United States District Court, W.D. Tennessee, Western Division
ANTHONY T. GROSE, SR. Plaintiff,
JACOB J. LEW, JR., Secretary, Department of the Treasury, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
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. For the reasons
set forth herein, it is RECOMMENDED that Defendant's
Motion for Summary Judgment be GRANTED.
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).
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).
Proposed Findings of Fact
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).
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).
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).
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).
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
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.)
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).
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 ...