McCoy v. Carson

          OPINION AND ORDER

          Kristine G. Baker, United States District Judge

         Before the Court is a motion for summary judgment filed by defendant Dr. Ben S. Carson, Sr., in his official capacity as Secretary of the United States Department of Housing and Urban Development (“HUD”) (Dkt. No. 17). Plaintiff Bobbie McCoy has filed a response to the motion (Dkt. No. 23). Secretary Carson has filed a reply to Mr. McCoy's response (Dkt. No. 26). For the following reasons, the Court grants Secretary Carson's motion for summary judgment (Dkt. No. 17).

         I. Factual Background

         Mr. McCoy brings this civil rights action pursuant to Title VII of the Civil Rights of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., and pursuant to the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 (Dkt. No. 2, at 1). Mr. McCoy seeks damages against Secretary Carson for the alleged unlawful discriminatory employment practices that Mr. McCoy has been subjected to, all on account of his race, handicapping condition, and in retaliation for opposing unlawful discriminatory employment practices (Id.).^[1] Specifically, Mr. McCoy seeks a declaration that he has been subjected to unlawful discriminatory practices; reinstatement and back pay; compensatory and punitive damages; the costs of prosecuting this action; attorney's fees; and all other equitable, legal, and just relief (Id., at 12-13).

         Mr. McCoy, an African-American male, began working for HUD in 1995 as the State Coordinator, and he held this position for two years (Dkt. No. 24, ¶¶ 1, 5). The position was renamed Senior Community Building, and every State Coordinator nationwide had to reapply for this position (Id., ¶ 2). Mr. McCoy was not selected for the job when he reapplied (Id.). He held various other positions associated with HUD (Id., ¶ 3). Mr. McCoy applied for the Field Office Director position that was held by Bessie Jackson, an African-American female, but he was not selected (Dkt. No. 2, ¶¶ 10-11; Dkt. No. 24, ¶ 3).

         At the time that this cause of action arose, Mr. McCoy worked as an Operations Specialist, GS-15, on Ms. Jackson's staff in the Little Rock Field Office (Dkt. No. 2, ¶ 9; Dkt. No. 24, ¶ 4). An Operations Specialist assists the Field Office Director in ensuring the operational functions of the office are carried out in an effective manner and that HUD programs are administered properly (Dkt. No. 24, ¶ 4). Mr. McCoy held this job until he retired from HUD on September 29, 2010 (Id.). Alice Rufus, an African-American woman, and Steve Coop, a Caucasian male, were Operations Specialists, GS-13, and were also supervised by Ms. Jackson (Id., ¶¶ 4-5).

         Ms. Jackson worked as the Field Office Director for HUD from March 2002 to March 2008 (Id., ¶ 6). In this position, Ms. Jackson maintained responsibility for the overall administration of the HUD office in Arkansas and ensured the effective delivery of HUD's services to customers (Id.). She was responsible for representing and speaking for the Secretary of HUD with Congressional delegations, governors, mayors, local leaders, state legislators, representatives of the industry, and public and private interest groups (Id.). During the time in question, Ms. Jackson served as Mr. McCoy's immediate supervisor (Id., ¶ 9). Ms. Jackson's immediate supervisor was Cynthia Leon, Regional Director, Region VI, Regional Office, Fort Worth, Texas (Id.). On March 16, 2008, Ms. Jackson became the Supervisory Operations Officer for Regional VI, HUD, in Fort Worth, Texas, and John Munday became the Acting Little Rock Field Office Director (Id., ¶ 10). Ms. Jackson retired on September 30, 2010, after working for HUD for approximately 25 years (Id., ¶ 11).

         As Operations Specialist, some of Mr. McCoy's duties included: compiling information received into a Weekly Report to Regional Director; compiling information received electronically from program divisions into a single Quarterly Management Report for submission to the Regional Office; researching and preparing correspondence; and reviewing correspondence prepared by others in response to inquiries from Congressional and other HUD customers (Id., ¶ 12). In addition, on an as needed basis, Mr. McCoy prepared briefing and other reports from information generally provided electronically by program divisions and/or otherwise generally available electronically from other sources, such as Congressional web pages, HUD web pages, and the like (Id.). Mr. McCoy also represented HUD in, and coordinated HUD's conduct and involvement in, meetings and events, among other things (Id.). As Program Liaison, Mr. McCoy kept the Field Office Director up to date on the status of activities, issues, and concerns involving activities being implemented by assigned program divisions and coordinated responses to media inquiries with the Regional Public Affairs Office (Id.).

         On February 24, 2003, Ms. Jackson issued a Letter of Counseling to Mr. McCoy to put him on notice of his duties and responsibilities as well as her expectations of his conduct (Id., ¶ 34).

         On April 28, 2003, because of back problems, Mr. McCoy submitted an accommodation request for a desk chair with lumbar support and an adjustment computer or keyboard stand (Id., ¶ 15). The request was the result of a workstation evaluation (Id.). Mr. McCoy included a picture of a chair he was requesting but stated that if some other chair was determined to be more appropriate his accommodation request could be amended (Id.). Ms. Jackson approved his request in full, and Mr. McCoy received an ergonomic chair and some type of keyboard tray (Id., ¶¶ 15-16). Mr. McCoy asserts that beginning in late 2005 he began to experience pain and tremors in his right arm and hand, as well as pain and numbness in his left hand (Dkt. No. 2, ¶ 12). On August 15, 2006, Mr. McCoy submitted an accommodation request for a replacement chair because the left armrest on his chair broke (Dkt. No. 24, ¶ 17). Instead of purchasing a replacement chair, a replacement arm was ordered, and his ergonomic chair was repaired (Id.). Mr. McCoy verified with Ms. Jackson that his chair was repaired on October 4, 2006 (Id.).

         On March 20, 2007, Mr. McCoy submitted an accommodation request that stated the following: “My Doctor has instructed me to ‘limit' my time and usage on the computer for the next 30 days through April 12, [2007], because of pain and tremors in my hands, particularly the right hand. They have gotten progressively worse over the past 18 months. A treatment plan is expected on 4-13-07.” (Id., ¶ 18). Mr. McCoy provided a certificate to return to work from Dr. Cain, which diagnosed Mr. McCoy with tremor of right upper extremity (Id.). Dr. Cain stated that Mr. McCoy had been under his care since March 15, 2007 (Id.).

         Ms. Jackson received the accommodation request on March 21, 2007, assessed Mr. McCoy's essential job functions, and determined that about 90% to 95% of his work product required use of the computer (Id., ¶ 19). Ms. Jackson engaged in interactive communications with Mr. McCoy to discuss the problem, which affected his ability to perform the essential functions of his job, and to determine an appropriate reasonable accommodation that would enable him to perform those functions (Id.). Mr. McCoy was unable to specify or describe the accommodation that may be available to allow him to perform his essential functions (Id., ¶ 20). A suggestion for a reasonable accommodation was typing assistance, but the Little Rock Field Office did not have secretaries or other clerical support who could be made available to assist Mr. McCoy (Id.). Due to lack of knowledge of the expense and availability of appropriate reasonable accommodation to meet Mr. McCoy's needs, Ms. Jackson was unable to assess adequately the determining factors that constitute undue hardship or impact on the agency (Id.). Ms. Jackson sought assistance from her supervisor, Ms. Leon, and HUD Employee Assistant Program and Disability Program Manager Deborah Rizzo for evaluation and determination (Id.).

         On May 14, 2007, Ms. Jackson issued an Official Reprimand to Mr. McCoy for failure or refusal to follow instructions and failure to perform assigned duties. In the Official Reprimand, Ms. Jackson warned Mr. McCoy that any further acts of misconduct may result in a proposal to take disciplinary action against him, up to and including removal from Federal Service (Id., ¶ 34).

         Ms. Rizzo approved Mr. McCoy's accommodation request in part on May 16, 2007 (Id., ¶ 21). Dr. Sylvie Cohen, Occupational Medicine Consultant, Department of Health and Human Services (“HHS”), was asked to review Mr. McCoy's medical documentation and recommend an accommodation (Id.). Dr. Cohen reported that Mr. McCoy's treating physicians, Dr. Cain and Dr. Michael Chesser, felt that voice recognition software would adequately address his lack of fine motor skills at this time while being able to perform the essential functions of his job (Dkt. No. 2, ¶ 17; Dkt. No. 24, ¶ 21). Based on this information, Dr. Cohen recommended the use of voice recognition software with Mr. McCoy's computer to minimize his hand use (Dkt. No. 24, ¶ 21). Dragon Naturally Speaking voice recognition software, training materials, a headset, a track ball, and an ergonomic keyboard were requested for Mr. McCoy and were received mid-May (Id.).

         Mr. McCoy was diagnosed with left entrapment ulnar nerve, cubital tunnel syndrome, and dystonia in his right hand on April 26, 2007, by Dr. S. Berry Thompson (Dkt. No. 2, ¶ 18; Dkt. No. 24, ¶ 22). Mr. McCoy ultimately had surgeries on both hands, with one surgery on January 18, 2008, and a second surgery on April 9, 2008 (Dkt. Nos. 18-1, at 24; 24, ¶ 22). On June 11, 2007, Mr. McCoy submitted an accommodation request stating that his doctors had limited his use of the computer to not more than two and a half hours per day (Dkt. No. 24, ¶ 23). He requested that his workstation be evaluated, so his doctor could fully evaluate and treat his medical conditions (Id.). Mr. McCoy had previously written Ms. Rizzo on May 14, 2007, requesting that a professional evaluate his workstation because his new keyboard and mouse may be doing more harm than good (Id.). Ms. Jackson engaged in interactive communications with Mr. McCoy to discuss the problem that affected his ability to perform the essential functions of his job and to determine an appropriate reasonable accommodation that would enable him to perform these functions (Id., ¶ 24). Ms. Jackson submitted Mr. McCoy's accommodation request to Ms. Rizzo at HUD headquarters on June 21, 2007 (Id.).

         Mr. McCoy filed a complaint with the United States Department of Labor, Occupation & Safety & Health Administration (“OSHA”) on June 18, 2007, requesting assistance in requiring HUD to inspect and evaluate his workstation (Id., ¶ 25). On June 18, 2007, the Little Rock HUD Field Office received a notice of safety and/or health hazards from OSHA regarding employees receiving pain and tremors in arms and hands from apparent computer operations (Id.). The letter stated that OSHA had not determined whether the hazards as alleged existed and that the letter was not a citation or notification of a proposed penalty (Id.). Ms. Jackson was further informed that no inspection was planned at that time but that the agency should investigate, take corrective actions, and respond by June 26, 2007 (Id.). Ms. Jackson forwarded the OSHA notice to Carol People at the Administrative Service Center for investigation and appropriate action (Id.).

         In July 2007, the Little Rock HUD Field Office moved to another floor (Id., ¶ 26). As part of the move, Mr. McCoy and all employees received a new ergonomic chair (Id.). The chair was a Life chair which has several features, including: adjustable lumbar support, adjustable arms, adjustable seat height and depth, and tension preference selector (Id.). After the move, Ms. Jackson was the only person with an office (Id.). Mr. McCoy and the other employees were in cubicles (Id.). An ergonomic evaluation of Mr. McCoy's workstation was performed by Federal Occupational Health on September 24, 2007 (Id., ¶ 27). On October 4, 2007, Ms. Rizzo wrote Mr. McCoy a memorandum providing him with a summary of the following recommendations made from the ergonomic evaluation: determine if Mr. McCoy could be assigned to another job not requiring the use of a computer or the need to write; require Mr. McCoy to use the voice recognition program already installed on his computer; replace the current mouse laptop keyboard with a RollerMouse Pro Workstation; provide large barreled gel pens; eliminate the use of the current chair and replace it with the modern chair already in Mr. McCoy's cubicle; and require Mr. McCoy not to place his left elbow directly on the rest by adjusting it so that the bottom of the forearm contacts the rest and his arm is kept as straight as possible (Id.).

         On September 14, 2007, Ms. Jackson issued a proposal to suspend Mr. McCoy for five days for failure to carry out instructions within a reasonable timeframe and inattention to duty (Id., ¶ 35). There were seven specifications on the failure to carry out instructions within reasonable timeframe and six specifications on the inattention to duty charge (Id.). Specifications four through seven were about job assignments or instructions given in January 2007 (Id.). Mr. McCoy submitted a response to Ms. Jackson's suspension proposal (Id.). On November 5, 2007, after reviewing Ms. Jackson's proposal and Mr. McCoy's response, Louis Ybarra, Supervisory Operations Officer, issued a decision to suspend Mr. McCoy for five days (Dkt. No. 18-2, at 83- 86; 24, ¶ 35). Mr. Ybarra found that all of Ms. Jackson's specifications in her proposal to suspend Mr. McCoy were supported except for specifications four and six for the inattention to duty charge (Dkt. No. 24, ¶ 35).

         Secretary Carson alleges that Ms. Jackson gave Mr. McCoy an overall fully successful rating on his Performance Appraisal for the period September 1, 2006, to September 30, 2007 (Dkt. Nos. 18-2, at 87; 24, ¶ 36). Secretary Carson claims that Mr. McCoy also received fully successful on the five critical elements and that Deputy Regional Director C. Donald Babers approved Mr. McCoy's performance appraisal (Dkt. Nos. 18-2, at 87; 24, ¶ 36). Secretary Carson claims that Mr. McCoy received fully successful overall ratings in his Performance Appraisals for FY 2006, 2005, and 2004 (Dkt. No. 24, ¶ 36). Per Secretary Carson, in FY 2006, Mr. McCoy received successful ratings on four critical elements, and Director Babers also approved these performance appraisals (Id.). Secretary Carson claims that Mr. Coop received an overall highly successful rating in FY 2006 and an overall outstanding rating FY 2007 (Id.). With no citation to record evidence, Mr. McCoy denies these claims (Id.).

         Secretary Carson claims that on October 10, 2007, Ms. Rizzo sent Sharon Robinson, Chief at the Staffing and Classification Branch, an email requesting that a program-wide search for a position at or below the GS-15, non-supervisory level in the Little Rock Field Office be conducted for Mr. McCoy (Id., ¶ 28). Secretary Carson also claims that, in a response to an email requesting the geographic location he was interested in, Mr. McCoy advised Ms. Rizzo that he wanted to stay in Little Rock (Dkt. Nos. 18-2, at 45; 24, ¶ 28). With no citation to record evidence, Mr. McCoy denies these claims (Dkt. No. 24, ¶ 28).

         Mr. McCoy received training materials on the Dragon voice recognition software and telephone training from the IT staff (Id., ¶ 29). Mr. McCoy also had one-on-one live training from Christopher Griffin from Eagle Collaborative Computer Services, Stafford, Virginia, on November 6 and 7, 2007 (Id.). Mr. Griffin ordered Mr. McCoy an ergonomic keyboard with a touchpad because he felt that Mr. McCoy would do better using a touchpad for a peripheral device (Id.). Mr. Griffin said that the noise level in Mr. McCoy's workplace did not interfere with the voice recognition software (Id., ¶ 30). Mr. Griffin stated that as Mr. McCoy got more confident using the software the noise level fluctuation would become less of a factor (Id.). Mr. Griffin recommended that Mr. McCoy set aside two hours a day to self-practice the Dragon voice recognition software, and Mr. McCoy agreed to do this training (Id.).

         Secretary Carson alleges that Mr. McCoy inquired of Mr. Griffin about the possibility of getting training on using keyboard shortcuts and mnemonics in Windows applications (Dkt. Nos. 18-2, at 48; 24, ¶ 31). Further, Secretary Carson alleges that Ms. Jackson emailed Mr. McCoy on November 14, 2007, informing him that Bruce Eubanks would provide him with training in the use of shortcuts for Microsoft Windows applications and could contact him directly to schedule the training (Dkt. Nos. 18-2, at 49; 24, ¶ 31). With no citation to record evidence, Mr. McCoy denies these allegations (Dkt. No. 24, ¶ 31).

         On November 15, 2007, Mr. McCoy provided Ms. Jackson with a work status report from Dr. Chesser stating that he could do no keyboard work until further notice (Id., ¶ 32). As a temporary response to address the work restriction, Ms. Jackson offered temporary typing assistance from a secretary in the legal department to Mr. McCoy so that he could complete his reports and assigned him to work at the Customer Service Desk for the afternoon of November 16, 2007, because the Customer Service Representative was on annual leave (Id.). Mr. McCoy did not accept the typing assistance (Id.). Ms. Jackson also asked Ms. Rizzo and Mr. Coop to provide assistance to Mr. McCoy and asked Mr. McCoy to coordinate his assistance needs with them (Id.).

         On October 31, 2007, Ms. Jackson gave Mr. McCoy the work assignment to update the Congressional notebook in electronic form and requested that it be completed by December 7, 2007 (Id., ¶ 37). On November 26, 2007, Mr. McCoy asked Ms. Jackson if she had an electronic copy, and she replied that same day that she did not (Id.). Mr. McCoy admits that this is a job normally assigned to him (Id.). Mr. McCoy stated that he did not have a problem being assigned to put the notebook together (Id.). Mr. McCoy completed the Congressional notebook on December 7, 2007 (Id.).

         On January 8, 2008, Ms. Jackson met with Mr. McCoy, and Mr. McCoy presented her with a work status report from Dr. Chesser with the restrictions of no typing and no working with a computer mouse until after surgery on January 18, 2008 (Id., ¶ 38). Mr. McCoy also provided a work status report from Dr. Thompson saying that he was scheduled for surgery on January 18, 2008, and would be off work two weeks until his post-operation appointment (Id.). Mr. McCoy also presented Ms. Jackson with leave slips for Leave Without Pay (“LWOP”) for January 18, 2008, to March 1, 2008, which Ms. Jackson signed and returned to him (Id.).

         Ms. Jackson sent Mr. McCoy an email confirming the conversations and events during their meeting (Id., ¶ 39). Ms. Jackson advised Mr. McCoy that she was not currently expecting or requiring him to type or work with the computer mouse or perform any functions contrary to work restrictions provided by the doctors (Id.). But, if Mr. McCoy was at work, Ms. Jackson expected him to complete assignments she wanted completed, including: to complete the Quarterly Report (due January 16, 2008); to complete the Weekly Report (due January 11, 2008); to complete the Field Policy and Management (“FPM”) Employee Work Plan (due January 11, 2008); and to follow up to determine the status of the response to email inquiries received regarding the Gorman Towers Apartment (Id.). The reports could be compiled by information sent to Mr. McCoy from Program Managers and their staffs (Id.). All FPM employees were given the assignment to complete their work plan on November 27, 2007 (Id.). Ms. Jackson advised Mr. McCoy that failure to follow her directives may result in disciplinary action (Id.). Mr. McCoy responded to her email by stating that he could not do the work and was going to request sick leave from January 14, 2008, to January 17, 2008 (Id.).

         According to Secretary Carson, Mr. McCoy's work status report was also sent to Ms. Rizzo (Id., ¶ 33). Secretary Carson alleges that, on January 8, 2008, Ms. Rizzo sent Mr. McCoy's medical information again to the Federal Occupation Health for review and recommendation (Dkt. Nos. 18-2, at 54-55; 24, ¶ 33). Secretary Carson alleges that, on January 20, 2008, Dr. Cohen replied to Ms. Rizzo stating that she communicated with Mr. McCoy's treating physician, Dr. Chesser, and he indicated that there should be no restrictions on Mr. McCoy using his left hand and on an occasional basis while working the voice-activated software to perform his work (Dkt. Nos. 18-2, at 56-57; 24, ¶ 33). Secretary Carson claims that Dr. Chesser told Dr. Cohen that he had very positive feelings for the agency regarding the acquisition of this software to accommodate Mr. McCoy's medical conditions (Dkt. Nos. 18-2, at 57; 24, ¶ 33). Secretary Carson further claims that, based on this information, Dr. Cohen concluded that Mr. McCoy was already being accommodated properly with voice-activated software to perform his duties as an Operation Specialist and that any minimal keyboarding that may be required to use the program was approved by Dr. Chesser to be ...