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, )

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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 2 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: 3 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 4 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 5 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 6 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 7 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 8 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). 1 9 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 10 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 11 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 12 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 13 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 14 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. 15 /s/ Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE 16

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