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Brown v. Esper

United States District Court, D. Colorado

December 18, 2019

ALFRED BROWN, Plaintiff,
MARK T. ESPER, Secretary of Defense, and U.S. DEPARTMENT OF DEFENSE, Defendants.


          RAYMOND P. MOORE United States District Judge.

         This matter is before the Court on Defendants' motion for summary judgment (ECF No. 65). The motion has been fully briefed. (ECF Nos. 96, 106.) The Court has reviewed the pleadings, case file, and applicable law and now grants the motion for the reasons stated below.


         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in his favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248.


         The following facts are either undisputed or viewed in the light most favorable to Plaintiff. Plaintiff worked as a healthcare fraud specialist for Defendant U.S. Department of Defense at the Defense Health Agency (“DHA”), formerly known as TRICARE, from April 2010 until July 2014. Although Plaintiff suffers from post-traumatic stress, panic, and anxiety disorders, he received satisfactory performance appraisals throughout his employment. Plaintiff's first level supervisor was Joseph O'Brien; his second level supervisor was John Marchlowska.

         From September to November 2011, Plaintiff took leave under the Family Medical Leave Act due to “a severe exacerbation of his disabling conditions.” (ECF No. 1, Compl. at ¶ 42.) When he returned, he contends that Mr. O'Brien and Mr. Marchlowska subjected him to greater scrutiny than his nondisabled coworkers with respect to breaks, leave, work product, and interpersonal skills (id. at ¶ 43); that he was “assigned more work and more difficult assignments” than his nondisabled coworkers (id. at ¶ 44); and that “Mr. O'Brien made hostile and negative comments about [his] disabling conditions” to him and his coworkers (id. at ¶ 46). In addition, Plaintiff alleges that his supervisors revoked certain privileges-such as teleworking, working on weekends, and working outside core hours-that he previously had and that his nondisabled coworkers continued to have. (Id. at ¶ 45.)

         Perceiving that his work environment was becoming increasingly hostile and exacerbating his medical conditions, Plaintiff “began formally requesting specific reasonable accommodations for those conditions in May 2012.” (Id. at ¶ 47.) His request for accommodations included being allowed to telework two days per week, being allowed to work on weekends, and reassignment. (ECF No. 106-1 at ¶ 13.) Plaintiff alleges that Mr. O'Brien delayed responding the request, would not consider it until Plaintiff submitted updated medical information, and did not engage in good faith in the interactive process to determine appropriate reasonable accommodations. (ECF No. 1 at ¶ 48.) That same month, Plaintiff filed an informal Equal Employment Opportunity (“EEO”) complaint against DHA, alleging disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”).

         Plaintiff filed his first formal EEO complaint in July 2012. Days afterward, DHA offered Plaintiff a list of accommodations, including some, but not all, of the ones he had requested, as well as others he had not requested. DHA stated it that it was unable to provide the accommodations of teleworking two days per week and working outside of core hours and on weekends. (ECF No. 65-13 at 1.) Although Plaintiff accepted some of the other accommodations offered, he informed Mr. O'Brien that he believed they were insufficient, and, according to the complaint, “the hostile work environment continued.” (ECF No. 1 at ¶ 52.)

         In August 2012, Plaintiff submitted a letter from his doctor, who recommended allowing Plaintiff to work from home a few days per week and to work on weekends, and further suggested that if these and other recommendations were insufficient to minimize Plaintiff's stress, he might need to be reassigned to another position. (ECF No. 65-15.) Plaintiff alleges that DHA “failed to respond” to his request “or engage in the interactive process.” (ECF No. 1 at ¶ 54.) Plaintiff alleges that his work environment continued to deteriorate and that his disabling conditions were exacerbated. (Id. at ¶ 56.)

         In June 2013, Plaintiff filed a second informal EEO complaint, alleging continuing disability discrimination and retaliation. That month, Plaintiff had a meeting with Mr. Marchlowska, who denied Plaintiff's request for reassignment. (ECF No. 65-23 at 1.)

         In August 2013, Plaintiff filed a second formal EEO complaint and submitted another letter from his doctor, who made recommendations similar to the ones she made a year earlier. (ECF No. 65-6 at 5.) DHA did not provide any additional accommodations.

         On September 4, 2013, Plaintiff met with Mr. O'Brien in his office. According to the complaint, Mr. O'Brien behaved aggressively toward Plaintiff and “attempted to intimidate and/or provoke Plaintiff into a physical altercation.” (ECF No. 1 at ¶ 60.) However, a DHA investigation into the incident concluded that Plaintiff “initiated a heated discussion with [Mr. O'Brien], ” repeatedly interrupted Mr. O'Brien, and threw a folder that hit Mr. O'Brien in the chest. (ECF No. 97-18, Letter of Reprimand at 1.) The complaint alleges that after the incident, Mr. O'Brien told other employees and the Federal Protective Service that Plaintiff had assaulted him and that Plaintiff was going to be fired. (ECF No. 1 at ¶ 61.) Plaintiff was temporarily banned from DHA and placed on administrative leave while DHA investigated the incident.

         In October 2013, Plaintiff returned to work. He received a formal letter of reprimand from Mr. Marchlowska regarding the September 4 incident. (Id. at ¶ 65.) The letter explained that Plaintiff had a right to appeal DHA's decision (ECF No. 97-18 at 1), but there is no evidence that Plaintiff did so. Mr. O'Brien was not disciplined. Plaintiff alleges that his “work environment further deteriorated” and that “[t]he lack of sufficient accommodations continued to interfere with his ability to perform his job.” (ECF No. 1 at ¶ 66.)

         In January 2014, Mr. Marchlowska issued Plaintiff a leave restriction letter. (ECF No. 97-19.) The letter informed Plaintiff that due to his “incorrect pattern for requesting leave, ” further absences had to be requested and approved in advance. (Id. at 1.)

         In July 2014, Plaintiff again requested reassignment. That same month, he filed a third informal EEO complaint, alleging continuing disability discrimination and retaliation. Two days later, he resigned.

         In September 2014, Plaintiff filed his third formal EEO complaint against DHA, still alleging discrimination and retaliation and adding a claim for constructive discharge.

         In March 2015, Plaintiff alleges that, in its discovery requests, DHA disclosed information protected by the Privacy Act to ...

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