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Freeman v. Chertoff

March 30, 2009

VIVIAN FREEMAN, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

Plaintiff, Vivian Freeman ("Freeman"), a former Security Assistant with the Federal Air Marshal Service, brings this Rehabilitation Act, 29 U.S.C. § 701, et seq., disability discrimination / retaliation suit against her former employer, the Department of Homeland Security ("the government"). Freeman asserts that she suffered discrimination on account of her disability, and retaliation for pursuing her EEO remedies in connection with the alleged discrimination. The government moves to dismiss, or alternatively, for summary judgment. For the reasons stated herein, the government's motion will be denied.

I.

Freeman was employed by the government as a Security Assistant at the Federal Air Marshal Service Philadelphia field office*fn1 from October, 2002 to February, 2005. Insofar as relevant to the instant case, Freeman's duties as a Security Assistant mainly consisted of prviding administrative support to Federal Air Marshals ("FAMs"). (Def. Ex. 1) Among other things, Freeman made flight reservations; helped FAMs apply for passports and visas; tracked information impacting the travel budget for the Philadelphia field office; maintained, reviewed, and input time and attendance reports for payroll purposes; and prepared and reviewed FAMs' travel authorizations, vouchers, and supporting documentation. (Id.) Of these duties, payroll and travel voucher processing filled approximately 80-90% of a Security Assistant's time in a given week (payroll taking approximately 40-50% of the time; and vouchers taking 40%). (Pl. Ex. Q*fn2 at p. 16, 28, 144) During the relevant time period, there were two other people in the Philadelphia field office holding the same position as Freeman. (Pl. Ex. Q at p. 16, 142)

On April 25, 2003, Freeman, who uses a wheelchair, injured herself when she lost control of her wheelchair on an access ramp, suffering an "incomplete / partial rotator cuff tear of her right shoulder." (Def. Ex. 3)*fn3 While Freeman was on leave recovering from her injury, she was also involved in a car accident, although it is not clear whether, or to what extent, she was injured in that accident. Freeman finally returned to work in late July, 2003, with a three-day-a-week work schedule in accordance with her physician's recommendation that she not return to her position full-time. (Id.)*fn4 The government allowed Freeman to work three days a week from July, 2003 to June, 2004, but Freeman was required to take leave without pay for the two days a week she did not work. (Def. Ex. 4; Pl. Ex. Q at p. 388)

Freeman repeatedly inquired verbally about teleworking from home for the two days a week she could not come to the office so that she could maintain her full-time pay. (Pl. Ex. Q at p. 402-03) According to Freeman, such an arrangement would still be consistent with her medical restrictions because her physicians' concern was the fatigue caused by commuting to and from work five days a week. (Id. at 386)*fn5 Her supervisors, however, always refused her requests, stating that they had no telework policy in place. (Id. at 402-03)*fn6

From mid-June, 2004, until August, 2004, Freeman took another medical leave of absence for a cardiac catherization. (Pl. Ex. Q at 406; Def. Ex. 3) She returned to her three-day a week schedule in August, 2004, and again asked about teleworking (Id. at 406; Def. Ex. 3), but to no avail. According to Freeman, her supervisors simply "wouldn't entertain the telework idea." (Pl. Ex. Q at p. 419)

In a letter dated September 1, 2004, Freeman, through her attorney, formally requested to telework from home two days a week. (Pl. Ex. A) The letter further stated,

I am troubled by the agency's callous treatment if Ms. Freeman, which I perceive may be motivated by impermissible discrimination. Specifically, it appears that the agency may be discriminating against Ms. Freeman as an individual with a disability. I have recommended to Ms. Freeman that she seek counseling with an EEO counselor, in order to preserve her rights in the event that management does not take the appropriate actions to rectify the situations. (Id.)

The record contains no response to the September 1, 2004 letter, despite a follow-up letter from Freeman's attorney, requesting a response. (Pl. Ex. B)

Then in a letter dated October 18, 2004, Spurlock formally notified Freeman that he proposed to "remove" her from her position for "non-disciplinary" reasons. (Pl. Ex. D) The letter explained,

The reason for this [proposed] action is your inability to perform the essential functions of your position as a Security Assistant.

You were hired on October 6, 2002, to occupy a full time position of Security Assistant.... You performed those duties on a full time basis through April 28, 2003. Since that date you have been accommodated with regard to working a part time schedule...

.... Unfortunately this office can no longer accommodate your part time schedule. The needs of this office require that your position be performed on a full time basis.

... [Y]our attorney... submitted a request that your medical condition be reasonably accommodated via a part-time [sic] telecommuting schedule.... Unfortunately, due to the sensitive nature of the documents you review, the short turn around time for the projects assigned to you, as well as the need for your work product to be closely monitored, a part-time [sic] telecommuting schedule is not possible....

(Id.)

In accordance with agency procedures, Freeman, through her attorney, submitted a written reply to her proposed removal, asserting that the reasons given for the proposed action lacked factual support and the actual motivation was disability discrimination and retaliatory animus based on Freeman's prior EEO involvement. (Pl. Ex. E)*fn7 Apparently the parties also met in person to orally discuss the proposed removal. (Pl. Ex. G, Pl. Ex. Q at p. 264)

On January 21, 2005, Louw-Shang Liu, Special Agent in Charge of the Philadelphia Field Office, wrote Freeman to advise her that he had suspended his deliberations regarding her removal to consider her request for accommodations. (Pl. Ex. G) The letter went on to deny the request because [Security assistants] are tasked with performing numerous clerical/support work assignments in the office.... Because FAMs have very little time in the office each week, it is very common that these FAMs have last minute issues that need to be resolved in a prompt and efficient manner. Your absence from the office would greatly hamper your ability to provide the needed administrative support to these FAMs, and would negatively impact the other security assistants in the office who would invariably have to handle the emergent needs of the FAMs during your absence.... As a security assistant, you are required to work with and maintain files that contain sensitive personnel information. For security and privacy reasons, this information cannot leave the Philadelphia [field] office.

(Id.)

Freeman, once again through her attorney, responded in writing to the January 21, 2005 letter, reiterating her position that the reasons given for denying her request were discriminatory and retaliatory. (Pl. Ex. H)

Freeman was removed from her position, effective February 10, 2005. Louw-Shiang Liu wrote,

I have reviewed all the information presented and find the reason contained in the proposal to be sustained.... [Y]our position is a full time position, requiring your presence in the workplace. While you asked to be allowed to work at home two days a week as an accommodation, your request does not promote the efficiency of the government. In addition, the agency is unable to accommodate your continued part time schedule. (Pl. Ex. I)

Freeman appealed the decision to the Merit Systems Protection Board. After a hearing, the ALJ affirmed the decision to remove Freeman, and rejected Freeman's affirmative defenses of discrimination and retaliation. Freeman's sought review of the ALJ's decision, but her petition for review was denied.

This suit followed. The Complaint seeks this Court's review of the government's decision to remove Freeman, and asserts discrimination and retaliation claims pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.*fn8 Freeman seeks retroactive reinstatement with back pay, compensatory damages, costs, and attorneys fees.

II.

This Court reviews the discrimination and retaliation claims de novo; the decision to remove Freeman is reviewed on the administrative record. See Makky v. Chertoff, 489 F. Supp. 2d 421, 428 (D.N.J. 2007) aff'd by 541 F.3d 205 (3d Cir. 2008).

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the ...


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