United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT UNDER FED. R. CIV. P. 56 (DOCKET NO.
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
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.
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).
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). 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).
March 2011 to May 2015: Plaintiff was employed as a
Supervisory Aviation Safety Inspector in Burlington,
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,
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).
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). 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
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). 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).
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).
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).
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). 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).
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).
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]).
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).
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).
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
conducted Plaintiff's mid-year performance evaluation on
April 21, 2015 (DSF ¶ 47; Dkt. No. 70-15 at 1,
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).
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).
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,
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).
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
May 3, 2015: Plaintiff began working as a Senior Aviation
Safety Inspector in Enfield, Connecticut
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).
met with Warren and Murphy on May 12, 2015 (DSF ¶ 76;
PSF ¶ 96). According to Murphy's notes of the
meeting,  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 ¶
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).
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
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 ¶
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).
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).
October 2015 to August 2016: Plaintiff Applied for
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).
Standard of Review "
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)).
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).
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).
Count I: Disability Discrimination by Adverse Employment
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.
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).
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)).
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).
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.
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.
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). 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).
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). 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