Kenny v. Yellen
| Decision Date | 25 January 2023 |
| Docket Number | C/A 3:21-1321-MGL-PJG |
| Parties | Austin Kenny, Plaintiff, v. Janet Yellen, Secretary, U.S. Department of the Treasury, Defendant. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
Plaintiff Austin Kenny filed this employment action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment.[1] (ECF No. 26.) Kenny filed a response in opposition to the motion (ECF No. 33), and the defendant filed a reply (ECF No. 41). Having reviewed the record presented and the applicable law, the court concludes that the defendant's motion should be denied.
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Kenny has Crohn's disease which causes serious intestinal issues during unpredictable flare-ups that vary in severity and duration. The disease causes symptoms such as pain, fatigue, diarrhea, arthritis fever, chills, and vision problems. The flare-ups can last anywhere from two days to two weeks. The disease can also cause intestinal blockages that require surgery. Kenny has had two such surgeries since he was diagnosed with Crohn's disease in 2000-the first in 2007 and the second in 2019 while working for the Internal Revenue Service (“IRS”).
On September 3, 2018, the IRS hired Kenny as a GS-14 project manager in the Enterprise Program Management Office (“EPMO”) in Charlotte, North Carolina. Kenny lived near Columbia, South Carolina at that time, which meant that his commute to the office required driving ninety-nine miles each way. The EPMO was responsible for upgrading the programming code for the tax information system, a major IRS-wide project. As a project manager, Kenny was responsible for managing the project schedule between multiple stakeholders to ensure the project was progressing on time. Though his worksite was at an IRS office in Charlotte, no other EPMO employee worked there, and Kenny worked entirely through remote means such as Web-Ex and phone communication. At first, Kenny worked a traditional work schedule of five days per week and eight hours per day. But soon thereafter he transitioned to an alternative work schedule of four days per week for ten hours per day.
Kenny's manager in the EPMO project was Monique Queen, who assigned work to Kenny, but Robert Buckstad was responsible for administrative matters related to Kenny's employment such as leave requests. Kenny spoke to Buckstad about Kenny's disability early on in his employment-in September or early October 2018. Kenny informed Buckstad that the commute to Charlotte was exacerbating his Crohn's symptoms, especially considering that the commute was lengthy and his flare-ups were unpredictable. Buckstad relayed that information to Gbemi Acholonu, an upper manager in the EPMO project and the official responsible for reviewing and approving accommodation requests. Buckstad told Acholonu that he was looking into transferring Kenny to an IRS office closer to Kenny's home to mitigate the symptoms caused by Kenny's commute to Charlotte.
On October 30, 2018, Kenny formally requested an accommodation. Kenny requested that his worksite be changed from Charlotte to Columbia and that he be allowed to telework from home as needed. Buckstad submitted a memorandum in support of Kenny's request which explained that allowing Kenny to work closer to his medical network and telework as necessary would improve Kenny's productivity with no adverse effect to the IRS. Cynthia Washington was assigned to be the reasonable accommodation coordinator for Kenny's request. Buckstad and Washington submitted paperwork and made preliminary arrangements to transfer Kenny's worksite to Columbia.
However, the decision as to whether to grant the accommodation request rested with Acholonu. In email exchanges with Buckstad in November and December 2018, Acholonu and Queen expressed reluctance to grant Kenny's accommodation request because he was still within the one-year probationary employment status and could be fired without cause. Queen told Buckstad that he would face questions about “why are you allowing a person with pre-existing conditions make changes [sic] and not a long standing employee that situation [sic] just changed.” (Ex. 11, Pl.'s Resp., ECF No. 33-12 at 3.) Queen noted that other employees had “pre-existing conditions” before accepting their jobs and asked, (Id.) Queen asserted that Kenny and other new employees (Id.) Queen stated that other employees had “things happening in their lives” where accommodations could have been approved but that those employees were provided with other assistance and those employees “put in their time, without a sense of entailment [sic].” (Id.) In a different email chain, Acholonu directed Buckstad to justify Kenny's request, referring to Kenny's disability as a “preexisting condition at the time he applied for the job” and noted that he had been employed for less than six months. (Ex. 9, Pl.'s Resp., ECF No. 33-10 at 2.) Acholonu also compared Kenny's request to the request of another employee who had “proven, sustainable service.” (Id.)
In another email chain, Buckstad informed Queen and Acholonu that Kenny intended to work from home on a day the Charlotte office was closed due to inclement weather. Queen responded that Kenny did not have an approved telework agreement and needed to take administrative leave. (Ex. 12, Pl.'s Resp., ECF No. 33-13 at 3.) Queen also stated, “Remember once we allow telework, the door is open and cannot [sic] close it” and stated this was an example of Kenny's receiving “special allowances that no other new employee is receiving.” (Id.) Buckstad replied that Kenny already had the software necessary for remote work; Acholonu replied that “[o]ur employees are not to work telework [sic] for any reason during their 1st year.” (Id. at 2.)
On December 21, 2018, Queen disciplined Kenny by issuing an “evaluative recordation” by email. The evaluative recordation noted that Kenny took thirty minutes to respond to an urgent message (via instant message and text message) from Queen on December 19 and that he missed a December 20 meeting.
On February 5, 2019, Acholonu met with Washington, the reasonable accommodation coordinator, to discuss Kenny's request for an accommodation. In the meeting, Acholonu noted that Kenny was a probationary employee, but Washington responded that probationary employees are entitled to reasonable accommodations. Acholonu requested a medical assessment be completed by Federal Occupational Health (“FOH”) before a decision was made on Kenny's request. Acholonu relayed the request for a medical assessment to Kenny and Buckstad. Around that time, Kenny had a flare-up which caused a blockage in his intestines that required surgery. On February 25, 2019, despite having not yet received the medical assessment she requested, Acholonu denied Kenny's request to change worksites, though she stated she would revisit that request after he completed his probationary period. Acholonu noted that Kenny was already granted an alternative work schedule to minimize his trips to the office and that she would be open to switching his off-days as needed. Acholonu also stated that Kenny would be granted the ability to work from home until March 11 as directed by Kenny's doctor, apparently in light of this recent flare-up.
The FOH medical assessment was issued on April 11, 2019. The physician who performed the assessment explained that a change in workstations would decrease Kenny's commute time and allow him to conserve energy. The physician also explained that Kenny is incapacitated during flare-ups, and thus teleworking would not help him during such times. The physician found it would be reasonable to allow Kenny to attempt to telework four days per month during flare-ups but if he was incapacitated, that Kenny would need to take leave. The physician noted that Kenny's recent medical documents showed that he had flare-ups every month that lasted approximately four days. (Ex. E, Def.'s Mot. Summ. J., ECF No. 28-4 at 4.)
On April 30, Acholonu again refused to allow Kenny to change workstations to Columbia. Acholonu instead offered Kenny the ability to telework from home two days per week (or half of Kenny's workweek under his four-day alternative work week schedule). Kenny stated Acholonu's offer did not meet his needs, explaining that his flare-ups were unpredictable and he would not know in advance when he needed to telework.
Acholonu Kenny, and Washington met on May 7, 2019. Acholonu offered Kenny the ability to telework from home three of four days per week through September 2019 and apparently mentioned that because there was no IT presence in the Columbia office, Kenny needed to report to the Charlotte office where he was originally assigned. Kenny took the offer under advisement but rejected the offer two days later on May 9, 2019, and indicated that he would appeal Acholonu's denial of his request...
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