Opinion
Case No. 2:22-cv-285
2023-08-23
La Terrence D. KELLEY, Plaintiff, v. Alejandro N. MAYORKAS, Secretary, U.S. Department of Homeland Security, Defendant.
Joshua Harry Erlich, Katherine Lynn Herrmann, The Erlich Law Office PLLC, Arlington, VA, for Plaintiff. La Terrence D. Kelley, Chesapeake, VA, Pro Se. Daniel Patrick Shean, Kent Pendleton Porter, United States Attorney Office, Norfolk, VA, for Defendant.
Joshua Harry Erlich, Katherine Lynn Herrmann, The Erlich Law Office PLLC, Arlington, VA, for Plaintiff. La Terrence D. Kelley, Chesapeake, VA, Pro Se. Daniel Patrick Shean, Kent Pendleton Porter, United States Attorney Office, Norfolk, VA, for Defendant. MEMORANDUM OPINION & ORDER Jamar K. Walker, United States District Judge
This matter is before the Court on the Motion for Summary Judgment filed by the defendant, Alejandro N. Mayorkas, Secretary of the United States Department of Homeland Security. ECF Nos. 37 (motion), 38 (memorandum). The Court has fully considered the arguments set forth in the parties' briefs and has determined it is not necessary to hold a hearing on the motion. For the reasons stated herein, the motion is GRANTED as to all counts of the amended complaint.
I. BACKGROUND
A. Factual Background
i. Request for Accommodation
The plaintiff, La Terrence Kelley, worked for the United States Coast Guard as a Management and Program ("MAP") Analyst from approximately September 2010 until he resigned on August 12, 2022. ECF No. 38 ¶ 1 (citing ECF No. 38-1 ¶ 3). In this role, the plaintiff "assisted with the development and management of a range of training processes and data analysis on a range of program activities for the Coast Guard." ECF No. 38-1 ¶ 3.
These facts are taken from the Secretary's statement of undisputed facts and the underlying exhibits, including the declaration of Captain Scott D. Benson. See ECF No. 38 ¶¶ 1-14. As discussed further herein, the plaintiff's responses to the instant motion did not dispute any of the facts contained in the Secretary's statement of undisputed facts, nor did the plaintiff supply any relevant opposing exhibits. As a result, the Court "consider[s] the fact[s] undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
On May 12, 2021, the plaintiff requested a workplace accommodation from his supervisor, Commander Marcus Ivery. ECF No. 38 ¶ 2 (citing ECF No. 38-1 ¶ 4). The plaintiff requested an accommodation of full time, permanent telework. ECF No. 38-3 at 1. The plaintiff cited his diagnosis of "Combat PTSD" and stated that the accommodation would provide him "with a work environment that is safe, peaceful, calming and mostly trigger free." Id. (emphasis removed). The plaintiff also stated that the accommodation would allow him "to continue with therapy, treatment and best practices." Id. The plaintiff did not include any medical documentation with his request, but he did offer to "provide . . . documentation or [his] medical records of [his] COMBAT PTSD diagnosis, from [his] doctor(s)." Id. (emphasis removed).
Commander Ivery sent a memorandum to the plaintiff on August 24, 2021, that requested a medical opinion. ECF No. 38 ¶ 3 (citing ECF No. 38-4 ¶ 4b). The memo indicated that the opinion should address the following issues:
a. The nature, severity and duration of [the plaintiff's] medical condition or physical impairment;Id. ¶ 4b. Commander Ivery included with the memorandum documents titled "DOCUMENTATION OF ESSENTIAL FUNCTIONS OF POSITION" and "Position Description for Program Analyst, GS-0343-09." Id. at 3-7.
b. Explanation of the impact of [the plaintiff's] medical condition on [his] activities both on and off the job;
c. The extent to which impairment limits [the plaintiff's] ability to perform an activity or activities;
d. Explanation [of] whether the impairment is or can be controlled by medication or other medical intervention or device;
e. Estimate of expected date of full or partial recovery;
f. On the basis of his/her medical expertise and knowledge of [the plaintiff's] condition, an assessment of [the plaintiff's] ability to successfully perform the essential functions of [his] position of record with or without accommodation
. . .
g. If an accommodation is required, the particular accommodation requested must provide an explanation as to how the accommodation will assist [the plaintiff] in performing the essential functions of [his] position.
Commander Ivery's memorandum erroneously includes two paragraphs numbered "4." See ECF No. 38-4 at 1-2. For clarity, the Court refers to the first paragraph "4" as paragraph 4a and the second paragraph "4" as paragraph 4b.
On September 7, 2021, the plaintiff provided a written opinion from his counselor, Meagan E. Graham, LPC ("the Graham opinion"). ECF No. 38 ¶ 4 (citing ECF No. 38-5). The Graham opinion consists of a single paragraph:
My name is Meagan E. Graham, LPC. I am a Licensed Professional Counselor, board certified to practice in my specialty in the state of Virginia. My credentials are included. I have been asked to write a statement in support of the veteran's (Mr. LaTerrence Kelley) claim. Mr. LaTerrence Kelley is a patient under my care. Mr. Kelley is being provided therapeutic services in an out-patient setting to treat his diagnosis of Post Traumatic Stress Disorder (PTSD). My clinical opinions are based on clinical interviewing, mental status examination, assessment, diagnosis and treatment of the veteran, review of pertinent information, my education, training and experience and my understanding of reasonable medical probability and reasonable medical certainty. It is my clinical opinion, that the mental and psychological trauma, impairments and or disabilities set forth in my diagnosis and computation of service-connected disability, were directly due to, more likely than not and a consequence of the veteran's (Mr. LaTerrence Kelley) military service.ECF No. 38-5 at 1 (emphasis removed). The Graham opinion does not address "(i) the impact of Plaintiff's PTSD on his activities on or off the job; (ii) Plaintiff's ability to successfully perform the essential functions of his position; or (iii) how Plaintiff's requested accommodation would assist him in performing the essential functions of his position." ECF No. 38 ¶ 4.
The Coast Guard denied the plaintiff's request for accommodation on September 13, 2021. ECF No. 38 ¶ 5 (citing ECF No. 38-6). Captain Scott D. Benson explained in his decision that the plaintiff had submitted inadequate medical documentation:
Full time telework is not approved. Medical documentation only confirms diagnosis of PTSD and links diagnosis to prior military service. The documentation does not provide an explanation of the impact of your condition on the job, does not make an assessment on your ability to perform the essential functions and does not provide an explanation as to how the requested accommodation will assist you in performing the essential functions of your position.ECF No. 38-6 at 2. Nonetheless, Captain Benson explained that the Coast Guard would provide an alternative accommodation in the form of a "flexible schedule that allows for adhoc [sic] telework up to 2 days a week" to allow the plaintiff to continue with his therapy and treatment. Id. The plaintiff would also be permitted to take leave as needed. Id. At the time that Captain Benson denied the plaintiff's request, the Coast Guard required employees to report for duty in person, in the office on three fixed, pre-determined days per week and allowed employees to telework on two fixed, pre-determined days per week. ECF No. 38 ¶ 6 (citing ECF No. 38-1 ¶ 8).
The plaintiff requested reconsideration of the Coast Guard's decision the next day, September 14, 2021. ECF No. 38 ¶ 7; ECF No. 38-7 at 1. On September 16, 2021, the plaintiff submitted a disability evaluation report prepared by James Crawford, Psy. D., of Veterans Evaluation Services ("the Crawford opinion"). ECF No. 38 ¶ 8; ECF No. 38-8. The Crawford opinion concludes that the plaintiff's PTSD was more likely than not caused by an in-service injury, event, or illness and assigned the plaintiff a 70 percent disability evaluation for "post traumatic [sic] stress disorder, insomnia disorder." ECF No. 38-8 at 2-3. The Crawford opinion also describes various symptoms of the plaintiff's condition. Id.
Captain Benson denied the plaintiff's request for reconsideration on September 21, 2021. ECF No. 38 ¶ 9 (citing ECF No. 38-1 ¶ 11 and ECF No. 38-9). The plaintiff appealed to the Coast Guard Civil Rights Directorate. ECF No. 38 ¶ 10. The Civil Rights Directorate also denied his appeal, noting "a lack of sufficient evidence to support [the plaintiff's] request for a reasonable accommodation (full-time telework)." ECF No. 38-10 at 2. It explained that "[t]he documents [the plaintiff] submitted from [his] medical provider and Veterans Evaluation Services do not explain how [his] PTSD impacts [his] job functions nor do they provide details on how the requested accommodation, full-time telework, will benefit [his] PTSD." Id. The Civil Rights Directorate also found that the alternative accommodation the Coast Guard provided was sufficient. Id.
ii. Promotion
In or around May 2021, the Coast Guard decided to upgrade the plaintiff's MAP Analyst position from grade GS-11 to GS-12. ECF No. 38 ¶ 11 (citing ECF No. 38-1 ¶ 13). Given the increase in GS level and increased pay, the Coast Guard determined that the position had to be publicly advertised and posted the position on USA Jobs. Id. The plaintiff applied for the position and was tentatively selected in December 2021. ECF No. 38 ¶ 12 (citing ECF No. 38-1 ¶ 14); ECF No. 38-11 at 1-2. The plaintiff officially accepted the position on February 18, 2022, and the Coast Guard provided the plaintiff with a firm offer of employment on February 22, 2022. ECF No. 38 ¶¶ 12-13 (citing ECF No. 38-12). The offer provided that the plaintiff would be a MAP Analyst compensated at the GS-12, Step 3 grade with a salary of $85,369 and a start date of February 28, 2022. ECF No. 38-12.
Due to a payroll processing error, the plaintiff was paid as a GS-11, Step 7 for the February 27, 2022 through March 12, 2022 pay period (i.e., pay period number 5). ECF No. 38 ¶ 14 (citing ECF No. 38-1 ¶ 17). This error was adjusted for subsequent pay periods, and the plaintiff was made whole with a pay adjustment in pay period number 6. Id.
B. Procedural Background
The plaintiff filed the complaint in this case on July 12, 2022, alleging discrimination on the basis of his disability and his employer's failure to accommodate. ECF No. 1. The Secretary filed a motion to dismiss on September 23, 2022. ECF No. 8. The plaintiff filed an amended complaint on October 7, 2022. ECF No. 10. The Secretary filed a renewed motion to dismiss or, in the alternative, for summary judgment on October 21, 2022. ECF Nos. 13 (motion) and 14 (memorandum). The plaintiff filed a response in opposition on November 3, 2022 (ECF No. 15), and the Secretary filed a reply on November 9, 2022 (ECF No. 16).
This case was reassigned to this Court on March 17, 2023. The Court ordered supplemental briefing on the Secretary's motion to dismiss on May 4, 2023. ECF No. 25. The plaintiff filed a supplemental brief on May 18, 2023. ECF No. 26. The Court ordered a hearing on the motion on June 15, 2023, which was scheduled to occur on July 5, 2023. ECF No. 27. On July 1, 2023, the plaintiff's counsel filed a motion to withdraw. ECF No. 28. The Court heard argument regarding the motion to withdraw at the hearing on July 5, 2023, and granted the motion. ECF Nos. 31 (hearing) and 32 (order).
After the plaintiff's counsel withdrew, the Court stayed the case for 15 days to allow the plaintiff to retain new counsel. ECF No. 32. The plaintiff filed a notice on July 21, 2023, indicating his intent to proceed pro se. ECF No. 33. The Court lifted the stay and ordered the parties to file a joint status report on or before August 7, 2023, to propose a procedural schedule for the remainder of this case. ECF No. 34. The Secretary filed a status report on August 3, 2023, indicating that the plaintiff refused to cooperate with counsel for the Secretary regarding the submission of a joint status report and proposed procedural schedule. ECF No. 46. The Secretary's status report also requested that the Court cancel all remaining pretrial deadlines pending the Court's ruling on the Secretary's motion for summary judgment. Id. The Court granted that request on August 4, 2023. ECF No. 47.
The Secretary filed the instant motion for summary judgment on July 31, 2023. ECF Nos. 37 (motion) and 38 (memorandum). The plaintiff filed three responses: two on August 14, 2023, and one on August 18, 2023. ECF Nos. 48, 49, and 52. The Secretary filed a reply on August 16, 2023. ECF No. 50. The plaintiff has also filed various miscellaneous motions and notices since he indicated his intent to proceed pro se. See ECF Nos. 43 ("MOTION FOR DEFAULT JUDGEMENT MOTION FOR A MORE DEFINITE STATEMENT"), 44 (same), 45 (letter), 53 ("PETITION OF THE GOVERNMENT FOR A REDRESS OF GRIEVANCES"), 54 ("Motion for Transparency"), 55 ("Motion for Default Judgment"). The Court denied the plaintiff's motions for default judgment on August 22, 2023. ECF No. 57.
C. Sections 501 and 504 of the Rehabilitation Act
Section 501, which is codified at 29 U.S.C. § 791, is expressly directed to the federal government's employment of individuals with disabilities and provides a cause of action for federal employees who have been discriminated against. See generally 29 U.S.C. § 791 (titled "Employment of individuals with disabilities"). Section 504, which is codified at 29 U.S.C. § 794, is directed toward discrimination that might be experienced "under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." See generally 29 U.S.C. § 794 (titled "Nondiscrimination under Federal grants and programs").
Both sections incorporate by reference "[t]he standards applied under [T]itle I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)" to determine whether the Rehabilitation Act has been violated. See 29 U.S.C. § 791(f) and § 794(d). In addition, § 501 incorporates the "remedies, procedures and rights" of Title VII of the Civil Rights Act of 1964, 29 U.S.C. § 794a(a)(1), while § 504 incorporates the "remedies, procedures, and rights" of Title VI of the Act, 29 U.S.C. § 794a(a)(2).
II. LEGAL STANDARDS
A. Motions for Summary Judgment
"The party seeking summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact." Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021). "A fact is 'material' if proof of its existence or non-existence would affect disposition of the case under applicable law." Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "[C]onclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion." Id. "[A]ll justifiable inferences are to be drawn in [the nonmovant's] favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.
B. Failure-to-Accommodate Claims under the Rehabilitation Act
"To establish a claim under the Rehabilitation Act for a failure to accommodate, a plaintiff must show that (1) [they have] a disability; (2) [their] employer knew of the disability; (3) with reasonable accommodations [they are] otherwise qualified to perform the essential functions of the employment position in question; and (4) [their] employer refused to make such reasonable accommodations." Lewis v. Gibson, 621 F. App'x 163, 164 (4th Cir. 2015) (citing Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (listing elements of a failure to accommodate claim brought under the Americans with Disabilities Act)).
C. Retaliation Claims under the Rehabilitation Act
"In order to prevail on a claim of retaliation, a plaintiff must either offer sufficient direct and indirect evidence of retaliation, or proceed under a burden-shifting method." Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001). Under the McDonnell Douglas burden-shifting framework, a plaintiff must show "(1) [they] engaged in a protected activity; (2) [their] employer acted adversely against [them]; and (3) [their] protected activity was causally connected to [their] employer's adverse action." Smith v. CSRA, 12 F.4th 396, 416 (4th Cir. 2021); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish that an employer took adverse action against an employee, the employee must demonstrate that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quotation marks omitted).
After the plaintiff makes an initial showing of retaliation, the burden shifts to the employer "to rebut the presumption of retaliation by articulating a legitimate non-retaliatory reason for its actions." Smith, 12 F.4th at 416 (quotation marks omitted). The burden then shifts back to the plaintiff to prove that the employer's proffered reason was pretextual. Id.
III. ANALYSIS
Before proceeding to the merits of the Secretary's motion, the Court will address the plaintiff's pro se status and whether it has any bearing on the Court's resolution of the instant motion. The Court notes that the Secretary's motion was accompanied by a notice as required by the Fourth Circuit's decision in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). ECF No. 39. The plaintiff filed three documents in apparent response to this motion. See ECF Nos. 48, 49, and 52. These documents, like many of the plaintiff's pro se filings, are difficult to parse.
Nonetheless, consistent with the Fourth Circuit's guidance that filings by pro se litigants should be held to "less stringent standards," Sinclair v. Mobile 360, Inc., 417 F. App'x 235, 243 (4th Cir. 2011) (quotation marks omitted), the Court has carefully reviewed each of the plaintiff's filings to ascertain whether they raise any issues of material fact that could preclude summary judgment. While the plaintiff asserts that "genuine issues of material fact exist that warrant a trial," ECF No. 52 at 1, the Court concludes that there are none. To the extent that the plaintiff's filings contain any facts at all, they are unrelated to the issues before the Court on this motion.
For example, in his second opposition to the defendant's motion, the plaintiff, for the first time, appears to allege "systemic racism" and various other claims of racial discrimination. See generally ECF No. 49. As the Court has outlined previously, the plaintiff's amended complaint in this case alleges, inter alia, discrimination on the basis of his disability—not on the basis of race. Even if the amended complaint had lodged such claims, the Court can find no basis in the record for the plaintiff's generalized allegations.
The other arguments the plaintiff raised in his filings are unavailing. The plaintiff references "27,000 pages of unnotarized out of court statements" and characterizes them as "hearsay," "inadmissible," "extremely prejudic[ial]," and lacking sufficient "authentication." ECF No. 52 at 2-3 (emphasis removed, capitalization altered). The plaintiff requests that the Court strike those documents. Id. at 3. Presumably, the plaintiff is referring to the 27,524 pages of Bates-stamped documents that the Secretary produced during discovery. See ECF No. 46 ¶ 3. Even if the plaintiff's concerns about the admissibility of these documents were valid, the Secretary is not relying on all of those documents in the present motion for summary judgment. Rather, the Secretary has included a limited number of exhibits, see ECF Nos. 38-2 through 38-13, that are authenticated by a sworn affidavit, see ECF No. 38-1. Thus, there is no genuine authentication issue with respect to the evidence before the Court. Moreover, it appears to the Court that the exhibits would be admissible at trial as either non-hearsay or under a hearsay exception or exclusion. See ECF No. 38-1 ¶18. Accordingly, it is appropriate to consider them on the instant motion for summary judgment.
The plaintiff's filings also make reference to acquiring a "more definite statement" from the Secretary, see ECF No. 52 at 1 (emphasis removed), and his former counsel, see id. at 3 (emphasis removed). It is not clear what the plaintiff means by "a more definite statement." The plaintiff also requests that "the 8/3 transcripts" be "put into evidence." ECF No. 52 at 3. Again, it is not clear what "transcripts" the plaintiff refers to.
The plaintiff asserts that "The Burdon [sic] of Proof is on The Secretary to provide A MORE DEFINITE STATEMENT for and on THE RECORD." ECF No. 52 at 1 (emphasis removed). Of course, with respect to the plaintiff's claims in this case, it is the plaintiff who bears the burden of proof.
To the extent that the plaintiff is requesting additional discovery, the Court has already found that the plaintiff had ample opportunity to seek discovery when he was represented by counsel. See ECF No. 47 at 2-3. The plaintiff's former counsel withdrew well after the deadline for propounding new discovery requests, and the discovery requests that his former counsel did propound were answered with a production of over 27,000 pages of documents. Id. The plaintiff has not articulated what additional discovery he might need to oppose the Secretary's motion for summary judgment.
Accordingly, as discussed further below, the Court finds that the plaintiff's filings in response to the Secretary's motion for summary judgment do not raise any issues of material fact, and none of the plaintiff's other arguments preclude summary judgment.
A. The Plaintiff's § 504 Claims
Before addressing the merits of the Secretary's arguments, the Court will first address an issue of mootness. The complaint pleads two counts of disability discrimination: failure to accommodate in violation of §§ 501 and 504 of the Rehabilitation Act of 1973, and retaliation in violation of §§ 501 and 504 of the Rehabilitation Act of 1973. ECF No. 10 at 8-10.
As the Court described in its May 4, 2023 Order (ECF No. 25), the plaintiff only seeks monetary damages and attorneys' fees. The Supreme Court held in Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), that monetary damages are not available under § 504 when suing the federal government. Id. at 197, 116 S.Ct. 2092. Thus, the only cognizable relief the plaintiff seeks on his § 504 claims is attorneys' fees, which Lane indicates are available. See id. at 194, 116 S.Ct. 2092. But, as the Supreme Court has explained, an "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); see also, e.g., Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) ("[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III."); Garcia v. Hinkle, No. 7:13-cv-585, 2014 WL 3778536, at *3 (W.D. Va. July 30, 2014); Moore v. Brown, No. 2:05-cv-2179, 2014 WL 3673004, at *3 (D.N.J. July 23, 2014).
There is no dispute that the plaintiff can seek damages under § 501.
In light of the above, the Court requested supplemental briefing from the parties on the question of whether the plaintiff's § 504 claims are moot. See ECF No. 25. On May 18, 2023, the plaintiff (through counsel) filed a supplemental brief, which "concedes that [the plaintiff's] claims under Section 504 are in fact, moot." ECF No. 26.
Based on the foregoing, the Court finds that the plaintiff's § 504 claims are moot. The Court will proceed to analyze the plaintiff's claims under § 501.
B. Count I: Failure-to-Accommodate
The amended complaint alleges, with respect to the plaintiff's failure to accommodate claim, that the plaintiff was diagnosed with PTSD, that he requested an accommodation in the form of permanent, full-time telework, and that his request was denied. ECF No. 10 ¶¶ 59-67. The Secretary argues that the Court should grant summary judgment on this claim for two reasons: (1) "Plaintiff failed to submit adequate medical documentation to the Coast Guard in support of his request," and (2) "Plaintiff cannot identify any facts demonstrating that his requested accommodation of permanent, full-time telework was necessary or reasonable." ECF No. 38 at 1-2. For the reasons stated below, the Court agrees with the Secretary on both grounds.
i. The plaintiff did not submit adequate medical documentation in support of his request for accommodation.
The Secretary first argues that the Court should grant summary judgment on Count I because the plaintiff failed "to submit adequate medical documentation supporting his accommodation request." ECF No. 38 at 10. In response to the plaintiff's request for accommodation of full time, permanent telework, see ECF No. 38-3, the Coast Guard requested that the plaintiff submit a medical opinion including, inter alia, "an assessment of [his] ability to successfully perform the essential functions of [his] position of record with or without accommodation" and "an explanation as to how the accommodation will assist [the plaintiff] in performing the essential functions of [his] position," ECF No. 38-4 at 2. The Coast Guard's request included a description of essential functions of the plaintiff's job. Id. at 5-7.
"[W]here an employee's need for an accommodation is not obvious, an employer may require that the employee provide documentation of their need for an accommodation." Schack v. Parallon Enterprises, LLC, No. 7:19-cv-767, 2021 WL 424428, at *7 (W.D. Va. Feb. 8, 2021), aff'd, No. 21-1201, 2023 WL 4146238 (4th Cir. June 23, 2023) ("Because Schack did not provide the required medical documentation, the district court did not err by granting Parallon summary judgment on this claim.").
The Court finds that there is no dispute of material fact that the plaintiff failed to provide adequate medical documentation in support of his request for accommodation. In response to the Coast Guard's request, the plaintiff provided two medical opinions: one from his counselor, Megan E. Graham, LPC, ECF No. 38-5 ("the Graham opinion"), and, later, one from Dr. James Crawford, ECF No. 38-8 ("the Crawford opinion"). The Graham opinion is a single paragraph on a single page that merely establishes the plaintiff's diagnosis of PTSD and a "more likely than not" connection to his military service.
The Crawford opinion is more detailed than the Graham opinion, but still fails to provide adequate support for the plaintiff's request. For example, the Crawford opinion notes that the plaintiff was assigned a disability rating of 70 percent based on an assessment of 24 different symptoms, among them "[d]ifficulty in establishing and maintaining effective work and social relationships," "[o]ccupational and social impairment with reduced reliability and productivity," and "[d]ifficulty in adapting to work." ECF No. 38-8 at 3.
To be sure, the Crawford opinion establishes that the plaintiff's PTSD symptoms could affect him in a work setting. Nevertheless, the generalized symptoms described in the opinion are entirely detached from any discussion of the plaintiff's particular role as a MAP analyst or the essential functions of the position. Employers are only required to provide accommodations that enable disabled individuals to perform the essential functions of their position. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) ("Rather, reasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question."). Because the Crawford opinion fails to tie any of the plaintiff's symptoms to the essential functions of his position, it fails to establish "the need for accommodation." 29 C.F.R. pt. 1630 app. § 1630.9; see also Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014). As a result, there is no dispute of material fact that the plaintiff failed to provide adequate medical documentation in support of his request for accommodation.
The Fourth Circuit has also said that a reasonable accommodation "should provide a meaningful equal employment opportunity," which means "an opportunity to attain the same level of performance as is available to nondisabled employees having similar skills and abilities." Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 416 (4th Cir. 2015) (quoting H.R. Rep. No. 101-485, pt.2, at 66 (1990)). Thus, an employer is not obligated merely to accommodate a disabled employee such that they can perform the essential functions of their position; the employer must also ensure that the disabled employee can perform those essential functions at the same level of performance as nondisabled employees. This clarification does not affect the Court's analysis here because the Crawford opinion does not establish that the plaintiff's performance of the essential functions of his position was hindered by his PTSD.
For the foregoing reasons, the Court grants summary judgment on Count I in favor of the Secretary.
ii. The plaintiff has not shown that his requested accommodation was "necessary."
Alternatively, the Secretary argues that the Court should grant summary judgment on Count I because the plaintiff "cannot establish that his requested accommodation of permanent, full-time telework was necessary to perform the essential functions of his job as a MAP Analyst." ECF No. 38 at 11.
Several district courts in the Fourth Circuit have applied the "necessary" requirement in accommodation cases. See, e.g., Shivers v. Saul, No. 1:19-cv-2434, 2020 WL 7055503, at *5 (D. Md. Dec. 2, 2020); Kande v. Dimensions Health Corp., No. 8:18cv2306, 2020 WL 7054771, at *8 (D. Md. Dec. 2, 2020); Terry v. Perdue, No. 1:18cv31, 2018 WL 4494883, at *7 (D. Md. Sept. 19, 2018), aff'd, No. 20-2016, 2021 WL 3418124 (4th Cir. Aug. 5, 2021); Fierce v. Burwell, 101 F. Supp. 3d 543, 550 (D. Md. 2015); E.E.O.C. v. Newport News Shipbuilding & Drydock Co., 949 F. Supp. 403, 407 (E.D. Va. 1996); Harmer v. Virginia Elec. & Power Co., 831 F. Supp. 1300, 1306 (E.D. Va. 1993).
The Fourth Circuit has essentially, though not explicitly, embraced the "necessary" requirement. In Smith, a published decision, the Fourth Circuit upheld the district court's grant of summary judgment in favor of the defendant, finding that "DEA was not required to offer Smith a remote work accommodation and its failure to do so was not a refusal to accommodate." Smith, 12 F.4th at 415. The court reasoned that because the medical documentation the plaintiff submitted "did not specifically state that such an accommodation was required" and that "she received the reasonable accommodation she requested (and that her physician specifically stated was needed) to perform the essential functions of her job," the DEA was not required to further accommodate her. Id. (emphasis added).
In Terry, the District of Maryland applied the "necessary" standard in a case involving § 501 claims where the requested accommodation was permanent work-from-home status. Terry, 2018 WL 4494883, at *7. The court found that the plaintiff failed to "allege that the requested accommodations were needed to perform the essential functions of his position." Id. The court cited evidence that he was able to perform "the essential functions of his position" from the time he began his employment when he only had partial work-from-home status. Id. The court then dismissed the plaintiff's § 501 claim. The Fourth Circuit affirmed in an unpublished opinion, finding that "as for telework, Terry's complaint did not allege that he could not perform the essential functions of the job without teleworking full-time." Terry v. Perdue, No. 20-2016, 2021 WL 3418124, at *2 (4th Cir. Aug. 5, 2021).
Consistent with the Fourth Circuit's guidance and the decisions of other district courts in this circuit, this Court holds that a plaintiff bringing a failure-to-accommodate claim under § 501 of the Rehabilitation Act must demonstrate that their requested accommodation was necessary or required to enable the plaintiff to perform the essential functions of their job. Applying that standard here, there is no dispute of material fact that the plaintiff's requested accommodation was not necessary or required to enable him to perform the essential functions of his position.
The Court observes that there is some overlap between the "necessary" inquiry and the question of whether the plaintiff's request was supported by medical documentation, supra Part III.B.i. In the Court's view, the primary difference between these inquiries is the following: whether the plaintiff's request was adequately supported by medical documentation looks to whether the medical documentation explains that some accommodation is required, while the "necessary" inquiry asks whether a particular accommodation is required.
As noted above, the plaintiff submitted two medical opinions—the Graham opinion and the Crawford opinion—to the Coast Guard in support of his request for accommodation. ECF Nos. 38-5 (Graham), 38-8 (Crawford). But these medical opinions do not establish that the plaintiff's requested accommodation—full time, permanent telework—was necessary for him to perform his job. Indeed, neither medical opinion asserts that the plaintiff required an accommodation of any kind. As in Smith, the medical documentation does "not specifically state that such an accommodation was required." Smith, 12 F.4th at 415.
It is evident to the Court that both Crawford's and Graham's opinions are silent on the issue of specific accommodation because neither appears to have been prepared for the express purpose for which the Plaintiff submitted the opinions to the Coast Guard—explaining why his accommodation was necessary. Instead, each focus on what no party disputes: that the plaintiff has PTSD, that he experiences symptoms as a result of his PTSD, and that his PTSD was likely caused by his military service.
To be sure, the Court can infer that the plaintiff probably would have benefited from working from home. But that is not the standard for subjecting employers to liability for failing to provide an accommodation. See Fierce, 101 F. Supp. 3d at 550 ("[T]he Court can assume that teleworking may have helped alleviate some of Plaintiff's depression, if only because it would remove her from a stressful environment. However, Plaintiff provides no evidence that her disability required her to work from home.") (footnotes omitted) (emphasis in original). "The Rehabilitation Act does not require an employer to provide the exact accommodation that an employee requests." Hannah P. v. Coats, 916 F.3d 327, 338 (4th Cir. 2019).
Rather than providing the accommodation that the employee requests, an employer may provide an alternative accommodation. Reyazuddin, 789 F.3d at 415. The Coast Guard did offer an alternative accommodation that would have allowed the plaintiff to telework "ad hoc . . . up to two days per week." ECF No. 38-1 ¶ 8. Because the record before the Court does not establish that any accommodation was needed, the Court cannot resolve the question of whether this constituted a reasonable alternative accommodation under the circumstances.
For the foregoing reasons, the plaintiff has failed to show that his requested accommodation was "necessary." As a result, this is an additional reason to grant summary judgment in favor of the Secretary on Count I. See, e.g., Young v. Austin, 2021 WL 4820535, at *7 (D. Md. Oct. 14, 2021) (dismissing failure to accommodate claim under the ADA because the plaintiff failed to "connect the dots" between her request for accommodation and her medical conditions and failed to plead that "the specific accommodations were necessary rather than merely helpful.") (emphasis in original); Shivers, 2020 WL 7055503, *5 (dismissing a failure to accommodate claim under § 501 because "Plaintiff fails to explain why any of the Reasonable Accommodations that he requested were necessary for him to perform the essential functions of his job at the SSA."); Fierce, 101 F. Supp. 3d at 549-50 (granting summary judgment on a failure to accommodate claim under § 501 because the plaintiff "fail[ed] to explain how her request was an accommodation that she needed to perform the essential functions of her job."); Davis v. Lockheed Martin Operations Support, Inc., 84 F. Supp. 2d 707, 713 (D. Md. 2000) (granting summary judgment on a failure-to-accommodate claim under the ADA because "it was reasonable for Lockheed to give Davis the accommodations her doctor recommended," not the plaintiff's "unsupported requests to work from home at irregular hours, attending meetings at the office only once each week.").
C. Count II: Retaliation
With respect to his retaliation claim, the plaintiff alleges that he was offered a promotion, that he requested an accommodation, and that as a result of requesting that accommodation, his promotion was delayed. As a result, the plaintiff claims he was ultimately paid at a lower rate than he was promised. ECF No. 10 ¶¶ 69-71.
To succeed on his retaliation claim, the plaintiff must show that (1) he engaged in a protected activity; (2) his employer acted adversely against him; and (3) his protected activity was causally connected to his employer's adverse action. Smith, 12 F.4th at 416. If the plaintiff succeeds on that showing, the burden shifts to the defendant to provide a nonretaliatory reason for its action, and if the defendant succeeds on that showing, the burden shifts back to the plaintiff to show that the reason was pretextual. Id.
The plaintiff has not pointed to any direct evidence of retaliation; he only makes arguments that seem to apply under the McDonnell Douglas burden-shifting framework. See Smith, 12 F.4th at 416. Accordingly, the Court will analyze his claims under that framework.
The Secretary argues that summary judgment is appropriate for three reasons: (1) the plaintiff's request for accommodation was not a protected activity, (2) the Coast Guard took no materially adverse action against the plaintiff, and (3) the plaintiff cannot show that "the Coast Guard's proffered non-retaliatory reasons for its actions were pretext for retaliation." ECF No. 38 at 2.
As explained further below, the Court disagrees with the Secretary's first reason but ultimately agrees with the Secretary's second and third reasons.
i. Protected Activity
A request for reasonable accommodation is a protected activity. Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001). Some courts have found that a request for accommodation that is not reasonable is not a protected activity. See, e.g., Scruggs v. Pulaski Cnty., Ark., 817 F.3d 1087, 1094 (8th Cir. 2016). Other courts have found that a plaintiff only needs to have a "reasonable, good faith belief that he was entitled to request the reasonable accommodation he requested" in order to find that the request for accommodation was a protected activity. Dzuryachko v. Teva Pharms. USA, Inc., No. 2:20cv5217, 2022 WL 837180, at *6 (E.D. Pa. Mar. 21, 2022) (quotation marks and footnote omitted, alterations accepted); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) ("Congress clearly did not intend to extend the reach of the ADA's umbrella to employees whose motivation for requesting an accommodation is something other than a good faith belief that an accommodation under the Act is necessary or appropriate.").
The Fourth Circuit has not addressed this question directly in the context of a failure-to-accommodate claim, but it has applied the "reasonable, good faith belief" test in the context of other discrimination claims. See, e.g., Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002) (requiring the plaintiff to have "reasonable, good faith belief that the behavior she is opposing violates the ADA," where the plaintiff alleged retaliatory discharge for speaking out against her employer's actions).
The Court finds that the proper inquiry is whether a plaintiff has a "reasonable, good faith belief that he was entitled to request the reasonable accommodation he requested" at the time of the request. Dzuryachko, 2022 WL 837180, at *6. To hold otherwise could have a chilling effect on federal employees' accommodation requests—an employee who needs an accommodation may not request it for fear that they will be retaliated against without recourse if their request is later found to be unreasonable.
Here, there is a dispute of material fact regarding whether the plaintiff had a "reasonable, good faith belief" that his request was reasonable. As an initial matter, the cases the Secretary cites are distinguishable. This is not a case where the plaintiff requested "indefinite leave," as in Monroe v. Fla. Dep't of Corr., 793 F. App'x 924 (11th Cir. 2019), or requested a promotion as an accommodation, as in Brownwood v. Wells Trucking, LLC, No. 16-cv-1264, 2017 WL 3621830, at *5 (D. Colo. Aug. 22, 2017), or where the plaintiff did not have a disability, as in Mercer v. Drohan Management Group, Inc., No. 1:10-cv-1212, 2011 WL 5975234, at *7 (E.D. Va. Nov. 28, 2011).
In this case, the plaintiff requested full time, permanent telework status. It is entirely possible that he had a "reasonable, good faith belief" that his request was reasonable because: (1) at the time he made his accommodation request, he had been "teleworking for the last year" due to the pandemic, ECF No. 38-3 at 1, and (2) many jobs—especially in the wake of the pandemic—have moved to full time, permanent telework. Moreover, in the complaint, the plaintiff alleged facts relating to his personal experience with his symptoms at work and at home that could support the basis of a "reasonable, good faith belief" that his request was reasonable. ECF No. 10 ¶¶ 19-29.
In the current posture, and in light of the plaintiff's pro se status, the Court finds that there is a dispute of material fact as to whether the plaintiff engaged in a protected activity. Nonetheless, summary judgment in favor of the Secretary is appropriate on Count II on alternative grounds discussed herein.
ii. Materially Adverse Action
The Secretary also argues that the plaintiff "cannot establish that the Coast Guard acted adversely against him." ECF No. 38 at 17. The complaint alleges that the Coast Guard retaliated against the plaintiff by "delaying a promised position upgrade from GS-11 to GS-12 from May 11, 2021, until November 2021," and that the Coast Guard "further retaliated" by "paying him at the lower, GS-12, Step-1 rate rather than the GS-12, Step 3 rate he was promised prior to making a request for reasonable accommodation." ECF No. 10 ¶¶ 69-70.
To establish that an employer took adverse action against an employee, the employee must demonstrate that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405 (quotation marks omitted).
On the plaintiff's claim of delayed promotion, summary judgment in favor of the Secretary is appropriate. At the summary judgment stage, "the non-movant cannot merely rely on matters pleaded in the complaint." Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). The plaintiff has not brought forward any evidence to support the allegations in the complaint. According to the evidence the Secretary supplied, the Coast Guard decided to upgrade the plaintiff's position in May 2021; advertised the position to the public in September and October 2021; tentatively selected the plaintiff for the position in December 2021; and formally offered the position to the plaintiff in February 2022. ECF No. 38-1 ¶¶ 13-15. Based on these facts, the Coast Guard took no adverse action against the plaintiff.
Because neither of the complaints the plaintiff filed in this case were verified, it is not "the equivalent of an opposing affidavit for summary judgment purposes." Williams, 952 F.2d at 823.
If the plaintiff had presented evidence that he should have been promoted within a particular timeframe, and he had shown further that the Coast Guard had delayed his promotion beyond that timeframe such that the plaintiff suffered lost wages, then the plaintiff might have a viable claim. See Herbert v. Architect of Capitol, 766 F. Supp. 2d 59, 79 (D.D.C. 2011) ("Herbert has presented no evidence that would allow a reasonable fact finder to conclude that anyone actually intended to promote Herbert prior to the time of his actual promotion, which complied with the date set out in the parties' settlement agreement."). Here, an unsupported contention that the plaintiff expected to be promoted sooner is insufficient.
Regarding the plaintiff's contention that he was paid at a lower GS grade than he was promised, summary judgment in favor of the defendant is also appropriate. The records the Secretary provided indicate that the plaintiff's promotion became effective on February 13, 2022, see ECF No. 38-11, and that he was paid at the GS-12, Step 3 level thereafter, see ECF No. 38-13. Because the plaintiff has not shown that he was entitled to be promoted earlier than February 2022, as discussed above, the plaintiff has not shown that he should have been paid at this higher rate at some earlier time. Therefore, there is no dispute of material fact that the plaintiff received the pay to which he was entitled, and the Coast Guard took no adverse action against him.
As the Secretary notes, the plaintiff was inadvertently paid at the GS 11, Step 7 level during the first pay period following his promotion, see ECF No. 38-13 at 3, but this mistake was corrected in subsequent periods. In particular, the plaintiff's statements of earnings indicate that he was paid as a GS 11, Step 7 employee in pay period 5, resulting in a gross pay amount of $3,071.20. ECF No. 38-13 at 3. This gross amount should have been $3,272.80, as demonstrated by the gross pay amount in pay period 7. Id. at 1. As a result, the plaintiff's gross pay in period 6 included an additional $201.60—the amount "missing" from pay period 5—for a gross payment amount of $3,474.40. Id. at 2.
Accordingly, because the plaintiff has failed to demonstrate that the Coast Guard took a materially adverse action against him, summary judgment in favor of the Secretary on Count II is appropriate.
iii. Pretext for Retaliation
Even assuming that the plaintiff had made out a prima facie case of retaliation on either his delayed promotion or reduced pay theories, his claim would fail because he has not proffered any evidence that the Coast Guard's non-retaliatory reasons for its actions were pretextual. Smith, 12 F.4th at 416 (4th Cir. 2021). The Declaration of Captain Scott D. Benson states that the Coast Guard decided to upgrade the plaintiff's position from the GS-11 level to the GS-12 level in May 2021. ECF No. 38-1 ¶ 13. Because the upgrade involved "a new GS level and [a] significant pay raise," the Coast Guard "determined that the position had to be competed and announced openly to the public via USA Jobs pursuant to Merit System Principles, so that all qualified candidates would be given the opportunity to apply and compete." Id. Thus, even if the plaintiff understood that he would be promoted in May 2021 or shortly thereafter, the Coast Guard has provided an adequate, non-retaliatory reason for the delay, and the plaintiff has not offered any facts to show that the reason was pretextual.
Ultimately, the Coast Guard tentatively selected the plaintiff for the position in December 2021, see id. ¶ 14; ECF No. 38-11, and officially offered him the position in February 2022, see ECF No. 38-1 ¶ 15-16; ECF No. 38-12, which he accepted that same month, see ECF No. 38-1 ¶ 15-16; ECF No. 38-12. Even if the plaintiff were to argue that this delay was retaliatory—which he has not done—the delay is adequately explained by the Coast Guard needing to confirm "that all conditions of employment had been satisfied." ECF No. 38-1 ¶15.
Thus, from the time that the Coast Guard decided to upgrade the plaintiff's position (May 2021) until the plaintiff was eventually promoted (February 2022), the Coast Guard has adequately proffered a non-retaliatory reason for each delay along the way, and the plaintiff has failed to offer any facts that even suggest that the proffered reasons were pretextual. This is an additional ground for granting summary judgment in favor of the Secretary on Count II.
IV. CONCLUSION
For the foregoing reasons, there is no genuine dispute of material fact that the Secretary is entitled to summary judgment on the plaintiff's claims. The motion (ECF No. 37) is therefore GRANTED as to Counts I and II of the amended complaint.
Judgment is hereby entered in favor of the Secretary, and this case is DISMISSED WITH PREJUDICE.
Plaintiff may appeal this Memorandum Opinion and Order by forwarding a written notice of appeal to the Clerk of the United States District Court, Norfolk Division, 600 Granby Street, Norfolk, Virginia 23510. The written notice must be received by the Clerk within sixty days of the date of entry of this Memorandum Opinion and Order. If Plaintiff wishes to proceed in forma pauperis on appeal, the application to proceed in forma pauperis shall be submitted to the Clerk of the United States District Court, Norfolk Division, 600 Granby Street, Norfolk, Virginia 23510.
It is FURTHER ORDERED that the Secretary's Motion to Dismiss (ECF No. 13), Motion to Compel Discovery Responses (ECF No. 35), and Motion to Compel Plaintiff's Deposition Attendance (ECF No. 40) are DENIED AS MOOT.
It is FURTHER ORDERED that the plaintiff's "Motion for Transparency" (ECF No. 54) is DENIED AS MOOT.
IT IS SO ORDERED.