Sanchez v. U.S. Dep't of Energy & Dr. Henry Moniz
| Decision Date | 24 March 2016 |
| Docket Number | No. CIV-13-00656-KG/LF,CIV-13-00656-KG/LF |
| Parties | SIGIEFREDO ("SIG") SANCHEZ, Plaintiff, v. THE UNITED STATES DEPARTMENT OF ENERGY AND DR. HENRY MONIZ, THE UNITED STATES SECRETARY OF ENERGY, IN HIS OFFICIAL CAPACITY, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court upon Defendants' Motion for Judgment on the Pleadings and Memorandum of Points and Authorities in Support Thereof (Motion for Judgment on the Pleadings), filed November 27, 2013. (Doc. 27). On December 23, 2013, Plaintiff responded and Defendants replied on February 10, 2014. (Docs. 38 and 47). Having considered Defendants' Motion for Judgment on the Pleadings, the corresponding briefs, and the applicable law the Court hereby grants Defendants' Motion for Judgment on the Pleadings.
The following background information comes from the well-pleaded facts included in Plaintiff's Complaint (Doc. 1).
In August 2006, Plaintiff was hired by the Department of Energy (the Agency) as an Emergency Operations Specialist (EOS) at the Agency's National Nuclear Security Administration, Office of Secure Transportation facility in Albuquerque, New Mexico. The EOS position is a duly designated position requiring the candidate to hold and maintain certification through the Agency's Human Reliability Program (HRP) pursuant to 10 C.F.R. § 712. The OES position and HRP certification require several screenings and background investigations, including psychological testing and a medical assessment. See 10 C.F.R. § 712.11. During the pre-certification process, Plaintiff was not diagnosed with dyslexia. In approximately February 2007, Plaintiff became HRP certified.
On August 5, 2007, at the end of a graveyard shift that began the evening of August 4, 2007, Plaintiff read the morning shift brief aloud.1 Based on Plaintiff's performance of reading the shift brief, his supervisors expressed concern that he may have some form of a reading problem. The following day, August 6, 2007, the concerns were reported to John Vukosovich (Mr. Vukosovich), Plaintiff's senior supervisor. Mr. Vukosovich and Suzanne Garcia, the Agency's HRP Reliability Manager, recommended that Plaintiff meet with Daniel Seagrave, Psy.D., ABPP (Dr. Seagrave), an Office of Secure Transportation contract psychologist.
On August 16, 2007, Dr. Seagrave interviewed Plaintiff's two supervisors, Mr. Vukosovich and Bernard Tye (Mr. Tye). During the interviews, Mr. Vukosovich and Mr. Tye disclosed a concern that a reading problem could significantly interfere with Plaintiff's EOS duties. They also characterized Plaintiff as slow in learning his job. That same day, Dr. Seagrave interviewed Plaintiff and conducted a psychological evaluation.
On August 22, 2007, Plaintiff was removed from his HRP duties. As a result, Plaintiff's duties were restricted to research and filing weather conditions. Plaintiff was no longer authorized to answer the telephone, log onto the classified computer, handle the trip folder, answer 9-1-1 calls, or relay any information to convoy commanders. In addition, Plaintiff was required to sit in a separate room during the reading of the morning shift brief.
At some point, Stephen Chiulli, Ph.D. (Dr. Chiulli) and Anthony Traweek, Ph.D. (Dr. Traweek) conducted an Agency neuropsychological evaluation of Plaintiff. Dr. Chiulli reported that Plaintiff had a Mixed Receptive-Expressive Language Disorder and that Plaintiff exhibited signs of dyslexia. Subsequently, Mr. Vukosovich read Dr. Chiulli's report.
On August 31, 2007, Plaintiff left work early because he felt extremely lightheaded and his heart was pumping quickly. Plaintiff immediately went to the New Mexico VA Medical Center and was instructed not to return to work until cleared medically.
Shortly thereafter, on September 11, 2007, Melissa Meth, a Psychiatric Nurse Practitioner at the VA Medical Center, diagnosed Plaintiff with anxiety, insomnia, abdominal pain, nausea, vomiting and diarrhea due to work related stress. On this same day, the Agency's psychologist met with Plaintiff to discuss the Agency's dyslexia diagnosis.2 Plaintiff was then placed on administrative leave on September 13, 2007.
Then, on September 24, 2007, Dr. Traweek, the Agency's Lead Psychologist of the HRP, submitted his formal recommendations regarding Plaintiff's suitability for HRP. Dr. Traweek recommended that Plaintiff not be recertified under HRP as "recertification under HRP would present an unacceptable and unnecessary risk to the safe and secure transport of nuclear assets and attendant personnel." (Doc. 1-2) at 2. Dr. Traweek also recommended that the Agency "[f]acilitate Mr. Sanchez' pursuit of appropriate Federal employment in which there is a possibility for reasonable accommodation of his apparent Mixed Receptive-Expressive Language Disorder." Id. Finally, Dr. Traweek recommended that Plaintiff be afforded an "opportunity to personally discuss the findings and recommendations of the special evaluation process with Dr.Seagrave." Id. Dr. Traweek's findings and recommendations were also presented to the HRP hearing officer.
On November 6, 2007, Plaintiff's EEO Counselor contacted Melissa Maestas (Ms. Maestas), the Agency's Human Resources Manager, to ask if Plaintiff could be reassigned to a non-HRP position. Ms. Maestas informed Plaintiff that she would attempt to reassign him to a non-HRP position, but the Agency was under no obligation to do so. Ms. Maestas also encouraged Plaintiff to apply for vacant positions within the Agency.
Thereafter, the Agency issued an SF-50 stating Plaintiff's removal was for cause by "failure to maintain a condition of employment." On December 21, 2007, Plaintiff filed an Equal Opportunity Employment Complaint based on disability discrimination and the allegation that he intentionally or volitionally failed to "maintain" a condition of employment per the SF-50.
On April 16, 2008, Plaintiff emailed Ms. Maestas to determine whether he could return to work or be reassigned. Ms. Maestas stated that there was no reassignment action in place or planned. The following day, Plaintiff emailed the same questions to Michael Jordan (Mr. Jordan), his supervisor. Mr. Jordan replied and informed Plaintiff to direct all questions to Mr. Vukosovich, the senior supervisor.
On September 12, 2008, Plaintiff received a Notice of Proposal to Suspend Indefinitely Plaintiff from his position as an EOS. The notice informed Plaintiff of his opportunity to respond orally or in writing to the deciding official, Mr. Vukosovich. On September 24, 2008, Plaintiff's attorney sent a written response to Mr. Craig Tucker (Mr. Tucker), Assistant Deputy Administrator of Office of Secure Transportation. In the response, Plaintiff first requested that the Agency accommodate him by assigning him to a non-HRP position. Plaintiff furtherrequested that Mr. Tucker appoint an impartial deciding official to review the indefinite suspension. The written response stated Mr. Vukosovich was not impartial because he made previous threats to terminate Plaintiff's employment and he failed to reasonably accommodate Plaintiff per Dr. Traweek's recommendation. Plaintiff's written response was forwarded to Mr. Vukosovich.
On October 31, 2008, Mr. Vukosovich sent Plaintiff a Decision on Proposed Indefinite Suspension. In the letter, Mr. Vukosovich stated that Plaintiff's requests regarding an impartial decision maker and a reasonable accommodation were "a separate issue" that had "no bearing on the matter."3 Mr. Vukosovich further stated that he considered the Douglas factors in arriving at his decision. Under the particular circumstances, Mr. Vukosovich "did not find any of the [Douglas] factors to be mitigating." (Doc. 1-3) at 2. Mr. Vukosovich, however, "considered as aggravating [Plaintiff's] inability to perform [his] duties without HRP certification, [his] awareness of the requirement to maintain HRP and the lack of other work to which [he] could be assigned that does not require HRP certification." Id. Finally, the letter informed Plaintiff that the Operations Division, Plaintiff's former division, did not have other positions available that did not require HRP certification. Mr. Vukosovich, and Ann Van Tassel, Plaintiff's contact at the Office of Human Capital Management Services, did not attempt to locate Plaintiff a non-HRP position outside the Operations Division. Subsequently, Mr. Vukosovich indefinitely suspended Plaintiff pending resolution of Plaintiff's HRP certification.
During the administrative hearings, it was unearthed that non-HRP positions existed in divisions within the Office of Secure Transportation, other than the Operations Division. Specifically, after Plaintiff lost his HRP certification on August 22, 2007, approximately twenty-eight non-HRP positions were available in the greater Albuquerque, New Mexico area.
On January 15, 2009, a hearing was conducted regarding Plaintiff's HRP certification. At the hearing, John H. King, Ph.D., ABPP-CN (Dr. King), Plaintiff's expert testified that due to his disability he could not perform HRP duties. Dr. King, however, testified that Plaintiff was capable of performing non-HRP positions. Afterwards, on February 9, 2009, and February 17, 2009, Plaintiff sent a letter to the Agency requesting a reassignment accommodation.
On February 26, 2009, the hearing officer, the Honorable Kent Woods, recommended removal of Plaintiff's HRP certification. On September 17, 2009, Daniel B. Poneman, the Deputy Secretary of the Department of Energy, issued a final decision removing Plaintiff's HRP certification. On October 16, 2009, Plaintiff received a notice of proposed removal, which included the reasons for the proposed action and Plaintiff's rights available to him. On November 3, 2009, Plaintiff submitted a written response requesting a reasonable accommodation for his disability and an impartial decision maker.
On November 30, 2009, Mr....
To continue reading
Request your trial