Reagan-Diaz v. Sessions , 246 F. Supp. 3d 325 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHARON-LEE REAGAN-DIAZ,
Plaintiff,
Civil Action No. 14-01805 (BAH)
v.
Chief Judge Beryl A. Howell
JEFF SESSIONS, United States Attorney
General, 1
Defendant.
MEMORANDUM OPINION
The plaintiff, Sharon-Lee Reagan-Diaz, an employee of the Federal Bureau of
Investigation (“FBI”), brings this suit against the Attorney General, in his official capacity,
alleging that the FBI denied her a reasonable accommodation, and discriminated and retaliated
against her, based on her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C.
§ 701 et seq. First Am. Compl. (“FAC”), ¶ 4, ECF No. 12. After the plaintiff sustained a
debilitating workplace injury in September 2011, the FBI denied her request for what she alleges
was a reasonable accommodation of working for no more than two hours per day. She then
received worker’s compensation during her recuperation, until her return to work, on a part-time
basis, in May 2013. She currently remains gainfully employed on a full-time basis by the FBI.
The plaintiff contends that, in reprisal for her equal employment opportunity (“EEO”) activity,
she was improperly denied two awards in 2012 and 2013, during which periods she was either
recuperating or working part-time. Pending before the Court is the defendant’s Motion to
Dismiss and for Summary Judgment, (“Def.’s Mot.”), ECF No. 25, pursuant to Federal Rules of
1
The plaintiff originally named former Attorney General Eric Holder, Jr., as the defendant. Pursuant to
Federal Rule of Civil Procedure 25(d), the Court automatically substitutes his successor as the new defendant.
1
Civil Procedure 12(b)(1) and 56. 2 For the reasons set forth below, the defendant’s motion is
granted.
I. BACKGROUND
A. The Plaintiff’s 2011 Injury and Requests to Return to Work
In 2011, the plaintiff was employed as a GS-14 Management and Program Analyst in the
Performance Management Unit (“PMU”) of the Resource Planning Office (“RPO”) of the FBI.
FAC ¶¶ 17, 80. The plaintiff was assigned full-time to the FBI’s “Sentinel” program, a team
project to develop the web-based “Sentinel” application, which is “the FBI’s current electronic
case management system.” Id. ¶¶ 18-19. The job was demanding, in a “fast paced
environment,” that required the plaintiff frequently to work nine or ten hour days to finish her
work, and to attend numerous, often “impromptu,” meetings. Def.’s Mot., Ex. 4, Deposition of
Sharon-Lee Reagan-Diaz (“Pl.’s Dep.”) at 25:2-4, 29:22-30, 31:9-13, 36:14-18, 45:9-10, 46:23-
47:2, 48:7-20, 59:11-17, ECF No. 25-8. Additionally, much of the Sentinel team’s work was
conducted on a classified network, and thus could not be performed outside FBI facilities. Def.’s
Mot. Decl. of Gordon D. Bitko, Chief Information Officer, FBI ¶ 9, ECF No. 25-3.
On September 7, 2011, while at work, the plaintiff suffered a serious injury, the details of
which are not disclosed in the record, and was placed on medical leave. FAC ¶ 2. After her
injury, the plaintiff was diagnosed with Reflex Sympathetic Dystrophy, or Complex Regional
Pain Syndrome, a condition causing chronic, disabling pain in her extremities that affected the
functioning of her circulatory and musculoskeletal systems and initially prevented her from
engaging in routine activities such as walking or lifting objects. Id. ¶ 27. From the date of her
2
The plaintiff has also filed a Motion for Leave to File a Sur-Reply in Opposition to Defendant’s Motion for
Summary Judgment (“Pl.’s Sur-Reply”), ECF No. 39. This motion is granted to give full consideration to the
parties’ arguments.
2
injury to May 9, 2013, the plaintiff received workers’ compensation payments pursuant to the
Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101 et seq. Def.’s Mot., Ex. 1
at FBI 1206, ECF No. 25-5.
Several months after the injury, in January 2012, the plaintiff contacted RPO about
returning to work and requested permission to telecommute. FAC ¶ 30. In the months that
followed, the plaintiff and various FBI personnel engaged in a series of communications
regarding the processes and requirements for her return to work. Initially, some supervisors
suggested to the plaintiff that they merely had to grant her a “reasonable accommodation.” For
example, when the plaintiff first requested to return to work in January 2012, her direct
supervisor, Gordon Bitko, told her that she needed to be in the office for more than just two
hours, proposing a “reasonable accommodation” that the plaintiff work four hours in the office
per day, with the rest completed at home. Id.
The situation was soon clarified, however, that the plaintiff could not receive a
“reasonable accommodation” while still receiving worker’s compensation payments. On
January 11, 2012, Elizabeth Stoddard, a Supervisor in RPO, Def.’s Mot., Ex. 6, Deposition of
Elizabeth Stoddard, at 10:16-18, ECF No. 25-10, explained to Bitko that “[e]mployees on
Worker’s Compensation do not go through the Reasonable Accommodation Process. Instead
they go through a process that is facilitated by [the Worker’s Compensation Unit (“WCU”)]
called Alternative Work Assignments (“AWA”),” Def.’s Mot., Ex. 14 at FBI 1671, ECF No. 25-
18; see also Pl.’s Corrected Opp’n Def.’s Mot. (“Pl.’s Opp’n”) at 4, ECF No. 34 (“The FBI
decided that Plaintiff would not go through the ‘Reasonable Accommodation Process,’ but
instead would proceed under the Alterative Work Assignment (‘AWA’) process of workers’
compensation directed by Michael Huff.” (citations omitted)). Under the AWA process, Michael
3
Huff, the Unit Chief of the FBI’s WCU, would have to draft an AWA “job offer” for the plaintiff
and submit it to the Department of Labor (“DOL”) for approval. 3 Pl.’s Opp’n at 4 (citing Pl.’s
Opp’n, Ex. 6, Deposition of Michael Huff, Unit Chief, Workplace Injury Liaison Unit, FBI
(“Huff Dep.”), at 159-61, ECF No. 31-6). As explained by Stoddard, the AWA process is
similar to the “reasonable accommodation” process, but the plaintiff would be compensated by
DOL instead of the FBI. Def.’s Mot., Ex. 14 at FBI 1671. As part of this process, the plaintiff
had to communicate to WCU about the job activities she could and could not perform given her
medical condition. Id.
On March 22, 2012, Stoddard advised the plaintiff via email that she could start working
once the RPO had completed the AWA process in coordination with WCU, stating that “[t]here
are several projects that we are eager to get you engaged in as soon as you’re able and we’ve
complete [sic] the appropriate processes.” Def.’s Mot., Ex. 15 at FBI 2206-07, ECF No. 25-19;
see also Pl.’s Opp’n, Ex. 26 at FBI 2257, ECF No. 31-26. Stoddard listed a number of job duties
that they were hoping the plaintiff could “support.” Pl.’s Opp’n, Ex. 26 at FBI 2257. Stoddard
asked the plaintiff in the March 22 email to confirm the work activities she could perform given
her current medical condition, telling her that “[t]o be clear, my understanding is that [Huff],
[Bitko], and I all need positive confirmation from you that you feel comfortable in performing
these roles; otherwise we would want to re-evaluate them such that you are comfortable.” Def.’s
Mot., Ex. 15 at FBI 2207. One week later, on March 29, 2012, the plaintiff responded, but stated
only that she was having email problems, asked to have messages sent to another email address,
3
In his deposition, Huff explains that his unit changed its name from the “Workmans’ Compensation Office”
and “Workers’ Comp Unit” to the “Workplace Injury Liaison Unit.” Huff Dep. at 9:9-14. For ease of reference,
and because the parties refer to the office as the “Workers’ Compensation Unit,” the office is referred to in this
opinion as the “Workers’ Compensation Unit” or “WCU.”
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and explained that she would “proceed to review the work duties” and would let Stoddard know
if she had any questions. Id. at FBI 2206.
Several weeks later, on April 19, 2012, RPO Assistant Director David Schlendorf
informed the plaintiff that they were still “waiting to hear back from [the plaintiff] about . . . the
work duties.” Id. at FBI 2206. The plaintiff responded that she had, in fact, replied to
Stoddard’s March 22 email “regarding the work duties,” stating that “[a]t the time [Stoddard]
sent me the e-mail with the work duties I din’t [sic] have any questions” and that “I am sure once
we have an oficial [sic] starting work date we will need to regroup and see if these work duties
need to be updated.” Id. at FBI 2205-06. Stoddard and Huff then expressed confusion to one
another, as neither of them had seen a response from the plaintiff specifically regarding the job
duties. Id. at 2205. Stoddard wrote to Huff, stating that “[t]he only response I saw to the work
duties” was the plaintiff’s March 29 email and that to Stoddard’s knowledge, the plaintiff had
“not positively confirmed that the work duties were okay and appropriate for her medical
circumstances, as requested.” Id.
Five days later, Huff wrote to Schlendorf, telling him that “[t]here is nothing more
[Schlendorf] or anyone else in RPO needs to do” and that they were still “waiting on [the
plaintiff] to provide a response to [Stoddard’s] email and provide [Huff’s] office with updated
medical [information] from her doctor and a completed safety check list.” Def.’s Mot., Ex. 16 at
FBI 1741, ECF No. 25-20. Huff explained that “[o]nce these three issues are resolved, then
[they could] proceed with making a light duty job offer to [the plaintiff].” Id. Yet, no evidence
is in the record that the plaintiff ever substantively responded to the March 22 email from
Stoddard confirming the work duties she was comfortable performing.
5
On May 18, 2012, however, the plaintiff again wrote in an email to Huff that she had
“been cleared to work 2 hours a day 5 days a week close to home on a trial basis.” Def.’s Mot.,
Ex. 18 at FBI 1838, ECF No. 25-22. Huff responded by referring to an apparent oral
conversation the plaintiff had with Huff two weeks earlier on May 3, 2012. Id. According to
Huff’s email, in this conversation, Huff and the plaintiff discussed that they would have to wait
until the plaintiff’s doctor cleared her to work for four hours per day and that the plaintiff had
stopped having, in her terms, “bad days.” 4 Id. at FBI 1838; FAC ¶¶ 43-44. The plaintiff
responded to Huff’s email by reiterating her desire to return to work “on a gradual basis.” Def.’s
Mot., Ex. 18 at FBI 1837. Huff replied that he had discussed the matter with RPO leadership,
including Schlendorf, resulting in the “unanimous” decision that the plaintiff “need[ed] to
concentrate on recovery efforts regarding [her] medical condition,” noting, in particular, that the
plaintiff was still having “bad days” when she could not “function well.” Id. at FBI 1836. Huff
explained that the plaintiff’s “bad days” issue is “not taken into account within [DOL’s AWA]
process,” and had the “potential to create a great deal of stress on [the plaintiff] as it could lead to
a denial of benefits if [she] [could not] continue to work the formalized return to work program
under the [DOL] rules and regulations.” Id. Huff advised that everyone “agreed that [the
plaintiff] need[ed] to continue [her] recovery program and the most important issue [was her]
long term health and well being” and that “[c]oming back to work at this point could jeopardize
all the hard work and positive gains [she] ha[d] made thus far.” Id. Huff concluded that once the
plaintiff’s doctor had cleared her to work for at least four hours per day and her “issue with bad
days and good days ha[d] been resolved as much as possible,” WCU would “be happy to develop
an alternative work assignment to meet [her] medical restrictions.” Id. Huff then explained to
4
According to Huff, on these “bad days,” the plaintiff told him she was “not able to get out of bed and
work.” Def.’s Mot., Ex. 13 at FBI 2919, ECF No. 25-17; see also id., Ex. 19 at FBI 2250-51.
6
Bitko that WCU could not make a “suitable offer for . . . work as [the plaintiff] [could] only
work 2 hours per day, and she, by her own admittance, [did] not know when she [would] have
good and bad days.” Id. at 1835.
On July 16, 2012, Huff wrote to Schlendorf, Stoddard, and Bitko, telling them that he had
spoken to the plaintiff about Stoddard’s March 22 email on April 27 and May 3. Def.’s Mot.,
Ex. 19 at FBI 2250-51, ECF No. 25-23. According to Huff, the plaintiff stated that she could not
“comment [sic] to performing any of the duties in the March 22, 2012, email as she does not feel
comfortable trying to make deadlines with her work,” since she has “good days and bad days,
[when] she is not able to get out of bed and work on the bad days,” and, consequently, she did
not make “a commitment to work specific job duties as outlined in the March 22, 2012 e-mail.”
Id. at FBI 2250. Huff further explained that he could not make an AWA job offer based on
“good days and bad days,” and that in order for him to write an offer, he had to have a “list of
duties that [the plaintiff would] be performing.” Id. Since Huff could not make a job offer under
FECA, Huff referred the plaintiff to Lynn Hoffman at FBI’s [Office of Equal Employment
Opportunity Affair’s (“OEEOA”)] Office of Reasonable Accommodation.” Id. at 2250-51.
Rodney Yelder, a Program Manager at OEEOA, however, refused to adjudicate the
plaintiff’s request for a reasonable accommodation while she was still on workers’
compensation. Def.’s Mot., Ex. 20, at FBI 1583, ECF No. 25-24. On August 13, 2012, Yelder
informed the plaintiff that “[b]ased on the fact that [she was] currently on worker’s comp. with
no work return date, a reasonable accommodation determination c[ould not] be made on [her]
case at th[at] time.” Id. On August 17, Yelder also told Huff that he would explain to the
plaintiff that an individual would have to meet the requirements of “[Huff’s] program” before
OEEOA could “provide a reasonable accommodation” and that “[i]t is not reasonable to provide
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an accommodation to an employee on workers comp to come back to work when the worker’s
comp unit’s requirements have not been met.” Def.’s Mot., Ex. 21, at FBI 2269, ECF No. 25-25.
On September 28, 2012, the plaintiff contacted Huff again, claiming that DOL’s Claims
Examiner in her case, Shanell Davis, would “approve” her request to “return to work 2 hours per
day, 5 days per week.” Def.’s Mot., Ex. 22, at FBI 2314-15, ECF No. 25-26. On October 5,
2012, however, Huff clarified in an email to David Wade, the Chief Medical Officer at the FBI,
that he spoke to a Supervisory Claims Examiner at DOL, Stephanie Stone, who told him that
Davis had, in fact, not approved the plaintiff’s request and instead had told the plaintiff “that
DOL does not approve 2 hour job offers as suitable.” Id. at 2313. Wade wrote to the plaintiff,
explaining that he had discovered that DOL had required the plaintiff to undergo a Second
Opinion Examination in May 2012. Pl.’s Opp’n, Ex. 18 at FBI 2330, ECF No. 31-18.
According to Wade, the Second Opinion Examiner concluded that the plaintiff could work six
hours per day. Id. at FBI 2330. Accordingly, because of the conflict between the plaintiff’s
attending physician and the second opinion examiner, a “third evaluation [was] needed to resolve
the conflicting opinions.” Id. The record is unclear whether a third medical evaluation was ever
scheduled and completed.
Six months later, on May 21, 2013, after the plaintiff’s workers’ compensation payments
had ceased, the FBI’s Reasonable Accommodations Committee (“RAC”) convened and
recommended a part-time schedule of 20 hours per week as a reasonable accommodation for the
plaintiff. Def.’s Mot., Ex. 2 at FBI 1462, ECF No. 25-6. The plaintiff first reported back to
work on at FBI Headquarters on May 20, 2013, accepting the RAC’s part-time schedule as
offered on May 24. Def.’s Ans. Pl.’s Am. Compl. (“Def.’s Ans.”) ¶ 71, ECF No. 16; Def.’s
Mot., Ex. 3 at FBI 1522.
8
Over the next several weeks, the plaintiff repeatedly requested permission to work from
an office closer to home, FAC ¶¶ 74-75, and on July 16, after a June 27 incident during a fire
drill where the plaintiff fainted and was taken to the FBI’s Health Services Unit, the FBI
determined that she was unable to meet work attendance requirements at FBI Headquarters, Id.
¶ 76; Def.’s Ans. ¶ 78. On August 21, 2013, the plaintiff began working in the Chantilly,
Virginia, office of the FBI Cyber Division, and by January 2014 her work was full-time. Def.’s
Ans. ¶ 80.
B. The 2012 Director’s Award and 2013 Attorney General’s Award
While the plaintiff was still on leave, some of her coworkers on the Sentinel project team
were selected as recipients of the 2012 Director’s Award for Outstanding Information
Management. FAC ¶ 55. Although the plaintiff alleges that she was on the initial list of
employees considered for the award, she did not receive it. Id. ¶¶ 55-57. Robert Blake, a
Special Assistant who managed the Sentinel project, Id. ¶ 34, selected the initial slate of
nominees from the Sentinel project for the award, see Def.’s Mot., Ex. 26, Sworn Statement of
Robert Blake, Special Assistant, Information Technology Management Division, FBI (“Blake
Statement”) at FBI 61-64, ECF No. 25-30. According to Blake, he did not nominate the plaintiff
for the 2012 Director’s Award because he did not feel that the plaintiff’s contribution to the team
was critical to the success of the project, noting that, in his view, the plaintiff was “mainly a
conduit for the flow of information between the team and one entity,” and “[s]he was not one of
the managers overseeing the details of the project or one of the designers or programmers who
created Sentinel.” Id. at 64. Moreover, Blake cited the fact that the plaintiff’s most recent
contribution to the team was in September 2011, nearly a year before the project was completed
in July 2012. Id. Moreover, Blake understood that “[g]roup nominations [for the award] are
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limited to 15 nominees.” Id. at 63. Jeffrey Johnson, the Assistant Director of the Information
Technology Management Division at the FBI, who made the final decision about nominees for
the award, agreed with Blake. See Def.’s Mot., Ex. 23 (“Blake Dep.”) at 30:14-15, ECF No. 25-
27, Ex. 27, Sworn Statement of Jeffrey C. Johnson, Assistant Director, Information Technology
Management Division, FBI (“Johnson Statement”), at FBI 58-59, ECF No. 25-31. Shortly
before filing this action, in October 2014, the plaintiff also learned that a group of her co-workers
had received another award, the 2013 Attorney General’s Award for Excellence in Information
Technology (“AG’s Award”). FAC ¶ 66.
C. Procedural History
Beginning as early as February 2012, when the plaintiff requested informal counseling
when her first request to return to work was denied, and continuing until she filed this action, the
plaintiff had several interactions with the FBI’s OEEOA. FAC ¶¶ 11-16. On April 13, 2012, she
filed her first formal EEO complaint, id. ¶ 37, alleging discrimination and retaliation because of
the FBI’s denial of her request to return to work for two hours per day, see Def.’s Mot., Decl. of
Jessika Rovell, Supervisory Attorney-Advisor, Unit Chief, Complaint’s Processing Unit,
OEEOA, FBI (“Rovell Decl.”), at ¶ 4, ECF No. 25-4. On October 25, 2012, the plaintiff filed
her second EEO complaint, alleging discrimination as well as retaliation for prior EEO activity
when she became aware that she did not receive the 2012 Director’s Award. Id. ¶ 5. The FBI
completed two Reports of Investigations, which were received by the plaintiff on September 13,
2012 and April 11, 2013, respectively. FAC ¶ 11; see also Def.’s Reply Supp. Mot. Summ. J. &
Mot. Dismiss (“Def.’s Reply”), Ex. 44 (excerpts of the second administrative Report of
Investigation), ECF No. 38-9. She subsequently withdrew her hearing requests on July 31, 2014,
FAC ¶ 13, and her cases were dismissed, Rovell Decl. ¶¶ 6-7.
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Following the OEEOA’s final action of dismissal for both matters, the plaintiff, on
August 28, 2014, filed the instant lawsuit, alleging claims of failure to provide a reasonable
accommodation, disparate treatment because of a disability, and a claim of retaliation because of
protected activity, see FAC ¶ 4, and an amended complaint in March 2015, to add a third claim
of retaliation based on her exclusion, in the Fall of 2014, from the nominee list for the 2013
Attorney General’s Award, see Pl.’s Opp’n at 44; FAC ¶ 137. Initially, the Court issued a
Scheduling Order closing discovery by October 9, 2015. See Minute Order, June 8, 2015. After
two extensions were granted, discovery closed on April 8, 2016. Minute Order, December 29,
2015. Two months later, on June 20, 2016, the defendant filed the instant motion.
II. LEGAL STANDARDS
A. Motion for Summary Judgment
Federal Rule of Civil Procedure Rule 56 provides that summary judgment shall be
granted “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). The moving party
bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute,
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present
specific facts supported by materials in the record that would be admissible at trial and that could
enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty
Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting
that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed, ‘a
reasonable jury could return a verdict for the nonmoving party’” (quoting Liberty Lobby, 477
U.S. at 248)).
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"Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science." Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that "courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment," Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (per curiam), and "[t]he evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor," id. at 1863 (quoting Liberty Lobby,
477 U.S. at 255 (alteration in original)). Courts must avoid making "credibility determinations
or weigh[ing] the evidence," since "[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (internal quotation
marks omitted); see also Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290, 295-96 (D.C. Cir.
2015). In addition, for a factual dispute to be "genuine," the nonmoving party must establish
more than "[t]he mere existence of a scintilla of evidence in support of [its] position," Liberty
Lobby, 477 U.S. at 252, and cannot rely on "mere allegations" or conclusory statements, see
Equal Rights Ctr. v. Post Props, Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011); Veitch v.
England, 471 F.3d 124, 134 (D.C. Cir. 2006). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50
(citations omitted). Moreover, “a complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v.
Catrett, 477 U.S. at 323. In that situation, “[t]he moving party is ‘entitled to a judgment as a
matter of law’ because the nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has the burden of proof.” Id. The Court
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is only required to consider the materials explicitly cited by the parties, but may on its own
accord consider "other materials in the record." FED. R. CIV. P. 56(c)(3).
B. Rule 12(b)(1)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of demonstrating the court's subject-matter jurisdiction over his claim.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited
jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v.
Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our
authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have
“an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for
us to hear each dispute,’” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C.
Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent
subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546
U.S. 500, 506–07 (2006); FED. R. CIV. P. 12(h)(3).
When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “‘construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005)). When necessary, the court may “‘undertake an independent investigation to
assure itself of its own subject matter jurisdiction,’” Settles v. U.S. Parole Comm'n, 429 F.3d
1098, 1107 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987)),
13
and consider facts developed in the record beyond the complaint, id.; see also Herbert v. Nat'l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992) (in disposing of motion to dismiss for lack of
subject matter jurisdiction, “where necessary, the court may consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts”). To do so, “the district court may
consider materials outside the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005); see also Belhas v. Ya'alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008)
(examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction); Coal. for Underground Expansion v. Mineta, 333 F.3d 193,
198 (D.C. Cir. 2003) (noting that courts may consider materials outside the pleadings in ruling
on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
III. DISCUSSION
The plaintiff asserts three claims: in Count I, she claims failure to accommodate, in
violation of the Rehabilitation Act, FAC ¶¶ 81-100; in Count II, she alleges disparate treatment
based on the defendant’s refusal to allow her to return to work on a reduced schedule of two
hours per day, id. ¶¶ 101-13; and in Count III, she alleges retaliation stemming from the FBI not
considering her for awards in 2012 and 2013, id. ¶¶ 114-40. Each of the plaintiff’s claims is
considered seriatim below.
A. Count I: Failure to Accommodate
The plaintiff alleges that the FBI violated the Rehabilitation Act by failing to provide a
reasonable accommodation for her disability. The defendant responds by primarily arguing that
the plaintiff could not have performed the essential functions of her position with or without the
reasonable accommodations requested by the plaintiff. Moreover, the defendant also notes that
14
the FBI could not have provided a reasonable accommodation for the plaintiff until she returned
to work, and “[t]he reason Plaintiff did not return to work sooner is because the Department of
Labor would not approve a two-hour per day work schedule,” and the “Plaintiff had not
confirmed the job duties she would perform upon her return.” Def.’s Statement of Undisputed
Material Facts (“Def.’s SUMF”) ¶ 30, ECF No. 25 (citing Def.’s Mot., Ex. 14 at FBI 1671, Ex.
15 at FBI 2206-07, Ex. 16 at FBI 1741, Ex. 17 at FBI 1795, Ex. 18 at FBI 1838, Ex. 19 at FBI
2250-51, Ex. 20 at FBI 1583, Ex. 21 at FBI 2269, Ex. 22 at FBI 2313). The legal standard for a
failure to accommodate claim is discussed first, before turning to an assessment of the plaintiff’s
claim.
1. Legal Standard
The Rehabilitation Act prohibits federal agencies from discriminating against disabled
individuals and also requires agencies to “mak[e] reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that the accommodation would
impose an undue hardship.” Adams v. Rice, 531 F.3d 936, 942–43 (D.C. Cir. 2008) (quoting 42
U.S.C. § 12112(b)(5)(A)) (alterations in original); see also Taylor v. Rice, 451 F.3d 898, 905
(D.C. Cir. 2006); Klute v. Shinseki, 840 F. Supp. 2d 209, 215 (D.D.C. 2012) (quoting Nurriddin
v. Bolden, 674 F. Supp. 2d 64, 82 (D.D.C. 2009)). To determine an appropriate reasonable
accommodation, the agency should “initiate an informal, interactive process with the qualified
individual with a disability in need of accommodation.” 29 C.F.R. § 1630.2(o)(3). “‘[A]n
employer is not required to provide an employee that accommodation [s]he requests or prefers,
the employer need only provide some reasonable accommodation.’” Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc)).
15
To survive summary judgment on a failure to accommodate claim, a plaintiff must “come
forward with sufficient evidence to allow a reasonable jury to conclude that” she meets four
elements: “(i) she was disabled within the meaning of the Rehabilitation Act; (ii) her employer
had notice of her disability; (iii) she was able to perform the essential functions of her job with or
without reasonable accommodation; and (iv) her employer denied her request for a reasonable
accommodation of that disability.” Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014) (internal
citations omitted); Doak v. Johnson, 798 F.3d 1096, 1105 (D.C. Cir. 2015); Smith v. Lynch, 106
F. Supp. 3d 20, 39 (D.D.C. 2015).
2. Analysis
The record is undisputed the plaintiff was disabled during the pertinent time period and
that the FBI had notice of her disability, thereby establishing the first two elements of a prima
facie case for her failure to accommodate claim. See Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s
Mem.”) at 11, ECF No. 25. The defendant does dispute, however, that the plaintiff could have
performed the “essential functions of her job with or without reasonable accommodation.” See
generally id. at 11-28.
“The term essential functions means the fundamental job duties of the employment
position the individual with a disability holds or desires;” it “does not include the marginal
functions of the position.” 29 C.F.R. § 1630.2(n). “Evidence of whether a particular function is
essential includes” several aspects: “(i) The employer’s judgment as to which functions are
essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for
the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences
of not requiring the incumbent to perform the function;” as well as “[t]he terms of a collective
bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The
current work experience of incumbents in similar jobs.” 29 C.F.R. § 1630.2(n)(3).
16
In this case, the defendant has presented essentially unrebutted evidence that the plaintiff
would not be able to fulfill the essential functions of the position by only working two hours per
day. The plaintiff concedes as much, testifying that “I’m not saying that I would have been able
to do all of the work in a two-hour in-office schedule, but I would have been able to perform any
and all duties that I performed on any given project during those two hours.” Pl.’s Dep. at
103:16-20. In particular, two “essential functions” of the plaintiff’s position stand out. First, the
volume of work associated with the plaintiff’s job duties required that she work essentially full
time. See Def.’s Mem. at 14-15. The plaintiff testified that she was required to work at least an
eight-hour per day schedule, Pl.’s Dep. at 122:24-123:3, and that she often worked for nine or ten
hours per day, id. at 25:2-4, 29:22-30:6, 31:9-13; see also Def.’s Mot., Ex. 5, Pl.’s Ans. Def.’s
First Interrogatories, at 7, ECF No. 25-9 (“I worked full time for Sentinel . . . and I often put in
nine or even ten-hour days.”).
A second essential function of the plaintiff’s job was her ability to participate in
“impromptu” meetings, which often involved classified information requiring that she be present
in person. The plaintiff concedes that meetings were an “important part” of her job, see Pl.’s
Dep. at 59:11-17, and that she was constantly involved in meetings as an important part of her
job, see id. at 36:15-18, 45:9-10 (“we would have impromptu meetings”), 46:23-47:2. The
plaintiff also explained that her permanent position in the PMU required a commitment to “work
collaboratively with the team,” and that “[e]verything PMU does is time sensitive and is driven
by external and internal deadlines,” and that her colleagues “meet a lot.” Id. at 95:1-7, 96:20-
97:11, 117:18-25.
Given the full-time and meeting-heavy nature of the plaintiff’s position, which required
her in-person presence due to classified information, a maximum two-hours-per-day work
17
schedule does not appear to be enough time to satisfy just the meeting requirements of the job, let
alone any of the plaintiff’s other responsibilities. Indeed, the plaintiff admits that just one
“formal meeting,” which frequently occurred, would itself last from one to two hours, id. at
53:18-23, and she concedes she “would not be able to attend all the meetings while [she] was in
the office for just two hours,” id. at 106:4-10. The only rebuttal offered by the plaintiff is to
suggest that, for meetings outside her proposed two-hour work window, she could “dial into
those meetings.” Id. at 106:10-16; Pl.’s Opp’n at 23-24. Yet, the plaintiff does not dispute that
this solution would not have been viable for classified meetings, Pl.’s Dep. at 106:10-15,
including “system security meetings,” which she describes as “impromptu” and occurring
“forever, constantly, and continuously,” id. at 47:19-48:20.
Thus, the plaintiff effectively admits she could not perform the essential functions of her
position by working only two hours per day. Nevertheless, the plaintiff argues the defendant
erred by “analyzing whether [the plaintiff] could do the essential functions of her job before she
obtained the accommodations,” namely working two hours per day, and asserts that “[o]nce she
was given a chance to build up her strength, she would be able to handle more projects, [and] go
to more meetings.” Pl.’s Opp’n at 18-19 (emphasis omitted). In other words, the plaintiff
appears to argue that she sought to return to work “gradually,” and eventually, at some point, the
plaintiff would have been able to perform the essential functions of her position. See, e.g., FAC
¶ 2; Pl.’s Opp’n at 2, 9, 18 (explaining that she could eventually return to full-time work “[o]nce
she was given a chance to build up her strength” and that “Plaintiff was only seeking a two-hour
day schedule as a stepping stone to a full return to work.”).
The plaintiff’s argument is not persuasive for at least two reasons. First, as the defendant
points out, by asserting that she would slowly and gradually be able to perform the functions of
18
her job, “[o]nce she was given a chance to build up her strength,” the plaintiff admits she could
not perform the essential functions of her job at the time she requested the accommodation. See
Def.’s Reply at 3, ECF No. 38.
Second, and relatedly, the law is clear that a plaintiff alleging a failure to accommodate a
disability “must establish her ability to perform” the essential functions of her job “at the time
the employer denied her request for accommodation.” Minter v. District of Columbia, 809 F.3d
66, 70 (D.C. Cir. 2015); see also Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir.
2013) (concluding that a plaintiff’s “ability to come to work, or to otherwise perform the
essential functions of her job, is examined as of the time of the adverse employment decision at
issue”); Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003) (holding that a plaintiff was not
qualified where he could not perform essential functions in the “present or in the immediate
future”); 29 C.F.R. § 1630.2(m) app. (EEOC Interp. Guidance) (“The determination of whether
an individual with a disability is qualified . . . should be based on the capabilities of the
individual . . . at the time of the employment decision.”)). Thus, as much as the plaintiff would
have liked to use a two-hour work day as a “stepping stone” to return gradually to full-time
work, this simply does not meet the requirement of being able to perform the essential functions
at the time of the requested accommodation, rather than at some later date. The Rehabilitation
Act’s provisions “contain no reference to an individual’s future ability to perform the essential
functions of his position.” Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995). “To the contrary,
they are formulated entirely in the present tense, framing the precise issue as whether an
individual ‘can’ (not ‘will be able to’) perform the job with reasonable accommodation.” Id.; see
42 U.S.C. § 12111(8) (stating that a reasonable accommodation claim adheres where, “with or
19
without reasonable accommodation,” a plaintiff “can perform the essential functions of the
employment position that such individual holds or desires” (emphasis added)).
Simply put, an agency is not legally bound by the Rehabilitation Act to provide any
injured employee the opportunity to work a two-hour per day schedule, on an indefinite basis, on
the chance that the employee might, at some point, gradually improve and be able to perform her
position’s essential job functions. The law does not reach so far. As they make clear, the
plaintiff never gave a timeframe for when she might be able to work at least four hours per day,
making it difficult for her to work a consistent and predictable work schedule. See Frazier-White
v. Gee, 818 F.3d 1249, 1256 (11th Cir. 2016) (where the “Plaintiff did not suggest a time frame
for when she would be able to resume her full-duty position, and she later admitted . . . that she
did not know how much time she needed or whether any amount of time would be sufficient,”
the “Plaintiff’s request for an indefinite extension of light-duty status was unreasonable as a
matter of law.”); Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir. 1999)
(holding that “[t]he fact that [the plaintiff] continued to heal, gain strength and . . . once again
becom[e] a qualified individual who could perform the essential functions of the job, does not
obviate the fact that she was not a qualified individual at the time” of termination); Gantt v.
Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (“Reasonable accommodation
does not require the employer to wait indefinitely for an employee’s medical condition to be
corrected.”).
The D.C. Circuit’s recent decision in Doak v. Johnson is illustrative of this point. In
Doak, the D.C. Circuit affirmed the grant of summary judgment to an agency that rejected an
injured plaintiff’s request to telecommute, with a two-hour start and end time “for a month or
two.” Doak, 798 F.3d at 1101. After denying this request, the agency subsequently terminated
20
the plaintiff for her inability to perform the essential functions of her job. Id. at 1101-02. The
Circuit explained that “even with her desired schedule accommodation, [the plaintiff] would
have been unable to perform an essential function of her job: being present in the office to
participate in interactive, on-site meetings during normal business hours and on a regular basis.”
Id. at 1105. Both the Doak plaintiff and the plaintiff here had positions that required
“[s]pontaneous meetings with various personnel” that “occur[ed] frequently” and “the pace of
work could sometimes be too fast for anything other than on-site presence.” Id. at 1106 (internal
quotation marks omitted). Like the Doak plaintiff, the plaintiff in the instant case had to “be
present for interactive meetings during normal business hours” and the accommodations
requested “would not have enabled her to perform that function.” Doak, 798 F.3d at 1106-07;
see also Minter, 809 F.3d at 69-70 (holding that a claim for failure to accommodate could only
be made by one who is a qualified individual, i.e. able to perform the job’s essential functions);
Carr v. Reno, 23 F.3d 525, 529–530 (D.C. Cir. 1994) (holding that an employer was entitled to
summary judgment where a plaintiff’s position required physical presence to pick up and code
papers daily and her requested accommodation would not have enabled her to perform that
function); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238 (9th Cir. 2012)
(holding that an employer was entitled to summary judgment where on-site attendance was an
essential function for a nurse and the plaintiff’s requested schedule would not have enabled her
to perform that function sufficiently).
The plaintiff attempts to distinguish Doak on its facts, noting that the Doak plaintiff had
“frequent unscheduled absences,” which “prevented her from participating in program meetings
and other work group collaboration.” Pl.’s Opp’n at 19 (quoting Doak, 798 F.3d at 1106
(alterations adopted)). According to the plaintiff, the accommodations she requested “would
21
have permitted her to perform her job consistently.” Id. This claim, however, lacks any
evidentiary foundation and is contradicted by her own deposition testimony in which she
confirmed that her team met frequently, that meetings were often “impromptu,” and that they
were an important part of her job. Pl.’s Dep. at 36:15-18, 45:9-10, 46:23-47:2, 59:11-17, 95:1-7,
96:20-97:11, 117:18-25. See Doak, 798 F.3d at 1106 (noting the plaintiff’s claim that a late start
time “would not have interfered with [her] ability to do [her] job” was “devoid of any detail,
explanation, or evidentiary corroboration” and was “contradict[ed by] [the plaintiff’s] own
deposition testimony, in which she confirmed that . . . her job involved interactive meetings”).
At bottom, the plaintiff’s unsupported statements that she could perform the essential
functions of her job with her requested accommodations “is insufficient to create a jury issue in
light of overwhelming and undisputed evidence that included her own prior sworn testimony.”
Id. at 1107. Accordingly, the defendant is entitled to summary judgment as to the plaintiff’s
claim for failure to accommodate under the Rehabilitation Act.
B. Counts II and III: Disparate Treatment and Retaliation
The plaintiff makes three additional claims in Counts II and III of the FAC. First, the
plaintiff alleges the defendant discriminated against her because of her disability by refusing to
allow her back to work. See generally FAC ¶¶ 101-13 Second, the plaintiff argues she was
retaliated against for her EEO complaints because she was not included among the fifteen
nominees for the 2012 Director’s Award for Outstanding Information Management, id. ¶¶ 114-
36, or among the nominees for the 2013 Attorney General’s Award for Excellence in
Information Technology, id. ¶ 137.
These claims fail, however, because the plaintiff has not shown that the defendant’s
proffered non-discriminatory reasons for not allowing her back to work and not nominating her
22
for the 2012 Director’s Award are even remotely pretextual. Further, the plaintiff cannot sustain
her retaliation claim for not receiving the 2013 Attorney General’s Award since that allegation
was not administratively exhausted. Each claim is assessed in turn.
1. FBI’s Refusal to Allow the Plaintiff to Return to Work
The plaintiff argues the “FBI refused to allow [her] to work because she became
disabled.” FAC ¶ 102. Courts analyze such “disability discrimination claims under the
McDonnell Douglas burden-shifting framework.” Doak v. Johnson, 19 F. Supp. 3d 259, 271
(D.D.C. 2014) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d at 1288-89). Under the burden-shifting
framework, the plaintiff must establish a “‘prima facie case of discrimination by a preponderance
of the evidence. If the plaintiff establishes a prima facie case, the employer must then articulate
a legitimate, non-discriminatory reason for its actions. The plaintiff must then demonstrate that
the employer’s stated reason was pretextual and that the true reason was discriminatory.’” Id.
(quoting Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003)). “A plaintiff can establish a
prima facie case by showing that ‘(1) she is a member of a protected class; (2) she suffered an
adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.’” Id. (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.
2002)).
In Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008), the D.C.
Circuit clarified that, at the summary judgment stage, “the question whether the employee made
out a prima facie case is almost always irrelevant.” Instead, “the district court must resolve one
central question: Has the employee produced sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the employee on the basis of [a protected
characteristic].” Id. at 494.
23
The defendant has provided two legitimate, non-discriminatory reasons for refusing to
allow the plaintiff to return to work on a two-hour-per-day work schedule, and the plaintiff has
not produced any, let alone sufficient, evidence for a reasonable jury to find that these were not
the actual reasons for the FBI’s decision. Id.
First, the plaintiff’s requested accommodation of a two-hour-per-day work schedule
amounted to less than sixteen hours per week and was against FBI policy at the time. See Def.’s
Mot., Ex. 8 at 1126-30, ECF No. 25-12 (FBI Policies on Part-Time Work); see also id., Ex. 7 at
FBI 3924, ECF No. 25-11 (FBI Work Schedule Policy Implementation Guide). Moreover, as
discussed above, the defendant has established that the plaintiff could not perform the essential
functions of her position with her proposed two-hour-per-day work schedule. See supra Part
III(A)(2). Indeed, the plaintiff admits that she could not have initially performed the essential
functions of her position on this schedule. Pl.’s Opp’n at 18-19. As she effectively concedes she
could not initially perform the essential functions of her position, the plaintiff has failed to
“respond with sufficient evidence to create a genuine dispute on th[is] . . . issue . . . by
showing . . . that a discriminatory reason more likely motivated the employer . . . [or] that the
employer’s proffered explanation is unworthy of credence.” Doak, 798 F.3d at 1107 (internal
quotation marks omitted). Indeed, the fact that the plaintiff was receiving, and continued to
receive for months after her requested accommodation, workers’ compensation payments only
underscores the fact that, at the time, the plaintiff was not prepared to perform the essential
functions of her position. See Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 19-20 (1st Cir.
1998) (“[I]f an ADA plaintiff was receiving . . . disability benefits that were predicated on her
inability to perform the job, then, to defeat a motion for summary judgment, she must make
some type of showing that she was in fact able to perform the essential functions of her job
24
during the time in question.”) (citing Weigel v. Target Stores, 122 F.3d 461, 468 (7th Cir. 1997))
(emphasis in original).
Second, even if the FBI wanted to accommodate the plaintiff, at the time she made the
requested accommodation, the plaintiff was receiving FECA workers’ compensation benefits for
a disability and those benefits would have to stop. See Def.’s Mot., Ex. 14 at FBI 1671; 5 U.S.C.
§ 8116(a) (federal employees may not receive compensation while receiving FECA benefits).
Thus, the FBI concluded that the only option available to the plaintiff was obtaining an AWA
facilitated by the FBI’s WCU and approved by DOL. See Pl.’s Opp’n at 4; Def.’s Mot., Ex. 14
at FBI 1671; id., Ex. 20 at FBI 1583, Ex. 21 at FBI 2269. Yet, an AWA was not viable. 5 DOL
would not approve a two-hour-per-day work schedule. Def.’s Mot., Ex. 22 at FBI 2313; Def.’s
Reply, Ex. 37 at FBI 3704, ECF No. 38-2; Def.’s Reply, Ex. 38 at FBI 1338, ECF No. 38-3 (fax
from DOL indicating that the claims examiner told the plaintiff that “a 2 hour a day job would
not be deemed suitable”). 6 Further, the plaintiff never confirmed the duties she would be able to
5
The plaintiff seizes on comments by Schlendorf made in response the plaintiff’s May 18, 2012 email
informing him that she was cleared by her doctor to work 2 hours a day on a “gradual limited schedule.” Pl.’s
Opp’n at 12-13; see Def.’s Mot., Ex. 10 at FBI 2218, ECF No. 25-14. Schlendorf replied: “That is great news and
we look forward to getting you back on the team.” Def.’s Mot., Ex. 10 at FBI 2218. Schlendorf also indicated that
they hoped to “scope out a meaningful role that meets the requirements you notes [sic].” Id. Although the plaintiff
makes much of these statements, the mere comment by one supervisor that the plaintiff could play a “meaningful
role” by working limited hours does not indicate that the plaintiff’s proposed accommodations were reasonable or
that plaintiff could perform her essential job functions by working only two hours per day. Essential job functions
are the “fundamental job duties” of an employee’s position, and they include all but the “marginal functions” of a
job. 29 C.F.R. § 1630.2(n)(1). A “meaningful role” does not imply that plaintiff could perform her “essential job
functions.” In any event, the next day, Schlendorf clarified his comments, stating that the plaintiff “should focus on
her recovery, and when she reaches a point where she is medically cleared to work 4 hours a day, RPO w[ould] be
happy to work with her on the [Alternative Work Assignment.]” Def.’s Reply, Ex. 36 at FBI 2219.
6
The plaintiff claims that the “FECA Manual now describes the minimum hours for a suitable job as 2-hours
per day.” Pl.’s Opp’n at 34. Assuming that is true, that has nothing to do with the instant case. At the time the
plaintiff was seeking an AWA, DOL refused to authorize a 2-hour per day job offer, a fact that the plaintiff does not
dispute. Def.’s Mot., Ex. 22 at FBI 2313 (Huff explaining that he spoke to Stephanie Stone, a Supervisory Claims
Examiner at DOL, who informed him that DOL does not approve 2-hour job offers as “suitable”). In her Sur-Reply,
the plaintiff disputes only whether she was told that DOL did not deem a two-hour per day job suitable. See Pl.’s
Sur-Reply at 11-12, ECF No. 42; Pl.’s Dep. at 121-22 (plaintiff stating that she did not recall being told by a claims
examiner that a “two-hour-a-day job would not be deemed suitable.”). Whether DOL or the FBI so advised the
plaintiff is immaterial given the undisputed documentary evidence that DOL’s Supervisory Claims Examiner
communicated to the defendant that a two-hour per day job would not be suitable. Def.’s Mot., Ex. 22 at FBI 2313.
25
perform as required. See Def.’s Mot., Ex. 15 at FBI 2205-07 (exchanges between Stoddard,
Schlendorf, and the plaintiff showing that the plaintiff had not “confirmed that the work duties
were okay and appropriate for her medical circumstances”). As Huff confirmed, in order to
write an AWA job offer, he had to have a “list of duties that [the plaintiff would] be performing.”
Def.’s Mot., Ex. 19 at FBI 2250. According to Huff, however, the plaintiff could not commit to
performing any specific job duties as she did not feel comfortable “trying to make deadlines with
her work.” Id. at 2250-51.
Nevertheless, the plaintiff contends that the decision to deny the plaintiff’s request to
work two hours per day was “suspect” because the FBI could have used the “help.” Pl.’s Opp’n
at 35. The plaintiff misses the point. Regardless of whether the FBI could have used her “help,”
they could not offer an opportunity for her to work two hours a day because it was, at the time, in
violation of FBI and DOL policies.
Moreover, the plaintiff’s supervisors all appear to have expressed serious concern about
the plaintiff’s health and well-being. Huff told the plaintiff that all of her supervisors concluded
that the plaintiff “need[ed] to concentrate on recovery efforts regarding [her] medical condition”
and all “agreed that [the plaintiff] need[ed] to continue [her] recovery program and the most
important issue [was her] long term health and well being.” Def.’s Mot., Ex. 18 at FBI 1836.
Huff added that “[c]oming back to work at this point could jeopardize all the hard work and
positive gains [she] ha[d] made thus far.” Id. Moreover, Huff resisted submitting an AWA for
the plaintiff, in part, due to concern that because of her “bad days,” she would not be able to
comply with an AWA’s terms. Id. As noted, having “bad days” could have made it difficult for
the plaintiff to maintain a consistent and predictable work schedule. Huff believed this could
26
have led to a “denial of benefits.” Id. Thus, if anything, her supervisors appear to have been
looking out for the plaintiff’s interests, rather than acting out any discriminatory animus.
The defendant has more than sufficiently supported its case that the plaintiff could not
perform the essential functions of her job in 2012 and early 2013, and that her requested
accommodation of a two-hour-per-day work schedule was contrary to FBI and DOL policies
barring such limited hours and the grant of a “reasonable accommodation” to a person being
compensated under FECA. In short, the plaintiff has presented no evidence suggesting that the
FBI’s “asserted non-discriminatory reason[s] w[ere] not the actual reason[s] and that the [FBI]
intentionally discriminated against the [plaintiff] on the basis of [her disability].” Brady v. Office
of Sergeant at Arms, 520 F.3d at 494. Accordingly, the defendant’s motion for summary
judgment is granted on Count II.
2. Defendant’s Failure to Award the 2012 Director’s Award
The plaintiff claims in Count III that she was retaliated against, after complaining to the
OEEOA about the denial of her two-hour-per-day work schedule, when she was not included as
a nominee for the non-monetary 2012 Director’s Award. FAC ¶¶ 114-36. The defendant
responds that the plaintiff has not adequately rebutted the defendant’s proffered legitimate, non-
discriminatory reason for denying her the award. 7 The Court agrees with the defendant.
7
The defendant also argues that that the denial of the award was not an “adverse employment action” in the
context of a prima facie retaliation claim under the Rehabilitation Act, Def.’s Mem. at 31-34, but this argument is
not persuasive. While the D.C. Circuit has held that "not everything that makes an employee unhappy is an
actionable adverse action," Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013), "[i]n the retaliation context
the 'adverse action' concept has a broader meaning,” and "reach[es] any harm that 'well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.'" Baird v. Gotbaum, 662 F.3d 1246, 1249
(D.C. Cir. 2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The defendant does
not dispute that the Director's Award is "among the highest honors employees may receive from the FBI." Compare
FAC ¶ 55 with Def.’s Ans. ¶ 55. Thus, a reasonable employee could find that their removal from a list of nominees
for the award, denying them the prestige of the award itself as well as the recognition from their peers and
supervisors at the awards ceremony, would "dissuade" them from "making or supporting a charge" of discrimination
or retaliation, or from requesting a disability accommodation. Baird, 662 F.3d at 1249. The Court assumes
therefore, without resolving, that the plaintiff's exclusion from the list of nominees for the 2012 Director's Award
constitutes an "adverse employment action" for the purposes of her retaliation claim.
27
The plaintiff has again “failed to cast any reasonable doubt on, or create any disputed
question of material fact concerning,” her protected activities or her employer’s “asserted non-
retaliatory reason for” denying her the award. Doak, 798 F.3d at 1108. Blake explained that he
did not nominate the plaintiff for the 2012 Director’s Award because he did not feel her
contribution to Sentinel was critical to the success of the project because she was “mainly a
conduit for the flow of information between the team and one entity” and “[s]he was not one of
the managers overseeing the details of the project or one of the designers or programmers who
created Sentinel.” Blake Statement at FBI 64. Johnson, who made the final decision regarding
the nominees, “emphasize[d] that hundreds of people contributed to the success of Sentinel” and
that while the plaintiff “was certainly one of those contributors,” Johnson felt “her contributions
to the success of Sentinel were far exceeded by the 15 nominated for the Director’s Award.”
Johnson Statement at FBI 58-59.
The plaintiff’s efforts to raise a disputed fact regarding these non-pretextual reasons for
the denial to her of the 2012 Director’s Award fall flat. First, she contends that all of the
members of the Sentinel team received the award, and so did “every member of the Sentinel
team who worked to [sic] the transition.” Pl.’s Opp’n at 38. As the defendant notes, however,
the plaintiff supports this statement only by reference to the FAC. See Def.’s Reply at 21.
Contrary to the plaintiff’s contention that more than fifteen individuals could have been
nominated, Pl.’s Opp’n at 40, Blake understood that only fifteen people could be nominated for
the award, see Blake Dep. at 26:15, an understanding corroborated by the plain terms of the
award guidelines expressly limiting the number for group nominations to fifteen “significantly
contributing individuals,” Def.’s Mot., Ex. 25 (Director’s Award Guidelines), ECF No. 25-29;
see also Johnson Statement at FBI 58 (“Only 15 people can be included when nominating a
28
group for the Director’s Award . . . .”); Def.’s Reply, Ex. 43, Sworn Statement of Amy Waye,
Unit Chief in the Awards and Recognition Unit, at FBI 69, ECF No. 38-8 (explaining that “group
awards are limited to 15 employees, as specified in the Director’s Award Nomination
Guidelines”). Consequently, many members of the Sentinel team did not receive the award.
Compare Def.’s Reply, Ex. 40 at FBI 532-35, ECF No. 38-5 (Sentinel project organizational
chart) with id., Ex. 41 at FBI 567-71, ECF No. 38-6 (list of recipients of the 2012 Director’s
Award); see also Johnson Statement at FBI 57 (stating that the Sentinel team who worked on the
project from October 2010 through July 2012 was comprised of “approximately 50 people”).
Next, the plaintiff compares herself to two members of the Sentinel team who did receive
the award and claims that she performed similar work. Pl.’s Opp’n at 39 (claiming her work was
similar to award recipients Debra McDougal and Tiffany Martin). At the outset, the plaintiff
does not dispute that these two individuals deserved the award for their significant contributions
to the project. See Pl.’s Dep. at 140-41. According to Blake, McDougal “knew every facet of
the operation,” and “her knowledge and her input was critical to the success of Sentinel,” Blake
Dep. at 51:20-22, 52:1-3, and Martin was not only a liaison, but also assisted with training, and
provided value because of her experience of being from a “large office,” id. at 56:15-22, 57:1-13.
By contrast to these individuals, the plaintiff was away from work on disability for all of 2012
and, consequently, has simply not shown that any similarly situated employees received the
award.
Finally, the plaintiff asserts that she was included on the February 2012 nominee list but
omitted on the May 2012 list. Pl.’s Opp’n at 37-38. The plaintiff stopped working on the
Sentinel project in September 2011, but admits that the most important parts of a development
project occur near the end as it is readying deployment. See Pl.’s Dep. at 134. In this case, the
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Sentinel project was delivered and adopted in July 2012, see Johnson Statement at FBI 57, and,
thus, it makes sense that by mid-2012, the decision makers may have reassessed who among the
team had made the most significant contributions to get the project over the finish line to
completion, see Blake Dep. at 29:17-30:10, 37:13-17 (Blake stating that they reviewed the
individuals who “had a larger impact toward the successful deployment of Sentinel”); id. at
76:18-77:17 (stating that a number of other individuals “fell off” the nominee list because others
“had done more of the heavy lifting to get Sentinel to a state of delivery and success”).
The plaintiff may feel strongly that she should have been nominated for the Director’s
award in lieu of others who also contributed to the Sentinel project. See Pl.’s Dep. at 131:2-3
(plaintiff testifying that it “doesn’t make sense” that she was not nominated). Absent evidence of
pretext, however, the law does not permit a plaintiff to redirect her hurt feelings or wounded
pride about not being nominated for an award into a cognizable federal claim for retaliation. In
this case, the defendant has provided substantial reasons for why the plaintiff was not included
on the May 2012 list of nominees for the 2012 Director’s Award. As much as the plaintiff may
feel this decision was incorrect, she has failed to supply evidence that would persuade a
reasonable jury that the reasons given for the decision are pretextual. See Morris v. McCarthy,
825 F.3d 658, 671 (D.C. Cir. 2016) (A “plaintiff cannot survive summary judgment merely by
asserting that her employer made a bad decision. Rather, she must raise a genuine dispute over
the employer’s honest belief in its proffered explanation.”); see also Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (stating that “[o]nce the employer has articulated a
non-discriminatory explanation for its action . . . the issue is not ‘the correctness or desirability
of [the] reasons offered . . . [but] whether the employer honestly believes in the reasons it offers”
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(alterations in original)). The plaintiff’s subjective feeling that it “didn’t make sense” that she
wasn’t nominated is simply not sufficient to defeat a motion for summary judgment.
In short, the “record makes clear that [the Director’s Awards] are discretionary” and the
FBI “declined to reward [the plaintiff’s] performance because, in management’s estimation, [the
plaintiff’s] performance did not merit reward.” Nurriddin v. Bolden, 818 F.3d 751, 761 (D.C.
Cir. 2016). “Without evidence that a similarly situated employee received special recognition
denied to [the plaintiff], or evidence [the defendant] is ‘lying about the underlying facts that
formed the predicate’ for their decision not to confer a performance award,” the Court “cannot
conclude that [the FBI’s] decision to withhold [her] discretionary award was discriminatory.” Id.
(quoting Brady v. Office of Sergeant at Arms, 520 F.3d at 495).
Accordingly, the defendant is entitled to summary judgement on Count III as to the 2012
Director’s Award.
3. Plaintiff’s Failure to Exhaust Administrative Remedies with Respect to
the 2013 AG’s Award
In the FAC, the plaintiff claims that her exclusion from the list of nominees for the 2013
Attorney General’s Award for Excellence in Information Technology was retaliatory. FAC
¶ 137. The defendant moves to dismiss this claim for lack of subject matter jurisdiction,
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, because the plaintiff has failed
to exhaust her administrative remedies. See Def.’s Mem. at 41-42. The defendant is correct.
A plaintiff may file a Rehabilitation Act action in federal court only after exhausting her
administrative remedies before the relevant federal agency for each allegedly discriminatory act.
See Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 34–35 (D.C. Cir. 2014) (citing
Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)). Under the Rehabilitation Act, a failure to
exhaust administrative remedies is a jurisdictional defect, requiring dismissal for lack of subject-
31
matter jurisdiction under Rule 12(b)(1), because there would not be “any reviewable final
administrative action at all.” Doak, 798 F.3d 1096, 1103-04 (D.C. Cir 2015); see Spinelli, 446
F.3d at 162 (remanding case since “[t]he district court also should have dismissed [the plaintiff's]
Rehabilitation Act claim for lack of jurisdiction on the ground that he failed to exhaust his
administrative remedy,” citing statutory language as “mandating administrative exhaustion”); see
also Barkley, 766 F.3d at 34-35 (noting Spinelli's holding “that a district court lacks jurisdiction
over a Rehabilitation Act claim if “there was no administrative complaint [filed] and thus no
final disposition of one.” (alteration in original)). Since exhaustion of Rehabilitation Act claims
is a jurisdictional requirement, the plaintiff has the burden to plead and prove it. See Spinelli v.
Goss, 446 F.3d at 162; Dick v. Holder, 80 F. Supp. 3d 103, 110 (D.D.C. 2015); Mahoney v.
Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011), aff’d, No. 12-5016, 2012 WL 3243983 (D.C.
Cir. Aug. 7, 2012); Ellison v. Napolitano, 901 F. Supp. 2d 118, 124 (D.D.C. 2012). “A plaintiff
fails to exhaust her administrative remedies when the complaint she files in federal court
includes a claim that was not raised in the administrative complaint.” Latson v. Holder, 82 F.
Supp. 3d 377, 384 (D.D.C. 2015) (quoting Mogenhan v. Shinseki, 630 F. Supp. 2d 56, 60
(D.D.C. 2009)). “This exhaustion requirement is not a ‘mere technicality,’ but ‘serves the
important purposes of giving the charged party notice of the claim and narrow[ing] the issues for
prompt adjudication and decision.’” Id. (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995); see also Singleton v. Potter, 402 F. Supp. 2d 12, 32 (D.D.C. 2005) (“[A]s the D.C.
Circuit has emphasized: ‘Allowing a complaint to encompass allegations outside the ambit of the
predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as
well as deprive the charged party of notice of the charge, as surely as would an initial failure to
32
file a timely EEOC charge.’” (quoting Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098
(D.C. Cir. 1997))).
The plaintiff’s second and last administrative complaint in October 2012 did not mention
the 2013 Attorney’s General’s Award. See Def.’s Mot., Ex. 30, Pl.’s October 2012 Admin.
Compl. at FBI 13-14, ECF No. 25-34. Indeed, the plaintiff does not even contend that her claim
was raised at the administrative level. See Pl.’s Opp’n at 44. Instead, the plaintiff requests that
this failure to exhaust be excused because the FBI is applying “an overly technical approach to
exhaustion requirements.” Id. In her view, her retaliation claims regarding both the Director’s
and Attorney General’s Awards “grew out of the same conduct” and “thus the claims are like and
reasonably related.” Id. (citing Faison v. Vance-Cooks, 896 F. Supp. 2d 37, 55-56 (D.D.C.
2012)) (internal quotation marks omitted). The plaintiff contends that her Director’s Award
complaint “had already given the agency a chance to act, and, thus, [her] Attorney General’s
Award claim should not be dismissed.” Id. (alterations adopted).
The D.C. Circuit has made clear, however, that “for a charge to be regarded as
‘reasonably related’ to a filed charge . . . it must [a]t a minimum . . . arise from the administrative
investigation that can reasonably be expected to follow the charge of discrimination.” Payne v.
Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010). “This connection is necessary to give the agency ‘an
opportunity to resolve [the] claim administratively before [the employee] file[s] her complaint in
district court.’” Id. (quoting Wiley v. Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007)). In this
case, however, the plaintiff did not learn that she was excluded from the 2013 Attorney
General’s Award until the Fall of 2014, see Pl.’s Opp’n at 44, and it was not included in her
initial October 28, 2014 complaint filed in this Court, but was only added in the March 23, 2015
FAC. Compare Pl.’s Compl., ¶¶ 103-12, ECF No. 1 with FAC ¶ 137. This was more than two
33
years after her second administrative complaint and more than a year after the investigation into
her administrative retaliation claim concluded. See Def.’s Reply, Ex. 44, ECF No. 38-9
(excerpts of the administrative Report of Investigation dated received on February 13, 2013).
Thus, as the defendant points out, Def.’s Reply at 28, “her claim concerning the retaliatory
conduct” regarding the 2013 Attorney General’s Award “could not possibly have arisen from the
administrative investigation” that concluded before she was even aware that she was excluded
from the 2013 award, Payne, 619 F.3d at 65. “This is necessarily so because the administrative
investigation of those complaints ended . . . well before” the fall of 2014. Id. Thus, the plaintiff
failed to exhaust her retaliation claim with respect to the 2013 Attorney General’s award. See
Latson, 82 F. Supp. 3d at 384 (“A plaintiff fails to exhaust her administrative remedies when the
complaint she files in federal court includes a claim that was not raised in the administrative
complaint.” (quoting Mogenhan, 630 F. Supp. 2d at 60); see also Marshall, 130 F.3d at 1098;
Howard Univ., 71 F.3d at 907. Accordingly, to the extent that the plaintiff’s retaliation claim in
Count III is predicated on allegations regarding the 2013 Attorney General’s Award, that claim is
dismissed.
IV. CONCLUSION
The plaintiff has not raised a genuine issue of material fact as to whether she could have
performed the “essential functions” of her position after her injury in September 2011 and until
her return to part-time work in 2013. Moreover, the plaintiff has not produced sufficient
evidence for a reasonable jury to find that the defendant’s proffered non-discriminatory reasons
for not allowing her to return were not the “actual reasons” and that the FBI intentionally
discriminated against her based on her disability. The plaintiff has also not shown that the
defendant did not have legitimate, non-discriminatory reasons for excluding her from the list of
34
nominees for the 2012 Director’s Award. Finally, because the plaintiff did not raise her
allegation regarding the 2013 Attorney General’s award in her administrative complaints, that
claim is unexhausted and must be dismissed. Accordingly, the defendant’s Motion to Dismiss
Digitally signed by Hon. Beryl A.
and for Summary Judgment is GRANTED. Howell, U.S. District Court Judge
DN: cn=Hon. Beryl A. Howell, U.S.
District Court Judge, o=U.S.
District Court for the District of
Date: March 30, 2017 Columbia, ou,
email=Howell_Chambers@dcd.u
scourts.gov, c=US
Date: 2017.03.30 11:18:40 -04'00'
__________________________
BERYL A. HOWELL
Chief Judge
35