Richardson v. Duke ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN G. RICHARDSON,
Plaintiff,
v. Civ. Action No. 17-1588
(EGS/ZMF)
ALEJANDRO MAYORKAS, in his
official capacity as
Secretary of the United
States Department of
Homeland Security,
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff John G. Richardson (“Mr. Richardson” or
“Plaintiff”) has sued his former employer—Defendant Alejandro
Mayorkas in his official capacity as Secretary of the United
States Department of Homeland Security (“DHS” or “Defendant”). 1
He raises claims of discrimination based on disability and
failure to accommodate under the Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. § 794, et seq., and 42 U.S.C.
§ 1981a of the Civil Service Reform Act of 1978 (“Civil Service
Reform Act”); hostile work environment and retaliation under
1 Pursuant to Federal Rule of Civil Procedure 25(d), the current
Secretary of DHS “is automatically substituted as a party” for
his predecessor.
1
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq.; a due process violation pursuant to 5
U.S.C. § 7513(b)(1); failure to reemploy in violation of the
Uniformed Services Employment and Reemployment Rights Act of
1994 (“USERRA”), codified at 38 U.S.C. §§ 4301-4333; and failure
to consider efficiency of service. See Am. Compl., ECF No. 26 at
1-2 ¶¶ 1-3, 14-18 ¶¶ 68-95. 2
Pending before the Court is Defendant’s Motion for Summary
Judgment. See Def.’s Mot., ECF No. 41. The Court referred this
case to Magistrate Judge Zia M. Faruqui for full case
management, including preparation of a Report and Recommendation
(“R. & R.”) for this motion. See Minute Order (Oct. 13, 2020).
Magistrate Judge Faruqui issued his R. & R. recommending that
this Court grant Defendant’s Motion for Summary Judgment. See R.
& R., ECF No. 52 at 1. Mr. Richardson raises several objections
to Magistrate Judge Faruqui’s R. & R. See generally Pl.’s Objs.
to Magistrate Judge’s R. & R. (“Pl.’s Objs.”), ECF No. 53.
Upon careful consideration of the R. & R., the objections
and response thereto, the applicable law and regulations, and
the entire record herein, the Court hereby ADOPTS Magistrate
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document, with the exception of deposition testimony,
which is to the page number of the deposition transcript.
2
Judge Faruqui’s R. & R., see ECF No. 52; and GRANTS Defendant’s
Motion for Summary Judgment, see ECF No. 41.
II. Background 3
A. Factual Background
In 2008, Mr. Richardson began his career with DHS as a
Senior Operations Analysis Specialist (“SOAS”) within Customs
and Border Patrol (“CBP”), Office of Internal Affairs (“IA”),
Integrity Programs Division (“IPD”). See Pl.’s Counterstatement
of Disputed Facts (“SOMF”), ECF No. 47-4 at 1 ¶ 1. In 2010, Mr.
Richardson was deployed to Africa with the U.S. Navy, and during
pre-deployment combat training, he sustained injuries that
manifested in chronic lower back pain with associated weakness
and numbness in his leg, and pain radiating to his right lower
extremity. See id. at 1-2 ¶¶ 2-3; Pl.’s Ex. Z, ECF No. 47-31 at
4. These injuries limited Mr. Richardson’s ability to sit or
stand for prolonged periods of time and reduced his ability to
concentrate. See SOMF, ECF No. 47-4 at 2 ¶ 3; Pl.’s Ex. Z, ECF
No. 47-31 at 2.
In September 2011, after completing his deployment, Mr.
Richardson returned to the U.S., SOMF, ECF No. 47-4 at 2 ¶ 4;
and from then until September 2012, he was placed on a temporary
medical hold for physical evaluation, id. at 3 ¶ 7. After being
3 The Background section closely tracks Magistrate Judge
Faruqui’s R. & R. See R. & R., ECF No. 52 at 2-9.
3
medically separated from the military, on September 18, 2012,
Mr. Richardson returned to DHS in the same position that he held
prior to deployment—as a SOAS. Id. at 2 ¶ 5, 3 ¶ 9. His first-
line supervisor was Mr. Ryan Lid (“Mr. Lid”), his second-line
supervisor was Ms. Susan Keverline (“Ms. Keverline”), and his
third-line supervisor was Mr. Jeffery Matta (“Mr. Matta”). Id.at 2 ¶ 6; Def.’s Ex. B., ECF No. 41-7 at 3.
1. Mr. Richardson’s Request for Reasonable
Accommodations
On August 3, 2012, prior to his return to work, Plaintiff
emailed Mr. Matta—the then-Director of IA, IPD—estimating his
return date and advising that “I am now an [eighty] percent
disabled veteran. Also, I have some accommodations that I will
be requesting necessary to support my long-term health.” Pl.’s
Ex. A, ECF No. 47-6 at 1. Mr. Matta requested that Mr.
Richardson forward “whatever special accommodations [he might]
require so that [management could] ensure they [were] addressed
timely.” Pl.’s Ex. G, ECF No. 47-12 at 3. On August 6, 2012, Mr.
Matta and Mr. Richardson spoke on the phone, during which
Plaintiff stated that he had problems with prolonged sitting and
standing, that he needed to be hyper-vigilant about his physical
fitness, and that he did not think returning to IPD was a good
idea. Def.’s Ex. D, ECF No. 41-9 at 2. On August 16, 2012, Mr.
Matta emailed Mr. Richardson in follow up, directing him to
4
identify the “specific job [he was] interested in and [Mr. Matta
would] do everything [he could] to facilitate a reassignment.”
Pl.’s Ex. G, ECF No. 47-12 at 1. Mr. Richardson later updated
his return date to September 17, 2012 and provided his resume to
Mr. Matta “in case it prove[d] helpful in placing [him] within
CBP.” Def.’s Ex. D-1, ECF No. 41-10 at 3.
On his first day back, Mr. Richardson was met with a return
celebration for his service. See Pl.’s Ex. K, ECF No. 47-16 at
409:21–410:17. During the celebration, he alleges that Assistant
Commissioner James Tomsheck (“AC Tomsheck”) said that IPD was
the “best place” for him. Id. at 411:10–12. Later that day, Mr.
Richardson met with Mr. Matta, Mr. Lid, and Ms. Keverline. See
id. at 410:18-19. During that meeting, Mr. Richardson alleges
that Mr. Matta stated: “John, you’re staying in IPD. . . . You
can go out there and tell anybody you want to tell about it, I
don’t care. That’s your business.” Id. at 411:3-6. Thereafter,
Mr. Richardson claims he reiterated his need for reassignment to
his supervisors, but that Mr. Lid responded, “Well, why don’t
you just retire retire?”—id. at 413:1-414:17; which Mr. Lid
testified meant reference to general retirement as opposed to
military retirement, see Pl.’s Ex. L, ECF No. 47-17 at 271:2-15.
On September 26, 2012, Mr. Lid put Mr. Richardson in contact
with an Employment Relations (“ER”) Specialist to address his
accommodation request. See Def.’s Ex. I-3, ECF No. 41-28 at 2.
5
On October 2, 2012, Mr. Richardson contacted Mr.
Christopher Smoot (“Mr. Smoot”) of the Office of Diversity and
Civil Rights (“DCR”) within DHS to allege the denial of his
accommodation request and his concern about being “subjected to
[ ] additional hostile treatment, harassment, and/or prohibited
personnel practices between now and whenever [he was]
reassigned.” Pl.’s Ex. Q, ECF No. 47-22 at 6. But see Def.’s Ex.
L, ECF No. 41-35 at 14 (disputing Mr. Richardson’s claim that
his “request for reasonable accommodations ha[d ] been denied”).
Mr. Smoot met with Mr. Richardson the next day to discuss his
complaints. See SOMF, ECF No. 47-4 at 7 ¶ 18. Based on their
communications, Mr. Smoot believed that Mr. Richardson did not
want to enter the DCR reasonable accommodation or the Equal
Employment Opportunity (“EEO”) complaint process because he was
focused instead on filing an external complaint. See Pl.’s Ex.
F, ECF No. 47-11 at 118:17–22; Pl.’s Ex. Q, ECF No. 47-22 at 4-
5. Mr. Richardson agrees that he declined to enter the EEO
process but disputes that he refused to move forward with his
accommodation request. See SOMF, ECF No. 47-4 at 7-8 ¶¶ 18–19.
On October 22, 2012, Mr. Richardson informed DCR of his
intent to file an EEO complaint against CBP “for denial of [his]
request for accommodations due to [his] military-service related
veterans disabilities[,]” directing subsequent communications to
his attorney. Pl.’s Ex. Y, ECF No. 47-30 at 1. The next day, Mr.
6
Richardson forwarded this email to his supervisors, see id.; and
on October 24, 2012, Mr. Matta sent a letter to Mr. Richardson’s
physician requesting medical documentation to determine his
entitlement to reasonable accommodations, see Def.’s Ex. G-1,
ECF No. 41-14 at 2-4. In a letter dated November 1, 2012, Mr.
Richardson’s physician, Dr. MariaPaz Babcock (“Dr. Babcock”),
recommended that DHS implement the following accommodations: (1)
reassignment to a position that was not predominantly sedentary;
(2) use of leave for continued rehabilitation; and (3) access to
gym facilities, with reassignment to the Reagan Building as one
solution to provide facility access. See Pl.’s Ex. Z, ECF No.
47-31 at 2. Dr. Babcock opined that “with reasonable
accommodations, Mr. Richardson [could] work for the Agency in a
productive capacity, but that without accommodations, [his]
health [would] quickly decline.” Id.Mr. Smoot then contacted the Job Accommodation Network
(“JAN”) on November 7, 2012 to obtain technical guidance on
accommodating Mr. Richardson. 4 See Def.’s Ex. G-4, ECF No. 41-17
at 1. JAN made recommendations for a “Contract Specialist” with
Mr. Richardson’s medical conditions, including: reducing or
eliminating physical exertion and workplace stress; scheduling
4 JAN is “a free consulting service, provided by the U.S.
Department of Labor’s Office of Disability Employment Policy,
designed to increase the employability of people with
disabilities[.]” See Def.’s Ex. G-5, ECF No. 41-18 at 4 n.1.
7
periodic rest breaks away from the workstation; allowing a
flexible work schedule and flexible use of leave time; allowing
work from home; implementing an ergonomic workstation design;
providing a scooter or other mobility aid if walking could not
be reduced; providing a height adjustable desk and ergonomic
chair; moving the workstation close to common use office
equipment; providing a low task chair and rolling safety ladder;
and providing a cart to move files, mail, and supplies. Id.On November 9, 2012, Mr. Smoot submitted an accommodation
request on behalf of Mr. Richardson, relaying his request for
reassignment to a non-sedentary position outside of IA, IPD. See
Def.’s Ex. G-5, ECF No. 41-18 at 3. By letter dated November 23,
2012, Mr. Matta denied this request, stating: “Reassignment to
an open position is the accommodation of last resort and is
implemented only when no other accommodation has proved
effective.” See Def.’s Ex. G-6, ECF No. 41-19 at 3. Instead, Mr.
Matta offered Mr. Richardson six accommodations: (1) the ability
to take frequent breaks within the building of up to 15 minutes
without supervisory approval; (2) access to any team meeting
room or empty office space during breaks if he needed to stretch
or rest in private; (3) the ability to take longer breaks or
breaks outside the building, as long as he advised management of
the break in advance and of his approximate return time; (4) the
ability to adjust his arrival or departure time in order to use
8
the gym facilities in the Reagan Building so long as he worked
his eight-hour shift during IPD’s core business hours; (5) the
ability to have his work station evaluated by a specialist in
ergonomic workplaces and thereafter have the “best work station”
provided to him; and (6) guaranteed approval of leave for all
prescribed rehabilitation appointments for the next six months.
Id. at 3-4. The letter informed Plaintiff that he could seek to
modify these accommodations if they proved ineffective and could
request reconsideration by submitting a written request within
ten calendar days of his receipt of the letter. Id. at 4.
While Mr. Richardson had already taken stretch breaks
during the workday, he did not try the other accommodations he
was offered. See Def.’s Ex. A, ECF No. 41-6 at 43:8–44:19.
However, by letter dated November 29, 2012, Mr. Richardson
requested “reconsideration of the reasonable accommodation
options the Agency offered to him,” and asked to telework or be
transferred internally while IA processed his request. See
Def.’s Ex. G-7, ECF No. 41-20 at 2-3. Mr. Richardson
acknowledged that reassignment could require him to reduce his
pay grade, and he expressed his willingness to do so. Id. at 3.
In support of his request for reconsideration, Dr. Babcock
provided a supplemental letter reiterating Mr. Richardson’s
request for reassignment to a more active position. See Def.’s
Ex. G-8, ECF No. 41-21 at 2. However, Dr. Babcock was unaware of
9
DHS’s six proffered accommodations at the time she wrote this
letter. See Def.’s Ex. H, ECF No. 41-25 at 32:9–12. In later
deposition testimony, Dr. Babcock stated her opinion that each
of the accommodations would have been beneficial to Plaintiff in
continuing to perform in his sedentary position, and that she
“would have been very pleased with those accommodations if [she]
had known about them.” Id. at 32:13–34:9.
Following invocation of his rights under the Family Medical
Leave Act (“FMLA”), Mr. Richardson completed his last day in the
office on December 5, 2012 before going on approved FMLA leave.
SOMF, ECF No. 47-4 at 29 ¶ 86, 30 ¶ 88. That month, Mr. Matta
learned of an available position with the Security Management
Division in the Reagan Building. See Pl.’s Ex. JJ, ECF No. 47-41
at 1. However, after forwarding the position to Mr. Smoot, it
was determined that the duties of that position were primarily
sedentary and nearly equivalent to that of an SOAS, and so the
position was not offered to Plaintiff. See id.; Pl.’s Ex. B, ECF
No. 47-7 at 104:13–105:15, 213:7-214:16. In January 2013, DHS
granted Mr. Richardson’s reconsideration request and initiated a
search for non-sedentary vacancies. See SOMF, ECF No. 47-4 at 14
¶ 34. Mr. Matta informed Mr. Richardson of this decision via
letter on January 22, 2013, stating that a “job search [would]
be conducted to identify vacant funded positions in the local
commuting area.” Def.’s Ex. G-9, ECF No. 41-22 at 3.
10
In March 2013, Defendant conducted the first search for
positions equivalent to Mr. Richardson’s grade or one level
lower, but it did not yield any non-sedentary vacancies for
which he was qualified. See Def.’s Ex. E-1, ECF No. 41-12 at 7 ¶
17; Pl.’s Ex. J, ECF No. 47-15 at 3-5; SOMF, ECF No. 47-4 at 15
¶¶ 37-38. Two positions in Baltimore were identified, but they
were not raised because Baltimore was outside the local
commuting area. See Pl.’s Ex. LL, ECF No. 47-43 at 1-3.
Defendant then performed a DHS-wide job search for local,
vacant, funded, non-sedentary positions, but this search also
did not yield any qualifying positions. See Def.’s Ex. E-1, ECF
No. 41-12 at 8 ¶ 17. On May 28, 2013, Mr. Matta advised Mr.
Richardson by letter that no qualifying non-sedentary positions
were available. See Def.’s Ex. G-11, ECF No. 41-24 at 3. The
letter instructed Mr. Richardson to contact Mr. Matta if he
wished to have the job search expanded outside the Washington,
D.C. local commuting area, reemphasized Defendant’s willingness
to implement the six accommodations previously proposed, and
noted that failure to respond would constitute an end to the
accommodation process. See id. at 2-3. Mr. Richardson did not
respond to this letter. See SOMF, ECF No. 47-4 at 16 ¶ 41.
2. Disputes Between Mr. Richardson and DHS
On September 24, 2012, shortly after his return to IA, IPD,
Mr. Richardson was mistakenly notified that he owed $1,800.42
11
for unpaid health benefits. See Def.’s Ex. K-1, ECF No. 41-33 at
2. On September 28, 2012, Mr. Richardson emailed IA, with the
subject line, “Billed for [the Federal Employees Health Benefits
Program (“FEHB”)] while on Active Duty—Again!”—to explain that
he was “erroneously billed over ($1800.00) by FEHB for unpaid
health benefits” while he was on active duty, an error which
“happened to [him] in 2011 as well.” See Def.’s Ex. K-2, ECF No.
41-34 at 2-3. Mr. Richardson also claims he received erroneous
bills on a weekly basis as well as federal debt notification
letters. SOMF, ECF No. 47-4 at 22 ¶ 66; see Pl.’s Ex. RR, ECF
No. 47-48 at 36. Mr. Richardson was advised that officials would
look into the issue, see SOMF, ECF No. 47-4 at 22 ¶ 64; and on
October 12, 2012, Ms. Keverline informed Mr. Richardson that the
error had been resolved and “the FEHB bill was cancelled as of
10/4/12[,]” id. ¶ 65; Def.’s Ex. K-1, ECF No. 41-33 at 6.
On October 15, 2012, Mr. Richardson sent an email to Mr.
Matta with the subject line “Financial Harassment Continues—
10/15/2022, Hostile Environment Update,” advising Defendant of
40 hours missing from his paycheck. See Def.’s Ex. L, ECF No.
41-35 at 13. He requested an audit of his pay, to “include a
complete accounting of [his] military leave and [to] address the
erroneous health care bill deductions for coverage during [his]
active military duty time.” Id. at 13. Defendant conducted two
audits for various pay periods, see id. at 2-8; and ultimately
12
paid Mr. Richardson for this missing time. Id. at 11; see Def.’s
Ex. K-1, ECF No. 41-33 at 8 (“With respect to the 40 hours—We
already corrected the timecard[.]”).
In late October 2012, Mr. Richardson’s supervisors emailed
him to ask about his whereabouts after seeing him leave work
early. See Pl.’s Ex. V, ECF No. 47-27 at 2. Mr. Richardson
responded that he had already notified them that he was leaving
early due to “intolerable” back pain and stated that they “were
too preoccupied with finding fault with” him. Id. at 2-3.
In November 2012, Mr. Matta advised an ER Specialist of his
and Ms. Keverline’s concerns about Mr. Richardson. See Def.’s
Ex. N, ECF No. 41-37 at 2. Ms. Keverline noted that Plaintiff
appeared frustrated about his perceived mistreatment by IA
leadership, that the tone of his emails had changed over time,
and that he had created office stress. See id. at 4. Likewise,
Mr. Matta noted that Mr. Richardson was “becoming increasingly
irrational, withdrawn, non-responsive, [and] agitated,” causing
him to have “an altered view of reality” that was “creating
anxiety” in the workplace and “cause for concern.” Id. at 5-6.
He believed Mr. Richardson was “demonstrating warning signs that
[were] consistent with other workplace violence episodes.” Id.
at 6. The ER Specialist recommended referring Mr. Richardson to
the Employee Assistance Program (“EAP”). See id. at 2. When Mr.
13
Matta informed Mr. Richardson of the EAP referral, he objected
and left the room. See SOMF, ECF No. 47-4 at 26 ¶ 79.
On January 22, 2013, Mr. Richardson forwarded an email to
Mr. Lid expressing frustration about the effects of his leave
without pay (“LWOP”) status on his family and career. See Def.’s
Ex. O, ECF No. 41-38 at 7. He stated that he belonged to two
high-risk categories for suicide—service member and member of
law enforcement—and that he was not operating under optimal
conditions. See id. at 8. DHS contacted Mr. Richardson about the
possible implications of these statements regarding suicide. See
id. at 4. He denied having suicidal thoughts but claimed he was
raising the issue out of obligation “to those who would follow
in his footsteps” at DHS. Id.; SOMF, ECF No. 47-4 at 27 ¶ 81.
Between December 2012 and June 2013, Defendant placed Mr.
Richardson on “Do Not Admit” (“DNA”) status and issued a notice
featuring his picture to security personnel. See Def.’s Ex. M,
ECF No. 41-36 at 2; SOMF, ECF No. 47-4 at 28-29 ¶ 85. 5
3. Mr. Richardson’s Termination Following Excessive
Absenteeism
On November 1, 2012, Mr. Richardson invoked his FMLA
rights, which allowed him to take LWOP for up to twelve work
weeks during a twelve-month period. See Def.’s Ex. P, ECF No.
5 It is unclear from the record evidence when, for how long, and
who proposed the DNA notice. See R. & R., ECF No. 52 at 8 n.2.
14
41-39 at 2–3. Mr. Richardson was on approved FMLA leave from
December 6, 2012 to April 11, 2013, SOMF, ECF No. 47-4 at 30 ¶
88; but he did not return to the office after taking FMLA leave,
see Def.’s Ex. A, ECF No. 41-6 at 46:4–47:2.
On September 16, 2013, DHS sent Mr. Richardson a letter
proposing his removal from the Federal Service due to excessive
absenteeism. See Def.’s Ex. P-1, ECF No. 41-40 at 2. From
September 23, 2012 to September 7, 2013, he used “69.5 hours of
annual leave, 165 hours of sick leave, and 1016 hours of [LWOP]
. . . outside of the hours . . . invoked under the [FMLA].” Id.After Mr. Richardson replied to his proposed removal, see SOMF,
ECF No. 47-4 at 30 ¶ 91; Mr. Joseph Gaudiano, the deciding
official, sustained the excessive absenteeism charge and issued
notice of Mr. Richardson’s removal, effective March 8, 2014, see
Def.’s Ex. P-2, ECF No. 41-41 at 2; Def.’s Ex. P-3, ECF No. 41-
42 at 2.
On April 7, 2014, Mr. Richardson filed an appeal with the
U.S. Merit Systems Protection Board (“MSPB”). See Def.’s Ex. Q,
ECF No. 41-43 at 2. He alleged disability discrimination,
retaliation, violation of his due process rights, denial of
reemployment under USERRA, and discrimination based on his
military service. See id. at 3. On September 22, 2017, the MSPB
Administrative Judge (“AJ”) affirmed the removal action and
denied corrective action under USERRA. See id. at 2-3.
15
B. Procedural Background
On August 7, 2017, Mr. Richardson filed this action. See
Compl., ECF No. 1 at 1. On March 16, 2020, DHS filed its Motion
for Summary Judgment. See Def.’s Mot., ECF No. 41. Plaintiff
initially filed his opposition on June 26, 2020, see ECF No. 44;
but the parties consented to him filing a revised opposition
brief since the initial filing exceeded the allowable page
limit, see Unopposed Consent Mot. for Extension of Time to File
Pl.’s Revised & Compliant Opp’n, ECF No. 46 at 1-2; Minute Order
(July 15, 2020) (granting this motion). On August 13, 2020, Mr.
Richardson filed his Amended Opposition and accompanying
exhibits, see Pl.’s Opp’n, ECF No. 47; to which DHS replied on
November 13, 2020, see Def.’s Reply, ECF No. 51.
Magistrate Judge Faruqui, having been referred this case
for full case management, see Minute Order (Oct. 13, 2020);
issued the R. & R. on July 23, 2021, recommending that the Court
grant DHS’s Motion for Summary Judgment, see R. & R., ECF No. 52
at 1. On August 6, 2021, Mr. Richardson submitted his objections
to the R. & R. See Pl.’s Objs., ECF No. 53. DHS filed its
response on August 20, 2021. See Def.’s Resp., ECF No. 54. Mr.
Richardson’s objections are now ripe and ready for the Court’s
adjudication.
16
III. Standard of Review
A. Objections to a Magistrate Judge’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. See Fed. R. Civ. P. 72(b)(1)-
(2). A district court “may accept, reject or modify the
recommended disposition[.]” Fed. R. Civ. P. 72(b)(3); see also
28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”). A district
court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). “If, however, the party makes only conclusory or
general objections, or simply reiterates his original arguments,
the [c]ourt reviews the [R. & R.] only for clear error.”
Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013)
(citation and internal quotation marks omitted). “Under the
clearly erroneous standard, the magistrate judge’s decision is
entitled to great deference and is clearly erroneous only if on
the entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Buie v. Dist. of
Columbia, No. 16-1920, 2019 WL 4345712, at *3 (D.D.C. Sept. 12,
17
2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C.
2009) (internal quotation marks omitted)).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” LCvR 72.3(b). “[O]bjections which
merely rehash an argument presented [to] and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (citation omitted).
B. Motion for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). The moving party bears the initial burden “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, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986) (internal quotation marks omitted). This burden “may be
18
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
On the other hand, to defeat summary judgment, the
nonmoving party must “go beyond the pleadings” to designate
specific facts showing that there is a genuine issue of material
fact for trial. Id. at 324. A material fact is one that is
capable of affecting the outcome of the litigation, while a
genuine dispute is one in which “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The nonmoving party’s
opposition “must consist of more than mere unsupported
allegations or denials and must be supported by affidavits or
other competent evidence” in the record. Musgrove v. Dist. of
Columbia, 775 F. Supp. 2d 158, 164 (D.D.C. 2011), aff’d, 458 F.
App’x 1 (D.C. Cir. 2012); Celotex, 477 U.S. at 324. Furthermore,
in the summary judgment analysis, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson, 477 U.S. at 255.
IV. Analysis
DHS has moved for summary judgment on Plaintiff’s claims
for: (1) failure to accommodate; (2) hostile work environment;
(3) retaliation; (4) violation of due process; (5) failure to
reemploy; and (6) failure to consider efficiency of service
19
under the Rehabilitation Act, Title VII, the Civil Service
Reform Act, 5 U.S.C. § 7513(b)(1), and USERRA, see Def.’s Mot.,
ECF No. 41-3 at 1; and Magistrate Judge Faruqui recommended
granting DHS’s motion “for each claim[,]” R. & R., ECF No. 52 at
1. Mr. Richardson does not object to the R. & R.’s conclusions
as to his hostile work environment, due process, and efficiency
of service claims, see generally Pl.’s Objs., ECF No. 53; and
thus the Court adopts those findings and grants summary judgment
as to those claims. Instead, Plaintiff raises seven objections,
one pertaining to Magistrate Judge Faruqui’s determination of
the undisputed facts, two relating to Mr. Richardson’s
Rehabilitation Act claim, three pertaining to his retaliation
claim under Title VII, and one regarding his USERRA claims. The
Court addresses each objection in turn.
A. Magistrate Judge Faruqui Did Not Err in His
Determination of the Undisputed Facts
Mr. Richardson’s first objection is a factual one, claiming
that Magistrate Judge Faruqui failed to discuss a genuine issue
of material fact related to errors in his retirement pay
calculations, which he claims “contributed to the [financial]
harassment by Defendant[.]” See Pl.’s Objs., ECF No. 53 at 3-4.
Specifically, Mr. Richardson claims that the issue of whether
DHS “resolved the error regarding retirement pay calculations”
was not addressed in Magistrate Judge Faruqui’s determination
20
that DHS resolved the financial issues between itself and Mr.
Richardson. Id. (citing R. & R., ECF No. 52 at 7). DHS counters
that there is no genuine dispute regarding “whether the Agency
properly calculated Plaintiff’s retirement annuity date” because
he “never presented” this argument to the Court, and plus, “the
purported dispute related to [his] retirement pay calculation .
. . [was] related to [his] dispute with the Office of Personnel
Management[,]” not with DHS. Def.’s Resp., ECF No. 54 at 3-4.
The relevant summary judgment rules make clear that a court
may deem undisputed assertions of fact in a movant’s statement
of material facts that are not properly “controverted.” See LCvR
7(h)(1); Fed. R. Civ. P. 56(e)(2). “An assertion of fact
properly presented in a movant’s statement of material facts is
not ‘controverted’ when a non-movant supplies additional facts
and ‘factual context’ . . . that do not actually dispute the
movant’s asserted fact.” Toomer v. Mattis, 266 F. Supp. 3d 184,
191 (D.D.C. 2017); see also Gibson v. Off. of the Architect of
the Capitol, No. 00-2424, 2002 WL 32713321, at *1 n.1 (D.D.C.
Nov. 19, 2002) (“Plaintiff’s Statement is almost completely
unhelpful to the Court as its provisions rarely address the
facts outlined in Defendant’s Statement, instead describing in
lengthy detail the ‘contextual and structural background’
surrounding Defendant’s stated facts.”); Learnard v. Inhabitants
of the Town of Van Buren, 182 F. Supp. 2d 115, 119–20 (D. Me.
21
2002) (disregarding the plaintiff’s responsive factual
statements in part because many did “not actually controvert the
[d]efendants’ facts that they purport[ed] to address”). The
Court’s review of Plaintiff’s Counterstatement of Disputed Facts
reveals a pattern of failing to properly controvert DHS’s
asserted facts, in which he often writes “[u]ndisputed, subject
to clarification” before providing “additional, non-responsive
facts,” Toomer, 266 F. Supp. 3d at 191; or “[d]isputed in part”
based, not on an actual disputed fact, but on a disingenuous
objection to “an incomplete paraphrase of the cited exhibit[,]”
see generally SOMF, ECF No. 47-4; Gibson, 2002 WL 32713321, at
*1 n.1 (“Such excess, unresponsive verbiage is a clear violation
of both the letter and spirit of Local Rule [7(h)].”).
Mr. Richardson only raised the topic of his retirement
annuity calculation in response to the following fact proffered
by DHS: “By email dated October 12, 2012, Plaintiff was advised
that the FEHB bill was cancelled.” SOMF, ECF No. 47-4 at 22 ¶
66. He replied that this was “[u]ndisputed, subject to
clarification[,]” and then supplied unresponsive “factual
context,” writing that “[t]his statement [did] not reflect full
context of range of thousands of dollars of pay and benefits
mistakes [he] faced” upon his return to the office, and included
the issue of his retirement annuity as part of this “context.”
See id. (replying, irrelevantly, that “[o]n October 17, 2017,
22
[AJ] Mehrring ordered the Agency [to] accurately account from
and pay Plaintiff’s retirement annuity correctly[.]”). Not only
does this information not controvert DHS’s asserted fact, but
neither did Mr. Richardson properly identify the retirement pay
issue in his paragraphed list of the genuine issues of material
fact at the end of his Counterstatement of Disputed Facts. See
Graves v. Dist. of Columbia, 777 F. Supp. 2d 109, 111–12 (D.D.C.
2011) (“Where the opposing party has additional facts that are
not directly relevant to its response, it must identify such
facts in consecutively numbered paragraphs at the end of its
responsive statement of facts.”). Thus, regardless of whether
the issue was brought “to the Magistrate Judge’s attention in”
Plaintiff’s opposition, see Pl.’s Objs., ECF No. 53 at 4;
Magistrate Judge Faruqui was not required to consider this
“unhelpful” context in the SOMF that did not “admit, deny, or
qualify” DHS’s proffered fact about the FEHB bill, see Gibson,
2002 WL 32713321, at *1 n.1; Learnard, 182 F. Supp. 2d at 120.
Accordingly, Magistrate Judge Faruqui did not err in his
determination of the undisputed facts. Instead, the R. & R.
correctly summarizes the undisputed facts from the “Corrected
FEHB” and “Audit of Leave” sections of the SOMF, see R. & R.,
ECF No. 52 at 7; in which it was undisputed that Defendant
“resolved” the FEHB billing issues and notified Mr. Richardson
that the FEHB bill had been cancelled, see SOMF, ECF No. 47-4 at
23
22 ¶¶ 65-66. Magistrate Judge Faruqui also supplemented the
facts from the SOMF with evidence indicating that DHS
“ultimately paid Plaintiff for [the forty hours of] missing
time” from his paycheck. See R. & R., ECF No. 52 at 7 (citing
Def.’s Ex. L, ECF No. 41-35 at 11; Def.’s Ex. K-1, ECF No. 41-33
at 8). In sum, Magistrate Judge Faruqui “properly deemed
undisputed those facts which the parties explicitly stated were
not in dispute and those facts which the parties failed to
adequately controvert, and he appropriately filled in factual
gaps by scrutinizing the record submitted to the Court.” Toomer,
266 F. Supp. 3d at 191. The Court therefore overrules Mr.
Richardson’s objection to the R. & R.’s characterization of the
undisputed facts as to the financial issues between him and DHS. 6
B. Magistrate Judge Faruqui Correctly Granted Summary
Judgment on Mr. Richardson’s Rehabilitation Act Claim
The Rehabilitation Act of 1973 “provides that ‘[n]o
otherwise qualified individual with a disability’ shall be
discriminated against by a federal agency ‘solely by reason of .
. . his disability.’” Ward v. McDonald, 762 F.3d 24, 28 (D.C.
6 In addition, as DHS notes, the “dispute related to Plaintiff’s
retirement pay calculation, which resulted in an overpayment, is
related to [his] dispute with the Office of Personnel
Management[ (“OPM”),]” not DHS. See Def.’s Resp., ECF No. 54 at
4 (citing Pl.’s Ex. SS, ECF No. 47-49, Order & Summ. of Status
Conference, Richardson v. OPM, DC-0845-16-0798-I-1 (MSPB Oct.
17, 2016)). The record indicates that OPM resolved the
overpayment issue in Mr. Richardson’s favor. See Pl.’s Ex. RR,
ECF No. 47-48 at 51.
24
Cir. 2014) (quoting 29 U.S.C. § 794(a)). The “basic tenet” of
the Act is that the federal government “must take reasonable
affirmative steps to accommodate the handicapped, except where
undue hardship would result.” Barth v. Gelb, 2 F.3d 1180, 1183
(D.C. Cir. 1993). To prevail on a failure to accommodate claim,
a plaintiff bears the burden of producing sufficient evidence
that: (1) he was a qualified individual with a disability; (2)
his employer had notice of his disability; and (3) the employer
denied his request for a reasonable accommodation. See Ward, 762
F.3d at 31. Here, only the third element is disputed. See R. &
R., ECF No. 52 at 11. To establish that his request was denied,
Mr. Richardson must also show that DHS “in fact ended the
interactive process or that it participated in the process in
bad faith.” Minter v. Dist. of Columbia, 809 F.3d 66, 69 (D.C.
Cir. 2015) (quoting Ward, 762 F.3d at 32).
Magistrate Judge Faruqui recommended that the Court dismiss
Mr. Richardson’s Rehabilitation Act claim because he concluded
that: (1) Plaintiff was not denied reasonable accommodations,
and (2) DHS was not responsible for the breakdown in the
interactive accommodation process. See R. & R., ECF No. 52 at
12-14, 16-19. Mr. Richardson objects to these portions of the R.
& R. See Pl.’s Objs., ECF No. 53 at 5-11 (objections two and
25
three). The Court reviews these objections de novo, 7 and for the
reasons below, adopts the Magistrate Judge’s recommendations.
1. Mr. Richardson Was Not Denied Reasonable
Accommodations
“[W]hile a plaintiff may prove discrimination by showing
that his employer failed to provide a reasonable accommodation[]
[for] his disability, . . . an employer need only provide an
accommodation that is responsive to and tailored to a specific
disability.” Edwards v. Gray, 7 F. Supp. 3d 111, 115 (D.D.C.
2013) (citation and internal quotation marks omitted). An
“employer is not required to provide an employee that
accommodation he requests or prefers[;] the employer need only
provide some reasonable accommodation.” Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (citation omitted).
If accommodation is not possible in the employee’s current
position, then “the federal employer must consider the
feasibility of reassigning the disabled employee to a vacant
position.” Norden v. Samper, 503 F. Supp. 2d 130, 145-46 (D.D.C.
2007). However, there are “[r]ecognized constraints on an
employer’s obligation to reassign a disabled employee[,]” as
“[a]n employee need not be reassigned if no vacant [qualifying]
7 Of note, while DHS argues for the general application of clear
error review to all of Plaintiff’s objections, it only provides
specific reasons for applying this standard to his fourth and
fifth objections. See Def.’s Resp., ECF No. 54 at 2-3.
26
position exists,” and “employers are not required to ‘bump’ an
employee, or to create a new position” solely for the purposes
of an accommodation. Aka, 156 F.3d at 1305. In addition, “when
an employee requests a transfer as reasonable accommodation and
the employer offers alternative reasonable accommodation[s],
which the employee then refuses, the employer cannot be liable
for failing to reasonably accommodate the employee by not
transferring him to another position.” Gile v. United Airlines,
Inc., 95 F.3d 492, 499 (7th Cir. 1996).
Mr. Richardson objects to Magistrate Judge Faruqui’s
conclusion that “the six accommodations proposed by Defendant
were reasonable and tailored to enable Plaintiff to perform his
essential duties.” Pl.’s Objs., ECF No. 53 at 5 (citing R. & R.,
ECF No. 52 at 12). While Plaintiff claimed that the proffered
accommodations failed his medical needs because Dr. Babcock had
“characterized reassignment as ‘medically necessary,’” R. & R.,
ECF No. 52 at 14; Magistrate Judge Faruqui called this argument
“toothless” because of “Dr. Babcock’s lack of knowledge [about]
the proposed accommodations at the time of her recommendation
and by her later testimony that she would have ‘been very
pleased with those accommodations’” if she had known about them,
id. (citing Def.’s Ex. H, ECF No. 41-25 at 33:24-34:9). The
Magistrate Judge concluded that “Plaintiff could not demonstrate
27
that Dr. Babcock would have testified differently about the
proposed accommodations when they were made.” Id.Mr. Richardson claims there is a genuine issue of material
fact because Magistrate Judge Faruqui “speculated that Plaintiff
could not demonstrate Dr. Babcock would have testified
differently” about DHS’s proposed accommodations when they were
made in 2012, which renders the issue “not appropriate for
summary judgment.” Pl.’s Objs., ECF No. 53 at 5-6. DHS responds
that “[t]he record demonstrates that Dr. Babcock testified she
would have considered the Agency’s offered accommodations
adequate to address Plaintiff’s medical condition.” Def.’s
Resp., ECF No. 54 at 4. The Court agrees with DHS.
The record indicates that Dr. Babcock submitted two letters
on Mr. Richardson’s behalf, recommending “[r]eassignment to a
position that is not predominantly sedentary.” See Pl.’s Ex. Z,
ECF No. 47-31 at 2; Def.’s Ex. G-8, ECF No. 41-21 at 2. Yet, in
her deposition in 2019, Dr. Babcock testified that at no point
was she made aware of the accommodations DHS offered Mr.
Richardson on November 23, 2012. See Def.’s Ex. H, ECF No. 41-25
at 32:9–12; Def.’s Ex. G-6, ECF No. 41-19 at 3-4. Specifically,
the following exchange occurred between Dr. Babcock and
Defendant’s attorney in her deposition:
Q: Now, using all six of those options at the
same time, rest breaks, the empty space to
stretch out, to change his work time so he
28
could go to the gym, an ergonomic specialist
to come in to work with him on the work space
that he -- setting it up in the way that works
for him better, and the ability to take the
leave for his rehab appointments, would all of
those together make it so that he could
continue doing his sedentary job?
A: I would have been very pleased with those
accommodations if I had known about them.
Def.’s Ex. H, ECF No. 41-25 at 33:24-34:9. This dialogue
provides sufficient facts from which a jury could reasonably
conclude that “if [Dr. Babcock] had known about” the six
accommodations in 2012 when DHS proposed them, id.; she would
have considered them “adequate to address Plaintiff’s medical
condition[,]” Def.’s Resp., ECF No. 54 at 4. Indeed, Plaintiff
offers only “speculation and conjecture” that Dr. Babcock would
testify differently before a jury today than she did in her 2019
deposition regarding her medical opinion from 2012, which are
“insufficient to avoid summary judgment[.]” See Hancock v.
Washington Hosp. Ctr., 908 F. Supp. 2d 18, 26 (D.D.C. 2012).
Although DHS did not offer every accommodation requested, it did
proffer reasonable alternatives, “which is all the law requires
it to do.” See Doak v. Johnson, 19 F. Supp. 3d 259, 275 (D.D.C.
2014); Aka, 156 F. Supp. 3d at 1305. Accordingly, the Court
ADOPTS the R. & R.’s finding that Plaintiff was not denied
reasonable accommodations, see ECF No. 52 at 12-14.
29
2. DHS Was Not Responsible for the Breakdown in the
Interactive Accommodation Process
The Court next considers Mr. Richardson’s objection that
there is a genuine issue of material fact regarding whether DHS
“participated in the reasonable accommodation request process in
bad faith” and was thus responsible for the breakdown in the
interactive accommodation process. Pl.’s Objs., ECF No. 53 at 6.
To prove the denial of a reasonable accommodation request,
a plaintiff must show “either that the [agency] in fact ended
the interactive process or that it participated in the process
in bad faith.” Minter, 809 F.3d at 69. “Few disabilities are
amenable to one-size-fits-all accommodations[,]” and “[t]he
process contemplated is ‘a flexible give-and-take’ between
employer and employee ‘so that together they can determine what
accommodation would enable the employee to continue working.’”
Ward, 762 F.3d at 32 (quoting EEOC v. Sears, Roebuck & Co., 417
F.3d 789, 805 (7th Cir. 2005)). “[C]ourts 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). This analysis considers
whether a party “obstructs or delays the interactive process” or
“fails to communicate, by way of initiation or response,” and
should “isolate the cause of the breakdown and then assign
30
responsibility.” Id. (quoting Sears, 417 F.3d at 805). “An
employee’s rejection of an employer’s proposed reasonable
accommodation is one example of bad-faith termination of the
interaction process.” R. & R., ECF No. 52 at 16 (citing Senatore
v. Lynch, 225 F. Supp. 3d 24, 35 (D.D.C. 2016)). In contrast,
employers can show good faith by meeting with the employee,
requesting information about his condition and limitations,
asking the employee what he specifically wants, showing signs of
having considered the employee’s request, and discussing
alternatives when the request is burdensome. See Woodruff v.
LaHood, 777 F. Supp. 2d 33, 41–42 (D.D.C. 2011) (citation
omitted). Ultimately, the “failure to provide [an employee] with
exactly the accommodation [he] requested is not, in and of
itself, evidence that the [employer] did not engage in good
faith in the interactive process.” Morris v. Jackson, 994 F.
Supp. 2d 38, 49 (D.D.C. 2013).
Mr. Richardson objects to Magistrate Judge Faruqui’s
rejection of the possibility that DHS “exhibited bad faith
during the [interactive] process” and claims there is a genuine
dispute of material fact on this issue. See Pl.’s Objs., ECF No.
53 at 7, 11. Mr. Richardson alleges he is not “tak[ing] issue
with the Magistrate finding some indicators of good faith by
Defendant” but is taking “issue with the Magistrate not properly
31
recognizing that [DHS] also engaged in statements and actions
demonstrating bad faith.” Id. at 7.
To support his objection, Mr. Richardson proffers three
purported instances of bad faith by Defendant, to which DHS
responds that each are “without merit.” Def.’s Resp., ECF No. 54
at 5. First, Plaintiff points to statements made by AC Tomsheck
and his supervisors after his return to work to argue that DHS
demonstrated bad faith by “immediately eliminating reassignment
as a possible accommodation as early as August 2012 without
fairly considering it[.]” See Pl.’s Obj.’s, ECF No. 53 at 7-8
(quoting AC Tomsheck: “IPD was the best place for Plaintiff[;]”
Mr. Matta: “John, you’re staying in IPD[;]” and Mr. Lid: “[W]hy
don’t you just retire retire?”; and claiming these statements
exhibited “a ‘closed mind’ to [his] request for reassignment”).
However, “the record is replete with evidence that the
Agency did consider reassignment” despite these alleged
statements. Def.’s Resp., ECF No. 54 at 5 (citing SOMF, ECF No.
47-4 at 14 ¶ 34, 15-16 ¶¶ 37-40). For example, on August 16,
2012, in an email following his initial phone conversation with
Mr. Richardson about his request for accommodations, Mr. Matta
stated: “[I]f you are interested in moving to another IA
division, I will support your movement to another division . . .
I suggest you identify the component and specific job you are
interested in[,] and I will do everything I can to facilitate a
32
reassignment.” Pl.’s Ex. G, ECF No. 47-12 at 1. In another email
on September 7, 2012, Mr. Matta wrote to Plaintiff: “Should you
wish to move within IA or to another component, I will try to
facilitate.” Def.’s Ex. I-1, ECF No. 41-26 at 4 (emphasis in
original). These statements were made “early in the
accommodation process” and do not indicate that management
“view[ed] reassignment negatively as an option during the early
stages of the interactive process[.]” Pl.’s Objs., ECF No. 53 at
8.
The record demonstrates that DHS engaged with the
possibility of reassignment throughout the accommodation
process. In January 2013, “Defendant granted Plaintiff’s request
for reconsideration despite his refusal to attempt the six
accommodations offered[,]” R. & R., ECF No. 52 at 17 (citing
SOMF, ECF No. 47-4 at 14 ¶ 34); and initiated two searches for
“vacant funded positions in the local commuting area” to which
Mr. Richardson could be reassigned, see Def.’s Ex. G-9, ECF No.
41-22 at 3; Def.’s Ex. E-1, ECF No. 41-12 at 7-8 ¶ 17 (noting
that both searches yielded no vacancies). Given that “[a]n
employee need not be reassigned if no vacant position exists,”
Aka, 156 F.3d at 1305; the Court is therefore unpersuaded that a
jury could reasonably conclude that the above statements from IA
leadership were sufficient to indicate bad faith and overcome
the other evidence of good faith. Moreover, DHS was not, as Mr.
33
Richardson argues, required to consider reassignment or any of
his preferred accommodations before other alternatives. See
Norden, 503 F. Supp. 2d at 145-46 (concluding that “[i]f
accommodation cannot be made in the employee’s current
position,” only then must the employer “consider the feasibility
of” reassignment); Aka, 156 F.3d at 1305 (negating preferential
treatment of the accommodation an employee “prefers”).
Mr. Richardson’s second purported indication of bad faith
is “Defendant’s passivity and indifference in the initial two
months” following his request for accommodations on August 3,
2012. Pl.’s Objs., ECF No. 53 at 9. He claims that during those
two months, DHS did not meaningfully respond to his request and
that this “earliest reaction . . . is more important than [its]
later actions” in exploring possible accommodations. Id. at 9-
10. The Court disagrees, as the record indicates Mr. Matta
immediately engaged with Mr. Richardson via phone and email
after receiving his August 3, 2012 email. See SOMF, ECF No. 47-4
at 4 ¶ 11. In addition, Plaintiff fails to cite any authority
proving that an employer’s earlier reactions are weighed more
heavily than its later actions in the interactive process, when
in fact the duty to accommodate is an evolving and “continuing
duty that is not exhausted” by any one effort, Norden, 503 F.
Supp. 2d at 145; and the evidence indicates Mr. Richardson’s
request “was still under consideration” throughout 2013, see
34
Ward, 762 F.3d at 33 n.3 (affirming summary judgment, despite
the plaintiff’s testimony that her accommodation request was
denied at an earlier meeting, when a follow-up letter from her
employer showed her request was still pending). 8
Mr. Richardson’s final proffer of bad faith is DHS’s
“failure to truly consider telework as an option or list it as a
possibility from the [JAN].” Pl.’s Objs., ECF No. 53 at 10. As
with his argument regarding reassignment, Mr. Richardson claims
that DHS “showed a closed mind to telework by rejecting it
(quickly) without ever really explaining why.” Id. at 11.
However, the only evidence he points to to support this
statement is Mr. Matta’s MSPB testimony about telework, in which
Mr. Matta stated that if an employee “were unable to focus,
concentrate[,] and look at a computer monitor and type, it was
irrelevant” whether the work was performed at the office or at
home. Id. at 10; Pl.’s Ex. B, ECF No. 47-7 at 185:17-186:4.
However, this statement does not indicate that Defendant
“quickly” denied telework as a reasonable accommodation, much
8 The Court notes similarities between this portion of the
objection and Plaintiff’s opposition brief. See Pl.’s Opp’n, ECF
No. 47 at 27 (“The evidence directly shows that between August
3, 2012 and November 23, 2012, the Agency did not take a single
proactive measure to ensure that Plaintiff’s request was
properly processed, much less even considered.”). Had the Court
not reached the above de novo conclusion, it also believes this
portion of Plaintiff’s objection could be overruled under clear
error review for attempting to “rehash” this prior argument.
Shurtleff v. EPA, 991 F. Supp. 2d 1, 8 (D.D.C. 2013).
35
less never considered it throughout the interactive process, and
it also does not raise an inference of bad faith. See Morris,
994 F. Supp. 2d at 49 (finding that the breakdown in the
interactive process may have in fact been “caused by [the
plaintiff’s] insistence on telecommuting, but no evidence
show[ed] it was caused by any misfeasance or lack of good faith”
by her employer). As Mr. Richardson concedes, all that was
required of DHS was to act in good faith by considering his
telework request, alongside the reasonable available
alternatives. See id. at 47; Pl.’s Objs., ECF No. 53 at 10.
Because Mr. Richardson’s three arguments do not raise a
genuine dispute as to DHS’s purported bad faith, the Court
ADOPTS this portion of the R. & R, see ECF No. 52 at 16-19.
Moreover, because the Court agrees with Magistrate Judge Faruqui
that: (1) Mr. Richardson was not denied reasonable
accommodations; and (2) DHS was not responsible for the
breakdown in the interactive accommodation process, the Court
GRANTS Defendant’s Motion for Summary Judgment as to Mr.
Richardson’s Rehabilitation Act claim, see ECF No. 41.
C. Magistrate Judge Faruqui Correctly Granted Summary
Judgment on Mr. Richardson’s Retaliation Claim
The Court next considers Plaintiff’s three objections to
the portions of the R. & R. recommending denial of his Title VII
retaliation claim. See R. & R., ECF No. 52 at 22-28.
36
Title VII makes it unlawful for an employer to retaliate
against an employee because he opposed an unlawful employment
practice and asserted his Title VII rights. See 42 U.S.C. §
2000e-3(a); Jeffries v. Barr, 965 F.3d 843, 860 (D.C. Cir.
2020). Where the plaintiff lacks direct evidence of retaliation,
he must proceed under the burden-shifting analysis set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). See Iyoha v. Architect of the
Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019). This framework
requires the plaintiff to first plead his prima
facie case, see McDonnell Douglas, 411 U.S. at 802; which
requires establishing that: (1) “he engaged in statutorily
protected activity;” (2) “he suffered a materially adverse
action by his employer;” and (3) “a causal link connects the
two[,]” Iyoha, 927 F.3d at 574 (quoting Jones v. Bernanke, 557
F.3d 670, 677 (D.C. Cir. 2009)). Upon this showing, “the burden
shifts to the employer to articulate a legitimate, non-
retaliatory reason for its actions[,]” and if it does so, the
burden returns to the plaintiff to prove that the “asserted non-
retaliatory reason was mere pretext for retaliation.” Carter-
Frost v. Dist. of Columbia, 305 F. Supp. 3d 60, 73 (D.D.C.
2018). The “sole remaining question” becomes “whether, based on
all the evidence, a reasonable jury could conclude that [the]
proffered reason was” not the real reason for the adverse action
37
“and that the employer intentionally . . . retaliated against
the employee.” Pardo–Kronemann v. Donovan, 601 F.3d 599, 604
(D.C. Cir. 2010); Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.
Cir. 2015); see also Jones, 557 F.3d at 677 (noting that “the
burden-shifting framework disappears” once an employer carries
its burden, and courts must consider “whether a reasonable jury
could infer . . . retaliation from all the evidence”).
“[O]nly a retaliatory act that is ‘materially adverse’ to
the plaintiff is actionable[.]” Chambers v. Dist. of Columbia,
35 F.4th 870, 876 (D.C. Cir. 2022) (citing Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57, 67-68, 126 S. Ct. 2405
(2006)), judgment entered, No. 19-7098, 2022 WL 2255692 (D.C.
Cir. June 23, 2022). Courts determine whether an action is
materially adverse using an objective standard, see id.; that
is, “the 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[,]” White, 548 U.S. at 57.
Materially adverse actions are thus “objectively tangible
harm[s],” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002); and not “those petty slights or minor annoyances that
often take place at work[,]” White, 548 U.S. at 68; see also
Tyes-Williams v. Whitaker, 361 F. Supp. 3d 1, 13 (D.D.C. 2019)
(requiring the action to affect “the terms, conditions, or
privileges of employment or future employment opportunities”).
38
Magistrate Judge Faruqui considered the material adversity
of three actions before “moving onto the non-retaliatory reasons
offered” by DHS for them: (1) the alleged denial of reasonable
accommodations; (2) Plaintiff’s placement on DNA status; and (3)
his termination. See R. & R., ECF No. 52 at 23. First,
Magistrate Judge Faruqui concluded that “[b]ecause Defendant
provided reasonable accommodations[,] . . . no materially
adverse action arose” in this regard. Id. at 23. Second, because
he found “a question as to material adversity of the DNA
notice,” Magistrate Judge Faruqui examined DHS’s proffered
reason for the notice and determined it was not pretextual. Id.
at 25-27. Lastly, because DHS conceded that Plaintiff’s
termination was materially adverse, Magistrate Judge Faruqui
assessed its proffered non-retaliatory rationale—Mr.
Richardson’s “excessive absenteeism”—to conclude that he failed
to prove pretext. Id. at 27-28. Plaintiff’s fourth, fifth, and
sixth objections pertain to these portions of the R. & R. See
Pl.’s Objs., ECF No. 53 at 11-19. For the reasons below, the
Court adopts Magistrate Judge Faruqui’s three recommendations as
to Mr. Richardson’s retaliation claim.
1. Because DHS Provided Reasonable Accommodations
to Mr. Richardson, He Cannot Dispute the
“Material Adversity” of This Action
In his fourth objection, Mr. Richardson objects to
Magistrate Judge Faruqui’s conclusion that DHS provided him
39
reasonable accommodations and that no materially adverse action
arose in this regard for purposes of his retaliation claim. See
id. at 13-14; R. & R., ECF No. 52 at 23. He argues that
“evidence from Dr. Babcock on the issue of what would be
considered reasonable accommodations should not be disregarded
to the point of deciding that no genuine issue of material fact
was presented by whether reasonable accommodations were
granted.” Id. at 13. DHS argues that this objection should be
reviewed for clear error, as it amounts to “a cut and paste”
from Plaintiff’s Amended Opposition. Def.’s Resp., ECF No. 54 at
2. The Court agrees.
“Under the clearly erroneous standard, the magistrate
judge’s decision is entitled to great deference and is clearly
erroneous only if on the entire evidence the court is left with
the definite and firm conviction that a mistake has been
committed.” Buie, 2019 WL 4345712, at *3 (citation and internal
quotation marks omitted). Courts must review an R. & R. in line
with this standard when a party “simply reiterates his original
arguments,” Houlahan, 979 F. Supp. 2d at 88; or attempts to
“merely rehash an argument presented [to] and considered by the
magistrate judge[,]” Shurtleff, 991 F. Supp. 2d at 8.
The substance of Mr. Richardson’s fourth objection is a
reiteration of arguments already presented to and considered by
Magistrate Judge Faruqui. Compare Pl.’s Opp’n, ECF No. 47 at 12
40
(“Any attempt to use Dr. Babcock’s testimony—almost seven (7)
years after her evaluation of Plaintiff—regarding hypothetical
accommodations as a way to contradict her real-time, unwavering,
definitive medical conclusions based on real-time physical
examinations, numerous conversations with Plaintiff, and
diagnostic tests she performed on him, is nonsensical.”
(emphasis in original)), with Pl.’s Objs., ECF No. 53 at 13
(disagreeing with Magistrate Judge Faruqui’s conclusion because
“Defendant’s attempt to use Dr. Babcock’s testimony almost seven
(7) years after her evaluation of Plaintiff regarding
hypothetical accommodations is nonsensical, considering her
unwavering, definitive medical conclusions of Plaintiff’s
conditions based on her physical examinations and her
interactions with Plaintiff, as well as diagnostic tests she
performed and the relevant medical records”). This repetitive
wording indeed indicates “a cut and paste” job that does not
persuade the Court that Magistrate Judge Faruqui made a definite
mistake. Def.’s Resp., ECF No. 54 at 2. Accordingly, the Court
defers to Magistrate Judge Faruqui’s decision and ADOPTS this
portion of the R. & R., see ECF No. 52 at 23-24. 9
9 Moreover, for the same reasons the Court found no genuine
dispute of material fact regarding Dr. Babcock’s testimony under
the second objection and adopted the R. & R.’s conclusion that
Mr. Richardson was not denied reasonable accommodations under
the Rehabilitation Act, see supra section IV.B.1.; so too does
the Court conclude that this Title VII retaliation objection
41
2. Mr. Richardson Has Failed to Produce Sufficient
Evidence from Which a Reasonable Jury Could
Conclude That DHS’s Stated Reasons for the DNA
Notice Are Pretextual
In his fifth objection, Plaintiff objects to Magistrate
Judge Faruqui’s conclusion that DHS proffered a legitimate, non-
retaliatory reason for the DNA notice that he failed to show is
pretextual. See Pl.’s Objs., ECF No. 53 at 15-16; Def.’s Resp.,
ECF No. 54 at 9 (“Plaintiff’s argument is whether the Magistrate
Judge erred in finding whether [he] demonstrated pretext.”). Mr.
Richardson also argues that the DNA notice harmed him, such that
summary judgment should be precluded. See Pl.’s Objs., ECF No.
53 at 14. However, the Court rejects these “harm” arguments, as
Magistrate Judge Faruqui already concluded, after analyzing the
record, that “a genuine dispute of fact exists as to whether
Plaintiff suffered harm because of the DNA notice.” R. & R., ECF
No. 52 at 25. Because the Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) has instructed that on motions
for summary judgment, “a district court need not consider
whether a plaintiff has actually satisfied the elements of a
prima facie case if the defendant has offered a legitimate, non-
discriminatory reason for its actions[,]” Musgrove, 775 F. Supp.
fails on the same grounds, see R. & R., ECF No. 52 at 24 (“[T]he
Court’s conclusion that [P]laintiff’s Rehabilitation Act claim
fails . . . defeats [his] retaliation claim based on the same
alleged denial of reasonable accommodation.” (quoting Lester v.
Natsios, 290 F. Supp. 2d 11, 34 (D.D.C. 2003))).
42
2d at 169 (citing Brady v. Off. of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008)); the Court only reviews DHS’s stated
reason for the notice “to determine if it was pretextual[,]” R.
& R., ECF No. 52 at 25. Although DHS argues for clear error
review, Def.’s Resp., ECF No. 54 at 2-3; the Court applies de
novo review since Plaintiff’s prior arguments about the notice
were in the context of his hostile work environment claim, not
his retaliation claim, see Pl.’s Opp’n, ECF No. 47 at 38-39.
A legitimate, non-retaliatory reason is a “clear and
reasonably specific” explanation for the employer’s actions,
i.e., “produc[ing] evidence of [those] legitimate [ ] reasons.”
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256-58, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (internal quotation marks
omitted). “[I]n all instances where a defendant has asserted a
legitimate, non-[retaliatory] reason for its conduct, the Court
shall evaluate all of the evidence in the record” when assessing
the legitimacy of that reason. Washington v. Chao, 577 F. Supp.
2d 27, 39 (D.D.C. 2008). On summary judgment, the central
question reduces to whether the employee has “produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted . . . non-retaliatory reason was not the
actual reason and that the employer intentionally . . .
retaliated against the employee.” Walker, 798 F.3d at 1092. Upon
the articulation of a legitimate reason for the adverse action,
43
the burden shifts back to the plaintiff to rebut the defendant’s
stated reason as pretextual. See Musgrove, 775 F. Supp. 2d at
170. The plaintiff can “carry this burden by showing” that the
“reason offered by [the] defendant is false,” id. (citing
Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008)); or by
“presenting enough evidence to allow a reasonable trier of fact
to conclude that the employer’s proffered explanation is
unworthy of credence[,]” id. (quoting Desmond v. Mukasey, 530
F.3d 944, 962 (D.C. Cir. 2008)).
Magistrate Judge Faruqui concluded that DHS’s “proffered
reason for the DNA placement—that Plaintiff’s supervisors
believed that he posed a risk to other employees—is supported
by” the record, R. & R., ECF No. 52 at 25; and the Court agrees.
In November 2012, Mr. Matta advised an ER Specialist of his and
Ms. Keverline’s concerns about Plaintiff. See Def.’s Ex. N, ECF
No. 41-37 at 2. Mr. Matta expressed his concern that Mr.
Richardson’s “perceived fear and paranoia [ ] provid[ed] him an
altered view of reality[,]” and that “his erratic behavior [was]
cause for concern.” Id. at 5. He added that Mr. Richardson’s
“email responses and actions” had created “anxiety” in the
workplace, and he feared Mr. Richardson was “demonstrating
warning signs that [were] consistent with other workplace
violence episodes” that “could place the staff at risk.” Id. at
6. Ms. Keverline also observed that Plaintiff’s behaviors were
44
raising “the stress level in the office.” Id. at 4. Then, on
January 22, 2013, Mr. Richardson forwarded an email to Mr. Lid
in which he stated that he belonged to two high-risk categories
for suicide—service member and member of law enforcement—and was
not operating under optimal conditions. See Def.’s Ex. O, ECF
No. 41-38 at 8. Despite later denying having suicidal thoughts,
see id. at 4; and even assuming that none of his supervisors
“were afraid of [him] or felt physically threatened by him[,]”
Pl.’s Objs., ECF No. 53 at 16; based on the record, the Court
adopts the Magistrate Judge’s conclusion that DHS has asserted a
legitimate, non-retaliatory reason for placing him on DNA
status, see R. & R., ECF No. 52 at 26.
Mr. Richardson claims that DHS issued the DNA notice to
“perpetuat[e] [its] false narrative that [he] was somehow a
safety threat” so that it had a reason to remove him. Pl.’s
Objs., ECF No. 53 at 16. In an attempt to establish pretext,
Plaintiff argues that because DHS “has been unable to provide
the identity of those responsible for the DNA status[,]” the
Court should cast doubt on whether DHS “genuinely believed” he
posed a risk to others. Pl.’s Objs., ECF No. 53 at 14-15. Even
if DHS is unable to pinpoint the officials involved, Plaintiff
still needs to prove that the “actual reason” for the decision
was retaliatory. See Walker, 798 F.3d at 1092. The Court agrees
that “[w]ho made the DNA decision is of little consequence[,]”
45
as “[w]hy it was made is what matters[,]” R. & R., ECF No. 52 at
27 n.11; and nothing in this “minor inconsistency” supports an
inference of retaliation, Minter, 809 F.3d at 71; see Alexander
v. Tomlinson, 507 F. Supp. 2d 2, 19 (D.D.C. 2007) (finding that
a discrepancy in a supervisor’s testimony “may cast some doubt
on [his] credibility,” but was insufficient to infer a
retaliatory motive for the plaintiff’s termination). Moreover,
nowhere in his objection does Plaintiff attempt to create “a
causal link” between the DNA notice and protected activity,
which is fatal to his retaliation claim. See Iyoha, 927 F.3d at
574. Accordingly, the Court ADOPTS the R. & R.’s findings as to
the DNA notice, see ECF No. 52 at 25-27.
3. Mr. Richardson Has Failed to Produce Sufficient
Evidence from Which a Reasonable Jury Could
Conclude That DHS’s Stated Reasons for His
Termination Are Pretextual
In his sixth objection, Mr. Richardson objects to two of
Magistrate Judge Faruqui’s conclusions as to his termination:
(1) DHS proffered a non-retaliatory reason—his “excessive
absenteeism”—that he failed to show is pretextual, and (2) he
“failed to establish a causal connection between the protected
activity and termination.” Pl.’s Objs., ECF No. 53 at 17; R. &
R., ECF No. 52 at 27 n.12-28. To support pretext and the
requisite causal connection, Mr. Richardson directs the Court to
an October 2012 email from AC Tomsheck sent to agency leaders,
46
in which he noted “Plaintiff’s interactions with the Agency,
including [his] past complaints and that some ‘ha[d] asked that
[AC Tomsheck] take action to remove [Plaintiff] from the
workplace.’” R. & R., ECF No. 52 at 28 n.12 (quoting Pl.’s Ex.
U, ECF No. 47-26 at 3-4). He argues that “this email
demonstrates sufficient pretext from a high-level Agency
official within Plaintiff’s chain-of-command, even if [AC
Tomsheck] was not the proposing or deciding official” of his
termination. Pl.’s Objs., ECF No. 53 at 18. He also argues that
this email creates a genuine issue of material fact regarding a
causal connection between his EEO activity and his termination.
Id. at 17-18. The Court reviews this objection de novo.
Because Mr. Richardson’s termination was materially
adverse, see Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009) (“An adverse employment action is a significant change in
employment status, such as hiring[ or] firing[.]” (citation and
internal quotation marks omitted)); the Court follows Magistrate
Judge Faruqui’s approach in first analyzing DHS’s “proffered
non-retaliatory rationale[,]” see R. & R., ECF No. 52 at 27-28
(“At this stage, Plaintiff’s prima facie case falls away and the
question becomes whether [he] can show by a preponderance of the
evidence that Defendant’s given rationale was pretextual.”);
Jeffries, 965 F.3d at 860 (instructing district courts, “where
appropriate, to avoid the ‘unnecessary sideshow’ of the first
47
two prongs, . . . and proceed to [ ] the question of pretext”).
DHS has stated that it terminated Mr. Richardson due to
excessive absenteeism. See Def.’s Ex. P-1, ECF No. 41-40 at 2;
Def.’s Ex. P-2, ECF No. 41-41 at 2. In the letter proposing
termination, DHS informed Plaintiff that from September 23, 2012
to September 7, 2013, he used “69.5 hours of annual leave, 165
hours of sick leave, and 1016 hours of [LWOP] . . . outside of
the hours . . . [he had] invoked under the [FMLA].” Def.’s Ex.
P-1, ECF No. 41-40 at 2. The letter also noted that Plaintiff’s
“recurrent absences [had] continued beyond a reasonable time and
[had] placed burdens on [his] supervisor in maintaining
continuity of work . . . [and] on other employees who [had] to
cover and complete work that would otherwise [have been]
assigned to” Mr. Richardson if he had been present. Id. Mr.
Richardson has not disputed DHS’s accounting of his absenteeism
in this letter. See SOMF, ECF No. 47-4 at 30 ¶ 90. After
reviewing the record, Mr. Joseph Gaudiano, the deciding
official, concluded that “the reason as articulated in the
proposal letter [was] supported by the evidence” and issued
notice of Mr. Richardson’s removal, effective March 8, 2014. See
Def.’s Ex. P-2, ECF No. 41-41 at 2; Pl.’s Ex. QQ, ECF No. 47-47
at 350:16-352:6. Mr. Richardson filed an appeal with the MSPB,
and on September 22, 2017, the AJ affirmed the removal action.
See Def.’s Ex. Q, ECF No. 41-43 at 2-3.
48
Based on this evidence, the Court adopts Magistrate Judge
Faruqui’s conclusion that DHS has asserted a legitimate, non-
retaliatory reason for terminating Mr. Richardson, as it agrees
that “absenteeism is a classic non-retaliatory reason for
termination.” See R. & R., ECF No. 52 at 28 (citing Doak, 19 F.
Supp. 3d at 281). In his objection, Mr. Richardson now claims
that this reason is “a smokescreen obscuring the true” reason
for his removal, “as reflected by [AC] Tomsheck’s [October 2012]
email[,]” Pl.’s Objs., ECF No. 53 at 19; but the Court is not
persuaded that this email “provide[s] sufficient evidence for a
reasonable jury to infer retaliation[,]” Jones, 557 F.3d at 679.
In his email, AC Tomsheck merely “la[id] out the facts” as to
“the situation with John Richardson” in a discussion with other
agency leaders regarding his request for accommodations. See
Pl.’s Ex. U, ECF No. 47-26 at 3-4. AC Tomsheck noted that
“[s]ome leadership in IA . . . ha[d] expressed concern for their
safety and fear that [Plaintiff] ha[d] a potential for workplace
violence” and asked that he “remove [Plaintiff] from the
workplace.” Id. at 4. Instead of indicating pretext, this email
demonstrates another legitimate reason DHS may have had for
later terminating Plaintiff, apart from absenteeism. Moreover,
later in the email chain, AC Tomsheck expressed his concern for
Mr. Richardson and “those in our workplace,” while also stating
that he really “wish[ed] there [was] something [he] could do to
49
help him.” Id. at 3. These statements do not evince an illicit,
retaliatory motive. See Jeffries, 965 F.3d at 860; Doak, 19 F.
Supp. 3d at 281 (concluding that “no reasonable jury could
conclude that chronic absenteeism” was “not the real reason for
[the plaintiff’s] termination” when the defendant’s stated
reason for her removal was “her repeated absences, her failure
to comply with leave procedures, and the effect of both on her
team”). And, in addition, AC Tomsheck was not the deciding
official of Plaintiff’s removal. See Alexander, 507 F. Supp. 2d
at 19 (refusing to heavily consider a supervisor’s credibility
in the pretext analysis when he was “not the decisionmaker with
respect to plaintiff’s removal from his position”). 10
Although temporal proximity between an employee’s protected
activity and an employer’s adverse action “is a common and often
10Mr. Richardson appears to attempt to cast doubt on Mr. Joseph
Gaudiano, the official who made the removal decision, by
pointing to Mr. Gaudiano’s testimony from his appeal to the U.S.
Merit Systems Protection Board (“MSPB”), in his objection
pertaining to his placement on DNA status, rather than in his
objection regarding termination. See Pl.’s Objs., ECF No. 53 at
17. To the extent Plaintiff may have intended to also use Mr.
Gaudiano’s testimony to object to Magistrate Judge Faruqui’s
conclusions regarding his termination, the Court rejects this
attempt, as it does not read this testimony to support
Plaintiff’s statement that Mr. Gaudiano “would not have removed
Plaintiff for absenteeism[.]” Id.; see also Pl.’s Ex. QQ, ECF
No. 47-47 at 350:16-353:12. Moreover, the MSPB Administrative
Judge considered this testimony before affirming Mr.
Richardson’s removal action, finding that DHS had “proven its
excessive absenteeism charge by a preponderance of the
evidence.” See Def.’s Ex. Q, ECF No. 41-43 at 3, 5, 31-32.
50
probative form of evidence of retaliation[,]” Walker, 798 F.3d
at 1092 (citing Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir.
2009)); Magistrate Judge Faruqui concluded that Mr. Richardson
failed to establish temporal proximity indicating retaliation,
see R. & R., ECF No. 52 at 27-28 n.12; and the Court adopts that
finding. Magistrate Judge Faruqui reasoned that the “correct
timeline” for temporal proximity “is between when the employee’s
protected activity occurred and when the employer notified the
employee of removal (at the earliest) or when the employee was
removed (at the latest).” See id. (citing Durant v. Dist. of
Columbia, 932 F. Supp. 2d 53, 73 (D.D.C. 2013)). Given that Mr.
Richardson’s protected activity and AC Tomsheck’s email occurred
in October 2012, but Plaintiff was not notified of his proposed
removal until September 16, 2013, the Court concludes that there
is insufficient temporal proximity to support a causal link
indicating pretext. See Taylor, 571 F.3d at 1322 (summarizing
cases noting that even between a two and three-month interval
“is, as a matter of law, not close enough”). Moreover, Plaintiff
does not proffer new facts or caselaw to challenge the specific
timeline Magistrate Judge Faruqui used in his temporal proximity
calculations. See Pl.’s Objs., ECF No. 53 at 18 (conceding “that
removal was not actually started until a later date” after AC
Tomsheck’s email). Accordingly, the Court ADOPTS the R. & R.’s
findings as to Plaintiff’s termination, see ECF No. 52 at 27-28.
51
Because the Court agrees with Magistrate Judge Faruqui that
(1) there is no genuine dispute as to “material adversity” since
DHS provided Mr. Richardson reasonable accommodations, and (2)
there is insufficient evidence of pretext to rebut DHS’s stated
reasons for placing him on DNA status and terminating him, the
Court GRANTS Defendant’s Motion for Summary Judgment as to Mr.
Richardson’s retaliation claim under Title VII, see ECF No. 41.
D. Magistrate Judge Faruqui Correctly Granted Summary
Judgment on Mr. Richardson’s USERRA Claims
Finally, Mr. Richardson objects to Magistrate Judge
Faruqui’s recommendation that the Court dismiss his claims under
USERRA on the basis that DHS “acted consistently with [its]
USERRA obligations” when it offered him reasonable
accommodations “in the position for which he was qualified[.]”
See Pl.’s Objs., ECF No. 53 at 20 (citing R. & R., ECF No. 52 at
32). Specifically, he argues that there is a genuine issue of
material fact regarding whether DHS violated USERRA “by failing
to make reasonable efforts to help him become qualified to
perform the duties of vacant positions.” Id. at 19.
“Enacted in 1994, ‘USERRA is the latest in a series of laws
protecting veterans’ employment and reemployment rights.’” Vahey
v. Gen. Motors Co., 985 F. Supp. 2d 51, 57 (D.D.C. 2013). Courts
have noted that USERRA’s protections “should be broadly
construed in favor of military service members as its purpose is
52
to protect such members.” Id. (citation omitted). “Service
members may bring two types of USERRA actions: (1) claims for
failure to reemploy under 38 U.S.C. § 4312 (which does not
require proof of intent); and (2) claims for intentional
discrimination/retaliation under 38 U.S.C. § 4311[.]” Jbari v.
Dist. of Columbia, 304 F. Supp. 3d 201, 205 (D.D.C. 2018). Here,
Plaintiff objects only to Magistrate Judge Faruqui’s conclusions
as to his failure to reemploy claim.
As relevant here, USERRA provides that an employee
returning from uniformed service “shall be promptly reemployed”
as follows:
In the case of a person who has a disability
incurred in, or aggravated during, such
service, and who (after reasonable efforts by
the employer to accommodate the disability) is
not qualified due to such disability to be
employed in the position of employment in
which the person would have been employed if
the continuous employment of such person with
the employer had not been interrupted by such
service—
(A) in any other position which is equivalent
in seniority, status, and pay, the duties
of which the person is qualified to
perform or would become qualified to
perform with reasonable efforts by the
employer; or
(B) if not employed under subparagraph (A),
in a position which is the nearest
approximation to a position referred to
in subparagraph (A) in terms
of seniority, status, and pay consistent
with circumstances of such person’s case.
53
38 U.S.C. § 4313(a)(3)(A)-(B). The position is known as the
“escalator position.” Vahey, 985 F. Supp. 2d at 57; see 20
C.F.R. § 1002.191 (defining the “escalator principle” as the
requirement that a service member “be reemployed in a position
that reflects with reasonable certainty the pay, benefits,
seniority, and other job perquisites, that he [ ] would have
attained if not for the period of service”); 20 C.F.R. §
1002.225 (applying the “escalator principle” to disabled service
members, who are entitled “to the escalator position he or she
would have attained but for uniformed service” and requiring the
employer to “make reasonable efforts to accommodate [the]
disability and to help the employee become qualified to perform
the duties of his or her reemployment [or escalator] position”).
The Court reviews this objection only for clear error, as
it amounts to “a cut and paste” from Plaintiff’s Amended
Opposition brief. Def.’s Resp., ECF No. 54 at 2. Compare Pl.’s
Opp’n, ECF No. 47 at 32-33 (“[T]he Agency has not provided one
iota of evidence that reemployment would impose an undue
hardship, that its circumstances have so changed as to make such
reemployment of Plaintiff impossible or unreasonable, or that
Plaintiff’s position was for a brief, nonrecurrent period and
there was no reasonable expectation that such employment would
continue indefinitely or for a significant period.”), with Pl.’s
Objs., ECF No. 53 at 20 (“Defendant offered no evidence that
54
reemployment of Plaintiff would impose an undue hardship, that
its circumstances have so changed as to make such reemployment
of Plaintiff impossible or unreasonable, or that Plaintiff’s
position was for a brie[f], nonrecurrent period and there was
not reasonable expectation that such employment would continue
indefinitely or for a significant period.”). The same is true
for Mr. Richardson’s argument regarding agency officials’ “lack
of knowledge relating to USERRA” that he claims amounted to
“reckless disregard” and “incompetence in USERRA matters.”
Compare Pl.’s Opp’n, ECF No. 47 at 34, with Pl.’s Objs., ECF No.
53 at 21 (moving material from page 34, footnote 16 of his
opposition brief into the body of his seventh objection).
Because Magistrate Judge Faruqui’s conclusions are
“entitled to great deference” on clear error review, and because
Mr. Richardson’s final objection is a mere reiteration of
arguments already presented, the Court concludes that there is
no evidence that Magistrate Judge Faruqui made a definite
mistake. See Buie, 2019 WL 4345712, at *3. Instead, the Court
agrees that the statutory provisions of USERRA make “the
employer’s duty to search for [escalator] positions [ ]
conditional on Plaintiff remaining unqualified for his current
position even after reasonable accommodations are made.” R. &
R., ECF No. 52 at 32 (citing 20 C.F.R. § 1002.225). Because DHS
provided six accommodations tailored to Mr. Richardson’s needs
55
so as to reemploy him in the very position he held prior to
deployment, see supra section IV.B.1.; and engaged in
reconsideration of his request that resulted in two searches for
vacancies, it “acted consistently with its USERRA
obligations[,]” R. & R., ECF No. 52 at 32; see also Def.’s Ex.
Q, ECF No. 41-43 at 50 (indicating that the MSPB AJ also found
that “the agency complied with USERRA . . . by returning [Mr.
Richardson] to the position he held prior to his deployment” and
attempted to “accommodate his limitations in his position”).
Because Plaintiff refused to attempt DHS’s proffered
accommodations apart from stretch breaks during the workday, see
Def.’s Ex. A, ECF No. 41-6 at 43:8–44:19; SOMF, ECF No. 47-4 at
12 ¶ 29; he is not entitled to claim that he remained “not
qualified for reemployment in the escalator position” following
DHS’s reasonable efforts to accommodate him, see 20 C.F.R. §
1002.225; R. & R., ECF No. 52 at 32; see also Def.’s Ex. Q, ECF
No. 41-43 at 50-51 (concluding that Mr. Richardson “failed to
prove any violation of his rights under USERRA” when he “refused
to try any of the suggested accommodations” and thus “failed to
engage in the interactive process” after DHS “agree[d] to
explore positions to reassign [him] to”). 11
11The Court also adopts Magistrate Judge Faruqui’s conclusion
that “[b]ecause Defendant satisfied its [USERRA] duty,
Defendant’s lack of knowledge regarding the different
56
Accordingly, the Court ADOPTS this portion of the R. & R.,
see ECF No. 52 at 29-33; and GRANTS Defendant’s Motion for
Summary Judgment as to Mr. Richardson’s USERRA claims, see ECF
No. 41.
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate
Judge Faruqui’s R. & R., see ECF No. 52; and GRANTS Defendant’s
Motion for Summary Judgment, see ECF No. 41. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 17, 2023
obligations between USERRA and the [Americans with Disabilities
Act] is immaterial.” See R. & R., ECF No. 52 at 32-33.
57