Karlik v. Colvin

• Decision Date: 18 March 2014
• Docket Number: Case No. 12–cv–14879.
• Citation: 29 A.D. Cases 1477,15 F.Supp.3d 700
• Parties: Robert KARLIK, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

15 F.Supp.3d 700

29 A.D. Cases 1477

Robert KARLIK, Plaintiff

v.Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

Case No. 12–cv–14879.

United States District Court, E.D. Michigan, Southern Division.

Signed March 18, 2014.

Gony F. Goldberg, American Federation of Government Employees, Washington, DC, James M. Moore, Gregory, Moore, Detroit, MI, for Plaintiff.

Giel Stein, Social Security Administration, Chicago, IL, Laura A. Sagolla, U.S. Attorney's Office, Detroit, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [# 24] AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [# 25]

GERSHWIN A. DRAIN, District Judge.

I. INTRODUCTION

On November 1, 2012, Robert Karlik (“Plaintiff”) filed the instant action against his former employer, the Social Security Administration (“Defendant”), raising claims under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. Plaintiff asserts he has suffered his entire life from the learning and cognitive disabilities of dyslexia and Attention Deficit Hyperactivity Disorder (“ADHD”). Plaintiff held the position of Claims Representative Journeyman, GS 11, when Defendant terminated his employment in November of 2008. Plaintiff maintains that he is a qualified individual with a disability, Defendant failed to reasonably accommodate him, and terminated him based on his disabilities in violation of the law.

Presently before the Court are the following motions: Defendant's Motion for Summary Judgment, filed on December 20, 2013, and Plaintiff's Motion for Partial Summary Judgment, also filed on December 20, 2013. A hearing was held on the parties' present motions on March 5, 2014. At the hearing, the Court ordered the parties to supplement their briefing with employment discrimination cases specifically containing the diagnoses of dyslexia, ADHD, depression and low self esteem. The parties submitted supplemental memoranda on March 7, 2014. Upon consideration of the parties' briefing and oral arguments, the Court concludes that triable questions of material fact remain, therefore the Court will deny both parties' present motions.

II. FACTUAL BACKGROUND

Plaintiff began working for Defendant on July 13, 2003, as a Claims Representative Trainee in its Owosso, Michigan, field office. Kathie Young was Plaintiff's first-line supervisor, and she supervised him from 2003 through October of 2005. In July of 2005, with Young's approval, Plaintiff was promoted from a GS7 to a GS9 Claims Representative Trainee. In October of 2005, Jackie Hanson succeeded Young as Plaintiff's first-line supervisor in the Owosso office. From October of 2005 through December of 2006, Plaintiff received high productivity scores, however Plaintiff admits that Hanson confronted him about his workloads.

Plaintiff was eventually promoted to a Claims Representative Journeyman, GS 11. Defendant describes the Claims Representative position as a “keystone position” with the major objective of “bringing direct personal service to the public.” Journeymen Claims Representatives must be able to inform the public about Defendant's benefit programs and extend such benefits to them without the benefit of supervisory consultation in all but the most unusual cases. The position requires ongoing training and can take years to successfully master according to Young, a 30 year veteran employee, with 21 years of managerial experience of agency offices throughout the Midwest.

Hanson became ill and passed away and Romania became Plaintiff's first-line supervisor. Romania immediately identified the same performance issues supposedly identified by Hanson. Romania noticed that Plaintiff could not remember instructions from one day to the next. He also required a lot of assistance from his coworkers, frequently made errors in his work, and could not complete his assignments on time.

Romania issued Plaintiff a performance assessment that stressed his need to complete work “more quickly,” to try to solve his problems “through use of Policynet or other guides before going to a coworker or management for assistance,” “to become more proficient in all areas of SSI processing so that you only seek guidance on unusual and highly technical situations,” and “to become more proficient in processing redeterminations, limited issues, overpayments and offsets so that you only need guidance with unusual or highly complex cases.” Romania also commented on the severity of Plaintiff's work backlog. Tasked with scoring Plaintiff's performance, Romania gave him the lowest grade permissible for an employee who has not yet been placed on a formal improvement plan.

While Defendant maintains that Romania intended to put Plaintiff on a formal Performance Assistance Plan (“PAP”), but was transferred prior to doing so, Romania never discussed her purported intent to place Plaintiff on a PAP with Young, even though Young testified that she and Romania “discussed every employee because [Romania] was a supervisor.” Moreover, Young indicated that she would have remembered if Romania had suggested a PAP for Plaintiff since “that would have been a pretty serious discussion when we come to that. When it comes to that then we pull in the higher management .... Not to my knowledge did she ever bring that up to me.”

Romania left the Owosso office, and Young returned to manage the office from January of 2007 through July of 2007. Young testified that when she returned to the Owosso office, “we were doing some training [ ] with [Plaintiff] but I didn't have any great concerns.” Young described the Owosso office as consisting of a “great staff” which included the Plaintiff during her six month tenure in 2007.¹ She thought that Plaintiff “worked really well with people” because he empathizes with them, presumably during interviews.

When Young left Owosso in July of 2007, Jill Behrens became Plaintiff's first-line supervisor. Within one month, Behrens noticed a problem with Plaintiff's performance and communicated her observation to her supervisor, Fred Bourjaily, Defendant's District I Manager. Behrens informed Plaintiff of his performance problems in October of 2007; she told him that he was “dragging the office down.” Behrens thereafter banned Plaintiff from speaking with his coworkers in order to ask questions on claims with which he needed help. She also conducted an audit which revealed that 14 out of 15 cases assigned to Plaintiff had errors.

In March of 2008, Behrens initiated a formal 30–day PAP and later extended it to 45 days. Plaintiff's PAP detailed Plaintiff's performance failures in three areas: Participation, Demonstrates Job Knowledge, and Achieves Business Results. During Plaintiff's PAP, he met weekly with Behrens to summarize his performance, address his training concerns, and make sure that he understood his progress. Behrens memorialized these meetings in weekly progress reports. Plaintiff claims that during his PAP, Behrens belittled him about his performance in front of his coworkers.

While Plaintiff received excellent scores on his PAP examinations and a review of his cases on May 7, 2008 found no errors, Behrens determined in May of 2008 that Plaintiff failed to improve his performance in the three critical areas of Participation, Demonstrates Job Knowledge, and Achieves Business Results.

Following Plaintiff's unsuccessful PAP, Behrens placed him on a 120–day Opportunity to Perform Successfully (“OPS”) plan in May of 2008. The OPS indicated that while Plaintiff seemed to be able to learn new information, demonstrated by his good marks on open-book training tests, he could not “apply ... the information that he learned during training class to actual cases.”

During Plaintiff's OPS plan, Behrens supervised a 175–case audit of his work. Romania, D.J. Hrcka, Plaintiff's union representative, and Debbie Starkey conducted the audit. The results of the audit revealed that at least 123 of the cases processed by Plaintiff contained documentation errors, payment errors or both. When Plaintiff's OPS plan ended in October of 2008, Behrens summarized his performance in writing, concluding that he once again failed to improve his performance in the three critical areas of Participation, Demonstrates Job Knowledge and Achieves Business Results.

D.J. Hrcka believes Plaintiff's inability to communicate with his coworkers accounted for a “large degree” of the errors that “would be made by anybody else [without such] assistance.” See Dkt. 25–1, Ex. 10 at 353–56. Young testified that preventing a Claims Representative from communicating with coworkers would be “isolat[ing;]” [t]he complexity of our work is probably like [counsel] talking to another attorney about something. I have this strange case, have you ever come across it. “I would think that [it] would be crippling.” Id. at 116. Young further indicated that the nature of the Claims Representative job required ongoing training and it took up to five years before a representative is “fully functioning.” Id. at 74.

On August 27, 2008, Plaintiff submitted a SSA SF–501 form requesting an accommodation with an accompanying twenty-two page medical report from Dr. Robert Smith, who diagnosed Plaintiff with dyslexia, ADHD and Adjustment Disorder with Mixed Depression and Anxiety Symptoms. Dr. Smith explained that these disorders substantially limited Plaintiff's ability in reading, writing and concentration. As an accommodation for his disability, Plaintiff requested: (a) complete relief from Title II work; (b) removal of the temporary restriction on which employees could assist him with his work; (c) cancellation of his OPS plan; (d) software subscription aids; (e) implementation of all other recommendations found in Dr. Smith's report; (f) funding from the Michigan Vocational Rehabilitation Services to pay for the implementation of Dr. Smith's recommendations; and (g) the cooperative implementation of any additional accommodations, as needed.

Defendant responded on September...