Kirkland v. McAleenan

• Decision Date: 23 December 2019
• Docket Number: Civil Action No. 13-194 (RDM)
• Parties: CHARMAYNE KIRKLAND, Plaintiff, v. KEVIN McALEENAN, Acting Secretary of the Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Columbia

CHARMAYNE KIRKLAND, Plaintiff,
v.
KEVIN McALEENAN,
Acting Secretary of the Department of Homeland Security,¹ Defendant.

Civil Action No. 13-194 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 23, 2019

MEMORANDUM OPINION AND ORDER

Plaintiff Charmayne Kirkland brings this action against the Department of Homeland Security (the "Department") for allegedly violating the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, and the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., by discriminating against her on the basis of race, sex, age, and disabilities; retaliating against her for requesting reasonable accommodations and for her prior Equal Employment Opportunity ("EEO") activity; and terminating her employment without good cause. After the completion of discovery, Plaintiff filed her third amended complaint. Dkt. 53. Plaintiff then moved for partial summary judgment on "several disability discrimination and failure to accommodate claims," Dkt. 57 at 1, and the Department cross-moved for summary judgment, Dkt. 61. After seeking and obtaining four extensions of time to respond to the Department's cross-motion, Plaintiff filed her opposition brief on January 11, 2019, Dkt. 66,

Page 2

only to amend that submission a month later, Dkt. 70. The Department, in turn, sought and obtained an extension of time, Dkt. 74, and did not file its reply brief until May 3, 2019, Dkt. 77. Because briefing on the Department's cross-motion was thus delayed by several months, the Court issued a decision on Plaintiff's motion for partial summary judgment without waiting for the parties to complete briefing on the Department's cross-motion. Dkt. 75. Concluding that the "record reveal[ed] several genuine disputes of material fact," the Court denied Plaintiff's motion for partial summary judgment in March 2019. See Kirkland v. Nielsen, No. 13-194, 2019 WL 1428354, at *1 (D.D.C. Mar. 30, 2019) ("Kirkland I").

The Court now turns to the Department's cross-motion for summary judgment. Dkt. 61. In that motion, the Department argues: (1) that it complied with the Rehabilitation Act by accommodating Plaintiff, at least to the extent is was required to do so; (2) that it had legitimate, non-discriminatory reasons to terminate Plaintiff's employment and to take the other employment actions that Plaintiff alleges were based on unlawful discrimination or retaliation; (3) that Plaintiff cannot show that any of those rationales were pretextual; and (4) that Plaintiff was not subjected to a hostile work environment. Some of these arguments are persuasive, and others are not. The Court will, accordingly, grant in part and deny in part the Department's cross-motion for summary judgment.

I. BACKGROUND

The following facts, except where indicated, are based on evidence either that Plaintiff offered or that the Department offered and that Plaintiff has failed to controvert with her own evidence. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In 1996, Plaintiff was hired as an industrial hygienist by the Immigration and Naturalization Service ("INS"), which was a component of the Department of Justice. Kirkland

Page 3

I, 2019 WL 1428354, at *1. When Congress abolished the INS in 2003, Plaintiff—along with other former INS employees—was temporarily reassigned to what was then called the Bureau of Immigration and Customs Enforcement in the newly-established Department of Homeland Security. Dkt. 61 at 2 (SUMF ¶ 1); Dkt. 61-1 at 2 (Def. Ex. 1). The Bureau of Immigration and Customs Enforcement is now known as U.S. Immigration and Customs Enforcement or ICE. The next year, Plaintiff was again reassigned, this time to the Bureau of Customs and Border Protection—now known as U.S. Customs and Border Protection or CBP—in the Office of Human Resources, Workforce Effectiveness Division, Employee Support Safety and Health Branch ("Safety Branch"). Dkt. 61 at 2 (SUMF ¶ 2); Dkt. 61-1 at 4 (Def. Ex. 2). For several months after her reassignment, Plaintiff continued to work from an office located at ICE headquarters but was eventually moved to an office at CBP headquarters located in Washington, D.C. Dkt. 61 at 2 (SUMF ¶ 3); Dkt. 61-1 at 6 (Def. Ex. 3). When the Department reassigned Plaintiff from ICE to CBP in January 2004, Gary McMahen, Director of the Safety Branch, became her direct supervisor. See Dkt. 61-1 at 12 (Def. Ex. 4). He served as her first-line supervisor until late March 2005, and then, later, her second-line supervisor. Id.; Dkt. 57-6 at 67 (Pl. Ex. C). Starting in January 2006, Mickey McKeighan served as Plaintiff's first-line supervisor. Id. Unlike Plaintiff, all other CBP industrial hygienists assigned to the Safety Branch worked from an office in Indianapolis, Indiana. See Dkt. 61-1 at 69 (Def. Ex. 7).

On December 30, 2004, Plaintiff fractured her humerus in a non-work-related accident and, based on that injury, requested approval to telecommute. Dkt. 61-1 at 19-20 (Def. Ex. 4). While being treated for that injury, "her physician advised her that she suffered from carpal tunnel syndrome of the right and left arms." Dkt. 57-6 at 61 (Pl. Ex. C); Dkt. 61-1 at 12 (Def. Ex. 4). On or around January 28, 2005, Plaintiff provided CBP with a "verification of treatment"

Page 4

form from her physician, stating that she had carpal tunnel syndrome ("bilateral, moderate to severe") and recommending that the Department provide her with "voice-activated software" and an "ergonomically correct workstation." Dkt. 57-6 at 29 (Pl. Ex. C); see also Dkt. 61-1 at 12, 14. The form indicated that Plaintiff's injury was work-related and that she had received medical treatment but did not describe the "physical effects or the projected duration" of the condition. Dkt. 61-1 at 12 (Def. Ex. 4); see also Dkt. 57-6 at 29 (Pl. Ex. C). On that same day, Plaintiff also provided CBP with a second "verification of treatment" form, dated February 2, 2005, which confirmed that she had fractured her right humerus in a non-work-related accident, Dkt. 57-6 at 30 (Pl. Ex. C), and which recommended that she be allowed to work from home until February 19, 2005, Dkt. 61-1 at 144 (Def. Ex. 13). Although the parties disagree about certain details, they agree that McMahen allowed Plaintiff to telework on a day-to-day basis during at least a portion of this timeframe. Dkt. 61 at 4 (SUMF ¶ 16); Dkt. 70 at 18 (Response to SUMF ¶ 16). On February 15, 2005, McMahen discontinued Plaintiff's telework arrangement and directed her to "either report to work or take leave." Dkt. 61-1 at 20-21 (Def. Ex. 4). That same day, Plaintiff contacted CBP's EEO Office about McMahen's action, but she indicated that she "did not wish to seek EEO counseling" at that time. Dkt. 57-6 at 60-61 (Pl. Ex. C).

According to Plaintiff, during a March 9, 2005 telephone call, she "emphatically ask[ed] for the voice-activated software [her] neurologist recommended," Dkt. 57-6 at 25 (Pl. Ex. C), and McMahen "assured" her that CBP would provide her with the "software[] and the ergonomic workstation" that she had requested, id. at 15. Plaintiff received the voice-activated software on or about July 1, 2005, see Dkt. 61-2 at 2 (Def. Ex. 18); Dkt. 61 at 3 (SUMF ¶ 10); Dkt. 70 at 16-17 (Response to SUMF ¶ 10), but she did not receive an "ergonomic chair" or operable telephone headset at that time, see Dkt. 61-1 at 114, 116, 131-32 (Def. Ex. 10, 12). Moreover,

Page 5

although Plaintiff's training on how to use the software "began around July 1, 2005," id., and, although she received some subsequent training, Dkt. 61-1 at 116 (Def. Ex. 10), the training was never completed, see id. at 239 (Def. Ex. 17) (noting, on May 25, 2007, that Kirkland "still ha[d] 4 hours of [voice activated software] training time left from 2005," which was incomplete because "she went out on leave"). With respect to Plaintiff's request for an ergonomic workstation, the Department conducted an initial ergonomic evaluation in May 2005, and a second ergonomic assessment in December 2005. See Dkt. 61-1 at 84 (Def. Ex. 8).

At the same time that Plaintiff was seeking accommodations for her carpal tunnel syndrome, the Safety Branch began the process of filling its position of Deputy Director, which was vacant. Prior to filling the position on a permanent basis, the Branch provided the opportunity for employees at the GS-13 or GS-14 grade level to serve as the acting Deputy Director for 30-day intervals. Dkt. 61-1 at 25 (Def. Ex. 4); Dkt. 61-2 at 5 (Def. Ex. 19). That opportunity presumably provided those applying to fill the position on a permanent basis with an advantage, since they would have relevant experience and could treat the temporary position as an audition for the permanent role. In April 2005, Kirkland applied for the "opportunity" to "showcase [her] abilities during one of the 30-day . . . intervals." Dkt. 61-2 at 5 (Def. Ex. 19). McMahen, however, denied the request, asserting that the acting Deputy Director position was available only to Indianapolis-based employees and that "[t]ravel expenses [would] not be authorized for employees outside the Indianapolis commuting area." Dkt. 61-2 at 5 (Def. Ex. 19). McKeighan, a fellow CBP industrial hygienist based in Indianapolis, was among those granted the opportunity to serve as the acting Deputy Director, and he was eventually appointed the permanent Deputy Director on January 22, 2006. Dkt. 61-1 at 77 (Def. Ex. 8).

Page 6

On July 28, 2005, McKeighan, the then-acting Deputy Director, sent Plaintiff a letter "requesting more detailed information from her doctor regarding her medical" condition "to assist management in making an informed decision regarding whether or not [she] had a disability" requiring "a reasonable accommodation." Dkt. 57-6 at 79 (Pl. Ex. C); see also Dkt. 57-6 at 111-12. The CBP EEO Officer...