Bond v. Whitley
| Decision Date | 18 May 2021 |
| Docket Number | Case No. 20-CV-00594-GKF-SH |
| Parties | CRYSTAL BOND, Plaintiff, v. JOHN E. WHITLEY, Acting Secretary of the Army, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
This matter comes before the court on the Motion to Dismiss [Doc. 11] of defendant John E. Whitley, Acting Secretary of the Army.1 For the reasons set forth below, the motion is granted in part and denied in part.
The Amended Complaint, the operative pleading, includes the following allegations:
Plaintiff Crystal Bond was hired by the Department of the Army—specifically, the Army Corps of Engineers—on January 18, 2010 in the position of cartographer, GS-1370-11. [Doc. 5, pp. 2-3, ¶¶ 4, 8]. Thereafter, Ms. Bond worked for the Army as a full-time employee in Tulsa, Oklahoma. [Id. at p. 3, ¶¶ 9-10]. Ms. Bond's annual performance evaluations all reflected that Ms. Bond met or exceeded the standards of her professional position, and she received periodic regular annual increases on work in 2011, 2012, 2013, 2014, 2015, 2016, 2017, and 2018. [Id. ¶ 11].
In 2017, Ms. Bond took a volunteer assignment to Puerto Rico in the aftermath of Hurricane Maria. [Id. ¶¶ 9, 12]. Ms. Bond reported to work in Puerto Rico on December 16, 2017 and was required to work thirty-one consecutive days. Ms. Bond requested, and was granted, two days of sick leave. [Id. at p. 4, ¶ 14].
On December 25, 2017, while on duty in Puerto Rico, Ms. Bond suddenly suffered a major panic attack while in the San Juan Airport. With the aid of another Army Corps of Engineers employee, Ms. Bond was able to stabilize and continued on to her work station at Ceiba Area Office, Fajardo, Puerto Rico. [Id. at p. 3, ¶ 12]. Ms. Bond alleges that several other traumatic incidents occurred after this, until she finally curtailed her deployment on January 30, 2018. [Id.]. Ms. Bond returned to Tulsa, Oklahoma on February 2, 2018 and took one week of annual leave. [Id. at p. 4, ¶ 15].
Ms. Bond returned to her employment with the Army on February 14, 2018, but still did not feel well and sought medical assistance on February 16, 2018. [Id. ¶ 16]. Ms. Bond's physician made a diagnosis of post-traumatic stress disorder (PTSD)/anxiety and depression and ordered Ms. Bond to "immediately curtail all employment duties and to not commute in heavy traffic." [Id.].
Ms. Bond subsequently sought a workplace accommodation from her supervisor, Dan Hernandez. Ms. Bond provided medical documentation to Mr. Hernandez. However, Mr. Hernandez denied Ms. Bond's request for accommodation and "did not enter into any interactive process with [Ms. Bond] to learn details of [her] condition and to fashion a workplace accommodation for [her]." [Id. ¶ 17]. Ms. Bond then applied for family medical leave, which the Army limited to a period of four weeks. [Id. ¶ 18].
On March 2, 2018, Ms. Bond provided the Army a written medical report from Lisa Cragar, MS, LPC, and John Fell, D.O., that documented Ms. Bond's disability and medical condition, aswell as that Ms. Bond suffered from PTSD and anxiety. [Id.]. However, Ms. Bond alleges that the Army again "failed and refused to engage in any interactive process," and, instead, forced her to take an additional four weeks of family medical leave. [Id. at p. 5, ¶ 19].
At the conclusion of the second four-week family medical leave, Ms. Bond alleges the Army again refused to engage in any interactive process with her in regard to work place accommodations. Instead, the Army allegedly forced Ms. Bond to take a third four-week period of family medical leave. [Id. ¶ 20].
In May of 2018, at the conclusion of the twelve-weeks of family medical leave allowed by law, Ms. Bond requested to be allowed to telework from her home. Ms. Bond asserts that she had teleworked in the past with good results prior to her deployment to Puerto Rico, and had, at her own expense, fully set up her home with high speed, fiber-optic internet, office space, necessary equipment, and her Army Corps of Engineers laptop. Ms. Bond alleges that other employees in the Army's Tulsa, Oklahoma office were already allowed to telework. [Id. ¶ 21]. The Army refused Ms. Bond's request to telework, claiming "the GIS Department is new, so no GIS employees can telework." [Id. ¶¶ 22-23]. However, the Army did not claim any specific undue hardship posed by Ms. Bond's request for workplace accommodation. Nor did the Army offer any explanation as to why Ms. Bond was allowed to telework before she was disabled but not permitted to telework after she was disabled. [Id. at pp. 5-6, ¶ 23].
Ms. Bond alleges that she made two more subsequent requests to be allowed to telework, but the Army denied all subsequent requests. The Army did not attempt to engage in any interactive process to explore reasonable accommodations. Its refusal to do so allegedly harmed Ms. Bond and interfered with the Tulsa District GIS mission. [Id. at p. 6, ¶ 24].
On June 13, 2018, Ms. Bond received an email from Catherine Rhodes, HR specialist, advising Ms. Bond to apply for disability retirement. The next day, June 14, 2018, Ms. Bond forwarded Ms. Rhodes's email to Mr. Hernandez and informed him of her intent to apply for disability retirement. [Id. ¶ 25]. Nevertheless, on June 15, 2018, the Army sent Ms. Bond a letter, via certified mail, return receipt requested, ordering Ms. Bond to immediately return to work or be reported AWOL under Army Regulation 630-10. However, Ms. Bond had not yet been released by her physician to drive or return to work. At the time, Ms. Bond had open disability and workers compensation claims. [Id. at pp. 6-7, ¶¶ 26-28].
Thereafter, the Army sent out a series of emails, memoranda, and letters by certified mail, return receipt requested to Ms. Bond, all of which demanded that she immediately return to work or be reported as AWOL and be subject to disciplinary action to include discharge. Again, Ms. Bond alleges the Army did not offer to engage in any interactive process with Ms. Bond to explore workplace accommodations, nor did the Army make any specific claim of undue hardship posed by her request for accommodation. [Id. at p. 7, ¶ 29].
Without any specific notice, on January 31, 2019, the Army issued to Ms. Bond a Notice of Proposed Removal signed by Ashley Allinder, PE, PMP, Deputy Chief, Engineering and Construction Division. [Id. ¶ 30]. On March 12, 2019, the Army issued to Ms. Bond a Notice of Removal signed by Richard T. Childers, PE, LTC, EN, Deputy Commander. [Id. at p. 8, ¶ 31].
Immediately following the Army's removal of Ms. Bond's employment, Ms. Bond alleges that the Army failed and refused to process the normal and necessary exit documents and to provide those exit documents to the U.S. Office of Personnel Management (OMP) to allow OMP to reinstate Ms. Bond's Blue Cross Blue Shield medical insurance. [Id. ¶ 32]. Ms. Bond made several inquiries with, and requests of, the Army's Human Resource Representative Duane Braxton in aneffort to get her medical insurance reinstated, but the Army again failed to provide normal exit documents to OPM to allow OPM to reinstate the insurance. [Id. ¶ 33].
Ms. Bond asserts that the Army's "unlawful interference with [Ms. Bond's] protected rights" exacerbated her medical conditions in that it was essential for her to obtain immediate psychiatric treatment or she would suffer permanent affects from PTSD, and the Army had been informed of same. Ms. Bond states that the cancellation of her medical insurance prevented her from obtaining the immediate medical care needed to prevent long term deleterious effects. [Id. ¶ 35]. Ms. Bond states that from March 2019 to December 2019, she was deprived of her "retirement benefit of medical insurance from Blue Cross Blue Shield free of any additional premium payment, charge, or fee." [Id. at p. 9, ¶ 36]. During that nine-month period, Ms. Bond alleges she was forced to live without medical insurance coverage. The medical insurance coverage was belatedly reinstated, but Ms. Bond had to pay a premium in excess of $3,000.00 to cover the time when her medical insurance was not in effect. [Id.].
Based on these factual allegations, the Amended Complaint includes five causes of action: (1) violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; (2) prohibited personnel practices in violation of 5 U.S.C. § 2302; (3) violation of Rehabilitation Act, 29 U.S.C. § 791 et seq.; (4) unlawful discrimination based on sex or gender, 42 U.S.C. § 2000e-2(a) (Title VII); and (5) interference with protected rights in violation of 29 U.S.C. § 1140. [Doc. 5]. The Army now moves to dismiss the Amended Complaint in its entirety. [Doc. 11]. Ms. Bond filed a response in opposition [Doc. 12], and the Army filed a reply. [Doc. 13]. Thus, the motion is ripe for the court's determination.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief can be granted. A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the conduct necessary to make out the claim. Id. at 556. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court "must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th...
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