The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
VANESSA CLABORN-WELCH, )
)
Plaintiff, )
)
vs. ) Case No. 17-00748-CV-W-ODS
)
SONNY PERDUE, Secretary, )
Department of Agriculture, et al., )
)
Defendants. )
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending is Defendant’s motion for summary judgment. Doc. #58. For the
following reasons, Defendant’s motion is granted in part and denied in part.
I. BACKGROUND1
Plaintiff Vanessa Claborn-Welch was employed as an Information Technology
Specialist with the United States Department of Agriculture’s (“USDA”) Risk
Management Agency (“RMA”) Fiscal Operation Branch in Kansas City, Missouri, from
1985 to 2002. In 2000, Plaintiff was diagnosed with demantromyositis/polymysitis,
which, among other things, affected her immune system, caused muscle weakness,
impacted her ability to breathe and move, made it difficult to breathe and move, and
resulted in “extreme and constant pain.” Plaintiff could not work in RMA’s Kansas City
office because her suppressed immune system prevented her from having contact with
large groups of people. Plaintiff requested, and was granted, an accommodation to
work from home as part of RMA’s Short Term Medical Flexiplace Program, beginning
on October 2, 2000. The reasonable accommodation was to remain in effect for six
months unless Plaintiff was able to return to the workplace earlier.
In March 29, 2001, Lonnie Clemons, the Fiscal Systems Branch Chief, sent a
letter to Plaintiff notifying her that the approved flexible work program period ended the
next day. The letter required Plaintiff to report to work or contact Nicole White, the
1 Unless otherwise noted, the facts in this section are uncontroverted by the parties.
Disability Employment Manager, to discuss the possibility of an additional
accommodation and/or disability retirement. Plaintiff’s immediate supervisor disagreed
with the letter, refused to sign it, and supported Plaintiff’s desire to continue working.
Plaintiff alleges that she contacted White after receiving the letter, but White does not
recall any contact by or conversation with Plaintiff.
On July 30, 2001, Plaintiff applied for disability insurance benefits under the
Social Security Act. Plaintiff claimed she became unable to work beginning on January
27, 2001, because of her disabling condition. On August 29, 2001, Plaintiff advised
Steve Ginie, a second level supervisor, that she planned to file for disability retirement
on September 10, 2001.2 On September 10, 2001, Plaintiff’s accommodation plan was
modified and extended from September 9, 2001, through March 7, 2002.3 On October
30, 2001, Plaintiff’s annual performance appraisal indicated she was “fully successful.”
Plaintiff applied and was approved for disability retirement effective February 23, 2002.
In 2011, Plaintiff, while attending a funeral, learned two Caucasian female
employees at RMA started the flexible work program around the time Plaintiff did. But,
unlike Plaintiff, these two employees were allowed to continue working under the
flexible work program for approximately five additional years, until retiring in 2007.
RMA’s flexible work program permits long term or short-term participation, and
employees can stay in the program as long as they are employed if the agency supports
the employee.
On March 9, 2011, Plaintiff contacted an EEO counselor. Counseling was
conducted, and Plaintiff received a Notice of Right to File a formal complaint on June
22, 2011. On July 6, 2011, Plaintiff filed a formal complaint. On April 5, 2012, Plaintiff’s
Complaint was dismissed as untimely. On April 26, 2012, Plaintiff filed an appeal with
the Merit Systems Protection Board (“MSPB”). On September 28, 2012, the MSPB
dismissed the appeal for lack of jurisdiction. Plaintiff sought review of that decision, but
the MSPB denied her request. On September 24, 2013, Plaintiff requested the Equal
2 According to Plaintiff, Ginie pushed for her to retire, but she did not want to retire.
Doc. #63, at 12.
3 Plaintiff alleges there was no agreement and she signed the modification under
duress. Doc. #63, at 13. In support, Plaintiff cites her April 2001 letter to her
supervisors and others advocating to remain at USDA/RMA as she was a valuable
employee. Doc. #63-17.
Employment Opportunity Commission (“EEOC”) review the MSPB’s decision. On June
11, 2014, the EEOC denied Plaintiff’s request and remanded the petition to the USDA.
On April 28, 2015, the USDA issued a final agency decision. Plaintiff asked the EEOC
to review the decision, but the EEOC denied her request. Plaintiff unsuccessfully
sought reconsideration of that decision.
Plaintiff filed this matter on September 7, 2017, alleging: (1) failure to
accommodate, (2) race discrimination, (3) wrongful discharge and/or constructive
discharge, (4) fraud, (5) fraudulent concealment, and (6) outrageous conduct. Doc. #1.
In January 2018, Defendants filed a motion to dismiss. Doc. #9. The Court dismissed
all of Plaintiff’s claims against Defendants Lonnie Clemons and Steven Ginie, and also
dismissed Plaintiff’s fraud, fraudulent concealment, and outrageous conduct claims
against Defendant agency. Doc. #26. Plaintiff’s failure to accommodate, race
discrimination, and wrongful discharge and/or constructive discharge claims remain
pending against Defendant USDA. Defendant seeks summary judgment on Plaintiff’s
remaining claims. Doc. #58.
II. STANDARD
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted).
Inadmissible evidence may not be used to support or defeat a motion for summary
judgment. Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1111 (8th Cir. 2005) (citation
omitted). The Court must view the evidence in the light most favorable to the non-
moving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984). “[A] nonmovant
may not rest upon mere denials or allegations, but must instead set forth specific facts
sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins. Co. v.
Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).
III. DISCUSSION
A. Failure to Exhaust Administrative Remedies
Defendant argues Plaintiff’s claims should be dismissed because she failed to
timely exhaust her administrative remedies. As a federal employee bringing a
discrimination claim, Plaintiff must fully exhaust her administrative remedies before the
federal courts may hear her claims. Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir.
2000). Federal regulations require Plaintiff to initiate contact with an EEO counselor
“within 45 days of the date of the matter alleged to be discriminatory” or within 45 days
of an alleged discriminatory personnel action. Id.; see also 29 C.F.R. § 1614.105(a)(1).
But the failure to timely initiate the administrative process is not a jurisdictional
requirement to bring suit in federal court; rather, it is a condition precedent which “is
subject to waiver, estoppel and equitable tolling.” Lawrence v. Cooper Communities,
Inc., 132 F.3d 447, 451 (8th Cir. 1998).
Defendant argues Plaintiff failed to timely consult an EEO counselor and her
EEO complaint was at least nine years late. It further argues Plaintiff was aware of the
EEO process, the statutory time limits, and knew how to contact an EEO counselor.
Plaintiff opposes the motion arguing she exercised reasonable diligence by investigating
the matter in 2001 and 2002 by communicating with managers and the civil rights office.
According to Plaintiff, she was told USDA/RMA’s policy did not allow her additional time
under the Medical Flexiplace Program. She contends she did not discover Caucasian
women were treated more favorably than she was until 2011, while attending a former
co-worker’s funeral. Plaintiff maintains she had no way to investigate whether others
were permitted additional time to work from home because that information is
confidential. She alleges RMA has a history of discrimination toward African
Americans, but that alleged knowledge did not alert her to RMA using the Medical
Flexiplace Program in a discriminatory way.
Equitable tolling may extend a deadline to timely exhaust administrative
remedies where “the plaintiff, despite all due diligence, is unable to obtain vital
information bearing on the existence of his claims.” Dring v. McDonnell Douglas Corp.,
58 F.3d 1323, 1328 (8th Cir. 1995) (internal quotations and citation omitted). Equitable
tolling focuses on the employee’s “excusable ignorance” and considers whether a
“reasonable person” in the employee’s position would have been expected to know of
possible discrimination. Id. at 1329 (citation omitted).
Viewing the record in the light most favorable to Plaintiff, the Court finds Plaintiff
exercised reasonable diligence by investigating the matter in 2001 and 2002 when she
contacted the Director of Civil Rights for the USDA/RMA, the USDA disability
coordinator, and her second and third line supervisors. Additionally, Plaintiff discussed
the matter with her immediate supervisor, who indicated disagreement with how
Plaintiff’s employment was being handled. Plaintiff had no way of knowing whether
others were utilizing the flexible workplace program because that information is
confidential. Plaintiff had no apparent facts upon which she could file a complaint
regarding USDA’s alleged failure to accommodate or race discrimination. Since 2011,
when she discovered other employees were allegedly treated more favorably, Plaintiff
diligently pursued administrative remedies. Reviewing the evidence in the light most
favorable to Plaintiff, the Court finds Plaintiff’s exhaustion requirements are equitably
tolled. Thus, Defendant’s motion for summary judgment on this basis is denied.
Because the Court finds equitable tolling applies, there is no need to address Plaintiff’s
alternative argument of equitable estoppel.
B. Doctrine of Laches
Defendant also argues Plaintiff’s claims are barred by the doctrine of laches.
The doctrine of laches is an affirmative defense involving a fact-based inquiry on which
Defendant bears the burden of persuasion. Whitfield v. Anheuser-Busch, Inc., 820 F.2d
243, 244-45 (8th Cir. 1987) (citations omitted). The doctrine of laches “may be used to
bar a lawsuit when the plaintiff is guilty of (1) unreasonable and unexcused delay, (2)
resulting in prejudice to the defendant.” Id. at 244 (citations omitted).
Because nine years had passed since Plaintiff retired, Defendant was unable to
obtain information from individuals involved. In 2011, when the investigation into
Plaintiff’s claims began, Plaintiff’s supervisors had retired and were unavailable for
interviews. Defendant also argues Plaintiff’s memory is flawed and witnesses have little
or no memory of Plaintiff’s situation. According to Defendant, the Office of Personnel
Management had a file but there are no phone records or emails. While these
arguments concern the alleged prejudice, Defendant does not point to anything showing
Plaintiff is guilty of unreasonable and unexcused delay.
Based on the record before it, Defendant did not satisfy its burden of establishing
the defense of laches. Given the passage of time between Plaintiff’s disability
retirement and the filing of an administrative complaint, there was certainly a delay. But
whether the delay was unreasonable and inexcusable remains unclear. While equitable
defenses are not tried to a jury, the Court “may try any issue with an advisory
jury.” Fed. R. Civ. P. 39(c)(1). Defendant shall present its laches defense at trial to the
jury for an advisory verdict. See Bombardier Recreational Prod., Inc. v. Arctic Cat Inc.,
No. CV 12-2706 (JRT/LIB), 2017 WL 5256741, at *2 (D. Minn. Nov. 11, 2017); Pioneer
Hi-Bred Int'l, Inc. v. Ottawa Plant Food, Inc., 219 F.R.D. 135, 149 (N.D. Iowa 2003). In
this regard, the parties are encouraged to propose jury instructions and/or jury
interrogatories for the purpose of obtaining an advisory verdict on the laches defense.
C. Failure to Accommodate Claim
Defendant moves for summary judgment on Plaintiff’s failure to accommodate
claim. An employer is required to collaborate with employees to address
accommodation requests under the Rehabilitation Act. 29 C.F.R. § 1630.9(a).
However, the employee “bears the initial burden of demonstrating that [s]he requested
reasonable accommodations, and that those accommodations would render h[er]
otherwise qualified for” her job. Mershon v. St. Louis Univ., 442 F.3d 1069, 1077 (8th
Cir. 2006); see also EEOC v. Convergys Customer Mgmt. Grp, Inc., 491 F.3d 790, 795
(8th Cir. 2007). Reasonable accommodation claims are evaluated under a modified
burden-shifting analysis. Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004).
Employers are required “to modify their work requirements to enable disabled
individuals to have the same opportunities as their non-disabled counterparts.” Id. at
767 (citation omitted). “[D]iscrimination occurs when the employer fails to abide by a
legally imposed duty.” Id. “The known disability triggers the duty to reasonably
accommodate and, if the employer fails to fulfill the duty, we do not care if [the
employer] was motivated by the disability.” Id. (citations omitted).
To establish a prima facie case for failure to accommodate, Plaintiff must show
(1) the employer knew she was disabled, (2) she requested an accommodation, (3)
Defendant did not make good faith attempts to assist her in seeking the
accommodation, and (4) Defendant could have reasonably accommodated her. See
Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1021 (8th Cir. 2000);
Didier v. Schwan Food Co., 465 F.3d 838, 841(8th Cir. 2006).4 “Under the Act and its
regulations, such discrimination occurs if ‘a covered entity [does] not . . . make
reasonable accommodation to the known physical or mental limitations of an otherwise
qualified applicant or employee with a disability, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the operation
of its business.’” Peebles, 354 F.3d at 766. “[T]he plaintiff’s burden, upon a defendant’s
motion for summary judgment, is only to show that the requested accommodation is
‘reasonable on its face….’” Id.
Defendant argues both the original and modified accommodation plans, to which
Plaintiff agreed, were reasonable. It contends there is no evidence that Plaintiff would
have been denied a reasonable accommodation of her medical condition if she had not
sought disability retirement. Defendant further alleges Plaintiff cannot claim to be a
qualified individual with a disability because she applied for disability benefits, stating
she was “too ill to work.”
Plaintiff argues she was “otherwise qualified” because her performance
evaluations established she was an outstanding employee. Plaintiff claims her request
to continue working from home, as she had been doing for a year and a half, was
reasonable on its face. She claims she established an available remedy because she
had been successful working from home and Defendant had already paid the expenses
related to it. She argues Defendant cannot establish the accommodation would create
an undue burden because it accommodated two Caucasian females in the exact same
manner for many years. Regarding her application for disability benefits, Plaintiff
maintains she did not represent she was completely disabled until after Defendant told
her the accommodations were ending and would not be renewed. Plaintiff argues,
without the accommodations, she was too ill to work.
4 “Rehabilitation Act claims and claims under the ADA are evaluated the same; thus,
cases dealing with each are interchangeable.” Peebles, 354 F.3d at 766.
The accommodation plan permitted Plaintiff to work at home with specialized
equipment and complete eight hours of work over a twelve-hour period. The plan
commenced on May 6, 2001, and was set to conclude on September 8, 2001. On July
30, 2001, Plaintiff applied for Social Security disability benefits claiming she was unable
to work because of her disability. On August 29, 2001, Plaintiff told a second level
supervisor that she was going to file for disability retirement. On September 10, 2001,
Plaintiff completed a Statement of Disability in connection with her request for disability
retirement. Therein, Plaintiff included her accommodation request and stated
Defendant granted her request, but she was now “to ill to work.” Doc. #58-22.
After Plaintiff began the process of applying for disability retirement, the
accommodation plan was extended through March 7, 2002, but would end sooner if her
disability retirement application was approved before March 7, 2002. Plaintiff argues
she signed the plan modification under duress and did not want to retire. Defendant
argues Plaintiff’s request for disability retirement was voluntary, she was reasonably
accommodated until her request for disability retirement was granted, and Plaintiff
would have been reasonably accommodated if she requested further accommodation or
her request for disability retirement was denied.
The Court finds a genuine factual dispute exists as to Plaintiff’s failure to
accommodate claim. Therefore, summary judgment on this claim is denied.
D. Race Discrimination Claim
Defendant moves for summary judgment on Plaintiff’s race discrimination claim.
Absent direct evidence of discrimination, a plaintiff establishes a prima facie case of
discrimination by showing (1) she is a member of a protected group; (2) she was
meeting the legitimate expectations of her employer; (3) she suffered an adverse
employment action; and (4) circumstances give rise to an inference of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Bunch v. Univ. of Ark.
Bd. of Trs., 863 F.3d 1062, 1068 (8th Cir. 2017) (citation omitted).
Regarding the fourth element, which is at issue in this matter, similarly situated
individuals being treated more favorably may give rise to an inference of discrimination.
Id. The test for determining whether an employee can be compared is “rigorous and
requires that the other employees be similarly situated in all relevant aspects before the
plaintiff can introduce evidence comparing herself to the other employees.” Fields v.
Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008). A comparator typically “must
have dealt with the same supervisor, have been subject to the same standards, and
engaged in the same conduct without any mitigating or distinguishing circumstances.”
Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003). However, “[t]he similarly
situated co-worker inquiry is a search for a substantially similar employee, not for a
clone.” Doucette v. Morrison Cty., Minn., 763 F.3d 978, 984 (8th Cir. 2014) (citing
Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir. 2013)).
Defendant argues that although Plaintiff alleges other employees were treated
differently, there is no evidence that employees were comparable to Plaintiff or were
treated differently. Plaintiff cites the February 2007 Accommodation Plan for Louise
Narber as evidence of a similarly situated employee being treated differently. Doc. #58-
39. The RMA found both Plaintiff and Narber were entitled to reasonable
accommodation of teleworking from home. However, Narber worked in a different
division, had a different supervisor, and a different accommodation coordinator.
Additionally, it is unclear if Defendant’s policies or programs remained unchanged from
2001, when Plaintiff sought and was granted a reasonable accommodation, and 2007,
when Narber was granted a reasonable accommodation. Moreover, the circumstances
surrounding Narber’s accommodation request(s) are unknown. Based on the record
before it, Plaintiff has not demonstrated Narber is similarly situated to her. Although she
argues another Caucasian employee was treated more favorably, Plaintiff did not
provide the accommodation plan or other information about the other employee.
Plaintiff has failed to present evidence that she was treated differently than the
two Caucasian employees. Plaintiff argues her first and second line supervisors had a
history of treating black employees differently than white employees. She also avers
Defendant allowing Caucasian employees to continue in medical flexiplace and not her
establishes a causal connection between the racial animus and the adverse
employment action. However, Plaintiff does not present any evidence to support these
allegations, and she fails to present evidence of circumstances that give rise to an
inference of race discrimination. McDonnell Douglas, 411 U.S. at 802-03. Therefore,
Defendant’s motion for summary judgment on Plaintiff’s claims of race discrimination is
granted.
E. Constructive Discharge Claim
“Constructive discharge occurs when an employer deliberately renders the
employee’s working conditions intolerable, thereby forcing her to quit.” Wright v. Rolette
Cty., 417 F.3d 879, 886 (8th Cir. 2005) (citation omitted). To prove constructive
discharge, Plaintiff “must establish [Defendant] deliberately made or allowed [her]
working conditions ‘to become so intolerable that [she] had no other choice but to quit.’”5
Jones v. Fitzgerald, 285 F.3d 705, 715-16 (8th Cir. 2002) (citation omitted).
Defendant argues Plaintiff’s working conditions were not intolerable, and Plaintiff
made no complaint of harassment. Plaintiff argues she was not given any “real
choices”; her only options were quitting, being terminated, or taking disability retirement.
The Court finds a genuine factual dispute exists as to whether Plaintiff was
constructively discharged. Therefore, summary judgment on this claim is denied.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted
with regard to Plaintiff’s race discrimination claim, but Defendant’s motion for summary
judgment is denied with regard to Plaintiff’s failure to accommodate and constructive
discharge claims.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
DATE: February 18, 2020 ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
5 If a plaintiff cannot show his employer “consciously intended” for her to quit, she “can
still prevail on a constructive discharge claim if ‘the employer…could have reasonably
foreseen that the employee would [quit] as a result of its actions.’” Wright, 417 F.3d at
886 (citation omitted).