Webb v. Wynne

Filing 37

MEMORANDUM OPINION AND ORDER that: (1) defendant's 26 MOTION for Summary Judgment is granted; (2) all claims and this case are dismissed with prejudice; (3) the pretrial and the trial scheduled in this matter are cancelled. This court will enter a separate final judgment taxing costs. Signed by Honorable Ira De Ment on 11/3/08. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B E L IN D A G. WEBB, P l a in tif f , v. M IC H A E L W. WYNNE, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-471-ID

M E M O R A N D U M OPINION AND ORDER B e lin d a Webb brings this action against Michael W. Wynne, Secretary of the Air F o r c e , alleging that the Air Force discriminated against her in certain employment actions o n the basis of her disability. Webb claims that the Air Force refused to reasonably a c co m m o d a te her disability and ultimately terminated her, all in violation of the Americans w ith Disabilities Act of 1990, 42 U.S.C. §§ 12111-12117 ("ADA"). This cause is before the C o u rt on Wynne's Motion for Summary Judgment (Doc # 26), filed September 25, 2008. T h e Court has carefully considered all submissions in support of and in opposition to the m o tio n s and the relevant case law. For the reasons set forth below, the Court finds that W yn n e 's Motion for Summary Judgment is due to be GRANTED. I . JURISDICTION AND VENUE T h e Court exercises subject matter jurisdiction over Plaintiff's claims pursuant to 28 U .S .C . §§ 1331 (federal question) and 1343(4) (civil rights). The parties contest neither p e rs o n a l jurisdiction nor venue, and the Court finds an adequate factual basis for each.

I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact an d that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). " A n issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to f in d for the nonmoving party. An issue is `material' if it might affect the outcome of the c a se under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1 4 8 9 , 1496 (11th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 )). "A genuine issue of material fact does not exist unless there is sufficient evidence f a v o rin g the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v . AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of M ia m i, 52 F.3d 918, 921 (11th Cir. 1995) (internal quotation marks and citations omitted)). T h e party seeking summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the n o n m o v in g party has failed to present evidence in support of some element of its case on

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w h ic h it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e nonmovant and must draw all justifiable inferences from the evidence in the nonmoving p a rty's favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); M c C o r m ic k v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (the evidence a n d all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmovant). After the nonmoving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there is no genuine issue of material f a c t and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 5 6 (c). I I I . FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following relevant facts:

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W e b b was employed with the Department of the Air Force for ten years prior to her te rm in a tio n on March 26, 2007. At the time that the alleged violations occurred, Webb was th e Chief Project Manager for GCCS-AF (Global Command and Control System) and CITS (C o m b a t Information Transport System) at Maxwell Air Force Base. G C C S and CITS are United States Air Force system-wide computer operating s ys te m s , whose end users are units, organizations, and elements of the U.S. Air Force s ta tio n e d around the world. The help desks of the GCCS and CITS systems are staffed by n o n -g o v e rn m e n t contract employees. The help desks provide technical assistance and in f o rm a tio n to end users 24 hours a day, 7 days a week. These help desks were staffed by 2 0 full-time contract employees. As Project Manager, Webb managed and supervised the c o n tra c t employees staffing the help desks, and she was ultimately responsible for the o p e ra tio n s of the help desks, including work conditions, equipment, and work product. In 1998, Webb was injured in an off duty accident. Webb filed a disability claim for S o c ia l Security benefits and was determined to be disabled under the Social Security Act f r o m March 28, 1998 until January 15, 2001 based upon the following conditions: f ib ro m ya lg ia , myofascial pain syndrome, carpal tunnel syndrome, and degenerative joint d is e a se . In 2001, Webb suffered a fall, which exacerbated her previous injuries. Webb filed a claim with the Office of Worker's Compensation ("OWCP"), which was approved. Webb w a s placed on full compensation by OWCP, and she was relieved of her duty to work from

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A u g u s t 2001 through August 2003. From August 2003 through November 2004, Webb w o rk e d in her Chief Project Manager position for four hours per day and received c o m p e n s a tio n from OWCP for the other four hours. O n January 20, 2004, Dr. Teresa Allen released Webb to return to full-time duty, as lon g as she was permitted to split the day between 4 hours of work at the office and 4 hours o f work at home. On July 13, 2004, Webb's chiropractor examined her, and he concluded th a t Webb could work only on a part-time basis and that this restriction was permanent. O n Sepember 29, 2004, OWCP required Webb to be examined by Dr. R.L. Pinchback. D r. Pinchback concluded that Webb was capable of returning to full-time work with fourh o u r limits on standing, sitting, walking, and pulling, and a ten-minute break each hour. W e b b returned to work full-time on November 16, 2004. Webb worked full-time from N o v e m b e r 16, 2004 to May 11, 2005 without incident. A f te r she returned to work full-time, Webb and others applied for a Computer S c ien tist position within the Air Force that became available. On January 20, 2005, the Air F o r c e issued a Candidate Referral Certificate for the position that listed only one person, A u d ra Pfannkuche, as qualified. Stephen Wright III, Director of Engineering, the selecting o f f ic ia l, chose Pfannkuche for the position. O n February 16, 2005, Webb filed a complaint with the EEOC alleging that the Air F o r c e had failed to properly update her experience to make her competitive for the Computer S cien tist position. This complaint was settled on April 21, 2005 through mediation. As part

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o f the settlement, Webb's records were updated, and Webb agreed to waive any claims re latin g to that complaint. B e g in n in g around May 12, 2005, Webb's medical condition caused her to begin to m iss work. On May 24, 2005, Webb's primary physician notified OWCP that Webb's m e d ic a l condition rendered her incapable of maintaining full time employment, and he r e c o m m e n d e d that Webb work on a part-time basis for four hours per day. Webb also re q u e s te d leave without pay ("LWOP") for absences on May 18-27, which Maj. Brown a p p ro v e d . O n June 6, 2005, Webb requested LWOP for the period June 2, 2005 through July 17, 2 0 0 5 because Webb's physician insisted that Webb refrain from working for a period of six w e e k s. This request was denied due to lack of medical documentation of the need for leave. N e v e r th e l e s s , Webb left work on June 6, 2005 due to her medical condition. Webb was p la c ed on AWOL status due to the lack of documentation. O n July 22, 2005, Webb submitted a request for LWOP for period of July 25, 2005 th ro u g h October 28, 2005. Webb received notice from OWCP that her condition was a c c e p te d as a disability by OWCP. O n October 30, 2005, Webb requested LWOP from October 31, 2005 until released b y her doctor to return to work. On November 3, 2005, Maj. Brown denied this request as o p e n -e n d e d and without documentation. On November 25, 2005, Webb notified Maj. Brown th a t she would not be returning to work as of October 31, 2005 due to her doctor's orders and

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b a s e d on the recurrence of her injury approved by OWCP. O n March 26, 2007, Webb was terminated from her position for her continued u n a v a ila b ility for work, absenteeism, and inability to work a regular schedule. On March 27, 2 0 0 7 , Webb appealed her termination to the Merit Systems Protection Board. On May 24, 2 0 0 7 , Webb had her appeal dismissed so that she could pursue her claim with the EEOC. On M a y 25, 2007, Webb filed her complaint with this Court. I V . DISCUSSION A. E x h a u s tio n of Remedies

W yn n e alleges that Webb failed to exhaust her administrative remedies for her claims re la te d to her discharge. Wynne claims that Webb failed to make an informal pre-complaint reg ard ing her discharge with an EEO counselor within 45 days of the alleged discriminatory ev en t as required by 29 C.F.R. § 1614.105(a)(1). W e b b filed two formal EEOC complaints with the EEOC regarding alleged d is c rim in a tio n while she was still employed with the Air Force. The first was filed on A u g u s t 29, 2005, and the second was filed on July 21, 2006. After Webb was terminated, s h e initially appealed her termination to the Merit Systems Protection Board. However, she m o v e d for dismissal of that appeal on May 21, 2007, so that she could pursue her claim of d is c rim in a tio n with the EEOC. On May 24, 2007, her motion to dismiss was granted by the B o a rd . O n June 19, 2007, Webb sent a letter to the EEOC requesting to amend her pending

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E E O C claim to include her termination. The EEOC responded that the time to amend her c la im had passed, and they informed her that she would have to file a new claim. Webb n e v e r filed a new claim with the EEOC specifically alleging discriminatory discharge. W yn n e argues that Webb never consulted with an EEOC counselor within 45 days of h er discharge as required by 29 C.F.R. § 1614.105(a)(1). While this regulation does require a g g rie v e d federal employees to initiate contact with the EEOC within 45 days of the a lle g e d ly discriminatory event, it also contains a "good faith" provision that tolls the 45-day tim e limit if the employee was not notified of the time limit and was not otherwise aware of it. 29 C.F.R. § 1614.105(a)(2). Wynne does not allege that Webb had notice of the 45 day tim e limit; rather, Wynne argues that Webb never satisfied this requirement at all because she d id not follow the EEOC's instructions by filing a new complaint based upon the discharge. A federal employee must exhaust administrative remedies prior to filing a civil co m p lain t of discrimination in the workplace. See Brown v. Snow, 440 F.3d 1259, 1262 (1 1 th Cir. 2006). Furthermore, the scope of the civil complaint is limited by the scope of the E E O C investigation which can "reasonably be expected to grow out of the charge of d is c rim in a tio n ." See Gregory v. Ga. Dep't of Human Resources, 355 F.3d 1277, 1279-80 (1 1 th Cir. 2004). However, courts are "extremely reluctant to allow procedural technicalities to bar claims" of discrimination. Id. at 1280. Accordingly, the scope of an EEOC complaint s h o u ld not be strictly interpreted. Id. T h is Court finds that Webb's claims related to her termination are within the scope

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o f the complaint she filed with the EEOC. It is undisputed that Webb was terminated for the v e ry same reasons that formed the basis of her EEOC complaint. Both claims revolve around th e exact same issues--the nature and extent of Webb's disability and whether the a c co m m o d a tio n s she was requesting were reasonable. Accordingly, Webb's claims related to her discharge "grow out of" her claims of discrimination alleged in her EEOC complaint. S e e id. (finding claim of retaliatory discharge "grew out of" claims of termination based upon s e x and race). Therefore, she properly exhausted her administrative remedies, and Wynne is not entitled to summary judgment on this issue. B. D isc r im in a tio n Claim

T o establish a prima facie case of discrimination under the ADA, Webb must show: (1 ) she is disabled; (2) she is a qualified individual; and (3) she was subjected to unlawful d is c rim in a tio n because of her disability.1 Holly v. Clairson Indus., 492 F.3d 1247, 1255-56 (1 1 th Cir. 2007). Wynne does not dispute that Webb is disabled within the definition of the A D A . Therefore, this Court need only address the second two prongs of the prima facie case.

Both parties addressed Webb's discrimination claim as having been brought u n d e r both the ADA and § 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794. This C o u rt analyzes Webb's claims as having been brought only under the ADA because her c o m p lain t specifically references the ADA, and it does not reference the Rehabilitation Act. T h e difference is merely academic, though, because "discrimination claims under the R e h a b ilita tio n Act are governed by the same standards used in ADA cases, and cases decided u n d e r the Rehabilitation Act are precedent for cases under the ADA, and vice-versa." See B irc o ll v. Miami-Dade County, 480 F.3d 1072, 1088 (11th Cir. 2007) (internal quotation m ark s omitted).

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A "qualified individual" is someone who, "with or without reasonable a c c o m m o d a tio n , can perform the essential functions of the employment position." 42 U.S.C. § 12111(8). Therefore, in order to prove a claim of discrimination under the ADA, Webb m u s t show either (1) that she can perform the essential functions of her job without a c co m m o d a tio n , or (2) that she can perform the essential functions of her job with a re a s o n a b le accommodation. Holly, 492 F.3d at 1256. Consequently, an accommodation is o n ly "reasonable," and therefore required by the ADA, if it enables the employee to perform th e essential functions of the job. Id. (citing 29 C.F.R. § 1630.2(o)(1)(ii)). Wynne argues that Webb is not a "qualified individual" because physical presence at the office on a regular, f u ll- tim e schedule was an essential function of her job. In order to determine whether a job function is essential, "consideration shall be g iv e n to the employer's judgment," and "if an employer has prepared a written description b e f o re advertising or interviewing applicants for the job, this description shall be considered e v id e n c e of the essential functions of the job." 42 U.S.C. § 12111(8); Holly, 492 F.3d at 1 2 5 7 . When considering the employer's judgment, courts will look to both the employer's " o f f ic ia l position," as well as testimony from the plaintiff's supervisor. Id. While the e m p l o ye r ' s judgment shall receive "substantial weight" in the analysis, it is not the only f a c to r courts consider. Id. at 1258. These other factors include: (1) the amount of time spent o n the job performing the function, (2) the consequences of not requiring the incumbent to p erf o rm the function, (3) the terms of the collective bargaining agreement, (4) the work

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e x p e rie n c e of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs. Id. (citing 29 C.F.R. § 1630.2(n)(3)). In addition, the EEOC regulations id e n tif y three nonexclusive bases on which a job function may be deemed essential: (1) the re a so n the position exists is to perform the function; (2) there are a limited number of e m p lo ye e s available among whom the performance of the job function can be distributed; a n d (3) the function is highly specialized so that the incumbent in the position was hired for h is or her expertise or ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2); H o lly , 492 F.3d at 1258-59. T h o u g h never clearly articulated in her brief, it appears that Webb is asserting that she c o u ld perform the essential functions of her job if she was allowed to work a full-time s c h e d u le with four hours at the office and four hours at home each day. Wynne argues that th is proposed accommodation is unreasonable because Webb cannot perform the essential f u n c tio n s of her job unless she is physically present in the office for a full-time schedule. T h e burden of identifying an accommodation that would allow a qualified employee to p e rf o rm the essential functions of her job rests with the employee, as does the ultimate b u rd e n of persuasion with respect to showing that such accommodation is reasonable. Earl v . Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000). N o w h e re in her brief does Webb make any meaningful attempt to address whether the a c co m m o d a tio n she seeks would allow her to perform the essential functions of her job, or w h e th e r physical presence at the office itself is essential to her job. The only argument Webb

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p u ts forth on this issue is that the Air Force allowed her to work four-hours at work / fourh o u rs at home for some amount of time that Webb never identifies. However, the mere fact th a t an employer has granted an accommodation in the past does not make it a "reasonable a c c o m m o d a tio n " within the definition of the ADA. See Wood v. Green, 323 F.3d 1309, 1314 (11 th Cir. 2003) ("[P]rior accommodations do not make an accommodation reasonable."). F u rth e rm o re , in order to demonstrate that physical presence at the office on a full-time s c h e d u le is an essential function of Webb's position as Chief Project Manager, Wynne s u b m its a declaration from Maj. Brown, Webb's supervisor. Maj. Brown describes the p o s itio n as one that requires a significant amount of responsive and reactive actions based u p o n unexpected problems or issues that occur. Maj. Brown also explains that allowing W e b b to work only a four-hour day would require other employees to assume some of W e b b 's responsibilities, or the hiring of additional personnel, to complete unfinished tasks d u e to Webb's absence. Also, Maj. Brown states that Webb's physical presence at the office is necessary because (1) she can not efficiently and effectively supervise and manage the h u m a n and physical resources for which she is responsible from a remote location, and (2) s h e can not efficiently and effectively communicate with her team from a remote location. U n d e r these circumstances, this Court finds that Webb has failed to meet her burden to identify a reasonable accommodation that would allow her to perform the essential f u n c tio n s of her position. This Court's conclusion is supported by the weight of authority, b o th in this Circuit as well as in others, that have found requests for similar accommodations

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to be unreasonable. See Terrell v. USAir, 132 F.3d 621, 626-27 (11th Cir. 1998) (finding p a rt-tim e work was not a reasonable accommodation where employer had no part-time p o sitio n s available); Jackson v. Veterans Admin., 22 F.3d 277, 278-79 (11th Cir. 1994) ( f i n d in g that physical presence on the job was an essential function of housekeeping aide, a n d that accommodating sporadic, unpredictable absences for arthritis treatment was u n re a so n a b le) ; Mulloy v. Acushnet Co., 460 F.3d 141, 153-54 (1st Cir. 2006) (finding p h ys ic a l presence was essential function of senior electrical engineer, and proposed a c c o m m o d a tio n of working remotely was unreasonable); Tyndall v. Nat'l Educ. Ctrs., Inc. o f Cal., 31 F.3d 209, 213 (4th Cir. 1994) ("Except in the unusual case where an employee c a n effectively perform all work-related duties at home, an employee who does not come to w o rk cannot perform any of his job functions, essential or otherwise. . . . Therefore, a regular a n d reliable level of attendance is a necessary element of most jobs." (internal quotation m a rk s omitted)); Hypes v. First Commerce Corp., 134 F.3d 721, 726-27 (5th Cir. 1998) (f in d in g physical presence in the office during normal business hours was an essential f u n c tio n of a loan review analyst, and requested accommodation of flex-time was u n re a so n a b le) ; Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 545 (7th Cir. 1 9 9 5 ) ("An employer is not required to allow disabled workers to work at home, where their p r o d u c tiv ity inevitably would be greatly reduced."); Mason v. Avaya Commc'ns, Inc., 357 F .3 d 1114, 1124 (10th Cir. 2004) (finding work-at-home accommodation for service c o o rd in a to r position was unreasonable because physical attendance was an essential function

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o f the job); see also Wood, 323 F.3d at 1314 (employee's requested accommodation of in d e f in ite leaves of absence due to cluster headaches was unreasonable); Earl, 207 F.3d at 1 3 6 6 (finding punctuality was an essential function of employee's job as Store Area C o o rd in a to r, and that requested accommodation to be able to arrive at work at any time, w ith o u t reprimand, was unreasonable). C o n s e q u e n tly, Webb has failed to prove a prima facie case of discrimination under th e ADA because she is not a "qualified individual." Therefore, Wynne is entitled to s u m m a r y judgment on all of Webb's discrimination claims. B. R e ta lia tio n In Webb's brief, she articulates a claim alleging that the failure to promote her in May 2 0 0 5 and her termination in March 2007 are both instances of retaliation against her in v io la tio n of the ADA. H o w e v e r, nowhere does Webb articulate a claim of retaliation in her complaint. For th is reason alone, Wynne is entitled to summary judgment on this issue. See Gilmour v. G a te s, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not am en d her complaint through argument in a brief opposing summary judgment."). E v e n if this Court were to entertain Webb's retaliation claim, Wynne would still be e n title d to summary judgment on the merits of the claim. With respect to the 2005

p ro m o tio n , Webb has presented no evidence regarding who the decision maker for that p ro m o tio n was, and whether that person had any knowledge that Webb had engaged in

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p ro te c te d expression the decision was made. See, e.g., Goldsmith v. Bagby Elevator Co., 513 F .3 d 1261, 1278 (11th Cir. 2008) (in order to prove prima facie case of retaliation, plaintiff m u s t show that "decision maker was aware of the protected conduct at the time of the ad v erse employment action"). M o re o v e r, Webb has failed to prove a prima facie case of retaliation based on her te rm in a tio n in March 2007, which was almost a year after her most recently filed EEOC c h a rg e of discrimination. See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (1 1 th Cir. 2007) (noting that "[a] three to four month disparity between the statutorily p ro te c te d expression and the adverse employment action is not enough," and "in the absence o f other evidence tending to show causation, if there is a substantial delay between the p ro te c te d expression and the adverse action, the complaint of retaliation fails as a matter of law "). V . CONCLUSION F o r the reasons set forth above, it is CONSIDERED and ORDERED that (1) D e f e n d a n t's Motion for Summary Judgment (Doc # 26) be and the same is h e re b y GRANTED. (2 ) (3 ) A ll claims and this case are DISMISSED WITH PREJUDICE. T h e pretrial and the trial scheduled in this matter are CANCELLED.

T h i s Court will enter a separate final judgment taxing costs. D O N E this 3rd day of November, 2008.

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/s/ Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE

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