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Paul Lang v. Michael J. Astrue

June 1, 2011


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


Pending before the Court is Defendant's motion for summary judgment. (Doc. 27.) For the following reasons, the motion is granted.


Plaintiff has been employed by the Social Security Administration ("SSA") as a Teleservice Representative since 1989. (Pl. Ex. A at 2.) The Position Description for his position sets forth a Teleservice Representative's duties, which include a "full range of assistance" regarding "all programs" administered by SSA. (MSJ Ex. B at 43-48.) The job description states that the work is performed in an office setting. (Id. at 48.) Plaintiff's scheduled work hours are from 8:00 a.m. to 4:30 p.m., although the SSA's flex band permits him to report to work as late at 8:45 a.m. (MSJ Ex. C at 65-66.)

Plaintiff began experiencing sensitivities to food and chemicals in 1995 and sought treatment from Dr. Ronald Lesko. (MSJ Ex. C at 83, Ex. A at 11; Pl. Ex. A at 2-3, Ex. B at 9.) Dr. Lesko diagnosed Plaintiff with having delayed, non-IgE mediated, multiple food sensitivities or food and chemical sensitivities. (MSJ Ex. A at 8, Ex. C at 83.) According to Dr. Lesko, Plaintiff's symptoms are chronic and unpredictable and include symptoms of headaches, congestion, and perspiration. (MSJ Ex. C at 81.) According to Plaintiff, his symptoms also include fatigue, shortness of breath, intestinal disorders, loss of balance, and limited ability to think clearly. (MSJ Ex. A at 9-10; Pl. Ex. A at 4.) Plaintiff's symptoms generally occur once or twice per week in the morning and last for approximately four to six hours. (MSJ Ex. A at 21-22, 27; Pl. Ex. E at 88.) Dr. Lesko conducted food tests to attempt to determine the sources of Plaintiff's sensitivities, but stated that it would be nearly impossible for Plaintiff to identify which foods cause his delayed symptoms. However, Plaintiff has noticed that he tends to get sick when he eats marinades, vinegar, soy sauce, or foods containing MSG or other chemicals and food additives. (MSJ Ex. C at 82, Ex. A at 16-20; Pl. Ex. E at 90, 92.) According to Plaintiff, when he eats purely organic foods, he does not have reactions to those foods and has fewer experiences of his symptoms. (MSJ Ex. A at 20-21.)

SSA provides two types of leave--sick leave, which is available for unanticipated absences, but must be requested prior to 8:45 a.m., and annual leave, which allows an employee to take time off for personal and emergency purposes, but is subject to the employer's right to determine when such leave may be taken. (MSJ Ex.C at 66.) According to Plaintiff, he misses a half-day of work per week on average due to his unpredictable symptoms. (MSJ Ex. A at 24.) To account for past absences, Plaintiff has first used his allotted sick leave and has then requested annual leave. (Id. at 25.)

According to Plaintiff, his supervisor, Annie Williams, first became aware of his alleged disability in 1999. (Pl. Ex. E at 102-03.) Plaintiff further claims his usage of sick leave became a problem with management on July 3, 2006, when he was asked to provide medical documentation for his alleged symptoms. (MSJ Ex. C at 51; Pl. Ex. B at 14.) However, he was issued a sick leave counseling memorandum on October 26, 2005, due to his repeated morning requests for leave, which warned him that his continued violation of SSA's attendance rules would result in disciplinary action. (MSJ Ex.C at 53, 65-67, 86-87.) After he received this counseling memorandum, Plaintiff was late to work and failed to call in by 8:45 a.m. on six occasions. (Id. at 64-65, 89-92.) As a result, on March 14, 2006, Plaintiff received an Official Reprimand from Ms. Williams for frequently requesting leave without prior notice and for consistent tardiness. (Id. at 53, 64-65, 89-92.) When Plaintiff continued to have absences and to appear late for work, he was placed on leave restriction from August 10, 2006 to December 8, 2006. (Id. at 71.) After requesting leave to accommodate an incident of the stomach flu in July 2006, Plaintiff filed a grievance and, within a few days of the grievance hearing in August 2006, SSA distributed a write-up to management personnel noting Plaintiff's sick leave restriction. (MSJ Ex. A at 29; Pl. Ex. E at 109-10.) Plaintiff first sought Equal Employment Opportunity ("EEO") counseling after he received the August 10, 2006 leave restriction. (MSJ Ex. C. at 50, Ex. A at 36; Pl. Ex. E at 129.)

On March 23, 2007, Plaintiff was issued another leave counseling memorandum by his supervisor at the time, Blanca Mendez, and was subsequently issued an Official Reprimand on May 4, 2007. The Official Reprimand charged Plaintiff with being absent without official leave ("AWOL") on various occasions, including on October 19, 2006, when he requested, but was denied, sick leave on the basis that he did not provide acceptable medical documentation as required by his sick leave restriction in place at the time. (Pl. Ex. K at 165-66, Ex. M at 172-74.) Plaintiff was placed on a second sick leave restriction from July 2, 2007 to October 30, 2007, requiring him to produce medical certification in support of each of his absences from work during that time period. (Pl. Ex. N at 176-78.)

Plaintiff filed a request for reasonable accommodation of his alleged disability on October 12, 2006. (Pl. Ex. H at 157.) As an accommodation, Plaintiff requested a liberal leave policy because of the unpredictable nature of his symptoms and because his symptoms routinely affected his ability to get to work before 8:45 a.m. He also requested that he not be required to submit medical documentation each time he used sick leave. (MSJ Ex. C at 51, 68, Ex. D at 98; Pl. Ex. E at 123, Ex. H at 157.) The manager of the center where Plaintiff works, Lourdes Esquer, referred Plaintiff's request for accommodation to a medical officer for review. (MSJ Ex. G at 153-55.) Christopher Holland, M.D. was the consulting physician who reviewed Plaintiff's request for accommodation. (Pl. Ex. I at 160.) Dr. Holland reviewed Plaintiff's request, as well as four letters from Dr. Lesko to Plaintiff's supervisor regarding Plaintiff's condition, and concluded that Plaintiff's alleged condition was not a qualified disabling condition under the Rehabilitation Act. (MSJ Ex. C at 68, Ex. D at 98.) Although Dr. Holland acknowledged that Plaintiff's symptoms may affect his daily life activities, he did not see evidence that they affected him severely. (MSJ Ex. D at 99; Pl. Ex. I at 160.) Dr. Holland further expressed his belief that the type of symptoms described by Plaintiff were not the type that would prevent reasonable people from generally attending work. (MSJ Ex. D at 101-02.) Based upon Dr. Holland's opinion, Ms. Esquer denied Plaintiff's accommodation request on November 1, 2006. (MSJ Ex. C at 68-69, Ex. G at 160-63; Pl. Ex. D at 68-69.) At the time of denial, Plaintiff was informed that the medical office would review any additional medical documentation Plaintiff wished to present. (MSJ Ex. C at 68.) Plaintiff, however, did not request a reassessment or an independent review of the denial of his request. (MSJ Ex. A at 33-34.)

On May 11, 2007, SSA sought applicants for a Claims Representative--Disability Insurance Benefits Project, effective May 18, 2007. (MSJ Ex. F at 117-21; Pl. Ex. E at 141.) To be considered, potential candidates had to be journeyman with 52 weeks in the GS-08 grade, reliable and dependable, and had to have good communication skills and the ability to work well independently. (MSJ Ex. F at 117-21.) Although Plaintiff applied for the project, the selecting official, Ms. Esquer, selected other San Diego Teleservice Center employees, whom she felt were more qualified, for the positions. (Id.) Plaintiff also applied for Claims Representative Project positions in April 2008 and again in early 2010, and was not selected on either occasion. (Pl. Ex. D at 34-5.)

On May 19, 2009, Plaintiff filed a Complaint with this Court alleging employment discrimination. (Doc. 1.) The Complaint sets forth three claims for relief: (1) discrimination based on reprisal, (2) discrimination based on disability, and (3) failure to accommodate disability. On February 11, 2011, Defendant filed the instant motion for summary judgment. (Doc. 27.)


"A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible ...

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