Doe v. Gates ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE, )
)
Plaintiff, )
)
v. ) Civil Case No. 09-2349 (RJL)
)
ROBERT M. GATES, )
in his official capacity as )
Secretary of Defense, )
)
Defendant.
MEMORANDUz,l OPINION
(De¢@mber 2011) [#24]
Plaintiff Jane Doe ("plaintift" or "Doe") brought an action against Robert M.
Gates ("defendant" or "Gates"), former Secretary of Defense, alleging the following
violations of the Rehabilitation Act of 1973: (l) unlawful disability discrimination based
on disparate treatment; (2) unlawful disability discrimination based on disparate impact;
(3) failure to make reasonable accommodations; (4) discrimination per se; (5) unlawful
use of confidential medical information; (6) impermissible medical inquiry; and (7)
failure to implement policies appropriately. Defendant has moved to dismiss plaintiffs
complaint, or in the alternative, moved for summary judgment. After due consideration
of the law and pleadings, defendant’s l\/lotion to Dismiss is GRANTED.
BACKGROUND
Plaintiff is a civilian employee of the Defense intelligence Agency ("DIA"), a
combat support agency within the United States Department of Defense ("DOD").
Compl. 1111 3-5. The United States Central Command ("CENTCOM") is a theater-level
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Unified Combatant Command unit that is also part of the DOD. Ia'. 1 4. Defendant was
the Secretary of Defense at the DOD at the time of the alleged discrimination. Id.
In or around 2003, while employed by the DIA, plaintiff was diagnosed with
bipolar affective mood disorder. Ia’. 11 7. The DIA determined, however, that plaintiff’ s
diagnosis did not disqualify her from her employment or security clearance. Ia’. 11 ll.
On three occasions between 2005 and 2008, the DIA permitted plaintiff to deploy
abroad, specifically to Turkey in 2005, to Canada in 2006, and to Egypt in 2008. Ia’. ‘H
16; Ex. 3 to Def.’s Mot. to Dismiss ("Def.’s Mot."), Mar. 15, 201 l. In or around March
2009, the DIA informed plaintiff that she would be placed on temporary duty deployment
("TDY") to Dubai, United Arab Emirates, beginning in April 2009 for a period of less
than thirty days, to attend a conference in connection with her employment as a civilian
employee with DIA. Compl. M 18-19.
According to DIA procedure, on or about April l, 2009, plaintiff submitted a pre-
deployment evaluation to the Defense Logistics Operation Center ("DLOC"), a division
of the DIA. Ia’. 11 2l. In connection with the evaluation, plaintiff submitted a letter dated
April 6, 2009 from her treating psychiatrist. Ia'. ‘l[ 23.
Despite having previously permitted plaintiff to deploy abroad on three occasions,
on April 7, 2009, DLOC determined that plaintiff was "not deployable" for purposes of
the Dubai TDY based on her bipolar affective mood disorder. Ia’. 11 24. DLOC based its
decision on CENTCOM policy-CENTCOM Mod 9_which provided that "[p]sychotic
and bipolar disorders are disqualifying for deployment."l Id. 1111 26-27. On April 14,
2009, plaintiff submitted a Medical Waiver Request seeking waiver from the DLOC’s
finding based on her individual condition and the nature of the deployment. Ia’. 11 32.
The DIA denied her waiver request. Id. 11 34.
On July 13, 2009, plaintiff filed a formal Equal Employment Opportunity
("EEO") complaint with the DIA. Ia’. 11 42. Plaintiff proposed four changes to the
CENTCOM Mod 9 as a "reasonable accommodation." Ia’. 11 35. Plaintiff proposed that
the DIA "[l] distinguish between CENTCOM countries based on level of threat; [2]
engage in a country-by-country analysis based on available medical resources; [3]
categorize different types of deployment; or [4] impose fewer conditions that
automatically render an individual ‘not deployable’ and permit, instead, more
individualized inquiry into an individual’s fitness for both duty and deployment." Ia’.
Plaintiff also suggested that she "would accept shorter deployments; and/or pay her own
medical expenses, if needed, in deployed locations." Ia’. 11 36. The DIA, relying on
CENTCOM Mod 9, dismissed plaintiffs formal EEO complaint on September ll, 2009.
Ia'. 11 43. On or about early October 2009, plaintiff was promoted. Id. 1111 5, 45.
Plaintiff filed this lawsuit on December 10, 2009, alleging: (l) unlawful disability
discrimination based on disparate treatment; (2) unlawful disability discrimination based
on disparate impact; (3) failure to make reasonable accommodations; (4) discrimination
' The parties agree that the DLOC incorrectly applied CENTCOM Mod 9 as the
governing policy. Compl. 11 26; Def.’s Mot. at 2. CENTCOM Mod 9 applies only to
deployments for a period of thirty days or greater, and the Dubai TDY was for a period of
less than thirty days. See CENTCOM Mod 9, Ex. 1 to Def.’s Mot.
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per se; (5) unlawful use of confidential medical information; (6) impermissible medical
inquiry; and (7) failure to implement policies appropriately. See Compl. [Dkt. No. 3].
As of February 5, 2010, however, requests for temporary duty CENTCOM deployments
are subject to DOD Instruction 6490.07, "Deployment-Limiting Medical Conditions for
Service Members and DOD Civilian Employees." See Ex. 8 to Def.’s Mot.; Def.’s Mot.
at 7. DOD Instruction 6490.07 distinguishes "contingency deployments" from
"deployments": contingency deployments are limited to overseas travel "over 30 days in
duration, and in a location with medical support from only non-fixed (temporary) military
medical treatment facilities," whereas deployments have no temporal or medical
threshold requirement. Ex. 8 to Def.’s Mot1111 3(b), (c). Pursuant to this Instruction,
psychotic or bipolar disorders or both are listed as "Medical Conditions Usually
Precluding Contingency Deployment." Ia’., Encl. 3 § h. Further, when a civilian
employee who is subject to the Rehabilitation Act has a medical condition that could be
disqualifying for travel and makes a waiver request, the Instruction mandates an
individualized assessment. Ia’. 1111 b(5), c.
On March 15, 2011, defendant filed a motion to dismiss plaintiffs complaint, or in
the alternative, for summary judgment. For the following reasons, defendant’s motion is
GRANTED.
STANDARD OF REVIEW
A court may dismiss a complaint or any portion of it for failure to state a claim
upon which relief may be granted. Fed. R. Civ. P. l2(b)(6). In considering a motion to
dismiss, however, the Court may only consider "the facts alleged in the complaint, any
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documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice." E.E.O.C. v. St. Francz``s Xavz'er Parochz``al Sch., 117 F.3d
621, 624 (D.C. Cir. l997). To survive a motion to dismiss, a complainant must "plead [ ]
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949
(2009). 1n evaluating a Rule 12(b)(6) motion, the Court construes the complaint "in favor
of the plaintiff, who must be granted the benefit of all inferences that can be derived from
the facts alleged."`` Schuler v, United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (intemal
quotation marks omitted). However, factual allegations, even though assumed to be true,
must still "be enough to raise a right to relief above the speculative level." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the Court "need not accept inferences
drawn by plaintiff[] if such inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations." Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
LEGAL ANALYSIS
I. Disparale Treatment Claim
Plaintiff contends that defendant violated the Rehabilitation Act through unlawful
disability discrimination based on disparate treatment. See Complaint ("Compl.") 1111 53-
60. Specifically, plaintiff contends that defendant discriminated against her when the
DIA denied her the opportunity to attend the Dubai TDY based on her diagnosed bipolar
disorder. Ia’. To establish a prima facie case of disability discrimination under a
disparate treatment theory, "a plaintiff must show: (l) that she was an individual who
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had a disability within the meaning of the Rehabilitation Act; (2) that she was qualified
for the position; and (3) that she suffered an adverse employment action because of her
disability," Duncarz v, Harvey, 479 F. Supp. 2d 125, 129-30 (D.D.C. 2()07) (citing
Duncan v. WMATA, 240 F.3d 1110, 1114 (D.C. Cir. 2001) (en banc). For purposes of its
motion to dismiss, defendant does not dispute that plaintiff has satisfied the first two
elements. Def.’s Mot. at 12. However, defendant contends that plaintiff has not suffered
an adverse employment action because of her disability. Ia’. 1 agree.
Although adverse employment actions "are not confined to hirings, firings,
promotions, or other discrete incidents," Holcomb v. Powell, 433 F.3d 889, 902 (D.C.
Cir. 2006), to establish an adverse employment action in a discrimination case, "a
plaintiff must show ‘materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment such that a trier of fact could find
objectively tangible harm."’ 2 Nurria’din v. Bolden ("Nurrl``ddin I]"), 674 F. Supp. 2d 6489-90 (D.D.C. 2009) (quoting Nurrz'dcz’z``n v. Gola’z``n ("Nurrz``ddin 1’ "), 382 F. Supp. 2d 79,
103 (D.D.C. 2005)) (emphasis in original). "[T]he denial of a single training or travel
opportunity does not constitute an adverse employment action unless the plaintiff can ‘tie
the alleged discriminatory employment action to some actual, tangible adverse
employment consequence.’” Ea’wara’s v. U.S. EPA, 456 F. Supp. 2d 72, 85 (D.D.C.
2006) (quoting Nurrz``da’z``n 1, 382 F. Supp. 2d at 102); see Campbell v. Nat’l Ea’uc. Ass ’n,
2 With respect to claims of disparate treatment, our Circuit applies the same standards for
Title V1I claims as it does for Rehabilitation Act claims. See Fields of Oj‘z``ce of Ea'dz``e
Bernz'ce Johnson, 459 F.3d 1, 15 n.24 (D.C. Cir. 2006); Taylor v. Rz``ce, 451 F.3d 898, 911
(D.C. Cir. 2006).
No. 99-7122, 2000 WL 1584589, at *4 (D.C. Cir. Oct. 3, 2000) (unpublished) (holding
that the defendant’s "denial of projects and/or conferences that seemed attractive to" the
plaintiffs did not constitute an adverse employment action). Thus, "to be adverse, the
denial of a travel or training opportunity must have a discernible, as opposed to a
speculative, effect on the terms, conditions, or privileges of one’s employment."
Ea’wara’s, 456 F. Supp. 2d at 86l; see also Nurria’clz``rz I, 382 F. Supp. 2d at 102 ("It is not
enough for plaintiff to say that because of denial of travel his general stature at [work]
has suffered.").
Here, plaintiff merely alleges that the denial of travel could affect further
promotions and her professional development. See Compl. 1111 46, 5 l. Such alleged harm
is not "actual" or "tangible." lt is speculative. See Eclwara’s, 456 F. Supp. 2d at 85, 86
("[W]here what an employee alleges is that he was denied the chance to pursue, at the
employer’s expense, potentially fruitful opportunities, he has not pointed to any concrete
changes in the terms, conditions, or privileges of his current or identifiable future
employment."). Further, although plaintiff also alleges that the denial of travel "has and
will have an adverse impact on [her] performance and appraisal," she has not pointed to
any adverse appraisals and even concedes that she subsequently was promoted on or
around October 2009. Ia'. 1111 5, 45, 46, 52. Thus, plaintiff has failed to point to any
discernible effect on the terms, conditions, or privileges of her present or future
employment. As such, she has not alleged facts sufficient to claim an adverse
employment action, and therefore her claim for disparate treatment (Count I) must be
dismissedf
II. Reasonable Accommodation Claim
Plaintiff further contends that defendant violated the Rehabilitation Act by failing
to make the reasonable accommodation proposed by her in the form of proposed changes
to the travel restrictions for TDY deployments abroad. Compl. 1111 35-36, 66-69.
However, even assuming arguendo that plaintiff could have made out a prima facie case
at one time,l her reasonable accommodation claim has become moot since the filing of
her complaint. How so?
Where a defendant voluntarily ceases the allegedly illegal activity, dismissal is
warranted so long as the "‘behavior could not reasonably be expected to recur."’ Id. at
3 Plaintiff also contends that defendant violated the Rehabilitation Act through unlawful
disability discrimination causing a disparate impact. See Compl. 1111 6l~65. However, to
raise a disparate impact claim, plaintiff must challenge a facially-neutral employment
practice that, in operation, disproportionately affects a protected class. See Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1971). Here, plaintiff has not identified a facially-
neutral policy; indeed, under CENTCOM Mod 9, bipolar condition is a disqualifying
condition for deployment. Therefore, plaintiffs claim for disparate impact (Count 11)
must be dismissed. Had plaintiff sufficiently alleged a claim for disparate impact, the
claim would nonetheless be dismissed because plaintiff failed to exhaust her
administrative remedies~she never raised the theory of disparate impact in her EEO
proceeding. See Spz``rzelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (holding that
exhaustion of administrative remedies is a jurisdictional requirement under the
Rehabilitation Act).
4 "To establish a prima facie case of discrimination under the Rehabilitation Act for
failure to accommodate, a plaintiff must show (l) that [she] was an individual who had a
disability within the meaning of the statute; (2) that the employer had notice of [her]
disability; (3) that with reasonable accommodation [she] could perform the essential
functions of the position; and (4) that the employer refused to make such
accommodations." Howarcl v. Gutz'errez, 571 F. Supp. 2d 145, 157 (D.D.C. 2008);
Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-08 (D.C. Cir. 2010).
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189 (quoting U.S. v. Concentrated Phosphate Export Ass ’rz, 393 U.S. 199, 203 (1968).
Specifically, where an alleged discriminatory policy has been replaced by a new one that
seeks to rectify the errors of its predecessor, a challenge to the old policy becomes moot
unless those errors can be reasonably expected to recur. See Worth v. Jacksorz, 451 F.3d
854, 860-61 (D.C. Cir. 2006). After all, a court should not retain jurisdiction over cases
in which one or both parties lack a continuing interest in the outcome. See Frz``ends of the
Earth, Inc. v. Laia'law Envtl. Servs., Inc., 528 U.S. 167, 192 (2000).
Here, the DIA abandoned CENTCOM Mod 9 on or about February 5, 2010, and
future requests will be subject to DOD Instruction 6490.07-a policy that is not
mandatory except for deployments lasting over thirty days, and eliminates the per se
exclusions of its predecessor.s As such defendant has voluntarily ceased this allegedly
illegal activity. Moreover, defendant contends that there is "no reason to believe the [old]
policy will be misapplied to her again in the future.” Def.’s Reply p. 14. Indeed,
plaintiffs security clearance is predicated upon travel abroad for a limited duration--not
beyond 30 days-and plaintiff concedes that she has never been deployed for more than
thirty days. Pl.’s Opp’n at 1 1. As both parties concede, the DlA’s single denial of a
request to travel abroad by plaintiff for a period of less than thirty-days under
CENTCOM Mod 9 was made in error. Compl. 11 26. Given that CENTCOM Mod 9 no
longer exists and the new policy is highly unlikely to ever be applied to the plaintiff, the
5 Additionally, this new policy substantially incorporates plaintiffs proposed changes: it
takes into account a country’s medical resources, bipolar disorder is no longer a per se
exclusion, waivers and reasonable accommodation requests are individually assessed, and
different types of deployment are categorized differently for the purposes of medical
restrictions. Def.’s Mot. 1111 13-14; Compl.1111 35-36.
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allegedly discriminatory denial of travel cannot reasonably be expected to recur.
Therefore, plaintiffs reasonable accommodation claim (Count II1) is moot and must be
dismissed.6
Thus, for the foregoing reasons, defendant’s Motion to Dismiss is GRANTED.
An appropriate order is herewith attached.
Tlt.l.lti»~/
RiCHARli.LLEoN
United States District Judge
6 Plaintiff further contends that the DlA’s policy~CENTCOM Mod 9_was and is
facially invalid (Count IV) and that even if the policy was facially valid, the DIA failed to
implement the policy appropriately (CountV11). Compl. 1111 71, 92. Plaintiff requests
declaratory relief through the Declaratory Judgment Act. Compl. 11 78. This Court
declines to exercise its discretion to provide declaratory relief for all the above reasons.
See 28 U.S.C. § 220l(a) ("[A]ny court ofthe United States . . . may declare the rights and
other legal relations of any interested party seeking such declaration."); Nat’l Wz'la’lz'j"e
Fea’eratz``on l/. United States, 626 F.2d 917, 923 (D.C. Cir. l980) (The Act "makes clear
the discretionary nature of the remedy."). Plaintiff additionally contends that defendant
unlawfully used confidential medical information (Count V) and made an impermissible
medical inquiry (Count Vl). Compl. 1111 81, 90. Plaintiff fails to allege how any
confidential medical information was improperly used, and fails to cite any applicable
statutory provision. A broad reading of the complaint suggests that plaintiff alleges that
the DIA used confidential information to engage in an impermissible medical inquiry.
However, agencies are permitted to "make inquiries into the ability of an employee to
perform job-related functions." 42 U.S.C. § 121 l2(d)(4)(b). Here, the alleged medical
inquiry clearly related to plaintiff s ability to perform a job-related function_deploying
abroad. Therefore, Counts V and VI must also be dismissed. ln any event, plaintiff has
failed to exhaust her administrative remedies by not raising these challenges (Counts V
and Vl) in her EEO proceeding, and therefore this Court does not have jurisdiction over
these claims. See Spinellz``, 446 F.3d at 162.
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