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Grose v. Lew

United States District Court, W.D. Tennessee, Western Division

February 27, 2018

ANTHONY T. GROSE, SR. Plaintiff,
JACOB J. LEW, JR., Secretary, Department of the Treasury, Defendant.



         Before the Court is Defendant Jacob J. Lew's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (Docket Entry “D.E.” #59). The instant motion has been referred for Report and Recommendation.[1] For the reasons set forth herein, it is RECOMMENDED that Defendant's Motion for Summary Judgment be GRANTED.[2]

         I. Introduction

         On January 19, 2016, Plaintiff filed his pro se Complaint in this Court. (D.E. #1). On May 31, 2016, after obtaining leave of court, Plaintiff filed his pro se Amended Complaint. (D.E. #24). Plaintiff's Amended Complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), Sections 501 and 504 the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. & § 791 et seq. (“Rehabilitation Act”), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”). Plaintiff alleges that Defendant, his former employer, discriminated against him on the basis of disability (vision) (Counts II & V), age (Count III), gender, race, and color (Count IV). (Id. ¶¶ 13, 32).

         He further alleges that Defendant retaliated against him in violation of Title VII, 42 U.S.C. § 2000e-16(a), for taking part in prior Equal Employment Opportunity (“EEO”) activity (Count I) on the following instances: (1) on August 16, 2006, he was placed on an employment improvement plan (“EIP”); (2) on June 22, 2007, he received a lower annual performance appraisal for the period ending May 31, 2007; (3) on July 31, 2007, management denied his request for reconsideration of an accommodation request; (4) on October 3, 2007, management denied his subsequent request for reconsideration of an accommodation; and, (5) on August 3, 2007, he was subjected to a “humiliating and degrading” training plan. (Am. Compl. ¶¶ 5, 25-27).

         II. Proposed Findings of Fact

         Plaintiff worked as a seasonal Customer Service Representative during the tax season at the Internal Revenue Service (“IRS”) from 1999 until 2007. (Plaintiff's Deposition (“Pl.'s Dep.” at 18:14-23, 31:15-24; Mary Banks Deposition (“Banks Dep.”) at 7:17-18). The branch manager was Teresa Webb-Patton, and Plaintiffs team manager was Mary Banks. (Pl's. Dep. at 31:2-7; Def's Exh. 6: Performance Appraisal 2004-2005 at PageID 275). From 2006 until 2007, Banks remembers “at least” two African American males on the team. (Banks Dep. at 8:1-8).

         In Plaintiffs July 1, 2004 to June 30, 2005 performance appraisal, Plaintiff met or exceeded all of the criteria, was given an average Critical Job Elements (“CJE”) score of 3.2, and he overall was rated “Fully Successful.” (Def's Exh. 6: Performance Appraisal 2004-2005 at PageID 275). In his July 1, 2005 to December 31, 2005 progress review, Banks advised Plaintiff that he was failing in customer accuracy, accuracy of input, and timeliness/meeting deadlines. (Def's Exh. 8: Progress Review 7/1/2005 ─ 12/31/2005). In his July 1, 2005 to May 31, 2006 performance appraisal, Plaintiff met all the criteria except that he failed compliance communication, he was given an average CJE score of 2.8, and he overall was rated “Minimally Successful.” (Def's Exh. 9: Performance Appraisal 2005-2006).

         At some point in 2005 “before the evaluations, ” Plaintiff advised Banks that he had been having vision trouble affecting his performance. (Pl.'s Dep. at 203:1-205:24). Plaintiff does not recall Banks responding to him about his vision trouble or offering to assist him but did tell him to “go to the clinic” when he told her he had certain problems with his eyes or headaches. (Id. at 203:20-204:9). Plaintiff would also initiate his own visits to the clinic. (204:10-205:24).

         On August 3, 2006, Banks provided Plaintiff with his EIP. (Def's Exh. 10: EIP). In the EIP memorandum, Banks stated that Plaintiffs 2005-2006 progress review was “not indicative of [his] performance” in the failing areas and that he was “informed during the mid-year of the decrease” and “some improvements were made.” (Id.) Banks suggested further reliance on checklists and tools and insured that she and the “lead” would work with him to improve his performance in the failing areas. (Id.) In Plaintiff's performance appraisal from June 1, 2006 to May 31, 2007, Banks gave Plaintiff a failing rating on customer accuracy, compliance communication, and accuracy of input, an average CJE score of 2.4, and an overall rating of “Minimally Successful.” (Def.'s Exh. 11: 2006-2007 Performance Appraisal at PageID 290).

         On June 25, 2007, Plaintiff obtained a note from Dr. Leroy Norton, Jr., O.D., who saw him in his office for an eye examination related to eye strain. (Def.'s Exh. 12: Letter from Dr. Norton). Dr. Norton recommended that Plaintiff's employer approve a request for two flat screen monitors and one document magnification system to relieve eye strain, that Plaintiff wear bifocal lenses full time, and that he return to the clinic in one year. (Id.) On July 5, 2007, Plaintiff submitted a Reasonable Accommodation Request stating that he had a disability of “low vision.” (Def.'s Exh. 13: Reasonable Accommodation Request at PageID 297). He described his disability as “difficulty experience[d] in reading computer screens and paper work. Prescribed bifocal lenses being worn[ ]. Eye strain while using computer and reading documents.” (Id.) Plaintiff requested two large flat screen monitors, one document magnification system, and any other systems that would enhance “low vision readability.” (Id.) Plaintiff attached Dr. Norton's letter to the Reasonable Accommodation Request. (Id. at PageID 300).

         On July 11, 2007, Plaintiff requested Banks provide him two days of on-the-job training with Lead Sherri Thompson, with eight hours of review and observation while the lead is on the telephone and eight hours of observation while Plaintiff is on the telephone, to enhance specific research tools. (Def.'s Exh. 14: Routing Slip dated July 11, 2007; Def.'s Exh. 15: Banks Memorandum). Banks granted Plaintiff's request in a memorandum dated July 12, 2007. (Def.'s Exh. 15: Banks Memo). On July 26, 2007, Plaintiff informed Banks that he had completed two hours with the lead on the telephone and him observing and two hours with him on the telephone with the lead observing. (Def.'s Exh. 16: Routing Slip dated July 26, 2017). Plaintiff advised that he found the training to be “very much informative and very useful” and requested further training not strictly on the telephone but also “paper observation and training.” (Id.)

         On July 31, 2007, Jacquelyne Yarbrough, Department Manager, Memphis Accounts Management, notified Plaintiff in a memorandum that his accommodation requests of a “large flat-screen monitor, a document magnification system and any other system that would enhance low vision readability” was denied because Plaintiff was found to have no substantial limitations of a major life activity. (Def.'s Exh. 17: Yarbrough Denial Memo). Yarbrough further stated that the medical assessment dated July 24, 2007 and prepared by Federal Occupational Health (“FOH”) stated that “the employee's physician recommended that [Plaintiff] return to the optometrist and request spectacles that will allow focus in the intermediate [field].” (Id. at PageID 306, 308) The FOH physician further stated that Plaintiff “may wish to inquire from computer specialists about software that will enlarge specific text.” (Id. at PageID 308). The FOH physician stated that he spoke with Dr. Norton states that Dr. Norton only made his specific requests “based on [Plaintiff's] request that such equipment was available.” (Id.; Def.'s Exh. 18: Administrative Hearing Transcript, Testimony of Dr. James Allen, July 29, 2010, at 120:3-12, 132:14-134:1).

         On August 3, 2007, Yarbrough sent a memorandum to Plaintiff on the subject of “Training” confirming an agreement reached in a meeting held on August 1, 2007. (Def.'s Exh. 19: Training Letter dated 8/3/2007). Yarbrough advised Plaintiff of three days of training to assist him in improving his job knowledge technical skill to in turn improve his overall performance to an acceptable level. (Id.) The dates of the training were set on August 3, August 7, and August 8, 2007. (Id.) Plaintiff was advised that his manager would “conduct evaluative reviews” of his work for thirty days to monitor/assess his “performance for improvement.” (Id.) He was advised that, if at that time he was performing at an acceptable level in all aspects of his job, he “may be allowed to work overtime.” (Id.) He was further advised ...

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