Lane v. Department of Defense Missile Defense Agency

Filing 84

MEMORANDUM OPINION AND ORDER re 67 - For the reasons discussed above, the Court enters judgment in favor of the Secretary with respect to Ms. Lane's claim for damages (compensatory and punitive) under § 504 of the Rehabilitation Act and with respect to Ms. Lane's Title VII retaliation claim. The Court sets this matter for a telephone conference at 1:30 on October 1, 2019. By separate order, the Court will provide call information. Signed by Judge Madeline Hughes Haikala on 9/30/2019. (KEK)

FILED
2019 Sep-30 AM 11:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LINDA LANE,

}
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Plaintiff,
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v.
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DEPARTMENT OF DEFENSE,
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MISSILE DEFENSE AGENCY, Dr. }
Mark T. Esper, Secretary of
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Defense,
}
}
Defendant.
}

Case No.: 5:14-cv-02304-MHH

MEMORANDUM OPINION AND ORDER
Plaintiff Linda Lane contends that the Department of Defense Missile Defense
Agency discriminated against her because she is disabled and retaliated against her
after she reported acts of discrimination.1 Pursuant to Rule 56 of the Federal Rules
of Civil Procedure, the Secretary of Defense has asked the Court to enter judgment
in the Department’s favor on Ms. Lane’s claims. According to the Secretary, there
is no genuine dispute of fact as to whether the Department of Defense Missile

1

Ms. Lane asserts her claims against Dr. Mark T. Esper in his official capacity as Secretary of
Defense. See FED. R. CIV. P. 25(d) (“[W]hen a public officer who is a party … ceases to hold
office while the action is pending[, t]he officer’s successor is automatically substituted as a party.
Later proceedings should be in the substituted party’s name …. The court may order substitution
at any time, but the absence of such an order does not affect the substitution.”); (see also Doc. 1
(naming then-Secretary Chuck Hagel as defendant). The Court takes judicial notice that Dr. Mark
T. Esper is the current Secretary of Defense. The Court asks the Clerk to please make this
substitution on CM/ECF.

Defense Agency suspended and terminated Ms. Lane because of her disability or in
retaliation for filing an EEO complaint. For the reasons set forth herein, the Court
grants the Secretary’s motion for summary judgment in part.
I.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). To demonstrate that there is a genuine dispute
as to a material fact that precludes summary judgment, a party opposing a motion
for summary judgment must cite “to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A).
“The court need consider only the cited materials, but it may consider other materials
in the record.” FED. R. CIV. P. 56(c)(3). When considering a summary judgment
motion, a district court must view the evidence in the record and draw reasonable
inferences in the light most favorable to the non-moving party. Asalde v. First Class
Parking Sys. LLC, 898 F.3d 1136, 1138 (11th Cir. 2018). Accordingly, the Court
presents the evidence in the light most favorable to Ms. Lane.

2

II. BACKGROUND
Ms. Lane’s Employment History with MDA and Ms. Lane’s Reasonable
Accommodations
Ms. Lane worked as a contract specialist for the Department of Defense
Missile Defense Agency (MDA) at Redstone Arsenal in Huntsville, Alabama. (Doc.
68-1, p. 11, tp. 41; Doc. 68-1, p. 12, tp. 45). She was responsible for evaluating
contractor proposals, negotiating the government’s contract position, and preparing
written documentation for contract files. (Doc. 74-8, p. 3).
In 2009, while working for MDA, Ms. Lane began suffering from severe
anxiety and panic attacks. (Doc. 68-1, p. 28, tp. 108). Ms. Lane did not request a
formal accommodation until November of 2012. (Doc. 74-9, pp. 1-6).
In October 2011, Ms. Lane’s supervisors recorded her absence from a
mandatory contract course. (Doc. 74-49, p. 1). After Ms. Lane missed the class, her
second-level supervisor, Barnett Klehman, stated in an email to Ms. Lane’s other
MDA supervisors: “Either she is mentally ill (which I think is a definite possibility),
or she is trying to manipulate the system.” (Doc. 74-49, p. 1). Mr. Klehman added:
“We need to start the official documentation trail; at this point there is no longer any
reason to try to help this employee, and we need to be prepared for a long and
arduous process leading to separation.” (Doc. 74-49, p. 1).
Several months later, Mr. Klehman said to Ms. Lane, “Good luck on getting
your next 10 years.” (Doc. 74-26, p. 13, ¶ 14). Ms. Lane perceived Mr. Klehman’s
3

comment as a direct threat to her employment with MDA. (Doc. 74-26, p. 13, ¶ 14).
In June 2013, Masha Thornton replaced Mr. Klehman as Ms. Lane’s second-level
supervisor. (Doc. 68-17, p. 2).
Meanwhile, in March of 2012, Marie Hickox became Ms. Lane’s first-level
supervisor. (Doc. 68-1, p. 12, tp. 45). In September 2012, Ms. Hickox emailed Ms.
Lane’s other supervisors and requested a “Record-Discussion” about Ms. Lane.
(Doc. 74-35, p. 1). Ms. Hickox stated that Ms. Lane “ha[d] performed satisfactorily”
but was beginning “a downhill slide,” and “[t]here is a concern that she is unstable.”
(Doc. 74-35, p. 1). Ms. Lane contends that Ms. Hickox encouraged her to leave
MDA. (Doc. 74-12, p. 2).
On November 7, 2012, Ms. Lane requested a reasonable accommodation for
her disabilities via a form prepared by her treating psychiatrist, Dr. Regina Doody.
(Doc. 74-9, pp. 1-6). Dr. Doody diagnosed Ms. Lane with panic disorder, ADHD,
and depression. (Doc. 74-9, p. 1). Dr. Doody reported that because of anxiety and
panic attacks, Ms. Lane found it difficult to function in the office environment,
perceived MDA as a hostile work environment, and desired the option to
telecommute for her job and perform her work duties from home when necessary
because of panic attacks and anxiety. (Doc. 74-9, p. 2). Dr. Doody reported that
Ms. Lane “states she is intermittently incapacitated to leave home for work” because
of anxiety and panic attacks. (Doc. 74-9, p. 5).
4

On November 27, 2012, Ms. Hickox and the MDA disability program
manager, Denise Walker, granted Ms. Lane the accommodations of telework (Ms.
Lane could request to work remotely when necessary), a flexitour (ability to work
credit hours to accumulate leave), and modified requirements for requesting sick
leave (Ms. Lane could call in sick at any time before 1:00 p.m.). (Doc. 74-13, p. 1).
In a memorandum memorializing a meeting that she attended with Ms. Lane and
Ms. Walker, Ms. Hickox wrote that Ms. Lane must be able to perform the essential
functions of her position from home. (Doc. 74-13, p. 1).
Beginning in January 2013, Ms. Lane teleworked almost every day. (Doc.
74-10, p. 14, tp. 51). Ms. Lane reported to Redstone approximately once every two
weeks to perform duties that required her to be in the office. (Doc. 74-10, p. 22).
On January 18, 2013, Ms. Lane filed an EEO complaint. (Doc. 74-46, p. 5; Doc. 681, p. 15, tp. 56). Ms. Lane amended her complaint four times, and her complaint
was investigated from September 17, 2013, to April 15, 2014. (Doc. 74-46, p. 5).
On April 26, 2013, Ms. Lane met with Ms. Hickox and Ms. Walker. (Doc.
74-10, p. 15, tpp. 54-55; Doc. 74-15, pp. 1-4). Ms. Lane informed them that telework
worked for her and that she wanted to telework as much as possible. (Doc. 74-10,
p. 15, tp. 55). In a memorandum memorializing the meeting, Ms. Hickox wrote that
she had approved Ms. Lane’s telework in January 2013 “with the understanding
from [Ms. Lane] that it would be irregular and infrequent.” (Doc. 74-15, p. 1). Ms.
5

Hickox and Ms. Walker informed Ms. Lane that MDA needed her to transition back
into working at the office for the majority of her work schedule. (Doc. 74-15, p. 1).
Accordingly, Ms. Lane came to the office one day the first week after the meeting,
two days the second week, three days the third week, and then four days the fourth
week. (Doc. 74-15, p. 1). Ms. Lane was supposed to work in the office full-time by
June 10, 2013. (Doc. 75-15, p. 1).
On Friday, June 7, 2013, Ms. Lane submitted a note from Dr. Doody dated
May 29, 2013, in which Dr. Doody stated, “I am the treating physician for [Ms.
Lane]. I am requesting that Ms. Lane be allowed to work from home for the next
eight weeks due to her complaint of experiencing some episodes of anxiety and panic
attacks.” (Doc. 74-16, p. 1). Ms. Lane also submitted a note from her chiropractor,
Martin Bryant, D.C., in which Dr. Bryant stated, “I have recommended [Ms. Lane]
not be required to lift more than 2 pounds” because of neck pain, back pain, and
headaches. (Doc. 74-17, p. 1). Ms. Hickox denied Ms. Lane’s request to telework
for eight weeks. (Doc. 74-18, p. 1). In a memorandum provided to Ms. Lane, Ms.
Hickox explained that she denied the request because she believed Ms. Lane’s
previously approved accommodations were sufficient, the May 29, 2013 note from
Dr. Doody did not demonstrate a nexus between Ms. Lane’s disability and the
accommodation specifically requested, and the note did not describe the functional
limitations that interfered with Ms. Lane’s ability to perform her essential duties.
6

(Doc. 74-18, p. 1). Ms. Hickox approved Ms. Lane’s request for a lifting restriction
of two pounds. (Doc. 74-18, p. 1). Ms. Hickox and Ms. Walker did not confer with
Ms. Lane before denying her request for eight weeks of telework. (Doc. 74-10, p.
16, tpp. 59-60).
On August 3, 2013, Ms. Lane reported to Ms. Hickox via email that Ms.
Lane’s ex-husband, David Lane, who worked at Redstone, stalked Ms. Lane in the
parking lot. (Doc. 74-20, pp. 5-6). Ms. Hickox responded, “I will find out and let
you know what, if anything, I can do about the incident.” (Doc. 74-20, p. 5). Ms.
Lane responded,
I don’t appreciate you asking me yesterday whether I was still taking
my medication. I found that very offensive. . . . Due to this incident I
am requesting to once again work from home and away from what I
perceive as a hostile work environment.
(Doc. 74-20, p. 5). In another email, Ms. Lane stated, “I don’t being [sic] asked by
you whether I am taking my meds.” (Doc. 74-20, p. 4). And in another email, Ms.
Lane stated, “your first question to me was ‘You haven’t been taking your
medication lately have you?’ I find that very insulting.” (Doc. 74-20, p. 3).
Throughout these emails, Ms. Lane requested telework, advanced annual or sick
leave under the FMLA, or administrative leave. (Doc. 74-20, pp. 3-5). Ms. Hickox
explained to Ms. Lane the process for requesting FMLA leave and for documenting
the stalking incident. (Doc. 74-20, pp. 2-3). Ms. Hickox informed Ms. Lane that
Redstone security would investigate the stalking incident and provide an escort for
7

Ms. Lane to and from the parking lot. (Doc. 74-20, p. 2). Ms. Lane responded, “it’s
almost laughable that MDA will conduct a fruitful investigation” because, according
to Ms. Lane, MDA previously had covered up misconduct against her, destroyed her
career, accused her of imagining the stalking, and humiliated her. (Doc. 74-20, p.
1).
After this email exchange, Ms. Lane submitted to Ms. Walker an FMLA form
requesting telework and a doctor’s note. (Doc. 74-23, p. 1; Doc. 74-21; Doc. 7422). Ms. Hickox issued a memorandum denying Ms. Lane’s request to telework.
(Doc. 74-23, p. 1). Ms. Hickox wrote:
I am not willing to grant this accommodation because I believe the
previously approved accommodations are sufficient to reasonably
accommodate your disability. Certain parts of your duties require your
presence in the office. Further, based on the September 12, 2013
doctor’s FMLA form your doctor did not recommend 100% telework;
therefore I am not willing to approve you for 100% telework.
(Doc. 74-23, p. 1). Ms. Hickox requested bi-weekly meetings with Ms. Lane “in
order to review the situation and maintain an open line of communication.” (Doc.
74-23, p. 1).
On October 17, 2013, Ms. Lane learned that she and a fellow contracting
officer, Glenda Heard, would be participating together in a contracting class required
for Ms. Lane’s position. (Doc. 74-27, p. 6). A year earlier, Ms. Lane had accused
Ms. Heard of threatening to cut her. (Doc. 74-4, p. 11, tpp. 142-43). Ms. Lane asked
Ms. Hickox if “there [was] any chance that [she] might be assigned at a later date”
8

and indicated that she would have a panic attack if she encountered Ms. Heard.
(Doc. 74-27, pp. 5-6). 2 Ms. Hickox denied the request. (Doc. 74-27, p. 6). Ms.
Lane missed the class. (Doc. 74-27, p. 5).
Ms. Lane submitted a note from Dr. Doody dated October 23, 2013. (Doc.
74-24). In the note, Dr. Doody stated that Ms. Lane reported experiencing posttraumatic stress symptoms and panic. (Doc. 74-24, p. 1). Dr. Doody requested that
MDA permit Ms. Lane to telework “whenever possible until January 2, 2014.”
(Doc. 74-24, p. 1). Ms. Lane submitted another note from Dr. Doody in which Dr.
Doody requested that MDA permit Ms. Lane to telework until December 1, 2013.
(Doc. 74-28, p. 1). Ms. Hickox denied the requests because she believed the
accommodations already provided were sufficient. (Doc. 74-29, p. 1).
On December 16, 2013, Ms. Hickox proposed suspending Ms. Lane for three
days for failure to follow directions to attend the contracting class. (Doc. 74-30, p.
1). In a memorandum of proposed suspension, Ms. Hickox stated that Ms. Lane

2

In his reply brief, the Secretary asserts that “[n]owhere does the cited material say anything about
a panic attack. Lane’s subsequent claim that Hickox and Thornton had ‘knowledge that Plaintiff
would have suffered a panic attack if she attended the class with Heard’ is also false. Lane presents
no evidence of such ‘knowledge.’” (Doc. 77, p. 40) (internal citation omitted). True, Ms. Lane
did not produce evidence documenting how Ms. Hickox received notice that Ms. Lane would
suffer a panic attack if required to attend the class. But Ms. Hickox’s October 21, 2013 email
states: “[Ms. Lane] chose not to go to the class because she has an issue with one of the individuals
on the roll to attend the class. She indicated that she will have a panic attack if she encounters this
individual.” (Doc. 74-27, p. 5). This email sufficiently demonstrates, for purposes of this
summary judgment opinion, that Ms. Hickox was notified that Ms. Lane anticipated having a panic
attack if forced to attend the class with Ms. Heard.
9

failed to attend the class required for her position and did not submit medical
documentation to excuse her absence as instructed. (Doc. 74-30, p. 1). Ms. Hickox
stated that Dr. Doody’s note was insufficient because it did not reference Ms. Lane’s
failure to attend the class. (Doc. 74-30, p. 1). Ms. Thornton sustained the charges
and suspended Ms. Lane from January 21 to January 23, 2014. (Doc. 74-40, p. 1).
Leave in January and February 2014
At 8:04 a.m. on January 28, 2014, Ms. Lane sent Ms. Hickox an email
explaining, “since it’s snowing outside in Athens and Huntsville right now, I’m
requesting telework today. I plan to finish my pre-class assignment on Bundling
which requires a paper and power point presentation which is due on 3 February.
Please advise your approval.” (Doc. 74-31, p. 9). Ms. Hickox responded, “I have
not been made aware of any road closures and the base is open as usual. Before I
approve for this reason, please let me know if there are any announced road closures.
Otherwise, you need to report to the office.” (Doc. 74-31, p. 9). At 9:15 a.m., Ms.
Lane responded, “[n]o road closures. Working from home will allow me to work on
this assignment and hopefully complete it today. Please advise.” (Doc. 74-31, p. 9).
Ms. Hickox responded, “[s]ee previous email below,” referring to her first response.
(Doc. 74-31, p. 8). At 9:27 a.m., Ms. Lane responded, “I believe you approved me
for telework on a situational basis and now [are] refusing this request. Please provide
your rationale for disallowing this telework request.” (Doc. 74-31, p. 8). Ms. Lane
10

questioned whether Ms. Hickox refused the telework request in retaliation for a prior
EEO complaint that Ms. Lane filed against Ms. Hickox and Ms. Thornton. (Doc.
74-31, p. 8). Ms. Lane stated, “I’m requesting that I be allowed to work from home
due to the hostile environment that I work in which is directly related to the ongoing
anxiety I’m now coping with.” (Doc. 74-31, p. 8). Ms. Hickox denied the request
again because the MDA office was open, and the roads were clear. (Doc. 74-31, p.
8).
At 11:15 a.m., in a message to Ms. Hickox, Ms. Lane stated,
I don’t think you understand. I’m just not able to come in. How you
and Ms. Thornton have treated me is nothing more than retaliation. I’m
asking you again to allow me to work from home. The stress is
unreasonable for me to work in an environment that is so hostile.”
(Doc. 74-31, p. 7). At 11:46 a.m., Ms. Lane sent Ms. Hickox another email:
[Y]ou don’t understand. . . . I am unable to come in . . . . It’s just too
much for me right now. I hope that you and Ms. Thornton are proud of
[yourselves] taking advantage of a person that has anxiety and panic
attacks. You both should be ashamed of your actions. Due to your
denial for disallowing me to telework on a situational basis, which you
previously approved, I am now requesting advanced sick leave.
(Doc. 74-31, p. 7). Ms. Lane had a panic attack and could not drive to work. (Doc.
74-26, p. 20, ¶ 44).
The next day, Ms. Hickox sent an email advising Ms. Lane to submit her leave
request “in accordance with agency procedures . . . on a Form 35 . . . .” (Doc. 7431, p. 6). Ms. Hickox stated that she would “consider a request for annual leave
11

from 8:00 a.m.-12:00 noon, and advanced sick leave from 1:00-4:00 p.m. for
[January 28].” (Doc. 74-31, p. 6).
Ms. Lane requested advanced sick leave for January 29, 30, and 31, 2014, and
did not report to work those days. (Doc. 74-31, pp. 4-6). Ms. Hickox instructed Ms.
Lane to submit a doctor’s note explaining that she was sick so that Ms. Hickox could
approve sick leave for the afternoon of January 28 and all day January 29, 30, and
31. (Doc. 74-31, p. 4). MDA policy required employees to submit medical
documentation for sick leave in excess of three days. (Doc. 74-31, pp. 3-4). Ms.
Lane submitted a note from Dr. Doody explaining that Ms. Lane could not report to
work from January 28 to January 31 because of panic attacks. (Doc. 74-32, p. 1).
Ms. Hickox accordingly granted Ms. Lane sick leave for the afternoon of January 28
and all day January 29, 30, and 31. (Doc. 74-39, p. 1). Ms. Hickox marked Ms.
Lane absent without leave (AWOL) for the morning of January 28 because Ms. Lane
asked to telework on the morning of January 28 to finish her class assignment, not
because she was sick, and Ms. Lane did not submit a request for annual leave for
that morning. (Doc. 74-4, p. 1).
Ms. Lane requested advanced annual leave for Friday, February 7, 2014, so
that she could visit her father in San Antonio, Texas. (Doc. 74-31, p. 2). Ms. Hickox
verbally approved the leave and instructed Ms. Lane to submit a leave slip before
February 7. (Doc. 74-4, p. 4; Doc. 74-26, p. 22, ¶ 48; Doc. 74-31, p. 2). MDA policy
12

required employees to submit requests for advanced annual leave before taking
leave. (Doc. 74-4, pp. 4-5). Because Ms. Lane was scheduled to attend a Contracts
280 course (CON 280) at the Defense Acquisition University (DAU), a continuing
education and certification program required for Ms. Lane’s position, Ms. Hickox
instructed Ms. Lane to also coordinate her absence with her DAU professor. (Doc.
74-4, p. 4; Doc. 74-31, p. 2). Ms. Lane coordinated her absence with her professor,
but she did not submit a leave slip. (Doc. 74-2, p. 12; Doc. 74-4, p. 4). She submitted
a leave slip when she returned to work after February 7. (Doc. 74-8, p. 6). According
to Ms. Lane, Ms. Hickox had on prior occasions accepted leave slips after the days
she (Ms. Lane) was absent. (Doc. 74-8, p. 6; Doc. 74-37, pp. 5-6).
Ms. Lane was scheduled to attend her CON 280 class on Monday, February
10, 2014. (Doc. 74-38, p. 1). Ms. Lane could not attend the class because on
February 9 she had a panic attack when she learned that MDA would not remove her
disciplinary records from her personnel file while her EEO complaint was pending.
(Doc. 74-8, p. 6; Doc. 74-38, p. 2). Ms. Lane informed her professor on the morning
of February 10 that she would miss class. (Doc. 74-38, p. 1). Ms. Lane did not
request leave before she missed the class. (Doc. 74-2, p. 1). She did not submit a
leave request after her absence, but the note from Dr. Doody that Ms. Lane submitted
for her sick leave from January 28 to January 31, 2014 stated that Ms. Lane had a
panic attack on February 10, 2014. (Doc. 74-32, p. 1).
13

On February 19, 2014, Ms. Hickox proposed suspending Ms. Lane for 14
days. (Doc. 74-39, p. 1). In a memorandum providing Ms. Lane notice of the
proposed suspension, Ms. Hickox listed five charges as the basis for the proposed
suspension: (1) disrespectful or discourteous conduct from the January 28, 2014
email in which Ms. Lane stated, “I hope you and Ms. Thornton are proud of
[yourselves] taking advantage of a person that has anxiety and panic attacks. You
both should be ashamed of your actions;” (2) AWOL for the morning of January 28,
2014; (3) failure to follow leave procedures for the morning of January 28, 2014; (4)
failure to follow leave procedures on February 7, 2014; and (5) failure to follow
leave procedures and AWOL on February 10, 2014. (Doc. 74-39, pp. 1-3). As
discussed below, Ms. Thornton ultimately sustained the charges and suspended Ms.
Lane for 14 days.
MDA Removes Ms. Lane from Federal Service
On Friday, April 4, 2014, Ms. Lane attended the last day of her CON 280
course. (Doc. 74-8, p. 7). She completed her final exams, passed the class, returned
to her office, and left for the day around 10:30 a.m. (Doc. 74-8, p. 7). Ms. Lane left
early because she believed that attending the course was her only work duty that day.
(Doc. 74-8, p. 7).
At 11:38 a.m. that day, Ms. Thornton notified Ms. Lane via email of a meeting
scheduled at 1:15 p.m. so that Ms. Thornton could deliver the decision on Ms. Lane’s
14

proposed suspension. (Doc. 74-42, p. 4). Ms. Lane did not see the email and did
not attend the meeting. (Doc. 74-8, p. 7).
At 1:42 p.m. that day, after Ms. Lane missed the meeting, Ms. Thornton sent
Ms. Lane an email notifying her that the meeting was rescheduled for April 7, 2014.
(Doc. 74-42, p. 3). Initially, Ms. Thornton informed Ms. Lane that Ms. Lane’s
attorney could attend the meeting. (Doc. 74-42, p. 3). Ms. Lane then informed Ms.
Thornton that Mr. Cooper, Ms. Lane’s attorney, was not available on April 7. Ms.
Lane asked to reschedule the meeting. (Doc. 74-42, p. 3). Ms. Thornton responded
that she was mistaken when she said that Ms. Lane was entitled to representation at
the meeting. (Doc. 74-42, p. 2). Ms. Thornton “confirmed with [the Directorate of
Operations Human Resources] that [Ms. Lane] was not entitled to representation at
the meeting” and informed Ms. Lane that the meeting would proceed as scheduled.
(Doc. 74-42, p. 2). Ms. Lane then requested that Ms. Thornton deliver her decision
on Ms. Lane’s proposed suspension via email, and Ms. Thornton repeated that she
would deliver the decision in person at the meeting on April 7, 2014. (Doc. 74-42,
p. 2). Ms. Thornton had to deliver the decision in person because MDA security
preferred to attend the meeting, physically obtain Ms. Lane’s MDA badge and
common access card, and escort her from the building. (Doc. 68-17, p. 7, ¶ 12).
At 8:29 a.m. on April 7, 2014, Ms. Lane sent Ms. Thornton this email
message:
15

On Friday April 4th, you came by my office with security guards in tow
along with an EEO counselor, Ernesta Waters. After calling you on this
same day I was informed that you wanted to set up a meeting to discuss
my 14 day proposed suspension however I never received notice of any
meeting. I believe your actions on the 4th sought to deliberately
embarrass me and had fellow colleagues questioning me what was
going on. As one employee stated, your actions were “gestapo like.”
As an SES I am quite surprised over your tactics since you readily have
both General Counsel and MDA EEO’s office at your disposal.
Coupled with your decision to later rescind attorney representation I
find that your actions are a continuation of a hostile work environment
at MDA. Therefore, please forward your decision to me today and I
will assume that my 14 day suspension is in effect. If you have further
comment, please also copy my attorney on that discussion.
(Doc. 74-42, p. 1). According to Ms. Lane, a colleague in her office texted her that
Ms. Thornton and three security guards showed up at Ms. Lane’s office “acting all
gestapo like” the afternoon of April 4. (Doc. 74-8, p. 7).
In the afternoon of April 7, 2014, Ms. Thornton sent Ms. Lane the decision on
her proposed suspension via email. (Doc. 74-42, p. 1). Ms. Thornton sustained the
five charges that Ms. Hickox levied against Ms. Lane and therefore suspended Ms.
Lane from April 8 to April 21. (Doc. 68-49, pp. 1-6).
Ms. Lane did not report to work on Monday, April 7, 2014, because she
understood from a phone conversation with Ms. Thornton on Friday, April 4 that she
would be suspended for 14 days, and she therefore assumed that the suspension
would begin on Monday, April 7. (Doc. 74-8, p. 7). Because Ms. Lane did not
report to work and did not request leave, Ms. Hickox listed Ms. Lane as AWOL for
April 7. (Doc. 74-44, p. 2).
16

On May 7, 2014, Ms. Hickox proposed removing Ms. Lane from federal
service. (Doc. 74-44, p. 1). In a memorandum providing Ms. Lane notice of the
proposed removal, Ms. Hickox listed six charges as the basis for the proposed
removal: (1) AWOL on April 4, 2014, for leaving work early at approximately 10:30
a.m.; (2) failure to follow leave procedures on April 4, 2014, for leaving work early
without requesting leave; (3) inappropriate conduct on April 4, 2014, for leaving
work early on April 4, 2014, without requesting leave; (4) AWOL on April 7, 2014,
for not reporting to work; (5) failure to attend a meeting as directed (the April 7,
2014 meeting at which Ms. Thornton intended to deliver her decision on Ms. Lane’s
proposed suspension); and (6) disrespectful and/or discourteous conduct for sending
the 8:29 a.m., April 7, 2014 email. (Doc. 74-44, p. 2). Ms. Hickox then placed Ms.
Lane on administrative leave. (Doc. 68-52, p. 1).
On June 6, 2014, Ms. Thornton sustained the six charges that Ms. Hickox
levied against Ms. Lane. (Doc. 74-45, pp. 1-3). Ms. Thornton decided to remove
Ms. Lane from federal service as of June 9, 2014. (Doc. 74-45, p. 1).
Procedural Background
On January 18, 2013, Ms. Lane filed her first complaint of discrimination
against MDA with MDA’s EEO office. Ms. Lane alleged discrimination on the basis
of disability and gender and retaliation arising out of events not material to this
motion for summary judgment. (Doc. 74-46, p. 5). MDA’s director of equal
17

opportunity and diversity management issued a final agency decision finding that
the record did not support Ms. Lane’s claims. (Doc. 74-47, p. 1).
On July 14, 2014, Ms. Lane filed her second complaint of discrimination
against MDA with MDA’s EEO office. (Doc. 74-48, p. 1). Ms. Lane alleged that
MDA subjected her to a hostile work environment based on gender, disability, and
retaliation when MDA suspended and removed her. (Doc. 74-48, p. 1). Ms. Lane
brought those claims in this Court by filing her complaint on November 28, 2014.
(Doc. 1). Because Ms. Lane elected to pursue her claims in district court, MDA
dismissed Ms. Lane’s second EEO complaint. (Doc. 74-48, p. 3).
Ms. Lane’s third amended complaint is the operative pleading in this matter.
(Doc. 51). Ms. Lane asserts a disability discrimination claim under Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794, and a retaliation claim under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Doc. 51, pp. 12-13). Ms. Lane
contends that MDA suspended and removed her because of her disability. (Doc. 51,
pp. 12-13). She also contends that MDA suspended and removed her in retaliation
for filing her first EEO complaint. (Doc. 51, pp. 13-14). Ms. Lane requests
declaratory and injunctive relief, reinstatement to her previous position, and an
award of compensatory and punitive damages. (Doc. 51, p. 14). 3 The Secretary has

The Secretary mentions that Ms. Lane’s third amended complaint is somewhat confusing. The
Secretary asks the Court to find that Ms. Lane has asserted two claims: a claim for disability
discrimination under § 504 of the Rehabilitation Act and a Title VII claim for retaliation for
3

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asked the Court to enter summary judgment in favor of the Department of Defense
on Ms. Lane’s claims. (Doc. 67). The Secretary also objects to some of Ms. Lane’s
summary judgment evidence. (Docs. 79, 83).
III.

ANALYSIS

The Secretary’s Objection to Doc. 74-36
The Secretary has objected to Ms. Lane’s evidentiary submission from Kara
Hetrick found at Doc. 74-36. (Doc. 79, pp. 5-12). Doc. 74-36 contains a letter dated
October 11, 2016, and a document labeled “Affidavit of Kara Hetrick.” (Doc.
74-36). The letter is addressed “To Whom It May Concern.” (Doc. 74-36, p. 1).
The letter contains narrative facts concerning Ms. Hetrick’s requests for leave and
some of the events surrounding Ms. Lane’s departure from MDA. A signature that
purports to be Ms. Hetrick’s appears at the bottom of both pages of the letter, but the
letter is not sworn. (Doc. 74-36, pp. 1-2).
The “affidavit” is not sworn either. The “affidavit” begins:
State of Alabama
Madison County
Before me personally appeared Kara Hetrick who after being
duly sworn did depose and say as follows:

complaints of gender and disability discrimination. (Doc. 69, pp. 57-58). The Court agrees with
the Secretary’s characterization of Ms. Lane’s claims. In her brief, in discussing her Title VII
claim, Ms. Lane interchanges the terms discrimination and retaliation. (See, e.g., Doc. 73, p. 58).
The Court evaluates Ms. Lane’s Title VII claim only under a retaliation theory.
19

(Doc. 74-36, p. 3).

The “affidavit” contains narrative facts that mirror the

information in the letter. (Doc. 74-36, pp. 3-5). The affidavit has only an electronic
signature, (Doc. 74-36, p. 3), and the affidavit is not notarized. (Doc. 74-36, p. 6).
Ms. Lane did not identify Ms. Hetrick as a potential witness in this case.
Neither Ms. Lane nor the Secretary identified Ms. Hetrick in Rule 26 disclosures.
(Doc. 79-1; Doc. 79-2). Ms. Lane briefly mentioned Ms. Hetrick during discovery.
Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure requires a party to
provide to the other parties “the name . . . of each individual likely to have
discoverable information . . . that the disclosing party may use to support its claims
or defenses,” and “a copy—or a description by category and location—of all
documents . . . that the disclosing party has in its possession, custody, or control and
may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii). Rule
26(e)(1)(A) requires a party to supplement its initial Rule 26 disclosures “in a timely
manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing.” Pursuant to Rule 37(c)(1), “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, . . . unless the failure
was substantially justified or is harmless.”
20

Ms. Lane has not attempted to show how the failure to identify Ms. Hetrick
was “substantially justified.” Instead, she argues that the failure is harmless because
the Secretary should have known that she would rely on Ms. Hetrick because of a
line of questioning in Ms. Hickox’s deposition. (Doc. 81, p. 3). Ms. Lane’s
argument rests on the following excerpt from Ms. Hickox’s deposition:
Q.

Do you recall a person by the name of Kara Hetrick?

A.

Yes. She used to work for me.

Q.
Do you recall her requesting to be off work and not submitting
the approved forms that you’re talking about in advance of being off
work?
Mr. Saxon: Object to the form.
A.

No, I don’t. I mean, I’ve had 40, 50 employees since this.

Q.
And if she were to say that was routine or customary within the
office that you supervised; that persons would request leave, be
approved, and fill out the paperwork afterwards, and she was saying
that, would you agree with that or not?
Mr. Saxon: Object to the form.
A.
The policy is as stated here. When you request annual leave in
advance, you submit your form before you leave. And specifically,
Linda stood at my desk, and I asked her the question. She said -- I said,
Linda, if you’re still planning on going to see your father, you need to
fill out a leave form.
Q.
Right. And what I’m asking you about is particularly Kara
Hetrick and other employees who may have requested annual leave,
didn’t fill out the forms that you suggest are required, and then did it
after the fact.
21

Do you recall those instances?
A.
I don’t recall any. It might have been an emergency that
somebody had, like, a flat tire or car wreck or something like that.
(Doc. 74-4, pp. 4-5). Ms. Lane argues that “[b]ased on this line of questioning in
Hickox’s deposition, [the Secretary] was certainly aware that [Ms. Lane] intended
to rely on Hetrick’s testimony. In fact, the above quoted line of questioning
specifically mirrors Hetrick’s statements which [the Secretary] seeks to strike.”
(Doc. 81, p. 5).
If the questions during Ms. Hickox’s deposition were sufficient to notify the
Secretary that Ms. Hetrick might be a witness in this case so as to satisfy Rule
37(c)(1)’s harmless standard (an issue that the Court does not decide), the unsworn
letter and affidavit are not sufficient to constitute summary judgment evidence.
Giving Ms. Lane every benefit of the doubt, if the Court were to read the letter and
the “affidavit” together and treat them in combination as a declaration, the
information in the purported declaration would not be admissible because neither
the letter nor the “affidavit” indicates that Ms. Hetrick provides the information in
those documents “under penalty of perjury.” 28 U.S.C. § 1746. Therefore, Ms. Lane
may not rely on the unsworn information. See generally Nawab v. Unifund CCR
Partners, 553 Fed. Appx. 856, 861-62 (11th Cir. 2013) (citing Gordon v. Watson,
622 F.2d 120, 123 (5th Cir. 1980), and stating that litigants may not use unsworn

22

materials to oppose a motion for summary judgment). 4
Accordingly, the Court sustains the Secretary’s objection and disregards Doc.
74-36 for purposes of resolving the Secretary’s motion for summary judgment.
Discrimination and Retaliation
1.

Disability Discrimination Under § 504 of the Rehabilitation Act

Ms. Lane asserts her disability discrimination claim against the Secretary of
Defense under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. (Doc. 51, p. 12-13
¶ 86-91). Section 504 provides that:
No otherwise qualified individual with a disability in the United States
... shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination 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.
29 U.S.C. § 794(a). The Secretary contends that Ms. Lane is not entitled to a jury
trial or compensatory damages for her Rehabilitation Act claim. (Doc. 69, p. 64).
The Court agrees.
Absent waiver, sovereign immunity shields agencies of the federal
government from claims for damages. FDIC v. Meyer, 510 U.S. 471, 475 (1994).
Waiver must be unequivocally expressed in statutory text and will not be implied.

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
23

United States v. Nordic Village, Inc., 503 U.S. 30, 33–34, 37 (1992). A statute’s
legislative history may not supply a waiver that is not unequivocally expressed in
the statutory text. Nordic Village, 503 U.S. at 37. When confronted with a purported
waiver of sovereign immunity, ambiguities must be construed in favor of immunity.
United States v. Williams, 514 U.S. 527, 531 (1995).
There is no such unequivocal waiver of sovereign immunity under § 504 of
the Rehabilitation Act. Section 505(a)(2) of the Rehabilitation Act states that: “The
remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964
. . . shall be available to any person aggrieved by any act or failure to act by any
recipient of Federal assistance or Federal provider of such assistance under [§ 504].”
29 U.S.C. § 794a(a)(2). Although a Title VI plaintiff may recover monetary
damages, the United States Supreme Court has held that the reference in § 505(a)(2)
to the remedies available under Title VI does not constitute an unequivocal waiver
of sovereign immunity. Lane v. Pena, 518 U.S. 187, 191 (1996). The Supreme
Court stated: “[t]he clarity of expression necessary to establish a waiver of the
Government’s sovereign immunity against monetary damages for violations of § 504
is lacking in the text of the relevant provisions.” 518 U.S. at 192.
Ms. Lane argues that she should be entitled to a jury trial and compensatory
damages under Liese v. Indian River County Hospital District, 701 F.3d 334, 342
(11th Cir. 2012). The defendant in that case was a county hospital, not an executive
24

agency of the federal government. Here, the parties agree that the Department of
Defense is a “United States Federal entity.” (Doc. 48, p. 2). As such, Ms. Lane may
not recover damages from the Secretary for her disability discrimination claim under
§ 504 of the Rehabilitation Act. Therefore, the Court enters judgment in favor of
the Secretary with respect to Ms. Lane’s claim for damages (compensatory and
punitive) under § 504 of the Rehabilitation Act.
The Court has questions concerning Ms. Lane’s § 504 claim as it pertains to
her requests for declaratory and injunctive relief and her request for reinstatement.
The Court will set a telephone conference to discuss this aspect of Ms. Lane’s claim
under the Rehabilitation Act.
2.

Retaliation Under Title VII

Title VII prohibits employers from retaliating against an employee “because
he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge . . . under [Title VII].” 42 U.S.C. § 2000e-3(a). A
plaintiff may use the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981), to establish a retaliation claim. Furcron v. Mail Centers Plus,
LLC, 843 F.3d 1295, 1310 (11th Cir. 2016) (citations omitted). “To establish a prima
facie case of retaliation under Title VII, ‘the plaintiff must show (1) that she engaged
in statutorily protected expression; (2) that she suffered an adverse employment
25

action; and (3) that there is some causal relation between the two events.” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (quoting Meeks v.
Comput. Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994)). “Only after the plaintiff
makes this prima facie case of discriminatory retaliation does the burden shift to the
defendant to rebut the presumption of retaliation by producing legitimate reasons for
the adverse employment action.” Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir.
2006).
Here, it is undisputed that Ms. Lane engaged in protected expression by filing
her first EEO complaint, and she suffered adverse employment actions with respect
to her 14-day suspension and her removal from federal service. 5 Ms. Lane’s
retaliation claim falls short with respect to the causal relation prong of her prima
facie case.
The evidence in the record indicates that Ms. Hickox and others discussed
taking action against Ms. Lane well before Ms. Lane filed her first EEO action. In
an email dated September 10, 2012, Ms. Hickox wrote that although Ms. Lane had
performed satisfactorily for one year, “it seems she is starting a downhill slide, and
I can’t figure it out. There is a concern that she is unstable, and I would agree with
that, though I am not a therapist . . . I think this needs to be documented with DOH

5

Ms. Lane also suffered a three-day suspension in October 2013.
26

too.” (Doc. 74-35, p. 1). Ms. Lane attests that before a meeting in November 2012
to discuss her request for accommodations, Ms. Hickox “encouraged [Ms. Lane] to
leave MDA.” (Doc. 74-12, p. 2). Ms. Lane asserts that Duane Keller witnessed Ms.
Hickox’s remark. (Doc. 74-12, p. 2). In December 2012, Ms. Hickox reported a
“new incident with Linda Lane” and stated that “Linda’s issues are spreading to the
program office.” (Doc. 74-34). Ms. Hickox asked MDA to consider moving Ms.
Lane to another office because “if Linda faces any type of conflict in the office, we’ll
continually be addressing it as an EEO complaint.” (Doc. 74-34). More than a year
earlier, on October 4, 2011, Ms. Thornton’s predecessor, Barney Klehman, copied
Ms. Hickox on an email in which Mr. Klehman stated:
We need a meeting with DOH and GC to determine a path ahead.
Either [Ms. Lane] is mentally ill (which I think is a definite possibility),
or she is trying to manipulate the system. . . . We need to start the
official documentation trail; at this point there is no longer any reason
to try to help this employee, and we need to be prepared for a long and
arduous process leading to separation.

(Doc. 74-49, p. 1).
In Drago, the Eleventh Circuit Court of Appeals held that “in a retaliation
case, when an employer contemplates an adverse employment action before an
employee engages in protected activity, temporal proximity between the protected
activity and the subsequent adverse employment action does not suffice to show
causation.” Drago, 453 F.3d at 1308. Mr. Drago could not “present a jury question
27

regarding causation because the record evidence [was] so overwhelming” that his
employer “contemplated demoting him before he ever complained that [his
employer] was interfering with his FMLA rights.” 453 F.3d at 1308. The record
demonstrated that months before Mr. Drago took FMLA leave, his employer
“considered demoting Drago for performance-related reasons.” 453 F.3d at 1308.
The same is true here. Pre-EEO complaint, the reasons stated for moving Ms.
Lane to another department or terminating her federal service seem to concern both
performance and mental health issues, but at bottom, well before Ms. Lane filed her
first EEO complaint, Ms. Hickox and Ms. Lane’s other supervisors were engaged in
efforts to remove her from her position as a contracting specialist for MDA. Under
Drago then, Ms. Lane cannot establish the causation element of her prima facie case
of retaliation. Therefore, the Court will enter judgment for the Secretary on Ms.
Lane’s Title VII retaliation claim.
IV.

CONCLUSION

For the reasons discussed above, the Court enters judgment in favor of the
Secretary with respect to Ms. Lane’s claim for damages (compensatory and punitive)
under § 504 of the Rehabilitation Act and with respect to Ms. Lane’s Title VII
retaliation claim. The Court sets this matter for a telephone conference at 1:30 on
October 1, 2019. By separate order, the Court will provide call information.

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DONE and ORDERED this September 30, 2019.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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