United States District Court, D. Colorado
RAYMOND P. MOORE United States District Judge.
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.
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.
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.
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.)
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”).
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.)
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.)
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.)
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
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
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.)
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.)
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.
September 2014, Plaintiff filed his third formal EEO
complaint against DHA, still alleging discrimination and
retaliation and adding a claim for constructive discharge.
March 2015, Plaintiff alleges that, in its discovery
requests, DHA disclosed information protected by the Privacy
Act to ...