Opinion
Civil 1:16-CV-0494
09-10-2021
LISA M. DAVENPORT, Plaintiff v. CARLOS DEL TORO, [1] Secretary, Department of the Navy Defendant
WILSON, D.J.
REPORT & RECOMMENDATION
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 91)
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
In this federal employment discrimination and failure-to-accommodate case, Defendant moves for summary judgment on the basis that Plaintiff cannot prove she was a “qualified individual.” A month and a half after she requested an accommodation of partial-day teleworking, which Defendant denied, she stopped reporting to work, and her doctors described her as unable to work in the months thereafter. Defendant also contends that telework would not have permitted Plaintiff to perform the essential functions of her position. Those functions were recoded as “ineligible” for telework after an organizational realignment months earlier, but Plaintiff's job duties did not change. Because Plaintiff and a coworker in the same position had been eligible for telework before the realignment, and because the record supports that Plaintiff was able to work at the time of her request, a reasonable jury could find that Plaintiff was able to perform the essential functions of her position with a reasonable accommodation. I recommend that Defendant's Motion for Summary Judgment (Doc. 91) be GRANTED in part and DENIED in part for the reasons stated below.
II. BACKGROUND
On March 23, 2016, Lisa M. Davenport (“Plaintiff”) commenced this action against defendant Secretary of the Department of the Navy, Carlos Del Toro (“Defendant”), after being removed from her position as Supervisory Security Specialist at the Navy Depot in Mechanicsburg, Pennsylvania. The case is proceeding on a Second Amended Complaint (Doc. 63), which alleges disability discrimination under the Rehabilitation Act of 1973 based on (1) Defendant's removal of Plaintiff from her position in September 2013 and (2) Defendant's denial of reasonable accommodations from January to September 2013, and (3) gender discrimination under Title VII of the Civil Rights Act of 1964.
Ray Mabus was the Secretary of the Department of the Navy at the time of filing and thus the originally named defendant. Del Toro has since been automatically substituted. See Fed. R. Civ. P. 25(d).
The Court previously dismissed Count I of Plaintiff's First Amended Complaint (Doc. 11), which was an appeal of the final decision of the Merit Systems Protection Board (“MSPB”) affirming the Administrative Judge's decision that Defendant properly removed Plaintiff due to physical inability to perform her job and denying her affirmative defense of failure to accommodate. (Docs. 42, 43). The First Amended Complaint also contained, at Count II, claims of failure to accommodate and disability and gender discrimination, thus presenting a “mixed case” of civil service and federal discrimination claims. See 5 U.S.C. § 7703. The Court severed the MSPB appeal (Count I) and discrimination claims (Count II). (Docs. 30 & 31). The Court ruled on Count I only, affirming the decision of the MSPB. (Doc. 42). Plaintiff's discrimination and failure-to-accommodate claims continued. (Docs. 31; 42, p. 15 n.8). Fact discovery closed November 30, 2020. (Doc. 86).
Before the Court is Defendant's Motion for Summary Judgment (Doc. 91). Defendant filed a Brief in Support (Doc. 92) and a Statement of Material Facts (Doc. 93) with attached exhibits. Plaintiff filed a Brief in Opposition (Doc. 96), and Defendant filed a Reply Brief (Doc. 100). This matter is ripe for resolution.
III. SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary
judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
A fact is material if its existence or nonexistence might affect the outcome of the suit. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012)). To be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S. at 248-49).
The Court must view the evidence presented in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party, Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). A court is not to decide if the evidence unquestionably favors one side, or to make credibility determinations, but instead must decide if a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. The parties must rely on evidence that would be admissible. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, “the nonmoving party [must] go beyond the pleadings” and use “her own affidavits, or [] the ‘depositions, answers to interrogatories, and admissions on file,' [to] designate specific facts showing that there is a genuine issue for trial.'” Id. at 324.
IV. MATERIAL FACTS FOR SUMMARY JUDGMENT
As an initial matter, Plaintiff did not file a separate response to Defendant's Statement of Material Facts (Doc. 93). Instead, she addresses the Statement in her Brief in Opposition (Doc, 96), arguing the Court should strike or ignore Defendant's Statement of Material Facts because it fails to comply with Local Rule 56.1's requirement of being “short and concise.” (Doc. 96, p. 5). Plaintiff argues, “Defendant's Statement of alleged Material Facts ¶ 29 pages long (double spaced) and contains 118 numbered paragraphs of what Defendant claims are uncontested fact.” Id. Plaintiff also specifically objects to paragraphs 98 to 101, 102 to 105, and 106 to 109, which address the prior administrative proceedings and findings made therein. Id. at pp. 5-6. She contends this is a de novo proceeding, so none of the “alleged ‘facts'” regarding the administrative proceedings should be considered.
All references to page numbers in this Report and Recommendation are to the page numbers assigned by CM/ECF.
Defendant's Statement of Material Facts (Doc. 93), while long, does not violate Local Rule 56.1, so the Court will consider it. Because Plaintiff raised no other objections to paragraphs 1 to 97 and 110 to 118, the statements in those paragraphs are deemed admitted. See L.R. 56.1 (“All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.”).
As to paragraphs 98 to 109 regarding the administrative proceedings, I take judicial notice of the fact of those proceedings but do not consider Plaintiff to have agreed to the findings made therein.
The Court is not bound by the results of the administrative proceedings. As the Third Circuit explained, “when a federal employee comes to court to challenge, in whole or in part, the administrative disposition of his or her discrimination claims, the court must consider those claims de novo, and is not bound by the results of the administrative process, whether that process culminated in one administrative decision, or in two or more decisions.” Morris v. Rumsfeld, 420 F.3d 287, 294 (3d Cir. 2005) (discussing Title VII claims and analyzing 42 U.S.C. § 2000e-16(c)); see also Stone v. Johnson, 608 Fed.Appx. 126, 128 (3d Cir. 2015) (“[A] federal employee unhappy with the administrative decision may bring his or her claims to a district court, under Section 505(a) of the Rehabilitation Act, 29 U.S.C. § 794a(a), and receive the same de novo consideration that a private sector employee enjoys in a Title VII action[.]”). Defendant does not argue that the Court is bound by the issues decided in the administrative proceedings, and it stated in its Brief in Opposition to Plaintiff's Partial Motion for Summary Judgment that it does not challenge the application of this standard. (See Doc. 97, p. 14 n.5).
Accordingly, the following facts are based on Defendants' Statement of Material Facts (Doc. 93) and the parties' exhibits, viewed in the light most favorable to Plaintiff as the non-moving party.
A. Plaintiff's Employment with Defendant
On August 28, 2011, Plaintiff was promoted to the position of Supervisory Security Specialist with Defendant Department of the Navy. (Doc. 79, Answer to Second Amended Complaint, ¶¶ 9, 15). Plaintiff received a personnel form known as a SF-50 indicating the promotion. Id. Her position was within the Security Office, which was part of Weapons Support Systems (“WSS”). Id. The WSS was a component of the Navy and a “tenant activity” at what is commonly known as the Mechanicsburg Navy Depot. Id. The Naval Support Activity (“NSA”) Mechanicsburg was the Base Command responsible for operating the Mechanicsburg Navy Depot. Id. at ¶ 6. At all times relevant to this action, both WSS and NSA were subcomponents of the Navy, both located at and operating out of the Mechanicsburg Navy Depot. (Doc. 94-1, ¶ 1).
While Plaintiff served as Supervisory Security Specialist in the Security Office under WSS, her then-supervisor, WSS Security Director Michael Zynski, coded her position as eligible for situational telework. (Doc. 79, ¶ 44). On December 19, 2011, Zynski notified Plaintiff by email that “WSS Management [had] determined that she was eligible for situational telework only.” Id. at ¶¶ 14 and 21. Plaintiff utilized situational telework. (Doc. 93-1, pp. 404-05).
B. Realignment of Functions at Mechanicsburg Navy Depot
In October 2012, certain functions at the Mechanicsburg Navy Depot, including the Security Office, were “realigned” from WSS to Commander Navy Region Mid-Atlantic (“CNRMA”), NSA Mechanicsburg. (Doc. 79, ¶¶ 8, 31). On October 7, 2012 Plaintiff received another SF-50 personnel form “realigning” her from WSS Mechanicsburg to NSA Mechanicsburg. Id. at ¶¶ 9, 32. Plaintiff's essential functions as a Supervisory Security Specialist, as articulated in Agency Position No. AA659, did not change from the realignment. Id. at ¶ 33. Her employer, or “Agency, ” remained the Department of the Navy. In her position, both before and after the realignment, Plaintiff did not carry a gun or perform actual, day to day, police or fire duties. Id. at ¶ 11.
C. Plaintiff's Disability and Requests for Accommodation
On or about October 31, 2012, Plaintiff notified her chain of command, including Thomas Tyree, Deputy Director for Operations at CNRMA, to which NSA Mechanicsburg reports; Charles Hargraves, Site Manager for NSA Mechanicsburg; and Seth Farris, Operations Manager for NSA Mechanicsburg, that she was experiencing a “reactivation of her [L]yme disease”, and “may be requesting partial days, full days or extended leave.” (Doc. 93-1, p. 51).
On January 1, 2013, Plaintiff submitted a telework request, pursuant to her eligibility for situational telework under WSS. (Doc. 79, ¶¶ 35, 36). She testified at her deposition that, before the realignment, WSS allowed her to telework due to medical conditions including occasional flareups of disabling Lyme disease, chronic fatigue syndrome, and fibromyalgia. (Doc. 93-1, p. 412). Defendant disputes that Plaintiff's prior telework eligibility was granted as a reasonable accommodation, rather than based on the telework policies for her position at the time.
In a January 3, 2013 letter to Defendant, Dr. Seltzer, one of Plaintiff's treating physicians, stated he was treating her for active Lyme disease, Chronic Fatigue Syndrome, and Fibromyalgia. Id. at p. 27. The letter stated her condition “may result in symptoms including extreme pain and fatigue, which at worst can leave her completely incapacitated.” Id. Dr. Seltzer stated, “these issues may require [Plaintiff] to miss work, follow a modified schedule, work from home, etc. Please do not hesitate to call if you have any questions or would like to discuss further.” Id.
On January 7, 2013, Plaintiff emailed her chain of command, requesting an alternative work schedule of “a combination of office work (maybe 1/2 days), telework (remaining part of the day) and a combination of leave to attend the medical appointments” needed to diagnose and treat her illnesses. Id. at pp. 30-31. The email was titled “Reasonable Accommodations Requested.” Id.
On January 11, 2013, Plaintiff submitted DD Form 2946, a Telework Agreement, requesting situational telework from January 13, 2013 to January 12, 2014. Id. at p. 37. All employees authorized to telework must complete the DD Form 2946. Id. pp. 432-456. On the form, Plaintiff indicated she had completed the approved teleworking training. Id.
On or about January 18, 2013, Plaintiff's then first-level supervisor, Tyree, Deputy Director for Operations at CNRMA, disapproved the request for telework as an accommodation, stating,
Security directors are not eligible to telework. Access to classified material and SIPRNET is essential to keep commanding officers informed of changing FPCONS, events and FCC requirements.Id. at p. 37.
On January 23, 2013, Tyree forwarded Plaintiff's request for situational telework as a reasonable accommodation to the approving official, the CNRMA Commander, and recommended disapproval of Plaintiff's request. (Doc. 93-1, pp. 35-42). Tyree recommended that the Commander disapprove Plaintiff's accommodation request because
(a) [t]he medical documentation provided [did] not support a serious medical condition[;] (b) Security Directors need to be in the office to meet with subordinate staff, meet with CO/XO, meet with other Installation Program Directors[;] (c) Security Directors need to be in the office to access SIPRNET in order to change FPCON and assist with the fighting the installation via the AT plan[; and] (d) position is designated in TWMS as not eligible for Telework.Id. at p. 35. Tyree also stated, “I coordinated the interactive dialogue required by the Civilian Human Resources Manual (CHRM) with [Plaintiff], Mr. Seth Farris [Plaintiff's first-line supervisor after January 27, 2013], (both from NSA Mechanicsburg) and Ms. Carrie Hawk from HRO Mechanicsburg. I explained my misgivings about the bulleted items above, but this request is still submitted for COS decision.” Id. at p. 31.
Also on January 23, 2013, Dr. Seltzer wrote, “I write in response to your request for more specific information regarding [Plaintiff]'s need to telework. As I said previously, it is difficult to predict the duration of her current symptoms, but I think it is reasonable to assume they will last for at least another 4-6 weeks, if not longer. This accommodation will assist in [Plaintiff]'s work as physical activity takes a severe toll on her, and anything that can be done to limit her exertion will allow [Plaintiff] to work more effectively.” (Doc. 93-1, p. 33).
On February 4, 2013, CNRMA Chief of Staff, Captain Mary Jackson, disapproved Plaintiff's request for situational telework as a reasonable accommodation. Id. at. p. 43.
In a March 1, 2013 letter, Farris notified Plaintiff that her request for a reasonable accommodation of telework was denied. Id. at pp. 45-46. The letter stated that “there is no accommodation which can be provided that will enable you to perform the essential functions of your job or any other available position within command.” Id. It further stated,
This decision is based on the medical provided by your physician dated 3 January 2013 and 23 January 2013 which is provided as references (a) and (b), as well as the Telework Request ICO Ms. Lisa Davenport, dated 4 February 2013, which states your position is ineligible for telework, reference (c).Id. at p. 45.
D. Events from March 1, 2013 to Plaintiff's September 27, 2013 Removal
After March 1, 2013, Plaintiff did not return to work. (Doc. 79, ¶ 46). Defendant's demand that Plaintiff return to work fulltime caused Plaintiff stress that made her condition worse. (Doc. 93-1, p. 407). On March 7, 2013, Dr. Garabedian, another physician treating Plaintiff, advised that she was “experiencing severe exacerbation of her symptoms and [was] unable to perform her job description.” Id. at p. 48. Dr. Garabedian stated Plaintiff needed “a leave of absence for two weeks pending re-evaluation.” Id.
On March 10, 2013, Plaintiff sought reconsideration of the denial of her situational telework request. Id. at pp. 50-53. In her request, Plaintiff claimed she was “in an administrative position and not a working supervisory and therefore [she was] able to carry out the essential functions of [her] position if needed from [her] home for temporary periods of time.” Id. at p. 51.
In a March 21, 2013 letter, Dr. Garabedian stated Plaintiff's “condition had greatly deteriorated over the past few months, ” and she needs “a prolonged period of leave and home rest of at least 6-8 weeks away from her daily occupational stressors.” Id. at p. 55.
On April 5, 2013, Hargraves, Plaintiff's second-line supervisor, advised Plaintiff in a letter that he denied her request for reconsideration. Id. at pp. 57-61. The letter stated, “there is no accommodation, which can be provided, that will enable [Plaintiff] to perform the essential functions of [her] job or any other available position within the command.” Id. at p. 57. Hargraves explained that for Plaintiff's position of Supervisory Security Specialist,
This position description was created for the functional realignment of Security from NAVSUP WSS to CNRMA. Your NAVSUP WSS supervisor coded the position eligible for situational telework prior to the transfer. However, the equivalent Security Supervisor positions
across the other 15 CNRMA installations are coded as ineligible for Telework. Since no Telework agreement was in place with CNRMA, your request was staffed at CNRMA in accordance with CNRMA policy. The error in the coding of your position was discovered during the review of your request at CNRMA. Your position has been re-coded to make it consistent with the other CNRMA positions and CNRMA Telework Policy.Id. at p. 58.
Hargraves stated, “50% of [Plaintiff's] position description duties” included: “responsible for Physical Security, AntiTerrorism/Force Protection (AT/FP), and law enforcement[;] be “senior advisor to the Installation Commander[;]” “provide[] continuous updates to the Installation Commander on the status of corrective measures taken on the Core Vulnerability Assessment Management Program CVAMP)[;]” “maintain[] continuous assessments of the terrorist threat and criminal activity to the installation requires access to Secret Internet Protocol (SIPR) a secure system[;] represent[] [NSA] Mechanicsburg at meetings concerning AT/FP, law enforcement, and physical security issues[;] and “attend[] quarterly, or as required, meetings consisting of installation Security Officers in order to discuss AT/FP issues and to provide up-to-date information.” Id. at p. 59. This 50% of duties “may be only accomplished by being at the duty station.” Id.
The letter described that the other 50% of the duties of Plaintiff's position description were supervisory. Id. at pp. 59-60. The letter made no reference to where these duties had to be performed. See id.
In an April 29, 2013 letter, Dr. Garabedian again stated “Davenport's condition has greatly deteriorated over the past few months; she continues to experience marked increase in her pain and fatigue.” Id. at p. 63. Dr. Garabedian also stated, “[h]er treatment protocol has been re-adjusted and I suspect that extreme concerns about her ability to work is causing further deterioration of her condition and is slowing down her progress.” Id. Dr. Garabedian requested that the Navy provide Davenport “with a prolonged period of leave and home rest of at least 6-8 more weeks” to “stabilize her medical condition” and “facilitate her return to her job responsibilities which she is anxious to do.” Id.
In an April 30, 2013 medical certification, Dr. Garabedian stated Plaintiff was not “able to perform work of any kind, ” and her incapacitating condition began in February 2013, though she has had the conditions since 2003. (Doc. 93-1, p. 65).
In letters dated April 29, 2013, May 30, 2013, June 17, 2013, and July 17, 2013, Dr. Garabedian stated Plaintiff continued to need “a prolonged period of leave and home rest of least 6-8 weeks, ” as her condition had not improved at the time of each letter. Id. at p. 67.
In an August 8, 2013 Notice of Status, Farris advised Plaintiff she had “been continuously absent from work since 1 March 2013” and that there was “no improvement of [her] condition.” Id. at p. 73. He stated,
While I am concerned about your health and well-being, I must also be concerned with the efficiency of work operations as well. Your
inability to maintain a regular work schedule as the Security Director is contrary to the agency's mission. If your return to full-time work is not foreseeable in the near future, then your position needs to be filled with someone who is available to work on a full-time basis.Id. The Notice stated that if Plaintiff did not report to work and maintain her fulltime schedule by September 9, 2013, when her entitlement to approved leave expired, Farris would propose Plaintiff's removal, “because [her] continuing absence is creating a hardship that this Command can no longer endure.” Id.
On August 26, 2013, Plaintiff received a Notice of Proposed Removal, based on a charge of “Inability to Perform as a Result of a Medical Condition.” (Doc. 79, ¶ 51). The Notice of Proposed Removal stated, in pertinent part,
The medical evidence that you provided shows that you have permanent medical conditions. Because of these medical conditions, you have not been able to work or fulfill the requirements of your position since 1 March 2013. Your position is one that needs to be filled and this action will promote the efficiency of the service.(Docs. 63, ¶ 52; 79, ¶ 52).
On September 20, 2013, Defendant issued a Notice of Decision, sustaining the charge of inability to perform due to a medical condition and removing Plaintiff from her position effective September 27, 2013. (Doc. 93-1, p. 82). The Notice stated, “the record shows that you have been absent from work for medical reasons which are beyond your control and that your absence has continued well past a reasonable period of time and has become a burden on the command.” Id. It further stated, “you have been continually absent from your position as Security Director since 1 March 2013; with no foreseeable end to your unavailability” and that “[i]n your absence, other employee's [sic] have had to share many of your duties in addition to their own.” Id. at p. 83.
Plaintiff's position remained unfilled from September 27, 2013 to January 27, 2014, after which a Program Analyst was detailed to the position. (Doc. 79, ¶¶ 63, 65). From March 1, 2013 to January 27, 2014, Plaintiff's duties had been performed by several managers. Id. at 79, ¶ 62.
E. Administrative Proceedings
Plaintiff appealed her removal to the MSPB, challenging the decision to remove her and alleging that Defendant's denial of her request to use telework on an “as needed” basis constituted a failure to accommodate her medical conditions. The MSPB sustained Plaintiff's removal, and this case followed.
V. DISCUSSION
In her Amended Complaint, Plaintiff alleges that Defendant violated the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., by (1) discriminating against her due to disability when it removed her from her employment on September 27, 2013, and (2) failing to provide her with the reasonable accommodation of situational telework from January 1, 2013 to September 27, 2013. She also brings a claim of gender-based discrimination under Title VII of the Civil Rights Act of 1964.
Defendant argues it is entitled to summary judgment on all of Plaintiff's claims. I address each in turn.
A. Disability Discrimination
Defendant argues that Plaintiff cannot establish a prima facie disability discrimination claim because the undisputed record demonstrates she was unable to perform the essential functions of the Supervisory Security Specialist position with or without a reasonable accommodation. (Doc. 92, p. 13).
To establish a prima facie case of disability discrimination under the Rehabilitation Act, a plaintiff must demonstrate the following:
(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination.Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998).
Gaul addresses claims under the Americans with Disabilities Act (“ADA”), see 134 F.3d at 580, but claims under the Rehabilitation Act are subject to the standards of the ADA. See Muhammad v. Ct. of Common Pleas of Allegheny Cty., Pa., 483 Fed.Appx. 759, 763 (3d Cir. 2012).
For the second element, on which this case turns, “[t]he burden is on the employee to prove that [s]he is an otherwise qualified individual.” Id. (quoting Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.1996)). To determine whether someone is a “qualified individual, ” courts use a two-part test:
Defendant does not contest that Plaintiff satisfies elements one and three, as she is disabled under the Rehabilitation Act and her removal was an adverse employment action. (Doc. 94, p. 14).
[(1)] First, a court must consider whether “the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” [29 C.F.R. pt. 1630.2(m), App.]. [(2)] Second, the court must consider “whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.” Id. Id. “The determination of whether an individual with a disability is qualified is made at the time of the employment decision.” Id. (emphasis added) (quoting 29 C.F.R. pt. 1630.2(m)).
Therefore, whether Plaintiff is a qualified individual for purposes of her first claim of discrimination is based on her ability to perform the essential functions of her position at the time of her September 27, 2013 removal. See Gaul, 134 F.3d at 580 (quoting 29 C.F.R. pt. 1630.2(m)).
Defendant argues “there is simply no evidence for a juror to conclude that [Plaintiff] was able to perform the essential functions of her position with or without an accommodation” at the time of her removal in September 2013. (Doc. 92, p. 16). In support, Defendant describes the following as undisputed facts: Plaintiff did not return to work after March 1, 2013, and her doctor thereafter requested periods of leave and home rest of several weeks at a time. (Doc. 93, ¶ 70). Defendant advised Plaintiff she would need to return to work full-time on September 9, 2013, and Plaintiff on September 10, 2013 requested one year of approved leave due to her medical conditions. Id. at ¶¶ 60-61, 64. When Plaintiff did not report to work fulltime, Defendant removed her effective September 27, 2013. (Doc. 93, ¶ 65).
While Plaintiff testified at her deposition that there was a “possibility” she could have returned to her position without telework or other accommodations in September 2013, she also testified she did not attempt to go to work at that point because “the stress from being told that I was going to be let go along with my condition, the stress made it completely to the point where I was not able to do anything at that point.” (Doc. 93-1, p. 407-08). She added she would have kept working, “[i]t's just I needed accommodations to do so.” Id. at p. 408. However, her doctors' letters in the months preceding her termination did not request telework or a modified work schedule. Rather, they requested successive periods of six (6) to eight (8) weeks leave. Requests for leave generally are not reasonable accommodations, see Fogleman v. Greater Hazleton Health All., 122 Fed.Appx. 581, 585 (3d Cir. 2004), unless such leave “at the present time would enable the employee to perform his essential job functions in the near future” see Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004), as modified by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009). Plaintiff's final request on September 10, 2013 was for one year of leave. (Doc. 93, ¶¶ 60-61, 64).
Based on the doctor's letters in the several months leading up to Plaintiff's termination, as well as her deposition testimony that she was “not able to do anything” in regard to returning to work at the time of her removal, a reasonable jury could not conclude that she was able to perform the essential functions of her position in September 2013, with or without an accommodation. I recommend that Defendant's Motion for Summary Judgment be granted as to Plaintiff's claim of discrimination in her September 27, 2013 removal.
B. Failure to Accommodate
Defendant next seeks summary judgment on Plaintiff's claim that Defendant failed to accommodate her January 1, 2013 request for reasonable accommodations. (Doc. 92, pp. 20-24). Defendant again argues that Plaintiff cannot prove she was a qualified individual, as she could not perform the essential functions of her position with or without an accommodation.
As stated above, a prima facie case of employment discrimination requires that the plaintiff show she (1) is disabled within the meaning of the Rehabilitation Act; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) has suffered an adverse employment decision as a result of discrimination. See Gaul, 134 F.3d at 580.
Adverse employment decisions include an employer's refusal to make reasonable accommodations to an otherwise qualified individual with a disability, unless the employer can demonstrate the accommodation would impose an undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); see also Shiring, 90 F.3d at 831.
The “employment decision” for a reasonable accommodations claim is the refusal to make an accommodation. See Taylor, 184 F.3d at 306; see also Mercer v. Se. Penn. Transit Auth., 26 F.Supp.3d 432, 442 (E.D. Pa. 2014) (“An employer's denial of a request for a reasonable accommodation is a discrete act of discrimination that is an independently actionable unlawful employment practice . . . .”), aff'd sub nom. Mercer v. SEPTA, 608 Fed.Appx. 60 (3d Cir. 2015).
Therefore, for purposes of Plaintiff's failure-to-accommodate claim, whether she was a qualified individual is based on her ability at the time of Defendant's denials of her accommodation request in January and February 2013. See Gaul, 134 F.3d at 580. This analysis accordingly differs from the analysis in the prior claim, which considered whether Plaintiff was a qualified individual at the time of her removal in September 2013. .
1. Qualified Individual
Plaintiff bears the burden of proving she is a qualified individual. Shiring, 90 F.3d at 832 (quoting Buckingham v. United States, 998 F.2d 735, 739-40 (9th Cir.1993)). The question centers on whether she can perform the essential functions of her position, with or without reasonable accommodation. 29 C.F.R. § 1630.2(m); see also Buskirk v. Apollo Metals, 307 F.3d 160, 168 (3d Cir. 2002). The question of if a requested accommodation is reasonable is generally a question of fact. Buskirk, 307 F.3d at 170-71 (citing Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1101 (3d Cir. 1996)).
The parties do not dispute that Plaintiff has the qualifications for the position.
To determine if there is a genuine dispute as to the reasonableness of an accommodation, a court must first examine whether a plaintiff has made “at least a facial showing that such accommodation is possible, ” Buckingham, 998 F.2d at 740, and whether the accommodation “would have allowed [her] to perform the essential functions of the job, ” Bender v. Norfolk S. Corp., 31 F.Supp.3d 659, 666 (M.D. Pa. 2014). If the plaintiff makes a prima facia showing that her proposed accommodation is possible, the burden then shifts to the defendant “to prove, as an affirmative defense, that the accommodations requested by [Plaintiff] are unreasonable, or would cause an undue hardship on the employer.” Id.
In making this showing, an employee cannot rely on her own vague statements on the feasibility of an accommodation. Shiring, 90 F.3d at 832 (concluding plaintiff's “vague allegations in his deposition” that he could have been transferred to another position did not meet burden of showing open positions for which he was qualified). The determination of what functions are essential “may include, but is certainly not limited to, the employer's judgment as to which functions are essential and written job descriptions prepared before advertising or interviewing applicants for the job. However, the employee's actual experience is also relevant to the inquiry.” Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 326 (3d Cir. 2003) (quotations omitted).
A reasonable accommodation may include “measures such as ‘job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, . . . and other similar accommodations for individuals with disabilities.'” Gaul, 134 F.3d at 579-80 (quoting 42 U.S.C. § 12111(9)).
Defendant argues it “is simply not true” that Plaintiff could have performed the essential functions of her position at the time of her accommodation request because (1) Plaintiff failed to report to work after March 1, 2013, and (2) many of her essential functions that required being in-person were unpredictable and could not be scheduled for particular times. (Doc. 100, pp. 16-17).
Defendant's first argument is essentially that granting Plaintiff a reasonable accommodation in January 2013 would not have been possible because she could not work in March 2013. It is not clear how Plaintiff's medical conditions a month and a half after her telework request could be dispositive proof that granting her request was not feasible.
Defendant also argues that Plaintiff's statements in her May 2, 2013 application for disability retirement, including that she had “not been able to return to work since February 28, 2013” disprove her assertions of being a qualified individual. (Doc. 100, p. 9). First, this argument is again based on statements made four (4) months after Plaintiff requested an accommodation and Defendant denied it. (See Doc. 93-1, p. 409). Second, in context of applications for Social Security Disability Insurance (“SSDI”) benefits and reasonable accommodation claims, the Supreme Court and Third Circuit have concluded that apparent contradictions are not fatal: a “statement of inability to work [in an SSDI application] must be read as lacking the qualifier of reasonable accommodation.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 610 (3d Cir. 2006) (describing holding in Cleveland v. Pol'y Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). Further, “[w]hile Cleveland only specifically addressed a conflict between SSDI and ADA claims, the analysis is not limited in its application to cases involving those particular statutory and administrative schemes.” Detz v. Greiner Indus., Inc., 346 F.3d 109, 117 (3d Cir. 2003).
Defendant addresses the period from Plaintiff's telework request in early January to March 1, 2013 only once, stating,
In response to the question of whether he thought [Plaintiff] was capable of teleworking in the January through March 2013 time period, Dr. Garabedian had testified:
I had suggested that she should find a - an easier way to do her work, because there has been a gradual deterioration of her work capability. . . She was having a lot of problems even concentrating on her own issues or thinking . . .(Doc. 93-1 at 247 (R. 243 (MSPB transcript).)
In light of this undisputed evidence in the record, [Plaintiff] would have a juror believe that allowing her to work part of the day at the base and the remaining part of the day at home would somehow
accommodate her ability to focus and think clearly. Obviously, it would not.(Doc. 100, p. 13).
Defendant's suggestion that Plaintiff was unable to perform the essential functions of her position from January to March 1, 2013 due to her “problems” concentrating is at odds with Plaintiff's apparent continuation of work in that period. Defendant has not pointed to any evidence that Plaintiff was not performing the essential functions of her position during that time. The letter from Dr. Seltzer in January 2013 stated partial telework could accommodate Plaintiff's conditions and allow her “to work more effectively.” (Doc. 93-1, pp. 27, 33). This phrasing clearly contemplates Plaintiff' ability to continue working with accommodation despite those symptoms. In addition, Plaintiff testified at her deposition that the stress of being denied an accommodation “exacerbated the symptoms of my fibromyalgia and my chronic Lyme disease where it actually delayed, you know, the -- the feeling better and being able to function.” (Doc. 93-1, p. 409). A reasonable jury could find Plaintiff was capable of working at the time of her accommodation request and Defendant's denial of it.
Defendant's second argument is that many of Plaintiff's essential functions required being in-person, as they were unpredictable and could not be scheduled. (Doc. 100, pp. 16-17). Defendant asserts that certain “duties and essential functions” of Plaintiff's position are undisputed, citing to paragraphs 8 to 11, 14 to 16, and 18 to 23 of its Statement of Material Facts (Doc. 93). (See Doc. 92. pp. 14-15). Plaintiff did not contest those paragraphs in a responsive Statement of Facts, and she appears to agree that her position involved the duties Defendant describes, but she disputes that those duties are incompatible with situational telework. (Doc. 96, pp. 12-13). Defendant also asserts that “there is no dispute that Davenport's position required her to work full-time, eight hours a day, forty hours a week and report to NSA Mechanicsburg.” (Doc. 92, pp. 14-15). In support of this, Defendant cites to two paragraphs of its Statement of Material Facts and to this Court's May 8, 2019 decision (Doc. 42) on Count I. See Id. at pp. 14-15 & n.4.
Defendant's partial reliance on the Court's May 8, 2019 decision is misguided. First, the Court's review of Plaintiff's discrimination claims, which include her failure-to-accommodate claim, is de novo, and issues determined in the Court's disposition of Count I do not have a preclusive effect. See Morris, 420 F.3d at 294; Stone, 608 Fed.Appx. at 128. Further, the Court reviewed the MSPB's decision only to determine whether it was “(1) arbitrary, capricious or an abuse of discretion; (2) unsupported by substantial evidence or otherwise not in accordance with law; or (3) obtained without compliance with lawful procedures.” (Doc. 42, p. 15); see 5 U.S.C. §7703(c); Vanyan v. Hagel, 9 F.Supp.3d 629, 642 (E.D. Va. 2014). The Court did not make findings of fact, but rather determined whether the MSPB's findings were supported by substantial evidence. It therefore is misleading to assert that “[t]his Court determined [a particular issue] was an undisputed fact in its May 8, 2019 decision, ” as Defendant does. (See, e.g., Doc.92, p. 15 n.4). Lastly, fact discovery in this matter closed on November 30, 2020-well over a year after the Court's decision on the severed Count I. Evidence gathered in that period could have put an issue into dispute. This is particularly so when the Court's review of the MSPB decision was limited to the administrative record. (Doc. 42, p. 15).
In the April 5, 2013 denial of Plaintiff's request for reconsideration of her telework request denial, Plaintiff's second-line supervisor, Hargraves, described the essential functions of Plaintiff's position. (See Doc. 93, ¶¶ 47-53). Hargreaves described that “50% of her position description duties” included certain specified functions and that “may be only accomplished by being at the duty station.” Id. At ¶¶ 50-51 (quoting Doc. 93-1, p. 59) (emphases added). Defendant's Statement of Material Facts describes the remainder of the essential functions as follows:
Hargraves also noted that the other “50% of her position description duties” were supervisory and included: “ensur[es] operations and related programs are accomplished efficiently and effectively[;]” “supervises and directs a Naval Security Force of 38 civilians ranging in grade from GS-5 to GS-10[;]” “exercises managerial and supervisory authority to oversee the overall planning, direction, and execution administered by the staff regarding all aspects of AT/FP, law enforcement, and Physical Security Programs[;]” “assigns, priorities, reviews, and evaluates work upon completion[;]” “develops performance standards and prepared performance evaluations, advises employees on work and administrative matters[;]” “plans work and sets and adjusts short and long range work priorities, schedules, and sets time for completion of work[;]” “determine[s] training needs[;]” “interviews and coordinates for Security positions[;]”
“hear[s] and resolve[s] complaints[;]” and “directly supervises subordinates.”(Doc. 93, ¶ 52 (quoting Doc. 93-1, p. 59)).
Plaintiff argues that none of these essential functions changed after the realignment of the Security Office from WSS to NSA in late 2012, so her eligibility for telework before the realignment belies Defendant's assertion that the essential functions of her position precluded telework after the realignment. (Doc. 96, pp. 12-13). It appears undisputed that the essential functions of Plaintiff's position did not change following the realignment of the Security Office. At the least, a reasonable jury could find based on the record there was no change.
In its answer to the Second Amended Complaint, Defendant admitted with clarification Plaintiff's allegation that “None of Davenport's essential functions as a Supervisory Security Specialist changed as a result of this re-alignment” (Doc. 63, p. 33), stating, “None of Davenport's essential functions as a Supervisory Security Specialist as articulated in Agency Position Number AA659 changed as a result of this transfer of Force Protection and Dispatch base operating support functions.” (Doc. 79, ¶ 33).
Plaintiff then argues, based on this continuity of essential functions, that her requested accommodation in January 2013 of partial telework was possible. She explains that she could have arranged her schedule to be present at the office for necessarily on-site work, such as face-to-face meetings or accessing classified information. (Doc. 96, p. 14). The record contains support for this contention. For example, Plaintiff testified at her deposition that the accommodations provided to her under WSS prior to 2013 were still possible at the time of her request in January 2013:
If you don't feel well, you can have telework. You can -- you could stay -- you know, stay home and telework. You could actually do -- if you needed to take leave, work part time until you feel well enough to come back full time. I mean, the combinations were there under WSS. They were not provided under CNRMA. And there was no -- no indication when I asked the question at my interview whether, you know, they would have an issue with that. And [CNRMA] said no, they understood that I had fibromyalgia, chronic fatigue, and Lyme disease.
You know, these -- these meetings and the things that you were asking for before, they were all done under WSS. These accommodations were provided under WSS, the same SIPRNET access, the same meetings that were required with the captain. None of that changed. And although the topics may have been different discussed or the SIPRNET messages, they were still SIPRNET access. So if for some reason I wasn't there, then -- you know, then another individual could look them up.
However, again, there was nothing new -- when this transition took place from NAVSUP, WSS to CNRMA, the job was the same. The only thing that was different was who I was actually working for. And that went from NAVSUP WSS to CNRMA. So there wasn't any type of special meetings that all of a sudden started in -- in September -- or January of 2013 until September of ‘13. Those were present back when I got the job . . . in August of 2011. . . . [T]he only thing that changed during that entire period from the time I got my job in August of 2011 to 2013 is who I actually reported to. All of that stuff was able to be done under telework under WSS, but CNRMA never provided me the opportunity to do that.(Doc. 93-1, pp. 412-13).
Based on Defendant's own description of the essential functions of the position, a reasonable jury could find that 50% of those functions did not require being in person, and then infer that those functions could be accomplished via telework. Further, Plaintiff was eligible for telework prior to the realignment, and one of Plaintiff's coworkers, Supervisory Security Specialist Dean Lewis in the Security Office, was also approved for situational telework before the realignment. (See Docs. 63, ¶ 23; 79, ¶ 23). Defendant does not identify any change in the essential functions of Plaintiff's position-as opposed to a change in management policy- following the realignment that would suddenly preclude situational telework.
The record also suggests that many essential functions Defendant identifies as needing to occur in person do not occur regularly. For example, Plaintiff testified at her deposition that the classified briefings she was required to provide to the commanding officer occurred “[o]ccasionally” and were not every week. (Doc. 93-1, p. 401). In Plaintiff's letter asking for reconsideration of the denial of partial telework, Plaintiff stated that she had needed to access SIPRNET, a classified network that could only be access in-person, “only sporadically over the last 17 month period of time.” (Doc. 93-1, p. 52). She also testified at her deposition that others in her chain of command could access SIPRNET, and that with each SIPRNET message that went out, an unclassified version also went out to other individuals, often the entire base. (Doc. 93-1, pp. 401-02).
Accordingly, based on this record, including Plaintiff's history of teleworking while performing the same essential functions and Hargraves' description of Plaintiff's position as having 50% of essential functions that must be performed on-site, a reasonable jury could find that the essential functions of Plaintiff's position were not incompatible with telework and that Plaintiff could have performed those essential functions with the reasonable accommodation of partial telework at the time of Defendant's January 2013 denial. Further, based on the feasibility of partial telework prior to the realignment, a jury could make the reasonable inference that the accommodation would not have placed an undue burden on Defendant.
Lastly, viewing the record in the light most favorable to Plaintiff, a reasonable jury could credit Plaintiff's deposition testimony that her eligibility for telework before the realignment was specifically provided as a reasonable accommodation. Persuasive caselaw supports the proposition that an employer violates the Rehabilitation Act if it withdraws a previously granted reasonable accommodation following a change in management policies, absent any other change in circumstances. See Sandor v. Delmont Borough, 92 F.Supp.3d 355 (W.D. Pa. 2015); see also Bilinsky v. American Airlines, 928 F.3d 565 (7th Cir. 2019); Isbell v. John Crane, Inc., 30 F.Supp.3d 725 (N.D. Ill. 2014).
2. Interactive Process
Plaintiff also argues that summary judgment is inappropriate because there is a genuine issue of material fact as to whether Defendant engaged in the interactive process in good faith.
Employers must engage in a good faith interactive process when an employee requests an accommodation due to disability. Taylor, 184 F.3d at 311-12. An employee can establish that an employer breached its duty to provide reasonable accommodations by showing that
1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faithId. at 319-20.
Regarding the second factor, that the employee requested accommodations, the request can come from someone other than the employee, such as a health professional. Id. at 313. The request need only state both the disability and desire for an accommodation. Id. An employer is still required to engage in the interactive process even if the accommodation the employee proposes is not feasible. Id. at 315.
As to the third factor, good faith, the Third Circuit in Taylor described actions that can show an employer's good faith:
meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee's request, and offer and discuss available alternatives when the request is too burdensome.Id. at 317.
In Taylor, the only specific accommodation the employee requested was transfer to another position, which the employee later conceded was infeasible. 184 F.3d at 315. The employer had argued that this relieved it of its obligation to engage in an interactive process. Id. The Third Circuit observed, “We do not think that it is fatal to [plaintiff's] claim that her son did not request a specific accommodation or that [plaintiff]'s request in March of 1994 was for an accommodation that she admitted was not possible.” Id. The Court explained,
The interactive process, as its name implies, requires the employer to take some initiative. . . . The interactive process would have little meaning if it was interpreted to allow employers, in the face of a request for accommodation, simply to sit back passively, offer nothing, and then, in post-termination litigation, try to knock down every specific accommodation as too burdensome.
. . . [I]t would make little sense to insist that the employee must have arrived at the end product of the interactive process before the employer has a duty to participate in that process.Id.
Good faith is required on both sides: an employer should not be faulted if it confers with the employee and “the employee then fails to supply information that the employer needs or does not answer the employer's request for more detailed proposals.” Id. at 317.
Lastly, as the fourth factor suggests, employer bad faith in the interactive process alone is not sufficient to allow the plaintiff to recover, as the employee must still “show[] that a reasonable accommodation was possible.” Donahue v. Consol. Rail Corp., 224 F.3d 226, 234-35 (3d Cir. 2000). This showing is lessened at the summary judgment stage, however, as “we will not readily decide on summary judgment that accommodation was not possible” if there is some evidence that the employer did not act in good faith. Taylor, 184 F.3d at 318; see also Id. at 235. “Thus, where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be precluded.” Taylor, 184 F.3d at 318.
Here, Plaintiff argues that Defendant failed to engage in the interactive process in good faith. (Doc. 96, p. 15). Plaintiff further asserts that Defendant, as part of the federal government, was required to act as a “model employer for individuals with disabilities, ” as described in 29 C.F.R. § 1614.203(c). (Doc. 96, p. 7). Defendant does not address the interactive process in its Brief in Support. In its Reply Brief, Defendant asserts that it had no duty to engage in this interactive process because “it is undisputed that as of March 1, 2013, [Plaintiff] was not a qualified individual with a disability because she could not perform the essential functions of her position with or without an accommodation.” (Doc. 100, pp. 22-23).
Defendant appears to be arguing that any accommodation involving telework would have been impossible given the essential functions of the position. I have already concluded that a reasonable jury could find that the accommodation of partial telework would have allowed Plaintiff to perform the essential functions of her position and that it would not cause Defendant an undue burden. Moreover, “if reasonable accommodation is impossible, nothing more than communication to the employee of this fact is required. Nonetheless, if an employer fails to engage in the interactive process, it may not discover a way in which the employee's disability could have been reasonably accommodated, thereby risking violation of the Rehabilitation Act.” Mengine v. Runyon, 114 F.3d 415, 420-21 (3d Cir. 1997).
Plaintiff argues that Defendant's letters denying her request for accommodations show that it never considered the feasibility of her and her doctors' requests to allow her to work in the office part-time and telework part-time, but that it instead relied only on the lack of a telework policy for Plaintiff's position following the realignment. (See Doc. 96, pp. 15-17). Although the January 23, 2013 denial of Plaintiff's accommodation request by Tyree, Deputy Director for Operations at CNRMA, states that he “coordinated the interactive dialogue” with Plaintiff and others, the denial then states that “I explained my misgivings about the bulleted items above, but this request is still submitted for COS decision.” (Doc. 93-1, p. 31). The bulleted list stated that Tyree was recommending denial because of the inadequacy of Plaintiff's medical records, because certain of Plaintiff's essential functions had to be performed on-site, and because her position was not designated for telework. These are the same reasons Tyree wrote on the January 18, 2013 form recommending denial. See Id. at p. 37.
Based on the above, there appears to be a genuine dispute as to whether Defendant based its denial in whole or in part on its telework policy, even though Plaintiff had been permitted to telework previously while performing the same essential functions. Such a reliance on a policy and unwillingness to engage with Plaintiff on other possible accommodations-instead demanding only that Plaintiff return to work five (5) days a week, forty (40) hours a week-could evince a failure to engage in good faith in the interactive process. Dayoub v. Penn-Del Directory Co., 48 F.Supp.2d 486, 493 (E.D. Pa. 1999) (“Insisting that an employee, who requests reassignment, return to work in his former position ‘at full capacity' is wholly inconsistent with an employer's obligations to act in good faith in the interactive process an seek a reasonable accommodation.”).
When, as here, “there is a genuine dispute about whether the employer acted in good faith, ” then “summary judgment will typically be precluded.” Taylor, 184 F.3d at 318. Because Defendant has not established the absence of a genuine dispute as to its good faith participation in the interactive process, summary judgment is not appropriate on Plaintiff's reasonable accommodation claim.
In summary, a reasonable jury could find that Plaintiff was a qualified individual such that she could have performed the essential functions of her position with a reasonable accommodation at the time Defendant denied her accommodation request. In addition, viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence to raise a genuine issue of material fact as to whether Defendant engaged in the interactive process in good faith, which also precludes summary judgment. I therefore recommend that the Court deny Defendant's Motion as to Plaintiff's failure-to-accommodate claim.
C. Gender Discrimination
Defendant argues that Plaintiff's gender discrimination claim fails because she has not exhausted her administrative remedies (Doc. 92, p. 24), as is required before bringing a claim of unlawful discrimination in federal employment. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976); Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 91-93, 96 (1990).
In her responsive Brief, Plaintiff states she withdraws this claim. (Doc. 96, pp. 20-21). Because Plaintiff does not contest the issue, and because the record establishes that Plaintiff did not exhaust her administrative remedies as to her claim of gender discrimination, as is required before raising it in a claim federal court, I recommend that summary judgment be granted for Defendant on this claim. VI. RECOMMENDATION
For those reasons, I RECOMMEND:
1. Defendant's Motion for Summary Judgment (Doc. 91) be GRANTED in PART and DENIED in PART, as follows:
a. Defendant's Motion for Summary Judgment should be GRANTED as to Plaintiff's disability discrimination claim based on her September 27, 2013 removal;
b. Defendants Motion for Summary Judgment on Plaintiff's gender discrimination claim should be DISMISSED; and, c. Defendant's Motion should be DENIED as to Plaintiff's reasonable accommodations claim.
NOTICE OF RIGHT TO OBJECT
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.