Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Olson v. Chao

United States District Court, D. Massachusetts

September 30, 2019

ANGELA OLSON, Plaintiff,
v.
ELAINE L. CHAO, Secretary of the Department of Transportation, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT UNDER FED. R. CIV. P. 56 (DOCKET NO. 75)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Angela Olson ("Plaintiff"), an employee of the Federal Aviation Administration ("FAA"), has brought an employment discrimination claim against the defendant Elaine L. Chao, Secretary of the Department of Transportation ("Defendant"). Plaintiff alleges that Defendant violated the Rehabilitation Act, 29 U.S.C. § 701 et seq., by illegally discriminating against her on account of her physical and mental disabilities, denying her reasonable accommodations, subjecting her to a hostile work environment, and retaliating against her. Defendant denies liability and has filed a motion for summary judgment (Dkt. No. 75). The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. After hearing the parties' arguments and considering their written submissions, Defendant's motion is ALLOWED in part and DENIED in part for the reasons that follow.

         II. Background[1]

         In 1998, the Veterans' Administration ("VA") deemed Plaintiff, an Army veteran, to be fifty percent disabled based on major depression and the residual effects of the delayed treatment of Lyme disease, including arthralgia, migraine headaches, and fibromyalgia (PSF ¶¶ 8, 9, 10, 152; Dkt. No. 80-2 at 44, 62; Dkt. No. 80-4 at 18-19, Dkt. No. 89 Ex. E). In September 2006, the FAA hired Plaintiff to be an Aviation Safety Inspector ("ASI") for its New England Region Engine and Propeller Directorate, Manufacturing and Inspection Office in Windsor Locks, Connecticut ("MIDO-41") (DSF ¶ 1; PSF ¶ 1). ASIs inspected manufacturers and suppliers of aircraft parts and aviation hardware, provided feedback on quality control data, issued airworthiness certificates for aircraft, investigated quality control or quality system concerns, and met with members of the aviation community and industry representatives to resolve issues and problems (DSF ¶ 2). The ASI position Plaintiff held from September 2006 to July 2011 was a bargaining unit position on the grade (FG) compensation plan with ten steps per grade (DSF ¶ 3; Dkt. No. 68 at 3 ¶¶ 21, 23).

         Paul Horridge was Plaintiff's direct supervisor at MIDO-41 and Carlos Pestana, the Manufacturing and Inspection Office manager who was based in the regional office in Burlington, Massachusetts, was her second-level supervisor (Dkt. No. 70 at 1 ¶ 3; Dkt. No. 80-2 at 37, 48, 66).[2] In 2009, Plaintiff explained her back condition to Pestana after Horridge directed her to obtain three doctors' notes to support her continued use of a balance ball as a chair to relieve her back and joint pain (PSF ¶ 18; Dkt. No. 80-2 at 48-50, 61; Dkt. No. 89-4 at 4). When Plaintiff applied to attend an eighteen-month leadership development program, she told Pestana she was interested in becoming a manager because she feared that her medical condition – the residual effects of untreated Lyme disease – would prevent her from performing the physical aspects of the ASI position when she was older (Dkt. No. 80-2 at 39, 60-61).

         A. March 2011 to May 2015: Plaintiff was employed as a Supervisory Aviation Safety Inspector in Burlington, Massachusetts

         In March 2011, Plaintiff began serving in a detail (temporary) position as a manager for the FAA's Engine and Propeller Directorate's Manufacturing and Inspection Office in Burlington, Massachusetts ("MIDO-42") (DSF ¶ 6). Plaintiff's detail was extended on June 19, 2011 (DSF ¶ 7). Plaintiff alleges that, while she was acting as the manager in Burlington, she informed Pestana that she had difficulty interacting with people and requested a "purposeful way" to interact with others in order to overcome her limitations (Dkt. No. 80-2 at 62-63, 130, 156-57).

         On July 3, 2011, Plaintiff was promoted to the non-bargaining unit position of Supervisory Aviation Safety Inspector in the Burlington office (DSF ¶ 8; Dkt. No. 68 at 3 ¶ 21). As a manager, Plaintiff was required to certify products and parts, support the office manager with respect to the development of policies and standards for the manufacturing inspection program, and supervise approximately nine employees (DSF ¶ 9). Plaintiff's new position was covered by the tiered Core Compensation Pay Plan (Dkt. No. 68 at 3 ¶ 21). Her salary was in the J-Band tier of annual compensation (DSF ¶ 8; Dkt. No. 68 at 3 ¶¶ 23, 24). Pestana was Plaintiff's first-line supervisor at MIDO-42 (DSF ¶ 13; Dkt. No. 80-2 at 59-60, 129).

         In 2011 and 2012, Plaintiff began to supervise and mentor HM, an employee who had a contentious relationship with Pestana and eventually brought claims of disability and race discrimination and retaliation against him (PSF ¶¶ 20, 71; Dkt. No. 89-4 at 4; Dkt. No. 95 Ex. G).[3] Plaintiff's management of HM was stressful and triggered an increase in Plaintiff's depression and anxiety (Dkt. No. 80-2 at 117-19, 130-31; Dkt. No. 89-4 at 4). When Plaintiff cried as she discussed HM with Pestana, he told her to stop crying and criticized her for being unprofessional (PSF ¶¶ 74, 75, 76; Dkt. No. 80-2 at 118-19). Plaintiff explained that she suffered from depression, which was included as a basis for her VA disability rating (Dkt. No. 80-2 at 118-19). Pestana got angry and told Plaintiff to take medication (Dkt. No. 80-2 at 119-20). Thereafter, Plaintiff allegedly told Pestana that she also suffered from anxiety (Dkt. No. 80-2 at 131-32).

         Plaintiff was not disciplined, given an unsatisfactory performance review, or placed on an Opportunity to Demonstrate Performance ("ODP") plan during her tenure as a supervisor at the FAA office in Burlington (DSF ¶¶14.3, 20.1, 48.2, 54.1; PSF ¶¶ 7, 61, 154). Pestana's evaluations of Plaintiff's job performance from October 2012 to September 2013 and from October 2013 to September 2014 identified her failure to collaborate with other managers as an area that needed improvement (DSF ¶¶ 19, 20, 21; PSF ¶ 28; Dkt. No. 70 ¶¶ 10, 11; Dkt. No. 70- 5 at 1; Dkt. No. 70-6 at 1; Dkt. No. 80-2 at 89).[4] He encouraged her to reach out to MIDO managers and to the Directorate Management Team ("DMT") for assistance (DSF ¶ 21; Dkt. No. 70-4 at 2; Dkt. No. 80-2 at 84).

         Pestana's 2013 and 2014 evaluations also criticized Plaintiff for failing to actively participate in the hour-long weekly and the longer quarterly management meetings (DSF ¶¶ 19, 20; Dkt. No. 70-5 at 1; Dkt. No. 70-6 at 1; Dkt. No. 80-2 at 65-66, 89). Plaintiff defended her lack of participation in the meetings by stating that other managers mocked or criticized her when she spoke (DSF ¶ 54.2; Dkt. No. 80-2 at 90, 91, 97). She discussed that issue with Debra Yawor, a Program and Management Analyst for the FAA who coordinated DMT meetings (DSF ¶ 32). In addition, because Pestana and others chastised her for taking unpopular positions at meetings, Pestana eventually prohibited her from discussing topics at DMT meetings unless she first discussed them with him (DSF ¶ 54.3; Dkt. No. 80-2 at 90-93, 95, 97-98). That created what Plaintiff described as a "Catch-22" situation: she was encouraged to speak at meetings, but she was prohibited from speaking unless she first cleared her comments with Pestana (Dkt. No. 80-2 at 92-93). Pestana did not inform Plaintiff that she could be disciplined or reassigned for her conduct and did not issue her a verbal or written warning for her failure to collaborate with her colleagues or participate in meetings (DSF ¶¶ 14.5, 14.8, 63.17; PSF ¶ 65).

         Shortly before the October 6, 2014 DMT meeting, Pestana told Plaintiff that she did not get along with anyone, no one liked her, and people complained to him about her (DSF ¶ 31; PSF ¶ 76; Dkt. No. 80-2 at 107). At the meeting, Plaintiff confronted her colleagues, asking why they criticized her behind her back (Dkt. No. 80-2 at 107-08). Afterward, according to Plaintiff, Pestana said, "How dare you [discuss my comments to you]?" while pointing his finger at her face (Dkt. No. 80-2 at 95, 108). She feared that he would touch her (Dkt. No. 80-2 at 95, 108).

         On October 29, 2014, Plaintiff asked Pestana for: (1) permission to telework one day per week beginning in February 2015; and (2) specific assignments for DMT meetings that created a purpose and structure to her interactions with her colleagues (hereinafter "the purpose and structure accommodation") (DSF ¶¶ 35, 37; PSF ¶¶ 31, 34, 77, 78; Dkt. No. 89-5 ¶ 12). In support of her telework request, Plaintiff presented Pestana with a doctor's note indicating that she suffered from "chronic headaches related to cervical muscle tension which [was] exacerbated by prolonged periods of . . . driving" and recommending that she be allowed to work from home and that her work station be evaluated by an ergonomic specialist (DSF ¶ 36; PSF ¶ 34). Plaintiff explained that telework would also permit her to attend therapy sessions to stabilize her increased PTSD symptoms and depression (PSF ¶¶ 33, 34; Dkt. No. 89-5 ¶ 9).[5] Plaintiff told Pestana she was requesting the purpose and structure accommodation to alleviate the manifestations of her PTSD and depression, including difficulty with social interactions, anxiety, and a flat affect in unstructured settings, such as DMT meetings (DSF ¶ 14.2; PSF ¶¶ 14, 15, 31; Dkt. No. 89-4 at 5-6; Dkt. No. 89-5 ¶ 12). According to Plaintiff, Pestana responded to the mental health related requests by saying, in a raised voice, "'You tell me you're depressed, then anxiety, now PTSD, what is going to be next Angela? When does this end?'" (PSF ¶ 36). Pestana granted Plaintiff's request to telework beginning in February 2015, but answered Plaintiff's purpose and structure accommodation request by telling her that she needed "'training'" (DSF ¶ 39; PSF ¶ 32; Dkt. No. 89-5 ¶ 12). Plaintiff's accommodation requests were not documented (PSF ¶ 80).

         After Plaintiff requested the purpose and structure accommodation, she asked Pestana for detail assignments or opportunities to participate in a specific project on a national team to relieve her depression and anxiety when interacting with her peers (PSF ¶ 79; Dkt. No. 89-4 at 6). Plaintiff alleges that Pestana called her request "'ridiculous, '" said she was not qualified for those assignments, and did not respond when she asked what steps she could take to qualify (PSF ¶ 79; Dkt. No. 89-4 at 6).

         At the February 3-5, 2015 DMT meeting, the other managers allegedly "erupted" when Plaintiff asked a question and she left the room because of anxiety (Dkt. No. 79 at 3; Dkt. No. 80-2 at 162-67). On February 18, 2015, about two weeks after that DMT meeting, Pestana reprimanded Plaintiff for being late to meetings, for being disrespectful to another manager at a DMT meeting, and for walking out of the February 3-5, 2015 meeting (DSF ¶ 42; Dkt. No. 79 at 1, 3). Plaintiff alleges that he "yelled, " "'How dare you leave the room?'" (PSF ¶ 69). She explained that she sometimes left to avoid becoming overwhelmed and that she was tardy because she was addressing an issue with one of her employees (PSF ¶ 30; Dkt. No. 79 at 1, 3). Other managers testified that it was not unusual for managers to arrive late (DSF ¶ 42 [Plaintiff's response citing deposition transcripts]).

         Pestana testified that he first discussed Plaintiff's potential reassignment "around February" because he "figured it was time to address the issue" and determine the options (Dkt. No. 89 at 88). Managers Pestana, Colleen D'Alessandro, Thomas Boudreau, and Diane Romanosky met with Irma Field and April Gauthier of human resources ("HR") and John St. Germaine of labor relations ("LR") on March 2, 2015 to discuss the alternatives that were available to address the "performance issues" of Plaintiff and CS, a nondisabled employee who Boudreau supervised (PSF ¶¶ 57, 58, 59; Dkt. No. 89 at 140; Dkt. No. 90-1 at 1). D'Alessandro's note of the meeting reflects that Gauthier would "run numbers" of the various options for Pestana (Dkt. No. 90-1 at 1).

         Plaintiff alleges that she and Pestana met infrequently after she requested accommodations on October 29, 2014 (PSF ¶ 37). Because Pestana refused to recognize that Plaintiff's PTSD symptoms and depression interfered with her ability to interact and collaborate with her colleagues and, instead, attributed Plaintiff's shortcomings to her alleged deficits in communication skills, he identified a communication course for her on March 3, 2015 (PSF ¶ 28; Dkt. No. 70-13 at 1, 2).

         On April 15, 2015, D'Alessandro, Pestana's supervisor, sent an e-mail message to FAA employees Dorenda Baker and Dave Hempe about the "Upcoming ANE Management Transitions" of Plaintiff and CS (Dkt. No. 90 Ex. EE). D'Alessandro indicated that the "moves are based on performance. We've worked closely with HR/LR and Legal to ensure both moves are within Agency policy" (Dkt. No. 90 Ex. EE). The message continued by informing the recipients that early in the week of April 20, Pestana would be reassigning Plaintiff from her management position to a Senior ASI position at MIDO-41 in Enfield, Connecticut (Dkt. No. 90 Ex. EE). The message said, "Angela is unaware of this change – we don't expect her to be happy about it" (Dkt. No. 90 Ex. EE). D'Alessandro's e-mail message also noted that CS would be swapping positions with another employee and said, "If his performance doesn't improve [after the swap], Tom [Boudreau] will likely move [CS] involuntarily out of management similar to what [Pestana] is doing with [Plaintiff]" (Dkt. No. 90 Ex. EE).

         Pestana conducted Plaintiff's mid-year performance evaluation on April 21, 2015 (DSF ¶ 47; Dkt. No. 70-15 at 1, 4).[6] He noted her need for improvement in several areas including communicating effectively with other managers, working constructively and collaboratively with the MIO manager (Pestana), the Manufacturing Inspection District Office Management Team ("MIDO MT"), and the DMT, and actively participating during the monthly "ANE-101/MIDO Manager and DMT meetings" (DSF ¶¶ 48, 49; Dkt. No. 70-15 at 4).

         When the performance evaluation concluded, Pestana notified Plaintiff that she was being reassigned to MIDO-41 in Connecticut (DSF ¶ 51; PSF ¶ 39). Pestana initially told Plaintiff that he "had lost confidence in her leadership abilities" (DSF ¶¶ 54, 63.1; PSF ¶ 40). When Plaintiff inquired about her right to appeal his decision, Pestana indicated that it was not an adverse action (Dkt. No. 89 at 84; Dkt. No. 89-4 at 9). Instead, he called it "'just a reassignment of work'" (DSF ¶ 63.2; Dkt. No. 89-4 at 9). Two days later, on April 23, 2015, Pestana sent Yawor the "first draft" of an e-mail message to colleagues indicating that Plaintiff's reassignment to Enfield, Connecticut was part of an "organizational restructure" (PSF ¶ 45). However, Pestana knew that his representation was false (DSF ¶ 63.8 # 2; PSF ¶¶ 46, 47). Pestana later told Plaintiff that the reassignment was an attempt to make her "'happy, '" and was meant to address her medical conditions (DSF ¶¶ 63.4, 63.5; PSF ¶¶ 42, 43). Pestana's deposition testimony indicates that Plaintiff's reassignment was conduct related, not performance related (DSF ¶ 63.16; PSF ¶ 64), whereas D'Alessandro testified that she thought the reassignment was performance related (DSF ¶ 63.18; PSF ¶ 66).

         Plaintiff had no notice that she would be reassigned before Pestana told her on April 21, 2015 (DSF ¶ 63.13; PSF ¶ 52). At that time, she did not tell Pestana that her physical condition would make it difficult for her to perform the duties of an ASI (DSF ¶¶ 53, 65, 66, 67; Dkt. No. 80-2 at 179). According to Plaintiff, Pestana asked her if she had anything to say, but indicated that whatever she said would not matter (Dkt. No. 80-2 at 180-81). About ten days later, when Plaintiff tried to tell Pestana that her physical condition would prevent her from performing the ASI job, which required inspecting aircraft and performing audits of the manufacturing process, Pestana allegedly refused to discuss it (DSF ¶ 67.1; PSF ¶¶ 81, 82, 83, 84, 90).[7]

         On Plaintiff's last day in the Burlington office, she intended to complain to D'Alessandro, her second-level supervisor, about the reassignment, but D'Alessandro rebuffed her attempt (DSF ¶ 13, 63.10; PSF ¶ 50; Dkt. No. 80-2 at 182). D'Alessandro told Plaintiff that the personnel action "had been 'discussed for a long time by a lot of people'" (DSF ¶¶ 63.11, 63.12; PSF ¶¶ 51, 55). D'Alessandro refused to provide Plaintiff with additional information concerning those discussions notwithstanding Plaintiff's request (DSF ¶ 63.13; PSF ¶ 52).

         On May 13, 2015, Plaintiff received an SF-50, Notice of Personnel Action form (DSF ¶ 63.14; PSF ¶ 53; Dkt. No. 68-1 at 1). The notice indicated that Plaintiff's reassignment to Senior Aviation Safety Inspector, a nonmanagerial bargaining unit position on the grade (FG) compensation plan, was a "competitive action" (DSF ¶ 63.14, 71; PSF ¶¶ 39, 53; Dkt. No. 68-1 at 1). Plaintiff, however, did not apply or compete for the position (DSF ¶ 63.14; PSF ¶ 54). Plaintiff's salary increased by $3, 175 after the reassignment (DSF ¶ 72). It is undisputed that the FAA did not provide a right to file a grievance or to appeal the reassignment (DSF 63.15; PSF ¶ 54).[8]

         B. May 3, 2015: Plaintiff began working as a Senior Aviation Safety Inspector in Enfield, Connecticut

         After Plaintiff reported to work at MIDO-41 in Connecticut on May 3, 2015, she met with Eileen Murphy, the J-Band Senior Aviation Safety Inspector, to discuss her responsibilities (DSF ¶ 74). Plaintiff's concerns about the reassignment prompted Murphy to schedule a meeting with Richard Warren, their first-line supervisor (DSF ¶¶ 75, 76; PSF ¶¶ 93, 94).

         Plaintiff met with Warren and Murphy on May 12, 2015 (DSF ¶ 76; PSF ¶ 96). According to Murphy's notes of the meeting, [9] Plaintiff described her conditions that were diagnosed in 1991 and informed Warren and Murphy that she had a ten point veterans' preference, used a ball as a chair to relieve her back pain, and had received permission to telework as a reasonable accommodation (PSF ¶ 98; Dkt. No. 89-15 at 2). Plaintiff was apprehensive about her ability to stand and walk as much as the Senior ASI job required (PSF ¶ 97; Dkt. No. 89-15 at 2). She also worried about her potential inability to drive back to the office or home from an assignment because of the affects of the prescription drugs she took to manage her conditions (PSF ¶ 97; Dkt. No. 89-15 at 2). Warren asked if she had considered disability retirement (Dkt. No. 89-15 at 2). Plaintiff indicated that she received disability benefits from the military (Dkt. No. 89-15 at 2). Warren told Plaintiff that she would not be assigned as the Principal Inspector on projects and Murphy would assist her in supporting the ASIs (Dkt. No. 89-15 at 2). Following the meeting, Murphy assigned Plaintiff to work at facilities near her home and office and more administrative work (DSF ¶ 81).

         On July 17, 2015, Plaintiff asked Warren for the following accommodations: (1) thirty days of leave beginning on July 20, 2015; (2) assignments that avoided bending, twisting, stretching, squatting, crouching, crawling, reaching, or entering confined spaces; (3) assignments that did not require her to stand or sit for more than ten minutes at a time; (4) assignments that did not require her to drive more than twenty minutes; (5) a plan for a procedure to follow if her migraine headaches or medication rendered her unable to drive; and (6) the ability to telework at least three days per week (DSF ¶ 85; PSF ¶ 100; Dkt. No. 80-4 at 16). Plaintiff submitted documents to support her request, including a July 16, 2015 letter from a doctor describing Plaintiff's PTSD symptoms -- panic attacks, anxiety, feelings of being unsafe, flashbacks, trouble concentrating and focusing, depressed mood, and poor sleep -- and recommending a thirty day leave for self-care and treatment (DSF ¶ 86; PSF ¶ 101; Dkt. No. 80-4 at 17-21). Murphy, who was the acting manager when Plaintiff submitted her requests, immediately granted Plaintiff a thirty-day leave (DSF ¶ 87).

         In response to Warren's July 23, 2015 letter requesting documentation regarding Plaintiff's medical condition as it related to the essential functions of the Senior ASI position, Plaintiff submitted Nicole Tan Kirchen, M.D.'s August 4, 2015 letter indicating Plaintiff's limitations and opining that she should have either an exclusively administrative job or the option to telework part-time (DSF ¶¶ 88, 89; PSF ¶ 153; Dkt. No. 80-4 at 31-32). Warren convened a panel to consider Plaintiff's accommodation requests that had not already been granted (DSF ¶ 90).

         By a September 14, 2015 letter, Warren informed Plaintiff that because the FAA could not provide an accommodation that would enable her to perform the essential functions of the ASI job, he would start the job reassignment process by searching for a vacant funded position at the same or lower level as her current position (DSF ¶ 93; PSF ¶ 102). Warren provided Plaintiff with a questionnaire to complete concerning the jobs she would and would not accept (DSF ¶ 94; PSF ¶ 103). Plaintiff was advised that "narrowing the search too much could result in very limited or no positions being identified for possible reassignment and could result in [her] separation from Federal service" (DSF ¶ 94; PSF ¶ 103). Plaintiff claims that, on September 22, Warren told her that he was uncomfortable with the September 14 decision and that he would attempt to make things work (PSF ¶ 104).[10]

         On September 28, 2015, Plaintiff requested reconsideration of Warren's decision (DSF ¶ 95). In pertinent part, her letter asked for reassignment to a Certification Specialist position, which was "largely, if not entirely, administrative in nature" (DSF ¶ 95).

         On February 2, 2016, Warren notified Plaintiff that the Certification Specialist position she had requested would be available in MIDO-41 on March 4, 2016 and that Plaintiff "could be reasonably accommodated through reassignment [to that position] at [her] current grade and pay" (DSF ¶¶ 113, 115; PSF ¶¶ 106, 107). In addition, Warren granted Plaintiff's requests to telework three days a week and to get prescription safety glasses (DSF ¶ 114). At a February 8, 2016 conference with Plaintiff and Murphy, Warren outlined the accommodations for the Certification Specialist position, including the plan for responding to Plaintiff's inability to drive due to migraines or medication (DSF ¶ 116; Dkt. No. 80-4 at 47-48). After Plaintiff expressed concerns about the proposed plan addressing her possible inability to drive and suggested an alternative, Warren agreed to her proposal (DSF ¶ 117; Dkt. No. 80-4 at 49).

         C. October 2015 to August 2016: Plaintiff Applied for Management Positions

         While Plaintiff's request for reconsideration of Warren's September 14, 2015 decision was pending, she submitted applications for the following four FAA management positions: a J-Band position in Orlando, Florida; her former J-Band position in Burlington (MIDO-42); a K-Band Supervisory Aviation Safety Inspector position in Enfield, Connecticut (MIDO-41) where she was working as a Senior ASI; and a ninety day detail supervisory position in the office that served Farmingdale, New York and Saddlebrook, New Jersey (DSF ¶¶ 97, 98, 119, 128; PSF ¶¶ 109, 114, 127, 128, 130). Plaintiff was not selected to fill any of the positions (DSF ¶¶ 98, 109, 121, 129; PSF ¶ 110, 121, 128, 136, 137).[11][12]

         III. Standard of Review "

         ''Summary judgment is proper where 'the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (quoting Fed.R.Civ.P. 56(c)). "A factual dispute is 'genuine' if 'it may reasonably be resolved in favor of either party' and, therefore, requires the finder of fact to make 'a choice between the parties' differing versions of the truth at trial.'" DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). "[A] fact is 'material' 'if its existence or nonexistence has the potential to change the outcome of the suit.'" Jarvis v. Village Gun Shop, Inc., 805 F.3d 1, 7 (1st Cir. 2015) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)).

         In ruling on summary judgment, the court "view[s] 'the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.'" Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)). "A party seeking summary judgment is responsible for identifying those portions of the record, 'which it believes demonstrate the absence of a genuine issue of material fact.'" Massacani v. Kelly Servs., Inc., Civil Action No. 3:16-cv-30069-KAR, 2018 WL 443448, at *1 (D. Mass. Jan. 16, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant can meet this burden "either by offering evidence to disprove an element of the plaintiff's case or by demonstrating an 'absence of evidence to support the non-moving party's case.'" Rakes v. United States, 352 F.Supp.2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden, "'the nonmoving party must come forward with facts that show a genuine issue for trial.'" Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Carroll, 294 F.3d at 236). "'[T]he nonmoving party 'may not rest upon mere allegations or denials of [the movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s]he would bear the ultimate burden of proof at trial.'" Id. (third alteration in original) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). "'The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."'" Id. at 152-53 (quoting DeNovellis, 124 F.3d at 306).

         IV. Analysis

         Plaintiff alleges that Defendant violated the Rehabilitation Act by: (1) reassigning her from the supervisory J-Band position in Burlington to the nonsupervisory bargaining unit position in Connecticut; (2) failing to grant or inordinately delaying her requests for reasonable accommodations; and (3) failing to hire her for any of the four positions for which she applied while awaiting Warren's decision on her request for reconsideration. Plaintiff claims that those actions constituted disability discrimination and a failure to accommodate (Counts I and II), created a hostile work environment (Count III), and were retaliatory (Count IV) (Dkt. No. 1).[13]

         A. Count I: Disability Discrimination by Adverse Employment Actions

         Plaintiff's disability discrimination claim in Count I is based on a series of discrete events that involved different decision-makers. She relies on her reassignment from the supervisory J-Band position in Burlington to the nonsupervisory FG-14 position in Connecticut in April 2015 and her non-selection for the K-Band Supervisory Aviation Safety Inspector position in Connecticut and the detail position in the New York and New Jersey office (Dkt. No. 1 ¶ 114 (e), (h), (i)). According to Plaintiff, these adverse actions were taken because of her disability.

         "The Rehabilitation Act prohibits the [FAA] from discriminating against its employees on the basis of disability." Bangura v. Shulkin, 334 F.Supp.3d 443, 461 (D. Mass. 2018). See 29 U.S.C. § 701 et seq. Because Plaintiff does not provide direct evidence of disability discrimination, Plaintiff's claim is subject to the "three-stage burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)." Boadi v. Ctr. for Human Dev., Inc., 239 F.Supp.3d 333, 349-50 (D. Mass. 2017) (quoting Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012)). See Moebius v. Tharperobbins Co., CIVIL ACTION NO. 15-10751-MBB, 2016 WL 6476941, at *8 (D. Mass. Nov. 1, 2016).

         Plaintiff has the initial burden to establish a prima facie case. See McDonnell Douglas Corp., 411 U.S. at 802. "To make out a prima facie case of disability discrimination, the Plaintiff must prove by a preponderance of the evidence that: (1) she was disabled within the meaning of the statute; (2) she was qualified to perform the essential functions of her job, either with or without a reasonable accommodation; and (3) that the [FAA] took adverse action against her because of her disability." Bangura, 334 F.Supp.3d at 461 (citing Rios-Jimenez v. Principi, 520 F.3d 31, 41 (1st Cir. 2008)). "The rather minimal showing functions to raise an inference of discrimination." Moebius, 2016 WL 6476941, at *8 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)).

         "If Plaintiff establishes the inference, the burden shifts to Defendant[ ] 'to articulate a legitimate, non-discriminatory reason for its action.'" Boadi, 239 F.Supp.3d at 350 (quoting Ramos–Echevarría v. Pichis, Inc., 659 F.3d 182, 186-87 (1st Cir. 2011) (citing Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007)); see also McDonnell Douglas Corp., 411 U.S. at 802. "If the employer offers a non-discriminatory reason, the burden then shifts back to the plaintiff to show that the employer's justification is mere pretext cloaking discriminatory animus." Ramos–Echevarría, 659 F.3d at 187 (citing Freadman, 484 F.3d at 99).

         1. Whether Plaintiff's reassignment from Burlington, Massachusetts to Enfield, Connecticut in April 2015 was discriminatory presents a genuine question of material fact.

(a) Plaintiff established a prima facie case of discrimination Contending that the physician's note that Plaintiff presented to Pestana on October 29, 2014 recommending that she decrease her driving time to relieve chronic headaches was insufficient for this purpose, Defendant claims that Plaintiff has not shown evidence of disability when she was reassigned to Connecticut in April 2015 (Dkt. No. 78 at 9). Defendant's contention, however, ignores Plaintiff's evidence that she also told Pestana that she suffered from PTSD, the residual effects of the delayed treatment of Lyme disease, depression, and anxiety.

         The Rehabilitation Act defines "disability" as either "(a) a physical or mental impairment which substantially limits one or more of an individual's major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment." Calero-Cerezo, 355 F.3d at 20 (citing 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)). Plaintiff claims, under subsection (a), to have physical and mental impairments that substantially limited her ability to work and, under subsection (b), a record of such impairments (Dkt. No. 88 at 25-27). Plaintiff has met her burden of establishing that she suffered physical and mental impairments, and the impairments substantially limited her ability to work, which is a "major life activity." See Calero-Cerezo, 355 F.3d at 20.[14]

         In 1998, the VA based Plaintiff's fifty percent disability rating on the residuals of Lyme disease, including fibromyalgia, migraine headaches, and major depression (Dkt. No. 89 Ex. E). About three months after Plaintiff was reassigned to Connecticut, she submitted Dr. Kirchen's letter indicating that she was being treated for "chronic migraines, arthritis in the hips, knees and feet, [f]ibromyalgia, and chronic [PTSD]" (Dkt. No. 89 Ex. BB).[15] Fibromyalgia, major depression, and PTSD have been recognized as mental impairments under the Rehabilitation Act and the ADA. See Beadle v. Postal, Civ. No. 17-00049 JMS-KSC, 2017 WL 1731683, at *3 n.4 (D. Haw. May 2, 2017) ("PTSD is a recognized mental impairment that substantially limits brain function.") (citing 29 C.F.R. § 1630.2(j)(3)(iii)); Thomas v. S.F. Hous. Auth., No. 3:16-cv-03819, 2017 WL 878064, at *8 (N.D. Cal. Mar. 6, 2017) (PTSD constitutes a plausible disability for purposes of the ADA); Harding v. Cianbro Corp., 436 F.Supp.2d 153, 172 (D. Me. 2006) ("Other courts have . . . found fibromyalgia to be a physical impairment.") (collecting cases); Tebo v. Potter, 345 F.Supp.2d 61, 66 (D. Mass. 2004) ("The First Circuit has recognized that major depression can qualify as a mental impairment within the meaning of the Rehabilitation Act.") (citing Calero–Cerezo, 355 F.3d at 20).

         Plaintiff identifies working as the major life activity with which her mental impairments interfered at the time of her reassignment in April 2015. See 29 U.S.C. § 794(d) (the Rehabilitation Act applies the ADA standards, as amended by the ADA Amendment Act of 2008, including 42 U.S.C. § 12102, to federal employers); 42 U.S.C. § 12102(2)(A) (under the ADA, "major life activities" include working). As a Supervisory ASI, Plaintiff was required to collaborate with the office manager to develop policies and programs and to network with other managers (DSF ¶¶ 9, 15, 16, 17). Plaintiff alleges that her mental impairments, particularly PTSD, limited her ability to interact with her colleagues, thereby impairing her ability to perform those aspects of the job (DSF ¶ 14.2; PSF ¶¶ 14, 15).[16] While Defendant points to some statements by Plaintiff suggesting that her deficits were not caused by her disability but, instead, were manifestations of her "personality" (DSF ¶¶ 34, 44; Dkt. No. 78 at 10), the dispute about whether or not Plaintiff's mental health limited her ability to work cannot be resolved on summary judgment. See Calero-Cerezo, 355 F.3d at 13 ("a reasonable factfinder might conclude that [plaintiff's] friction with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.