DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER

Presently before the Court is Defendant Chad F. Wolf's ("Secretary") "Motion for Summary Judgment" (ECF No. 22), as substituted by his "Substituted Motion for Summary Judgment" (ECF No. 31). Also, before the Court is United States Magistrate Judge Anne T. Berton's Report and Recommendation (ECF No. 40) ("R&R") on the Secretary's motion. For the reasons that follow, the Court ACCEPTS IN PART and REJECTS IN PART the magistrate judge's R&R, and it GRANTS IN PART and DENIES IN PART the Secretary's motion.

I. BACKGROUND

A. Factual Background

Plaintiff Joseph L. Burns is a Field Technology Officer ("FTO") Telecommunications Specialist who began working for the United States Customs and Border Protection ("CBP") on August 12, 2012. As an FTO, Plaintiff is responsible for maintaining sensors and sensor repeaters, and assisting with other radio and video systems ("RVS"). FTO job duties include climbing tall ladders, RVS poles, water and radio towers. FTOs receive "hazard pay" (additional 25% of base pay) for each day their duties require them to climb a tower. When FTOs climb towers, they do so in teams of two; one of the duties of a tower climber is to rescue his partner in the event something happens to the partner.

Burns has suffered from migraines since 1998 and from lumber spine puncture with back pain since 2002. Throughout his employment with CBP, Burns has been capable of performing his job as an FTO, has not had any safety issues, and has never sought a reasonable accommodation.

Marcus Yrrobali is Burns's current supervisor, and Richard Apodaca was his prior supervisor. Prior to becoming Burns's supervisor in December 2015, Yrrobali was an FTO and Burns's colleague. During Yrrobali's transition into his role as supervisor, Apodaca informed Yrrobali that some of Burns's co-workers had some concerns about Burns's migraine headaches. Prior to Yrrobali's transition, Apodaca and Yrrobali each knew that Burns suffered from migraine headaches. According to Apodaca, the co-workers' safety concerns were brought to his attention by his then secretary, Jeanie Molinar. Molinar, who has since retired, disputes Apodaca's account. Yrrobali did not confirm with Molinar or any other employee about who had raised the concerns. None of Burns's RVS team members stated that they ever reported any concerns to Apodaca or Molinar regarding Burns.

Yrrobali sought guidance from his supervisor, Victor Fernandez, on how to address the safety concerns Apodaca brought to his attention. Fernandez directed Yrrobali to seek guidance from Maria Benn with CBP's Labor and Employee Relations (LER). LER specialists, such as Benn, are the human resource specialist for CBP.

On March 14, 2016, Yrrobali sent an email to Benn regarding his safety concerns, and those Apodaca brought to his attention, about Burns ("March 14, 2016 email"). The parties dispute whether some of Yrrobali's statements in the email are false and the sources wherefrom Yrrobali implicitly claimed to have learned the information he provides in the email about Burns. In response, Benn advised Yrrobali to prohibit Burns from climbing until Burns provided medical documentation regarding his medical conditions and medications.

On April 6, 2016, Yrrobali issued a letter to Burns (hereinafter, the first letter or April 6, 2016 letter), restricting him from climbing until Burns submitted medical documentation from his physicians. The letter asked Burns's physician to provide a litany of information on, inter alia , diagnosis of Burns's conditions and impairments, the impact they were having on his life activities, and whether he was "a danger to yourself or others." The stated purpose of the letter was to evaluate Burns's ability to perform the hazardous duty portion (tower climbing) of your official duties of a telecommunications specialist.

On April 27, 2016, Burns provided Yrrobali a letter from Dr. Robbie Rampy. In his letter, Dr. Rampy's stated that Burns has chronic migraine headaches and degenerative disc disease of the lumbar spine. He stated: "Some of his medications can cause drowsiness[,] and it is not recommended that he climb a tower when he is drowsy." In addition, Rampy stated that while Burns did not appear to be a danger to himself or others, but because Rampy is not a behavioral health specialist, he could not comment, without resorting to speculation.

LER forwarded Dr. Rampy's letter to CBP's Medical Fitness Branch (MBF), which, upon review, informed Benn on May 5, 2016, that the letter was inadequate to determine if Burns could safely resume his hazardous duties and further recommended a request for additional information while continuing to restrict Burns to nonhazardous duties. On August 22, 2016, Yrrobali issued a second letter to Burns (hereinafter, the second letter or August 22, 2016 letter), informing Burns that Dr. Rampy's letter was insufficient and requesting additional medical information. The letter requested description of Burns's current medical status and use of sedating medications; and an opinion on whether his medical conditions and medications are likely to impede his ability to engage in hazardous activities, such as climbing heights, crouching/crawling, and so on.

After receiving the second letter, Burns sought informal Equal Employment Opportunity (EEO) counseling in late August 2016. In early September 2016, Burns and Yrrobali discussed the possibility of Burns continuing to inform his team when he could not climb, as he had done since 2012, as a possible resolution to the ongoing requests for medical documentation. The parties dispute whether Burns also suggested that he inform Yrrobali when he has taken his medications and could not climb.

On September 14, 2016, after consultation with Benn and Fernandez, Yrrobali served Burns a third letter (hereinafter, the third letter or September 14, 2016 letter), rescinding the second letter's requests for additional medical documentation. It instead prohibited Burns from climbing when he has taken the prescribed medications Dr. Rampy referenced in his letter. It further instructed Burns to immediately notify his supervisor when he has taken such medications.

On September 22, 2016, CBP notified Burns of the conclusion of the EEO counseling and his right to file an EEO complaint. On September 30, 2016, Burns filed a formal EEO complaint of discrimination. On May 26, 2017, the Department of Homeland Security's Office for Civil Rights and Civil Liberties issued its Final Agency Decision on his administrative complaint.

B. Procedural Background

On August 24, 2017, Burns brought the instant lawsuit against the Secretary. In his judicial complaint, he alleges that the CBP violated § 501 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791, "by harassing and requiring Burns to provide medical documentation based on a disability while other 0391 Telecommunications Specialist are not required to provide medical documentation." Compl. ¶ 12, ECF No. 1.

On April 4, 2019, the Secretary filed his "Motion for Summary Judgment," seeking summary judgment on all of Burns's claims, and on May 31, 2019, the Secretary filed his "Substituted Motion for Summary Judgment." The briefing on the motion was completed on June 21, 2019. In July 2019, the Court referred the Secretary's motion to United States Magistrate Judge Anne T. Berton for a report and recommendation to the Court pursuant to 28 U.S.C. § 636(b)(1)(B). In August 2019, the magistrate judge issued her R&R, wherein, she recommended that the Secretary's motion be granted in part and denied in part. In September 2019, the Secretary filed his written objections to the R&R. Def.'s Objs. to R&R, ECF No. 43. Burns did not file any objection to the R&R.

II. STANDARD

A. Standard for Reviewing Report and Recommendations

When a party files timely written objections to a magistrate judge's report and recommendation, the district judge must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b)(3) ; United States v. Raddatz , 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ("[I]n providing for a ‘de novo determination,’ rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations."). After completing its review of the report, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b)(3).

As to other portions—that is, the unobjected-to portions—of the magistrate judge's report or when a party does not file written objections, the district judge applies a "clearly erroneous, abuse of discretion and contrary to law" standard of review. United States v. Wilson , 864 F.2d 1219, 1221 (5th Cir. 1989). A finding "is clearly erroneous if the court ‘is left with the definite and firm conviction that a mistake has been committed.’ " Alphonse v. Arch Bay Holdings, L.L.C. , 618 F. App'x 765, 768 (5th Cir. 2015) (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ).

B. Standard for Summary Judgment

Summary judgment is appropriate when "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." Fed. R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and a fact is material if it ‘might affect the outcome of the suit.’ " Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In deciding whether a genuine dispute as to material fact exists, a trial court considers all of the evidence in the record and "draw[s] all reasonable inferences in favor of the nonmoving party," but "refrain[s] from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007) (citation and internal quotation marks omitted). Instead, the court "only ‘give[s] credence to the evidence favoring the nonmovant [and] that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’ " Orr v. Copeland , 844 F.3d 484, 490 (5th Cir. 2016) (second alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

Procedurally, the party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." E.E.O.C. v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) (alterations in original) (quotation marks and citation omitted). When the nonmoving party will bear the burden of proof at trial, the moving party may satisfy this responsibility by "point[ing] out the absence of evidence supporting the nonmoving party's case." Latimer v. Smithkline & French Labs. , 919 F.2d 301, 303 (5th Cir. 1990) ; see also Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 544–45 (5th Cir. 2005).

If the moving party succeeds, "the onus shifts to the nonmoving party to go beyond the pleadings and by her 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." LHC Grp. , 773 F.3d at 694 (internal quotation marks and citation omitted). However, the nonmoving party "cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Davis v. Fort Bend Cty. , 765 F.3d 480, 497 n.20 (5th Cir. 2014) (quotation marks and citation omitted).

III. DISCUSSION

The magistrate judge recommended granting the Secretary's motion for summary as to Burns's retaliation claim, concluding that Burns failed to exhaust administrative remedies for such a claim. R&R at 23, ECF No. 40. No objection was filed against that recommendation. Finding that the magistrate judge's findings and conclusions were not clearly erroneous and contrary to law, the Court accepts the magistrate's recommendation on the retaliation claim.

As to Burns's (A) improper medical inquiry claim, (B) disability discrimination claim, and (C) hostile work environment claim, the magistrate judge recommended that the Secretary's motion be denied. The Secretary objects. Below, the Court addresses each claim, in turn.

A. Improper medical Inquiry Claim

The RA incorporates by reference many of the prohibitions on employment discrimination of Title I of the Americans with Disabilities Act ("ADA"), including [ 42 U.S.C.] § 12112(d)(4)(A)'s medical inquiry prohibition. Taylor v. City of Shreveport , 798 F.3d 276, 283 (5th Cir. 2015). Section 12112(d)(4)(A) provides:

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

A plaintiff, however, need not establish that he has a disability to prevail on a claim for an improper medical inquiry under this ADA provision. Taylor , 798 F.3d at 284 ; see also Williams v. FedEx Corp. Servs. , 849 F.3d 889, 901 (10th Cir. 2017) ("The provision applies to all employees, and a plaintiff need not prove that he is disabled.").

Before addressing the merits of Burns's medical inquiry claim, the Court addresses two procedural matters. The magistrate judge found that (a) Burns's Complaint alleged a claim for improper medical inquiry, id. at 25, and (b) Burns exhausted his administrative remedies on his medical inquiry claim, R&R at 24. The Secretary objects to these findings. Def.'s Objs. to R&R at 16. Below, the Court addresses each in turn.

1. Procedural Matters

(a) Failure to Plead in Complaint

The Secretary argues that Burns failed to include the improper medical inquiry claim in his Complaint, and therefore, this claim should be dismissed. Def.'s Reply to MSJ at 28–29, ECF No. 32; see also Def.'s Objs. to R&R at 16 ("A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court." (quoting Cutrera v. Bd. of Supervisors of Louisiana State Univ. , 429 F.3d 108, 113 (5th Cir. 2005) )).

In his Complaint, Burns claims that the CBP violated the RA by, among others, "requiring Burns to provide medical documentation based on a disability while other 0391 Telecommunications Specialist are not required to provide medical documentation." Compl. ¶ 12. On its face, this allegation suggests a disparate treatment claim for requesting medical information on the basis of disability. The Court briefly pauses here to address the nature of such a claim and how it relates to § 12112(d)(4)(A).

Such a disparate treatment claim is properly brought under 42 U.S.C. § 12112(d)(1), a different subsection that provides that "[t]he prohibition against discrimination as referred to in subsection (a) [i.e. , 42 U.S.C. § 12112(a) ] shall include medical examinations and inquiries." Thus, an improper medical examination or inquiry "may constitute a form of employment discrimination under the ADA." Taylor , 798 F.3d at 282 (citing § 12112(d)(1) ); see also Fredenburg v. Contra Costa Cty. Dept. of Health Servs. , 172 F.3d 1176, 1181 (9th Cir. 1999) ("Subsection (d)(1) provides a general prohibition against using medical examinations to discriminate; subsections (d)(2) through (d)(4) provide more detailed guidelines as to what is and is not allowed."); Harrison v. Benchmark Elecs. Huntsville, Inc. , 593 F.3d 1206, 1213 (11th Cir. 2010) ("[O]ne way a disabled plaintiff could meet his prima facie case of discrimination [under § 12112(d)(1) ] would be by showing that his employer discriminated against him by ... making a[n] ... improper medical inquiry in violation of subsection (d)[,]" which includes, among others, § 12112(d)(4)(A).).

Therefore, an employer may be liable for making medical inquiries directed at its employees under either § 12112(d)(4)(A) or § 12112(d)(1). Whereas § 12112(d)(4)(A) does not require plaintiff to assert that he "has a disability to contest an allegedly improper medical inquiry or medical examination," Taylor , 798 F.3d at 284, § 12112(d)(1) does, Harrison , 593 F.3d at 1213 ("[B]ecause § 12112(d)(1) expressly incorporates § 12112(a)'s prohibition of discrimination against ‘qualified individuals [on the basis of] disabilit[y],’ ... to maintain an action for discrimination itself, a plaintiff must be disabled under the ADA.").

With that background on the relevant statutory provisions, the Court returns to Burns's Complaint. Burns also alleges that on April 6, 2016, he was issued a letter requesting medical documentation to evaluate his ability to climb, and after Burns provided a letter from his doctor, Burns was issued a second letter stating that the doctor's letter was insufficient and requesting additional medical information. Compl. ¶¶ 8–9. These factual allegations, together with his statement of claim, Claim ¶ 12, gave "fair notice" to the Secretary that Burns also sought relief under § 12112(d)(4)(A), and "his allegations, which specifically referred to ... medical inquiries, were more than speculative." Harrison , 593 F.3d at 1214–15 ; see also Smith v. Barrett Daffin Frappier Turner & Engel, L.L.P. , 735 F. App'x 848, 854 (5th Cir. 2018) ("It bears emphasizing that factual allegations alone may state a claim for relief—even without referencing the precise legal theory (or statute) upon which the plaintiff seeks relief."); Skinner v. Switzer , 562 U.S. 521, 530, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011) ("[U]nder the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory[,]" or provide "an exposition of his legal argument."); cf. Johnson v. City of Shelby, Miss. , 574 U.S. 10, 11, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) ("Federal pleading rules ... do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted."). The Court holds that Burns alleged a claim for improper medical inquiry under § 12112(d)(4)(A).

(b) Failure to Exhaust

Next, the Secretary argues that Plaintiff's improper medical inquiry claim falls outside the scope of the EEO investigation, and therefore, it should be dismissed for failure to exhaust administrative remedies. Def. Reply to MSJ at 28.

"[T]he ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." McClain v. Lufkin Indus., Inc. , 519 F.3d 264, 274–75 (5th Cir. 2008) (internal quotes omitted). A "lawsuit may include allegations like or related to allegations contained in the EEOC charge and growing out of such allegations during the pendency of the case before the Commission." Id. at 273 (alterations and internal quotes omitted). "[T]his court construes an EEOC complaint broadly but in terms of the administrative EEOC investigation that can reasonably be expected to grow out of the charge of discrimination." Id. (internal quotes omitted).

In his EEO charge, Burns stated that he was "required to provide medical documentation based on a disability while other 0391 Telecommunications Specialist are not required to provide medical documentation." Def.'s Ex. 1 at 39 (emphasis added), ECF No. 22-3. He listed the dates of all three Yrrobali letters (two of which requested medical documentation) as the dates on which discriminatory actions occurred. Therefore, liberally construing Burns's EEO charge, an investigation into an improper medical inquiry claim under § 12112(d)(4)(A) would reasonably be expected to grow out of the charge. This reading of the charge "is confirmed by the actual scope of the EEO[ ]'s investigation, which is clearly pertinent to an exhaustion inquiry." McClain , 519 F.3d at 274. Although the Final Agency Decision did not separately analyze an improper medical inquiry claim, it did analyze the business necessity defense to a § 12112(d)(4)(A) claim. Def.'s Ex. 3 at 8 (citing 29 C.F.R. § 1630.14(c) ). In other words, the EEO investigated a claim under § 12112(d)(4)(A). The Court therefore concludes that as to Burns's improper medical inquiry claim under § 12112(d)(4)(A), exhaustion was satisfied.

2. Merits of the Improper Medical Inquiry Claim

(a) Prima Facie Case

A plaintiff asserting a claim under § 12112(d)(4)(A) "must show (1) that he is an employee of the defendant-employer, and (2) that the defendant-employer required him to undergo a medical examination or made a disability-related inquiry of him." Williams , 849 F.3d at 901. A medical inquiry is disability-related, and therefore, is sufficient to trigger the protection under Title I of the ADA (and by extension, § 501 of the RA), if the inquiry "may tend to reveal an employee's disability." Conroy , 333 F.3d at 95 (ADA Title I case).

Here, in the April 6, 2006 letter, Yrrobali asked Burns's physician to provide, inter alia , diagnosis of Burns's conditions and impairments, and further, the impact they have on his life activities, both on and off the job. Pl.'s 2nd Set of Exhibits at 72. In the August 22, 2006 letter, Yrrobali asked Burns's physician to provide a description of Burns's use of sedating medication, and his opinion as to whether Burns's medical conditions and use of sedating medications are likely to impede his ability to engage in physical activities including, but not limited to, climbing, crouching, and carrying. Id. at 89. A reasonable jury could conclude that the information requested in these letters would tend to reveal Burns's disability. The Court concludes that Burns had made out a prima facie case on his improper medical inquiry claim.

(b) Business Necessity

"Even if the plaintiff makes the required showing, the employer may avoid liability by demonstrating that the medical examination or disability-related inquiry was job-related and consistent with business necessity." Williams , 849 F.3d at 901. "Business necessity is an affirmative defense"; therefore, the employer bears the burden of demonstrating business necessity. Taylor , 798 F.3d at 286 ; Brownfield v. City of Yakima , 612 F.3d 1140, 1146 (9th Cir. 2010). Whether the medical inquiry was "job-related and consistent with business necessity" is an "objective" inquiry. Hannah P. , 916 F.3d at 339 ; Tice v. Ctr. Area Transp. Auth. , 247 F.3d 506, 518 (3d Cir. 2001) ; Brownfield , 612 F.3d at 1146. The Court "therefore do[es] not resolve any dispute about what [Yrrobali's] subjective motivations were" for the medical inquiry. Hannah P. , 916 F.3d at 339.

" ‘[T]he business necessity standard is quite high, and is not to be confused with mere expediency.’ " Conroy , 333 F.3d at 97 (alterations omitted) (quoting Cripe v. City of San Jose , 261 F.3d 877, 890 (9th Cir. 2001) ). "[T]he individual who decides to [make the medical inquiry] must have a reasonable belief based on objective evidence that the employee's behavior threatens a vital function of the business." Kroll v. White Lake Ambulance Auth. , 763 F.3d 619, 623 (6th Cir. 2014).

According to the Secretary, Yrrobali's requests for medical information were consistent with business necessity because in so requesting, Yrrobali was addressing safety concerns brought to him by a fellow supervisor, i.e. , Apodaca, relating to Burns's ability to safely perform tower climbing. Def.'s Reply to MSJ at 30; see also Conroy , 333 F.3d at 97 ("[B]usiness necessities may include ensuring that the workplace is safe and secure.").

An employer may make disability-related inquiries based on information learned from another person, "if the information learned is reliable and would give rise to a reasonable belief that the employee's ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition." Equal Employment Opportunity Comm'n, Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the Americans With Disabilities Act (ADA) (2000), 2000 WL 33407181, at *8 [hereinafter, the EEOC Guidance]; see also Diggs , 742 F. App'x at 3–4 (approvingly citing to the EEOC Guidance for other propositions).

Apodaca testified in his deposition that Molinar, then his secretary, told him that "some of the guys have some concerns about [Burns's] headache." Def.'s Ex. 6 at 5. In turn, Apodaca relayed this information to Yrrobali, id. ; Def.'s Ex. 2 at 14 ("[Apodaca] mentioned, ‘I do need to bring to your attention that it has been voiced to me that there is some worry about Mr. Burns.") (testimony of Yrrobali)—which, according to the Secretary, formed the basis of his belief that Burns presented safety concerns. Apodaca assumed those "guys" were the ones who climb towers with Burns. Def.'s Ex. 6 at 5.

As Burns points out, Molinar in her deposition denied that she ever reported any safety concerns about Burns to Apodaca. Def.'s Ex. 9 at 5, ECF No 22-9; see also Pl.'s Resp. to MSJ at 38, ECF No. 25. She further denied having any conversation with any of Burns's team members regarding safety concerns about Burns. Def.'s Ex. 9 at 5 ("To the best of my recollection, I don't think anybody ever had concern about [Burns and safety]."). The record reflects that Yrrobali never asked Molinar, Burns, or any of his co-workers about the alleged safety concerns. Pl.'s Statement of Facts ¶ 34, ECF No. 25-3. Moreover, the record does not reflect that Burns ever had any safety incidents while climbing towers in the past.

Consequently, there exists a genuine dispute about whether Yrrobali's requests for medical information were consistent with business necessity, precluding summary judgment.

B. Disparate Treatment Disability Discrimination Claim

Burns' disparate treatment theory appears to be that CBP discriminated against him on the basis of his disability by making the improper medical inquiry and by simultaneously restricting him from climbing towers that resulted in loss of wages. Compl. ¶ 12; see also Pl.'s Resp. to MSJ at 18 ("The CBP's actions resulted in lost wages for Burns."); id. ("None of the other FTO's are required to provide medical documentation...."). As discussed, see Part III.A.1(a), supra , the Court understands Burns to proceed under 42 U.S.C. § 12112(d)(1).

For a disparate treatment disability discrimination claim, the standard for determining liability under § 501 of the RA is the same as that under Title I of the ADA. 29 U.S.C. § 791(f) ; Pinkerton v. Spellings , 529 F.3d 513, 516–17 (5th Cir. 2008). Under Title I of the ADA, a plaintiff alleging disability discrimination can either provide direct evidence of the discrimination or rely on the McDonnell Douglas Corp. v. Green burden-shifting framework. EEOC v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014). Here, Burns is proceeding under McDonnell Douglas . Under the framework, the plaintiff must first establish a prima facie case of disability discrimination. See id. If he is successful, then the defendant must articulate a legitimate, nondiscriminatory reason for its actions. See id. Finally, the burden shifts back to the plaintiff to show that CBP's proffered reason is pretext for discrimination. See id. "Under the ADA, ‘discrimination need not be the sole reason for the adverse employment decision so long as it actually plays a role in the employer's decision making process and has a determinative influence on the outcome.’ " Id. at 696 (alterations omitted) (quoting Pinkerton , 529 F.3d at 519 ); see also Pinkerton , 529 F.3d at 516 ("[T]he § 501 causation standard and the ADA [causation] standard ... are equivalent[.]").

The Secretary objects to the magistrate judge's findings that Burns has established a prima facie case of disability discrimination, R&R at 15; Def.'s Objs. to R&R at 3, and that a reasonable jury could conclude that the Secretary's articulated reason for the employment decisions is pretextual, R&R at 15, 18; Def.'s Objs. to R&R at 3, 4.

1. Prima Facie Case

To establish a prima facie discrimination claim under the ADA and by extension, under § 501 of the Rehabilitation Act, a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3) that he was subject to an adverse employment decision on account of his disability, i.e. , there was a "causal nexus," i. e. , "causal connection," between the adverse employment action and his disability. LHC Grp., Inc. , 773 F.3d at 695, 697, 699 (brackets and internal quotes omitted) (citing Zenor v. El Paso Healthcare Sys., Ltd. , 176 F.3d 847, 853 (5th Cir. 1999) ); Rodriguez v. Eli Lilly & Co. , 820 F.3d 759, 765 (5th Cir. 2016) (citing LHC Grp., Inc. , 773 F.3d at 697 ). For purposes of the summary judgment motion, the Secretary assumes that Burns satisfies the second element. See Substituted MSJ at 11, n. 5, ECF No. 31 The Court therefore turns to the first and third elements.

(a) Disability

As relevant here, the ADA defines "disability," as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual," 42 U.S.C. § 12102(1)(A) (actual disability), and alternatively, as "being regarded as having such an impairment," 42 U.S.C. § 12102(1)(C) (regarded-as disability); see also 29 U.S.C. § 705(9)(B) (The RA incorporates by references the ADA's definition of disability); id. § 705(20)(B) (same). Burns claims that his migraine headaches qualify as disability under both subsections (A) and (C) and his lumbar spine puncture with back pain qualifies as disability under subsection (A). Pl.'s Resp. to MSJ at 12, 14, 16.

(i) Actual Disability

The magistrate judge concluded that a reasonable jury could find that Burns's migraine headaches and lumbar spine puncture with back pain each constitutes actual disability. R&R at 12. The Secretary points out that the Veterans Administration's ("VA") disability designation is done for purposes of the federal government's hiring preferences, not for purposes of determining "disability" under the RA. See Def.'s Objs. to R&R at 3; see also Def.'s Reply to MSJ at 5. He then argues that other than his VA designation, Burns has not been diagnosed as "disabled" by any other medical provider. Def.'s Objs. to R&R at 3; but see Taylor v. Phoenixville Sch. Dist. , 184 F.3d 296, 311 (3d Cir. 1999) ("While the doctor's use of the term ‘disabled’ is not unusual, especially in the context of disability insurance, it is not an accurate definition for the purposes of the ADA.... If there has ever been a legal term of art, ‘disabled’ certainly qualifies."). In other words, the Secretary's argument is that Burns needed, but has failed, to adduce evidence of his disabilities from a medical provider.

To be sure, "[t]he [VA] ratings[ ] ... are assessed pursuant to a standard entirely different from that imposed by the [RA] (which incorporates the ADA standards), and are therefore insufficient to create a genuine issue of fact that Plaintiff is disabled under the [RA]." Mosley v. Potter , No. H-08-484, 2009 WL 3672830, at *4 & n.27 (S.D. Tex. Nov. 2, 2009) (collecting illustrative cases). Contrary to the Secretary's argument, however, the record does include a letter from Dr. Rampy, Burns's doctor, wherein the doctor states that Burns "has degenerative disc disease of the lumbar spine and chronic migraine headaches." Pl.'s 2nd Set of Exs. 75. That letter is probative on the existence of Burns's impairments that form the basis of his "disabil[ities]" under the ADA. Moreover, as the magistrate judge correctly observed, Burns does not simply refer to his medical diagnosis to prove his disability, he also adduced other evidence, see, e.g. , Pl.'s 1st Set of Exs. at 2, ¶¶ 2–3; Pl.'s 2nd Set of Exs. at 58, 61, 63, 67, 75, to demonstrate how his migraines and back pain limited multiple major life activities. R&R at 11–12. The Secretary does not dispute this additional evidence the magistrate judge relied on it reaching his conclusion. The Court concludes that that Burns has raised a genuine dispute of material fact as to whether he is actually disabled.

(i) Regarded-As Disability

The magistrate judge concluded that there is a fact dispute as to whether Burns's migraine was regarded-as disability, R&R at 13. The Secretary advances two arguments in objecting to that conclusion.

First, he argues that while Yrrobali was aware that Burns had migraine and would take leave accordingly, that does not show that Yrrobali was "aware of any disability." Def.'s Objs. to R&R at 3–4 (citing Yrrobali's testimony that "I didn't know of his disabilities, per se[.]"). The ADA Amendments Act of 2008 ("ADAAA") "overrule[d] prior authority requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity." Burton v. Freescale Semiconductor, Inc. , 798 F.3d 222, 230 (5th Cir. 2015) (internal quotes and citation omitted). Under the ADAAA's definition of regarded-as disability, Burns "need only show that [his] employer perceived [him] as having an impairment and that it discriminated against her on that basis." Id.

The Secretary does not otherwise dispute other evidence relied on by the magistrate judge. R&R at 12–13. Under a similar set of evidence, the Fifth Circuit panel in Burton rejected the employer's argument that it was "not aware [the employee] had a disability" and found "no shortage of contrary evidence." Burton , 798 F.3d at 230–31 (evidence included, inter alia , decisionmaker's testimony that he learned of the employee's job-related injury; evidence that decisionmaker was aware she received medical treatment for the injury; decisionmaker's email to the employee's immediate supervisor discussing how to handle health-related absences by the employee; supervisors' e-mails discussing employee's health condition and referencing her need "to sit down for a bit," "chest pains," and trouble breathing).

Next, the Secretary argues—for the first time—that Burns has not pleaded that his migraines are "not transitory." Def.'s Objs. to R&R at 3. The ADA provides that "impairments that are transitory and minor" cannot form the basis of regarded-as disability. 42 U.S.C. § 12102(3)(B) ; see also id. ("A transitory impairment is an impairment with an actual or expected duration of 6 months or less."). However, "the ‘transitory and minor’ exception is an affirmative defense, and ‘as such, the employer bears the burden of establishing the defense.’ " Nunies v. HIE Holdings, Inc. , 908 F.3d 428, 435 (9th Cir. 2018) (quoting 29 C.F.R. § 1630.2(1) and § 1630.15(f) ); see also Babb v. Maryville Anesthesiologists P.C. , 942 F.3d 308, 319 (6th Cir. 2019) (holding same). Consequently, Burns, as the plaintiff, is under no obligation to plead against a possible affirmative defense. The Court concludes that there is a fact dispute as to whether Burns was regarded-as disabled.

(b) Nexus: Adverse employment decision on account of disability

The Secretary objects to the magistrate judge's finding that a reasonable jury could conclude that the restrictions on tower climbing and the resulting loss of pay were adverse employment actions based on Burns's disability. Burns argues, and the Secretary does not dispute, that the CBP's actions resulted in loss of wages for Burns, in the form of, among others, lost wages for tower climbing duties. Def.'s Resp. to Pl.'s PUF ¶ 11. The parties however dispute whether there is a causal nexus between the adverse employment action and his disability. See Pl.'s Resp. to MSJ at 14; Def.'s Reply to MSJ at 5–6.

Burns argues that he was required to provide medical documentation because Yrrobali had generalized fears about his migraine, his prescribed medications, and doctor's visits. Pl.'s Resp. to MSJ at 19. Yrrobali testified he was aware that "there were a lot of incidences where [Burns] would have incapacitating migraines," and that Burns took medications for his migraines. Def.'s Ex. 2 at 21 (emphasis added), ECF No. 22-4. In the March 14, 2016 email to Benn, Yrrobali made several subjective statements about Burns's migraine headaches: for example, he wrote that the safety concerns about Burns were due to his condition, the medication he takes, and the side-effects from the medications that might be affecting his capacity to work, demeanor, memory, and mental judgment while on the towers. Pl.'s 2nd Set of Exs. at 69. In Yrrobali's first letter requesting medical information, Yrrobali asked for diagnosis of his conditions and impairments, what impacts those impairments were having on his life activities, and specific accommodation that would be effective for his medical conditions. Id. at 72.

Construing all of the evidence in a light most favorable to Burns, the Court finds that a reasonable jury could conclude that Yrrobali sought medical information and restricted his climbing on the account of his disability. See McInnis v. Alamo Cmty. Coll. Dist. , 207 F.3d 276, 282 (5th Cir. 2000) (holding a jury could conclude that the plaintiff "was terminated because his employer regarded him as disabled," where the plaintiff testified that he was a disabled employee with an outstanding performance record and he "was terminated as a direct consequence of the symptoms of his disability. " (emphasis added)). In sum, the Court concludes that Burns had made out a prima facie case on his disability discrimination claim.

2. Pretext

The Secretary argues that in requesting medication information from Burns's physician and restricting Burns from climbing towers pending the receipt of the information, Yrrobali was "addressing employee safety concerns." Substituted MSJ at 16; see also Def.'s Reply to MSJ at 2 ("Defendant sought to evaluate whether Plaintiff could perform the hazardous duty of his job (Tower Climbing) while ensuring safety for himself or others."). The magistrate judge concluded that the Secretary satisfied its burden of production to show a legitimate, nondiscriminatory reason. R&R at 15–16 (citing Martin v. Bayland Inc. , 181 F. App'x 422, 424 (5th Cir. 2006) ("The district court did not err in considering safety as one of [defendant's] legitimate, nondiscriminatory reasons.")). No objection was made to this conclusion.

Since the Secretary offered a legitimate reason, the burden of production shifts to Burns to show that the Secretary's proffered reason was pretext for discrimination. "Pretext is established ‘either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or unworthy of credence.’ " Delaval v. PTech Drilling Tubulars, L.L.C. , 824 F.3d 476, 480 (5th Cir. 2016) (quoting Laxton v. Gap Inc. , 333 F.3d 572, 578 (5th Cir. 2003) ). "At summary judgment, evidence demonstrating that the employer's explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is likely to support an inference of discrimination even without further evidence of defendant's true motive." Rodriguez , 820 F.3d at 765 (alteration and internal quotes omitted).

Burns argues that the Secretary provides "shifting explanation[s]" about its reason. Pl.'s Resp. to MSJ at 35. In support of that assertion, Burns points out that on August 18, 2018, Yrrobali requested additional information from Burns's doctor, but on September 14, 2016, Yrrobali rescinded that request—even though, up to this point, the CBP had not received the information it requested. Id. ("This begs the question ... why would they rescind the requests?"). "[A] court may infer pretext where an employer has provided inconsistent or conflicting explanations for its conduct." Alkhawaldeh v. Dow Chem. Co. , 851 F.3d 422, 428 (5th Cir. 2017) (internal quotes omitted). Contrary to Burns's argument, the Secretary's articulated reason remained consistent all throughout. See e.g. , Pl.'s 2nd Set of Exs. at 69 (Yrrobali's March 14, 2016 email to Benn); id. at 72 (Yrrobali's first letter seeking medical information); id. at 106 (Yrrobali's statement to the EEO counselor).

Nevertheless, the record also reflects that Yrrobali rescinded the prior letter—two weeks after Burns made the initial contact with the EEO counselor, Pl.'s 2nd Set of Exs. at 142, and he did so against Benn's recommendation, Pl.'s 1st Set of Exs. at 169, ECF No. 26-1. A reasonable jury could infer from this additional evidence that Yrrobali was "dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 134, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; see also Nasti v. CIBA Specialty Chems. Corp. , 492 F.3d 589, 594 (5th Cir. 2007) ("Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as ‘affirmative evidence of guilt.’ " (internal quotes omitted)). Next, as a further evidence of pretext, Burns points out that Molinar denied that she ever reported any safety concerns to Apodaca and further denied having any conversation with any of Burns's team members regarding safety concerns about Burns. Pl.'s Resp. to MSJ at 38. As discussed supra in Part IIIA.2(b), Apodaca testified that Molinar told him that "some of the guys have some concerns about [Burns's] headache[s]," Def.'s Ex. 6 at 5, which he relayed to Yrrobali. According to Yrrobali, he and Apodaca collaborated in assessing whether there was any safety concern about Burns. Def.'s Ex. 2 at 19. To show pretext, Burns must produce evidence demonstrating that Yrrobali or Apodaca "did not in good faith believe" what Molinar allegedly said to Apodaca, "but relied on them in a bad faith pretext to discriminate against him on the basis of his [disability]." Waggoner v. City of Garland, Tex. , 987 F.2d 1160, 1166 (5th Cir. 1993). Because there is a fact dispute as to whether Molinar ever said to Apodaca what he claims she said, there is at least a fact dispute as to whether Apodaca acted in a bad faith pretext for discrimination.

In sum, the Court concludes that Burns's evidence of pretext, taken together with his prima facie case, is sufficient to create a jury issue of whether the Secretary's proffered reason was pretext for discrimination. At trial, "live testimony will assist the necessary credibility choices in this case more effectively than printed [on the deposition transcripts]." Bienkowski v. Am. Airlines, Inc. , 851 F.2d 1503, 1507 (5th Cir. 1988). The Court concludes that the Secretary's motion for summary judgment as to Burns's disparate treatment disability discrimination claim should be denied.

C. Hostile Work Environment Claim

To prevail on a disability-based hostile work environment claim under the RA, the plaintiff must prove:

(1) that [he] belongs to a protected group; (2) that [he] was subjected to unwelcome harassment; (3) that the harassment complained of was based on [his] disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.

Soledad v. U.S. Dep't of Treasury , 304 F.3d 500, 506 (5th Cir. 2002) (quoting Flowers v. S. Reg'l Physician Servs. Inc. , 247 F.3d 229, 235–36 (5th Cir. 2001) (extending Title VII hostile work environment jurisprudence to disability-based hostile work environment claims under the ADA)).

"The legal standard for workplace harassment in this circuit is ... high." Gowesky v. Singing River Hosp. Sys. , 321 F.3d 503, 509 (5th Cir. 2003). In particular, to satisfy the fourth element, the disability-based harassment must be sufficiently pervasive or severe to alter the conditions of employment. Flowers , 247 F.3d at 236 ; Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div. , 512 F.3d 157, 163 (5th Cir. 2007) (Title VII). More, the alleged harassment must have created a work environment that would have been perceived as hostile or abusive by a reasonable employee. Credeur v. Louisiana Through Office of Attorney Gen. , 860 F.3d 785, 797 (5th Cir. 2017) ; Septimus v. Univ. of Houston , 399 F.3d 601, 611 (5th Cir. 2005) (Title VII). Whether a reasonable employee would perceive the environment as hostile or abusive should be evaluated by looking at "the totality of the circumstances," including "the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Woods v. Delta Beverage Grp., Inc. , 274 F.3d 295, 299 (5th Cir. 2001) (Title VII).

Burns complains of the following incidents as the basis of his hostile work environment claim: (1) the first letter requesting medical information from Burns's doctor; (2) the second letter requesting additional information in response to Dr. Rampy's letter Burns provided in response to Yrrobali's first letter; and (3) the third letter wherein Yrrobali rescinded the requests in the second letter, instructed Burns not to climb towers when he takes medications his doctor referenced and further instructed him to notify Yrrobali when he takes those medications so that other work arrangements could be made. Pl.'s Resp. to MSJ at 26. These incidents occurred over a period of approximately five months: from April 6, 2016, to September 14, 2016.

Considering against the record as a whole and drawing all inferences in favor of Burns, the Court finds that the complained-of conduct "is not the type that courts have found to constitute harassment, and certainly not harassment that is sufficiently severe or pervasive to create a hostile work environment." Credeur , 860 F.3d at 796. Yrrobali's actions in requesting medical information simply were not harassment. See Molden v. E. Baton Rouge Par. Sch. Bd. , 715 F. App'x 310, 317–18 (5th Cir. 2017) ("[A]sking for further medical information ... does not compare to the level of hostility that the employee in Flowers [, 247 F.3d 229,] faced"); Church v. Sears Holding Corp. , 605 F. App'x 119, 125 n.15 (3d Cir. 2015) ("The record shows Archie asked for medical documentation twice between May 2010 and November 2010. No reasonable juror would find these requests by a new manager over a seven-month period to constitute a change in employment conditions."). Further, Yrrobali's instructions in his third letter were issued in view of the recommendation by Burns's doctor that "[s]ome of his medications can cause drowsiness and it is not recommended that he climb a tower when he is drowsy." Pl.'s 2nd Set of Exs. at 75. No reasonable employee could perceive those instructions unreasonably interfered with his work performance. Those instructions, like Yrrobali's requests for medical information, do not constitute harassment.

Burns argues that Yrrobali's actions resulted in loss of pay, and therefore altered the conditions of his employment. Pl.'s Resp. to MSJ at 27. However, "the critical question is whether the altered conditions of her employment created an abusive work environment." Credeur , 860 F.3d at 797. "It is ... significant that none of [Yrrobali's] actions were ‘physically threatening or humiliating’ or ‘even offensive.’ " Id. at 796 (citing Flowers , 247 F.3d at 236 ). To the contrary, Burns testified that even after issuing the first letter, Yrrobali continued to maintain a "professional" relationship with him, and there were "no issues" between them. Def.'s Ex. 1 at 20. Yrrobali recommended good performance ratings and awards for Burns, and no disciplinary actions were taken against him. Id. at 20–21. There is also no evidence of any intimidation, ridicule, and insult against Burns—much less evidence of any "discriminatory intimidation, ridicule, and insult." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

In sum, there is no basis upon which a reasonable jury could find in Burns's favor on his hostile work environment claim. The Court therefore concludes that the Secretary is entitled to summary judgment as to the hostile work environment claim. IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Magistrate Judge Anne T. Berton's Report and Recommendation (ECF No. 40) is ACCEPTED IN PART and REJECTED IN PART.

IT IS FURTHER ORDERED that the Secretary's Motion for Summary Judgment" (ECF No. 22), as substituted by "Substituted Motion for Summary Judgment" (ECF No. 31), is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Burns's retaliation claim and hostile work environment claim and is DENIED as to Burns's improper medical inquiry claim and disparate treatment disability discrimination claim. Burns's retaliation and hostile work environment claims are DISMISSED.

So ORDERED and SIGNED this 28^th day of January 2020.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

ANNE T. BERTON, UNITED STATES MAGISTRATE JUDGE

On this day, the Court considered "Defendant's Motion for Summary Judgment" (ECF No. 22), as substituted by "Defendant's Substituted Motion for Summary Judgment" (ECF No. 31), filed by Defendant Kevin McAleenan ("McAleenan"). The matter was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 1(d) of Appendix C of the Local Court Rules for a Report and Recommendation ("R & R") on July 2, 2019, by United States District Judge David C. Guaderrama. (ECF. No. 39).

For the reasons set forth below, the Court RECOMMENDS that "Defendant's Motion for Summary Judgment" (ECF No. 22), as substituted by "Defendant's Substituted Motion for Summary Judgment" (ECF No. 31), be GRANTED IN PART and DENIED IN PART .

I. BACKGROUND

a. Procedural Background

"Plaintiff's Original Complaint and Demand for Jury Trial" ("Complaint") was filed in the United States District Court for the Western District of Texas, El Paso Division, on August 24, 2017, by Plaintiff Joseph L. Burns ("Burns"), alleging claims of disability discrimination, hostile work environment, and retaliation. (ECF No. 1). On April 4, 2019, McAleenan filed "Defendant's Motion for Summary Judgment" seeking summary judgment on all of Burns's claims. (ECF No. 22). After being granted two extensions of time to file his response and granted leave to exceed page limitations (Text Orders dated April 23, 2019 & April 26, 2019), Burns filed his "Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment" ("Response") on May 3, 2019. (ECF No. 25). On May 30, 2019, McAleenan was granted leave to file his substituted motion for summary judgment and a reply to Burns's Response. (Text Orders dated May 30, 2019). On May 31, 2019, McAleenan filed his "Defendant's Substituted Motion for Summary Judgment" ("Motion") (ECF No. 31) and his "Defendant's Reply to Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment" ("Reply") (ECF No. 32). On June 13, 2019, Burns filed his "Plaintiff's Sur-Reply in Opposition to Defendant's Motion for Summary Judgment" ("Sur-Reply") (ECF No. 35) after being granted leave to file. (Text Order dated June 7, 2019). Finally, McAleenan's ("Defendant's Response to Plaintiff's Sur-Reply in Opposition to Defendant's Motion for Summary Judgment") ("Sur-Reply Response") (ECF No. 37) was filed on June 21, 2019, after being granted leave to file. (Text Order dated June 20, 2019).

b. Factual Background

Burns is a Field Technology Officer ("FTO") Telecommunications Specialist who began working for the United States Customs and Border Protection ("CBP") on August 12, 2012. (ECF No. 25-2, p. 1). At the start of his employment, Burns submitted certification from the Department of Veterans Administration ("VA") of his service-connected disability rating. (Id. ). Even though Burns has this disability certification from the VA, during his employment with CBP as a FTO, Burns has been capable of performing his job as a FTO, has not had any safety issues, and has never sought a reasonable accommodation. (ECF No. 25-2, p. 8).

While Burns's job duties include climbing tall towers, which is done in teams of two, he is a supplemental climber, meaning he is not required to climb towers every day. (Id. at 1-2). When Burns is required to climb towers, he receives hazardous duty pay. (Id. at 2).

Burns's current supervisor, Marcus Yrrobali ("Yrrobali"), became his supervisor in December 2015. (Id. ). Prior to becoming a supervisor, Yrrobali was a FTO and Burns's colleague. (Id. ). During Yrrobali's transition into his role as supervisor, Yrrobali was informed by the previous supervisor, Richard Apodaca ("Apodaca"), of concerns allegedly raised by some of Burns's co-workers related to Burns's medical issues. (Id. ). Apodaca contends that the safety concerns of the co-workers were brought to his attention by his secretary, Jeanie Molinar ("Molinar"), which she contests. (Id. at 3). Further, while he was Burns's supervisor, Apodaca allowed Burns to have his own office so that he could sit in a dark room to prevent or alleviate his migraines. (Id. at 8).

Notably, none of Burns's "RVSS camera team members" stated that they ever reported any concerns to Apodaca or Molinar regarding Burns. (ECF No. 32 at 43-44). After being notified of the concerns by Apodaca, Yrrobali did not independently verify those concerns with Molinar or any other employee. (ECF No. 25-2 at 3).

Subsequently, Yrrobali consulted with his supervisor Victor Fernandez ("Fernandez") for guidance on how to address the safety concerns brought to his attention by Apodaca. (Id. ). In turn, Fernandez directed Yrrobali to seek guidance from Maria Benn ("Benn")with CBP's Labor and Employee Relations ("LER"). (Id. ).

On March 14, 2016, Yrrobali emailed Benn ("March 14 Email") addressing the medical concerns that Apodaca brought to his attention. (Id. ). Notably, the parties dispute the scope of the contents of the March 14 Email and whether it contained Yrrobali's subjective opinion, his first-hand knowledge, and whether or not it went beyond the scope of the information received from Apodaca. (Id. ). In response to the March 14 Email, Benn advised Yrrobali to prohibit Burns from climbing until medical documentation was provided. (Id. at 3-4). Both Benn and Fernandez relied on Yrrobali's March 14 Email to determine their course of action. (ECF No. 32 at 43).

On April 6, 2016, Yrrobali issued a letter to Burns ("April 6 Letter"), restricting him from climbing based on medical concerns until Burns submitted medical documentation. (ECF No. 25-2 at 4). In response, on April 27, 2016, Burns provided a letter to Yrrobali from Dr. Robbie Rampy ("Rampy"), dated April 26, 2016 ("Rampy Letter"). (Id. ). The Rampy Letter identified Burns as suffering from degenerative disc disease of the lumbar spine as well as chronic migraine headaches. (Id. ). The Rampy Letter further stated that while Burns did not appear to be a danger to himself or others, Rampy could not comment, without speculating, because of Rampy's lack of behavioral health specialization. (Id. at 4-5). The Rampy Letter was sent by LER to CBP's Medical Fitness Branch ("MFB") who informed Benn on May 5, 2016, that the letter was inadequate to determine if Burns could safely resume his hazardous duties and further recommended a request for additional information while continuing to restrict Burns to nonhazardous duties. (Id. at 5).

On August 22, 2016, Burns received a letter from Yrrobali, dated August 18, 2016 ("August 18 Letter"), informing Burns that the Rampy Letter was insufficient and requesting additional medical information. (Id. ). After receiving the August 18 Letter, Burns sought Equal Employment Opportunity ("EEO") counseling in late August 2016. (Id. at 5-6).

In early September 2016, Burns and Yrrobali discussed the possibility of Burns continuing to inform his team when he could not climb, as he had done since 2012, as a possible resolution to the ongoing issues. (Id. at 6). The parties dispute whether Burns also suggested that he inform Yrrobali when he had taken his medications and could not climb. (Id. ).

On September 14, 2016, after consultation with Benn and Fernandez, Yrrobali issued Burns a letter ("September 14 Letter"), rescinding the August 18 Letter's request for additional medical documentation and instead prohibiting Burns from climbing when he had taken his medication. (Id. ).

Between April 6, 2016, and September 14, 2016, Burns was unable to be recertified as a climber because he was prohibited from climbing. (Id. at 7). Since the recertification classes were only offered annually, Burns was ultimately restricted from climbing for approximately thirteen months. (Id. ).

On September 22, 2016, CBP notified Burns of the conclusion of the EEO counseling and of his right to file an EEO complaint. (Id. at 6). Subsequently on September 30, 2016, Burns filed an EEO complaint alleging the denial of his rights under Title VII of the Civil Rights Act, the Americans with Disabilities Act as amended (ADA), and the Rehabilitation Act. (Id. at 6-7). The EEO complaint alleged harassment, based on Burns's physical disability, which allegedly occurred between April 6, 2016, and September 14, 2016. (Id. ). On May 26, 2017, a Final Agency Decision ("Decision") was issued by DHS, finding no discrimination or harassment. (ECF No. 22-5). II. LEGAL STANDARD

Summary judgment is appropriate when "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." FED. R. CIV. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and a fact is material if it might affect the outcome of the suit." Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014) (citation and quotations omitted). A "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." EEOC v. LHC Group, Inc. , 773 F.3d 688, 694 (5th Cir. 2014) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) (alteration in original).

If the moving party meets this initial burden, "the onus shifts to ‘the nonmoving party to go beyond the pleadings and by her 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. (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ). The Court must draw all reasonable inferences in favor of the nonmoving party and refrain from making credibility determinations. Id. (quoting Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007) ).

III. ANALYSIS

McAleenan's Motion addresses Burns's claims of disability discrimination, hostile work environment, and retaliation (ECF No. 31, p. 6, 17, 21). After Burns addressed an improper medical inquiry claim in his Response, McAleenan argued in his Reply that Burns's improper medical inquiry claim should also fail. (ECF No. 32, p. 2).

"[F]ederal employees may bring disability discrimination claims against the Government under either § 501 or § 504 of the Rehabilitation Act ( 29 U.S.C. §§ 791 & 794 )." Pinkerton v. Spellings , 529 F.3d 513, 515 (5th Cir. 2008). "The [Rehabilitation Act] and the [Americans with Disabilities Act] are judged under the same legal standards, and the same remedies are available under both Acts." Kemp v. Holder , 610 F.3d 231, 234 (5th Cir. 2010). However, the causation standard to determine if a violation has occurred differs between § 791 and § 794. Title 29 U.S.C. § 791(f) specifically incorporates the standards of Title I of the Americans with Disabilities Act of 1990 as the applicable standard when determining if a violation has occurred. "Under the ADA, discrimination need not be the sole reason for an adverse employment decision [but] must actually play a role in the employer's decision making process and have a determinative influence on the outcome. This rule governs cases under Section 501 of the Rehabilitation Act [ 29 U.S.C. § 791 ] as well." Pinkerton , 529 F.3d at 519 (5th Cir. 2008) (alteration in original) (internal quotation omitted). This "motivating factor" standard for § 791 is in contrast to the standards, for actions brought pursuant to 29 U.S.C. § 794, where the Fifth Circuit has held "that Congress did not intend to adopt the ADA standard of causation with the § 794(d) amendment." Soledad v. U.S. Dep't of Treasury , 304 F.3d 500, 505 (5th Cir. 2002). Therefore, in actions brought pursuant to § 794, "[l]iability can only be found when the discrimination was ‘solely by reason of her or his disability,’ not when it is simply a ‘motivating factor.’ " Id.

As an initial matter, both parties appear to be proceeding under § 791 and not § 794 as the statutory basis for Burns's claims. See (ECF No. 25, p. 11) ("Plaintiff has brought his disability claims under § 501 of the Rehabilitation Act, therefore, the correct standard of showing is ‘motivating factor.’ "); (Id. at 20) ("Here, Burns has asserted his claims under § 501 as he is a federal employee covered under § 501 ...."); (ECF No. 32, p. 3) ("In Defendant's Motion, Defendant inadvertently and incorrectly referenced the wrong causation standard that should be applied to Plaintiff's claim.... The correct causation standard for disability discrimination claims asserted pursuant to section 501 of the RA is the ‘motivating factor’ test...."). Because Burns unambiguously states on several occasions that he brings his claims under § 791 without mentioning § 794 and his subsequent filings do not contest McAleenan's statement that "Defendant, however, interprets Plaintiff's Response to only be asserting his claim under 29 U.S.C. § 791 and not both" (ECF No. 32, fn. 3), the Court will analyze his claims pursuant to § 791. The Court will address each claim raised in McAleenan's Motion in turn, below.

a. Disability Discrimination

McAleenan argues that summary judgment is appropriate for Burns's claim of disability discrimination because there was no discrimination based on disability. (ECF No. 31, p. 6). "A plaintiff alleging disability discrimination can either provide direct evidence of the discrimination or rely on the McDonnell Douglas burden-shifting framework." Diggs v. Burlington N. & Santa Fe Ry. Co. , 742 F. App'x 1, 3 (5th Cir. 2018) (citing E.E.O.C. v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) ). "Both parties agree here that Burns is proceeding under McDonnell Douglas . " (ECF No. 25, p. 11); see (ECF No. 32, p. 4) ("Under the McDonnell Douglas framework....").

Under the McDonnell Douglas burden-shifting analysis, a plaintiff alleging disability discrimination must first establish a prima facie case of discrimination. Delaval v. PTech Drilling Tubulars, L.L.C. , 824 F.3d 476, 479 (5th Cir. 2016). If the plaintiff successfully establishes a prima facie case, the defendant must articulate a legitimate, nondiscriminatory reason for the employment action. Id. The plaintiff then has the burden of showing that the articulated reason is pretextual. Id.

1. Prima Facie Case of Disability Discrimination

A prima facie case of disability discrimination requires the plaintiff to show: (1) the plaintiff has a disability; (2) the plaintiff was qualified for the job; and (3) the plaintiff was subject to an adverse employment decision on account of his disability. LHC Grp., Inc. , 773 F.3d at 697 (5th Cir. 2014).

A. Burns's Status as Disabled

Under the ADA, a person has a disability if they have: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) be[en] regarded as having such an impairment (as described in paragraph (3))." 42 U.S.C. § 12102(1).

i. Physical or Mental Impairment

In 2008, Congress passed the "Americans with Disabilities Act Amendments Act of 2008" ("ADAAA") to reinstate "a broad scope of protection to be available under the ADA." ADA AMENDMENTS ACT OF 2008, PL 110–325, Sept. 25, 2008, 122 Stat 3553. Further, after the passage of the ADAAA, "[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act...." Id. Finally. "[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008." ADA AMENDMENTS ACT OF 2008, PL 110–325, Sept. 25, 2008, 122 Stat 3553. In passing the ADAAA, Congress "clarif[ied] that the Supreme Court and [the] EEOC had interpreted the ‘substantially limits’ standard to be a more demanding one than Congress had intended." Cannon v. Jacobs Field Servs. N. Am., Inc. , 813 F.3d 586, 590 (5th Cir. 2016). Instead, "[t]he inquiry in ... post-amendment case[s] is ... whether [plaintiff]'s impairment substantially limits his ability ‘to perform a major life activity as compared to most people in the general population.’ " Id. at 591 (quoting 29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added)).

Major life activities include, but are not limited to, "[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working." 29 C.F.R. § 1630.2(i)(1)(i). See 42 U.S.C. § 12102(2). Further, the term substantially limits "shall be construed broadly in favor of expansive coverage...." Id.

McAleenan argues that Burns's VA certification, combined with his statements about his ability to do his job, do "not support a finding that [Burns] has a physical or mental impairment that substantially limits one or more major life activities." (ECF No. 31, p. 8). In response, Burns asserts that he has a disability because his migraines and back pain substantially limit his major life activities and offers his sworn affidavit in support of his contention that he is disabled. (ECF No. 26-1, p. 1-6); (ECF No. 25, p. 16). In his affidavit, Burns contends that he "basically can not [sic ] do anything when [he] ha[s] a migraine." (ECF No. 26-1, p. 2). This includes having "had to take time off work, visit the doctor, take medication, or just sit in a dark room until the migraine subsides." (Id. ); see (ECF No. 26-1, p. 14-17) (deposition of Burns). Further, Burns contends that his back pain limits his ability to perform manual tasks and "daily tasks such as sleeping, walking, standing, lifting, climbing, speaking, concentrating, and working." (Id. ); see (ECF No. 26-1, p. 15).

Contrary to McAleenan's assertion, Burns does not simply refer to his medical diagnosis to prove he has a disability. Burns specifically articulated, in both his affidavit and during his deposition, multiple limitations on his major life activities created by his migraines and back pain. (ECF No. 26-1, p. 2, 14-17). In Arrington , the plaintiff unsuccessfully "attempt[ed] to prove that he suffer[ed] from a disability simply by referring to his medical diagnosis of diabetes...." Arrington v. Sw. Bell Tel. Co. , 93 F. App'x 593, 597 (5th Cir. 2004). The Fifth Circuit construed the Arrington plaintiff's assertion that his diabetes affected his production as an "attempt[ ] to argue that his diabetes qualifie[d] as a disability because it substantially limited his major life activity of ‘working.’ " Id. Unlike in Arrington , Burns has identified how his migraines and back pain limited multiple major life activities.

Finally, the Court finds that Burns's "statements regarding his ability to do his job without causing safety issues" do not prevent a finding that Burns has a disability, as suggested by McAleenan. (ECF No. 31, p. 8). The definition of disability provided by the ADA specifically states that "[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." 42 U.S.C. § 12102(4)(C). While it is not disputed that Burns was capable of performing his job as a FTO (ECF No. 25-2, p. 8), the Court notes that working is just one of many major life activities. See 29 C.F.R. § 1630.2(i)(1)(i).

Construing all evidence in the light most favorable to Burns as the nonmoving party, the Court finds that a reasonable jury could find that Burns has a disability.

ii. Regarded as Having a Disability

Alternatively, under the ADA, "a plaintiff may satisfy the first prong of the prima facie case—that he has a disability—by proving ... that his employer regarded him as having an impairment." Espinoza v. Brennan , No. EP-14-CV-290-DB, 2016 WL 7176663, at *8 (W.D. Tex. Dec. 7, 2016) (citing 42 U.S.C. § 12102(1)(C) ).

McAleenan asserts that Burns was not regarded as disabled. (ECF No. 31, p. 8). McAleenan further argues that the "request for medical documentation in order to assess whether [Burns] posed a direct threat to safety does not show Defendant treated or regarded [Burns] as disabled. (Id. at 11). To establish that he was regarded as disabled, Burns cites to Yrrobali's deposition statements that Burns "operated a little slower sometimes when [migraines] hit." (ECF No. 26-1, p. 124); see (ECF No. 25, p. 17). Yrrobali also described a "cloudiness" on "those days where [Burns] would have migraines" and that Yrrobali "suffered from migraines as a child, so [he] kind of know[s] what the symptoms and signs are. And it is hard to focus and concentrate when you do have those." (Id. ). In further support of Burns's contention that Yrrobali regarded Burns has having a disability, Burns points to the March 14 Email that "makes mention of medical issues, migraines, medical appointments, requests for leave, and effects of medication" as well as other statements contained in the email. (ECF No. 25, p. 17); see (ECF No. 26-2, p. 69) ("Burns has had multiple times leaving work or missing wo[r]k due to chronic migraines from what I have seen."). Finally, McAleenan agrees that it is [u]ndisputed that Yrrobali ... knew of [Burns's] migraines." (ECF No. 32, p. 40).

Given the multiple statements from Yrrobali, about Burns's medical conditions and their effects, the Court finds that there is a genuine dispute of material fact as to whether Burns was regarded as disabled.

B. Burns's Qualifications for the Job

The second element of the prima facie case of disability discrimination requires Burns to show that he was qualified for the job. LHC , 773 F.3d at 697. A plaintiff is a qualified individual when they are capable of "perform[ing] the essential functions of the job in spite of [his] disability or ... [if] a reasonable accommodation of [his] disability would have enabled [him] to perform the essential functions of the job." Id. (quotation omitted); see 42 U.S.C. § 12111(8) (defining a qualified individual as someone "who, with or without reasonable accommodation, can perform the essential functions of the employment position...."). McAleenan fails to argue that Burns is unqualified for his job as a FTO. Further, Burns points to multiple documents and deposition statements addressing his qualifications for the job. (ECF No. 25, p. 18). Finally, McAleenan fails to object to Burns's contention that he was a good employee and one of the strongest climbers. See (ECF No. 32, p. 5). The Court finds that both parties agree that Burns is qualified for his job as a FTO.

C. Adverse Employment Action on Account of a Disability

The final element of the prima facie case of disability discrimination requires Burns to show "that he was subject to an adverse employment decision on account of his disability." LHC , 773 F.3d at 697.

The parties dispute whether adverse employment action was taken on account of Burns's disability. McAleenan asserts that Burns's claim "fails because there were no other similarly situated employees, in that no other employee had a safety concern brought to management's attention." (ECF No. 31, p. 13); see (ECF No. 32, p. 5). Burns alleges that he suffered an adverse employment action that "resulted in lost wages...." (ECF No. 25, p. 18) In support of this contention, Burns argues that "as a result of the restriction on his climbing duties, Burns was [unable] to be recertified in 2016." (Id. ). Finally, Burns contends that he was treated less favorably than similarly situated employees. (Id. at 18-19). Despite McAleenan's argument that Burns cannot satisfy his prima facie case of disability discrimination because there were no other similarly situated employees, McAleenan affirmatively states both that Burns was first restricted from climbing on April 6, 2016, and that Burns was "ultimately restricted from climbing for 13 months." (ECF No. 22-1, p. 6).

When all of the evidence is construed in Burns's favor as the nonmoving party, the Court finds that Burns has satisfied the final element of a prima facie case of disability discrimination. Burns was prohibited from climbing towers because of concerns that medical issues may impair his ability to perform a portion of his duties. (ECF No. 26-2, p. 72). Burns asserts that this restriction resulted in loss of wages, losing out on overtime, job assignments, and hazardous pay. (ECF No. 26-1, p. 5); see (ECF No. 25, p. 17) ("It was based on these unjustified beliefs, that Yrrobbali restricted Burns' duties which caused him to lose pay, which is a prohibited action."). The Court finds that a reasonable jury could conclude that the restrictions on climbing and the resulting loss of pay were adverse employment actions based on Burns's disabilities.

While McAleenan asserts that the basis for the restrictions on climbing and the requests for medical documentation were based on safety concerns, the Court finds that Burns has established a prima facie case of disability discrimination.

2. Legitimate, Nondiscriminatory Reason

After a prima facie case of disability discrimination has been determined, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Delaval , 824 F.3d at 479. "This burden is one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation omitted).

McAleenan argues that it is "abundantly clear that the Defendant's actions were done in good faith and for the legitimate, nondiscriminatory reason of addressing employee safety concerns." (ECF No. 31, p. 16). In support of this position, McAleenan cites to the initiation of an investigation by Yrrobali into safety concerns after they were brought to his attention by Apodaca. (Id. at 15). McAleenan further references the consultation between Yrrobali and his supervisor Fernandez and with LER. (Id. ). The specific safety concerns are identified in the March 14 Email from Yrrobali to Benn, including "the wellbeing of the RVSS FTO crew ... if an emergency were to occur while on the tower.". (ECF No. 26-2, p. 69); see also (ECF No. 22-3, p. 30) ("Furthermore, as a matter of concern for your safety and of others, you will refrain from hazardous duty functions...."). The Court finds that McAleenan's articulated reason of safety concerns is a legitimate, nondiscriminatory reason. See Martin v. Bayland Inc. , 181 F. App'x 422, 424 (5th Cir. 2006) ("The district court did not err in considering safety as one of [defendant's] legitimate, nondiscriminatory reasons.").

3. Pretext

After a legitimate, nondiscriminatory reason is offered by the employer, the burden then shifts to the plaintiff to demonstrate that the offered reason is pretextual. Delaval , 824 F.3d at 479. In responding to a motion for summary judgment, "an employee must present ‘substantial evidence’ that the employer's legitimate, nondiscriminatory reason ... is pretextual." Delaval , 824 F.3d at 480. Further, pretext "is established either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or unworthy of credence." ( Id. ) (internal quotations omitted). Finally, "[e]vidence of pretext ‘may take a variety of forms.’ " Robinson v. Jackson State Univ. , 714 Fed. App'x 354, 362 (5th Cir. 2017) (quoting Patterson v. McLean Credit Union , 491 U.S. 164, 187, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) ).

In considering pretext, the "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination and ... no additional proof of discrimination is required." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quotation and alteration omitted). Burns argues that the shifting explanations provided by Yrrobali for the requests within the three Letters, concluding with the requirement that Burns inform Yrrobali when he was taking his medications, demonstrates pretext. (ECF No. 25, p. 34). McAleenan counters that it is not a shifting explanation, and instead "is an alternative resolution of the concern of workplace safety." (ECF No. 32, p. 12). When construed in Burns's favor, a fact-finder could determine that a complete restriction on climbing towers imposed on Burns, pending medical documentation (ECF No. 26-2, p. 72), and later changed to simply requiring that Burns notify his supervisor that he had "taken the prescribed medication to make other work arrangements" (ECF No. 26-2, p. 93), is indeed a shifting explanation for the adverse employment decisions and the requests for medical documentation. Therefore, the Court finds that a reasonable jury could conclude that the changing requests regarding climbing restrictions and the scope of the medical documentation required are evidence of pretext.

Burns also argues that the contents of the March 14 Email demonstrates that Yrrobali's explanations for his decision have inconsistencies, incoherencies and contradictions. (ECF No. 25, p. 37-40). The March 14 Email was sent in response to a conversation Yrrobali had with his predecessor Apodaca about safety concerns that had been brought to Apodaca's attention. (Id. ). Burns contends that the March 14 Email to Benn goes significantly beyond the scope of the concerns brought to Apodaca's attention and contains Yrrobali's generalized fears. (Id. ). Burns asserts that while Yrrobali may have based his concerns on the information received from Apodaca, the implication of first-hand knowledge goes to the pretextual nature of the safety concerns. (Id. ). The inconsistencies between the information brought to Yrrobali's attention and the scope of his March 14 Email suggests that Yrrobali had some other source of information or basis for his decisions beyond what Apodaca brought to him and, therefore, raises a genuine dispute of material fact as to whether or not the articulated legitimate, nondiscriminatory reason of workplace safety for the employment decisions was pretextual.

Burns further contends that he was treated differently than other FTO's who are disabled. (ECF No. 25, p. 18). Burns alleges that he was the only FTO required to provide medical documentation before any safety incidents had occurred. (Id. ). McAleenan responds that Burns was the only FTO about whom safety concerns were brought to the supervisor's attention. (ECF No. 32, p. 5). The parties dispute the scope of the concerns brought to Yrrobali's attention by Apodaca and whether the March 14 Email included Yrrobali's generalized fears. (ECF No. 25-2, p. 3). Resolving this factual dispute in Burns's favor as the non-moving party, the Court finds that a reasonable jury could conclude that McAleenan's articulated reason for the employment decisions is unworthy of credence.

Based on the foregoing, the Court RECOMMENDS that McAleenan's Motion should be DENIED with respect to Burns's claim of disability discrimination.

b. Hostile Work Environment

Next, McAleenan argues that Burns cannot satisfy the elements of a hostile work environment claim. (ECF No. 31, p. 18). A hostile work environment claim under the ADA requires Burns to prove that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on his disability or disabilities; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Soledad , 304 F.3d at 506 (quoting Flowers v. S. Reg'l Physician Sers., Inc. , 247 F.3d 229, 235 (5th Cir. 2001) ).

The first, second, and fifth elements of a hostile work environment claim are not contested for the resolution of the instant Motion. For purposes of resolving the Motion, McAleenan assumes that Burns belongs to a protected group and that the "three letters to Plaintiff relating to medical documentation were unwelcomed." (ECF No. 31, p. 19). These assumptions satisfy elements one and two of Burns's hostile work environment claim. Further, Burns need not satisfy the fifth element of a hostile work environment claim because the harassment complained of was allegedly committed by Burns's supervisor Yrrobali. Celestine v. Petroleos de Venezuela SA , 266 F.3d 343, 353 (5th Cir. 2001) ("where the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff employee needs to satisfy only the first four of the elements....") (abrogated on other grounds); see (ECF No. 31, p. 18). Accordingly, the Court will only address the third and fourth elements of a hostile work environment claim.

1. Harassment Based on Burns's Disability or Disabilities

McAleenan argues that the hostile work environment claim must fail as a matter of law because "the requests for medical documentation were based on safety concerns," which is a legitimate, nondiscriminatory reason, and not based on Burns's disability. (ECF No. 31, p. 19). Burns argues that the "two requests for medical information and the restrictions from climbing duties [were] based on Burns' disabilities...." (ECF No. 25, p. 27). The April 6 Letter specifically mentions Burns's medical issues when it states that management had "become concerned with medical issues ..." that Burns may have been experiencing. (ECF No. 26-2, p. 72). Further, Burns was restricted from tower climbing until medical documentation was provided to evaluate his ability to perform the hazardous duty portion of his job. (Id. ). Finally, the September 14 Letter, withdrawing the request for medical documentation and requiring Burns to inform Yrrobali immediately when Burns took his medications so that other work arrangements could be made, imposed a continuing obligation on Burns. (ECF No. 26-2, p. 93).

If the fact-finder were to reject McAleenan's assertion that the Letters and the restrictions imposed by the letters were based upon safety concerns, as addressed above, then the Court finds that a reasonable jury could conclude that the requests for medical documentation and restrictions on climbing were based on Burns's disability or disabilities.

2. Term, Condition, or Privilege of Employment

"In order for harassment to affect a term, condition or privilege of employment, it must be ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ " McGarry v. Univ. of Mississippi Med. Ctr. , 355 F. App'x 853, 858 (5th Cir. 2009) (quoting Harris v. Forklift Sys. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ); see (ECF No. 31, p. 19). Further " ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious)’ do not suffice to alter the terms and conditions of employment." Patton v. Jacobs Eng'g Grp., Inc. , 874 F.3d 437, 445 (5th Cir. 2017) (quoting Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ).

Burns alleges that the three incidents of harassment are the April 6 Letter, the August 18 Letter, and the September 14 Letter, relating to medical documentation. (ECF No. 26-1, p. 18). Burns affirmatively indicated during his deposition that the harassment was "the ... requirement to provide ... documentation...." (ECF No. 26-1, p. 18). Burns argues that the harassment resulted in loss of pay for thirteen months because he could not recertify as a climber. (ECF No. 25, p. 27). Further, Burns argues that the requirement to notify Yrrobali each time Burns took his medications affected a term, condition, or privilege of his employment. (Id. ). Burns alleges in his affidavit that the ongoing requirement to notify Yrrobali when Burns had taken his medication created a hostile work environment (ECF No. 26-1, p. 4). According to Burns, the third alleged act of harassment is the September 14 Letter that withdraws the request for additional medical documentation and imposes the ongoing obligation to notify Yrrobali when Burns takes his medication. (ECF No. 25-2, p. 8). Therefore, Burns's contention, that the ongoing obligation to notify Yrrobali when medication was taken created a hostile work environment, is not necessarily "contrary to [Burns's] testimony" as asserted by McAleenan. (ECF No. 32, p. 20). The Court finds that these letters, including the obligations and restrictions they imposed, could be found by a reasonable jury to affect a term of Burns's employment.

Accordingly, the Court finds that Burns has shown a genuine dispute of material fact as to whether or not the harassment alleged altered Burns's employment and created an abusive working environment. This genuine dispute of material fact as to whether the alleged incidents of harassment were sufficiently severe or pervasive enough to alter the conditions of Burns's employment and to create an abusive working environment prevent the granting of summary judgment on Burns's hostile work environment claim.

Based on the foregoing, the Court RECOMMENDS that McAleenan's Motion should be DENIED with respect to Burns's hostile work environment claim.

c. Retaliation

Burns alleges that he was retaliated against because of his opposition to the discriminatory and harassing requests for medical documentation. (ECF No. 25, p. 32-33). McAleenan asserts that there was no retaliation. (ECF No. 31, p. 21). Further, McAleenan argues that Burns's EEO complaint does not allege that any of the complained acts "constituted retaliation". (ECF No. 31, p. 22). McAleenan also argues that Burns failed to exhaust his administrative remedies related to his claim of retaliation and, therefore, that Burns's claim is barred. (Id. at 21-22). Burns responds that the retaliation claim is related to the facts asserted in the EEO charge. (ECF No. 25, p. 29).

In his initial DHS complaint dated September 30, 2016, Burns checked the box indicating that he believed the discriminatory actions were based on his physical or mental disabilities. (ECF NO. 26-2, p. 97). However, Burns failed to check the retaliation/reprisal box, directly below the disability box. (Id. ). Further, the EEO Counselor's Report specifically references disability and harassment but makes no mention of retaliation. (ECF No. 26-2, p. 142-44). Finally, the Final Agency Decision specifically addresses disability and hostile work environment claims, but does not even mention concerns related to retaliation. (ECF No. 22-5).

While "it is well established that the scope of an EEOC complaint should not be strictly interpreted[,] ... the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 465 (5th Cir. 1970) (internal quotations and citations omitted).

Although unpublished and thus not binding authority, the Court finds Miller v. Southwestern Bell Telephone Co. particularly persuasive. 51 F. App'x 928 (5th Cir. 2002) ; see Carpenter v. Wal-Mart Stores, Inc. , 614 F. Supp. 2d 745, 767 (W.D. La. 2008). In Miller , the Fifth Circuit concluded "that because [the plaintiff] did not check the correct box on the EEOC complaint form or otherwise disclose his retaliation claim and thereby exhaust [his] administrative remedies, he [was] procedurally precluded from asserting a retaliation claim under the ADA." Miller , 51 Fed.Appx. at ––––, 2002 WL 31415083 at * 8 ; see Williams v. Tarrant Cty. Coll. Dist. , 717 F. App'x 440, 445 (5th Cir. 2018), reh'g denied (Feb. 20, 2018) (" ‘[F]ailure to fill in the appropriate box in the filed charge’ warrants summary judgment on exhaustion grounds only when ‘coupled with the inability to describe the general nature of the claim in the narrative section of the charge’ ") (quoting Miller , 51 F. App'x 928 at * 7 ).

In this case, not only did Burns fail to check the retaliation box located directly below the disability box as a basis for his claim of discrimination, the narrative of discriminatory action also lacked any description of the general nature of a claim of retaliation (ECF No. 26-2, p. 97); (ECF No. 22-3, p. 38-39). Further, neither the EEO Counselor's Report (ECF No. 26-2, p. 142-44), nor the Final Agency Decision (ECF No. 22-5) provide even a hint of a claim of retaliation. Therefore, the Court agrees with McAleenan that Burns failed to exhaust his administrative remedies for a claim of retaliation. Based on the foregoing, the Court RECOMMENDS that McAleenan's Motion should be GRANTED with respect to Burns's claim of retaliation.

d. Improper Medical Inquiry

In his Reply, McAleenan further argues that Burns's claim of improper medical inquiry fails as a matter of law. (ECF No. 32, p. 2). Before turning to the substance of a claim of improper medical inquiry, McAleenan asserts that Burns failed to exhaust his administrative remedies for improper medical inquiry and failed to argue improper medical inquiry in his complaint. (ECF NO. 32, p. 28).

1. Exhaustion

McAleenan asserts that Burns "failed to timely raise his claim before the EEOC and thus failed to exhaust his administrative remedy to this claim." (ECF No. 32, p. 28). Further, McAleenan argues that Burns is now time-barred from beginning the administrative process to properly exhaust this claim. (Id. ). Burns counters that the "Agency misinterprets Title I of the ADA and argues that improper medical inquiry is a separate claim from disability discrimination." (ECF No. 35, p. 3). Further, Burns contends that an improper medical inquiry claim "is properly asserted as a claim for employment disability discrimination under the ADA and Rehabilitation Act § 791." (Id. )

Burns is correct. "An unlawful medical inquiry by a public employer constitutes a form of employment discrimination under the ADA." Taylor v. City of Shreveport , 798 F.3d 276, 282–83 (5th Cir. 2015). Further "the Rehabilitation Act incorporates many of Title I [of the ADA]'s prohibitions on employment discrimination by reference, including [ 42 U.S.C.] § 12112(d)(4)(A)'s medical inquiry prohibition." Id. at 283.

The Final Agency Decision related to Burns's EEO complaint specifically addressed Burns's allegations that CBP "discriminated against [Burns] and subjected him to a hostile work environment based on disability...." (ECF No. 22-5, p. 3). The three claims identified in the Final Agency Decision are all related to the requests for medical information. (Id. ) According to Taylor , improper medical inquiry "constitutes a form of employment discrimination under the ADA." 798 F.3d at 282-83. Further the EEO complaint and Final Agency Decision addressed Burns's allegation of discrimination based on disability. (ECF No. 22-5). Therefore, the Court finds that Burns exhausted his administrative remedies related to his claim of discrimination.

2. Improper Medical Inquiry in the Complaint

McAleenan argues that Burns is "precluded from now asserting this [improper medical inquiry] claim as he failed to include the claim in his Complaint." (ECF No. 32, p. 28-29). Burns responds that his Complaint "provided fair notice of his claim for disability discrimination in the form of an improper medical inquiry to the Agency." (ECF No. 35, p. 2).

In his Complaint, Burns specifically states that he will show that CBP violated "Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111 et seq. ["ADA"] as amended by the ADA Amendments Act ("ADAAA") Public Law 110-325, and the Rehabilitation Act of 1973, as amended, Sections 501, et seq. .... by harassing and requiring Burns to provide medical documentation based on a disability...." (ECF No. 1, p. 5).

Title 29 U.S.C. § 791(f) specifically references Title I of the ADA as the standard to employ to determine if employment discrimination has occurred, both of which are referenced in Burns's Complaint. Further, Burns's Complaint specifically references requests for medical documentation. "An unlawful medical inquiry by a public employer constitutes a form of employment discrimination under the ADA." Taylor , 798 F.3d at 282–83. Finally, "the Rehabilitation Act incorporates many of Title I [of the ADA]'s prohibitions on employment discrimination by reference." Id. at 283. The RA's incorporation of Title I of the ADA includes 42 U.S.C. "§ 12112(d)(4)(A)'s medical inquiry prohibition." Id. Therefore, the Court finds that Burns's Complaint alleged a claim of discrimination for improper medical inquiry in violation of the ADA and the RA. See Taylor , 798 F.3d at 282-83.

3. Discrimination Claim Based Upon Improper Medical Inquiry

The Fifth Circuit has held that "[a]n improper medical inquiry by a public employer constitutes a form of employment discrimination under the ADA." Taylor , 798 F.3d at 282-283. Burns brings this action pursuant to 29 U.S.C. § 791. In turn, § 791(f) directs that the standards applied under Title I of the ADA are to be "used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination...." Burns further argues that his claim of improper medical inquiry "is properly asserted as a claim for employment disability discrimination under the ADA and the Rehabilitation Act § 791." (ECF No. 35, p. 3). McAleenan asserts that Yrrobali properly inquired into safety concerns. (ECF No. 32, p. 29) Burns argues McAleenan did not have a legitimate reason to request medical documentation. (ECF No. 35, p. 9). Given the above analysis under the McDonnell Douglas burden-shifting framework, the Court finds that a reasonable jury could conclude that Burns was discriminated against by being subjected to an improper medical inquiry.

Based on the foregoing, the Court RECOMMENDS that McAleenan's Motion should be DENIED with respect to Burns's claim of improper medical inquiry employment discrimination.

IV. CONCLUSION

For the foregoing reasons, the Court finds that a genuine dispute of material fact exists for Burns's claims of discrimination under the ADA and the RA, and for Burns's hostile work environment claim. The Court further finds that Burns has failed to exhaust his administrative remedies as to his claim of retaliation.

Accordingly, the Court RECOMMENDS that "Defendant's Motion for Summary Judgment" (ECF No. 22), as substituted by "Defendant's Substituted Motion for Summary Judgment" (ECF No. 31), should be:

• GRANTED with respect to Burns's claim of retaliation;

• DENIED with respect to Burns's claims of discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act; and

• DENIED with respect to Burns's hostile work environment claim.

NOTICE

FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.