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McCullers v. Chertoff

January 11, 2010


The opinion of the court was delivered by: McLaughlin, J.


Shawn B. McCullers, an African American, brought pro se two counts of employment discrimination against the Federal Air Marshal Service ("FAMS"), alleging that the defendant treated him unfairly and terminated him because of his race. The Court dismissed the plaintiff's claim under 42 U.S.C. § 1981 upon consideration of the defendant's motion to dismiss. The defendant now moves for summary judgment on the plaintiff's remaining claim of discrimination and retaliation under Title VII, 42 U.S.C. § 2000e.*fn1

I. The Summary Judgment Record*fn2

The plaintiff is an African American male who was employed by the Department of Homeland Security as a Federal Air Marshal ("FAM") in the Philadelphia Field Office. He claims that certain alleged actions taken by the defendant, including the defendant's failure to process the plaintiff's medical claims, designation of the plaintiff as Absent Without Leave ("AWOL"), and eventual termination of the plaintiff, were the result of racial discrimination and retaliation.

The defendant asserts that the plaintiff, who suffers from a medical condition, was terminated because he could not perform the essential functions of his position. It further argues that the actions taken against the plaintiff do not constitute racial discrimination or retaliation.

A. The Plaintiff's Employment with the Defendant

The plaintiff began his employment as a FAM on July 14, 2002. Upon his employment, the plaintiff signed a document entitled "Conditions of Employment for Federal Air Marshals," which detailed that a FAM may be removed from employment if he or she, among other conditions, failed to maintain medical standards or could not perform an essential function of his or her position. Ninety percent of the plaintiff's job as a FAM required flying. Conditions of Employment, Ex. B to Def.'s M; see Deposition of Shawn B. McCullers 54:7-22, 273:8-19 ("McCullers Dep."), Ex. C to Def.'s M.*fn3

The plaintiff's immediate supervisor was Donald Anderson, Assistant to the Special Agent in Charge. Mr. Anderson evaluated the plaintiff's work performance on September 29, 2003, and on April 12, 2004, as part of a mid-year review process. Both times he noted that the plaintiff "met or exceeded the standard for satisfactory performance." Performance Agreements, May 29, 2002, and April 12, 2004, Exs. D and E.

B. The Plaintiff's Medical Injuries

When an employee sustains a traumatic injury in the performance of his duties as an employee of the United States, he may seek compensation benefits and a continuation of regular pay for up to forty-five days without use of annual or sick leave. The employee must complete a Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, also known as a CA-1, within thirty days after the injury. The employee must also have his medical provider complete an Attending Physician's Report. When an employee develops an occupational disease, he completes an Occupational Disease Form, also known as a CA-2. An occupational disease is one that develops over time, and an employee reporting an occupational disease cannot receive continuation of pay. Both forms are submitted to the Office of Workers' Compensation ("OWCP") of the Department of Labor ("DOL"), an agency separate from the defendant. See Aff. of David Wichterman, FAMS Workers' Compensation Program Manager ("Wichterman Aff.") 3-4, Ex. M; McCullers Dep. 137:5-140:8; CA-1 Form, Ex. F; Attending Physician's Report, Ex. G; Def.'s M. 5; Def.'s Statement of Material Facts ¶ 48.

On April 13, 2004, the plaintiff injured his left ankle during a training exercise. He completed a CA-1 and requested forty-five days of continuation of pay. OWCP accepted his claim, and he received standard workers' compensation benefits, which amount to seventy-five percent of the worker's salary, tax free. McCullers Dep. 137:5-138:20, 245:14-146:14; CA-1, Ex. F.

The plaintiff returned to work in June 2004, but on August 9, 2004, he noticed swelling in his left leg and experienced pain in his ankle. He requested an additional forty-five days of continuation of pay, but Karen Jost, Philadelphia Field Office Administrator Officer, told him that he had already received the maximum benefits for his injury. Nevertheless, the plaintiff completed a CA-1 on September 28, 2004. OWCP denied the plaintiff's application because the form was submitted over thirty days after the date of injury. McCullers Dep. 184:7-186:7; Email from Karen L. Jost to Shawn B. McCullers, Sept. 2, 2004, Ex. H;*fn4 CA-1 Form, Ex. I; McCullers Dep. 191:1-193:14.

Still experiencing pain in his leg, the plaintiff sought medical attention in early October. On October 8, 2004, Dr. Wang diagnosed the plaintiff with deep vein thrombosis ("DVT"). Dr. Wang completed paperwork that stated the plaintiff's diagnosis and his ability to return to regular work that same day, except that it prohibited him from flying for one month. CA-20 and CA-17, Exs. J and K.

On November 26, 2004, Dr. Holleran completed paperwork noting that the plaintiff was "okay for light duty [and] workouts" and can "do desk work, but no physical confrontations." On December 8, 2004, Dr. Holleran completed more paperwork diagnosing the plaintiff with DVT and stating that the plaintiff can return to light work. CA-17, Ex. W; Decl. of Donald Anderson ("Anderson Decl.") 22, Ex. V.

It is undisputed that the plaintiff did not return to work on October 8, 2004, or at any time prior to his non-disciplinary removal on January 30, 2006. It is also undisputed that the plaintiff is unable to fly because of his medical condition. Further, it is undisputed that the plaintiff did not submit the medical forms detailing his prognosis, diagnosis, and estimated return date until December 9, 2004. Notice of Removal, Exhibit NN; Anderson Decl. 19-21; McCullers Dep. 203:8-15, 210:14-23.

C. The Plaintiff's AWOL Status

Mr. Anderson contacted the plaintiff on November 1, and again on November 23, 2004, to inform the plaintiff that he would run out of his annual and sick leave by November 29 and must submit medical documentation of his diagnosis, prognosis, and estimated return date to be placed on Leave Without Pay ("LWOP") status. Because the plaintiff did not turn in his medical documentation before November 29, he was marked AWOL on November 30, 2004. Anderson Decl. 9; Email from Donald E. Anderson to Shawn B. McCullers, Nov. 23, 2004; Mem. from Louw-Shiang Liu to Shawn B. McCullers, Nov. 30, 2004, Ex. P.

On December 3, 2004, the plaintiff stated that he was in the process of providing the required medical information, and he requested a light duty assignment. Mr. Anderson contacted the plaintiff on December 6, 2004, and reiterated that the plaintiff would remain on AWOL status until he either returned to work or provided the necessary medical documentation and requested LWOP status. The plaintiff could return to work in a "light duty" position if he provided medical documentation. On December 9, 2004, the plaintiff submitted his diagnosis, prognosis, and estimated return date to Mr. Anderson. The plaintiff also requested a light duty assignment, advanced sick leave, and LWOP status. Mem. from Shawn B. McCullers to Louw-Shiang Liu, Dec. 3, 9, and 22, 2004, Exs. Q, T, and U; Anderson Decl. 14-15, 19-21.

As a result of the plaintiff's medical documentation, Mr. Anderson attempted to contact the plaintiff thirteen times on Friday, December 10, 2004, regarding a temporary modified assignment that would begin on Monday, December 13. On December 13, the plaintiff did not report to work for the light duty assignment, and he contacted Mr. Anderson requesting a formal assignment description. The plaintiff received an official light duty assignment on December 23, 2004, and had fourteen days to accept the offer. After not hearing from the plaintiff, Mr. Anderson re-sent the assignment by email on December 30, 2004, and by federal express on January 5, 2005. The federal express package was "refused by recipient." Anderson Decl. 22-24, 26-27; McCullers Dep. 231:17-232:8; Email from Linda S. Harrison to Richard X. Farwell, Dec. 22, 2004; Modified Assignment, Ex. X; Email from Donald E. Anderson to Shawn B. McCullers, Dec. 23 and 30, 2004; Federal Express Receipt, Ex. Z.*fn5

On January 4, 2005, as a result of the plaintiff's AWOL status, the defendant sent three special agents to retrieve the plaintiff's credentials and equipment. Mr. Anderson also restricted the plaintiff's computer access. Mr. Anderson sent an email to various FAMS officers notifying them of these actions. Anderson Decl. 39-40.

D. The Plaintiff's Government-Issued Credit Card

Upon his employment, the plaintiff received a government-issued credit card to be used only "when traveling in Federal Air Marshal Mission Status." On December 13, 2004, after being informed that the plaintiff's government travel card account was delinquent and suggested personal use, Mr. Anderson told the plaintiff that his card limit would be reduced to $1 and disciplinary action may result. The plaintiff made a partial past-due payment on December 16, 2004, but his account remained delinquent as of January 14, ...

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