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Meyer v. McAleenan

United States District Court, N.D. Illinois, Eastern Division

September 20, 2019

EDUARD MEYER, Plaintiff,
v.
KEVIN K. MCALEENAN, Defendant.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo United States District Judge.

         Eduard Meyer ("Plaintiff'), a former employee of the U.S. Transportation Security Administration ("TSA"), brings this workplace discrimination lawsuit against Kevin McAleenan[1] ("Defendant") in his capacity as acting secretary of the U.S. Department of Homeland Security ("DHS") pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq. (R. 1, Compl. ¶¶ 1-3, 9, 62-77.) Pursuant to Federal Rule of Civil Procedure 56, Defendant moves for partial summary judgment. (R. 41, Mot. at 1.) For the reasons set forth below, Defendant's motion is granted.

         RELEVANT FACTS

         The following facts are undisputed unless otherwise stated. Plaintiff is diagnosed with Tourette Syndrome ("TS"), a condition that causes verbal and physical tics, which, in Plaintiffs case, causes him to uncontrollably say offensive words and make sudden hand movements. (R. 44, Resp. to Def.'s Facts ¶¶ 3, 6-7.) These tics can occur without Plaintiffs knowledge. (Id. ¶ 8.) TS, however, does not affect Plaintiffs memory. (Id. ¶ 9.) Plaintiff was first diagnosed with TS in 1984, and he informed the TSA of his condition when he applied for a job there. (Id. ¶ 6.)

         Plaintiff began working for TSA at O'Hare Airport in September 2002, initially as a security officer and then as an administrative assistant. (Id. ¶ 5.) Between 2006 and 2012, several members of TSA management were aware that Plaintiff had TS. (R. 51, Resp. to PL's Facts ¶ 32.) In the summer of 2013, a TSA "employee relations specialist" forwarded a letter from Plaintiffs doctor to a medical consultant for the federal occupational health service, and the medical consultant recommended that the TSA accommodate Plaintiff by offering Plaintiffs coworkers a voluntary educational program about TS. (Id. ¶¶ 34-35.) TSA did not implement such a program. (Id. ¶ 36.)

         In September 2013, TSA issued Plaintiff a letter of reprimand after he refused to apologize to an African American co-worker for using a racial slur against her, which was allegedly triggered by Plaintiffs TS. (R. 44, Resp. to Def.'s Facts ¶ 12; R. 42-2 at 6-8, Letter of Reprimand.) In October 2013, Plaintiff contacted a counselor from the U.S. Equal Employment Opportunity Commission ("EEOC") and alleged that he had been the victim of harassment, disability discrimination, and retaliation because of his TS and workplace complaints he had previously made. (R. 51, Resp. to PL's Facts ¶ 41.) Shortly thereafter, in November 2013, TSA reassigned Plaintiff from O'Hare to its facility in Rosemont, Illinois, where Plaintiff was responsible for managing TSA vehicles. (R. 44, Resp. to Def.'s Facts ¶ 13; R. 42-2 at 10-11, Nov. 18, 2013, TSA Mem.) This reassignment was an effort to reduce the number of employees with whom Plaintiff interacted to prevent further negative encounters between Plaintiff and his co-workers. (R. 44, Resp. to Def.'s Facts ¶ 13.) The parties dispute, however, whether the reassignment exacerbated Plaintiffs TS. (R. 51, Resp. to PL's Facts ¶ 42.)

         In October 2013, Plaintiff contacted an EEO counselor and alleged that he had been harassed as well as discriminated and retaliated against because of his TS. (Id. ¶ 41.) He then filed an EEO complaint to the same effect based, in part, on the September 2013 letter of reprimand and November 2013 reassignment to Rosemont (the "2013 EEO Complaint"). (R. 44, Resp. to Def.'s Facts ¶ 14.) The retaliation claim in the 2013 EEO Complaint was based on Plaintiffs previous EEO activity in which he complained about a supervisor seven years before the 2013 EEO Complaint. (Id. ¶ 15.)

         Despite his reassignment to Rosemont, Plaintiff continued to have negative encounters with other TSA employees because of his TS. (Id. ¶ 16.) Plaintiff met with TSA's Assistant Federal Security Director, Mark Lendvay, in April 2014, and during that meeting, Lendvay told Plaintiff that TSA policy restricted Plaintiff from using offensive language and racial slurs despite Plaintiffs TS. (R. 51, Resp. to PL's Facts ¶¶ 36, 44.) During the meeting with Lendvay, Plaintiff complained that his supervisor was dishonest and requested an investigation as to his supervisor's dishonesty, but Lendvay declined to investigate the matter further. (Id. ¶ 45.)

         Later in April 2014, Plaintiff met with TSA Deputy Federal Security Director Barbara Schukraft ("Schukraft"), and during that meeting, he uttered offensive words and a racial slur. (R. 44, Resp. to Def.'s Facts ¶ 17; see also R. 45-1 at 92, Aug., 18, 2014, Schukraft Letter; R. 51, Resp. to PL's Facts ¶ 48.) Then, in the spring and summer of 2014, Plaintiff had multiple incidents involving TSA attorney Candace Norten in which he again uttered offensive words and racial slurs. (R. 44, Resp. to Def.'s Facts ¶ 18.) The parties dispute whether, during these encounters, Plaintiff also manifested a physical tic involving offensive hand gestures. (Id. ¶¶ 17-18.)

         In June and July 2014, Plaintiff met with Schukraft, and during the July meeting, Schukraft asked Plaintiff to present a plan that could prevent any offensive tics. (R. 51, Resp. to PL's Facts ¶ 50; see also R. 45-1 at 252, July 3, 2014, Schukraft Email.) The parties dispute whether Plaintiff was able to satisfy Schukraft's request, but Defendant claims that Plaintiff "failed to provide any feedback or suggestions on how to formulate a workplace strategy." (See R. 51, Resp. to PL's Facts ¶¶ 50-52.) On August 18, 2014, Schukraft sent Plaintiff a letter notifying him that she was proposing to remove him from the TSA. (Id. ¶ 53; R. 45-1 at 92, Aug., 18, 2014, Schukraft Letter.) The next day, August 19, 2014, TSA concluded its report of investigation as to Plaintiffs 2013 EEO Complaint. (R. 51, Resp. to PL's Facts ¶ 54.) In September 2014, TSA terminated Plaintiffs employment. (R. 44, Resp. to Def.'s Facts ¶ 19; R. 42-2 at 29-33, Sept. 12, 2014, Termination Letter.)

         In July 2014, before he was terminated, Plaintiff filed a request for accommodation with TSA. (R. 44, Resp. to Def.'s Facts ¶ 20.) TSA, however, closed that request in October 2014 because of Plaintiff s termination. (Id. ¶ 21; R. 42-2 at 42, October 2, 2014, Letter.) After Plaintiff was terminated, he contacted an EEO counselor and then filed another EEO complaint alleging discrimination and retaliation based on his termination and related closing of his request for an accommodation (the "2014 EEO Complaint"). (R. 44, Resp. to Def.'s Facts ¶ 22; R. 51, Resp. to PL's Facts ¶ 56.)

         On December 4, 2014, DHS issued a final decision denying the claims in the 2013 EEO Complaint and finding that Plaintiff failed to prove that he was subjected to workplace discrimination, harassment, or retaliation. (R. 44, Resp. to Def.'s Facts ¶ 23; R. 45-1 at 468-78, May 18, 2017, EEOC Decision.) Plaintiff appealed that decision to the EEOC on January 19, 2015, and the EEOC affirmed DHS' decision on May 18, 2017. (R. 44, Resp. to Def.'s Facts ¶ 23; R. 45-1 at 468-78, May 18, 2017, EEOC Decision; R. 51-1 at 99, EEOC Appeal Brief.)

         On July 6, 2016, DHS issued a final decision denying the claims in the 2014 EEO Complaint, finding that Plaintiff failed to prove that TSA discriminated or retaliated against him by terminating his employment. (R. 42-2 at 48-50, July 6, 2016, DHS Decision; R. 44, Resp. to Def.'s Facts ¶ 24.) Plaintiff was represented by an attorney when DHS issued this decision, and DHS sent the decision to both Plaintiff and his attorney. (R. 44, Resp. to Def.'s Facts ¶¶ 25-26.) The parties dispute whether Plaintiff recalls receiving the decision, but there is no dispute that Plaintiffs attorney received the decision. (Id. ¶¶ 27-28.) Plaintiff read the July 2016 decision and was notified of the decision by his attorney sometime between July 2016 and May 2017, but the parties dispute the exact time in which Plaintiff read the decision. (Id. ¶ 29; R. 51, Resp. to PL's Facts ¶ 60.)

         In a section titled "Notice of Appeal Rights, " the July decision advised Plaintiff that he had "the right to file a civil action in an appropriate United States District Court within 90 days" after he received the decision or the right to appeal "the decision to the EEOC within 30 days of the day" he received the decision. (R. 42-2 at 51-52, July 6, 2016, DHS Decision.) The decision also advised Plaintiff that if he filed an appeal with the EEOC, he had the right to file "a civil action within 90 days after receipt of EEOC's final decision on appeal" or "after 180 days from the date of filing an appeal with EEOC if there has been no final decision by EEOC." (Id. at 52.) There is no dispute that Plaintiff understood this language in the July 2016 decision, and that ...


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