United States District Court, E.D. Arkansas, Central Division
OPINION AND ORDER
Kristine G. Baker, United States District Judge
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).
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.). 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).
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).
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).
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).
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.).
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).
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.).
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, , 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
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
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).
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
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.).
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.).
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.).
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,
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
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).
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
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).
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
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.).
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
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.).
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 ...