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.

Kirkland v. Nielsen

United States District Court, District of Columbia

March 30, 2019

CHARMAYNE KIRKLAND, Plaintiff,
v.
KIRSTJEN NIELSEN, Secretary of the Department of Homeland Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Randolph D. Moss, United States District Judge.

         This matter is before the Court on Plaintiff Charmayne Kirkland's motion for partial summary judgment. Although Kirkland, a former employee of Defendant Department of Homeland Security, has asserted race, sex, age, and disability discrimination claims against the Department, see Dkt. 53 (Third Am. Compl.), the present motion is much narrower: Kirkland seeks partial summary judgment only as to her claims arising out of the Department's alleged failure to accommodate her disabilities pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. A plaintiff seeking summary judgment in a discrimination case, however, faces a difficult task: She must show that, construing all “evidence in the light most favorable to” her former employer, “no reasonable jury could reach a verdict in [the Defendant's] favor.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). Because the record reveals several genuine disputes of material fact, the Court will deny Plaintiff's motion for partial summary judgment.

         I. BACKGROUND

         Plaintiff Charmayne Kirkland began employment with the federal government in 1996, first with the Department of Justice's Immigration and Naturalization Service (“INS”), Dkt. 57-1 at 1 (SUMF ¶ 2), later with the Department of Homeland Security's Immigration and Customs Enforcement (“ICE”), id. (SUMF ¶ 4) and then with Customs and Border Protection (“CBP”), id. (SUMF ¶ 5). She holds a bachelor's degree in microbiology, id. at (SUMF ¶ 1), and spent most of her time in federal service as an industrial hygienist. In the present motion, Kirkland contends that the Department of Homeland Security (“Department”) failed to accommodate two sets of disabilities: (1) her carpal tunnel syndrome and (2) her degenerative joint disease and plantar fasciitis. The following facts are undisputed except where noted.

         In January 2005, Kirkland faxed her then-second level supervisor Gary McMahen a note indicating that she had been diagnosed with moderate to severe bilateral carpal tunnel syndrome. Id. at 11 (SUMF ¶ 47). The note, provided by Kirkland's physician, suggested that the Department provide Kirkland voice-activated word processing software and install an ergonomically correct workstation. Id. (SUMF ¶ 49). Kirkland sent an additional note to McMahen on February 2, 2005, reiterating both requests. Id. at 12 (SUMF ¶ 52).

         Although Kirkland had been assigned to CBP since 2004, she had used office space provided by ICE. See Dkt. 57-6 at 69. On March 3, 2005, McMahen directed Kirkland to move from ICE to CBP's offices at the Ronald Reagan Building. Dkt. 57-1 at 13 (SUMF ¶ 57). That same day, Linda Church, president of Kirkland's union, sent an email to McMahen indicating that Kirkland required assistance to pack, lift, and move her office materials given her medical condition. Id. (SUMF ¶ 58); see also Dkt. 57-6 at 4. Although the parties dispute who coordinated that move, they agree that the Department did assist Kirkland in packing and moving her boxes. Kirkland alleges, however, that, the Department did not assist her in unpacking the boxes, and, as a result, her “items remained packed in the unopen boxes for months.” Dkt. 57-1 at 14 (SUMF ¶ 62). Although the Department disputes the “materiality” of that assertion, Dkt. 60 at 23 (Response to SUMF ¶ 62), the parties appear to agree that no one, in fact, assisted Kirkland in unpacking her boxes.

         The parties further dispute when-and to what extent-the Department took steps to provide Kirkland with her requested voice-activated software and ergonomic workstation. Although the parties agree that “Plaintiff received voice-activated word-processing software . . . on or about July 1, 2005, ” Dkt. 57-1 at 17 (SUMF ¶ 78), they dispute the extent to which the Department promptly provided training for the software, compare, e.g., id. (SUMF ¶ 79) (“DNS training was not completely provided when the software was” installed) and id. at 22 (SUMF ¶ 102) (“As of June 29, 2007, the Plaintiff had still not completed the . . . software training.”), with Dkt. 60 at 25 (Response to SUMF ¶ 79) (“Plaintiff's own emails from July of 2005 indicate that CBP provided at least one demonstration of the use of the voice-activated software no later than July 28, 2005.”).

         There is agreement that, at least by August 2005, the Department's Equal Employment Opportunity Officer, Adline Tatum, had begun an interactive process with Kirkland to determine and to implement reasonable accommodations. Dkt. 57-1 at 16-17 (SUMF ¶ 76), Dkt. 60 at 24 (Response to SUMF ¶ 76). In November 2005, however, Mic McKeighan, the Department's Deputy Director of the Occupational Safety and Health Division, informed Kirkland that, “[i]n accordance with the Rehabilitation Act and based on a review and consideration of your physician's assessment, we do not believe that you have an impairment that substantially limits a major life activity and[, ] therefore, you do not meet the definition of a qualified individual with a disability. Therefore, no further accommodation is required.” Dkt. 57-1 at 20 (SUMF ¶ 92). The Department, nevertheless, undertook an ergonomic assessment at least in December 2005, id. at 21 (SUMF ¶ 96), and the evaluation recommended that “Kirkland receive, inter alia, a trackball mouse to promote finger cursor control, as opposed to a standard mouse that contributed to reported shoulder discomfort, ” id. (SUMF ¶ 99).

         According to Kirkland, she was also suffering from degenerative joint disease and plantar fasciitis during this same period, having been diagnosed with both conditions in 2004. Id. at 3 (SUMF ¶ 7). These conditions “severely restricted [her] ability to walk more than one quarter of a mile, ascend or descend more than three ten-inch steps, or climb or descend ladders, hills or slopes without experiencing physical pain or risking injury.” Id. (SUMF ¶ 8).

         In 2006, CBP informed Kirkland that it had decided to reassign her from her position in the District of Columbia to a position at the CBP office in Indianapolis, Indiana. Id. at 5 (SUMF ¶ 18); see also Dkt. 57-6 at 37 (Reassignment Ltr.). The letter explained that the move was required so that the CBP industrial hygienists would “be physically located in the same office, ” thereby facilitating their ability to consult with one another on “emergency situations and highly sensitive issues” and to “interact with [their] supervisors and other national safety program managers.” Id. After researching her commute to the CBP branch office, however, Kirkland concluded that the only public transportation available would drop her off “across a busy interstate highway, ” Dkt. 57-1 at 5-6 (SUMF ¶ 23), and that, as an employee who “walks with the aid of a walker, ” she would have “had to somehow traverse . . . three entrances to highway I-465 as well as from north to south across [a busy intersection]-all without the benefit of traffic lights-to get to and from the . . . bus stop and the [CBP] office each day.” Id. at 6 (SUMF ¶ 24). In light of this problem, Kirkland requested that, “as an accommodation, she be allowed to continue to perform the duties of her Industrial Hygienist position from Washington, DC or, in the alternative, to work a full-time telework schedule.” Id. (SUMF ¶ 27).

         Although the precise details of CBP's rejection of the proposed accommodations are unclear, see infra, Section II.A., the agency ultimately agreed that Kirkland had a “physical impairment that substantially limit[ed] [her] ability to perform the major life activities of walking, standing, climbing, sitting, and lifting” but determined that “there [was] no reasonable accommodation available that would allow [her] to perform the essential functions of [her] Industrial Hygienist (GS 0690-13) position at this time.” Dkt. 57-5 at 29 (Feb. 2007 Offer Ltr.). CBP concluded that its “only option to reasonably accommodate [Kirkland's] disability [was] to reassign [her] to a vacant-funded position, ” id., and it accordingly offered Kirkland a position as a “Management Program Specialist, ” a GS-11 position based in the District of Columbia, which she accepted effective March 4, 2007. Dkt. 57-1 at 10 (SUMF ¶ 41). CBP later terminated Kirkland in 2008, although that termination is not at issue here.

         Kirkland filed suit in 2013, alleging race, gender, disability, and age discrimination claims against the Department, see Dkt. 1 (Compl.), and, following discovery, she filed a third amended complaint in April 2018. See Dkt. 53 (Third Am. Compl.). In May 2018, this Court set a briefing schedule for cross-motions for summary judgment to be completed by October 2018, see Minute Order (May 4, 2018), and Kirkland filed the instant motion, seeking partial summary judgment on her claims of disability discrimination only, see Dkt. 57.

         The Court has granted numerous, lengthy extensions of time over the course of this litigation, both before and after counsel filed the pending motion. As a result of the most recent extensions, the cross-motions are not yet fully briefed. After granting yet another extension on January 31, 2019, the Court advised all parties that the Court “intend[ed] promptly to resolve Plaintiff's long-pending [and fully briefed] motion for partial summary judgment, Dkt. 57, and [would] do so on the basis of whatever papers are before the Court.” See Minute Order (Jan. 31, 2019). The Court cautioned that, “[i]n the event that the Court decides Plaintiff's motion for partial summary judgment before briefing is complete on Defendant's cross-motion, the Court will, if necessary, reserve disposition on any additional issues raised in Defendant's cross-motion.” Id. Because briefing on the Department's cross-motion is still not complete-now three months later-the Court will consider only those issues raised by Kirkland's motion and reserves judgment on the Department's cross-motion. For the reasons explained below, the Court will deny Kirkland's motion for partial summary judgment.

         II. ANALYSIS

         Kirkland moves for partial summary judgment on “several disability discrimination and failure to accommodate claims.” Dkt. 57. To prevail on that motion, she must demonstrate “that there is no genuine dispute as to any material fact and [that she] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895-96 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the outcome of the litigation, see Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895, and a dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party, see Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 247-48; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” Fed.R.Civ.P. 56(c)(1)(A). “The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider ‘other materials in the record.'” Smith v. Lynch, 106 F.Supp.3d ...


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.