Burghardt-Cobb v. Inch

KATHLEEN BURGHARDT-COBB, Plaintiff, v. MARK S. INCH, Director, Federal Bureau of Prisons, Defendant.

No. 1:17-cv-01563-DAD-SKO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 24, 2020

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Doc. No. 27)

This matter came before the court on October 16, 2019, for hearing on defendant's motion for summary judgment. (Doc. No. 27.) Attorney Kevin Little appeared on behalf of plaintiff. Assistant United States Attorney Benjamin Hall appeared on behalf of defendant. Having reviewed the parties' briefing and heard oral argument, and for the reasons set forth below, the court will deny defendant's motion.

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BACKGROUND¹

Plaintiff Kathleen Burghardt-Cobb worked at the Federal Correctional Institution in Mendota, California ("FCI Mendota") as a trust fund supervisor. (Doc. No. 27-2 at ¶ 1.) The Federal Bureau of Prisons ("BOP") designated that job as a law enforcement position. (Id. at ¶ 2.) According to the written job description, the trust fund supervisor is "charged with responsibility for maintaining security of the institution," and these duties "precede all others required by this position and are performed on a regular and recurring basis." (Id. at ¶ 3.) The trust fund supervisor's duties "include custody and supervision of inmates, responding to emergencies and institution disturbances, participating in fog and escape patrols, and assuming correctional officer posts when necessary." (Id. at ¶ 4.) The trust fund supervisor must also "shakedown inmates, conduct visual searches of inmate work and living areas for contraband, and is responsible for immediately responding to any institution emergencies." (Id.) The trust fund supervisor "may enter into hostile or life threatening situations and may be required to make decisions affecting the life, well-being, civil liberties, and/or property of others" and must complete specialized training in firearms proficiency and self-defense. (Id. at ¶ 5.)

All BOP positions at correctional institutions are hazardous duty law enforcement officer positions and require individuals to be physically able and medically qualified to perform correctional work safely and successfully. (Id. at ¶ 6.) In accordance with BOP's human resource management manual, BOP employees who work in these positions must be able to perform and meet fourteen physical requirements in connection with their federal lawenforcement positions, and must have the ability to use various firearms, including pistols, rifles and shotguns, as well as to perform self-defense movements. (Id. at ¶ 7.)

In December 2012, plaintiff had spinal surgery. (Id. at ¶ 8.) Following her surgery, plaintiff submitted to the BOP a letter dated March 26, 2013 from Stanford Hospital and Clinics. (Id. at ¶ 9.) The letter stated that plaintiff was released to return to work on April 8, 2013 and set out restrictions on her work activities for the next six months, including no running, "stand[ing] for a prolonged amount of time, [and] no bending and no lifting greater than 10 pounds for the next 6 months." (Id. at ¶ 9-10.) By letter dated April 4, 2013, FCI Mendota Associate Warden of Operations Steve Lake offered plaintiff an accommodation with respect to her workplace duties for a duration of six months. (Id. at ¶ 10.) Plaintiff accepted the offer of accommodation the same day. (Id.)

On or about September 16, 2013, plaintiff submitted to the BOP a letter from her physician assistant announcing continuing restrictions on her activities for an additional six month period. (Id. at ¶ 11.) The letter stated that plaintiff

should continue to avoid running, prolonged standing, prolonged bending and no lifting greater than 10 lbs. She should also avoid participation with firearms, including any re-qualification shooting. These restrictions apply for the next 6 months.

(Id.) The same day, plaintiff submitted a Firearms Training Temporary Medical Waiver Form, stating that her condition prevented her from firing a weapon or participating in self-defense activities and indicating that her anticipated date of recovery, or the date when she could re-qualify, was March 16, 2014. (Id. at ¶ 12.) On or about March 19, 2014, plaintiff submitted to the BOP a letter dated March 17, 2014, from her neurologist, setting forth further restrictions on her workplace activities until December 31, 2014. (Id. at ¶ 13.) The letter listed the following restrictions:

No prolonged standing more than 10 minutes; No lifting more than 10 pounds; No bending; No running; She cannot do re-qualification testing with firearms due to the recoil pressure and the requirement to stand more than 10 minutes.

(Id. at ¶ 13.)

On July 25, 2014, Associate Warden Nicklin issued a letter to plaintiff, requesting eight categories of additional information regarding her condition and assigning plaintiff to temporary alternative duties until August 22, 2014. (Id. at ¶ 14.) Plaintiff submitted a response to Associate Warden Nicklin that included a second letter from her neurologist dated August 8, 2014, and a completed DOJ Form 100A Request for Reasonable Accommodation dated August 21, 2014. (Id. at ¶ 15.) The second letter from plaintiff's neurologist stated that plaintiff's "lumbar spine degenerative disease is increasingly severe. Any return to full recovery will require a lumbar surgery which hopefully will allow a return to her usual job." (Id.) Noting that plaintiff "ha[d] not progressed to the point [where] the lumbar surgery [was] necessary now," the letter reiterated the restrictions set forth in the neurologist's March 17, 2014 letter. (Id.) It further explained that plaintiff "cannot do the requalification firearm restriction test because of the requirement to stand for 10 minutes and the possibility that the recoil pressure of the firearm will cause acute pain and cause a risk of losing control of her gun." (Id.) In her DOJ Form 100A Request for Reasonable Accommodation, plaintiff requested that she be excused from (1) physically responding into the secure institution in the event of an emergency situation, (2) re-certifying with firearms, and (3) completing annual self- defense training. (Id. at ¶ 17.) On November 17, 2014, Patricia E. Jones, Acting Human Resources Manager for FCI Mendota, denied plaintiff's request to continue temporary alternative duties until December 31, 2014, on the grounds that granting that request would require the waiving of essential functions of plaintiff's position. (Id. at ¶ 18.)

On November 21, 2017, plaintiff commenced this action asserting causes of action related to disability discrimination and retaliation against defendant Mark S. Inch in his capacity as Director of BOP. (Doc. No. 1.) Plaintiff seeks a judgment directing defendant to end BOP's allegedly widespread practice of reprisal against employees who file EEO and EEOC claims; an award of money damages, costs and fees associated with litigating this case; and such other relief as may be deemed appropriate. (Id. at 8.) On July 17, 2019, defendant filed the pending motion for summary judgment as to plaintiff's claim brought under the Rehabilitation Act. (Doc. No. 27.) Plaintiff filed an opposition on August 21, 2019 , and defendant replied on August 28, 2019. (Doc. Nos. 31, 36.)

LEGAL STANDARD

Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).²

In summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) ("...