Kirton v. Mayorkas

ALICIA KIRTON, Plaintiff, v. ALEJANDRO MAYORKAS,¹ in his official capacity asSecretary of Homeland Security, et al., Defendants.

Case No. 1:18-cv-1580-RCL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 16, 2021

MEMORANDUM OPINION

Plaintiff Alice Kirton made plans to move from Virginia to Florida and then asked her employer, the Federal Emergency Management Agency, for permission to telework nearly every day. The Agency denied her request. Kirton claims that the Agency denied her request because she is an African-American and sued under Title VII of the Civil Rights Act of 1964 for employment discrimination on account of her race or color. The Agency denies any racial motive for its actions. Rather, the Agency asserts that it denied her request because Kirton's job as a budget analyst requires in-person work and because Kirton did not merit an exception to her office's expectation that budget analysts work in-person at least twice per week.

The defendants moved for summary judgment (ECF No. 29). Upon consideration of the motion, briefs (ECF Nos. 29-1, 32, 35), and all other papers of record, the Court will grant the motion by separate order.

I. BACKGROUND

A. Factual Background²

1. Kirton's Employment with FEMA

Kirton is an African-American and is employed by the Agency. Defs.' SMF ¶¶ 1-3; Pl.'s SMF ¶¶ 1-3. FEMA is an agency within the United States Department of Homeland Security and is responsible for, among other things, responding to presidentially declared disasters pursuant to the Stafford Act, 42 U.S.C. §§ 5121, et seq. Kirton worked as a GS-13 budget analyst in the Funds Control Branch within the Budget Planning and Analysis Division of FEMA's Office of the Chief Financial Officer. Defs.' SMF ¶ 3; Pl.'s SMF ¶ 3. As a budget analyst, Kirton coordinated with FEMA program offices to ensure proper allocation of funds. Defs.' SMF ¶ 6; Pl.'s SMF ¶ 6. Melissa Ellis, branch chief of the Funds Control Branch, served as Kirton's first line supervisor. Am. Compl. ¶ 15 (ECF No. 4); Answer ¶ 15 (ECF No. 8). Shalini Benson, deputy budget director of the CFO's office, was Kirton's second line supervisor. Defs.' SMF ¶ 44; Pl.'s SMF ¶ 44.

2. Telework Policy and Expectation

In 2013, FEMA implemented its telework policy. FEMA Telework Manual 123-9-1 (ECF No. 29-7). The Agency's manual describes teleworking as "a voluntary work alternative that may be appropriate for some employees and some jobs." Id. at 4. But it also clarifies that telework "is not an entitlement and in no way changes the terms and conditions of employment with the Agency." Id. Although nothing in the manual forbids an eligible employee from teleworking full-time, it states that "[i]f the employee does not regularly commute into the agency office at leasttwice each biweekly pay period, the official duty station must be changed to the alternate worksite." Id. at 21 (emphasisin original).

In 2015, to supplement the official, Agency-wide telework policy, Benson announced her own "telework expectations" for the CFO's office in an email to office managers. Defs.' SMF ¶¶ 14-17; Pl.'s SMF ¶¶ 14-17; Benson Email (Apr. 23, 2015) (ECF No. 29-8 at 11). Among other things, Benson advised the managers that they should see each of their direct reports in-person at least twice per week. Defs.' SMF ¶ 17; Pl.'s SMF ¶ 17; Benson Email (Apr. 23, 2015) (ECF No. 29-8 at 11). That said, Benson was willing to grant exceptions on a case-by-case basis if an employee sufficiently justified his or her request. Benson Decl. ¶ 12 (ECF No. 29-8).

3. Request and Denial

In December 2015, Kirton asked the Agency for permission to telework on 95-100% of her work days. Defs.' SMF ¶ 31; Pl.'s SMF ¶ 31. At that point, she was already teleworking about two to three days per week. See Kirton Email 3 (Dec. 22, 2015) (ECF No. 32-20). She subsequently modified her request on December 22, 2015 and January 20, 2016. Defs.' SMF ¶ 41; Pl.'s SMF ¶ 41; Kirton Email 3 (Dec. 22, 2015) (ECF No. 32-20). The Agency denied her modified request for increased telework. Defs.' SMF ¶¶ 37, 43; Pl.'s SMF ¶¶ 37, 43.

a. Initial Request

In 2015, Kirton lived in Chester, Virginia, just south of Richmond. Defs.' SMF ¶ 30; Pl.'s SMF ¶ 30. On December 18, 2015, stating that she was dissatisfied with her three-hour commute to her duty station in Washington, D.C., Kirton requested a 95-100% telework schedule starting in January 2016. Defs.' SMF ¶ 31; Pl.'s SMF ¶ 31. At some point, Kirton told Ellis that she was dealing with some health issues that occurred while [she] was on active military duty." Kirton Affidavit 7 (June 18, 2017) (ECF No. 29-4). But in her email request to Ellis, Kirton emphasizedthat her request was not based on her medical issues. Kirton Email (Dec. 18, 2015) (ECF No. 29-6 at 19) ("Melissa, attached is my request for 95-100% telework. I would rather make this request based on my current commuting situation which qualifies for a strong enough justification to prevent me from giving my personal business of medical issues."). Instead, her request was based on her "current commute situation" and desire for more time to "spend with [her] family." Defs.' SMF ¶ 31; Pl.'s SMF ¶ 31. Yet, her request did not mention that her commute situation was about to change. Id. On the same day Kirton submitted the request, she sent an email to her co-worker, stating that "come January I will email [Ellis] each Tuesday and Wednesday to say I will be teleworking. [I]f she say[s] no then will inform her that I have moved out of state and cannot come in the office but once a month." Defs.' SMF ¶ 32; Pl.'s SMF ¶ 32; Kirton Email (Dec. 18, 2015) (ECF No. 29-16).

Upon receiving Kirton's request, Ellis suggested to Benson that the Agency increase Kirton's telework schedule, but to require her to come into the office for two days every two weeks. Defs.' SMF ¶ 33; Pl.'s SMF ¶ 33. Ellis viewed this arrangement as a compromise between the 95-100% telework that Kirton requested and Benson's telework expectations. Ellis Decl. ¶ 14 (ECF No. 29-6). Benson responded that she was "not comfortable deviating from [the] office norm of in person 2 days a week without a justification on how you'll accomplish mission, meet customer needs, ensure equity with other staff, etc." Defs.' SMF ¶ 35; Pl.'s SMF ¶ 35. Benson further advised Ellis to "not approve until that justification has been provided." Id. Complying with Benson's direction, Ellis asked Kirton to provide additional information. Id.

b. First Revised Request

On December 22, 2015, Kirton emailed Ellis justifying her request for 95-100% telework, and requested permission to come into the office only once a month. Kirton Email 3 (Dec. 22,2015) (ECF No. 32-20). In this email, Kirton reiterated that her "request is based on [her] current commuting time" and "quality time with [her] family." Id. But she also stated that she and her husband "made the decision to move to Florida." Id. Ellis interpreted Kirton's email as a request for 95-100% telework from her new home in Florida. Ellis Decl. ¶ 16.

One week later, Ellis denied Kirton's request for increased telework. Defs.' SMF ¶ 37; Pl.'s SMF ¶ 37. In denying Kirton's increased telework arrangement, Ellis referred to the budget division's expectation that employees come into the office two days per week and stated that Kirton's job as a budget analyst "requires face-to-face engagement with [her] customers." Id. Based on the same reasons, Ellis also denied an implied request for change in duty station. See id.

Kirton moved to Florida at the end of December 2015. Defs.' SMF ¶ 38; Pl.'s SMF ¶ 38.

c. Second Revised Request

On or about January 20, 2016, Kirton submitted a modified request using the Agency's Telework Application and Agreement form, requesting permission to work remotely most days and come into the office for two consecutive days every two weeks. Defs.' SMF ¶¶ 39, 41; Pl.'s SMF ¶¶ 39, 41. Even though she had moved to Florida, the form listed Kirton's home address in Chester as her telework location. Defs.' SMF ¶ 41; Pl.'s SMF ¶ 41. The form did not contain any new information or justification for seeking increased telework. See Kirton's Telework Application and Agreement (ECF. 29-6 at 30-31).

The next day, Ellis forwarded to Kirton the 2015 email containing Benson's expectation that employees come into the office at least two days per week. Defs.' SMF ¶ 42; Pl.'s SMF ¶ 42. Kirton responded, "Thank you Melissa I appreciate your input; however I am going to stick with the request sent to you . . . yesterday." Id. Ellis denied Kirton's modified request. Defs.' SMF ¶ 43; Pl.'s SMF ¶ 43. Ellis denied this request because the requested arrangement did not conformto the division's telework expectation and because Kirton had provided no new information or justification in support of her request. Ellis Decl. ¶ 22. Kirton appealed, and Benson affirmed Ellis's decision, explaining that "[t]elework is at your man[a]ger's discretion to approve" and stating that "we are not denying your use of [t]elework, but rather managing the telework schedule to be consistent with the other employees in our division/branch and mission needs." Benson Email (Feb. 2, 2016) (ECF No. 29-8 at 18).

As a result of the denial, Kirton alleges that she spent $600 per trip commuting from Florida to Washington, D.C., twice a month for twenty-five months. Am. Compl. ¶ 72. Kirton also alleges she damaged her knee by taking these trips. Id. at ¶ 73.

B. Procedural History

Kirton timely initiated the administrative process with the appropriate office at the Department of Homeland Security. On February 22, 2016, Kirton filed a formal complaint with the Department alleging that the Agency discriminated against her on the basis of her race or color when it denied her telework request. In August 2016, the Department issued a letter of acceptance, defining the claim to be investigated. In March 2017, Kirton filed a hearing request with the Equal Employment...