Stewart v. Ross

• Decision Date: 17 April 2020
• Docket Number: 1:18-cv-1369 (LMB/TCB),1:16-cv-213 (LMB/JFA)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: FENYANG STEWART, Plaintiff, v. WILBUR L. ROSS, JR., Secretary, U.S. Department of Commerce, et al. Defendants.

FENYANG STEWART, Plaintiff, v. WILBUR L. ROSS, JR., Secretary, U.S. Department of Commerce, et al. Defendants.

1:18-cv-1369 (LMB/TCB)

1:16-cv-213 (LMB/JFA)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

April 17, 2020

MEMORANDUM OPINION

In these consolidated civil actions brought against defendants Wilbur Ross and Andre Iancu (collectively, "defendants"), in their respective capacities as the Secretary of the U.S. Department of Commerce ("USDOC") and the Director of the U.S. Patent and Trademark Office ("USPTO"), plaintiff pro se Fenyang Stewart ("plaintiff" or "Stewart") challenges multiple mixed case decisions of the Merit Systems Protection Board ("MSPB") and the Equal Employment Opportunity Commission ("EEOC"), including the affirmance of his removal from employment with the USPTO.¹ Before the Court are defendants' Motion to Dismiss in Part and Motion for Summary Judgment in Part, as well as plaintiff's Cross-Motion for Summary Judgment. For the reasons that follow, defendants' Motion to Dismiss in Part and Motion forSummary Judgment will be granted, and plaintiff's Cross-Motion for Summary Judgment will be denied.

I. BACKGROUND

A. Factual Background²

Plaintiff was employed by the USPTO as a patent examiner from September 2013 to September 2016. Amended Consolidated Complaint ("Complaint") [Dkt. 53]³ ¶¶ 16, 47. Over the course of his employment, plaintiff submitted numerous requests for accommodations under the Rehabilitation Act to the USPTO's Office of Equal Employment Opportunity and Diversity ("OEEOD"). See, e.g. id. ¶¶ 50, 64. Virtually all of the issues in these consolidated actions concern plaintiff's accommodation requests. Primarily, the issues concern plaintiff's repeated requests (1) to have all meetings with his supervisor occur in the afternoon due to a pinched nerve in his back, the medication for which "caused loss of concentration" in the morning, and (2) to be transferred to work under a different supervisor due to post- and continuous- traumatic stress disorder "stemming from physical abuse in [his] childhood," which was "triggered" and "exacerbated" by interactions with his then-supervisor Ken Lo. See, e.g., id. ¶¶ 72-74, 78, 87, 98, 104, 110, 117-18, 121, 123, 131, 138, 141, 151, 154, 161, 163, 170, 179, 181, 190, 199, 202, 255, 262, 266, 269.

On July 30, 2014, plaintiff submitted a request for seven accommodations based on his diagnosis of a pinched nerve in his back, "which prevented him from sitting for long periods of time and, at certain times, standing for long periods of time," and the medication for which "caused loss of concentration" in the morning. See, e.g. id. ¶ 98. Specifically, plaintiff requested: (1) "[t]o not be required to come into work at a certain time;" (2) "[t]o not be required to report to his supervisor his upcoming work schedule for the week/biweek;" (3) "[a]n ergonomic chair;" (4) "[a]n ergonomic keyboard;" (5) "[t]o have meetings, interviews and mentoring sessions occur in the afternoon, after 12:00 pm;" (6) "[a] standing, height-adjustable desk;" and (7) "[a] foot stool." [MSPB Record, Dkt. 16-7, at 151-53].⁴ On September 19, 2014, the USPTO issued a two-page written decision regarding plaintiff's requests, which was broken into five numbered parts as follows. Id.

In parts 1 and 2, respectively, the decision listed plaintiff's name and his seven requested accommodations. Id. In part 3, entitled "Accommodation Granted," the decision stated:

[Plaintiff] is granted an ergonomic keyboard, a standing desk, and a footstool. [Plaintiff] should contact the USPTO helpdesk to arrange for his request for an ergonomic keyboard. Given that [plaintiff] has [already] received an ergonomic chair, [plaintiff's] request for an ergonomic chair is moot.

With respect to request number 1, [plaintiff] is currently on an IFP work schedule,⁵ which should allow him sufficient flexibility in his schedule to work around any difficulties he encounters with adhering to his typical work schedule.

Consistent with the IFP program, [plaintiff] must confer with his supervisor to establish a work schedule that allows him to maximize interaction, training and mentoring with his supervisor. [Plaintiff] must notify his supervisor as soon as possible when his condition requires him to begin or end work at times that differ from his typical work schedule, as established by him and his supervisor.

[Plaintiff's] supervisor and mentors will, when possible, schedule meetings designed specifically for [plaintiff] for times after 12:00 p.m.

Id. (emphasis added). In parts 4 and 5, plaintiff's requests to have meetings, interviews, and mentoring sessions occur in the afternoon and not to be required to report his upcoming work schedule were either "denied" or "partially denied" because they would cause the USPTO "undue hardship." Id. Specifically, part 5 explained:

[Plaintiff's] request to not report his upcoming work schedule to his supervisor for the week/bi-week is denied. An employer is not required to provide an accommodation that would fundamentally alter the nature or operation of the business and cause the Agency undue hardship. In this instance, [plaintiff's] request would be difficult for his supervisor and the Agency to oversee and administer and is also not supported by any medical documentation suggesting that not informing his supervisor of his planned typical work schedule for the week or bi-week would alleviate any difficulties caused by his condition. Further, [plaintiff] is currently on an IFP schedule, which allows him to adjust his work schedule to meet his needs, as long as he notifies his supervisor when he deviates from his fixed work schedule. The Agency believes that this accommodation is effective in accommodating [plaintiff's] medical condition. An Agency is not required to provide the specific accommodation requested, and may choose among reasonable accommodations as long as the accommodation is effective.

With respect to [plaintiff's] request to have interviews occur in the afternoon, [plaintiff] has the ability to schedule interviews in the afternoon on his own without needing a reasonable accommodation. As a result, [plaintiff's] request to have interviews in the afternoon can be handled outside of the reasonable accommodation process. [Plaintiff's] supervisors and mentors will, when possible, schedule their meetings with him after 12:00 p.m. However, it would be unreasonable to require the Agency to avoid meeting times before noon when attempting to schedule meetings that that [sic] require coordinating the schedules of multiple attendees, so the Agency cannot fully excuse [plaintiff] from being required to attend meetings before noon.

Id. (emphasis added).

On October 7, 2014, Shirlena Morgan, an employee of the USPTO's financial management office responsible for coordinating certain accommodations, emailed plaintiff regarding his requests for a standing desk and footstool. [Case No. 16-cv-213, Dkt. 11-13].⁶ Morgan asked that plaintiff "[p]lease give [her] a call at [his] convenience to coordinate [his] accommodation[s]." Id. Plaintiff did not respond to Morgan's email or otherwise make any effort to coordinate implementation of his standing desk and footstool requests over the next six months. Compl. ¶ 198. Despite plaintiff's failure to respond, he subsequently received a standing desk on March 19, 2015, and received a footstool on June 2, 2015. Id. ¶¶ 51-52.

On May 30, 2015, plaintiff's supervisor Robert Fennema informed plaintiff that he was being investigated for impermissibly working hours outside of the IFP work schedule. Id. ¶ 58. Plaintiff admitted to working all of the hours at issue, but claimed he had been granted an accommodation that allowed him to work hours outside of the IFP work schedule. Id. Plaintiff's claim was not corroborated, and on June 4, 2015, following an investigation into the matter, Fennema issued plaintiff a letter of reprimand for impermissibly working hours outside of the IFP work schedule. Id. ¶ 60. As relevant here, the letter explained that plaintiff confirmed to Fennema that he was told at an IFP training session on February 27, 2015 that he could not work hours outside of the IFP work schedule. [MSPB Record, Dkt. 16-1, at 250].

Plaintiff first initiated contact with the OEEOD on April 30, 2015 and filed a formal complaint with the OEEOD on July 14, 2015. Compl. ¶¶ 11-12. In his formal complaint,plaintiff alleged at least seven instances in which "he was discriminated against in violation of the Rehabilitation Act." [MSPB Record, Dkt. 16-5, at 141-43]. These instances included (1) failure to accommodate when the USPTO denied his request to work hours outside of the IFP work schedule, (2) failure to accommodate when the USPTO failed to implement his requests for a standing desk and footstool until March 19, 2015 and June 2, 2015, respectively, (3) retaliation for engaging in EEO activity when the USPTO deemed his wife unqualified for a job vacancy, (4) retaliation for engaging in EEO activity when the USPTO did not select his wife to fill a job vacancy, (5) disability discrimination when Fennema issued him a letter of reprimand for impermissibly working hours outside of the IFP work schedule, (6) hostile work environment when the USPTO failed to accommodate him or otherwise disregarded his accommodations, and (7) disability discrimination when he was delayed a promotion. Id. Plaintiff amended his formal complaint numerous times throughout his employment with the USPTO, and in total appears to have alleged at least 37 instances in which he was purportedly discriminated against in violation of the Rehabilitation Act. Id.

On October 16, 2015, plaintiff requested that the OEEOD temporarily transfer him to a different supervisor because Fennema was engaging in an "alleged pattern of harassment" which plaintiff believed was "a form of retaliation for filing a formal [complaint] [with] the [OEEOD]." [MSPB...