Carter v. Bridenstine ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KIM L. CARTER, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-1752 (ABJ)
)
JAMES F. BRIDENSTINE, )
Administrator, )
National Aeronautics )
and Space Administration, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Kim L. Carter brought this lawsuit under the Rehabilitation Act of 1973, 29 U.S.C.
§ 701 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., against the
Administrator of the National Aeronautics and Space Administration (“NASA”), James F.
Bridenstine, alleging that NASA unlawfully denied her reasonable accommodations for her
disability, discriminated and retaliated against her due to her participation in protected activities
and membership in protected classes, and exposed her to a hostile work environment. She also
contends that due to the intolerable environment created by those unlawful acts, she was
constructively discharged from her job. Compl. [Dkt. # 1].
Pending before the Court is defendant’s motion for summary judgment. Def.’s Mot. for
Summ. J. [Dkt. # 14] (“Def.’s Mot.”). He argues that plaintiff has failed to show she was denied
a reasonable accommodation, that she has not come forward with evidence of discrimination or
retaliation, and that she has not shown that her working conditions were objectively hostile such
that she was constructively discharged. See generally Mem. in Supp. of Def.’s Mot. for Summ. J.
[Dkt. # 14] (“Def.’s Mem.”).
While plaintiff had the right to expect that she could be supervised without being yelled at,
and there is no question that she suffered from serious medical conditions exacerbated by stress,
there are no genuine disputes with respect to any material fact at issue, and the defendant is entitled
to judgment as a matter of law.
BACKGROUND
The parties have submitted extensive briefing and a large number of exhibits in this case.
To understand the context of the instant matter, it is necessary to review the history of plaintiff’s
protected activities at NASA. Except where noted, the following facts are not in dispute.
I. Plaintiff’s Employment History
Plaintiff worked for NASA at its headquarters in Washington, D.C. until her retirement on
March 3, 2017. Def.’s SOF [Dkt. # 14] ¶ 1; Pl.’s SOF [Dkt. # 18-1] ¶ 1. Plaintiff is an African
American woman. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3. In 2014, she was a Program Specialist in the
Office of International and Interagency Relations (“OIIR”) and was at a GS-12 pay grade. Def.’s
SOF ¶ 4; Pl.’s SOF ¶ 4. From 2009 until 2017, DeVon Fleming 1, an African American woman,
and Albert Condes served as plaintiff’s first and second level supervisors respectively. Def.’s SOF
¶¶ 2, 3; Pl.’s SOF ¶¶ 2, 3.
II. January 2015 Desk Audit
In January 2015, plaintiff requested that her employer undertake a “desk audit.” Def.’s
SOF ¶ 6; Pl.’s SOF ¶ 6. A desk audit is conducted by a federal agency to determine if the duties
1 The spelling of Fleming’s first name varies throughout the pleadings and exhibits presented
in this case. Where text has been quoted directly, the spelling of her name (as either Devon or
DeVon) has been copied exactly.
2
and responsibilities in the position description for a certain job within the agency comport with the
activities actually being carried out by the employee holding that job. Def.’s SOF ¶ 7; Pl.’s SOF
¶ 7. This leads to a determination of whether the pay grade level assigned to the employee is an
accurate reflection of the work she is performing. Id. Plaintiff’s desk audit resulted in a
determination that she was performing at a GS-9 level and not a GS-12 level. Def.’s SOF ¶ 8;
Pl.’s SOF ¶ 8. Plaintiff disputes the results of the desk audit, and she maintains that she was
performing work at a level of GS-12 or higher. Pl.’s SOF ¶¶ 8–9.
Following the desk audit, Fleming, as plaintiff’s supervisor, was required to choose
between downgrading plaintiff to a GS-9 level or assigning her new tasks to meet the GS-12
position description. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 9. Fleming chose to keep plaintiff at the GS-12
level by making sure she was performing assignments that met the GS-12 criteria and by creating
a new position description for the job. Def.’s SOF ¶¶ 9–10; Pl.’s SOF ¶¶ 9–10. Plaintiff contends
that the new position description did not accurately reflect the work she had been performing. Pl.’s
SOF ¶ 10. After receiving the desk audit results, plaintiff filed an appeal with the Office of
Personnel Management (“OPM”), which was still open at the time of her retirement. Def.’s SOF
¶¶ 11–12; Pl.’s SOF ¶¶ 11–12.
III. Plaintiff’s 2015 Harassment Allegations and Investigation
On October 21, 2015, plaintiff completed an anti-harassment questionnaire and submitted
it to NASA, naming Fleming, Condes, and Michael F. O’Brien as alleged harassers. 2 Def.’s SOF
¶ 16; Pl.’s SOF ¶ 16; Ex. 9 to Pl.’s Opp. [Dkt. # 18-11] (“Questionnaire”). NASA’s anti-
harassment policy, which is separate from its Equal Employment Opportunity (“EEO”) process,
“involves a set of procedures that seeks to investigate and resolve potential harassment in the
2 It is unclear from the record what role Michael F. O’Brien held at NASA.
3
workplace before it becomes severe and pervasive.” Def.’s SOF ¶¶ 17–18; Pl.’s SOF ¶¶ 17–18.
Although plaintiff alleged several instances of discrimination and harassment by her supervisors,
a Human Resources Specialist, Tiffany Schuffert, tasked with responding to the questionnaire in
conjunction with NASA’s Office of General Counsel, found that only two allegations could
properly be investigated under NASA’s policy. Decl. of Tiffany Schuffert, Ex. 4 to Def.’s Mot.
[Dkt. # 14-4] (“Schuffert Decl.”) at ¶¶ 1, 13–17. The two instances, alleging “loud yelling” by
Fleming, took place in March 2015 and May 2015. Id. ¶ 17. 3 Plaintiff maintains that the decision
regarding her questionnaire “ignored substantial evidence of endemic bullying and harassment by
[p]laintiff’s immediate supervisor, Ms. Devon Fleming and her second-level supervisor, Mr.
Albert Condes.” Pl.’s SOF ¶ 19.
NASA’s Anti-Harassment Policy states in sections 1.2.3, 1.2.3.4., and 1.2.3.5. that “[i]n
responding to specific allegations of harassing conduct, supervisors and managers shall: . . . [a]ct
as . . . Fact Finder to conduct fact-findings into allegations of harassment where fact-finding is
necessary . . . [and t]ake appropriate corrective action . . . as necessary after consultation and
notification of appropriate officials.” Ex. 1 to Schuffert Decl. [Dkt. # 14-4] (“Anti-Harassment
Procedures”) at 10–11. The procedures also state at Section 1.2.5 that, “[t]he management official
shall normally be the next higher level supervisor or manager in the chain of command. . . .” Id.
at 11. Based on these policies, and after discussion with the Office of General Counsel, Schuffert
3 It is unclear from the timeline provided by plaintiff in the anti-harassment questionnaire
which incidents of yelling were the two Schuffert acknowledged in her declaration. There is one
clear reference to the “negative loud yelling situation” on March 29, 2015, but plaintiff also states
in her questionnaire that “I have been in DeVon Fleming office, and numerous occasions where
she has tried to create negative loud yelling situation when I was in her office.” Questionnaire
at 9. The EEO complaint filed on April 5, 2016, plaintiff identifies two precise dates of alleged
yelling by Fleming: March 29, 2015 and May 3, 2015. See Ex. 19 to Pl.’s Opp. [Dkt. # 18-21]
at 1. That information, however, is not included in the anti-harassment questionnaire.
4
designated Condes – plaintiff’s second-level supervisor and Fleming’s immediate supervisor – to
investigate the allegations. Schuffert Decl. ¶ 18. Plaintiff claims that it was improper for Condes
to investigate “his own conduct in violation of the anti-harassment policy . . . .” Pl.’s SOF ¶ 20.
As part of his investigation, Condes attempted to meet with plaintiff, and she initially
refused. Def.’s SOF ¶ 21; Pl.’s SOF ¶ 21. Condes sent an email to plaintiff stating “I would very
much like to ask you to reconsider speaking with me . . . . You are not obligated to attend [a
meeting], but it will make it difficult for me to address your concerns if I can’t hear your
perspective.” Def.’s SOF ¶ 21; Pl.’s SOF ¶ 21. Over the course of the investigation, Condes
ultimately interviewed plaintiff, as well as Fleming and at least one other individual. Schuffert
Decl. ¶ 19. Condes concluded there had not been a violation of the Anti-Harassment Policy, and
the matter was closed. Id. ¶ 21. 4
IV. Plaintiff’s October 2015 Request for Accommodation
Plaintiff submitted a request for reasonable accommodation form to NASA on October 23,
2015. Def’s SOF ¶ 32; Pl.’s SOF ¶ 32; Ex. 15 to Pl.’s Opp. [Dkt. # 18-17] (“Request 1”). In it,
she stated that “[d]ue to the hostile and toxic work environment in the Office of International and
Interagency Relations (OIIR), I respectfully request to be transfered [sic] to another office. Until
my request is granted, I would like either to telework from home and or be put on paid
administrative leave.” Request 1 at 1. Plaintiff later confirmed with Fleming that that she was
4 Plaintiff later explained in her April 2016 EEO complaint, discussed in infra section VII
and in her deposition, that the two incidents of yelling on March 29, 2015 and May 3, 2015 were
the ones “that really bothered [her] the most,” and “the two that [she] will stand by.” Def’s SOF
¶ 27; Pl.’s SOF ¶ 27; Ex. 5 to Def.’s Mot. [Dkt. # 14-5] (“Carter Dep.”) at 105:3–4, 19–20. She
also stated that the two incidents were not “the only time that [Fleming] yelled at [her] or got rude
with [her] or obnoxious with [her].” Carter Dep. at 105:6–8.
5
asking to telework one-to-two days per week, likely Monday and/or Friday as the accommodation.
Def.’s SOF ¶ 34; Pl.’s SOF ¶ 34.
In the request, plaintiff stated that her medical conditions included hypertension and
complex migraines, among other ailments. Request 1 at 1. The physical manifestations of her
condition, however, would arise episodically and not predictably. Def.’s SOF. ¶ 35; Pl.’s SOF
¶ 35. Indeed, in a November 23, 2015 letter, a Department of Health & Human Services (“DOH”)
doctor, Papiya Ray, wrote that “although [plaintiff’s] condition is chronic, the symptoms it causes
wax and wane. Therefore, any resultant limitations may be intermittently present. . . .” Letter
from Doctor Papiya Ray, Ex. 18 to Pl.’s Opp. [Dkt. # 18-20] (“2015 Ray Letter”) at 2.
NASA’s reasonable accommodation policy treats reassignment as “a last resort” and
clarifies that a “reassignment will only be considered if no reasonable accommodations are
effective to enable the employee to perform the essential functions of the current job[.]” Ex. 11 to
Pl.’s Opp. [Dkt. # 18-13] (“Accom. Policy”) §§ 3.4.4g, 3.4.5. Fleming ultimately determined that
6
the appropriate accommodation for plaintiff would be to continue episodic telework as needed.
Def.’s SOF ¶¶ 36–37; Pl.s SOF ¶¶ 36–37. 5
V. Plaintiff’s November 2015 Mid-Point Review
On November 26, 2015, plaintiff emailed Fleming that she had not yet received the mid-
point review that was due on November 30th. Def.’s SOF ¶ 22; Pl.’s SOF ¶ 22. Fleming held the
review on November 30th, during which she asked plaintiff to certify OIIR travel – a duty that fell
within plaintiff’s position description. Def.’s SOF ¶¶ 23–25; Pl.’s SOF ¶ 23–25.
VI. January 2016 Letter of Counseling
On January 5, 2016, Fleming issued plaintiff a counseling letter that listed at least twelve
performance errors plaintiff had made in 2015 related to a critical element of her performance
5 In her Statement of Facts, plaintiff asserts that she, “disputes that she was afforded the
opportunity to take periodic telework as an accommodation since Ms. Fleming routinely denied
Plaintiff’s requests to telework due to her medical conditions.” Pl.’s SOF ¶ 37. She cites to
paragraph nineteen of her declaration, Ex. 1 to Pl.’s Opp. [Dkt. # 18-3] (“Carter Decl.”), which
states, “[e]pisodic telework was not granted to me by Ms. Fleming between January 2016 and
March 2017.” However, in her May 3, 2018 deposition, when asked if she could remember any
instances when Fleming denied a request to telework, plaintiff testified that “after 2015, she
approved it.” Carter Dep. at 45:17.
The D.C. Circuit has repeatedly held that it, like “[v]irtually every circuit[,]” has “a form
of the so-called ‘sham affidavit rule,’ which precludes a party from creating an issue of material
fact by contradicting prior sworn testimony unless the ‘shifting party can offer persuasive reasons
for believing the supposed correction’ is more accurate than the prior testimony.” Galvin v. Eli
Lilly and Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007). “A party can also support repudiation of an
earlier statement by offering newly discovered evidence.” Pyramid Sec. Ltd. v. IB Resolution,
Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991).
In this case, plaintiff has failed to supply any grounds for why the Court should accept her
declaration over her previously sworn deposition testimony. And, other evidence provided by
plaintiff contradicts her statement in the declaration. See, e.g., Ex. 38 to Pl.’s Opp. [Dkt. # 18-40]
at 3 (email from Fleming to plaintiff summarizing a tag-up meeting that stated, “You will telework
for 4 hours on Fri 12/23[/2016]”); Ex. 41 to Pl.’s Opp. [Dkt. # 18-43] (“PIP Notice”) at 3 (“On
July 1, 2016 . . . [plaintiff] was teleworking. . . .”). For these reasons, there is no genuine dispute
as to the fact that plaintiff was granted episodic telework as needed.
7
plan. 6 Def.’s SOF ¶ 29; Pl.’s SOF ¶ 29; Ex. 3 to Decl. of DeVon Fleming (“Fleming Decl.”),
Ex. 2 to Def.’s Mot. [Dkt. # 14-2] (“Counseling Letter”) at 1–2. In the letter, Fleming also stated
“[w]e have talked about your performance on a number of occasions during our weekly tag ups
and I have seen little improvement.” Counseling Letter at 1. The letter included a set of
performance expectations. Id. at 2.
The counseling letter did not become part of plaintiff’s personnel file, and she was given a
“fully successful” performance rating for the 2015–2016 performance period by Fleming. Def.’s
SOF ¶¶ 30–31; Pl.’s SOF ¶¶ 30-31. Fleming noted in the letter, though, that “[d]uring this rating
cycle, I worked closely with Ms. Carter to assist in improving the quality of her overall work
performance. In spite of that, it has not had an impact on her performance and she is not performing
with the level of detail and understanding required for this position.” Ex. 4 to Fleming Decl. [Dkt.
# 14-2] at 7.
VII. Plaintiff’s April 2016 EEO Complaint
On December 21, 2015, plaintiff contacted an EEO counselor and received counseling.
Def.’s SOF ¶ 13; Pl.’s SOF ¶ 13; see also Ex. 1 to Decl. of Kathleen Teale (“Teale Decl.”), Ex. 3
to Def.’s Mot. [Dkt. # 14-3] (“April 2016 EEO Compl.”) at 1–2. On April 5, 2016, plaintiff filed
a formal EEO complaint, alleging discrimination and/or retaliation by Fleming and Condes and a
hostile work environment. Def.’s SOF ¶¶ 13–15; Pl.’s SOF ¶¶ 13–15. The complaint alleged the
following six acts of discrimination and retaliation:
1) Fleming added additional duties to plaintiff’s position description
without explanation;
2) Fleming yelled at plaintiff on two occasions – March 29, 2015 and May
3, 2015;
6 Plaintiff does not dispute that the letter was issued, but denies that her work was deficient.
Pl.’s SOF ¶ 29.
8
3) Plaintiff had to contact Fleming for her mid-point evaluation on
November 30, 2015 because Fleming had not reached out to plaintiff;
4) On January 5, 2016, Fleming issued a counseling letter to plaintiff based
on her poor performance;
5) Plaintiff was harassed by Condes, in his role as investigator of plaintiff’s
harassment complaint, including through a January 7, 2016 email
invitation from Condes asking to discuss the behavior alleged in
plaintiff’s questionnaire;
6) Fleming denied plaintiff’s request for accommodation on January 5,
2016.
Def.’s SOF ¶ 14; Pl.’s SOF ¶ 14; see April 2016 EEO Compl. at 1–2.
On August 12, 2016, plaintiff submitted an amendment to the April 2016 EEO complaint,
adding that Fleming had failed to meet with her prior to issuing her June 30, 2016 Performance
Rating. 7 Def.’s SOF ¶ 38; Pl.’s SOF ¶ 38. The two met on June 30, 2016 to discuss the review,
and plaintiff emailed Fleming afterwards stating that she would “need a couple of days to review
and respond to the summary in [her] performance review and rating. . . .” Ex. 6 to Teale Decl.
[Dkt. # 14-3] at 1. On July 5, 2016, plaintiff emailed Fleming again stating, “I need to speak with
my Lawyer first, before I sign off on my performance review which will be in a few days.” Ex. 6
to Teale Decl. at 1; Def.’s SOF ¶¶ 39–41; Pl.’s SOF ¶¶ 39–41. Plaintiff never signed off on the
performance rating, which evaluated her as “fully successful.” Def.’s SOF ¶ 42; Pl.’s SOF ¶ 42.
VIII. Plaintiff’s Second Request for Accommodation
On November 7, 2016, plaintiff submitted a new request for a reasonable accommodation.
See Ex. 13 to Teale Decl. [Dkt. # 14-3] (“Request 2”); Def.’s SOF ¶ 60; Pl.’s SOF ¶ 60. In it, she
stated that “[o]ver the last several months, I have initiated both discrimination and retaliation
7 The amended EEO complaint also contains a section on the 2017 Performance Plan issued
to plaintiff by Fleming in May 2016. It is unclear from the EEO complaint what plaintiff was
alleging at that point. See Ex. 5 to Teale Decl. [Dkt. # 14-3] at 1.
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claims against my management in . . . (OIIR). Consequently, I am now suffering a hostile and
toxic work environment and am now requesting to be immediately reassigned or transferred to
another office.” Request 2 at 1. As with plaintiff’s initial request, she added that “[u]ntil this
request is approved, I would like to either telework from home or be placed on paid administrative
leave.” Id.
To support her second request, plaintiff submitted medical documentation, including a
December 16, 2016 medical letter from a doctor at George Washington University. See Ex. 14 to
Teale Decl. [Dkt. # 14-3] at 2. The letter stated that plaintiff “has uncontrolled hypertension that
is exacerbated by stress. Her stressful working environment is detrimental to her health causing
her to have episodes of hypertensive emergency which may lead to exacerbated health problems
of stroke, heart attack, kidney failure, or even death.” Letter from Doctor Nicholas Dallas, Ex. 30
to Pl.’s Opp. [Dkt. # 18-32] (“Dallas Letter”). The letter also asked that NASA assist plaintiff “to
have her reassigned to a less stressful working environment.” Id.
In response, NASA informed plaintiff that her doctor was required to submit an additional
form in order for her request to be processed. Ex. 14 to Teale Decl. at 2. As of December 30,
2016, plaintiff’s doctor had not accessed the form. Id. at 1. Plaintiff ultimately faxed the form to
her doctor in early January 2017, Carter Dep. at 154:7–9, and the paperwork was submitted to
NASA sometime around January 31, 2017. Def.’s SOF ¶ 63; Pl.’s SOF ¶ 63; Carter Dep.
at 155:20-156:11. Plaintiff asserts that she was “actively engaged in obtaining the requested
medical documentation,” and that she submitted other medical documentation to NASA in
December 2016. Pl.’s SOF ¶ 63. She also adds that NASA “delayed its follow-up efforts to obtain
more detailed information, including a medical evaluation form.” Id.
10
IX. Plaintiff’s October 2016 EEO Complaint
Plaintiff filed a second EEO complaint on October 3, 2016, which reported retaliation
“[b]ased on Incident of Harassment and Hostile Work Environment dated September 22, 2016,
with DeVon Fleming.” Def.’s SOF ¶ 44; Pl.’s SOF ¶ 44; Ex. 7 to Teale Decl. [Dkt. # 14-3] at 1.
Plaintiff attached a September 22, 2016 email she sent to her attorney which described a meeting
she had with Fleming on the same day, during which Fleming reviewed edits she made to
plaintiff’s work on different assignments. See Ex. 22 to Pl.’s Opp. [Dkt. # 18-24] (“Oct. 2016
Compl.”) at 4. Plaintiff recounted “anger in DeVon Fleming [sic] voice and demeanor,” id., and
she reported that after the meeting, her “heart was racing rapidly, and [her] head started to ached
[sic].” Id. at 5. When asked about this incident in her deposition, plaintiff described Fleming as
being “a little rude to me, just – you know, because she was snappy in that meeting. She was a
little snappy in the meeting that we had that day[.]” Carter Dep. at 115:22–25. That behavior was
the basis of the October 2016 EEO Complaint. Def.’s SOF ¶ 45; Pl.’s SOF ¶ 45.
X. Plaintiff’s Receipt of a Special Rating, Denial of a WIGI, and Placement on a
PIP
On November 29, 2016, plaintiff and Fleming met for plaintiff’s mid-point progress review
for the 2016-2017 performance period. Def.’s SOF ¶ 47; Pl.’s SOF ¶ 47. One day later, Fleming
signed plaintiff’s Employee Review. Def.’s SOF ¶ 49; Pl.’s SOF ¶ 49. The narrative section of
the review contained an assessment of plaintiff’s work, including that she needed improvement in
critical element 1 of her performance plan “to meet expectations[,]” along with several
recommendations for how plaintiff could accomplish that goal. See Ex. 9 to Fleming Decl. [Dkt.
# 14-2] at 8. 8
8 Plaintiff disputes that the descriptions of her performance in the review accurately describe
her work. Pl.’s SOF ¶ 48.
11
As a result of the mid-point review procedures, Fleming sent an email to plaintiff on
December 13, 2016, summarizing the matters discussed during their meeting and listing
assignments plaintiff needed to complete. See Ex. 10 to Fleming Decl. [Dkt. # 14-2] at 2–3. After
plaintiff responded and noted that some of the tasks covered in Fleming’s initial email were “new
functions” for plaintiff, id. at 1, Fleming replied that “it was not [her] intent to give [plaintiff] new
functions during the midpoint[,]” and that plaintiff did not need to perform two of the three new
tasks. See id. According to Fleming, plaintiff’s remaining tasks included: instructions to complete
one ongoing task in a more structured fashion, one new item that was critical, and other tasks that
plaintiff was already performing. Id. Plaintiff contends, however, that “[d]uties that were added
to [her] workload in Ms. Fleming’s December 13, 2016 [sic] were new duties and increased the
complexity of the work performed by Plaintiff, requiring her to shoulder responsibilities that
properly should have been performed by [other employees].” Pl.’s SOF ¶ 50.
On January 31, 2017, Fleming issued a “special” unscheduled rating, explaining that
plaintiff’s work in critical element 1 failed to meet expectations and was rated “unacceptable.”
Def.’s SOF ¶ 53; Pl.’s SOF ¶ 53. In the narrative of critical element 1, Fleming stated that “Ms.
Carter fails to meet expectations in this element. Specifically, she is not managing the overall
budget activities to include tracking budget actions through to completion, her budget reports often
contain errors, and budget documents are processed with errors and revisions.” Ex. 11 to Fleming
Decl. [Dkt. # 14-2] at 7. The report then listed several examples of plaintiff’s work that had
contained errors. Id. Plaintiff contends that the rating did not accurately represent her work
performance. Pl.’s SOF ¶ 53.
Per NASA policy, if an employee’s performance “fails to meet expectations,” the employee
must be placed on a Performance Improvement Plan (“PIP”) and denied a within-grade increase
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(“WIGI”) until the employee’s performance improves to “meeting expectations.” Def.’s SOF
¶¶ 51–52; Pl.’s SOF ¶¶ 51–52. On February 7, 2017, Fleming initiated the PIP and on February
19, 2017, denied plaintiff’s request for a WIGI. Def.’s SOF ¶¶ 53–54; Pl.’s SOF ¶¶ 53–54.
XI. Plaintiff’s Retirement
NASA’s Shared Services Center (“NSSC”) is charged with handling employee retirements.
Def.’s SOF ¶ 56; Pl.’s SOF ¶ 56. On March 9, 2016, before the special rating and the PIP arose,
NSSC emailed plaintiff, stating “[w]e understand that you plan to retire on 09/03/2016.” Ex. 11
to Teale Decl. [Dkt. # 14-3] at 1. Plaintiff responded on July 19, 2016, by asking for a “revised
retirement estimate for my retirement date of 2/3/2017 or 3/3/2017.” Id. Plaintiff went on to
explain: “I am eligible for my next pay increase in February and I will reach my 59 ½ to receive
my TSP.” Id. Plaintiff submits that the email was part of “prudent retirement planning.” Pl.’s
SOF ¶ 56.
On January 25, 2017, plaintiff communicated with NSSC again about placing her proposed
retirement dates – then March 3, 2017 or July 3, 2017 – on hold because she was unsure about the
date due to a “Pending Action still not resolved by Agency.” Def.’s SOF ¶ 57; Pl.’s SOF ¶ 57;
Ex. 12 to Teale Decl. [Dkt. # 14-3] at 1. Part of the pending action was plaintiff’s appeal of the
desk audit results she received, Def.’s SOF ¶ 58; Pl.’s SOF ¶ 58, and plaintiff claims that another
pending action was her second request for reasonable accommodation. Pl.’s SOF ¶ 58. The NSSC
responded that it would place the March 3, 2017 retirement date on hold. Def.’s SOF ¶ 59; Pl.’s
SOF ¶ 59.
13
On February 7, 2017, the day that plaintiff was issued a PIP, she submitted her retirement
papers, with retirement date of March 3, 2017. Def.’s SOF ¶ 55; Pl.’s SOF ¶ 55. 9
XII. Plaintiff’s April 2017 EEO Complaint
On April 18, 2017, approximately six weeks after plaintiff retired, she submitted a new
EEO complaint to NASA. Def.’s SOF ¶ 64; Pl.’s SOF ¶ 64; Ex. 9 to Teale Decl. [Dkt. # 14-3]
(“2017 EEO Compl.”) at 1–2. Plaintiff alleged several discriminatory actions by Fleming,
including her February 19, 2017 denial of plaintiff’s within-grade increase and her negative review
of plaintiff in the January 2017 special rating. See 2017 EEO Compl. at 1. Plaintiff also alleged
constructive discharged based on a hostile working environment due to Fleming’s alleged
retaliatory behavior against plaintiff for having engaged in a protected activity. Id. at 2.
PROCEDURAL HISTORY
Plaintiff filed the eleven-count complaint in this case on August 27, 2017, alleging
violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq., as well as constructive discharge. Compl. For these alleged
wrongs, plaintiff seeks compensatory damages in excess of $300,000, attorneys’ fees, and other
relief deemed necessary by the Court. Defendant answered on November 6, 2017. Answer [Dkt.
# 3].
On March 25, 2019, defendant filed its motion for summary judgment. Def.’s Mot.; Def.’s
Mem. Plaintiff opposed the motion, Pl.’s Opp., and defendant replied. Def.’s Reply to Pl.’s Opp.
[Dkt. # 20] (Def.’s Reply).
9 Plaintiff asserts that her receipt of the PIP was not the sole motivating factor behind her
submission of her retirement papers. Pl.’s SOF ¶ 55.
14
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241
(D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing the summary judgment motion.’”
Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam).
ANALYSIS
I. Plaintiff’s Failure to Accommodate Claim
Plaintiff alleges that NASA violated the Rehabilitation Act of 1973 when it was “required,
but failed, to implement reasonable and effective accommodations for her disabilities.” Compl.
¶¶ 62, 64. Specifically, plaintiff claims that defendant “ignored or rejected” the two
15
accommodation requests at issue, which included requests for telework, transfer, and relocation /
reassignment. Compl. ¶ 65–67.
Defendant moves for judgment on the grounds that it is undisputed that the first
accommodation request was properly addressed by NASA when Fleming continued plaintiff on
an episodic teleworking plan. Def.’s Mem. at 10–11. It maintains that the second request was not
administratively exhausted, so is not properly before the Court due to a lack of subject matter
jurisdiction, and that it was never finally resolved by NASA because plaintiff retired before her
request could be reviewed. Def.’s Mem. at 12–14.
To establish a prima facie case for failure to accommodate, the plaintiff bears the burden
of showing “(1) 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.” Stewart v. St. Elizabeths Hosp., 593 F. Supp. 2d 111, 113 (D.D.C. 2009),
aff’d, 589 F.3d 1305, 1309 (D.C. Cir. 2010). If a plaintiff succeeds in establishing a prima facie
case, the employer must demonstrate that the requested accommodation would have imposed an
undue burden on its business; “the ultimate burden, however, remains with the plaintiff.” Faison
v. Vance-Cooks, 896 F. Supp. 2d 37, 49 (D.D.C. 2012), citing Barth v. Gelb, 2 F.3d 1180, 1185--86
(D.C. Cir. 1993) (explaining that reasonable accommodation requests should be tested through the
application of traditional burdens of proof).
The reasonableness inquiry in step three of the test, requires a determination that a
requested accommodation would enable “the employee to fulfill all essential functions of her job,”
Graffius v. Shinseki, 672 F. Supp. 2d 119, 126 (D.D.C. 2009), citing Woodruff v. Peters, 482 F.3d
521, 526 (D.C. Cir. 2007), and is “commonly a contextual and fact-specific” one. Solomon v.
16
Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014), citing Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir. 2006).
It is well recognized, however, that “‘[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), quoting Gile
v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). Because it is uncontested that NASA
was aware of some of plaintiff’s medical conditions, see Compl. ¶ 14; Answer ¶ 14, to survive
summary judgment in this case, plaintiff must show that she requested an accommodation that
would have enabled her to carry out the essential functions of her job, and that NASA failed to
provide her with a reasonable accommodation.
A. There is no dispute of fact concerning whether episodic telework was a
reasonable accommodation in response to plaintiff’s first request.
Plaintiff takes the position that in response to her first request for accommodation, NASA
failed to “engage in any interactive discussions with [her],” failed to provide her with assistance,
and that NASA “acted in bad faith regarding the interactive reasonable accommodation
process. . . .” Pl.’s Opp. at 36–37. Plaintiff further contends that she never agreed to permanent
episodic telework as a reasonable accommodation, and that NASA “callously resisted” her request
for a new assignment or transfer. Id. at 37.
Defendant submits that the agency’s decision to keep plaintiff on an episodic telework plan
was a reasonable accommodation as a matter of law because it adequately accommodated her
disability and allowed her to perform the essential functions of her job. Def.’s Mem. at 10–12.
The agency points to evidence that plaintiff had the same medical conditions for at least ten years
before she made her accommodation request, that she had previously been granted episodic
telework as an accommodation, and that due to the unpredictable nature of her condition, episodic
17
telework had been and would continue to be an effective and reasonable accommodation. Id.
at 9– 11.
The law is clear that the “process contemplated” for determining what accommodation is
appropriate is a “‘flexible give-and-take’ between employer and employee,” and “‘neither party
should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting
liability.’” Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014), quoting EEOC v. Sears, Roebuck
& Co., 417 F.3d 789, 805 (7th Cir. 2005). “‘Thus, courts should look for signs of failure to
participate in good faith or failure by one of the parties to make reasonable efforts to help the other
party determine what specific accommodations are necessary.’” Id., quoting Sears, 417 F.3d
at 805.
No such failure is present here. Plaintiff told her supervisor that she would take on the
responsibility of locating a potential new position, see November 10, 2015 Email from Devon
Fleming to Kim Carter, Ex. 7 to Fleming Decl. [Dkt. # 14-2] (“[y]ou added that you plan to reach
out to an office for a potential reassignment”), and that the agency took steps as well: the Federal
Occupational Health Service (“FOH”) was asked by the REACT team to provide its assessment of
plaintiff’s condition and of her request, which it did, see Deposition of LaShawn McDuffie, Ex. 13
to Pl.’s Opp. [Dkt. # 18-15] at 33:14–21; 36:2–3; and the REACT team held meetings to assess
plaintiff’s case, and it did so with information provided by both the plaintiff and other necessary
parties. See, e.g., Deposition of Crystal Moten, Ex. 14 to Pl.’s Opp. [Dkt. #18-16] at 43:2–12.
Plaintiff has not presented evidence to show that NASA failed to take measures to evaluate her
case.
More importantly, plaintiff has not come forward with evidence to create a dispute about
whether the accommodation was reasonable. The fact that NASA’s choice was not the
18
accommodation most desired by plaintiff does not create an issue for trial; an employer is not
required to grant plaintiff her preferred accommodation, but instead one that reasonably allows her
to fulfill the essential functions of her job. See Aka, 156 F.3d at 1305. Here, the undisputed
evidence establishes that episodic telework was a reasonable accommodation given plaintiff’s
medical conditions. For example, plaintiff’s own testimony confirms that she was previously
granted episodic telework and had success using it, see Carter Dep. at 38:22–39:6, 40:6–8, and
that the onset of her physical medical symptoms would occur unpredictably, id. at 39:15–18,
making telework opportunities available on an as-needed basis a reasonable response. Id. For
those reasons, summary judgment will be granted for defendant on plaintiff’s claim regarding her
first reasonable accommodation request.
B. The record shows that plaintiff’s second accommodation request has not been
administratively exhausted.
Defendant contests plaintiff’s claim regarding her second accommodation request for two
reasons. First, he argues that plaintiff failed to exhaust administrative remedies by not raising the
alleged denial of her second reasonable accommodation request in her 2017 EEO Compl. Def.’s
Mem. at 13. He also contends that plaintiff abandoned the process of seeking a reasonable
accommodation by retiring before the request was ruled upon, so it was not denied. Id. at 14.
Under the Rehabilitation Act, when a plaintiff fails to exhaust administrative remedies, it
serves as a jurisdictional defect, and the court must dismiss the claim for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Doak v. Johnson, 798 F.3d 1096,
1103–04 (D.C. Cir. 2015); Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). Exhaustion
“serves the important purposes of giving the charged party notice of the claim and narrow[ing] the
issues for prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995) (citation and internal quotation marks omitted). Because exhaustion is a jurisdictional
19
requirement, the plaintiff has the burden to plead and prove it, see Spinelli, 446 F.3d at 162, and a
plaintiff fails to do so “when the complaint she files in federal court includes a claim that was not
raised in the administrative complaint.” Reagan-Diaz v. Sessions, 246 F. Supp. 3d 325, 345
(D.D.C. 2017), quoting Latson v. Holder, 82 F. Supp. 3d 377, 384 (D.D.C. 2015) (internal
quotation marks omitted).
Plaintiff’s last EEO complaint, filed on April 18, 2017, did not mention the second
accommodation request. See 2017 EEO Compl. Indeed, plaintiff concedes that “[a]t the time she
filed her April 2017 EEO Complaint, NASA had not yet issued a determination or disposition
regarding Request 2. So, as of that date, there was no ‘adverse action’ that could support an EEO
complaint.” Pl.’s Opp. at 38 n.35. Instead, plaintiff argues that because the EEO Complaint based
on her first accommodation request was still outstanding at the time she filed her second EEO
complaint, and the second complaint alleged that she was being retaliated against for filing the
first EEO complaint, the second request was somehow implicated. Id. at 38.
This does not meet the test for exhaustion. As the D.C. Circuit has made clear, “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,” as “[t]his connection is necessary to give the agency ‘an opportunity to resolve
[the] claim administratively before [the employee] file[s] her complaint in district court.’” Payne
v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010), quoting Wiley v. Glassman, 511 F.3d 151, 160
(D.C. Cir. 2007). Here, plaintiff admits that she did not learn of the disposition of her second
accommodation request until discovery began in this litigation, which was after she retired from
the agency. Pl.’s Opp. at 38 n.35. And, the second request was not a subject of the April 2017
EEO Complaint. There is no basis to conclude that the agency would have reasonably investigated
20
plaintiff’s second accommodation request as part of her April 2017 EEO Complaint. Since
plaintiff failed to exhaust administrative remedies with respect to the second accommodation
request, the Court lacks jurisdiction to hear that portion of Count I based on the second request
and judgment will be entered in favor of defendant on that as well. 10
II. Plaintiff’s unlawful retaliation and discrimination claims
Plaintiff brings a host of claims against defendant based on alleged discrimination and
retaliation. Counts II, VI, and IX of the complaint assert claims of unlawful retaliation under the
Rehabilitation Act, Title VII, and the ADEA respectively. Counts IV, V, and VIII allege various
forms of discrimination under the same statutes. Plaintiff bases these claims on the following
alleged adverse actions: 1) wrongful denials of both of her reasonable accommodation requests;
2) Fleming’s imposition of new performance standards; 3) Fleming’s counseling letter dated
January 5, 2016; 4) the denial of the WIGI; 5) the January 31, 2017 unsuccessful performance
rating; and 6) plaintiff’s placement on a PIP. Compl. ¶¶ 77, 93, 101, 109, 125, 133. Plaintiff also
adds that exposure to a hostile work environment based on plaintiff’s race/color, disability, and
age were essential to the retaliation and discrimination she faced. Id.
The Court will analyze plaintiff’s discrimination and retaliation claims separately, but a
few common, undisputed facts are applicable to both analyses:
• Fleming and plaintiff are both African American women. Def.’s SOF
¶ 3; Pl.’s SOF ¶ 3.
• Plaintiff had a known disability that manifested in symptoms
episodically. Def.’s SOF ¶ 35; Pl.’s SOF ¶ 35.
• Plaintiff was over the age of 40 at all times relevant to this matter. See
Def.’s Mem. at 16 n.5; Compl. ¶ 3.
10 Because the Court will grant summary judgment based on defendant’s first argument
against plaintiff’s claim, it does not need to examine his second contention.
21
• A desk audit performed at plaintiff’s requested resulted in a
determination that she was performing duties in line with a GS-9 grade
level, and not at GS-12 grade level. Def.’s SOF ¶¶ 6, 8; Pl.’s SOF
¶¶ 6, 8. 11
• As a result of the desk audit, Fleming had the options of either
downgrading plaintiff to a GS-9 level or altering her workload to be
consistent with the GS-12 position description. Def.’s SOF ¶ 9; Pl.’s
SOF ¶ 9.
• Fleming updated plaintiff’s position description, which included “the
same major duties as her prior position description, but sought to add
additional clarity as to the scope and substance of those duties.”
Fleming Decl. ¶ 9.
A. Plaintiff has failed to come forward with evidence to show that the
explanations for NASA’s actions are pretextual.
Under the Rehabilitation Act and Title VII, the federal government may not discriminate
against an employee on the basis of race, color, religion, sex, national origin, or disability.
42 U.S.C. § 2000e–16(a); 29 U.S.C. § 701 et seq. Similarly, the ADEA mandates that “[a]ll
personnel actions affecting [federal] employees . . . who are at least 40 years of age . . . shall be
made free from any discrimination based on age.” 29 U.S.C. § 633a(a). “[T]he two essential
elements of a discrimination claim [under the three statutes] are that (i) the plaintiff suffered an
adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, national origin,
age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (collecting
cases). “A plaintiff must prove both elements to sustain a discrimination claim.” Id. The Supreme
Court has cautioned that federal employee discrimination statutes should not be used as “general
civility code[s]” for unhappy employees, Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998), and courts should not act as “‘super-personnel departments that
11 Plaintiff’s contentions regarding the accuracy of the audit results, as discussed above, are
not relevant to this restatement of facts.
22
reexamine[] an entity’s business decisions.’” Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006), quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999).
In cases that do not have direct evidence of discriminatory intent, as is the case here, the
arguments are assessed under a three-part burden shifting framework. First, the plaintiff must
establish a prima facie case of discrimination, as articulated above. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Holcomb, 433 F.3d at 895. Once a prima facie case is
established, “[t]he burden [] must shift to the employer to articulate some legitimate,
nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 802. If such
a reason is provided, the burden shifts back to the plaintiff to prove that the offered reason is pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804; Holcomb, 433 F.3d at 901.
But “where an employee has suffered an adverse employment action and an employer has
asserted a legitimate, non-discriminatory reason for the decision, the district court need not – and
should not – decide whether the plaintiff actually made out a prima facie case under McDonnell
Douglas.” Brady v. Office of Sgt. at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in
original). Instead, “the district court must resolve one central question: [h]as 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 race, color, religion, sex, [age,] or national origin?” Id.;
Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (“[T]o survive summary judgment the
plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse
employment decision was made for a discriminatory reason.”).
Defendant moves for summary judgment on plaintiff’s discrimination claims under several
theories. It argues that: 1) plaintiff failed to exhaust her administrative remedies for some claims,
23
so they cannot be reviewed by this Court; 2) plaintiff has failed to present any evidence of improper
motive; 3) several of the challenged actions do not qualify as adverse actions for purposes of
discrimination claims; and 4) NASA has asserted legitimate, non-discriminatory reasons for its
actions that have not been shown to be pretext. See Def.’s Mem. at 15–25. The Court finds that
many of the challenged events are not actionable, and that plaintiff has failed to adduce evidence
to create a genuine issue as to whether NASA’s legitimate explanations for the actions that are
adverse are merely a pretext for discrimination.
1. Many of the claims fail for lack of an adverse action.
Under Brady, the Court ordinarily does not need to determine whether plaintiff has
established a prima facie case of discrimination “when – as here – defendant contests the existence
of an adverse action, the court may consider that issue first.” Francis v. Perez,
970 F. Supp. 2d 48, 62 (D.D.C. 2013), citing Baloch, 550 F.3d at 1196–97 (reviewing challenged
adverse employment actions first). Plaintiff lists several negative employment events that she
faced while employed at NASA, but not all actions by an employer against an employee are
properly considered adverse employment actions for purposes of a discrimination claim, see
Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002), and “not everything that makes an
employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.
Cir. 2001). A plaintiff must show that she faced “adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a reasonable
trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. Tangible harms
include “a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
24
Plaintiff identifies the denial of a reasonable accommodation as an adverse action, but the
Court has already found as a matter of law that she was not denied a reasonable accommodation
in response to her first request, and the second was never adjudicated. The handling of the requests
did not affect the terms and conditions of plaintiff’s employment and it is not properly considered
an adverse event for purposes of plaintiff’s discrimination claims.
Second, the refinement of plaintiff’s duties or the assignment of new ones in the wake of
the desk audit cannot constitute an adverse action. “Changes in assignments or work-related duties
do not ordinarily constitute adverse employment actions if ‘unaccompanied by a decrease in salary
or work hour changes.’” Lester v. Natsios, 290 F. Supp. 2d 11, 28 (D.D.C. 2003), quoting Mungin
v. Katten Muchin & Zavis, 116 F.3d 1549, 1556–57 (D.C. Cir. 1997). In this case, changes in
plaintiff’s work load were implemented to prevent plaintiff’s pay grade from being lowered,
Fleming Decl. ¶ 9, and there is no evidence of any change in her hours. Therefore, even if plaintiff
was dissatisfied with the changes, they are not the type of negative employment events that qualify
as adverse employment actions.
Third, plaintiff alleges that she was discriminated against by being “counsel[ed] for non-
existent performance problems[.]” See Compl. ¶ 93. Assuming plaintiff is referring to the January
2016 letter of counseling issued by Fleming, see Counseling Letter, such letters are rarely
considered adverse employment actions, particularly where they do not result in any financial
harms. See Baloch, 550 F.3d at 1199 (counseling letter was not an adverse action even under the
more permissive standard for an adverse action in a retaliation claim); see also Hyson v. Architect
of the Capitol, 802 F. Supp. 2d 84, 102 (D.D.C. 2011) (commenting that letters of counseling “will
rarely constitute [] adverse action until Title VII”). In this case, the counseling letter listed
deficiencies in plaintiff’s performance and ways she could improve her work. Counseling Letter
25
at 1–2. More importantly, the letter was never added to plaintiff’s permanent personnel file and
did not trigger any financial repercussions. Fleming Decl. ¶ 11. It, therefore, does not qualify as
an adverse employment action.
The final alleged adverse actions raised by plaintiff – the “unsuccessful” special rating, the
denial of plaintiff’s within-grade increase, and imposition of a PIP – must be considered together.
On January 31, 2017, one year after issuing the letter of counseling, Fleming issued plaintiff an
unscheduled special rating, which found plaintiff’s performance to be “unacceptable.” See Ex. 11
to Fleming Decl. Thereafter, in accordance with NASA policy, Fleming denied plaintiff her
anticipated wage increase and placed her on a PIP. Because the special rating led to the denial of
plaintiff’s WIGI, which is a financial harm, they are both properly considered to be “adverse
consequences affecting the terms, conditions, or privileges of employment. . . .” Forkkio, 306
F.3d at 1131.
On the other hand, placement on a PIP is generally not considered an adverse action in a
discrimination claim unless it triggered consequences such as a demotion or loss of pay. See
Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (placement on a PIP did not constitute an
adverse employment action because there was no evidence suggesting that the PIP affected
plaintiff’s salary or grade). In this case, placing plaintiff on a PIP was required under NASA policy
once Fleming issued the unacceptable rating. See Ex. 12 to Fleming Decl. [Dkt. # 14-2] at 3
(Section 4.8.1.a). Denying plaintiff’s WIGI was also required. Id. at 3 (Section 4.8.4). Because
issuance of the PIP was mandatory, and it was the rating and not the PIP that delayed plaintiff’s
wage increase, the PIP itself did not itself result in any tangible consequences, and it is not an
adverse action.
26
2. NASA has provided non-discriminatory reasons.
Having determined which actions qualify as adverse employment actions, the Court next
turns to assessing whether the non-discriminatory reasons proffered by defendant for the adverse
actions are legitimate, or, as plaintiff argues, pretext for discrimination.
A plaintiff can show that her employer’s proffered explanation is pretext for discrimination
by providing “evidence sufficient for a jury to find . . . ‘that the defendant’s explanation is
unworthy of credence’ and that a jury could ‘reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory purpose.’” Primas v. District of
Columbia, 719 F.3d 693, 697 (D.C. Cir. 2013), quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 147 (2000). A plaintiff may point to “changes and inconsistencies in the stated
reasons for the adverse action[,]” Brady, 520 F.3d at 495 n.3, or “might also establish pretext with
evidence that a factual determination underlying an adverse employment action is egregiously
wrong[.]” Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).
Here, plaintiff argues that she must have been the victim of discrimination because she was
subjected to the adverse actions while two coworkers who were younger and did not have
disabilities were not. She claims that the record “teems with evidence of the pretextual nature of
[d]efendant’s explanations for the adverse actions taken against plaintiff[.]” Pl.’s Opp. at 44.
But defendant has come forward with evidence to show that the agency’s actions were
based on legitimate, non-discriminatory reasons:
• Plaintiff’s 2015 desk audit, which was not conducted by Fleming, revealed
plaintiff was not working at a high enough level. See Ex. 1 to Fleming Decl.
• Mr. Condes expressed concern about plaintiff’s failure to adequately
perform her duties in March 2015. See Ex. 18 to Teale Decl.
27
• Plaintiff was issued a counseling letter in January 2016 that listed her
specific deficiencies in in critical element 1 and told her what needed to be
improved. See Counseling Letter.
• Plaintiff’s 2015-2016 performance review contained a note that she was
“not performing with the level of detail and understanding required for this
position[,]” and plaintiff’s November 2016 mid-point review also
mentioned her underperformance in critical element 1. See Ex. 4 to Fleming
Decl. at 7.
• The special rating assessed plaintiff’s performance in critical element 1 as
“Fails to Meet Expectations.” Ex. 11 to Fleming Decl. at 2.
• The PIP noted plaintiff’s shortcomings in critical element 1. See Ex. 14 to
Fleming Decl. at 1.
Each of these assertions was accompanied by a detailed explanation, and the expected
improvement was clearly described.
Plaintiff has failed to adduce any evidence beyond her conclusory assertions that any of
these explanations was simply a pretext for discrimination. First, while not dispositive, it is worth
noting that plaintiff is the same race as Fleming, who issued the special rating and withheld
plaintiff’s wage increase. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3. As some other courts in this district have
suggested, when a person accused of discriminating against another based on race is of the same
race, it may make the claim “suspect.” Hardy v. Marriott Corp., 670 F. Supp. 385, 392
(D.D.C. 1987); accord Watson v. D.C. Water & Sewer Authority, No. CV 16-2033 (CKK), 2019
WL 6000201, at *13 (D.D.C. Nov. 15, 2018).
Second, the record shows that Patricia Shephard, one of the co-workers plaintiff compared
herself to, had different responsibilities than plaintiff but is the same race and approximately the
same age as plaintiff, see Ex. 2 to Def.’s Reply, Second Decl. of Devon Fleming [Dkt. # 20-2]
¶¶ 3, 5; Supplemental Decl. of Kathleen Teale [Dkt. # 20-1] ¶ 6; Pl.’s Opp. ¶ 55, and the other
NASA employee, who is also an African American woman, replaced plaintiff after she retired,
28
which defendant contends cannot be used as evidence of pretext. Def.’s Reply at 19-20 n.15; see
also Fleming Dep. at 16, 23–24; Carter Decl. ¶ 61. Plaintiff’s conclusory arguments about
additional evidence of racial discrimination are, accordingly, contradicted by the record and
insufficient to rebut defendant’s explanation for the adverse actions.
In her opposition, plaintiff already repeats the litany of employment events she was
unhappy with, however, plaintiff has pointed to no facts to create a genuine dispute on the question
of defendant’s motivation. Accordingly, summary judgment will be granted for defendant on
Counts IV, V, and VIII.
B. Summary judgment will be granted for defendant on plaintiff’s retaliation
claims because plaintiff has not come forward with facts to show that
defendant’s stated legitimate reasons were pretextual.
1. Legal Framework
The Rehabilitation Act, Title VII, and the ADEA make it illegal for an employer to retaliate
against an employee for engaging in a protected activity, including opposing unlawful employment
practices and bringing discrimination charges under any of the three statutes. See Gomez-Perez v.
Potter, 553 U.S. 474, 479 (2008) (the ADEA); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015)
(Title VII); Baloch, 550 F.3d at 1198 (Rehabilitation Act). To prove retaliation in the absence of
direct evidence of retaliation, a plaintiff must establish “(1) that [s]he engaged in statutorily
protected activity; (2) that [s]he suffered a materially adverse action by [her] employer,” Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); and 3) that her “protected activity was a but-for
cause of the alleged adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 362 (2013); see also Baloch, 550 F.3d at 1198. As with discrimination claims, once a
defendant asserts legitimate, non-retaliatory reasons for its conduct, “the district court should []
29
proceed[] to the ultimate issue of retaliation vel non instead of evaluating whether [plaintiff] made
out a prima facie case.” Jones, 557 F.3d at 678.
2. Application
Plaintiff contends that defendant retaliated against her in violation of the Rehabilitation
Act (Count II), Title VII (Count VI), and the ADEA (Count IX). She identifies the same adverse
actions listed in the discrimination claims as constituting retaliatory acts, along with Fleming’s
“screaming” at plaintiff in March and May 2015, Fleming’s failing to grant plaintiff’s requests to
telework in 2016, and NASA’s “ignoring Plaintiff’s physician’s dire warning of the life-
threatening effects of the abusive OIIR work environment on Plaintiff’s health[.]” Pl.’s Opp.
at 46 n.41. Plaintiff argues that these actions were in response to the multiple protected activities
she engaged in over the course of several years, and their retaliatory nature is supported by the
temporal proximity between her participation in those activities and the challenged conduct. See,
e.g., Pl.’s Opp. at 21. She submits that a reasonable person working her position would have taken
actions as the message: “engage in protected activities and you will be met with the . . . retaliatory
measures, that place you in a ‘life or death’ situation.” Id. at 47. She asserts that “[a] more chilling
message cannot be envisioned.” Id.
Defendant notes that the alleged screaming incidents cannot be retaliatory events because
they pre-dated plaintiff’s participation in protected activities. Def.’s Mem. at 22–25; Def.’s Reply
at 19. So those will be excluded.
As for the others, the test for whether an employment event is an adverse action for
purposes of a retaliation claim is less stringent than the test that applies in a discrimination claim.
As plaintiff’s opposition recognizes, an “employer’s actions must be harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
30
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006). In this case, however, the
Court need not determine whether the alleged adverse events qualify, because summary judgment
will be granted based on plaintiff’s failure to come forward with evidence to create a genuine
dispute with respect to the legitimate, non-retaliatory reasons identified by the defendant.
Defendant has proffered a legitimate, non-retaliatory reason for the challenged actions. He
contends that each of the complained-of events flowed directly from the 2015 desk audit. After
Fleming adjusted plaintiff’s job duties so that she could maintain her grade and pay levels, plaintiff
was told repeatedly that she was not performing satisfactorily. See Ex. 18 to Teale Decl.;
Counseling Letter. There is evidence to show that the “unacceptable” special rating that affected
the wage increase came after those problems did not improve. See Ex. 11 to Fleming Decl. at 7.
Once defendant came forward with this evidence, it fell to plaintiff to point to facts that
would create a question for the jury concerning defendant’s true intent, and whether retaliation
was the but-for cause of plaintiff’s counseling and negative ratings. But plaintiff’s response is
highly conclusory, and this is the point in the litigation when she is supposed to put meat on the
bones of her complaint. Plaintiff objects to defendant’s contentions, Pl.’s Opp. at 50, and she says
that defendant’s proffered explanations fail for the same reasons set out in connection with the
discrimination claims.
But the Court has already determined that defendant’s legitimate reasons for the adverse
actions in plaintiff’s discrimination claims are sufficient to overcome plaintiff’s allegations; and
the same is true here, even with the expanded list of adverse actions. Plaintiff points to no facts to
lead one to doubt that following the 2015 desk audit, she continuously failed to meet performance
expectations for her position description, was put on notice of her shortcomings and of ways she
could improve, and that she still was unable to meet expectations.
31
Since plaintiff has not pointed to any genuine dispute with respect to those facts, and she
does not identify the facts that would lead a jury to conclude those reasons were pretextual,
judgment will be granted in favor of defendant.
III. Plaintiff’s hostile work environment claims
In Counts III, VII, and X, plaintiff asserts hostile work environment claims under the
Rehabilitation Act, Title VII, and the ADEA. Specifically, plaintiff alleges that “beginning in
October 2015, Ms. Fleming and Mr. Condes began and continued unabated a pattern of unwelcome
harassment, intimidation and ridicule directed at Plaintiff,” because she “opposed unlawful
employment practices” under the different statutes, and “for participating in protected EEO
activities.” Compl. ¶¶ 85, 117, 141.
“Hostile [work] environment claims are different in kind from discrete acts. Their very
nature involves repeated conduct[,]” and may extend over days or years; therefore, “a single act of
harassment may not be actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 115 (2002). A plaintiff supports a claim for a hostile work environment when she
adduces evidence that shows that “the workplace is permeated with [retaliatory] intimidation,
ridicule, and insult” that is “sufficiently severe or pervasive [as] to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., 510
U.S. 17, 21 (1993) (citation and internal quotation marks omitted). To “determin[e] whether an
actionable hostile work environment claim exists, [courts] look to ‘all the circumstances,’
including ‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.’” Morgan, 536 U.S. at 116, quoting Harris, 510 U.S.
at 23. That analysis takes into consideration whether the behavior creates “an objectively hostile
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or abusive work environment – an environment that a reasonable person would find hostile or
abusive” and whether the plaintiff “subjectively perceive[s] the environment to be abusive[.]”
Harris, 510 U.S. at 21.
In the complaint, plaintiff failed to specify which events constitute her hostile work
environment claim. See generally Compl. ¶¶ 84–90. In her opposition to the motion for summary
judgment, she clarifies that “[b]eginning in 2015, and continuing unabated into early 2017,
Plaintiff was subjected to unrelenting abuse and harassment from Fleming[,]” which was “based
on Plaintiff’s race, gender, disability and her having engaged in protected activities.” Pl.’s Opp.
at 53–54. Plaintiff argues that the harassment included:
(1) screaming; (2) abusing NASA’s performance management standards
and expectations by having myriad duties foisted on [plaintiff] that were not
achievable and were unduly harsh; (3) denial of requests to telework; (4)
requiring [plaintiff] to be “investigated” by one of the harassers named in
her anti-harassment complaint; (5) being issued a Letter of Counseling; (6)
denial of [plaintiff’s] requests for reasonable accommodation; (7) being
issued a WIGI denial in January 2017; and (8) being issued a PIP in
February 2017.
Id. at 54 n.51. She adds that those events and the “level of animosity directed at Plaintiff”
increased after her participation in protected activities and became so extreme that they put her life
at risk and affected her ability to do her job. 12 Id. at 54.
Defendant offers several reasons why plaintiff’s claims fail as a matter of law. For one,
defendant argues that plaintiff’s claims are based on “an ‘array of unrelated’ acts separated by
significant gaps in time.” Def.’s Mem. at 29. They, accordingly, are not sufficient to prove a
hostile work environment. Id. Defendant also notes that two of the events – the yelling incidents
that took place in March and May 2015 – “occurred more than 45 days from [plaintiff’s] December
12 Plaintiff adds that the hostility also affected her economically by forcing her to retire
involuntarily.
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2015 EEO contact[,]” and therefore, are not administratively exhausted and “cannot form the basis
for a hostile work environment claim.” Id. Finally, he contends that plaintiff “cannot establish
that the conduct identified could possibly be deemed ‘hostile’ or motivated by any discriminatory
or retaliatory animus.” Id. at 28. For those reasons, he submits that the conduct “fails to rise to
the requisite level to support a hostile work environment claim as a matter of law.” Id. For all
those reasons, defendant argues summary judgment should be granted in his favor on plaintiff’s
hostile work environment claims.
There is no question that plaintiff and Fleming had a difficult relationship that lasted for
several years. It is also clear that plaintiff suffered from health issues that were exacerbated by
stressful situations. And neither party disputes that as a result of the conduct alleged in the
complaint and opposition, plaintiff subjectively felt that her work environment was abusive. See
Def.’s Reply at 25. However, that is only half of plaintiff’s battle. She must still prove that her
work environment was so permeated with discriminatory or retaliatory intimidation, ridicule, and
insult that a reasonable employee in her position would find it abusive.
As a threshold matter, contrary to defendant’s contention, the yelling incidents in March
and May 2015 may be included in the list of harassing events. Administrative exhaustion applies
equally to hostile work environment claims as it does to discrete discrimination claims. See Park,
71 F.3d at 907. As part of that process, a plaintiff is required to contact an EEO counselor “within
45 days of the date of the matter alleged . . . .” 29 C.F.R. § 1614.105(a)(1); see also Morgan, 536
U.S. at 122. However, unlike in a discrimination claim, in the hostile work environment context,
“[i]t does not matter . . . that some of the component acts of the hostile work environment fall
outside the statutory time period. Provided that an act contributing to the claim occurs within the
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filing period, the entire time period of the hostile environment may be considered by a court . . . .”
Morgan, 536 U.S. at 117.
Here, the parties agree that plaintiff first contacted an EEO counselor on December 21,
2015, more than seven months after the yelling incidents and well outside the statutory time period.
See Pl.’s Opp. at 19; Def.’s SOF ¶ 13; see also April 2016 EEO Compl. at 1. She filed an EEO
complaint on April 5, 2016, see April 2016 EEO Compl., and it included timely allegations in
addition to the yelling incidents. The yelling incidents, therefore, may be considered as allegedly
hostile acts.
The incidents the Court must consider, then, are the yelling, the assignment of additional
job duties, the supposed denial of the request to telework, the fact that it was Condes who
investigated the harassment claim, and plaintiff’s receipt of a negative special rating, which led to
the denial of a wage increase, and placement on a PIP.
The Court finds that for a number of reasons, the evidence regarding those events does not
support plaintiff’s hostile work environment claim. With respect to discrimination, plaintiff points
to no direct or circumstantial evidence of discriminatory bias based on her race, her age, or her
disability. And other than the fact that her negative evaluations piled up at the same time that her
EEO action was pending, she does not point to any evidence of retaliatory motive.
Also, there is no evidence that any of the activities was motivated by discriminatory or
retaliatory animus. As discussed in the Court’s analysis of plaintiff’s discrete discrimination and
retaliation claims, plaintiff was afforded episodic telework as a reasonable accommodation for her
disability, Condes was identified as the proper person to investigate plaintiff’s harassment claims
pursuant to NASA’s internal policies, and plaintiff has not shown that it was anything other than
her own failures to adequately carry out her job responsibilities that led to her receipt of the
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negative special rating, which in turn automatically triggered the denial of her WIGI and placement
on a PIP.
Furthermore, these distinct events are not sufficiently severe or pervasive to constitute a
hostile work environment. They are the ordinary tribulations of the workplace, and they took place
over two years, in accordance with NASA’s policies. These facts counsel against a finding that
the conduct was unduly harsh or persistent enough to create a hostile work environment.
Therefore, while the Court is sympathetic to plaintiff’s frustration with her working
environment and her ongoing medical troubles, it, nonetheless, finds that based on the evidence
presented by the parties, a reasonable jury could not find that plaintiff was exposed to a hostile
work environment. The Court will, accordingly, grant summary judgment for defendant on Counts
III, VII, and X.
IV. Plaintiff’s constructive discharge claim
Plaintiff’s final claim is for constructive discharge, although she fails to identify which
statute(s) forms the basis of the allegation. Plaintiff alleges that “Ms. Fleming’s abusive and
endemic discriminatory and retaliatory conduct and harassment . . . directly and catastrophically
adversely affected Plaintiff’s health and her ability to perform her job.” Compl. ¶ 148. She argues
that she
did not voluntarily retire and was constructively discharged since (1)
[d]efendant failed to participate in good faith in the reasonable
accommodation process; (2) [d]efendant engaged in unlawful
discrimination and retaliation in violation of the VRA, Title VII and the
ADEA; (3) there existed conditions that would have prompted a reasonable
person to resign; and (4) there are aggravating factors that warrant a
constructive discharge finding, including [d]efendant’s failure to protect
[p]laintiff from direct threats to her health by failing to consider
reassignment or transfer.
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Pl.’s Opp. at 52. To support her claim, plaintiff directs the Court to a December 16, 2016 letter
from Doctor Dallas, her physician at George Washington University Hospital, which plaintiff
argues shows that “the OIIR work environment was life threatening.” Pl.’s Opp. at 51. 13 She
maintains that her “working conditions had become so intolerable that a reasonable employee in
her position would have been compelled to resign.” Id.
Defendant moves for summary judgment on two grounds. He argues that plaintiff’s claim
fails because the record does not support her hostile work environment claim, which he contends
is a requirement for pleading constructive discharge. Def.’s Mem. at 31. He also insists that the
evidence shows that plaintiff was not exposed to conditions that were so intolerable that she had
no choice but to retire, but instead that she had been planning for her retirement and, in fact,
delayed her retirement date, even while the allegedly intolerable events continued. Def.’s Mem.
at 30–31.
“[R]esignations or retirements are presumed to be voluntary,” Veitch v. England, 471
F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring) (citation and internal quotation marks
omitted), but in certain cases, “the doctrine of constructive discharge enables an employee to
overcome the presumption of voluntariness and demonstrate she suffered an adverse employment
action by showing the resignation or retirement was, in fact, not voluntary.” Aliotta v. Bair,
614 F.3d 556, 566 (D.C. Cir. 2010). The doctrine is available to a plaintiff whose claim meets an
objective test: “whether a reasonable person in the employee’s position would have felt compelled
to resign under the circumstances.” Id.
13 The letter stated that plaintiff’s “stressful working environment is detrimental to her health
causing her to have episodes of hypertensive emergency which may lead to exacerbated health
problems of stroke, heart attack, kidney failure, or even death.” Dallas Letter. It also asked NASA
to try to reassign plaintiff. Id.
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The Court agrees with defendant that because the record does not support plaintiff’s hostile
work environment claim – or any of plaintiff’s claims – her constructive discharge claim fails as
well. See Sewell v. Hugler, No. 08-5079, 2009 WL 585660, at *1 (D.C. Cir. Feb. 25, 2009) (“To
establish constructive discharge claims under Title VII, a plaintiff must show not only that her
working environment was hostile, but also that it became so intolerable that her resignation
qualified as a fitting response.”) (citation and internal quotation marks omitted); accord Peters v.
District of Columbia, 873 F. Supp. 2d 158, 204 (D.D.C. 2012); see also McKeithan v. Boarman,
803 F. Supp. 2d 63, 70 n.5 (D.D.C. 2011) (“[B]ecause [plaintiff] has failed to show that his working
environment was hostile, he cannot establish that he was constructively discharged.”).
Moreover, while plaintiff maintains that NASA’s failure to participate in good faith in the
reasonable accommodation process is an aspect of what made the environment so intolerable that
she had to resign, the record shows that she retired in the midst of NASA’s consideration of her
second accommodation request – the one supported by the doctor’s letter notifying the agency of
the deterioration of her health. And since she retired two weeks after she finally submitted the
necessary paperwork, and the agency had not yet responded, and since her retirement had long
since been in the works, one cannot find that it was necessitated by the agency’s failure to respond
to her health concerns. Def.’s SOF ¶ 63; Pl.’s SOF ¶ 63; Carter Dep. at 155:20–156:11.
Based on these facts, a reasonable jury could not find that plaintiff was constructively
discharged from NASA, and the Court will grant summary judgment for defendant on Count XI.
CONCLUSION
For the reasons stated above, the Court will grant defendant’s motion for summary
judgment. A separate order will issue.
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AMY BERMAN JACKSON
United States District Judge
DATE: March 31, 2020
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