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Fulkerson v. Colvin

United States District Court, D. New Mexico

April 6, 2018

WILLIAM FULKERSON, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of the SOCIAL SECURITY ADMINISTRATION, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Bobby R. Baldock United States Circuit Judge. [*]

         Plaintiff William Fulkerson complains that his former employer, Defendant Social Security Administration (SSA), engaged in employment discrimination on the basis of disability, in violation of the Americans with Disabilities Act of 1990 (ADA), and retaliation, in violation of Title VII of the Civil Rights Act of 1964. Before the Court is Defendant's motion for summary judgment on both claims. Doc. 52. Upon motion, a district court should enter summary judgment if the evidence “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” when it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” when a reasonable jury could find in favor of the nonmovant. Id. To make this showing, the nonmovant must produce more than “a scintilla of evidence in support of [his] position.” Id. at 252.

         Defendant, as the moving party, has the initial burden to show “there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Defendant meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter. Id. In so doing, the nonmoving party may not rest solely on the allegations in its pleadings, but must instead, by its “own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The factual record and reasonable inferences are viewed in the light most favorable to the party opposing summary judgment. Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017). At the summary judgment stage, the judge's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, Inc., 477 U.S. at 249.

         I.

         This lawsuit arises from Plaintiff's employment as a Staff Assistant in the SSA Mega Teleservice Center (TSC) located in Albuquerque, New Mexico. Plaintiff began working for Defendant in 1989 and retired from the agency in February 2013. During that time, Plaintiff filed multiple Equal Employment Opportunity (EEO) complaints for disability discrimination and retaliation. In 2004, Plaintiff was diagnosed with Hepatitis C and depression. That same year, Plaintiff filed an EEO complaint for disability discrimination, naming Terry Clements (TSC Director) as the alleged discriminating official. Upon returning to work after eleven months of chemotherapy for Hepatitis C, Clements reassigned Plaintiff within the TSC from Section Manager to Staff Assistant. In 2005, Plaintiff filed an EEO complaint for retaliation, naming Clements as the alleged discriminating official. Notably, Plaintiff did not administratively exhaust his 2004 and 2005 EEO claims.

         Plaintiff's disability discrimination and retaliation claims currently before this Court stem from a second round of EEO claims Plaintiff filed on January 5, 2012 and April 18, 2012.[2] The second round of EEO claims were based on two disabilities: diverticulitis and posttraumatic stress disorder (PTSD). In these new EEO complaints, Plaintiff alleged Defendant discriminated against him and subjected him to a hostile work environment in retaliation for his prior EEO activity.

         To establish his disability discrimination and retaliation claims, Plaintiff asserts a series of alleged adverse actions. In 2008, Defendant assigned Plaintiff a new supervisor, Kathryn Rhoads. Plaintiff claims Rhoads knew about his 2004 and 2005 EEO complaints and his medical conditions, and as a result, Rhoads created a hostile work environment that caused Plaintiff to suffer from PTSD. Plaintiff alleges Rhoads made critical comments during several performance evaluations that Plaintiff interpreted to be retaliatory. For example, in November 2009, despite working at the TSC for two decades, Plaintiff claims he felt threatened during his year-end evaluation when Rhoads allegedly said, “You know I am the only one here who knows you.” Doc. 55-2 at 3. During Plaintiff's mid-year evaluation in April 2010, Plaintiff met with Rhoads to discuss Plaintiff's work performance. Plaintiff alleges Rhoads made critical comments during his review including, “You are really, really slow, ” and “You have a bad reputation.” Doc. 1 at 3. Despite Rhoads' alleged critical comments, Plaintiff also acknowledged that Rhoads worked to promote his skills. For instance, in June 2010, Rhoads requested and received approval from management to give Plaintiff an assignment to attend management meetings in an effort to help develop his skills. By the time Rhoads completed Plaintiff's 2010 year-end performance review, Rhoads ranked Plaintiff “5” out of “5” for Interpersonal Skills, noted Plaintiff's improvement, and encouraged Plaintiff to continue to find opportunities to maintain good working relationships with his colleagues.

         On June 22, 2011, Plaintiff claims Rhoads told Plaintiff he was not a “team player” because “he questioned why the regional work cadre did not attend job related training.” Doc. 55 at 7. Two days later, Plaintiff met with the TSC Director, Mikel Rowley, and TSC Deputy Director, Cynthia Steinberg, to inform them about Rhoads' “team player” comment and to request a new supervisor. He also sought to use the meeting as a vehicle to obtain a promotion, submitting a job application to Rowley at the meeting. Doc 55-1 at 21. According to Plaintiff, after their meeting, Rowley and Steinberg did not help advance Plaintiff's career and downplayed Rhoads' actions. According to Rowley, he followed up on Plaintiff's complaints by talking to Rhoads and discussing ways to improve communication. Rowley did not take further action because “[he] did not see these concerns as being severe enough to change [Plaintiff's] supervisor” and he “didn't see any retaliation.” Doc. 55-2 at 22; Doc. 55-1 at 23. Additionally, Rowley did not award Plaintiff the job he applied for because Rowley did not think he would be successful in the position due to his history of yelling at his colleagues, including Rowley, Rhoads, and Kloeppel. Doc. 55-1 at 23 (yelling at Kloeppel); Doc. 55-1 at 25 (yelling at Rowley); Doc. 55-2 at 14, 22 (yelling at Rhoads).

         In early August 2011, Plaintiff spoke with Rhoads on the phone. During their conversation, Rhoads allegedly “berated” Plaintiff about his plans for an upcoming training session. Doc. 55 at 27. Unbeknownst to Rhoads, her voice was audible to another SSA employee who was with Plaintiff during the phone call. Plaintiff claims he felt embarrassed to be disciplined by his boss in front of the other SSA employee. A few days later, Plaintiff sent an email to Rowley to explain his issues with Rhoads and to request a new supervisor, again. Shortly thereafter, Rhoads told Plaintiff he would have to leave the Claims Section if he wanted a new supervisor. Plaintiff interpreted Rhoads' statement as a threat, even though it was factually true because Rhoads was the supervisor of the Claims Section at that time. On August 9, Rhoads sent Plaintiff an email stating she had communication and trust issues with him. On September 23, 2011, Rowley, Steinberg, and Rhoads met with Plaintiff again to discuss his issues with Rhoads. During the meeting, management denied Plaintiff's claims of alleged misconduct. Following the meeting, Plaintiff was dissatisfied with management's response and felt they failed to take any appropriate action to resolve the issue.

         In October 2011, Defendant made several changes related to Plaintiff's employment that Plaintiff finds objectionable. For example, starting that month, Defendant changed its Officer-In-Charge (OIC) policy. Because of the policy change, Plaintiff was no longer eligible to serve as OIC. On October 19, 2011, Rhoads gave Plaintiff a “3” out of “5” for “Interpersonal Skills” as part of Plaintiff's employment performance rating. And upon completion of Plaintiff's temporary management development assignment on October 28, Defendant informed Plaintiff that he no longer needed to attend management meetings as part of his assignment.

         In an effort to respond to Plaintiff's request for a new supervisor, Defendant assigned Sue Kloeppel as Plaintiff's new supervisor in the Claims Section in October 2011, but Plaintiff's complaints about his supervisors continued. On November 23, Kloeppel issued an oral warning to Plaintiff for allegedly yelling at her. According to Plaintiff, this was the first time he was disciplined at work. On February 7, 2012, Kloeppel sent Plaintiff an email about Plaintiff's interference with personnel issues. According to Plaintiff, Kloeppel intended to use the email to harass, threaten, and retaliate against him. And on March 12, 2012, Plaintiff alleges Rowley told Plaintiff his job duties would be determined by Plaintiff's upcoming mediation regarding his second-round EEO claims.

         Notably, Plaintiff's EEO complaints at issue and all of the alleged instances of discrimination and retaliation mentioned pre-date Plaintiff's diagnosis with diverticulitis and PTSD. Defendant was diagnosed with diverticulitis in May 2012 and diagnosed with PTSD in January 2013.[3] In November 2012, Plaintiff was “determined to be totally disabled.” Doc.1 at 4. His last official day at the TSC was on February 8, 2013. Plaintiff subsequently retired when his application for disability was approved.

         II.

         In his complaint, Plaintiff alleges “Defendant discriminated against Plaintiff in the terms and conditions of his employment on the basis of his disabilities” in violation of the Americans with Disabilities Act of 1990 (ADA). Doc. 1 at 4. The ADA prohibits employers from discriminating in employment on the basis of a disability. 42 U.S.C. § 12112(a). The United States, however, is specifically excluded from the statutory definition of “employer” within the ADA. 42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer' does not include the United States.”). SSA is an independent agency of the United States federal government. Neither party disputes that SSA is a federal agency or that Plaintiff was a federal employee. Accordingly, Plaintiff cannot maintain a claim against Defendant under the ADA. See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (“As a federal employee, Rivera has no remedy for employment discrimination under the ADA. . . . His sole claim for discrimination on the basis of disability is under the Rehabilitation Act.”); Bolden v. Ashcroft, 515 F.Supp.2d 127, 137 (D.D.C. 2007) (dismissing an ADA claim against the U.S. Marshall Service because “[t]he ADA explicitly exempts the federal government from coverage.”).

         The Rehabilitation Act of 1973, instead, is the appropriate statute to bring Plaintiff's disability discrimination claim because it is the exclusive remedy for federal employees alleging disability discrimination against the United States or its agencies. 29 U.S.C. § 791; Johnson v. United States Postal Serv., 861 F.2d 1475, 1477 (10th Cir. 1988). In his complaint, Plaintiff did not allege disability discrimination on the basis of the Rehabilitation Act.[4] In his response to Defendant's motion for summary judgment, Plaintiff omitted his ADA claim and changed his argument to rely on the Rehabilitation Act. “[A] party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P 15(a)(2). Given Plaintiff did not amend his complaint, this Court dismisses Plaintiff's claims against Defendant regarding disability discrimination under the ADA.[5]

         III.

         Plaintiff also claims Defendant retaliated against Plaintiff in the terms and conditions of his employment, in violation of Title VII. 42 U.S.C. § 2000e. Specifically, Plaintiff claims he was “retaliated against for engaging in protected activities by subjecting Plaintiff to a hostile work environment.” Doc. 55 at 25.

         A.

         The antiretaliation provision of Title VII forbids “discriminat[ion] against” an employee or job applicant who, inter alia, has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a). To allege a prima facie case of retaliation, Plaintiff must allege “(1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). If Plaintiff has alleged a prima facie case of retaliation, the burden shifts to Defendant to show that the action was taken for a legitimate, non-discriminatory reason. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). This burden is one of production, not persuasion. Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). “The relevant inquiry is not whether [Defendant's] proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.” Lobato v. New Mexico Env't Dep't, 733 F.3d 1283, 1289 (10th Cir. 2013) (citation and internal brackets omitted).

         If Defendant satisfies its burden of producing evidence that the action was taken for legitimate, non-discriminatory reason, Plaintiff has the burden of establishing that Defendant's proffered explanation is pretextual. Hansen v. SkyWestAirlines, 844 F.3d 914, 925 (10th Cir. 2016). Plaintiff may establish pretext by pointing out “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Defendant's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that [Defendant] did not act for the asserted non-discriminatory reasons.” Lobato, 733 F.3d at 1289. The Tenth Circuit has opined that an employee generally may establish pretext in one of three ways. An employee may present evidence that (1) the employer's stated reasons for an adverse employment action are false; (2) the employer acted contrary to a written company policy prescribing ...


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