Moore v. Napolitano

• Decision Date: 27 April 2010
• Docket Number: Civil Action No. 07-2666.
• Citation: 702 F.Supp.2d 654
• Parties: Jerry MOORE v. Janet A. NAPOLITANO, Secretary, Department of Homeland Security.
• Court: U.S. District Court — Eastern District of Louisiana

702 F.Supp.2d 654

Jerry MOORE

v.Janet A. NAPOLITANO, Secretary, Department of Homeland Security.

Civil Action No. 07-2666.

United States District Court,E.D. Louisiana.

March 29, 2010.

Order Denying Reconsideration April 27, 2010.

Nelson Dan Taylor, J.K. Haynes Legal Defense Fund, Gideon Tillman Carter, III, Gideon T. Carter, III, Attorney at Law, Baton Rouge, LA, for Plaintiff.

Sandra Ema Gutierrez, Andre Jude Lagarde, U.S. Attorney's Office, New Orleans, LA, for Defendant.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court are plaintiff Jerry Moore's motion to set aside and reverse the Merit Systems Protection Board (MSPB) decision on nondiscrimination claims, ¹ and defendant Janet A. Napolitano (DHS)'s motion for partial summary judgment on Moore's nondiscrimination claims. ² For the following reasons, Moore's motion is DENIED. DHS's motion is GRANTED to the extent it seeks a determination that the MSPB decision on Moore's nondiscrimination claims was not arbitrary and capricious, unsupported by substantial evidence, or otherwise not in accordance with law.

I. BACKGROUND

From approximately November 1988 to August 1995, Jerry Moore worked for the United States Coast Guard (USCG) in New Orleans, Louisiana. ³ USCG terminated Moore's employment in August 1995. DHS contends that Moore was removed because he was physically unable to perform the duties of his job, and that his removal promoted the efficiency of the service. At issue in this order is whether the MSPB decision that Moore's removal promoted the efficiency of the service was arbitrary and capricious, unsupported by substantial evidence, or otherwise not in accordance with law. Moore also has Title VII and ADEA discrimination claims, which are not before the Court and are not implicated by this order.

A. Moore's Position with the United States Coast Guard

Moore was hired on November 2, 1988 as a Grade 9 Maintenance Mechanic in the Lamp Shop of the Industrial Division of the USCG Support Center in New Orleans. ⁴ According to his position description, Moore was required to be “in good health, be able to climb towers, carry moderately heavy equipment when making installations in the field and operate forklift equipment.” ⁵ The position description specifically states that Moore “must be qualified to climb coast guard towers up to a height of 300 ft.” ⁶

On May 22, 1992, Moore injured his back in a non-work related incident and went on leave for approximately eleven months. ⁷ As Moore prepared to return to work, a “job analysis form” was drafted that identified the detailed tasks and demands of Moore's position upon his return. ⁸ The form states that Moore's position would require, inter alia: frequent lifting of items that weigh ten pounds; occasional lifting of items that weigh less than twenty pounds; occasional bending and stooping; occasional pulling and pushing with assistance; continuous reaching, and some overhead reaching; ⁹ The form also indicates that Moore could be required to lift power boxes weighing 47 pounds approximately ten times per year and lights weighing between 30-47 pounds approximately five times per week. ¹⁰ These heavier items, however, “are not carried long distance, they are only carried a few feet at a time,” and “assistance could be provided if necessary.” ¹¹ The form additionally specifies that Moore could be required to climb towers 150-700 feet tall one to two times per year. ¹² Lastly, the form states that USCG was “willing to have Mr. Moore return to work in a light duty program for approximately six to eight weeks as long as the individual can return to regular duty work after his light duty program.” ¹³ The proposed light duty program consisted of: (1) answering the telephones; (2) performing paperwork; (3) providing technical support which is basically giving guidance to the other workers; and (4) performing bench repair work on items that weigh less than 20 pounds. ¹⁴ The form states that Moore's maintenance mechanic position was “really the lightest position available in this particular department; therefore, there is really no way for [USCG] to place [Moore] in another type of position.” ¹⁵ On April 16, 1993, Dr. Essam Elmorshidy, Moore's physician, issued a disability certificate certifying Moore for “light work” duties as of April 26, 1993. ¹⁶ The certificate includes restrictions on lifting over 20 pounds and “frequent bending and stooping.” ¹⁷ On May 27, 1993, Dr. Edna Doyle, an independent medical examiner, issued a certificate restricting Moore from climbing, except for stairs, and lifting over 50 pounds without assistance. ¹⁸ On June 1, 1993, Doyle concluded that “I do not believe that [Moore] can return to climbing, of course an exception is stairs, and there is no limit to the amount of walking, standing or sitting that he can do. He can lift up to 50 pounds. Anything over this he should lift with a coworker.” ¹⁹

B. Moore's Return to Work

Moore returned to work on April 26, 1993 under a “light duty” designation, although the parties disagree as to the meaning and significance of this designation. Moore has stated in affidavits that he resumed regular duties after returning to work, with the exception of climbing and repairing towers. ²⁰ Moore asserts that climbing towers was “so infrequent” that “it should have been no problem to assign someone other than me to do this task.” ²¹ Moore also asserts that he had “never been assigned to climb 300 ft towers” and that “[a]s far as I know, all of the towers under the command are 700 ft towers.” ²² Before his injury, Moore was authorized to climb 700 foot towers, although he could terminate this authorization at his request. ²³ Moore further asserts that he was able to find alternative methods of lifting heavy items, such as by using a dolly, and thus “was able to do my job without undue physical stress.” ²⁴ For its part, DHS has produced affidavits stating that Moore was unable to perform the full range of his duties after returning to work, including climbing and lifting; that at least some of Moore's work had to be diverted to other departments and employees; and that institutional constraints prevented USCG from reassigning Moore to a lighter duty position. ²⁵

On October 19, 1994, Moore and a supervisor completed a semiannual progress review. ²⁶ In the “remarks” section of the review, Moore's reviewer wrote that “Moore has been on light duty since his return to work following a job related injury 5/22/92. Due to his physical condition, Mr. Moore cannot perform all required cje's. He is limited in the weights he can handle and is unable to climb. Mr. Moore satisfactorily completed the cje's he was physically able to do.” ²⁷ Moore wrote that it was his “understanding that this document list [ sic ] job expectation [ sic ] of employee concerned. Since light duty excludes climbing I contend that ‘unable to climb’ is non-relative.” ²⁸ In the section concerning “Repairs, overhauls and tests electrical aids to navigation equipment,” the review states that “Moore continues to be on a light duty status thus somewhat limiting the jobs he can perform. Because of his condition, Mr. Moore can no longer work aloft thus curtailing his involvement with tower work. However, Mr. Moore performs all other phases of this CJE in a meritorious manner.” ²⁹

Apart from Moore's ability to lift and climb, the parties do not dispute that Moore received positive reviews for the work that he was able to perform. DHS's internal investigation concluded that “[d]ocumentary evidence shows that [Moore] was qualified for his position.” ³⁰ One of Moore's supervisors submitted an affidavit stating “emphatically that I did not have any concerns about Mr. Moore's performance of the duties he was assigned. He was rated highly on the light duties he performed after his injury, and he received cash performance awards for the ratings.” ³¹ Moore received a “meritorious rating” and monetary bonus for the annual periods ending March 1994 and March 1995. ³² The 1995 award approval attaches “a brief justification that addresses the employee's high quality performance in each job element. Based on past experience, the employee's outstanding performance is likely to continue.” ³³ On April 25, 1995, Moore was commended for his “can-do” attitude and asked to “[k]eep up the outstanding work!” ³⁴ In May 1995, Moore's “superior performance” on a particular project was commended. ³⁵

In April 1994, USCG proposed moving Moore's position to the electric shop “to provide [Moore] greater opportunity for promotion in the future.” ³⁶ A new position description had not yet been approved, however, and Moore would remain a grade nine maintenance mechanic. ³⁷ In April 1995, Moore's revised position description received preliminary approval. ³⁸ The revised position description was expected to “support an electrician (WG-10) position.” ³⁹ The revised position description is not, however, in the record, and there is no evidence that the duties of Moore's position changed materially. There also is no evidence that the revised position description was ever finally approved.

C. Requests for Medical Information

In September 1994, Cdr. Collin S. Campbell, Executive Officer of USCG Integrated Support Command, learned of Moore's back injury. ⁴⁰ Campbell also learned that Moore had been lifting weights at a USCG facility. ⁴¹ In response, Campbell directed Moore not to workout at the USCG facility until he provided further medical documentation. ⁴² Campbell instructed Lt. Theodore Kozikowski, another of Moore's supervisors, to resolve the issue. ⁴³ On October 17, 1994, Kozikowski informed Moore that “[i]n order to properly assign you work it is imperative that I have an up to date status on your physical condition.” ⁴⁴ Kozikowski ordered Moore to have his physician complete a duty status report.

Moore was evaluated by Dr. Elmorshidy on October 13, 1994. Elmorshidy observed that Moore was “[d]...