Opinion
3-03-CV-493-AH
February 24, 2004
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties and the District Court's order of transfer filed on July 15, 2003, came on to be considered Defendant's Motion to Dismiss in Part, and Motion for Partial Summary Judgment on Remaining Claims filed on December 19, 2003, and Plaintiff's response thereto filed on January 9, 2004, and having reviewed the briefs of the parties and their respective appendices, the court finds and orders as follows:
Plaintiff began her employment with the Immigration and Naturalization Service (INS), an agency of the United States Department of Justice, in December 1996. Beginning in February 1998 she was employed as a legal technician with the Executive Office of Immigration Review (The Dallas Immigration Court). See Defendant's Appendix at 004. As a legal technician her job duties included examination of pleadings, preparing court notices, composing routine correspondence, and receiving telephone calls and visitors (Id. at 087-91). In October 1998 Judy Morse became Plaintiff's immediate supervisor and remained so until March 1999. Thereafter Dan Allan became her first-line supervisor.
In 1998 and early 1999 Plaintiff made several complaints about her working conditions and perceived favoritism. It does not appear that any actions were taken nor did Plaintiff complain further. On February 23, 1999, Ms. Morse gave Plaintiff an overall performance rating of Excellent for the period from April 1, 1998 to March 31, 1999 (Plaintiff's Appendix No. 6). On April 9, 1999, Ms. Morse gave Plaintiff written notice of unacceptable behavior with a warning that continuation of such behavior may warrant disciplinary action (Plaintiff's Appendix No. 10). In response to additional counseling sessions with Ms. Morse and in explanation for some of her actions, Plaintiff informed Ms. Morse and her direct supervisor by memo dated June 7, 1999, that she was under the care of a psychologist (Plaintiff's Appendix No. 12). At some time at or about the time she became Plaintiff's direct supervisor, Dan Allan became aware of the fact that she was taking medication for a mental disorder.
On December 23, 1999, Plaintiff told Ms. Morse, her second line boss, that she was having marital problems, including verbal abuse and "fighting" (Plaintiff's Appendix No. 15). On January 3, 2000, Plaintiff showed up for work late, was in emotional distress, and spent the day making "personal phone calls" (Id.). On January 4th and 5th she wore the same clothing to work that she had on January 3rd, was moody during her work, and spent a long time on personal phone calls (Id.).
On January 6th Plaintiff again wore the same clothes to work. She informed her boss that her husband had her office keys and building card. She made a personal phone call from about 11:30 to 1:00, during which she was "sobbing uncontrollably" (Plaintiff's Appendix No. 15). Ms. Morse and Mr. Allan, Plaintiff's first and second line supervisors, had a meeting with her at 1:00 at which Ms. Morse told Plaintiff that they were worried about her and that she needed to leave the office for the afternoon to take care of her personal business. Plaintiff left the office and proceeded to her work station, refused to return to Ms. Morse's office, and pounded her fists on the computer keyboard several times. Ms. Morse ordered Plaintiff to stop it and to sit down. She refused, and Ms. Morse said that she would have to call the Federal Protective Service. Plaintiff then threw a plaque from the wall at her computer. Plaintiff called a crisis line, hung up on the crisis line, threw her building access card into another workstation, and was escorted from the building by the Federal Protective Officers (Id.).
As a result of the incident which occurred on January 6, 2000, Ms. Morse wrote Plaintiff on January 18, 2000, for which Plaintiff acknowledged receipt on the same date, in which Ms. Morse reiterated the circumstances surrounding the January 6, 2000, incident and the week of January 3rd and in which she recommended that Plaintiff contact the Employee Assistance Program (EAP), and concluded by noting that no formal disciplinary action was being taken, but that repetition of the January 6th conduct might well lead to a proposed disciplinary action (Defendant's Appendix at 010-11).
While at work on January 24, 2000, Plaintiff reacted again in a manner which disrupted the workplace and concluded with her exiting the building in which the INS office was located. See Plaintiff's Appendix at No. 22. On January 25th and again on January 26th Ms. Carroll called Mr. Allan to inform him that she was taking sick leave for both days. In the course of the conversation on January 26, 2000, Allan informed her that she would not be permitted to return to work until she presented a letter from her physician that she was mentally able to perform her daily duties without incident, that she agreed to keep appointments with her doctor and that she was taking all prescribed medications which her doctor prescribed (Plaintiff's Exhibit 23). In addition he recommended a ten-day suspension (Id.).
Ms. Carroll was admitted to partial hospitalization on February 1, 2000, in which she remained until February 11, 2000. She was then transferred to an intensive out-patient program for two weeks with a diagnosis of bipolar disorder (Defendant's Appendix at 24). On February 6, 2000, Plaintiff received a copy of Mr. Allan's proposed ten-day suspension arising out of the incidents which occurred on January 24, 2000 (Id. at 14-15). Through her attorney she requested a hearing with respect to Allan's proposed suspension (Id. at 026). After conducting an informal hearing on March 3, 20000, at which Plaintiff was represented by counsel, Ms. Morse, her second-line supervisor, imposed the proposed suspension, but reduced the suspension to five days (Id. at 041-42).
Plaintiff had obtained the services of an attorney no later than January 6, 2000 (Plaintiff's Appendix No. 15 at page 2).
On March 9, 2000, Ms. Carroll's attorney formally requested six accommodations to be implemented upon her return to work (Defendant's Appendix at 30-31). By letter dated March 10, 2000, Ms. Morse notified the attorney that most, but not all of the requests would be honored.Id. at 38-39.
Following completion of the five-day suspension Ms. Carroll returned to work. She advised that she could not work at the desks in the Immigration Court hearing room due to physical impairments. Plaintiff concedes that Mr. Allan partially accommodated her requests by moving the computer monitor. See Plaintiffs complaint at pages 4-5, ¶ 11. Allan documented Plaintiff's conduct from March 27 to March 29, 2000, in a memo dated March 29, 2000. Defendant's Appendix at 044-45. Although Plaintiff refused to comply with Allan's direction to leave the premises, March 29,2 000, was the last day on which she worked in the Dallas Immigration Court.
On April 12, 2000, Plaintiff's counsel requested her medical records to be included with her claim for disability retirement. Defendant's Appendix at 66. On April 13, 2000, Ms. Carroll executed her disability retirement application (Id. at 114) and on April 19, 2000, the Department of Justice issued a Notification of Personnel Action indicating her preliminary status as a disability retiree. Id. at 70. On November 11, 2000, she was granted disability retirement, effective September 21, 2000 (Id. at 125).
Plaintiff also received unemployment benefits from the Texas Workforce Commission based upon the fact that she was unable to perform her assigned job to the Dallas Immigration Court's satisfaction, and not due to misconduct. Plaintiff's Appendix No. 28.
Summary judgment should be granted when the pleadings and evidence establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c); Celotex Corp. v. Catreet, 477 U.S. 317, 322 (1986). There is no genuine issue of material fact when the relevant evidence in the record, taken as a whole, indicates that a reasonable fact-finder could not find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990).
Plaintiff bears the burden of bringing forward facts as to each element of each claim for which she will have the burden of proof at trial.Celotex, 477 U.S. at 324-325. She must designate specific record facts which establish that there is a genuine issue of material fact. Id.; Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860 (5th Cir. 1986). Neither 'conclusory allegations' nor 'unsubstantiated assertions' will satisfy the nonmovant's burden. Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996).
A mere factual dispute will not defeat an otherwise properly supported motion for summary judgment. The opposing party must show that there is sufficient material evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of truth at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see Slaughter, 803 F.2d at 861. Unsupported allegations cannot defeat a properly supported summary judgment motion.Anderson, 477 U.S. at 256. Testimony based on conjecture and speculation cannot preclude summary judgment. Slaughter, 803 F.2d at 860.
The Fifth Circuit has held that the moving party is entitled to summary judgment when the nonmoving party fails to make a sufficient showing of proof. Fontenot v. Upjohn Co., 780 F.2d 1190-, 1195-98 (5th Cir. 1986). All evidence must be viewed in the light most favorable to the motion's opponent. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990). Summary judgment may be entered against a party if after adequate time for discovery the party fails to establish the existence of an element to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 324-26. In employment discrimination cases, summary judgment is warranted when the employee fails to establish a prima facie case of discrimination or fails to refute successfully the employer's nondiscriminatory reasons for its actions.
Since Defendant is the head of a federal agency who cannot be sued under the Americans With Disabilities Act, E.g. Henrickson v. Potter, 327 F.3d 444, 447 reh. denied (5th Cir. 2003), Ms. Carroll seeks relief under the Rehabilitation Act of 1973. Notwithstanding the fact that a federal employe has no cognizable claim under the ADA, § 501 of the Rehabilitation Act provides a cause of action for federal employees alleging employment discrimination. 29 U.S.C. § 791(g) expressly adopts the standards applied under the ADA. In turn disability discrimination claims under the ADA are subject to analysis under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). E.g. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, reh. and suggestion for rehearing en banc denied 77 F.3d 481 (5th Cir. 1995). Pursuant to McDonnell Douglas a plaintiff must first make out a prima facie case of discrimination by showing that (1) she suffers from a disability; (2) she was qualified for the job; and (3) that she was subject to an adverse employment action. Still v. Freeport-McMoram, 120 F.3d 50, 51 (5th Cir. 1997).
Defendant does not dispute the fact that Plaintiff suffers from a disability. See Defendant's Brief at 17. However, Defendant asserts that Plaintiff cannot show that she was qualified to perform the tasks of a legal technician at the Dallas Immigration Court. In addressing this element the issue presented is whether a reasonable fact finder could find under the evidence presented in the summary judgment materials that Plaintiff was qualified between January 6, 2000 and March 29, 2000 — the last day on which she reported to work — to discharge the functions of her position.
It is noteworthy that Plaintiff does not contest the accuracy of the reports of her conduct and her statements which are documented in the written reports of Ms. Morse and Mr. Allan on the dates in question. It is clear that the outbursts and insubordination which she displayed on these occasions would have constituted grounds for termination. As noted above, following the January 24th incident Ms. Carroll placed herself under the care of Dr. Dan Steinfink, M.D. On February 4, 2000, the doctor opined that she would be unable to return to work for at least three weeks. Defendant's Appendix at 19. However, he advised that he would be better able to assess her ability to work as she improved. He wrote a follow-up letter on February 18, 2000, in which he reported a diagnosis of bipolar disorder, described her current medications and advised that she would be returned to the care of her previous psychiatrist. Id. at 24. He did not render an opinion as to when she would be able to return to work.
As reflected in Plaintiff's counsel's letter dated March 9, 2000, Ms. Carroll wished to make a public apology to her co-workers in the Dallas Immigration Court for her prior conduct. Defendant's Appendix at 030.
As noted above Ms. Carroll returned to work on March 27, 2000, after she had served her suspension and Ms. Morse had agreed to a portion of her requested accommodations. See Plaintiff's Appendix at No. 25. The notes regarding her performance and attitude during the period between the 27th and 29th of March clearly demonstrate her inability to discharge her assigned tasks. By letter dated April 6, 2000, Dr. Ray K. McNamara, Ph.D., to whom Plaintiff had been referred by the agency's EAP, described her then current mental status, and concluded that she might be able to return to her employment on at least a limited basis in six weeks. Defendant's Appendix 108-109. A subsequent letter from Dr. Steinfink dated April 11, 2000, declined to express any opinion as to when she would be able to return to work. Id. at 111. Ms. Carroll's own statement submitted with her disability retirement application graphically describes her inability to perform her job functions and her outbursts of anger both at work and at home.Id. at 115-16. The evaluations by other mental health providers, made after the present suit was filed, are consistent with the conclusion that Ms. Carroll's mental status precludes her from performing the duties of a legal technician. See Plaintiff's Appendix Nos. 30 and 31. In his evaluation made on October 22 and 23, 2003, Dr. Burton C. Einspruch, M.D., related a chaotic childhood and adult personal history of Ms. Carroll. He concluded with observing that she was a chronically ill individual who, when under the pressures of her work or activities of daily life, was vulnerable to decomposition. He opined that she was extremely fragile and that it was unlikely that she would handle anticipated stress in a highly active or demanding section of government work and that a more sheltered type of environment would be more suitable. Dr. Kay Hale, Ph.D., who evaluated Plaintiff in this same time frame, made similar conclusions, noting that her coping skills were modest, that she could become upset at even minor frustrations and disappointments, and that when upset, she would exhibit unusual thinking, poor judgment and impulsive behavior, all of which are consistent with Ms. Carroll's conduct while at work in January and March 2000.
Although the Fifth Circuit has not specifically addressed the issue, at least one district court in the Fifth Circuit has ruled that a federal employee cannot accept disability retirement benefits — arguing that the employee is disabled from performing the job requirements, while simultaneously arguing that the employee is qualified to perform her job functions with reasonable accommodation. See Wallace v. Social Security Administration, 108 F. Supp.2d 716 (S.D. Tex. 2000). However, the Fifth Circuit has applied a similar rationale to the case of an ADA plaintiff who argued that he was qualified to perform the functions of the job for which he applied with his former employer, after having sought and obtained Social Security disability benefits.Holtzclaw v. DSC Communications, 255 F.3d 254, 257-259 (5th Cir. 2001).
Ms. Carroll also claims that the Dallas Immigration Court unreasonably denied her request that a person be hired or assigned to insure that she took her prescribed medications. As noted above, Ms. Morse notified Plaintiff's counsel that this particular request would be denied. Denial of this request was not unreasonable. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (March 2, 1999, as amended, January 2003). Moreover, Plaintiff has presented no competent evidence to indicate that had Ms. Carroll taken her prescribed medications she would have been able to perform the functions of a legal technician. To the contrary the reports of all experts whom she was seen by clearly demonstrate that her mental impairments were deep-seated and were chronic in nature.
When she returned to work on March 27, 2000, Ms. Carroll notified her superiors of physical impairments for which she requested additional accommodations. Again her requests were accommodated in part. However, it is unnecessary to consider her physical impairments and restrictions since it is clear that her mental impairments precluded her from performing her required job functions.
Ms. Carroll also seeks to recover under supplemental jurisdiction state law claims for fraud (Count Four) and the intentional infliction of emotional distress (Count Six). As Defendant points out in his memorandum brief, 42 U.S.C. § 2000e-16(c) provides the sole and exclusive remedy for claims of discrimination against a federal employee's employer. Therefore these state law claims are not cognizable in this action. Although these state law claims arguably permit an action to be filed against the United States pursuant to the Federal Tort Claims Act, based upon the conduct of a federal employee's supervisors,Truman v. United States, 26 F.3d 592, 597 (5th Cir. 1994), she has failed to prove that she filed an administrative claim under the FTCA, a mandatory prerequisite for the waiver of sovereign immunity under the Act. In addition the Attorney General of the United States is not a proper party to an FTCA suit
In her response to Defendant's motion for summary judgment, Plaintiff concedes that she cannot maintain an action for libel and slander and defamation against Defendant.
IT IS, THEREFORE, ORDERED that Defendant's Motion to Dismiss in Part and for Partial Summary Judgment on Remaining Claims is GRANTED.
A copy of this order shall be transmitted to counsel for the parties.