Hodges v. Attorney Gen. of the United States

• Decision Date: 30 September 2013
• Docket Number: No. 11 Civ. 7735(RJS).,11 Civ. 7735(RJS).
• Parties: Jerry HODGES, Plaintiff, v. ATTORNEY GENERAL OF the UNITED STATES, Defendant.
• Court: U.S. District Court — Southern District of New York

976 F.Supp.2d 480

Jerry HODGES, Plaintiff,

v.ATTORNEY GENERAL OF the UNITED STATES, Defendant.

No. 11 Civ. 7735(RJS).

United States District Court,

S.D. New York.

Sept. 30, 2013.

Jerry Hodges, pro se.

Assistant United States Attorney Alicia M. Simmons, New York, NY, for Defendant.

Memorandum and Order

RICHARD J. SULLIVAN, District Judge.

Jerry Hodges (“Plaintiff”), a correctional officer at the Metropolitan Correctional Center in Manhattan (“MCC”), brings claims against his employer, the United States Bureau of Prisons (“BOP” or “Defendant”), for disability discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the regulations relating thereto. ¹ Now before the Court is Defendant's motion for summary judgment against Plaintiff on all claims. For the reasons set forth below and stated on the record following oral argument on September 23, 2013, the Court grants Defendant's motion in its entirety.

I. Background

A. Facts

Plaintiff began working for the BOP in 1993 as a correctional officer at the MCC.²(Defendant's 56.1 Statement, Doc. No. 19 (“Def. 56.1”), ¶ 1.) In 1996, Plaintiff was promoted to the position of Senior Officer Specialist (“SOS”). ( Id. ¶ 2.) The BOP requires that individuals holding such a position “be physically able and medically qualified to perform correctional work safely and successfully.” ( Id. ¶ 5.) The “Position Description” for such employees states that an SOS is responsible for “perform[ing] the full range of duties and responsibilities for detention, correctional supervision, protection, control and accountability of inmates.” (Decl. of Alicia M. Simmons, dated Oct. 18, 2012, Doc. No. 18 (“Simmons Decl.”), Ex. B (“Position Description”) at 377 ³.) The Position Statement further provides that an SOS “[i]s subject to being in such hostile or life-threatening situations as riots, assaults and escape attempts.” ( Id.)

In September 2000, Plaintiff injured his ankle while responding to an emergency call, or a “body alarm,” that occurred within the MCC. (Def. 56.1 ¶ 7.) In April 2002, Plaintiff underwent surgery on his ankle. ( Id. ¶ 8.) After the surgery, Plaintiff's doctor imposed work restrictions prohibiting him from walking on uneven surfaces or climbing stairs, standing over a certain length of time, and pushing, pulling, or lifting objects over a certain weight. ( Id. ¶ 9.) Plaintiff returned to work in 2003 as an SOS and was given a temporary modified assignment, or “TAD,” that placed him on “phone assignment” in the third floor communications room and relieved him of any duty to respond to inmate emergencies. ( Id. ¶¶ 10, 11.)

Plaintiff left this TAD in January 2006 to undergo a second surgical procedure on his ankle. ( Id. ¶ 12.) In or around October 2006, Plaintiff sought to return to work in his previous position as phone monitor but was told by the warden that no positions were available. (Simmons Decl., Ex. A (“Hodges Dep.”) ⁴ at 50:12–22.) On January 17, 2007, Plaintiff filed his first EEO complaint (“2007 EEO Complaint”) against Defendant (Def. 56.1 ¶ 14), alleging that BOP failed to provide him with a reasonable accommodation for his ankle injury (Simmons Decl., Ex. G (“2009 Lawsuit Summary Judgment Hr'g Tr.”) at 12:18–21). On February 24, 2009, Plaintiff then filed a complaint against Defendant in the Southern District of New York ( Case No. 09 Civ. 1776(RJS)(GWG) (the “2009 Lawsuit”)) alleging that Defendant discriminated and retaliated against him in violation of the Rehabilitation Act. ( See Simmons Decl., Ex. F (“2009 Lawsuit ECF Docket Sheet”) at Doc. No. 2; 2009 Lawsuit Summary Judgment Hr'g Tr. at 9:5–11.) Thereafter, the parties consented to have the Honorable Gabriel Gorenstein, Magistrate Judge, preside over all phases of the case. ( See 2009 Lawsuit ECF Docket Sheet at Doc. No. 19.)

On December 7, 2009, while the litigation before Judge Gorenstein was proceeding, an independent medical examiner from the Department of Labor's Office of Worker's Compensation Program (“OWCP”), Dr. Jeffrey Meyer, lifted Plaintiff's medical restrictions and declared that Plaintiff was capable of performing “all duties of a Correction Officer.” (Def. 56.1 ¶ 15.) The BOP subsequently ordered Plaintiff to report to duty in a letter dated February 3, 2010. ( Id. ¶ 16; Simmons Decl., Ex. I (“Feb. 2010 BOP Letter”).) After receiving the BOP's letter, Plaintiff informed the BOP and OWCP that he would first visit his personal physician, Dr. John Feder (“Feder”), in order to “get his approval to return to work.” (Def. 56.1 ¶ 17.) Plaintiff then provided the BOP with a note from Feder, dated February 11, 2010, stating that Plaintiff could only return to work with “restrictions”—specifically, Feder indicated that Plaintiff “may not lift, push or pull over 150 [pounds], no climbing stairs or ladder, no standing more than 4 hours.” ( Id. ¶¶ 18–19; Simmons Deck, Ex. K (“Feder Note”).) Feder's letter did not indicate that these restrictions were only for a specified duration or that they would expire at some point in the future. (Feder Note.)

After receiving the Feder Note, Defendant placed Plaintiff in a TAD as a phone monitor in the first floor communications room, where he was not required to respond to inmate emergencies. (Def. 56.1 ¶ 20.) Every three months thereafter, up through July 2011, Plaintiff submitted a request, or bid, for placement in a different post, including in the third floor communications room. ( Id. ¶ 22.⁵) According to Plaintiff, these posts were to be assigned on the basis of seniority and he was among the most senior employees. (Plaintiffs 56.1 Statement, Doc. No. 29 (“Pl. 56.1”), ¶¶ 33, 36–37.) Nevertheless, while there is some discrepancy as to whether Plaintiff's union or Defendant made the decision, the parties agree that Plaintiff's bid was never granted. ( Id. ¶ 23; Def. 56.1 ¶ 23.)

While Plaintiff was working in his TAD assignment, Defendant asked Plaintiff to provide updated information as to his physical condition and his ability to perform the job duties of an SOS, and Feder provided several responses with varying sets of restrictions, including as to whether Plaintiff was able to climb stairs. ( See Simmons Decl., Ex. L (“Sept. 2010 BOP Letter”).) ⁶ For instance, on May 4, 2010, Feder sent documentation to Defendant maintaining that Plaintiff should engage in “no repetitive stair climbing” and no “stand [ing] for longer than four (4) hours.” ( Id.) On June 4, 2010, Feder stated that Plaintiffs restrictions included “no standing” and no walking for over four hours. ( Id.) Then, on August 10, 2010, Feder submitted another letter to the BOP permitting Plaintiff to attend firearms recertification as his “current orthopedic condition” did not preclude this. ( Id.)

In response to these shifting requirements, Defendant sent a letter to Plaintiff, dated September 3, 2010, requesting that he submit documentation from Feder clarifying this “fluctuation of medical restrictions.” ( Id.) Feder thereafter submitted a note, dated October 5, 2010, stating that Plaintiff was unable to perform his full range of duties, including repetitive stair climbing. ( See Hodges Decl., Ex. 6 (“Merit Systems Protection Board Decision” or “MSPB Decision”) at 6.) In a letter dated November 10, 2010, Defendant responded that every MCC employee must be able to respond to emergencies and noted Plaintiff's inability to do so; accordingly, Defendant provided Plaintiff with a request for reasonable accommodation form. ( Id.) Plaintiff submitted the form, writing that he “does not agree with the agenc[y's] position but, [he is] interested in [a] reasonable accommodation.” ( Id.) On November 19, 2010, Defendant sent a response to Plaintiffs request for an accommodation stating that it would only search for non-law enforcement positions outside the MCC for Plaintiff. (Simmons Decl., Ex. O (“Request Form”).) ⁷ In the interim, Plaintiff continued to work at the TAD assignment in the first floor communications room.

On December 15, 2010, Plaintiff contacted an EEO counselor (Def. 56.1 ¶ 24) and thereafter, submitted a “Request for EEO Counseling” form (the “Request Form”), dated December 29, 2010, alleging that he had been discriminated against since returning to work. In the section where the Request Form prompts the employee to identify the basis for the alleged discrimination, Plaintiff checked the boxes for “Physical Disability” and “Reprisal.” (Request Form.) He then explained, “Since February 8th of this year I have been harassed in various forms, whether the harassment was subtle and at times blatant it is believed that it was retaliatory in nature.” ( Id.) When prompted to state the specific discriminatory actions taken against him and dates on which they occurred, Plaintiff provided a chronology of events over the preceding months, including the following instances: in October 2010, after Plaintiff went to assist with a “shakedown” requested by the warden, Lieutenant Flores gave Plaintiff a “[c]ounseling” or reprimand for going above the third floor; on November 19, 2010, he received a response to his reasonable accommodation request, stating that “Defendant will only look for non[-]law enforcement positions in Grand [P]rarie, or the regional and central offices,” which Plaintiff noted was “retaliatory as the agency was not following the reassignment process outlined in the reasonable accommodation section”; on December 8, 2010, Plaintiff was approached by a lieutenant, who informed him that another lieutenant was making inquiries into Plaintiff's schedule; and, on December 17, 2010, Plaintiff was given a counseling by Lieutenant Flores about responding to body alarms despite his not responding to a body alarm in several months. ( Id.)

On January 28, 2011, Plaintiff then filed a “Complaint of Discrimination,” or EEO complaint, with the BOP, which referenced his “[E...