima facie stage is not an onerous burden.”). Accordingly, the court proceeds beyond the prima facie analysis.
Defendant has set out a legitimate, nondiscriminatory reason for referring her to vocational rehabilitation and discontinuing light-duty assignments once her physician opined that she had permanent restrictions that would prevent her from meeting the essential duties of her correctional officer position. While Plaintiff takes issue with Defendant's actions, Defendant bears only the burden of production at this stage. Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019) (noting the employer's “‘burden is one of production, not persuasion; it can involve no credibility assessment.'”) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000)).
The burden then shifts to Plaintiff to show that this given reason was pretext for discrimination and that but-for her earlier EEO activity Defendant would not have referred her to vocational rehabilitation and removed her from temporary light duty. Staley, 575 Fed.Appx. at 155. Plaintiff has not met that burden of showing pretext. In her attempt to do so Plaintiff again looks to would-be comparators Woods and Perry. As noted above, Plaintiff has not provided sufficient evidence regarding the situations with Woods or Perry to make them appropriate comparators. Their duty status and the permanency of their work restrictions is unknown. Summary judgment should be granted as to Plaintiff's retaliation claims.
E. State-law-based claim: failure to exhaust administrative remedies
Plaintiff's state-law-based cause of action for intentional infliction of emotional distress is also subject to summary judgment. Defendant correctly notes that Plaintiff was required to pursue administrative remedies under the Federal Tort Claims Act (FTCA) prior to pursuing such a cause of action here. Def. Mem. 18. In opposing summary judgment, however, Plaintiff offers no argument at all regarding the state-law claim. “The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.” Eady, 609 F.Supp.2d at 560-61. Because Plaintiff has apparently abandoned her state-law-based claim and has provided no evidence or argument regarding exhaustion of FTCA-required remedies, the intentional infliction of emotional distress claim is also subject to summary judgment.
V. Recommendation
For the foregoing reasons, it is recommended that Defendant's Motion for Summary Judgment, ECF No. 35, be granted and this case be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”