Burns v. Nielsen

• Decision Date: 08 December 2020
• Docket Number: EP-17-CV-00264-DCG
• Citation: 506 F.Supp.3d 448
• Parties: Joseph L. BURNS, Plaintiff, v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — Western District of Texas

506 F.Supp.3d 448

Joseph L. BURNS, Plaintiff,

v.Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, Defendant.

EP-17-CV-00264-DCG

United States District Court, W.D. Texas, El Paso Division.

Signed December 8, 2020

Jonathan Lionel Ray Baeza, Raymond D. Martinez, Martinez & Martinez Law Firm, PLLC, El Paso, TX, for Plaintiff.

Eduardo R. Castillo, Manuel Romero, Western District of Texas, El Paso, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Presently before the Court is Defendant Chad F. Wolf's¹ ("Secretary") "Renewed Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial and Motion for Remittitur" (ECF No. 119), as supplemented by his "Supplemental Renewed Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial and Motion for Remittitur" (ECF No. 146).² Plaintiff Joseph L. Burns, who works for the U.S. Customs and Border Protection (Agency or CBP), brought this lawsuit against the Secretary for the Agency's violations of § 791 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791, and in turn, for violations of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12111 et seq. Burns's disability discrimination claims, 42 U.S.C. § 12112(a), and improper medical inquiry claim, 42 U.S.C. § 12112(d)(4), were tried to a jury. The jury found in Burns's favor on each claim and awarded him $125,000 in past noneconomic damages. After the Court entered final judgment in accordance with the jury verdict and the parties' stipulation on back pay, the Secretary filed the instant motion. For the reasons that follow, the Court DENIES IN MAJOR PART and GRANTS IN PART the Secretary's motion.

I. BACKGROUND

A. Factual Background

Burns suffers from chronic migraine headaches; he was first diagnosed with a migraine condition in 1998, while he was serving in the United States Air Force.³ In August 2012, he began working for the Agency's Office of Information Technology (OIT), West Texas Branch, and he continues to work there today.⁴ The branch maintains tactical communication, surveillance, and detection systems used by the Agency's law enforcement officers in the field and at various border patrol stations throughout the El Paso, Texas, area.⁵ Burns works as a Field Technology Officer (FTO), a telecommunications specialist position, at the branch's office in El Paso, Texas.⁶

As an FTO, Burns is responsible for maintaining and repairing motion sensors, sensor repeaters, and surveillance equipment, such as cameras, used by the Agency's radio and video surveillance systems (RVSS).⁷ Most of the time, he works is his office, but at times, he goes out in the field and climbs poles and towers that host sensors and RVSS equipment.⁸ FTOs, such as Burns, receive "hazard pay" for climbing towers at an additional 25% of their daily base pay.⁹ They climb towers in teams of two: typically, one remains on the ground, while the other climbs.¹⁰ One of the duties of a tower climber is to rescue his partner in the event something happens to the latter.¹¹ To perform tower climbing duties, an FTO must initially become certified as a climber and thereafter, be recertified annually by attending training classes, which are offered once each year.¹² Burns is a certified climber and has been recertified each year since he began working for the Agency, with the exception of the 2016–2017 period.¹³

Richard Apodaca was Burns's direct supervisor for some time until Markus Yrrobali was promoted to that position. Apodaca joined the Agency in 2012: initially, he was Burns's colleague, and in 2014, he became Burns's supervisor.¹⁴ In December 2015, Yrrobali took over from Apodaca and became Burns's supervisor.¹⁵ Before that, Yrrobali was an FTO and Burns's colleague; he occasionally climbed towers with Burns.¹⁶ Also before Yrrobali's promotion, both Apodaca and Yrrobali knew about Burns's migraine condition.¹⁷ Both testified that Burns never was involved in any climbing accident or unsafe practice.¹⁸

Apodaca testified that around January 2016 or shortly thereafter, Jean Molinar told him that the RVSS crew had a concern about Burns's climbing while having migraines, and Apodaca relayed that information to Yrrobali.¹⁹ At the time, Molinar was a "mission support specialist" with the OIT and worked in the same El Paso office where Apodaca, Yrrobali, and Burns work.²⁰ Molinar, whose deposition testimony was presented to the jury by a "reader," testified that she never told Apodaca about any report of safety concerns regarding Burns.²¹ She added that no one, including the RVSS team members, reported to her any safety concern about Burns.²²

Yrrobali testified that the information conveyed by Apodaca prompted him to seek out guidance from Victor Fernandez, an area manager in the OIT who oversees FTO supervisors, including Apodaca and Yrrobali, and Fernandez, in turn, directed Yrrobali to contact Maria Benn, a human resource specialist in the Agency's Labor and Employment Relations (LER) division.²³ According to Yrrobali and Benn, on or about March 11, 2020, the two briefly met during a training class in El Paso: Yrrobali told her that some employees had concerns about climbing towers with an employee who had migraines, and Benn asked Yrrobali to send her an email with specific and further information about the issue.²⁴

On March 14, 2016, Yrrobali sent Benn an email with a subject-line heading, "Medical issues that will affect an employee[']s pay (Restrictions at work for medical reasons)"; on the email, he copied Fernandez and Apodaca.²⁵ In the email, Yrrobali provided information about, inter alia , the circumstances of the safety concern and the effects Burns's chronic migraine condition has on his work (this information is discussed more fully later in this memorandum opinion and order).²⁶ At the time Yrrobali wrote this email, he had not spoken with Molinar, Burns, or any of the RVSS team members regarding the safety concern relayed to him by Apodaca.²⁷ At the conclusion of the email, Yrrobali asked Benn whether he should restrict Burns from climbing towers pending the receipt of a memo from Burns's doctors approving or disapproving his climbing; Yrrobali explained that the restriction would affect Burns's hazard-duty pay, "since [the OIT's] climbers receive 25% of their base pay extra for each day they climb."²⁸

Benn testified that because of the manner in which Yrrobali wrote the email, she got the impression that his statements in the email were based on his personal observations and first-hand knowledge, and that Yrrobali had conducted an investigation, including speaking with Burns and his coworkers who had safety concerns about Burns.²⁹ Based on Yrrobali's email, Benn recommended that Burns be requested to provide medical documentation from his doctors and be restricted from climbing duties pending his doctors' response.³⁰ She drafted a letter to that effect for Yrrobali to serve on Burns.³¹

On April 6, 2016, Yrrobali issued the letter to Burns.³² The letter requested Burns to submit "administratively acceptable medical documentation" from his physician providing, among other medical information, a diagnosis of Burns's conditions and any resulting impairments, an explanation of the impact his conditions were having on his life activities, and an opinion as to whether or not he was a danger to himself or others.³³ The stated purpose for requesting the medical information was "to evaluate [Burns's] ability to perform the hazardous duty portion (Tower Climbing) of [his] official duties of a Telecommunications Specialist."³⁴ Further, the letter instructed Burns to refrain from climbing towers pending response from his physician.³⁵

On April 27, 2016, Burns provided Benn and Yrrobali with a letter, dated April 26, 2016, from Dr. Robbie Rampy, a physician at the Department of Veterans Affairs.³⁶ In the letter, Dr. Rampy stated that Burns has chronic migraine headaches and degenerative disc disease

of the lumbar spine.³⁷ He opined that some of Burns's medications could cause drowsiness and recommended that Burns not climb a tower when he is drowsy.³⁸ He further opined that Burns did not appear to be a danger to himself or others, but added that because he is not a behavioral health specialist, he could not comment on this matter without resorting to speculation.³⁹

Benn determined that Dr. Rampy's letter was vague and should be forwarded to the nurses within the Agency's Medical Fitness Branch (MFB), so that they could determine whether it was acceptable.⁴⁰ On April 28, 2016, Benn emailed to Mary Thomas, an MFB nurse, Dr. Rampy's letter together with Yrrobali's March 14, 2016 email to Benn and his April 6, 2016 letter to Burns.⁴¹ In her email, Benn asked Thomas if Dr. Rampy's letter was acceptable and if Burns's case merits a fitness for duty evaluation.⁴² On May 5, 2016, Thomas responded that Dr. Rampy's letter was inadequate for purposes of determining whether Burns could safely resume his full range of duties.⁴³ Thomas recommended that Burns's management ask him to provide additional information from his physician and continue to limit him to non-hazardous duties pending clarification from his physician.⁴⁴ On July 7, 2016, Benn sent Yrrobali a second letter requesting medical documentation for Yrrobali to serve on Burns; Benn drafted that letter as well.⁴⁵

On August 18, 2016, Yrrobali attempted to serve Burns with the second letter, but Burns, according to Yrrobali's testimony, declined to sign the letter and thereby, to acknowledge its receipt because he felt uncomfortable.⁴⁶ Yrrobali ultimately served the letter on August 28, 2016.⁴⁷ The letter informed Burns that Dr. Rampy's letter was insufficient for purposes of determining whether he could resume his hazardous duties.⁴⁸ It instructed him to provide from his treating physician, among other information, "a brief description of [Burns's] current medical status and use...