Burns v. Nielsen

Decision Date28 January 2020
Docket NumberEP-17-CV-00264-DCG
Citation456 F.Supp.3d 807
Parties Joseph L. BURNS, Plaintiff, v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, Defendant.
CourtU.S. District Court — Western District of Texas


Presently before the Court is Defendant Chad F. Wolf's1 ("Secretary") "Motion for Summary Judgment" (ECF No. 22), as substituted by his "Substituted Motion for Summary Judgment" (ECF No. 31). Also, before the Court is United States Magistrate Judge Anne T. Berton's Report and Recommendation (ECF No. 40) ("R&R") on the Secretary's motion. For the reasons that follow, the Court ACCEPTS IN PART and REJECTS IN PART the magistrate judge's R&R, and it GRANTS IN PART and DENIES IN PART the Secretary's motion.

A. Factual Background2

Plaintiff Joseph L. Burns is a Field Technology Officer ("FTO") Telecommunications Specialist who began working for the United States Customs and Border Protection ("CBP") on August 12, 2012.3 As an FTO, Plaintiff is responsible for maintaining sensors and sensor repeaters, and assisting with other radio and video systems ("RVS").4 FTO job duties include climbing tall ladders, RVS poles, water and radio towers.5 FTOs receive "hazard pay" (additional 25% of base pay) for each day their duties require them to climb a tower.6 When FTOs climb towers, they do so in teams of two; one of the duties of a tower climber is to rescue his partner in the event something happens to the partner.7

Burns has suffered from migraines since 1998 and from lumber spine puncture with back pain since 2002.8 Throughout his employment with CBP, Burns has been capable of performing his job as an FTO, has not had any safety issues, and has never sought a reasonable accommodation.9

Marcus Yrrobali is Burns's current supervisor, and Richard Apodaca was his prior supervisor.10 Prior to becoming Burns's supervisor in December 2015, Yrrobali was an FTO and Burns's colleague.11 During Yrrobali's transition

into his role as supervisor, Apodaca informed Yrrobali that some of Burns's co-workers had some concerns about Burns's migraine headaches.12 Prior to Yrrobali's transition, Apodaca and Yrrobali each knew that Burns suffered from migraine headaches.13 According to Apodaca, the co-workers' safety concerns were brought to his attention by his then secretary, Jeanie Molinar.14 Molinar, who has since retired, disputes Apodaca's account.15 Yrrobali did not confirm with Molinar or any other employee about who had raised the concerns.16 None of Burns's RVS team members stated that they ever reported any concerns to Apodaca or Molinar regarding Burns.17

Yrrobali sought guidance from his supervisor, Victor Fernandez, on how to address the safety concerns Apodaca brought to his attention.18 Fernandez directed Yrrobali to seek guidance from Maria Benn with CBP's Labor and Employee Relations (LER).19 LER specialists, such as Benn, are the human resource specialist for CBP.20

On March 14, 2016, Yrrobali sent an email to Benn regarding his safety concerns, and those Apodaca brought to his attention, about Burns ("March 14, 2016 email").21 The parties dispute whether some of Yrrobali's statements in the email are false and the sources wherefrom Yrrobali implicitly claimed to have learned the information he provides in the email about Burns. In response, Benn advised Yrrobali to prohibit Burns from climbing until Burns provided medical documentation regarding his medical conditions and medications.22

On April 6, 2016, Yrrobali issued a letter to Burns (hereinafter, the first letter or April 6, 2016 letter), restricting him from climbing until Burns submitted medical documentation from his physicians.23 The letter asked Burns's physician to provide a litany of information on, inter alia , diagnosis of Burns's conditions and impairments, the impact they were having on his life activities, and whether he was "a danger to yourself or others."24 The stated purpose of the letter was to evaluate Burns's ability to perform the hazardous duty portion (tower climbing) of your official duties of a telecommunications specialist.25

On April 27, 2016, Burns provided Yrrobali a letter from Dr. Robbie Rampy.26 In his letter, Dr. Rampy's stated that Burns has chronic migraine headaches and degenerative disc disease

of the lumbar spine. He stated: "Some of his medications can cause drowsiness[,] and it is not recommended that he climb a tower when he is drowsy." In addition, Rampy stated that while Burns did not appear to be a danger to himself or others, but because Rampy is not a behavioral health specialist, he could not comment, without resorting to speculation.

LER forwarded Dr. Rampy's letter to CBP's Medical Fitness Branch (MBF), which, upon review, informed Benn on May 5, 2016, that the letter was inadequate to determine if Burns could safely resume his hazardous duties and further recommended a request for additional information while continuing to restrict Burns to nonhazardous duties.27 On August 22, 2016, Yrrobali issued a second letter to Burns (hereinafter, the second letter or August 22, 2016 letter), informing Burns that Dr. Rampy's letter was insufficient and requesting additional medical information.28 The letter requested description of Burns's current medical status and use of sedating medications; and an opinion on whether his medical conditions and medications are likely to impede his ability to engage in hazardous activities, such as climbing heights, crouching/crawling, and so on.

After receiving the second letter, Burns sought informal Equal Employment Opportunity (EEO) counseling in late August 2016.29 In early September 2016, Burns and Yrrobali discussed the possibility of Burns continuing to inform his team when he could not climb, as he had done since 2012, as a possible resolution to the ongoing requests for medical documentation.30 The parties dispute whether Burns also suggested that he inform Yrrobali when he has taken his medications and could not climb.31

On September 14, 2016, after consultation with Benn and Fernandez, Yrrobali served Burns a third letter (hereinafter, the third letter or September 14, 2016 letter), rescinding the second letter's requests for additional medical documentation. It instead prohibited Burns from climbing when he has taken the prescribed medications Dr. Rampy referenced in his letter.32 It further instructed Burns to immediately notify his supervisor when he has taken such medications.

On September 22, 2016, CBP notified Burns of the conclusion of the EEO counseling and his right to file an EEO complaint.33 On September 30, 2016, Burns filed a formal EEO complaint of discrimination.34 On May 26, 2017, the Department of Homeland Security's Office for Civil Rights and Civil Liberties issued its Final Agency Decision on his administrative complaint.35

B. Procedural Background

On August 24, 2017, Burns brought the instant lawsuit against the Secretary. In his judicial complaint, he alleges that the CBP violated § 501 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791, "by harassing and requiring Burns to provide medical documentation based on a disability while other 0391 Telecommunications Specialist are not required to provide medical documentation." Compl. ¶ 12, ECF No. 1.

On April 4, 2019, the Secretary filed his "Motion for Summary Judgment," seeking summary judgment on all of Burns's claims, and on May 31, 2019, the Secretary filed his "Substituted Motion for Summary Judgment." The briefing on the motion was completed on June 21, 2019. In July 2019, the Court referred the Secretary's motion to United States Magistrate Judge Anne T. Berton for a report and recommendation to the Court pursuant to 28 U.S.C. § 636(b)(1)(B). In August 2019, the magistrate judge issued her R&R, wherein, she recommended that the Secretary's motion be granted in part and denied in part. In September 2019, the Secretary filed his written objections to the R&R. Def.'s Objs. to R&R, ECF No. 43. Burns did not file any objection to the R&R.

A. Standard for Reviewing Report and Recommendations

When a party files timely written objections to a magistrate judge's report and recommendation, the district judge must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b)(3) ; United States v. Raddatz , 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ("[I]n providing for a de novo determination,’ rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations."). After completing its review of the report, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b)(3).

As to other portions—that is, the unobjected-to portions—of the magistrate judge's report or when a party does not file written objections, the district judge applies a "clearly erroneous, abuse of discretion and contrary to law" standard of review. United States v. Wilson , 864 F.2d 1219, 1221 (5th Cir. 1989). A finding "is clearly erroneous if the court ‘is left with the definite and firm conviction that a mistake has been committed.’ " Alphonse v. Arch Bay Holdings, L.L.C. , 618 F. App'x 765, 768 (5th Cir. 2015) (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ).

B. Standard for Summary Judgment

Summary judgment is appropriate when "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). "A genuine dispute of fact exists when evidence is sufficient for a...

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4 cases
  • Burns v. Nielsen
    • United States
    • U.S. District Court — Western District of Texas
    • December 8, 2020
    ...claims, but allowed his disability discrimination and improper medical inquiry claims to proceed to trial. Burns v. Nielsen , 456 F. Supp. 3d 807, 831 (W.D. Tex. 2020).Following jury selection on February 3, 2020, the liability phase of the trial began on February 4 and concluded on Februar......
  • Burns v. Nielsen
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    • U.S. District Court — Western District of Texas
    • February 12, 2021
    ...claim; the Court allowed Burns's disability discrimination and improper medical inquiry claims to proceed to trial. Burns v. Nielsen, 456 F. Supp. 3d 807, 831 (W.D. Tex. 2020) (hereinafter, Burns MSJ Op.). Following jury selection on February 3, 2020, the liability phase of the trial began ......
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    ... 456 F.Supp.3d 795 SCOTTSDALE INSURANCE COMPANY v. ALL CITIZENS TRANSPORTATION, LLC, et al. v. Burns & Wilcox of Texas, Inc., et al. CIVIL NO. 4:19-CV-010-SDJ United States District Court, E.D. Texas, Sherman Division. Signed April 24, 2020 456 ... ...
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    ... ... that these accusations were fabricated”) ... [ 27 ] See, e.g. , Burns v ... Nielsen , 456 F.Supp. 3d 807, 829 (W.D. Tex. 2020) ... (finding a fact dispute as to the employer’s good faith ... ...

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