Duray v. Johnson, 0:12-cv-02800

Background

Plaintiff Pamela Duray, a 58-year-old CBP Human Resources Assistant, suffered multiple medical conditions and fractured her foot in Sept. 2010; she later applied for and received disability retirement (approved Jan. 20, 2012).
After a 2009 reassignment to the Field Office Hiring Unit (FOH), Duray underwent a structured training plan; supervisors found her performance deficient and implemented an Employee Proficiency Plan (EPP) in Jan. 2011.
Duray filed EEO complaints alleging discrimination (sex, age, disability) and retaliation stemming from events covered in a Feb. 28, 2011 EEO complaint; DHS issued a Final Agency Decision finding no discrimination.
Key contested events: removal of a printer accommodation, denial of reassignment or part-time work as accommodations, non-selection for promotions (HRS positions), placement on an EPP, proposed removal, and being placed on administrative leave.
Court found many alleged events time-barred (Duray contacted EEO counselor Jan. 6, 2011), concluded CBP either was not put on notice of accommodation requests or Duray was not qualified for available reassignment positions, and determined Duray failed to show discrimination, failure to accommodate, or retaliation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exhaustion of administrative remedies	Duray challenges actions dating back to 2006–2010 as discriminatory and retaliatory	CBP: must contact EEO counselor within 45 days; many events predate that window	Events before Nov. 22, 2010 are time-barred for failure to exhaust; summary judgment for CBP on those claims
Failure to accommodate (printer, reassignment, part‑time)	Printer removal and denied reassignment/part‑time were reasonable accommodations needed for disabilities	CBP: printer change was minor; Duray didn’t use formal accommodation process pre-FMLA; post‑FMLA she was medically unable to work	Court: printer removal not an adverse action; fact issues on interactive process but Duray failed to show she was qualified or that reasonable accommodations existed — summary judgment for CBP
Disparate treatment / failure to promote	Duray claims intersectional discrimination (female, over 40, disabled) in non‑selection for HRS	CBP: selected applicants were more qualified based on interview/writing scores and experience	Even assuming a prima facie case, Duray failed to show pretext; summary judgment for CBP
Retaliation / hostile work environment	Duray contends EEO activity led to monitoring, EPP, proposed removal and other adverse acts	CBP: many acts are not materially adverse, many are time‑barred, no causal link shown; health issues break temporal chain	Court: Duray failed to show materially adverse actions or causal connection; hostile environment not severe or pervasive; summary judgment for CBP

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (standards for summary judgment)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (genuine dispute and materiality standard at summary judgment)
Amini v. City of Minneapolis, 643 F.3d 1068 (definition of genuine dispute of material fact)
Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707 (qualified individual and failure‑to‑accommodate analysis)
Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011 (interactive process requirement)
E.E.O.C. v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790 (employee notice / interactive process)
Sutherland v. Missouri Dep’t of Corrections, 580 F.3d 748 (prima facie retaliation and hostile work environment elements)
Gilbert v. Des Moines Area Community College, 495 F.3d 906 (proof of pretext in retaliation claims)
AuBuchon v. Geithner, 743 F.3d 638 (what constitutes materially adverse employment action)
Palesch v. Missouri Commission on Human Rights, 233 F.3d 560 (hostile work environment severity/pervasiveness)
Harris v. Forklift Systems, Inc., 510 U.S. 17 (hostile work environment standard)