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Miller v. McHugh

September 14, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Marytherese Miller, a legal technician in the Office of the Staff Judge Advocate ("OSJA") for the United States Military at West Point, New York ("West Point"), brings suit against her employer, John McHugh, Secretary of the Army (the "Government").*fn1 Miller primarily alleges employment discrimination on the basis of her disability, failure to accommodate her disability and unlawful retaliation, in violation of the Rehabilitation Act*fn2 as modified by the Americans with Disabilities Act ("ADA")*fn3 and Title VII of the Civil Rights Act of 1964 ("Title VII").*fn4 Miller further alleges that the Government maintained a hostile work environment in violation of Title VII and that her personal information was disclosed in violation of the Privacy Act.*fn5

The Government moves for summary judgment on the grounds that:

(1) Miller cannot establish a prima facie case of discrimination because she is not disabled under the meaning of the ADA; (2) Miller cannot establish a prima facie case of discrimination based on failure to accommodate because her requests for accommodation were granted; (3) Miller cannot establish a prima facie case of retaliation because the Government's actions preceded any of Miller's protected acts and because Miller suffered no adverse employment actions; (4) the Government has offered legitimate, non-discriminatory reasons for its actions; (5) Miller cannot establish a prima facie case of hostile work environment; and (6) Miller cannot establish a prima facie case of a Privacy Act violation. For the reasons set forth below, the Government's motion is granted in full and this case is dismissed.


Miller has been employed as a legal technician for the OSJA at West Point since approximately 1987.*fn7 The duties of a legal technician are similar to those of a court reporter and include: recording and transcribing hearings, preparing records and cases, making exhibits, and preparing legal reviews and action documents in cadet hearings and investigations.*fn8 In 1992, Miller became a lead legal technician,*fn9 a position with responsibilities including those of a legal technician as well as additional supervisory functions, including "serving as a working leader over three employees."*fn10 The lead legal technician is also responsible for balancing and distributing the caseload, training new employees and preparing a superintendent's report.*fn11 Until the Spring of 2005, Miller participated in cadet hearings that were held on the fourth floor of Nininger Hall, a building with no elevator.*fn12
A. Miller's First Surgery and Initial Requests for Worksite Accommodations After a meniscus tear in February 2005, as well as significant knee pain, Miller underwent knee surgery in April 2005.*fn13 Miller returned to work after three weeks with a leg brace and crutches.*fn14 Upon returning to work, Miller presented a doctor's note which limited her use of stairs.*fn15 Due to her surgery, Miller verbally requested to "not have to climb the stairs."*fn16 In response, all of Miller's court hearings were moved from the fourth floor of Nininger Hall to Building 606 (the OSJA Courtroom), a handicapped accessible location and the building in which Miller's desk is located.*fn17 In September 2005, Miller procured an additional doctor's note providing that she should engage in "minimal stair climbing while at work."*fn18
Beginning in September 2006, Miller was told by her supervisors, Colonel Brendan Donahoe and Captain Ann Ching, that she would need to use the stairs and that she would be subject to a fitness for duty hearing.*fn19 Miller contacted another supervisor, Colonel Robin Swope, on October 25, 2006, to protest having to walk up stairs and to request an explanation regarding the fitness for duty hearing.*fn20 Swope instructed Miller to get her medical accommodations "properly documented" so that the OSJA could act in "accordance with regulations."*fn21 Miller was informed that if she provided proper documentation, she would not be required to climb stairs or to submit to a fitness for duty investigation.*fn22 On November 7, 2006, Miller filed a formal written request for medical accommodation asking that she not be required to use the stairs at Nininger Hall.*fn23 In her written request, Miller also advised the OSJA that she would need a second surgery "[w]ithin the next six months."*fn24 Miller also provided a new doctor's note ordering "[m]inimal stairs please."*fn25
Miller's request for a temporary worksite accommodation was granted on November 17, 2006.*fn26 Miller has never participated in any hearings on the fourth floor of Nininger Hall since returning from surgery in 2005.*fn27 Her hearings have been mainly held in the OSJA Courtroom, and since sometime in early 2010, some hearings have also been held in the Red Reeder Room,*fn28 a handicapped accessible location approximately one half mile from Miller's desk in Building 606.*fn29 Miller declined certain accommodations related to traveling to the Red Reeder Room.*fn30

B. Miller's Requests for Parking Accommodation

Miller verbally requested a parking accommodation by phone before returning from work in order to avoid the stairs in West Point's parking lot.*fn31

Captain Daniel Greiser, her supervisor, advised Miller that such a permit would be too difficult to secure.*fn32 Instead, Greiser informed Miller that it would be easier to secure a handicapped parking pass from New York State, which Miller did.*fn33 This pass expired in October 2005, and Miller had to take the stairs in the parking lot between October 2005, and February 2007.*fn34 During this time, Miller made additional verbal requests for parking accommodations by the OSJA, but was denied.*fn35

On February 7, 2007, Miller submitted her first formal written request to West Point for a Reserved Parking Spot.*fn36 In response, Miller was granted a temporary reserved parking space on February 13, 2007, for one year.*fn37 No other formal parking accommodation requests were filed by Miller with West Point until June 2, 2011, at which time Miller was again granted handicapped parking accommodations by West Point.*fn38 Miller did not attempt to renew her New York State Parking pass until November 2009, at which point her request was granted.*fn39

C. Miller's Job Reclassification

In 2006, Miller's supervisor, Captain Greiser, was in the process of updating OSJA job descriptions.*fn40 Miller had requested in 2003 that her job description be updated to better match her actual job responsibilities.*fn41 Since approximately 1993, Miller had been the lead legal technician in charge of two other legal technicians.*fn42 According to the position description maintained by OSJA, a lead legal technician serves as a "working leader over three employees."*fn43

In accordance with this description, Captain Ching, Miller's new supervisor, reclassified Miller as a legal technician rather than a lead legal technician by a memorandum dated April 5, 2007.*fn44 Miller was informed of this reclassification by e-mail on May 3, 2007.*fn45 The reclassification took effect on July 8, 2007.*fn46

Miller experienced no decrease in grade or salary at the time of her reclassification.*fn47 Her duties, however, changed, as she no longer distributed the caseload, conducted trainings, or was solely responsible for superintendent's reports and red book pages.*fn48 Moreover, as lead legal technician, Miller was required to have a higher pay grade than other legal technicians, but as a legal technician, she would not be entitled to an automatic promotion once other legal technicians were promoted.*fn49

D. Miller's Second Surgery and Informal EEO Complaint

In Miller's Formal Memo requesting worksite accommodation, she notified the OSJA that she would need a second surgery.*fn50 On April 26, 2007, Miller submitted a formal written request to her supervisor, Captain Ching, for eighty-eight hours of advanced annual leave on or about May 17, 2007, in order to undergo the second surgery.*fn51 Captain Ching denied this request after a meeting with Col. Swope, Lt. Donahoe and Ms. Doughty (West Point's Labor Counselor), and provided a written memo explaining the decision on May 8, 2007.*fn52 Captain Ching's memo explained that Miller was not eligible for advanced annual leave, but that Miller could take time off using either leave without pay ("LWOP") or borrowing donated leave from other employees.*fn53 Miller did not opt to use either of these options and instead cancelled her surgery.*fn54

On May 8, 2007, Miller filed an informal complaint with the West Point Equal Employment Opportunity ("EEO") Office.*fn55 In her complaint, Miller alleged that she was discriminated against when her request for advanced leave was not approved.*fn56 After being denied her request for advanced leave, Miller stated that "she then contacted the COL Colpo the Chief of Staff and CPAC [who] told her she had enough to borrow."*fn57 Miller further stated that she believed that she had enough advanced leave, that she had been allowed advanced leave for pre-operative tests, that another employee was granted advanced leave, and that she was "reprised against because she went to the Chief of Staff about their continue [sic] pattern of treatment."*fn58

Miller underwent her second surgery on April 26, 2008.*fn59 Following this surgery, Miller received doctor's notes prohibiting stair climbing, walking on inclines and walking long distances.*fn60 She also received continued doctor's orders to park near the building.*fn61 More recently, the West Point medical staff also concluded that Miller has a "permanent limiting condition" such that she cannot "walk up and down stairs," cannot "walk on an incline or for long distances," and cannot endure "prolonged standing."*fn62 Nonetheless, Miller's difficulties do not affect her ability to perform her job.*fn63

E. Miller's 2007 Performance Evaluation and Other Employee Counseling On June 22, 2007, Miller received her annual performance evaluation.*fn64 This was the first annual evaluation that Miller received from her new supervisor, Captain Ching.*fn65 While Miller had received evaluation scores of "excellent" (one out of five, or the highest rating) in years preceding 2007, her 2007 evaluation resulted in an overall performance score of "successful" (two out of five).*fn66 Captain Ching explained that the performance evaluation was based on the fact that Miller "had vocalized for me on more than one occasion that she felt she did not need to participate in the same training as the other employees and it would be basically a waste of time and money, that the software shouldn't be used anymore and so forth."*fn67 As a result of her performance evaluation score, Miller received a sixteen-hour time off award instead of the forty-hour time-off awards she had received in years in which her performance evaluation score was "excellent."*fn68

Miller also received periodic employee counseling and guidance sessions during 2007-2008.*fn69 No disciplinary actions or changes in Miller's employment status resulted from these meetings or the associated memoranda.*fn70

F. Miller's Formal EEO Complaints

On July 9, 2007, Miller filed her first formal EEO complaint.*fn71 The complaint alleged discrimination, retaliation and the creation of a hostile work environment based on her supervisors: (1) denying her leave for the second surgery; (2) reclassifying her position; (2) participating in negative counseling sessions; (3) downgrading her evaluation; (4) discussing medical issues with co-workers present in violation of the Privacy Act; (5) requiring excessive justification for requested leave; and (6) causing her mental and emotional distress.*fn72

Miller filed a second formal EEO complaint on March 21, 2008.*fn73

This complaint further alleged discrimination, retaliation and the creation of a hostile work environment and included a detailed list of instances of alleged harassment and discrimination.*fn74 Among the specific workplace incidents referred to in the second EEO complaint as well as in the subsequent Amended Complaint are: (1) Captain Greiser's comments in May 2005, asking Miller whether she "would be ready to climb Storm King Mountain for an office outing," and his repeated questioning over a month;*fn75 (2) a comment by Corrine Barnes, a member of the OJSA management team, "how would you like me to kick your leg and see how it hurts?;"*fn76 (3) a statement by co-worker Christine Laiso, "Everyone hates you, I hate you!;"*fn77 and (4) a picture that Captain Brian Adams sent around by e-mail of himself with the caption, "you will remember me!"*fn78 Miller also claims that her unlisted telephone number was released without her consent on an office roster.*fn79 Miller commenced the present action on August 24, 2009.


A. Summary Judgment

Summary judgment is appropriate "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."*fn80 "'An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law.'"*fn81

"The moving party bears the burden of establishing the absence of any genuine issue of material fact."*fn82 "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim."*fn83 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party "'must do more than simply show that there is some ...

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