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Walker v. United States Sec'y of the Air Force

United States District Court, D. New Jersey

March 18, 2014


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Michael O. Kassak, Esq., White & Williams, Esqs., Cherry Hill, NJ, Attorney for Plaintiff.

David Vincent Bober, Office of the U.S. Attorney, District of New Jersey, Trenton, NJ, Attorney for Defendants.


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HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.


Plaintiff Michael Walker brought this action against Defendants United States Secretary of the Air Force and the Department of the Air Force (collectively, " Air Force" ) alleging violations of the Americans with Disabilities (" ADA" ), Vocational Rehabilitation, and Civil Service Reform Acts. Walker alleges that he was disabled and that the Air Force, his former employer, refused to accommodate his disability, discriminated against him on the basis of his disability, retaliated against him, and unlawfully terminated him. This matter comes before the Court on the Defendants' motion for summary judgment [Docket Item 26] and Plaintiff's motion for summary judgment [Docket Item 24].

The Court will deny Plaintiff's motion and grant Defendants' motion because there are no genuine disputes of material fact: Walker does not qualify as disabled under the ADA. Because he was not disabled under the ADA, his discrimination, accommodation, hostile work environment, and disparate treatment claims fail. Moreover, there was no retaliation. Walker was terminated due to a history of misconduct, including telling his supervisor to put his appraisal " where the sun don't shine," removing files from a supervisor's locked drawer when she was on maternity leave, going pheasant hunting while on

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sick leave, and disregarding multiple deadlines.


A. Air Force Employment

Plaintiff Michael Walker, a civilian and Army veteran, began employment with the Air Force in 1993 as a Communications-Computer Systems Specialist. (Pl. Statement of Undisputed Material Facts (" SOF" ) ¶ 1.) He was promoted to Supervisory Computer Assistant at McGuire Air Force Base in 2000. (Pl. SOF ¶ 2.) His responsibilities included " overseeing the medical database." (Def. SOF ¶ 5.)

1. Performance Appraisals Before Plaintiff's Injury

In 2001, Walker's supervisor Craig Bard evaluated Plaintiff and, although Walker's scores were positive, Bard noted " I still sense some struggles w/ working with your staff. In-fighting? Team?" and " seem disgusted or put off by requests." (Def. Mot. Ex. A.) In a 2002 appraisal, Bard wrote " you have to work on communication to me (#1)." (Def. Mot. Ex. B.) In a 2003 appraisal, Bard noted " Defensive nature is seen by many. Unwilling follower . . . . Seem to pass a lot of items out to others . . . ." (Def. Mot. Ex. C.)

When asked to describe his relationship with Bard, Walker said: " As with all supervisors with me, as chief information officer, it was a tough one. There was a lot of head butting going on there." (Walker Dep. 51:14-18.)

In July 2003, Capt. Kathy Pflanz became Walker's supervisor. (Def. SOF ¶ 9.) In October 2003, she appraised Plaintiff and noted, " Be responsive to customers don't say 'I'm too busy, I don't have time,'" " Be proactive...schedule time offs appropriately," and " Communication . . . can always get even better. I shouldn't have to go to you to find out things . . . ." (Def. Mot. Ex. D.)

2. Injury

In November 2003, Walker suffered a traumatic brain injury at his home. (Def. SOF ¶ 12.) He " split open" his head on a " cinderblock curb," was rendered unconscious, and remained in a coma for approximately a week. (Id. ¶ 13.) He sustained multiple hemorrhages. (Pl. SOF ¶ 4.) When he awoke, he was unable to speak; his speech gradually returned, although speaking was more " energy intensive." (Def. SOF ¶ 14.) He also had problems with reading and writing; those skills returned with greater difficulty than before the accident. (Id. ¶ 15.)

Walker returned to work in January 2004. (Id. ¶ 16.) Returning to work " helped a lot" with his speaking, reading, and writing. (Id. ¶ 17.) After returning to work, Walker was able to engage in leisure activities that he enjoyed before his accident, including hunting and skiing, cooking, and walks of 7-8 miles. (Id. ¶ ¶ 18, 20.)

3. Performance Issues in 2004-2006

On April 20, 2004, Plaintiff had an altercation with a subordinate, Norman Corbin, who filed a grievance against Plaintiff " with the accusation of being Pushed . . . ." (Def. Mot. Ex. E.) Walker said: " I was giving Corbin some sort of order, and this guy came running towards me. And I was standing in the doorway, and I was very weak, and the only thing I could do was grab a hold of him." (Walker Dep. 70:10-14.) On May 13, 2004, Walker's supervisor Capt. Pflanz verbally admonished Walker. (Def. Mot. Ex. E.)

On May 14, 2004, Pflanz appraised Plaintiff and " [d]iscussed technical performance was good but needed to work on supervisory skills in communication, even temperament . . . ." (Id.) On July 1, 2004,

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Pflanz " spoke w/ Mr. Walker about notifying me if he is going to be late to work . . . ." (Id.)

In August 2005, Capt. Sophie Kiesow replaced Pflanz as Walker's supervisor. (Def. SOF ¶ 30.) On August 9, 2005, Walker approached her, and Kiesow memorialized this conversation in a memorandum. (Def. Mot. Ex. F.) When asked whether this memorandum reflected his recollection of the meeting, Walker responded: " It's similar." (Walker Dep. 93:2-5.) Walker told Kiesow, " I'm not sure we will work well've probably already heard negative things about me." (Def. Mot. Ex. F.) Kiesow told Walker " no one has spoken about him in a mean or derogatory way . . . ." (Id.) Kiesow noted that Walker " reiterated that we probably won't get along and that I'll probably have some issues with him. He then went on to explain that he sustained a head injury and that it affected his memory." (Id.) He did not request accommodations. (Walker Dep. 86:17-19.) Kiesow wrote that " Walker's tone and demeanor . . . was very authoritative, standoffish, short, and overall cold." (Def. Mot. Ex. F.)

In January 2006, Walker submitted a memorandum to be routed to a commanding officer and Kiesow asked Walker to provide a cover letter summarizing the memorandum and the action required from the commanding officer. (Def. Mot. Ex. G at 2.) Walker responded, " I'll get to it when I can." (Id.) When Kiesow said that was an unacceptable response, Walker said, " I suggest you talk to [Civilian Personnel Office]." (Id.) Kiesow later emailed Walker that " you do not accept constructive criticism well. Today, your negative, defensive, and slightly hostile attitude towards me made me uncomfortable." (Def. Mot. Ex. G at 2.)

On January 6, 2006, Kiesow issued a " letter of counseling" to Walker. (Def. Mot. Ex. G at 1.) The letter stated: " On the morning of 06 Jan 06, you were disrespectful to me, your direct supervisor . . . . You are hereby counseled. Your behavior demonstrates disregard for supervisory authority." (Id.) When Kiesow tried to discuss the letter, she perceived that Walker " was extremely argumentative, hostile, and unresponsive to my requests for him to allow me to speak uninterrupted . . . ." (Def. Mot. Ex. H.) MSgt. Jose Reyes observed the meeting; he described it as " heated" and noted that " Capt Kiesow asked Mr. Walker to withhold his comments until she completed additional statements . . . Mr. Walker did not comply with her request and continued to speak over Capt Kiesow." (Def. Mot. Ex. I.)

In March 2006, Kiesow tasked Walker with supervising the " de-duping" of duplicate patient files. (Def. SOF ¶ 46.) When Walker was assigned the project, approximately 900 files required de-depulication. (Id. ¶ 47.) Walker assigned the task to a subordinate, Corbin. (Id. ¶ 48.) Walker asked Corbin to " capture and forward completion metrics to me daily." (Id. ¶ 49.) On May 11, 2006, Walker emailed Kiesow " 25~900 completed." (Def. Mot. Ex. K at 2.) Kiesow responded, " I find it amazing that in over a month's time, only 25 of 900 were completed . . . . Did you receive daily competition [sic] metrics [from Corbin] as you asked? If not, did you document Mr. Corbin's non-compliance with providing daily metrics?" (Id.) Kiesow emphasized " how important it is to have all of these cleaned up prior to AHLTA 'go-live' date" and asked, " What is your plan for duplicate patient clean up by the go live date . . . . I need to know immediately." (Id. (emphasis in original).) Walker responded, " Bottom line is that the 856/41 duplicate patients that have not been merged will have a " MINIMAL" impact . . . ."

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(Id. at 1.) Col. Snyder also emailed Walker and said: " Your staff was assigned to fix the 900 names and I've asked multiple times for the status without answer. If it is not done, we all will be coming in this weekend until the list is done." (Def. Mot. Ex. L.)

In April 2006, Kiesow gave Walker a performance rating of " acceptable," rated Walker as a 5 or 6 (on a scale of 1 to 9) in nine different appraisal factors, and recommended a bonus of $494.34. (Def. SOF ¶ ¶ 52-53.) Walker felt that it was the " lowest appraisal" he had ever received. (Def. SOF ¶ 54.) Walker complained about the low ratings and told Kiesow to put the appraisal " where the sun don't shine." (Id. ¶ ¶ 55-56.)

On June 21, 2006, Kiesow emailed Walker regarding submission of the Weekly Activity Report (" WAR" ) and stated, " This is ridiculous. Why does this keep coming up? Why can't we ensure this is done?" (Def. Mot. Ex. Q.) In a follow-up email, Kiesow wrote, " As your supervisor, I have directed you, on multiple occasions, that the WAR is your responsibility. . . ." (Id.)

In September 2006, Kiesow gave Walker a " formal feedback" memorandum. (Def. SOF ¶ 79.) The memorandum noted, inter alia, " [y]ou are absent or late to meetings routinely" ; " [w]hen you do attend meetings, . . . you are routinely not fully knowledgeable, up to date, or just don't provide very much detail" ; " [t]he entire time the WAR was your responsibility, you rarely turned them in on time" ; " [i]t is difficult for me to help you . . . when you become defensive, disrespectful, and/or hostile . . . ." (Def. Mot. Ex. AA.)

4. Brief Assumption of Kiesow's Responsibilities

In 2006, Walker briefly served in Kiesow's role as flight commander. Walker perceived that he was promoted to Kiesow's position because " Colonel Snyder had sat there with me and Kiesow and told her, " You're relieved from your position. Mr. Walker is the flight commander.'" (Walker Dep. 117:21-23.) Walker also, however, stated that when he received the flight commander title, it was not a promotion, (id. 22:15-18); testified that Kiesow " had gone on maternity leave or had been relieved or whatever the case may be," (id. 119:1-3); and acknowledged that his pay and grade did not change when he assumed the flight commander position, (id. 122:17-22).

Kiesow testified that her son was born in July 2006, she was on maternity leave for seven weeks, and Walker covered managerial responsibilities during her absence. (Kiesow Dep. 15:10-16:2.) Snyder testified that Walker became flight commander while Kiesow was on maternity leave until she " returned from convalescent leave and became flight commander again." (Snyder Dep. 118:25-119:5, 13:7-10.) Snyder also testified that Kiesow replaced Walker as part of a policy to develop young officers and as part of a restructuring. (Snyder Dep. 27:18-28:1, 30:2-6.) There is no evidence of restructuring.

While Walker was the flight commander, he shared a New Jersey state disability certification and two medical documents with Snyder " since he was my immediate supervisor, and I thought he had a need to know." (Walker Dep. 118:17-18.) Walker told Snyder, " I have a disability." (Walker Dep. 118:20.) Snyder asked Walker what to do with the documents and Walker said " nothing. . . . Just know about it." (Snyder Dep. 22:22-23:1.)

Walker perceived that a " short period of time" after he shared the documents, " Captain Kiesow was brought back in and placed immediately back in her position . . . ." (Walker Dep. 120:23-121:6.) Walker's pay and grade did not change

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when Kiesow reassumed the flight commander position. (Walker Dep. 122:23-123:1.) Walker believed he had been demoted because " I supervised 10 people and that has been reduced to 3 Government Service employees." (Def. Mot. Ex. S.)

5. First Suspension

On September 6, 2006, Kiesow gave Walker notice that she intended to suspend him for three days for his failure to complete the de-duplication project and for telling her to place the appraisal " where ...

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